For nine years an ad hoc committee of the General Assembly of the United Nations worked to reach agreement on the text of an international convention against the recruitment, use, financing and training of mercenaries. In December 1989, the text was submitted to the General Assembly for adoption. Mercenary activity is not a new phenomenon. The attempt to regulate such activity suggests that rules are needed to meet what is either a new problem or an old problem the significance of which has increased. The object of this article is to attempt to identify what activities need to be proscribed and who should be held legally responsible and for what That will suggest a framework against which to evaluate recent texts concerning the use of mercenaries. These include not only the one elaborated under the aegis of the United Nations but also the OAU Convention for the Elimination of Mercenaries in Africa, the Luanda Draft Convention and Article 47 of Protocol I to the Geneva Conventions of 1949. It is necessary first to consider the historical position of the mercenary, before examining the role of such fighters in the conflicts of the 1960s and 1970s. It should then be possible to establish the nature of the perceived problem and, in particular, whether it is the activities of the ‘mercenary’ himself, as commonly understood, which is the cause of that problem. The article suggests that the issue of mercenary activity has been mis-diagnosed. It is not a matter of the jus in bello but of the jus ad bellum. The mercenary, it is argued, is an unlawful participant in the conflict. The problem is one of intervention and not of the status of such a fighter.

Howard Tolley, Jr. divided the development of the United Nations Human Rights Commission's activities from 1946 to 1986 into three distinctive periods:

– a Western dominated body of 18 (later 21) members engaged in standardsetting and promotional activities (1947–1966);

– an Afro-Asian dominated body of 32 members making self-determination and racial equality priority agenda items and systematically attacking Western colonialism (1967–1979); and

– a 43 member body with a more complex political voting pattern aiming at global protection of human rights (1980–1986).

The idea for this study came from the realization that I am in possession of a largely untapped reservoir of valuable treaty materials: the network of bilateral investment treaties (BITs hereafter) which I have collected and studied for a number of years. In these treaties more than one hundred governments have taken a position on a number of issues relating to the promotion and protection of international investments. The three key issues are expropriation, transfer rights with regard to capital and revenues, and dispute settlement.

The end of the 1980s and the beginning of the 1990s have witnessed a considerable shift in managing trade relations on an interstate level. The first and most striking event is obviously the GATT Uruguay Round. The prolonged negotiations, culminating in the ‘Brussels breakdown’ in December 1990, have shown a large degree of disagreement among the trading powers as to the extent and content of substantive international trade rights and obligations.