Conclusion: Protecting Trade and Investment Against Revolution in The
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UvA-DARE (Digital Academic Repository) The history and legacy of state responsibility for rebels 1839-1930 Protecting trade and investment against revolution in the decolonised world Greenman, K.J. Publication date 2019 Document Version Other version License Other Link to publication Citation for published version (APA): Greenman, K. J. (2019). The history and legacy of state responsibility for rebels 1839-1930: Protecting trade and investment against revolution in the decolonised world. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:30 Sep 2021 CONCLUSION: PROTECTING TRADE AND INVESTMENT AGAINST REVOLUTION IN THE DECOLONISED WORLD 1. The history of state responsibility for rebels 1839-1930 In Chapters 1 to 5, I traced the rise and fall of the rules of state responsibility for rebels. In Part I, I began with the nineteenth and early twentieth century Latin American arbitrations, taking examples of three sets of mixed claims commissions involving Mexico and Venezuela. There are three things I want to be taken from this part of the story. 1.1. State responsibility for rebels and the transition from old colonialism to new imperialism in Latin America The first is about the events that gave rise to the commissions. I demonstrated how these commissions arose following periods of capitalist expansion which had been disrupted by revolution or civil war. The question of state responsibility for rebels became a problem for international law as Latin America was integrated into the global economy. The rules of state responsibility for rebels were a site of struggle over what political and economic relations between Latin America and the imperial powers, both new and old, would look like after decolonisation. Would US and European access to Latin America markets and natural resources be guaranteed against revolution and civil war and how? Would the newly independent states of Latin America be allowed to control and change the conditions – in terms of allocating the risk of harm caused by rebels – upon which they allowed or invited foreign trade and investment into their countries? In Chapter 1, we saw that the 1839, 1849 and 1868 Mexican-US commissions arose from a period of instability in Mexico, as it sought to overcome the legacy of colonialism. After decolonisation, Mexico also faced the threat of new imperial ambitions: from the north came the expansionist aspirations of the US and from across the Atlantic came the danger posed by 208 530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 225 the desires of the old colonial powers for a slice of the trade that had been controlled by the Spanish prior to independence. When the frequent regime changes, popular uprisings and civil wars of Mexico’s first decades of independence caused harm to the property and commercial interests of foreign nationals, foreign states intervened – diplomatically, militarily and legally – to enforce Mexico’s responsibility for rebels. The 1838 ‘Pastry Wars’, the US declaration of war in 1846 and the French intervention of 1862-1867 were motivated, at least in part, or in any event publicly justified, on the basis of enforcing Mexico’s responsibility for alien protection claims that had arisen as a result of internal unrest. The Mexican-US commissions were all established to deal with such claims. Responsibility for harm caused by rebels was the most important and controversial issue before the commissions. Indeed, harm caused by rebels was the central case of alien protection. This was acknowledged by scholars at the time.1 Most of the nineteenth and early twentieth arbitrations followed revolutions or civil wars,2 and several international law organisations discussed responsibility for harm arising from insurrection or civil war specifically at their meetings or had special projects on the topic. Chapter 2 began with the rule of President Antonio Guzmán Blanco in Venezuela. Guzmán Blanco’s 18-year presidency, which spanned the 1870s and 1880s, was a period of ‘modernization’: Venezuela was integrated into the global economy as it underwent a complete and rapid liberalization from Spanish protectionism and foreign capital established itself in the country. This was disrupted, however, during the 1890s. Guzmán Blanco’s departure from 1 See e.g. FS Dunn, The Protection of Nationals: A Study in the Application of International Law (Johns Hopkins Press 1932), at 12: ‘To the average layman, the subject of protection of citizens abroad is apt to suggest little more than the use of armed force by one country to safeguard the lives and property of its citizens in another country against some immediate and pressing danger, usually a revolution. The subject calls to his mind China, Nicaragua, Mexico and other troublesome places where … foreigners seem to be in frequent danger from stray bullets of insurgents.’ 2 Tzvika Alan Nissel, A History of State Responsibility: The Struggle for International Standards (1870-1960) (PhD thesis, University of Helsinki 2016), at 78-79; Martti Koskenniemi, ‘The Ideology of International Adjudication and the 1907 Hague Conference’ in The Hague Academy of International Law (ed), Topicality of the 1907 Hague Conference, the Second Peace Conference (Martinus Nijhoff 2008), at 149: ‘by far most of [the nineteenth century international] litigation had concerned the violation of the private rights of Americans in connection with internal disturbances and changes of government especially in Latin America.’ 209 530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 226 power, falling coffee prices and US tariff pressure precipitated a political and economic crisis. Between 1892 and 1902, Venezuela saw several revolutions and civil wars as well as smaller scale uprisings, which gave rise to numerous alien protection claims for harm caused to foreign nationals by rebels. Enforcing Venezuela’s responsibility for these claims was the key justification for the blockade, imposed by Britain, Germany and Italy in December 1902, which ultimately forced Venezuela into arbitration on unfavourable terms. The story of the Mexican commissions in Chapter 3 shares certain parallels with that of the Venezuelan commissions. For Mexico, Porfirio Diaz’s 35-year rule, which began in 1876, mirrored Guzmán Blanco’s in Venezuela. The Porfiriato was also a period of rapid capitalist expansion – during which foreign investment in Mexico increased from 110 million pesos to 3.4 billion and exports increased by six times – which was also ultimately threatened by revolution. The Mexican Revolution was unique, however, in posing a more fundamental ideological threat to existing economic relations between Mexico and the US and Europe, rather than simply being a practical disruption to them. The context in which the commissions arose tells us, I suggest, something important about what was at stake in the contestation of state responsibility for rebels: foreign trade and investment in newly decolonised Latin America. We can also see this in the nature of the claims before the commissions, which were in their vast majority about property or commercial interests; aliens were protected from rebels not as individuals but as commercial actors. By understanding the arbitral practice in the context of capitalist expansion and decolonisation in Latin America, we see how state responsibility for rebels was a site for the contestation of the transition from old colonialism to new imperialism in the region. This was a struggle about whether US and European access to Latin America markets and natural resources would be guaranteed after decolonisation or whether the newly independent states of Latin America would be allowed to control and change the conditions upon which they allowed or invited 210 530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 227 foreign trade and investment into their countries. The effect of arbitration here, regardless of the outcomes of particular cases, was to internationalise the conditions – in terms of allocating the risk of harm caused by rebels – upon which foreign trade and investment entered Latin America, taking this out of the scope of national authority, and homogenising the conditions for doing business across borders, in a way that favoured foreign capital and capital-exporting states. 1.2. Arbitration and/as intervention The second important aspect of Part I is about the relationship between arbitration and intervention. I showed how the commissions were established in the context of intervention to protect foreign investment, framed and legitimised in terms of enforcing state responsibility under international law. The commissions existed side by side with bombardment, blockade, invasion and occupation as means of coercing the settlement of alien protection claims and, at the same time, were imposed by the threat or use of force. In Chapter 1, we saw that the US accepted Mexico’s offer to arbitrate in 1839 only after President Jackson had recommended Congress pass an act to authorise reprisals against Mexico should they refuse to settle claims upon a final demand which was to be made from on board a US warship positioned off the Mexican coast.