Excerpted From:  Felipe Ford Cole, Race and the History of International Investment Law, 3/2/2022 University of Chicago Law Review Online 1 (March 2, 2022) (36 Footnotes) (Full Document)


FelipeFordColeOver the last decade, new contributions to the history of international investment law (IIL [international investment law]) have begun to redefine the field's origins. Where a progressive narrative of steadily improving legal responses to the travails of moving and protecting investments around the world once stood, a more sober story of the continuities of gunboat diplomacy, resort to force, and asymmetries of power is emerging. The scholars behind the new histories of IIL [international investment law], drawing on earlier critiques of similarly Whiggish narratives in international law, aim to establish a new, more nuanced relation between IIL [international investment law] and its history. Many challenges lie ahead in the venture into the massive tangle of previously underexplored historical events, sources, and theories. No challenge will prove as fraught as reconciling the contemporary normative ends of IIL [international investment law] with those behind its emergence in the late nineteenth century and early twentieth century. For most IIL [international investment law] scholars and practitioners today, the normative goal of IIL [international investment law] is the peaceful expansion of investment for the benefit of societies and investors alike. For the jurists and diplomats that shaped the core IIL [international investment law] doctrines in the nineteenth and early twentieth centuries, however, the goal was securing the property of investors from “civilized” races in a world of “uncivilized” races. These incongruent ends are hardly unusual for a modern body of law, but in the case of IIL [international investment law], the full influence of theories of racial hierarchy is not entirely understood. This Essay provides a roadmap for this project. First, I introduce the two prevailing narratives of the history of IIL [international investment law] and the stakes involved in the field's history. In Part II, I lay out some of the methodological steps necessary to resituate race more firmly in the history of IIL [international investment law]. Part III presents a brief case study of race in the Venezuela crisis of 1902, a historical watershed in the emergence of IIL [international investment law], employing the methodological suggestions explored in Part II. 

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Through new methods and attention to new contexts, the role of race in the history of IIL [international investment law] may be better understood. In the short historical exercise provided in this Essay, I have shown how race shaped the basic imperative to protect investments from the “civilized” world in the “uncivilized” world. From the perspective of Latin America, racist assumptions about the capacity of nonwhite states and societies helped to motivate the establishment of the minimum standard and investment arbitration in the early twentieth century. With new tools for studying the history of IIL [international investment law] identified here, we will be able to look more closely at the confluence of nineteenth and early twentieth century historical processes--colonial expansion, interimperial rivalry, and investment booms--that produced international law and financial globalization and underwrote racist theories of civilization. With this new history, we can conceive of new and farther-reaching remedies for the enduring inequalities-- and their historical contingency--that remain central to the operation of international investment.

Felipe Ford Cole is a Sharswood Fellow at the University of Pennsylvania Carey Law School.