Abroad: Law, Migration, and Capitalism in an Age of Globalization by Christopher A. Casey A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in History in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Daniel Sargent, Chair Professor James Vernon Professor David Lieberman Summer 2017 Copyright © 2017 by Christopher A. Casey All Rights Reserved Abstract Abroad: Law, Migration, and Capitalism in an Age of Globalization by Christopher A. Casey Doctor of Philosophy in History University of California, Berkeley Professor Daniel Sargent, Chair John Locke’s famous triad of inalienable rights included life, liberty, and property. Historians of human rights, however, have neglected property in favor of the more heroic categories of life and liberty. This dissertation asks what the relationship between life, liberty, and property has been in international law by studying the protection of nationals abroad in the nineteenth century and the various attempts to internationalize that protection in the twentieth. The late nineteenth century was a global age. People, goods, and money moved around the world at unprecedented speeds and in unprecedented scales. At the same time, jurists mobilized old principles of allegiance and protection to justify intervention on behalf nationals who were far outside the territorial boundaries of their state. States, they argued, had a right to protect the person and property of their nationals abroad. Such a right, however, was difficult to reconcile with the principle of territorial sovereignty. Importantly, just who was a national? Nationalism and migration tested the traditional bonds between states and their subjects and strained the stability of the international system. The end of the First World War brought with it new potential for international legal innovation. Among the most persistent reimaginings of international law was expanding just what, or even who, could be a subject of international law. Would nations and national minorities become subjects? How would the system deal with millions of refugees? Would they gain international protection and rights to bring claims before international courts and tribunals? Would refugees be classified as a group, as members of a nation, or would individuals themselves become subjects of international law? In this moment of legal change, business interests worked with the 1 League to craft legal instruments to smooth out the frictions of international trade and to arbitrate disputes between investors and sovereign states. Whereas the protection of minorities and the principle of national self-determination had been central to the conception of the interwar legal order, the sovereignty of states was confirmed in the postwar world and, if there were any other subjects of international law, they were individuals, not nations or minorities. The international system was increasingly suspicious of nationality and of intervention for the protection of nationals. The response was a shift toward the individual, with human rights, the refugee protocol, and modern investor-state dispute settlement, among others. 2 For My Parents and My Grandfather i Table of Contents Introduction 2 Part I Mise en scène: The International Legal World 1850-1914 14 1. The Walls of Gilgamesh 18 2. Making Nations, Breaking Nationality 59 Part II Mise en scène: The International Legal World 1919-1939 109 3. Sovereign Nations 115 4. Sovereign Persons 139 5. Sovereign Commerce 176 Part III Mise en scène: The International Legal World 1945-Present 218 6. Cosmopolitans and Capitalists 222 Conclusion 248 Bibliography 255 Summary of Contents John Locke’s famous triad of inalienable rights included life, liberty, and property. Historians of human rights, however, have neglected property in favor of the more heroic categories of life and liberty. This dissertation asks what the relationship between life, liberty, and property has been in international law by studying the protection of nationals abroad in the nineteenth century and the various attempts to internationalize that protection in the twentieth. (Introduction) Part I The late nineteenth century was a global age. People, goods, and money moved around the world at unprecedented speeds and in unprecedented scales. International Law ii emerged as an increasingly professionalized field (Mise en scène), in part to deal with the huge numbers of disputes that arose when millions of people began to live outside the states of their birth. It was a widely accepted doctrine that states had a right to protect their nationals abroad and to demand compensation for injuries that they suffered. (Chapter 1). But just who was a national? Nationalism and migration tested the traditional bonds between states and their subjects and strained the stability of the international system. (Chapter 2). Part II The end of the First World War brought with it new potential for international legal innovation. Among the most persistent reimaginings of international law was expanding just what could be a subject of international law. (Mise en scène). Would nations and national minorities become subjects? (Chapter 3). How would the system deal with millions of refugees? Would they gain international protection and rights to bring claims before international courts and tribunals? Would refugees be classified as a group, as members of a nation, or would individuals themselves become subjects of international law? (Chapter 4). In this moment of legal change, business interests worked with the League to craft legal instruments to smooth out the frictions of international trade and to arbitrate disputes between investors and sovereign states. (Chapter 5). Part III Whereas the protection of minorities and the principle of national self-determination had been central to the conception of the interwar legal order, the sovereignty of states was confirmed in the postwar world and, if there were any other subjects of international law, they were individuals not nations or minorities. (Mise en scène). The international system was increasingly suspicious of nationality and of intervention for the protection of nationals. The response was a shift toward the individual, with human rights, the refugee protocol, and modern investor-state dispute settlement, among others. (Chapter 6) iii Acknowledgements This dissertation marks the conclusion of more than a decade of study (and four degrees) at the University of California, Berkeley. The campus—with its redwood groves, creeks, lawns, libraries, halls, and classrooms—has been my home for much of that time and I’d like to begin my acknowledgments by thanking the University, my favorite juridical person, for all that it has done for me over the years. I’d also like to thank the people of the State of California for generously supporting the University and my entire education, from the first grade through the J.D. and Ph.D., with their taxes. I can’t claim to be worthy of their generosity, but I hope they’ll see fit to expand the support of state public education in the coming decades. As the final project of a long career as a student, it seems fitting to take the time to thank my many teachers. Mrs. Steen, my first grade teacher, always referred to me as an “absent minded professor,” and it was her who probably first put into mind the idea of working in higher education. More than fifty teachers followed in the course of my elementary, middle, and high school years, the vast majority were dedicated and hard- working professionals to whom I owe a debt of gratitude. But special thanks are due to A.J. Hanson, Bill Kepner, Diane Kepner, Kip Penovich, Tom Turnbull, Janet Rodriguez, Ms. Whitmore, Tom Wilson, and Tom Wright. I also need to thank the faculty, staff, and graduate student instructors at numerous public undergraduate institutions, including Los Medanos College, Diablo Valley College, and the University of California, Berkeley, who provided guidance during my undergraduate years. Special thanks are due to Ken Alexander, Peggy Anderson, Kate Boisvert, Leah Flanagan, Bill Fracisco, John Gillis, JoAnne Hobbes, Dave Hobbes, Judy Myers, Kim Shelton, and Diana Stover. Special thanks to David Wetzel, who I had the pleasure of studying under as an undergraduate student, teaching for as a graduate student, and having as a friend. The People of the State of California, the Graduate Division of the University of California, the Institute for International Studies, the Institute for European Studies, the Center for British Studies, the Business History Conference, the Foreign Language and Area Studies (FLAS) program, Daniel Sargent, Tom Laqueur, and the Cynthia McGrath and Robert Casey Scholarship Foundation, generously funded the research for this dissertation. I also need to thank the diligent stewards of the books and documents at the heart of this dissertation—the archivists and librarians. Thanks to the librarians at the Peace Palace Library, the British Library, the Library of Congress, the Bibliothèque nationale de France, the library of the Graduate Institute of Geneva, the Clayton Public Library, the Berkeley Public Library, the United Nations Library. Special thanks to what iv Charles Franklin Doe called “the heart of the university and the center of its most serious work”—the University of California Library and, particularly, the infinitely patient Inter-Library Loan staff. Extra-special thanks to the staff of the incredible Berkeley