Over the course of the nineteenth century, the question of state responsibility for injuries done by rebels to foreign nationals, or ‘aliens’, in its territory became an important one for international law. Initially, it was common for disputes regarding such responsibility to be resolved through diplomacy, backed up, not infrequently, by the threat and even the use of force. Later it became a matter which also led increasingly to arbitration; beginning around the middle of the nineteenth century a growing number of arbitral tribunals dealt with claims against states for injuries done to aliens by rebels. From the first, established in 1839, there followed a series of 40 mixed claims commissions which touched on state responsibility for rebels. Nearly three-quarters of these arbitrations involved a Western state against one of the new Latin American republics. In this article, I explore how intervention in Latin America, and particularly its turn to arbitration, produced the highly-contested doctrine of state responsibility for rebels. Reading this history in the context of decolonization, capitalist expansion and economic imperialism in Latin America, I argue that the doctrine of state responsibility for rebels was produced out of and used to manage the transition from old colonialism to new imperialism in the region so as to guarantee foreign trade and investment. Understanding this history, I argue, helps us to put back together the pieces of alien protection which fragmented after 1945 and illuminates how international law continues to protect foreign investment against rebels in the decolonized world.
1 As there is no comprehensive collection of international arbitral awards I have been dependent on cross-checking secondary sources such as: Moore, J. Bassett, History and Digest of the International Arbitrations to Which the United States Has Been a Party (1898); Darby, W. Evans, International Tribunals (1904); Ralston, J.H., The Law and Procedure of International Tribunals (1926); Silvanie, H., ‘Responsibility of States for Acts of Insurgent Governments’, (1939) 33 (1) AJIL 78; Stuyt, A.M., Survey of International Arbitrations, 1794-1938 (1939).
2 Two excellent recent works from Latin American scholars which cover this period and to which I am greatly indebted are: Lorca, A. Becker, Mestizo International Law: A Global Intellectual History 1842–1933 (2014); Scarfi, J. P., The Hidden History of International Law in the Americas: Empire and Legal Networks (2017).
3 See, e.g., Lesaffer, R., ‘International Law and its History: The Story of an Unrequited Love’, in Craven, M., Fitzmaurice, M. and Vogiatzi, M. (eds.), Time, History and International Law (2007), 27; Hunter, I., ‘Global Justice and Regional Metaphysics: On the Critical History of the Law of Nature and Nations’, in Dorsett, S. and Hunter, I. (eds.), Law and Politics in British Colonial Thought: Transpositions of Empire (2010), 11.
4 See Orford, A., ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’, in Toufayan, M., Tourme-Jouannet, E. and Fabri, H. Ruiz (eds.), International Law and New Approaches to the Third World: Between Repetition and Renewal (2013), 97; Orford, A., ‘International Law and the Limits of History’, in Werner, W., Galán, A. and de Hoon, M. (eds.), The Law of International Lawyers: Reading Martti Koskenniemi (2017), 297.
5 Orford, ‘Limits of History’, supra note 4, at 312.
6 Orford, A., ‘On International Legal Method’, (2013) 1 London Review of International Law 170, at 175.
7 Orford, ‘Limits of History’, supra note 4, at 305–6.
8 See Orford, A., ‘In Praise of Description’, (2012) 25 (3) LJIL 609.
9 Calvo, C., ‘De la Non-Responsibilité des États a Raison des Dommages Soufferts par des Étrangers en Cas d’Émeute ou de Guerre Civile’, (1869) 1 (1d series) Revue de Droit International et de Legislation Comparee 417.
10 Ibid., at 417.
11 Ibid., at 422.
12 Ibid., at 417–19.
13 Ibid., at 419–26.
14 Ibid., at 427.
15 Regarding the Don Pacifico affair, see Goebel, J., ‘International Responsibility of States for Injuries Sustained by Aliens on Account of Mob Violence Insurrections and Civil Wars’, (1914) 8 AJIL 802, at 820; and regarding Tuscany and Naples, see Arias, H., ‘The Non-Liability of States for Damages Suffered by Foreigners in the Course of a Riot, an Insurrection, or a Civil War’, (1913) 7 (4) AJIL 724, at 743.
17 Wiesse, C., Reglas de Derecho Internacional Aplicables a las Guerras Civiles (1893).
18 See Garner, J.W., ‘Responsibility of States for Injuries Suffered by Foreigners within their Territories on Account of Mob Violence, Riots and Insurrection’, (1927) 21 ASIL Proc 49, at 59.
19 Wiesse, supra note 17, at 77 and 80–2.
20 See, e.g., Borchard, E.M., The Diplomatic Protection of Citizens Abroad, or, The Law of International Claims (1915), 229.
21 One particularly interesting contrast with Calvo is in respect of the equal treatment principle, which Calvo was so well-known for defending. For Wiesse, the fact that a state denies indemnity to nationals, as a matter of force and abuse, cannot justify its doing so in respect of aliens. See Wiesse, C., Reglas de Derecho Internacional Aplicables a las Guerras Civiles (1905), 87.
22 Podestá Costa was Legal Adviser to the League of Nations (a rank of under secretary-general) from 1936 to 1939 and headed the League of Nations mission to Latin America in 1938. See McPherson, A., Beyond Geopolitics: New Histories of Latin America at the League of Nations (2015), 239ff.
23 Podestá Costa, L.A., El Extranjero en la Guerra Civil (1913). See also his later Ensayo sobre las Luchas Civiles y el Derecho Internacional (1926).
24 See García Mora, M.R., ‘The Calvo Clause in Latin American Constitutions and International Law’, (1950) 33 Marquette Law Review 205.
25 Paparinskis, M., The International Minimum Standard and Fair and Equitable Treatment (2013), 22, fn 72. Martti Koskenniemi has also described the Calvo doctrine as the principle ‘that governments should not be held responsible for damage caused by acts of domestic insurgents’. See Koskenniemi, M., The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (2002), 18, fn 23. Scholars in the early decades of the twentieth century also linked the Calvo doctrine to civil war and insurrection. See, e.g., Hershey, A.S., ‘The Calvo and Drago Doctrines’, (1907) 1 AJIL 26, at 26–7; Phillips, G.G., ‘The Anglo-Mexican Special Claims Commission’, (1933) 49 LQR 226, at 235.
26 Calvo, C., Derecho Internacional Teórico y Práctico de Europa y América (1868), §291.
27 Nissel, T.A., A History of State Responsibility: The Struggle for International Standards (1870-1960) (PhD thesis, University of Helsinki 2016), 78–9. These include most notably the 1868 Mexican-US commission, which addressed claims arising from the Mexican Reform War (among others); the Venezuelan commissions of 1903, which followed the period of frequent revolution and civil war which the country suffered during the 1890s; and the Mexican commissions of the 1920s arising out of the Mexican revolution of 1910–1920.
28 Koskenniemi, M., ‘The Ideology of International Adjudication and the 1907 Hague Conference’, in Topicality of the 1907 Hague Conference, the Second Peace Conference (2008), 127, at 149 (emphasis added).
29 Ralston, supra note 1, at 349.
30 While harm arising from insurrection or civil war of course also covers harm caused by the state in suppressing rebellion, it was responsibility for acts of rebels that caused the most controversy here. See (1900) 18 Annuaire de l'Institut de Droit International 233–56; Podestá Costa, L.A., ‘International Responsibility of the State for Damage Suffered by Aliens during Civil War’, (1922) 31 International Law Association Reports of Conferences 119; Strupp, K., ‘Responsabilité de l’État en Cas de Dommages Causes aux Ressortissants d'un État Étranger en Cas de Troubles, d’Émeutes, ou de Guerres Civiles’, (1922) 31 International Law Association Reports of Conferences 127; Garner, supra note 18.
31 Calvo, supra note 26, §291.
34 Ibid., §§87–8.
35 Koskenniemi, supra note 28, at 149.
36 Ibid., supra note 28, at 133, for some other arbitration statistics supporting American predominance.
37 See Nissel, supra note 27, at 59–70; Coates, B.A., Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century (2016), 11, 26, and 30–1.
38 Koskenniemi, supra note 28, at 133. The 1890s saw the Spanish American war of 1898 and the US invasion and occupation of Cuba, the Philippines and Puerto Rico.
40 Only seven out of the 41 arbitrations addressing responsibility for rebels occurred before 1870, and only 13 before 1890. However, there were nine during the 1890s alone. Compared with US involvement in ten of the first 15 such arbitrations, of the 28 that took place after 1890, only four involved the US. The big arbitrations of this period – against Chile in the 1890s, Venezuela in 1903 and Mexico in the 1920s – all involved multiple European states.
41 Moore, supra note 1, Vol. 2, at 1247.
42 ‘In the early decades of relations between Mexico and the United States, the latter harbored territorial ambitions in Mexico, and often the support of claims for injury to American citizens was employed as an instrument of pressure to further such territorial designs.’ A.H. Feller, The Mexican Claims Commissions, 1923-1934: A Study in the Law and Procedure of International Tribunals (1935), 2.
43 Rodríguez, J.I., La Comisión Mixta de Reclamaciones Mexicanas y Americanas (1873), 15.
44 For more on the 1868 commission see ibid.; Moore, supra note 1, Vol. 2, at 1287–1360; Nissel, supra note 27, at 87–99 (arguing that it was the 1868 commission, rather than the Alabama claims, which was the first modern international arbitration).
45 Koskenniemi, supra note 28, at 129.
46 For example, at the Third International Conference of American States in 1906, a resolution was adopted to ‘ratify adherence to the principle of arbitration’ and to endeavour to secure at the forthcoming second Hague Peace Conference a general arbitration convention. See Scott, J.B. (ed.), The International Conferences of American States 1889-1928 (1931), 124–5. See also Gathii, J.T., ‘War's Legacy in International Investment Law’, (2009) 11 International Community Law Review 353.
47 For example, during the Mexican revolution, various governments used the offer of arbitration as an incentive for foreign governments to recognize them. See Ch. 2 in Feller, supra note 42. Alejandro Alvarez is a good example of a Latin American liberal internationalist who advocated arbitration. For a general overview of the reasons why Latin American states agreed to arbitration, see Nissel, supra note 27, at 71–7.
48 Nissel, supra note 27, at 77.
49 Tams, C.J., ‘World Peace through International Adjudication?’, in Justenhoven, H.-G., Kress, C. and O'Connell, M.E. (eds.), Peace Through Law: Reflections on Pacem in Terris from Philosophy, Law, Theology, and Political Science (2016), 215.
50 Koskenniemi, supra note 28, at 132.
52 See note 30 supra.
54 Marchand, C.R., The American Peace Movement and Social Reform, 1889-1918 (1972), 47.
55 Moore, supra note 1.
56 Marchand, supra note 54, at 44.
57 Dunn, F.S., The Protection of Nationals: A Study in the Application of International Law (1932), 59.
58 His later work, A Digest of International Law (1906), was also influential in the development of the subject. See Dunn, supra note 57, at 59. Wiesse, for example, notes Moore's influence in the preface to the second edition of his book, supra note 21, as does Borchard in his preface to Diplomatic Protection, supra note 20, at ix. Moore himself had a long career with the US State Department and was handsomely paid for representing private clients, such as Standard Oil and Bethlehem Steel. See Coates, supra note 37, at 40, 53, 117 and 137.
59 Koskenniemi, supra note 28, at 130–2.
61 Nissel, supra note 27, at 185–6.
62 See Crawford, J. and Grant, T., ‘Responsibility of States for Injuries to Foreigners’, in Grant, J.P. and Barker, J.C. (eds.), The Harvard Research in International Law: Contemporary Analysis and Appraisal (2007), 77 and 82. It would seem that Crawford and Grant use 1914 as their start date as that of Borchard's PhD thesis but it could also be the date of Julius Goebel's article, see supra note 15, although Grant and Crawford do not refer to it. 1930 is presumably chosen as the date of the 1930 Codification Conference.
63 Borchard, supra note 20; C. Eagleton, The Responsibility of States in International Law (1928). Also of particular note here is Ralston, supra note 1, which contains a significant section on responsibility, at 326–74.
64 See Anghie, A., Imperialism, Sovereignty and the Making of International Law (2004), 196–244; Pahuja, S., Decolonising International Law: Development, Economic Growth and the Politics of Universality (2011), 95–171.
65 Garner, supra note 18, at 77–8.
66 Borchard, supra note 20, at v.
68 Eagleton, supra note 63, at 102.
69 Borchard, supra note 20, at 242–3.
70 Eagleton, supra note 63, at 109.
72 Borchard, supra note 20, at 26. US commentators writing after the Second World War made this same argument. See Lillich, R.B., The Human Rights of Aliens in Contemporary International Law (1984), 15; Jessup, P.C., A Modern Law of Nations: An Introduction (1948), 95–6.
73 Podestá Costa, El Extranjero, supra note 23, at 252.
74 Eagleton, supra note 63, at 144–5.
76 On this move from classical to modern international legal thought among Latin American international lawyers, see Becker Lorca, supra note 2, at 221ff.
77 See, e.g., Eagleton's comments at the 1927 ASIL annual meeting reported in Garner, supra note 18, at 66–7.
78 See Scott, supra note 46, at 91 (emphasis added).
80 This was the third subdivision of the more general topic of the conference ‘the responsibility of states for damage done in their territories to the person or property of foreigners’.
82 League of Nations Committee of Experts for the Progressive Codification of International Law, Questionnaire No. 4 adopted by the Committee at its Second Session, held in January 1926: Responsibility of States for Damage Done in Their Territories to the Person or Property of Foreigners, Annex: Report of the Sub-Committee (‘Guerrero Report’), (1926) 20 AJIL Special Supplement 177.
84 Guerrero Report, supra note 82, at 182.
85 Borchard, supra note 20, at 12: ‘the individual, as a human being, is accorded certain fundamental rights by all states professing membership in the international community . . . the right to personal security, to personal liberty and to private property’.
86 Guerrero Report, supra note 82, at 197 and 202.
87 They were discussed in detail at the 1900 meeting of the Institut de Droit International at Neuchâtel. See (1900) 18 Annuaire de l'Institut de Droit International 233–56.
88 See, e.g., Borchard, supra note 20, at 241–2, who presents this as an afterthought to his general rules. On the development of this particular rule, see K. Greenman, ‘The Secret History of Successful Rebellions in the Law of State Responsibility’, (2017) 6(9) ESIL Reflection.
89 Borchard, supra note 20, at 229. Eagleton, in contrast, starts from the opposite side with a general rule of responsibility, but ends up in the same position as Borchard. See Eagleton, supra note 63, at 146.
90 Borchard, supra note 20, at 229, fn 7.
91 Borchard cites Hall, Fiore, Bluntschli, Pennetti, Rougier, Sadoul, Anzilotti, Pradier-Fodéré, Despagnet, Bonfils and Oppenheim. Borchard also notes that ‘[t]he very few writers who support the contrary doctrine of state responsibility qualify their rule considerably’, citing Brusa, de Bar and Rivier. For full references, see Borchard, supra note 20, at 229–30, fn 7.
93 These include the Venezuelan Steam Transportation Company Case (US v Venezuela, 1882), the Montijo Case (US v Columbia, 1874), Easton (US v Peru, 1863) and a number of cases from the Venezuelan commissions. For full references, see Borchard, supra note 20, at 231, fn 7.
94 See note 58 supra on Borchard's tribute to Moore's influence in the preface to Diplomatic Protection. For an interesting article on Borchard and Moore, see J.D. Doenecke, ‘Edwin M. Borchard, John Bassett Moore, and Opposition to American Intervention in World War II’, (1982) 6(1) The Journal of Libertarian Studies 1.
95 Nissel, supra note 27, at 266. See Borchard's own statements on the importance of arbitration to the development of international law and the sources he has used in his preface to Diplomatic Protection, supra note 20, at v, vii.
96 This contrast was made by Portuguese delegate José Lobo d'Avila Lima at The Hague in 1930 between what he called the continental and Anglo-Saxon approaches. See League of Nations, Acts of the Conference for the Codification of International Law, Held at The Hague from March 13th to April 12th 1930 (1930), Vol. 4, at 18. See also Becker Lorca, supra note 2, at 305.
97 Doenecke, supra note 94, at 10.
98 Eagleton, supra note 63, at 151.
99 See Santa Clara Estates Case (Supplementary Claim) (1903) IX RIAA 455, at 458.
100 Wenzel Case (1903) X RIAA 428, at 431.
102 James Garner identifies an ‘intermediate category of writers, which includes the majority, who maintain that the state is responsible and therefore bound to indemnify aliens in certain cases, but is irresponsible in other cases’. Garner, supra note 18, at 60.
103 That may also be why it prevailed, since its flexibility enabled it to hold together a wide range of disparate perspectives and respond to a variety of differing interests, although at the same time this also robbed it of much of its utility as a standard.
104 Borchard, supra note 20, at 230.
106 Sambiaggio Case (of a general nature) (1903) X RIAA 499, at 512.
107 Eagleton, supra note 63, at 144.
109 Ibid., supra note 63, at 83–4; cf. the remarks of Charles Fenwick at the ASIL annual meeting in 1927 reported in Garner, supra note 18, at 78: ‘I am prepared to go further . . . and admit the principle that aliens should be entitled to greater privileges in a country than the citizens of that country enjoy’.
110 Eagleton, supra note 63, at 121–2.
111 Guerrero Report, supra note 82, at 185.
112 Podestá Costa, El Extranjero, supra note 23, at 229–30.
113 Borchard, supra note 20, at 26.
114 Podestá Costa, El Extranjero, supra note 23, at 254.
117 This is also acknowledged in much of the early twentieth century scholarship. See, e.g., Dunn, supra note 57, at 53. I am also drawing here on a number of recent TWAIL histories which have considered the doctrine of state responsibility in the context of the second wave of post-Second World War decolonization. See the works of Anghie and Pahuja, supra note 64.
118 On foreign investment generally in Latin America since independence, see Department of Economic and Social Affairs – Economic Commission for Latin America, External Financing in Latin America, UN Doc. E/CN.12/649/Rev.1 (1965), at 5–19; Taylor, A.M., ‘Foreign Capital Flows’, in Bulmer-Thomas, V., Coatsworth, J. and Cortes-Conde, R. (eds.), The Cambridge Economic History of Latin America (2008), Vol. 2, at 57. More specifically, Stone, I., ‘British Direct and Portfolio Investment in Latin America Before 1914’, (1977) 37 Journal of Economic History 690, has a lot of information on British investment.
119 See, e.g., Summers, L.M., ‘Arbitration and Latin America’, (1972) 1 California Western International Law Journal 1, at 8, quoting Kalman Silvert: ‘[t]he number of revolutions in Latin America is accentuated by the North American, who tends to forget that there are twenty different republics all having their own troubles, and who does not understand the patterning of Latin violence, the often reduced number of persons involved, and the built-in limitations of the impact of civil disorder on daily life’.
120 See, for example, the flippant comments of Lord Lansdowne, the British Foreign Minister, regarding the Venezuela blockade in Adams, I., Brothers across the Ocean: British Foreign Policy and the Origins of the Anglo-American ‘Special Relationship’, 1900-1905 (2005), 46.
121 Orford, A., ‘Food Security, Free Trade, and the Battle for the State’, (2015) 11 (2) Journal of International Law and International Relations 1, at 30.
122 See the leading works from a TWAIL perspective by Antony Anghie and Sundhya Pahuja, supra note 64. The definitive history of PSNR is Schrijver, N., Sovereignty over Natural Resources: Balancing Rights and Duties (1997).
123 See Anghie, supra note 64, at 209.
124 For an account from the time by one of the US delegates at The Hague see, e.g., Borchard, E., ‘“Responsibility of States” at the Hague Codification Conference’, (1930) 24 AJIL 517. For a contemporary account of the role played by Latin American international lawyers in codification more generally, see Becker Lorca, supra note 2, at 305–52.
125 See Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, 2001, YILC, Vol. II (Part Two).
126 Asian Agricultural Products Ltd (AAPL) v. Republic of Sri Lanka, Case No. ARB/87/3 (1997) 4 ICSID Reports 250.
127 See the works of Anghie and Pahuja, supra note 64, for full accounts of this transition.
* PhD candidate, University of Amsterdam [email@example.com]. The author would like to thank Jean d'Aspremont, Anne Orford, Ntina Tzouvala and the anonymous reviewers for their extremely helpful comments on previous drafts. All errors are my own.
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