The Law of State Responsibility and the Persistence of Investment Protection

Abstract

At the first international conference for the codification of international law, held in 1930 by the League of Nations, the law of state responsibility could have been different—and, in a sense, was different. A group of largely Latin American and former Austro-Hungarian states rejected rules which favoured foreign commercial interests over their political and economic self-determination, and had been used to justify intervention by the colonial powers. However, the change did not stick; today international investment law embeds economic relations that continue to subordinate the Global South. This chapter explores the idea that international law’s prioritisation of investment protection is something that, despite contingency, is more likely to persist than not. To understand how international law might have been or might be otherwise, it is essential to understand how certain potentialities have persistently prevailed, even in the face of resistance. This chapter introduces two possibilities: fragmentation and structural bias.