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The history and legacy of state responsibility for rebels 1839-1930 Protecting trade and investment against revolution in the decolonised world Greenman, K.J.
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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
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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.’
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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
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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. The 1849 commission was set up by the Treaty of Guadalupe Hidalgo, imposed
upon Mexico after their defeat by the US in the Mexican-US War of 1846-1848. Mexico’s
failure to settle alien protection claims was an explicit part of the US’s original justification for
declaring war in 1846. The 1868 commission followed the French intervention in Mexico of
1862-1867, the pretext for which was unpaid claims arising out of the War of the Reform, the
civil war which Mexico had suffered from 1857-1861.
In Chapter 2, we saw how Venezuela was forced into arbitration on unfavourable terms after
Britain, Germany and Italy blockaded it in an attempt to coerce settlement of claims for injuries
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Chapter 3, we saw how the Mexican commissions of the 1920s arose in the context of numerous
foreign interventions in the Mexican Revolution, including the US’s 6-month occupation of
Veracruz and 5,000-man expedition in pursuit of Pancho Villa in 1916. Fear of military
intervention and the desire for foreign recognition led Mexico to offer first domestic settlement
and then, when the US and other claimant states insisted, international arbitration. I thus argued
that the relationship between arbitration and use of force is not one of opposition. Instead, we
saw that arbitration was one of a spectrum of techniques of intervention to protect foreign trade
and investment, intervention which produced the legal debates that contested state
responsibility for rebels.
1.3. The work of the commissions: autonomy and doctrinal development
I argued that arbitration played an important role in US foreign policy during this period and
was used by the US as a strategic tool for asserting its imperial interests in Latin America. At
the same, it was also instrumentalised by Latin America states to further their interests. Once
established, however, the commissions, as (quasi-)legal bodies with formal rules of procedure,
had a certain degree of autonomy. Despite the circumstances of their establishment, they did
not always find the respondent state responsible and nor did the rules they articulated
necessarily entirely reflect the agenda of the states which imposed them. This brings us on to
the third important thing arising from Part I, which relates to the work of the commissions. The
arbitral awards coming out of the commissions provided the materials that scholars would later
rationalise into a set of rules and having a grasp of them is thus crucial to understanding the
scholarly debates. I described the work of the commissions in detail so as to recover some of
the richness and complexity of the arbitral materials that tended to get flattened in much of the
early twentieth century scholarship, and to explore in detail the way they engaged with the
ideas, principles and rules that came to form the basis of the later debates.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 229 The earliest commissions did not formulate clear legal rules. The approach of the nineteenth
century Mexican-US commissions often varied by commissioner and by claim. While the
commissioners may have stated general ideas and principles, in practice they were often
making decisions based on their perceptions of the rebels or the regime at hand. Nevertheless,
these ideas and principles – such as the distinction between successful and unsuccessful rebels,
responsibility for de facto authorities, the standard of protection and the impact of recognition
of belligerency – provided the basis for the set of more formal rules articulated by later
commissions. That these early commissions established jurisdiction over contract claims,
despite not being explicitly empowered to do so by their founding instruments, was perhaps
their most important contribution, something that was taken for granted by later commissions.
The internationalisation of contract claims, and the provision of international protection to
contractors, laid the foundations, along with the protection of private property, for opening
Latin America up to foreign trade and investment.
The Venezuelan commissions were described at the time as ‘the most notable instance of
international arbitration in the history of the world’.3 In Chapter 2, I argued that the Venezuelan
commissions were the high point in the arbitral practice in terms of the articulation of legal
rules. They were some of the most widely discussed and influential when it came to the
development the rules of state responsibility for rebels. For example, we saw in Chapter 4 how
Edwin Borchard’s field-leading 1915 work on state responsibility clearly showed the influence
of the umpires’ opinions, particularly in Sambiaggio but also Aroa Mines, when it came to its
choice of authorities.4 In the work of the Venezuelan commissions we saw the structure of a
body of legal rules emerging: a general rule of non-responsibility for rebels subject to a due
3 Kummerow, Otto Redler and Co, Fulda, Fischbach, and Friedericy Cases (1903) 10 RIAA 369, at 392. 4 c.f. Edwin M Borchard, The Diplomatic Protection of Citizens Abroad, Or, The Law of International Claims (Banks Law 1915), at 229-231 fn 7; Sambiaggio Case (of a general nature) (1903) 10 RIAA 499, at 513-518; Aroa Mines Case (on merits) (1903) 10 RIAA 402, at 439-441.
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authorities. Nevertheless, there was still ambiguity in the work of the commissions, which
would be exploited by later scholars. The most controversial issue before the commissions was
when the state would be responsible for unsuccessful rebels; the standard of due diligence
required from the state was hotly contested by the commissioners, anticipating what would
later be the key controversy among scholars.
The Mexican commissions of the 1920s were the last big set of mixed claims commissions to
look at state responsibility for rebels. If the nineteenth century Mexican-US commissions were
the beginnings and the Venezuelan commissions the high point, we could see the commissions
that followed the Mexican Revolution as state responsibility for rebels on the wane. Due to
their largely equitable jurisdiction, their work was not as ‘legal’ or generally as influential on
doctrinal development as that of the Venezuelan commissions. The work of the commissions
was considerably more ambiguous than that of the Venezuelan commissions, similar to that of
the earlier nineteenth century commissions. Nevertheless, to the extent that the commissions
applied international law, we saw in Chapter 3 that they affirmed all of the core pre-existing
rules, and even made novel extensions to them on occasion. The scope of responsibility for
unsuccessful rebels continued to be the most controversial issue, as it was before the
Venezuelan commissions.
1.4. Scholarship/codification: Resistance, development and the internationalisation of
alien protection against rebels
The arbitral practice, however, did not directly produce a set of positive rules of international
law; the 40-plus ad hoc commissions produced a large body of – at times contradictory and
ambiguous – opinions, which required interpreting. What created a recognised field of law was
the debates that the arbitral practice, and the wider practices of intervention of which it was a
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scholarly debates. I explored how Latin American international lawyers sought from the
beginning to resist intervention (be it diplomatic, military or legal) on the basis of enforcing
state responsibility for rebels, while towards the end of the nineteenth century, as the numbers
of arbitrations grew rapidly, the new Anglo-American international legal professionals sought
to rationalise a set of rules of state responsibility for rebels from the arbitral practice.
I began Chapter 4 by looking at the work of Carlos Calvo and in particular his 1869 article, the
first specialist piece addressing state responsibility for rebels, in which, responding to European
interventions in Latin America, such as the French intervention in Mexico and the British and
French interventions in Argentina during the 1830s and 1840s, he argued for the non-
responsibility of the state for harm caused to aliens as a result of riot or civil war. However,
writing before the ‘turn to arbitration’, Calvo was anticipating the later debates. When he stated
that state responsibility for rebels was ‘one of the most important questions in international law
discussed in modern times’, Calvo was really some 25-30 years too early. It was towards the
end of the nineteenth century, as the numbers of arbitrations grew rapidly, that the issue of if
and when a state would be responsible for injuries to aliens by rebels began increasingly to
draw the attention of Anglo-American international lawyers. For US international lawyers,
arbitration, as a matter of both idealism and strategy, was a cornerstone of their liberal
internationalist project to bring both peace and free trade to the world. For Anglo-Americans,
who ‘were in their domestic systems accustomed to judge-made law’, it seemed natural that
international law would develop like the common law did domestically.5 Arbitration, and the
development of international law through arbitral practice, enabled the universalisation of the
5 Koskenniemi, above note 2, at 150.
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was a vision of justice on US terms.
The efforts at doctrinal development by US international lawyers were hotly contested, as
resistance from Latin American international lawyers continued. In Chapter 4, I argued that,
by the turn of the twentieth century, this dynamic of resistance and development had driven the
emergence of state responsibility for rebels as a flourishing, if profoundly disputed, sub-field
of international law. Exploring the debates that made up this field, we saw how the arbitral
opinions described in Part I were appropriated, and even manipulated, particularly by US
lawyers, as authority for rules justifying intervention. At the same time, by basing scholarship
on practice that was the result of intervention, the legal impact of intervention was reinforced.
Latin American lawyers tended to look more to theory, or to diplomatic practice, which they
argued revealed the double standards of powerful states.7
The legal debates that contested state responsibility for rebels were not a simple case of the
pro-responsibility West versus anti-responsibility Latin America. Although in the 1890s,
various theories of general responsibility for acts of rebels were proposed, by the first decades
of the twentieth century, these had lost favour. They were out of step with both the arbitral
practice and the wider theories of state responsibility which were being circulated at this time.
Thus even Anglo-American international lawyers also largely supported a general rule of non-
responsibility. However, Anglo-Americans international lawyers tended towards expansive
exceptions to the general rule defined by reference to an international standard of alien
protection, while Latin Americans based responsibility on national treatment with narrow
6 Koskenniemi, above note 2, at 129-130. 7 See Luis A Podestá Costa, ‘International Responsibility of the State for Damage suffered by Aliens during Civil War’ (1922) 31 International Law Association Reports of Conferences 119, at 119; Harmodio Arias, ‘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.
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was waged. Most controversially, leading US international lawyers like Borchard argued that
there should be an exception to non-responsibility where ‘it can be shown that a state is not
reasonably well ordered’.8 In this way, the exceptions, as applied to Latin America, became
more important than the rule. Instead of a general rule of responsibility, that could potentially
– even if it was unlikely to be enforced – be used against the US (which had denied, of course,
responsibility for the Confederate rebels during the civil war), such an exception effectively
created a two-tier system of rules.
While few international lawyers argued that aliens were entitled to more than the same standard
of protection from the state against rebels as nationals, the issue was whether national or
domestic authority determined and adjudicated such a standard. For Borchard and Eagleton,
the standard of protection was an international one. Eagleton argued that states were
responsible for ‘a protection which measures up to reasonable standards of civilized justice’
and that such ‘international standard of justice … sets a limitation upon the respondent state,
and prohibits it from setting itself up as the final judge concerning the treatment which aliens
within its territories receive from its hands’.9 In contrast, Luis Podestá Costa, for example,
defined negligence and denial of justice by reference to domestic standards: the standard of
diligence required of a state was for Podestá Costa ‘that which a particular government is used
to using in such circumstances’, while a denial of justice had to involve a breach of domestic
law.10 Likewise the Guerrero Report defined denial of justice as a failure to allow access to the
courts, rather than as a failure to meet an international standard of administration of justice.11
8 See Borchard, above note 4, at 230. The quotation is from William Edward Hall, A Treatise on International Law (4th edn, Oxford Clarendon Press 1895), at 232, cited by Borchard as authority for this position. 9 Clyde Eagleton, The Responsibility of States in International Law (Kraus Reprint 1928), at 83-84. 10 Luis A Podestá Costa, El Extranjero en la Guerra Civil (Coni Hermanos 1913), at 183-184, 256-257. 11 League of 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
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Eagleton argued that, ‘it cannot be presumed that states have provided and will maintain such
excellent systems of justice, as to render international supervision unnecessary’.12 We can
contrast this with the Guerrero Report, which asserted that, ‘[s]tates, as at present organised,
possess in themselves the necessary means for rendering the protection of foreigners
effective’.13 Podestá Costa argued that there was in fact such a presumption since the state’s
‘capacity to ensure enjoyment and exercise [of essential rights] has been recognised on its being
deemed a sovereignty entity by the rest of the nations’.14
While it was taken for granted that state-state relations were international and state-citizen
relations were domestic, the nature of state-alien relations was up for grabs. Fundamental to
Borchard’s approach was the internationalisation of the state-alien relationship.15 He explained
that, ‘[w]hen the citizen leaves the national territory he enters the domain of international law.
By residence abroad … he enters into a new sphere of mutual rights and obligations between
himself as a resident alien and the state of his residence.’16 This is in marked contrast with
Podestá Costa, for whom the alien leaves behind his old national society to enter into a pact
with his new one.17 Ultimately, I argued that the legal debates that contested state responsibility
for rebels were structured around opposing understandings of the relationship of the
international to the national and can thus be understood as a battle over the internationalisation
of alien protection: what standard (national or international) of protection against rebels did
in Their Territories to the Person or Property of Foreigners, Report of the Sub-Committee’ (1926) 20 AJIL Special Supplement 177 (‘Guerrero Report’), at 202. 12 Eagleton, above note 9, at 121-122. 13 Guerrero Report, above note 11, at 185. 14 Podestá Costa, above note 10, at 183-184. See also Podestá Costa, above note 7, at 123. 15 Another example of such an approach from a US lawyer is James Garner at ASIL in 1927: ‘There is a standard of treatment which states are bound to accord aliens residing within their territory, so generally recognized by civilized nations that it may be regarded as a principle of customary international law. It can no longer be admitted that each state is free to adopt its own standard of treatment if it falls short of the international standard.’ See James W Garner, ‘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 62. 16 Borchard, above note 4, at 26. 17 Podestá Costa, above note 10, at 254.
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standard (domestic or international authority)?
Finally, in Chapter 5, I considered the efforts to codify state responsibility for rebels, where the
resistance and development dynamic played out in its most explicit confrontation, ending,
however, in failure. I argued that codification became a battleground for two different
approaches to codification and to state responsibility for rebels. On one hand, formal
multilateral codification offered an opportunity for Latin American international lawyers to
assert regional interests and challenge the rules coming out of the arbitral practice, which, since
arbitration was many times imposed by force and often dominated by the US, were perceived
as reflecting particularly US interests and reinforcing the legal impact of intervention.
Codification was seen as a way to set clear standards, preventing the case law that came out of
ad hoc bilateral arbitrations being manipulated, particularly by US scholars, to formulate rules
that justified intervention. The ‘Latin American’ approach to codification, exemplified by the
Pan-American Conferences, was thus based more on theory than practice and sought to perfect
new rules to suit the needs of international society. Envisioning a world based on
multilateralism and non-interventionism, it based responsibility for rebels on a standard of
equal treatment with nationals. The most foreigners could ask for in terms of protection from
rebels was equality with nationals. Exceptions to this were limited and defined by reference to
national conditions.
At the same time, Anglo-American international lawyers sought to codify responsibility on
their own terms. They saw codification as the ‘technical and scientific work of a selected elite
of jurists’, and sought through codification, as they did with arbitration, to universalise US
practices. The Anglo-American approach, typified by the Harvard Draft Convention and James
Brown Scott’s work within the AIIL, thus saw international law as developing like the common
law, through cases. Codification was therefore understood as the enunciation of existing rules
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based responsibility for rebels on an international standard of due diligence. States would be
responsible for harm caused by rebels whenever they fell short of this strict universal standard
of protection, even if this meant that foreigners effectively enjoyed greater rights than nationals.
I traced these two approaches through the work of the Institute (its 1900 regulations were the
first codification attempt addressing state responsibility for rebels), the Pan-American
Conferences, the AIIL, and ILA and the Harvard Research in International Law (both of which
were invited to collaborate with the League of Nations’ codification project). The preparations
for the League’s Codification Conference saw the two approaches reflected in the Guerrero
Report and the Bases of Discussion. At the Conference itself, held at The Hague in 1930, a
coalition made up largely of Latin American states and the former states of Austria-Hungary
voted together to reject proposals that they felt potentially provided too wide a right of
intervention. Although ten articles were adopted at first reading, a number of them failed to
garner the two-thirds majority support required to agree a final convention. One of the key
disagreements that prevented agreement was over the definition of due diligence and whether
it should be based on a national or international standard, just as this was a central point of
contention before the mixed claims commissions and among scholars. The events at The Hague
spelt the beginning of the end of state responsibility on the basis of injuries to aliens and
therefore of state responsibility for rebels.
Thus, I argue that the rules of state responsibility were the product of intervention in Latin
America, and in particular its turn to arbitration, and the contestation thereof, in the context of
a struggle over the transition from old colonialism to new imperialism in Latin America: the
region’s integration into the global economy and the re-ordering of political and economic
relations after decolonisation. This research is therefore, I suggest, a contribution to our
understanding of how international law was produced in the colonial encounter and its
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decolonisation not just in the twentieth century but in the nineteenth too. It is also a story of
resistance: of how formerly-colonised states used their new institutional power at the League
of Nations to defeat international legal rules they felt were biased against them. However,
despite their demise after 1930, the rules of state responsibility for rebels had an afterlife. In
what remains, I will look at what happened to state responsibility for injuries to aliens caused
by rebels after the Codification Conference in 1930. The final part of the conclusion considers
the contemporary significance of this story and how it might form the basis of a critical
intervention in contemporary international law as it pertains to responsibility for rebels. I will
argue that it enables the fragmented parts of state responsibility for rebels to be reassembled,
revealing how international law continues to prioritise the protection of foreign investment
against rebels in the decolonised world.
2. The post-Second World War period
After the failure of the codification efforts of the inter-war years, which period also saw the
last of the great mixed claims commissions, the trajectory of state responsibility for injuries to
aliens caused by rebels splits in two. On one hand, we have the International Law Commission
(ILC)’s half-century odyssey to codify state responsibility. On the other, there is the emergence
of international investment law. Tzvika Alan Nissel has recently told this story from the
perspective of the history of state responsibility,18 while scholars such as Anthony Anghie,
James Thuo Gathii and Sundhya Pahuja have engaged with it as part of a TWAIL critique of
international investment law.19 Without repeating too much their work, here I will look at it
18 Nissel, above note 2, at 320-353. 19 See Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2004), at 196-244; James Thuo Gathii, ‘War’s Legacy in International Investment Law’ (2009) 11 International Community Law Review 353; Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press 2011), at 95-171.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 238 from the perspective of responsibility for rebels with a view to illuminating how international
law continues to prioritise the protection of foreign investment against rebels, and non-state
armed actors more generally, in the decolonised world.
2.1. The ILC’s codification of state responsibility (for rebels)
The rules of state responsibility for injuries to aliens caused by rebels have left their trace in
Article 10 of the ILC’s Draft Articles on State Responsibility (ARSIWA). Article 10 ARSIWA
provides for responsibility for successful rebels, establishing that the state will be responsible
for rebels who succeed in forming a new government or in seceding from a pre-existing state.20
However, on the surface state responsibility has been cleansed of its association with alien
protection. Responsibility under the ARSIWA is based exclusively on attribution of wrongful
acts rather than due diligence;21 it has been disassociated from any particular substantive
obligations. The result, however, has been that consensus has come at the cost of meaningful
normative content.
The turning point here was the appointment of Roberto Ago as the second Special Rapporteur
by the ILC in 1961. Ago’s work, with his distinction between primary and secondary
obligations,22 marked the rupture between state responsibility as alien protection and state
responsibility as general principles, although Ago still drew on the past arbitral practice. The
efforts of Ago’s predecessor, Cuban jurist Francisco García Amador, were marred by the
deadlock between, on one side, a block of Latin American states which, just as they had at the
League of Nations, and now joined by newly decolonised states from Asia and Africa, opposed
the codification of state responsibility on the basis of alien protection,23 and, on the other, an
20 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) 2(2) Yearbook of the International Law Commission 1, at 50. 21 In the first decades the two overlapped. See the discussion of the work of García Amador and Ago below. 22 See ILC, ‘Second Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur’ UN Doc A/CN.4/233 (1970) 2 Yearbook of the International Law Commission 177, at 179. 23 See Nissel, above note 2, at 331, 336.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 239 Anglo-American-led grouping, for which state responsibility was ‘subordinate’ to alien
protection.24
García Amador’s innovative approach,25 which reconceptualised alien protection as a matter
of ‘the fundamental rights of man’26 and tried ‘to synthesize the international minimum
standard and the national treatment doctrine by treating both theories as having been
superseded by the new international human rights norms that had emerged since [the Second
World War]’,27 failed to garner support within the ILC. His inclusion of alien protection meant
he could not get support from the formerly colonised states, which had the ‘institutional
balance’ at the ILC in their favour.28 Yet despite basing state responsibility on alien protection,
García Amador had no more luck gaining the support of the Anglo-American members of the
ILC. His approach to codification was too progressive,29 rejecting ‘the mere enumeration and
analysis of the various legal rules which theory and practice have established’ and arguing for
a ‘liberal interpretation’ of codification as development of the law.30 As we saw in Chapter 5,
this was the approach typically associated with Latin American international lawyers. The
individual-centred ‘human rights’ approach of García Amador’s reports, which had originally
even included the criminal responsibility of states, was at odds with the Anglo-American
24 At the first session of the ILC, Georges Scelle stated that, ‘the question of state responsibility was subordinate to that of the treatment of aliens, since responsibility only arose if the State was under an obligation to treat aliens in a certain way’. This can be contrasted with the subsequent remarks of Roberto Cordova of Mexico, who argued that, ‘the Commission should not restrict itself to the question of State responsibility toward aliens, but should study all infringements of the duties incumbent on States’. See ILC, ‘Summary Records of the First Session’ (1949) 1 Yearbook of the International Law Commission 9, at 46, 49. 25 See ILC, ‘International Responsibility: Report by Mr. F.V. Garcia-Amador, Special Rapporteur’ UN Doc A/CN.4/96 (1956) 2 Yearbook of the International Law Commission 173. 26 ibid., at 220. 27 Richard B Lillich, ‘The Current Status of the Law of State Responsibility for Injuries to Aliens’ in Richard B Lillich (ed), International Law of State Responsibility for Injuries to Aliens (University Press of Virginia 1983), at 17. 28 See Nissel, above note 2, at 330. 29 See Nissel, above note 2, at 332. 30 Garcia Amador, above note 25, at 176.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 240 approach.31 This latter reached its apogee with the revised Harvard Draft Convention (1961),
the introduction to which began:
It is the purpose of the law of State responsibility to extend the protection of international law to
those who travel or live abroad and to facilitate social and economic ties between States … In an
interdependent world the well-being of many countries rests upon an influx of foreign and
managerial skills, the owners of which must be given effective protection against unjust prosecution
or discrimination.32
As Tom Grant and James Crawford have argued, ‘the motivating force behind the project was,
avowedly, to establish a comprehensive code of investor protection’.33
In García Amador’s work, he proposed state responsibility for rebels in two situations: first, ‘if
the constituted authority was manifestly negligent in taking the measures which, in such
circumstances, are normally taken to prevent or punish the acts in question’; and second, in the
case of successful insurrection.34 García Amador continued here in the pre-Second World War
Latin American tradition; his standard of due diligence, with its requirement of manifest
negligence and reference to measures normally taken rather than any standard of civilisation,
is relatively narrow and national; noting ‘the considerable contribution of the Americas to the
development of the principles and rules of international law which govern this subject’, García
Amador put forward the work of Luis Podestá Costa and José Gustavo Guerrero to ‘facilitate
a better understanding of the prevailing doctrine and practice’;35 he also cited case law, such as
31 See Nissel, above note 2, at 336-337. 32 Louis B Sohn and RR Baxter, ‘Convention on the International Responsibility of States for Injuries to Aliens: Draft no. 12 with Explanatory Notes’ (1961) 55 AJIL 545, at 545. 33 James Crawford and Tom Grant, ‘Responsibility of States for Injuries to Foreigners’ in by John P Grant and J Craig Barker (eds), The Harvard Research in International Law: Contemporary Analysis and Appraisal (William S Hein & Co 2007), at 92. 34 In this second case, responsibility is limited to the situation where ‘injuries were the consequence of measures which were taken by the revolutionaries and which were analogous to the measures referred to in the foregoing paragraph [measures taken by its armed forces or other authorities for the purpose of preventing or suppressing an insurrection or any other internal disturbance, if the measures taken affected private persons directly and individually].’ See ILC, ‘International Responsibility. Second report by F. V. Garcia Amador, Special Rapporteur’ UN Doc A/CN.4/106 (1957) 2 Yearbook of the International Law Commission 104, at 121. 35 ibid., at 125-126.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 241 Sambiaggio.36 However, by this time, this was an outdated approach;37 resistance from within
the framework of alien protection was no longer the strategy; the first generation of post-
Second World War TWAIL scholars were questioning whether state responsibility for alien
protection had a place in modern international law at all.38
In Ago’s work, in contrast, now couching responsibility in terms of attribution, the acts of
rebels are only attributed to the state in the event of success.39 Nevertheless, Ago did not jettison
the concept of due diligence entirely. For example, discussing the responsibility of the state for
the conduct of other subjects of international law, Ago argued that, while:
the conduct of a person or group of persons acting in the territory of a State as organs of an
insurrectional movement directed against that State and possessing separate international personality
is not considered to be an act of that State in international law … [this is] without prejudice to the
attribution to the State of any omission on the part of its organs, where the latter ought to have acted
to prevent or punish the conduct of the person or group of persons in question and failed to do so.40
However, by the time we reach the work of James Crawford as the last Special Rapporteur,
due diligence has been wholly relegated to the sphere of primary obligations; the final
paragraph of Article 10 now simply reads: ‘[t]his article is without prejudice to the attribution
to a State of any conduct, however related to that of the movement concerned, which is to be
considered an act of that State by virtue of articles 4 to 9’.41 Indeed, for Crawford, one of the
36 ibid., at 127. 37 Nissel, above note 2, at 332-333: ‘García Amador was a member of the previous generation of international lawyers: educated in the West and an unashamed product of capitalism.’ 38 See e.g. SN Guha-Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?’ (1961) 55(4) AJIL 863. 39 ‘Fourth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur’ UN Doc A/CN.4/264 and Add.l (1972) 2 Yearbook of the International Law Commission 71, at 151-152. 40 ibid., at 143. The report is not entirely clear as to what happens to rebels who are not considered to have international legal personality. Presumably they are treated as a group of private individuals, in which case the same rule applies anyway. While Ago undertakes a lengthy consideration of the question of state responsibility for rebels, including the pre-Second World War practice (ibid., at 129-143), this is not really reflected in his final proposals. 41 Draft Articles with commentaries, above note 20, at 50.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 242 advantages of the primary-secondary rules distinction is that it enables rules of responsibility
to be formulated without recourse to ‘whether State responsibility is “strict” or even “absolute”,
or depends upon “due diligence”’.42 Thus it is only responsibility for successful rebels that
makes it into the ARSIWA. The origins of this move were in Ago’s work. When it came to
responsibility for rebels, the ARSIWA were gradually stripped of content since such content
was too controversial to secure agreement.
However, the ILC commentary to Article 10 ARSIWA, noting that the general principle in
international law is one of non-responsibility for unsuccessful rebels, does acknowledge the
due diligence rule:
[A]rbitral tribunals have uniformly affirmed what Commissioner Nielsen in the Solis case described
as a ‘well-established principle of international law’, that no Government can be held responsible
for the conduct of rebellious groups committed in violation of its authority, where it is itself guilty
of no breach of good faith, or of no negligence in suppressing insurrection.43
The primary-secondary rules distinction starts to unravel here. Only focusing on secondary
rules when it comes to responsibility for rebels ends up eviscerating the rules. In the end, Article
10 had been ‘pruned back’ so extensively that it was adopted without objection.44 It is also
worth noting that this is not in fact a quotation from Commissioner Nielsen but from the Home
Missionary Society case,45 which was quoted in Solis by Nielsen along with Aroa Mines (a case
42 See ‘First Report on State Responsibility, by Mr. James Crawford, Special Rapporteur’ UN Doc A/CN.4/490 and Add. 1–7 (1998), at para 16; cf. Draft Articles with commentaries, above note 20, at 39: ‘the different rules of attribution stated in chapter II have a cumulative effect, such that a State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects … In this respect there is often a close link between the basis of attribution and the particular obligation said to have been breached, even though the two elements are analytically distinct.’ 43 Draft Articles with commentaries, above note 20, at 50. 44 Gérard Cahin, ‘Insurrectional Movements’ in James R Crawford, Alain Pellet and Simon Olleson (eds), The Law of International Responsibility (Oxford University Press 2010), at 249. 45 Home Frontier and Foreign Missionary Society of the United Brethren in Christ (United States) v Great Britain (18 December 1920) 6 RIAA 42.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 243 which suggests a different test).46 The commentary cites the Bolívar Railway case as its leading
authority for the rule of responsibility for successful rebels,47 even further reinforcing the mis-
reading of Williams v Bruffy upon which this case was based.48 This brings me to a more general
comment about the use of historical precedents by the ILC here,49 and the way in which the
pre-Second World War case law is mobilised to give authority to the ARSIWA even though
such case law represents an entirely different understanding of state responsibility since
discredited at the ILC. As a result, I suggest, Article 10 ARSIWA has turned out to be
something of a backwater:50 it has attracted minimal academic attention,51 and when it has, it
has been criticised as lacking a decent basis either in precedent or logic.52 It has also had little
practical impact, other than its unsuccessful invocation by Croatia in the recent genocide case
against Serbia.53
2.2. International investment law
While the separation of state responsibility from alien protection could be seen as a victory for
the decolonised states, as the 1930 Codification Conference was for Latin America, in reality
the battle had shifted to another arena. At the same time as rejecting state responsibility based
on alien protection, the new states were attempting to resist the renewed internationalisation of
46 See GL Solis (US) v United Mexican States (3 October 1928) 4 RIAA 358, at 361-362. In Aroa Mines, as we saw in Chapter 3, responsibility for negligence in suppressing insurrection generally was rejected and it was held that negligence in failing to prevent the particular harm at hand had to be proven. 47 The commentary also cites French Company of Venezuelan Railroads and Pinson. See Draft Articles with commentaries, above note 20, at 51-52. 48 See Chapter 2. 49 See also Jean d’Aspremont, ‘The General Claims Commission (Mexico and the United States) and the Invention of International Responsibility’ in Ignacio De La Rasilla Del Moral and Jorge E Vinuales (eds), Experiments in International Adjudication: Historical Accounts (Cambridge University Press 2018, forthcoming). 50 See Kathryn Greenman, ‘The Secret History of Successful Rebellions in the Law of State Responsibility’ (2017) 6(9) ESIL Reflection. 51 Fortin’s new monograph, for example, does not refer to Article 10. See Katharine Fortin, The Accountability of Armed Groups under Human Rights Law (Oxford University Press 2017). 52 See e.g. Jean d’Aspremont, ‘Rebellion and State Responsibility: Wrongdoing by Democratically Elected Insurgents’ (2009) 58 International and Comparative Law Quarterly 427. 53 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015 (2015) ICJ Reports 3, at paras 102-105.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 244 investment protection. Just as the Latin American states had previously developed the Calvo
and Drago doctrines, the new states argued, as part of wider demands for a New International
Economic Order, that the doctrine of permanent sovereignty over natural resources (PSNR)
meant that international law should not apply to contracts with investors and instead, that
domestic law prevailed over the international in this respect.54 However, unlike at the ILC,
these efforts at resistance failed. This was made possible by the fragmentation of international
law into specialised regimes.
The states of the formerly colonised world might have succeeded in preventing the codification
of state responsibility on the basis of alien protection, but the alien protection regime
nevertheless lived on. As Nissel has argued, ‘[t]he U.S. practice of alien protection could never
be codified within world bodies. However, by the middle of the twentieth century, not only had
the US practice become recognized as customary international law, it was repeatedly affirmed
in bilateral investment treaties.’55 To the extent that alien protection was about protecting
foreign investment it was separated off into this new specialist regime. To the extent that alien
protection went beyond investment protection and also caught cases of deprivation of liberty
or harm to the person, it has been subsumed and overtaken by international human rights law,
which of course covers nationals too.56
International investment law first emerged as a field in the 1950s and 1960s,57 as a series of
arbitrations established that there was a special body of international legal principles that
54 See Anghie, above note 19; Pahuja, above note 19. The definitive history of PSNR is Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997). 55 Nissel, above note 2, at 370. 56 See ‘First Report on Diplomatic Protection, by Mr. John R. Dugard, Special Rapporteur’ UN Doc A/CN.4/506 Add 1 (2000) 2(1) Yearbook of the International Law Commission 205, at para 32: ‘Contemporary international human rights law accords to nationals and aliens the same protection, which far exceeds the international minimum standard of treatment for aliens, set by Western Powers in an earlier era.’ There been a few efforts to establish human rights of aliens as a topic, such as Lillich, above note 27. 57 Anghie, above note 19, at 223-224.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 245 governed state-investor contracts,58 culminating in the 1977 Texaco Case.59 PSNR gave way
to investor protection and the international prevailed over the national.60 The 1990s saw an
astonishing proliferation of bilateral investment treaties (BITs), their numbers increased nearly
fivefold during the decade.61 This increase in BITs, which gave foreign investors automatic
recourse to international arbitration in case of disputes, resulted in a corresponding explosion
in the number of arbitral awards. These awards further articulated the rules and principles of
international investment law, greatly expanding the field,62 just as the rules of state
responsibility for rebels developed through arbitration.
The nineteenth and early twentieth century rules of state responsibility for rebels have a left a
clear trace in international investment law. AAPL v Sri Lanka was an ICSID case concerning
the destruction of the claimant’s farm during the Sri Lankan Civil War.63 While it is mainly
famous for its expansive approach to jurisdiction,64 the case is also significant when it comes
to responsibility for rebels.65 In its final award, the tribunal stated that the position under
international law was that:
(i) A State on whose territory an insurrection occurs is not responsible for loss or damage sustained
by foreign investors unless it can be shown that the Government of that state failed to provide the
standard of protection required, either by treaty, or under general customary law, as the case may
58 Anghie, above note 19, at 226-235. 59 Texaco Overseas Petroleum Co v Libya (1978) 17 ILM 1. 60 Pahuja, above note 19. 61 UNCTAD, Bilateral Investment Treaties 1959-1999 (United Nations 2000), at 1. 62 M Sornarajah, The International Law on Foreign Investment (3rd edn, Cambridge University Press 2010), at 3. 63 Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, Case No. ARB/87/3 (1991) 6(2) ICSID Review 526. 64 AAPL v Sri Lanka was the first case in which the ICSID tribunal was found to have jurisdiction on the basis of the investor-state dispute settlement provision in the investment treaty rather than on the basis of the investment contract. This subsequently became standard practice leading to an explosion in the caseload of ICSID after 1990. See M Sornarajah, Resistance and Change in the International Law on Foreign Investment (Cambridge University Press 2015), at 2. 65 See e.g. Stephen Vasciannie, ‘Bilateral Investment Treaties and Civil Strife: The AAPL/Sri Lanka Arbitration’ (1992) 39(3) Netherlands International Law Review 332; John Baloro, ‘Aspects of the Law on the Responsibility of a Host State for Injuries to Foreign Investment during Internal Armed Conflicts: The ICSID Award in Asian Agricultural Products Limited (AAPL) v Republic of Sri Lanka’ (1992-1993) 18 South African Yearbook of International Law 105.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 246 be; and (ii) Failure to provide the standard of protection required entails the state’s international
responsibility for loss suffered, regardless of whether the damages occurred during an insurgents’
offensive act or resulting from governmental counter-insurgency activities.66
The arbitral authorities cited here were all pre-Second World War. They included Sambiaggio
and Kummerow from the Venezuelan commissions and a number of cases from the Mexican-
US general commission, including Home Insurance Company.67 After looking at these
authorities the tribunal concluded that, ‘adequate protection afforded by the host State
authorities constitutes a primary obligation, the failure to comply with which creates
international responsibility’.68 Despite the fact that neither side managed to adduce evidence
as to how the farm was destroyed, whether by government forces or by the rebels, the tribunal
concluded that Sri Lanka’s responsibility was established. It held that the government had
failed to take ‘important precautionary measures’ to get the suspected rebels out of the farm
peacefully; ‘[t]his would have been essential to minimize the risks of killings and destruction
when planning to undertake a vast military counterinsurgency operation in that area for
regaining lost control’.69 It is worth noting here that although the tribunal considered itself to
be applying the standard set by the pre-Second World War arbitrations, it was holding Sri
Lanka to a much higher standard here than we saw in any of the older case law.
In a 2017 ICSID award, Ampal-American Israel Corporation v Egypt, the state was held
responsible for failing to exercise due diligence in preventing attacks on an oil pipeline in the
context of the Egyptian revolution of 2011.70 According to the tribunal, following the
overthrow of President Mubarak, the Sinai region where the pipeline was located became
66 AAPL v Sri Lanka, above note 63, at 555. 67 AAPL v Sri Lanka, above note 63, at 556-557. 68 AAPL v Sri Lanka, above note 63, at 558. 69 AAPL v Sri Lanka, above note 63, at 562-563. 70 ICSID Case No. ARB/12/11 (Decision on Liability and Heads of Loss, 21 February 2017).
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 247 lawless and ‘insurgents took advantage of the security vacuum’ to attack the pipeline.71 In
establishing the standard of protection required the tribunal cited AAPL v Sri Lanka and
Pantechniki v Albania. Pantechniki was a case involving the Albanian Civil War of 1997,
which erupted after the collapse of Ponzi schemes, in which government officials were said to
be complicit, led to the loss of billions of dollars of personal savings.72 Denying Albania’s
responsibility, Jan Paulsson, the sole arbitrator, argued for ‘an element of proportionality in
applying the international standard’:
A failure of protection and security is likely to arise in an unpredictable instance of civil disorder
which could have been readily controlled by a powerful state but which overwhelms the limited
capacities of one which is poor and fragile. There is no issue of incentives or disincentives [for a
state to improve] with regard to unforeseen breakdowns of public order; it seems difficult to maintain
that a government incurs international responsibility for failure to plan for unprecedented trouble of
unprecedented magnitude in unprecedented places.73
The tribunal in Ampal cited approvingly this passage, which is reminiscent of the type of
arguments we saw in Chapters 4 and 5 being made by Latin American international lawyers
pre-Second World War.74 However, in practice it did not apply it, acknowledging the ‘difficult
circumstances’ without actually assessing ‘the adequacy of the State’s response … in the light
of the scale of the disorder and the extent of its resources’.75 Regarding the standard of
protection, the tribunal went on to hold that:
71 Other evidence suggested that it was ‘terrorist organisations’ and elsewhere the tribunal talked of ‘armed militant groups’. Ampal-American Israel Corporation and others v Arab Republic of Egypt, ICSID Case No. ARB/12/11 (Decision on Liability and Heads of Loss, 21 February 2017), paras 275 (sub paras 767, 806-809), 284. 72 Pantechniki SA Contractors & Engineers (Greece) v Republic of Albania, ICSID Case No. ARB/07/21 (Award, 30 July 2009). 73 ibid., at para 77. Paulsson’s only authority here was Andrew Newcombe and Lluís Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Kluwer 2009). 74 Another case in which such arguments were made by the tribunal was LESI SpA and ASTALDI SpA v République Algérienne Démocratique et Populaire, ICSID Case No. ARB/05/3 (Award, 28 November 2008). 75 Ampal, above note 71, at paras 244, 283-291.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 248 The duty imposed by the international standard is one that rests upon the State. However, since it
concerns an obligation of diligence, the Tribunal is of the view that the operation of the standard
does not depend upon whether the acts that give rise to the damage to the Claimants’ investment are
committed by agents of State (which are thus directly attributable to the State) or by third parties.
Rather the focus is on the acts or omissions of the State in addressing the unrest that gives rise to the
damage.76
The first part of this extract is strange; it is not clear why the standard of due diligence would
apply in the case of directly attributable acts. The last sentence seems at odds with Pantechniki,
where Paulsson was scathing of the claimant’s argument that Albania was responsible because
public officials were involved in the Ponzi schemes the collapse of which set off the uprising,77
and the pre-Second World War case law. In Pantechniki, Paulsson argued that ‘specific conduct
must be alleged and proved [as] must its purported effect’,78 just as Ralston in Sambiaggio
required ‘proof of wrongdoing in particular instances’, rather than it being a matter of the state’s
failure to keep order more generally. In sum, what we find today in international investment
law is a high standard of protection owed to foreign investors against rebels, inspired by
nineteenth and early twentieth century rules and practice but in fact much stricter than them.
3. Implications for present international law
While the principles of state responsibility are part of general public international law, its
continued practice as alien protection forms the new field of international investment law.
There is limited dialogue between these two regimes. As Nissel notes, ‘many doctrinal studies
of State responsibility under regional investment regimes … do not even mention the ILC
76 Ampal, above note 71, at para 245. 77 Paulsson argued that the ‘premise of this contention is problematic in principle. May an alleged chain of causation have so many links? This question need not be answered because the claim is simply unsubstantiated. The Claimant has seized on a general perception that Albania’s struggling public institutions were disserved by influential and unscrupulous officeholders. But a claim before an international tribunal simply cannot be made good by casual references to general perception. Specific conduct must be alleged and proved. So must its purported effect.’ Pantechniki, above note 72, at para 83. 78 ibid.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 249 Articles’.79 Likewise, scholarship on responsibility for acts of rebels tends to focus solely on
responsibility for violations of international humanitarian and human rights law (IHL/IHRL),
fields where there is a (perceived) responsibility ‘gap’, and entirely overlooks international
investment law.80 Understanding the emergence of the nineteenth and early twentieth century
rules of state responsibility for rebels helps us, I suggest, to put back together the pieces of state
responsibility for rebels that fragmented after 1945. It thus enables a re-description of the state
of international law today when it comes to responsibility for armed groups in a way which
illuminates how international law continues to prioritise the protection of foreign investment
against rebels, and non-state armed actors more generally, in the decolonised world.
Reconstructing the emergence of state responsibility for rebels during the nineteenth and early
twentieth centuries makes what seems new (for IHL/IHRL) appear old, it makes the strange
seem familiar.81 Non-state armed actors might be a new challenge for IHL/IHRL, but then these
are fields that came into being after the Second World War. The 1949 Geneva Conventions are
often considered as the beginning of the inclusion of rebels in international law (as parties to
an armed conflict under Common Article 3),82 something which was deepened with Additional
Protocol II to the Geneva Conventions83 and the burgeoning practice of UN bodies beginning
in the late 1980s and early 1990s.84 At the same time, the post-Cold War period is commonly
79 Nissel, above note 2, at 369. 80 See e.g. Ezequiel Heffes and Brian E Frenkel, ‘The International Responsibility of Non-State Armed Groups: In Search of the Applicable Rules’ (2017) 8 Gottingen Journal of International Law 39. 81 Anne Orford, ‘Food Security, Free Trade, and the Battle for the State’ (2015) 11(2) Journal of International Law and International Relations 1, at 28 (on making the familiar seem strange). 82 Numerous analyses begin here. See e.g. Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge University Press 2002), at 9. 83 The modern IHL/IHRL scholarship on rebels began with Antonio Cassese, ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’ (1981) 30(2) ICLQ 416. 84 On this see Jessica S Burniske with Naz K Modirzadeh and Dustin A Lewis, ‘Armed Non-State Actors and International Human Rights Law: An Analysis of the Practice of the UN Security Council and UN General Assembly’ (Harvard Law School Program on International Law and Armed Conflict 2017); Aristotle Constantinides, ‘Human Rights Obligations and Accountability of Armed Opposition Groups: The Practice of the UN Security Council’ (2010) 4 Human Rights and International Legal Discourse 89; Pieter H Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’ in Karel Wellens (ed), International Law: Theory and Practice, Essays in Honour of Eric Suy (Martinus Nijhoff 1998). For an overview, see Kathryn Greenman,
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 250 seen as a period of proliferating internal conflict and ever-decreasing inter-state war.85 This is
true enough as far as it goes, but it is misleading in the novelty it affords to rebels as a challenge
to international law.
In fact, it is clear that prior to the Second World War, international law had an extensive
engagement with rebels, both through state responsibility for alien protection, as I have
recounted here, and through the doctrine of belligerency, which I also touched upon at various
points. The story of state responsibility for rebels reveals that before the Second World War
there was no clear conceptual distinction between international war between states and
domestic civil war.86 I thus suggest that it might be more productive to think of the Geneva
Conventions as crystallising (in the breach) the distinction between international and non-
international war and marking an initial exclusion of rebels from the new international
humanitarian law. Such exclusion has then over the decades been overcome, making rebels
seem new in this context. However, at the same time as IHL was developing without rebels,
international investment law was also emerging. Later, ICSID tribunals drew on the legacy of
alien protection to provide effective protection for investors against rebels.
Civil war and revolution might not have been perceived as a problem for international law after
the Second World War. The determination of the colonial powers that anti-colonial wars be
‘Re-Reading Vitoria: Re-Conceptualising the Responsibility of Rebel Movements’ (2014) 83(4) Nordic Journal of International Law 357, at 392-394. 85 I have questioned this narrative elsewhere. See Greenman, above note 84, at 381-382. 86 See for example the statements of Francis Lieber in FW Stückle v Mexico (19 July 1871), a case discussed in Chapter 1: ‘I simply speak of the [in]validity of engagements with an enemy or rebel when brought before the lawful government of the assailed belligerent against whom the loan was made’ (emphasis added). Additionally, in Salvador Prats v United States, also discussed in Chapter 1, commissioners Palacio and Wadsworth both characterised the US civil war as an international war. Wadsworth stated that, ‘[t]he subsequent history of the contest shows how truly it must be characterized as war and be governed by its laws, although carried on within the State’, while Palacio argued that: ‘The propriety with which we employ this word [enemy] when we speak of civil wars can be easily perceived. Enemies are all those against whom the nation has been compelled to employ the public force and to put itself, for its own conservation, on a footing of war.’ See John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party, vol 3 (Government Printing Office 1898) at 2887, 2896-2897, 2937.
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530261-L-bw-Greenman Processed on: 28-3-2019 PDF page: 251 kept a ‘domestic’ concern goes a long way to explaining this.87 Nevertheless, they are not just
a post-Cold War problem either. They were one of the most urgent problems for international
law during the late nineteenth and early twentieth centuries as newly decolonised Latin
America was integrated into the global economy. The idea of rebels as a threat to human beings
as such, to their rights and their dignity, is a new one for international law, and one which,
indeed, it seems to be struggling to get to grips with, at least at the level of formal rules and
procedures. Rebels as a threat to foreign trade and investment is a much older idea, but not one
which has gone out of fashion. Under international investment law, states owe foreign investors
a high level of protection against rebels. This protection obligation can be effectively enforced
by arbitral tribunals. The claimant in AAPL v Sri Lanka received $460,000 plus interest.88
State responsibility is generally rejected by IHL/IHRL lawyers as an inherently inadequate or
inappropriate response to harm caused by rebels. It perceived as too limited,89 or as not
‘tak[ing] sufficient account of the consequences of the breakdown of the traditional State
system of the nineteenth century’.90 However, the effectiveness of state responsibility in the
investment context reveals that the difficulty in ensuring responsibility for acts of rebels that
violate IHL/IHRL cannot be about the limitations of a supposedly state-centric traditional
international law. Rather, it would seem that international law tends towards protecting certain
interests more than others. Things change, but investment protection, it appears, persists.
One thing that emerges from this research is that originally, state responsibility was about
managing revolution in the decolonised world for foreign trade and investment. There have
been numerous ruptures between pre-Second World War state responsibility and state
87 See Nathaniel Berman, ‘In the Wake of Empire’ (1998) 14 American University International Law Review 1521, at 1545-1548. 88 AAPL v Sri Lanka, above note 63, at 572. There has not yet been a decision on quantum in Ampal. 89 See e.g. Cedric Ryngaert and Anneleen van de Meulebroucke, ‘Enhancing and Enforcing Compliance with International Humanitarian Law by Non-State Armed Groups: An Inquiry into Some Mechanisms’ (2011) 16 Journal of Conflict and Security Law 443, at 464-462. 90 Zegveld, above note 82, at 226 (quoting Shabtai Rosenne).
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ARSIWA still use historical precedents from this period as authority for their rules means that
state responsibility cannot be entirely separated from its capitalist imperialist past. At the same
time, today by far the most effective practice of holding states responsible can be found in this
same context: arbitration to protect investment against instability and insecurity in the Global
South. Latin America continues to be over-represented in investment arbitrations,91 and
arbitration continues to take place alongside other types of intervention despite the investor
now having direct access to dispute settlement mechanisms.92
The common sense in IHL/IHRL is that increased engagement with rebels would reflect
international law’s progressive maturation and humanisation and its increasing ability to
respond to the ‘real’ world.93 However, my research shows that the question of whether harm
caused by rebels is a domestic or international matter has been precisely the point of
contestation and that the politics of the move to internationalise rebels cannot be assumed.
Ultimately, reconstructing the history of state responsibility for rebels offers a glimpse of how
rebels, rather than moving progressively from outside scope to within, have instead have shifted
in and out of international law’s field(s) of vision, cognized and managed in different ways in
different times and places.
91 Cecilia Olivet, Bettina Müller and Luciana Ghiotto, ISDS in Numbers: Impacts of Investment Arbitration against Latin America and the Caribbean (Transnational Institute 2017). 92 Geoffrey Gertz, Srividya Jandhyala and Lauge N Skovgaard Poulsen, ‘Legalization, Diplomacy, and Development: Do Investment Treaties De-Politicize Investment Disputes?’ (2018) 107 World Development 239. 93 See e.g. Andrew Clapham, ‘The Rights and Responsibilities of Armed Non-State Actors: The Legal Landscape and Issues Surrounding Engagement’ (2010), at 3
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