UNIVERSITY OF COPENHAGEN

FACULTY OF LAW

iCourts
iCourts Working Paper Series, no. 248, 2021

From Colonial to Multilateral International Law:

A Global Capitalism and Law Investigation*
Karen J. Alter

An invited Forward to be published in I•Con, the International Journal of constitutional Law

(volume 19, issue 3, 2021)

iCourts – The Danish National Research Foundation’s

Centre of Excellence for International Courts

*
Due to the COVID-19 pandemic, I was not able to adequately workshop this paper. Thanks to the NSF funded Global
Law and Politics Workshop, where I discussed a rudimentary draft of this essay. Thanks to Laurence Helfer, Daniel
Immerwahr, Martii Koskeneiimi, Kal Raustiala, Gregory Shaffer and Hendrik Spruyt who read drafts on short notice,
helping me avoid major errors. Given how far I am venturing into areas where I am not an expert, errors, blunders and
omissions of my own making surely remain.

May 2021
2
Abstract: This Forward integrates international law, international relations, and global history
scholarship to understand two global trends that are in tension with each other: 1) the shift from
European colonial dominance to a law-based multilateralism, which enabled a more equal and
inclusive international law and 2) global capitalism which across time has been a political and
economic force that, left to its own devices, promotes exclusion and inequality. Alter builds an
encompassing conception of global economic law to show the interplay of colonial law, private law,
domestic law and international law in enabling and constraining global capitalism across time. The
investigation looks backwards so as to think forward. The larger goal of the endeavor is to imagine
how an Asian law-based capitalism might continue past trends and recreate continuities despite a
professed desire to be different. Just as capitalism once locked in colonial features despite the shift
to multilateral international law, multilateralism and capitalism may be forces that sustain the very
features of the Western Liberal International Order that China seeks to move beyond.

KEYWORDS: International Law, TWAIL (Third World Approaches to International Law), history
of international law, International Regime Complexity, Global economic law, international political
economy

Name, Karen J. Alter, Professor of Political Science and Law, Northwestern University
Email: kalter@northwestern.edu

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This research is funded by the Danish National Research Foundation Grant no. DNRF105.

iCourts - Centre of Excellence for International Courts - focuses on the ever-growing role of
international courts, their place in a globalizing legal order, and their impact on politics and society
at large. To understand these crucial and contemporary interplays of law, politics, and society,
iCourts hosts a set of deeply integrated interdisciplinary research projects on the causes and
consequences of the proliferation of international courts.

iCourts opened in March 2012. The centre is funded by a large grant from the Danish National
Research Foundation (for the period 2012-18).

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From Colonial to Multilateral International Law: A Global Capitalism and Law Investigation……………………...1

1. Global economic law: The operating system of global capitalism ................................................................. 9

IL & IR blind spots: how the operating system of global capitalism is hidden ................................................. 11
Multilateralism: A new politics of international law.......................................................................................... 16
Global economic law: colonial and multilateral eras compared ........................................................................ 20

2. A patchwork history of global capitalism and international law .................................................................. 25

1. Long distance traders building global capitalism and global law ............................................................. 27
2. Colonial powers building global capitalism and global law ..................................................................... 33
3. International lawyers building global capitalism and global law ............................................................. 39
4. International institutions building public international law ...................................................................... 45
5. Failed multilateralism generates continuities in colonial law ................................................................... 53
6. Ideas challenging states and interests to shape international law ............................................................. 66
This larger quilt of insight and its missing piece (financial globalization) ........................................................ 77

3. Global economic law in a post-American world order ................................................................................. 80

The task ahead: bringing all forms of global economic law back in .................................................................. 85

The shift from a colonial to multilateral international order was full of great promise. Colonialism
was built on coercive domination. European colonial systems were famous for locating the most
profitable economic elements in the metropole, while treating peripheral countries as producers of
raw materials, as sites of grueling cheap and slave labor, and as captive markets for European
finished products. The 1941 Atlantic Charter signaled the hopes of multilateralism, promising an
end to territorial domination, a recognition of the right to self-determination, an effort to work
collectively towards lowering trade barriers, improved labor standards and economic advancement,
promoting freedom of the seas, and creating a world free of want and fear.1 The United Nations
(UN) enshrined these goals, recognizing that nations would interact as sovereign equals drafting
international law through multilateral processes.2 Multilateral institutions created new international
legal rules to promote free trade, to keep oceans open for all, to create a stable currency exchange

1
Joint declaration by the President of the United States and the Prime Minister of the United Kingdom August 14,
1941, 55 Stat 1603, Executive Agreement Series 236.
2
United Nations Charter Chapter 1, Document Symbol, 1 UNTS XVI.

5
system, and to help secure peace and security. Colonial prerogatives including the right to use force
to open markets or to compel the repayment of debts were eliminated.
The shift to multilateralism created profound changes in international law, usually in the
direction of creating international agreements and institutions that could garner greater international
political support from states. Yet global capitalism operated alongside this international legal and
institutional transformation. The forces of global capitalism served as a break on what was
politically possible. Newly independent states hoped that their growing numbers would translate
into a multilateral power to renegotiate the set of global economic rules that had been created by
and for colonial powers. Their hopeful ideals–for permanent sovereignty over their own natural
resources, for a New International Economic Order (NIEO), and for a set of more equal and fairer
international economic agreements–failed in large part because of the refusal of wealthy states to
accede to developing country demands. Multilateralism therefore also served as a break on what
was possible.
This Forward integrates international law (IL),3 international relations (IR)4 and global
history conversations, using the global history of others to explore how the shift from the colonial to
multilateral era influenced international law-making. I do this by creating an expansive definition of
global economic law that includes categories that today’s legal scholars might call international
law, transnational law and transnational legal orderings,5 and binding private contracts between
firms, banks and states that are then upheld by domestic courts. I need this larger category because
state and economic actors have options. They can choose what I will soon develop as the category
of multilateral international law, which must be made in a multilateral way and fit into a system
of international law. Or they can choose the other legal forms that are part of global economic law–
transnational law, private contracts, bilateral agreements– which can be more flexible and can better
reflect the goals of powerful economic actors.

3
The acronym IL will refer to international legal scholarship whereas ‘international law’ will refer to the legal
categories that IL scholars associate with international law.
4
Similar to the IL category, the abbreviation IR refers to the conversations among scholars of international relations. I
spell out international relations when I am discussing the content of relations among states and other global actors.
5
Harold Hong Koh, Transnational Legal Process, 75 NEBRASKA LAW REVIEW, 201-7 (1996);TERENCE C. HALLIDAY &
GREGORY C. SHAFFER, TRANSNATIONAL LEGAL ORDERS (2015). [Hereafter HALLIDAY AND SHAFFER TRANSNATIONAL
LEGAL ORDERS]

6
 To illuminate the normative and political tensions within global economic law, I construct a
patchwork quilt review-essay of a new generation of scholarship that is inserting a legal sensibility
into the study of colonial systems or a capitalist sensibility into the study of international legal
development. While a different seamstress could create a different quilt, this patchwork review-
essay seeks to reveal the operation of global economic law by assembling studies where
circumscribed examinations explicitly speak to and provide revealing insight about the larger whole
of global economic law and the transition from the colonial to the multilateral international order.
This Forward’s analysis is a companion to a project that focuses on the Post WII multilateral
systems regulating global trade and money.6 As a prequel, the essay advances four main arguments.
First, the scholarly gaze of IL and IR scholars includes blind spots that hide the legal infrastructure
of global capitalism, thereby obscuring how states and firms use law, lawyers, and legal arguments
to their advantage. What is thereby minimized is how the system of state-supported private
contracting and the scholarly inattention to colonial law and private international law recreated
certain colonial era practices. Also falling into the blind spot is the reality that a failure to
collectively decide (what I call non-decisions) may be as important as collective decisions,
especially when the topic is the global economy.
Second, global economic law operates as an international regime complex–a form of global
governance that has specific attributes.7 Regime complexes are usually not intentionally designed,

6
The book examines decisions to internationally legalize multilateral trade management from 1940 to the present, while
simultaneously decentralizing the legalization of monetary management. KAREN J. ALTER & STEPHEN C. NELSON,
RULING THE GLOBAL ECONOMY: WHY IS MONEY SO DIFFERENT FROM TRADE (In Progress). [Hereafter ALTER &
NELSON Ruling the global economy]. The last two quilt pieces draw on research for this book.
7
An international regime complex is “an array of partially overlapping and nonhierarchical institutions that includes
more than one international agreement or authority.” Karen J. Alter & Kal Raustiala, The Rise of International Regime
Complexity, 14 THE ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE 329, 333 (2018). [Hereafter Alter & Raustiala THE
RISE OF INTERNATIONAL REGIME COMPLEXITY, 2018]. The regime complex idea is similar to transnational legal
orderings. For both concepts, not every element in the complex or order will be legal in nature or legally binding (ibid,
334-5). Both approaches seek to conceptualize global orders while still acknowledging the legal pluralism within.
Scholars interested in transnational orderings are interested in processes that generate, destabilize and reconstitute new
orders. The political scientists in me prefers the regime complexity framework where the focus is on how the
institutional arena of a regime complex shapes the politics and behaviors within (Ibid, 340-3). On transnational legal
orderings, see: HALLIDAY & SHAFFER, Transnational legal orders especially chapter 1.

7
rather they are incidentally created as different groups of actors construct agreements to their liking,
and as international agreements get layered next to and over each other over time.8 While there are
benefits to governing via an international regime complex, two challenges are salient for this study.
Regime complexes generate holes that despite their dysfunction do not get repaired. Relatedly,
regime complexes parcel authority and responsibility across elemental institutions so that
sometimes no one institution or authority is fully responsible.9 In addition, a lack of an agreed upon
legal hierarchy across the elemental institutions and agreements allows actors within to play the
different layers of authority against each other. For example, by moving from one institutional
venue to another, actors can either escape or draw on legal obligations that are present in one
system but lacking in another. These strategies are revealed when one studies how capitalist actors
maneuver across the categories of law that are part of the global economic legal complex.
Third, while both the laws and lacunae of the colonial and multilateral global economic
systems reflect state decisions, economic actors can act independently in ways that constrain state
action. In both the colonial and multilateral eras, global firms asked for and Sovereigns provided
domestic and international law and international relations support to secure these firms’ global
operations. Yet it is also true that firms have used jurisdiction jumping to escape state efforts to curb
business excesses. The Marxist notion that states are mere handmaidens of capitalist interests
misses how firms also work through and across the international regime complex to escape
individual and collective efforts by states to regulate the global market.
Fourth, this rear-view window analysis has its sights on the future. We should not expect
these trends to change even if Western power declines and Asian power ascends. The nature of
global capitalism is that it is adaptive and driven by an extractive and profit seeking logic. Global
capitalism can shed entire regimes–like slavery and colonialism–and then reform and reproduce
inequality and exploitative relationships in new forms. Meanwhile global economic law, in its
multilateral, bilateral, coalition of the willing and private law forms remains the legal infrastructure
that facilitates and structures global capitalism, enabling firms to jump jurisdictions to escape state
regulation and to exploit gaps in the international regime complex of global economic law. If

8
Alter & Raustiala, THE RISE OF INTERNATIONAL REGIME COMPLEXITY, 337-9.
9
Karen J. Alter, Comprehending global governance: International regime complexity vs. global constitutionalism, 9
GLOBAL CONSTITUTIONALISM 413(2020).

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multilateralism remains the primary ordering principle of international relations, and if global
capitalism remains a fundamental organizing element of the world’s economy and international
relations, then new emerging powers (China, BRICs, or states with rising economies) are likely to
replicate or reproduce pieces of the American-led multilateral order even as they aspire to get
beyond them. And these powers are likely to do so using the existing tools of global economic law.
The remainder of this Forward proceeds as follows. Part I develops the argument about how
IL and IR blind spots keep key elements of global capitalism’s operating system hidden. It defines
key concepts in this analysis and offers a notional schema of the colonial and multilateral legal
orders that helps us to envision global economic law as an international regime complex that states
and private actors maneuver within and around. Part II builds a patchwork quilt that provides the
empirical support for the conceptual arguments of Part I. The section’s introduction will explain the
review essay format, which is used by political scientists to explore ideas and build theory by
drawing on the empirical work of others. The quilt pieces build insight across time, starting with the
long-distance trading era, moving through the colonial era, and into the multilateral and
globalization eras. Working with the arguments of Parts I and II, Part III explains why a decline in
American power still leaves the imported colonial legal categories and multilateralism intact. Just as
the shift from the colonial to multilateral international orders reproduced key pieces of the colonial
world order, a shift from an American to a Chinese led world may reproduce a similar global
economic system, perhaps with less political liberalism.

1. Global economic law: The operating system of global capitalism

This Part reorients the traditional way that international law is discussed, as inter-state legal
agreements. This part begins by identifying blind spots of IL and IR disciplinary practices, which
hide key parts of global capitalism’s operating system. My claim is that we need to add colonial
law, private law and domestic extraterritorial law to the traditional IL/IR categories to understand
the legal operating system of global capitalism. A corollary to this point is that these forms of law
reflect state-sanctioned decisions. I then identify how multilateralism represents a fundamental
transformation in how international law is made and interpreted, yet not necessarily a fundamental
transformation of the legal infrastructure of global capitalism.
The focus on blind spots and multilateralism reflects my foundational premise that law is a
particular type of operating code for markets and international relations. Law is related to yet

9
different from a rule, a custom, a norm, or an agreement in that it brings with it an institutional
apparatus. Law is backed by a formal or tacit state recognition and it is legally binding. While not
always enforceable in practice, binding law is enforceable in principle. An entire discipline of law,
which includes legislators, lawyers, judges, arbitrators, scholars, and everyone who has a law
degree, see law as distinct from norms, rules of etiquette, and non-binding verbal agreements.
Armies of enforcers-lawyers, notaries, arbitrators, judges, administrators, legal advisors, in-house
counsel etc- instruct the non-legal world to treat law as binding. This reality makes legal agreements
valuable. Law delivers state sanctioned legitimation. Law confers rights that others will recognize.
Legal rights are portable across borders because legal practitioners will respect legal agreements
from other jurisdictions, so long as these agreements do not violate domestic or international law.
Legal rights, often conveniently interpreted, are also an intimidation tactic of states and lawyers in
domestic and international relations.
In addition to its instrumental benefits, law is also constitutive of interests and economies,
helping to overcome uncertainty, allocating ownership rights, and structuring power relations.10
Law is the tool used to encase markets, and thus to ensure that the pursuit of self-interest does not
destroy the social, political, moral or ecological fabric of society.11 While business can be done with
a shake of a hand, it is not an accident that illegal business relies on coercion and shadows while
licit business prefers to use, follow or craft binding law. Firms ask for and Sovereigns12 often but
not always supply the set of legal rules that make possible both the good and the bad parts of the
global economic system. It is precisely because legal agreements are portable and enforceable that
firms prefer that their arrangements are legal in nature. This same logic sometimes guides states,
although governments are also wary about becoming constrained by the law they use to bind and
constrain others.13

10
Simon Deakin, et al., Legal institutionalism: Capitalism and the constitutive role of law, 45 JOURNAL OF
COMPARATIVE ECONOMICS 188(2017).
11
This is Karl Polanyi’s basic insight. The sixth quilt piece, which discusses Germanic neoliberals, focuses on
contrasting visions of market encasement. KARL POLANYI, THE GREAT TRANSFORMATION (1944).
12
I capitalize Sovereign when I refer the Sovereign (a noun), meaning the head of state who embodies sovereignty.
13
Regarding self vs. other binding law, see KAREN J. ALTER, THE NEW TERRAIN OF INTERNATIONAL LAW: COURTS,
POLITICS, RIGHTS 35-41 (2014).

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 Stating the argument in definitional and theoretical terms provides a simplified holistic
roadmap of global economic law across the colonial and multilateral eras. This Part ends by
providing a Venn-diagram sketch of the international regime complex of global economic law in the
colonial and multilateral eras. Rather than resting with the observation that global economic law is
plural, fluid and hybrid, an international regime complex maps the sources of authority claims and
in so doing defines the spaces that international actors navigate through and around as they assert
and contest legality claims.

IL & IR blind spots: how the operating system of global capitalism is hidden

Colonialism was about many things. My focus on economics is not meant to suggest that
profit was the primary or most important factor inspiring colonial expansion and dominance. I am,
however, interested in how economic expansion and profit were drivers and facilitators of
colonialism. Global trade expanded because of colonialism. In providing a legal infrastructure for
traders, colonial powers built a global economic order. If I can better understand what the colonial
legal infrastructure looked like, then I can better understand how and to what extent the multilateral
international legal order is different. The task of revealing the legal operating system of global
capitalism is not easy however, because much of the operating system to this day resides in the
blind spots of IL and IR debates.
By all accounts, international law was a European creation that expanded alongside
colonialism.14 International law’s original name–the law of nations–indicated the IL perspective that
international law pertained to agreements between states plus the legal rules of the global commons
(primarily the oceans, but also piracy and the international slave trade). A key feature of colonial
era international law was that it only applied to “civilized” states, with “civilized” being a flexible
and fluid concept.15 Mark Mazower’s account of the European “Empire of International Law”

14
MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS : THE RISE AND FALL OF INTERNATIONAL LAW, 1870-1960
(2002). ANDREW CLAPHAM, BRIERLY'S LAW OF NATIONS: AN INTRODUCTION TO THE ROLE OF INTERNATIONAL LAW IN
INTERNATIONAL RELATIONS Chapter 1 (2012). [Herafter CLAPHAM, Brierley’s Law of Nations, 2012]
15
J. L. Brierly’s classic definition of international law was: “The Law of Nations, or International Law, may be defined
as the body of rules and principles of action which are binding upon civilized states in their relations with one another.”
J. L. BRIERLY, THE LAW OF NATIONS 1 (1928).

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explains that outside of the group of civilized states, “[l]egal theory…translated into the massacres,
aerial bombings and systematic detentions that characterized European imperialisms and that
pointed to the extreme brutality of conflicts deemed to be beyond law’s sway.”16 I will refer to the
international law built during the European colonial era using the critical moniker of European
international law to reflect the colonial era understanding that this international law applied only to
“civilized” states while a separate law governed colonial relations.
The legal constructs within European empires and the laws that firms drew on in their
interactions in colonial territories were mostly excluded from these IL conversations. In the
metropole, then as now, the general subject “law” is mostly about domestic law. This
domestic/international law bifurcation puts colonial law nowhere. Part II’s patchwork quilt will
sketch out how international and colonial law worked to regulate global trade during the European
colonial era. Traditional colonial era IL scholarship focused on treaties, charters, judicial rulings,
and the writings of legal practitioners and scholars. These written embodiments of law do not begin
to capture the scope of the laws and practices colonial actors used in the territories they occupied.
By excluding colonial law as a distinct or separate part of international law, private law with a
global reach was absorbed into Sovereign power. To be sure, commercial interests were implicit to
these categories, associated with Sovereign grants of power to corporations and traders. By
absorbing the devolution of power to private actors and colonial officials into the exercise of
Sovereign power, however, the workings, autonomy and details of private and colonial law was
largely cleaved out of IL conversations.17

16
MARK MAZOWER, GOVERNING THE WORLD: THE HISTORY OF AN IDEA 78 (New York ed. 2012). [Hereafter
MAZOWER, The History of an Idea, 2012]
17
On how private international law was seen as fundamentally different from international law, see HORATIA MUIR
WATT, THEORIZING PRIVATE INTERNATIONAL LAW (Anne Orford & Florian Hoffmann eds. The Oxford handbook of
the theory of international law. 2016). C. H. Alexandrowicz set out to build a more accurate and less Eurocentric global
history of international law, which involved recovering ‘treaties’ that had existed before European positivism and
colonialism stripped African and Asian countries of their sovereignty. David Armitage and Jennifer Pitts assembled his
collective works: CHARLES HENRY ALEXANDROWICZ, C.H. ALEXANDROWICZ: THE LAW OF NATIONS IN GLOBAL
HISTORY 21 (David Armitage & Jennifer Pitts eds. 2017). Critical political theorists are also exploring the discursive
tensions between international law visions and empire, focusing how universalistic IL claims hid imperial law and
actions. See JENNIFER PITTS, BOUNDARIES OF THE INTERNATIONAL: LAW AND EMPIRE (2018). [Hereafter PITTS,
Boundaries of the International]

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 A key reason that legal scholars have not generally discussed colonial law as a distinct
category is because the category is itself problematic. The codified body of colonial treaties and
agreements does not really capture the extent of colonial legal relations, especially because legal
systems were institutions that colonizers brought to the lands they conquered. The Napoleonic Code
was meant to be a uniform set of rules for the entire French empire, but it never operated as such.18
In the French and other empires, local leaders and economic actors co-opted local practices,
responded to local push back, and borrowed ideas from other each other, so colonial law was a
hybrid entity that varied by location. Meanwhile French, British, Spanish, Ottoman, German, Dutch
and Portuguese empires had their own unique attributes, and colonial relations within empires were
constantly evolving.19 This variation and flux makes the category ‘colonial law’ impossible for
lawyers to name and discuss in a fixed way. Yet because international law grew in tandem with the
expansion of European trade and colonialism around the world,20 we cannot ignore the role of
colonial law in this process.
The concept of colonial law is mostly used by historians to denote the law created to
manage colonial relations (the second quilt piece demonstrates this idea). The global history
approach of this Forward builds on Mark Mazower’s observation that colonial “law was not made
by kings nor even by parliaments but by deeper trends in society; the lawyer’s task was to interpret

18
UTE PLANERT, NAPOLEON AND BEYOND: RESHAPING POWER IN EUROPE AND THE WORLD (Ute Planert ed.
Napoleon's empire : European politics in global perspective 1750-1850. 2016).
19
LAUREN A. BENTON & RICHARD JEFFREY ROSS, LEGAL PLURALISM AND EMPIRES, 1500-1850 (2013). See also:
LAUREN A. BENTON, LAW AND COLONIAL CULTURES: LEGAL REGIMES IN WORLD HISTORY, 1400-1900 5-6 (2002).
[Hereafter BENTON, Law and Colonial Cultures, 2002]
20
Anne Orford explains how free trade ideas and colonialism interacted and shaped colonialism and international law.
ANNE ORFORD, THEORIZING FREE TRADE (Anne Orford & Florian Hoffmann eds. The Oxford handbook of the theory
of international law. 2016). [Hereafter Orford, THEORIZING FREE TRADE, 2016] Martti Koskenneimi explains that
colonial law was often seen as a state of exception, conceived of differently in different empires. He also explains how
its extractive and coercive elements did not fit well into IR discourses of the day. Martti Koskenniemi, Colonial Laws:
Sources, Strategies and Lessons?, 18 JOURNAL OF THE HISTORY OF INTERNATIONAL LAW = REVUE D'HISTOIRE DU DROIT
INTERNATIONAL 248, 251 (2016). On the unwillingness of IL to fully confront its colonial past see Carsten Stahn,
Reckoning with colonial injustice: International law as culprit and as remedy?, 33 LEIDEN JOURNAL OF
INTERNATIONAL LAW 823(2020).

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and speak for these.”21 State actors were still essential, but it was the practicing lawyers that
“justified the extension of colonial rule overseas, they defended its value for the emergent society of
sovereign nation states in Europe (and when they remembered, the Americas).”22 Key European
international law concepts–the requirement of reciprocity, international law on the use of force, and
the law of the seas –were all designed and developed at the behest of non-state actors to facilitate
and justify the exercise of colonial economic power.
It would be too much to say that no consent was involved in the making of colonial-era law.
A number of historians are using the framework of colonial encounters to explore how local actors
pushed back against the terms of engagement and definitions of law that Europeans tried to
impose.23 This pushback led to changes in law and legal practice, which is one reason why there is
no single British, French etc imperial or colonial law. Given that European international law only
really applied where Europeans were present, there was also no globally binding international law
during the colonial era.24 Yet even if colonial encounters shaped the nature of colonization at local
and regional levels, as Part II will explain, during the colonial era both international law and what I
am calling global economic law were fundamentally shaped by the colonial economic interests of
European (and later American) actors usually with the tacit if not the explicit support of their
governments.
IL’s failure to consider colonial law, including its private/commercial law elements and its
financial aspects, as part of the European international legal order created blind spots that were
imported into IR debates. IR’s state-centric ontology reinforced the separation between IL and
private/commercial law conversations. IR scholars generally presume that law is an embodiment of
power, changing and adapting in tandem with will of the state.25 This perception is a hangover of

21
MAZOWER, Governing the World: The History of an Idea 69.
22
Id. at, 74.
23
See, for example, BENTON, Law and colonial cultures.
24
For more on the complicated relationship between imperialism, law and international law, see: Lauren Benton, Made
in Empire: Finding the History of International Law in Imperial Locations: Introduction, 31 LEIDEN JOURNAL OF
INTERNATIONAL LAW 473(2018).
25
On this presumption that law merely reflects the decisions of political actors, see: Karen J. Alter, Visions of
International Law: An Interdisciplinary Retrospective, 33 LEIDEN JOURNAL OF INTERNATIONAL LAW, 837, 839-42
(2020).

14
the days of absolutist Kings, where the Sovereign was the law. The quilt pieces reveal the evolution
away from law as the King’s edict, starting in colonial times when economic actors became free-
lancing agents who extended the King’s reach but also jumped jurisdictions to escape the
Sovereign’s reach. After WWI, the iron-grip control of Sovereigns over domestic and international
law had ended. It may be analytically easier for IR scholars to focus only on what the heads of
states say, want and do, but this hangover conception of law as eternally and at every moment
subordinate to state power obscures the many ways that modern states use law as a tool of economic
development and foreign statecraft and power.
The IL and IR blind spots entered into the multilateral era when international law
appropriated the colonial era IL categories. The IL claim that international law is comprised of
treaties and the customs of (civilized) states, informed by the interpretations of scholars and the
decisions of judicial actors, was translated into the League and the UN’s International Court of
Justice (ICJ).26 Where states could agree, international actors went about replacing European
international law with a more consent-based multilateral international law. But where states could
not agree, the non-treaty based categories of international law still operated. By relying on the
colonial-era IL categories, global economic law could continue as a mix of multilateral, bilateral or
customary international law, domestic law that could be applied extraterritorially, and private
contract law that could be enforced by domestic judges around the world.
An argument of this Forward is that the multiplicity of global economic law formats
provides exit options. Firms and powerful states can use broad-based multilateralism to build
consent-based international law. Or they can use a less broad-based multilateralism (sometimes
called minilateralism, or ‘preferential agreements’) to create multilateral international law that only
binds like-minded states (aka ‘coalition of the willing’ international law). Or states can use their
power to create bilateral agreements. This is the law that IL and IR scholars see and discuss. In
addition, Western (and Chinese) firms can negotiate contracts that will be enforceable in Western
(and Chinese) courts. These options mean that powerful actors do not have to make concessions to
weaker states in order to obtain legally binding agreements. 27

26
See article 38 of the Statute of the Permanent Court of International Justice and article 38 of the UN’s International
Court of Justice.
27
This situation fits what Lloyd Gruber described under the moniker of ‘go-it-alone power.’ When great powers need
the support of weaker powers, they will compromise because they cannot achieve their goal without multilateral

15
 Some might say that the plethora of legal options is a manifestation of sovereignty.28 This is
no answer; the third and sixth quilt pieces will discuss how colonial and capitalist powers define
what sovereignty entails. In any event, my point is that the multiplicity of categories is itself a
remnant of colonial era international law, one that is obscured by the IL/IR bifurcation into the two
categories of domestic and international law.

Multilateralism: A new politics of international law

For many people, multilateralism is about numbers and/or buildings. International

agreements with broad state membership are ‘multilateral agreements’ and international institutions
with buildings and staff are ‘multilateral institutions.’ By contrast, this Forward uses John Ruggie’s
definition to delineate the multilateral era and to distinguish European international law from
multilateral international law. Ruggie defines “multilateralism as a generic institutional form to
coordinate relations among three or more states “on the basis of "generalized" principles of
conduct-that is, principles which specify appropriate conduct for a class of actions, without regard
to the particularistic interests of the parties or the strategic exigencies that may exist in any specific
occurrence.”29 In other words, multilateralism reflects a political choice for a certain type of
cooperation politics, one that involves states working together to craft general principles for
themselves, and a promise to adhere to the principles or to return to multilateral decision-making
procedures to reinterpret, question, derogate from, or change the collective principles.
Ruggie contrasts principled multilateralism with the alternatives of bilateralism and empire.
Ruggie’s generic form of bilateralism has more powerful states extracting favorable bargains from

support. When great powers can go-it-alone, their negotiating leverage is stronger and the bargaining outcome ends up
much closer to their preferred outcome. See LLOYD GRUBER, RULING THE WORLD: POWER POLITICS AND THE RISE OF
SUPRANATIONAL INSTITUTIONS 7-12 (2000). I am adding that states and firms also have private law options that tend to
be overlooked by IR scholars.
28
CLAPHAM, Brierly's Law of Nations chapter 1.
29
John Ruggie, Multilateralism: The Anatomy of an Institution, 46 INTERNATIONAL ORGANIZATION 561, quotes at 561
& 571 (1992). [Hereafter Ruggie, MULTILATERALISM (1992)] I engage Ruggie’s definition in more detail elsewhere:
KAREN J. ALTER, CONTRACTING V. MULTILATERALISM IN GLOBAL ECONOMIC GOVERNANCE: BEFORE, DURING AND
AFTER THE WTO 27-29 (Manfred Elsig, et al. eds. International Economic Dispute Settlement: Demise or
Transformation? . 2021).

16
weaker states, and his generic imperialism has relations between the strong and weak coordinated
by “denying the sovereignty of subject states.”30 Other alternatives exist, such as Rodiles’ coalitions
of the willing where like-minded states rely on informal coordination or formal agreements that are
parallel to but different from existing international legal frameworks.31 The organizing principle of
multilateralism is, by contrast, predicated on sovereign equality insofar as sates can opt in and opt
out, and the rules and principles apply to all participating members.32 Ruggie argues that the
institutional form of multilateralism is unusually adaptive, which makes it especially resilient.
Principled multilateralism allows states to repeatedly return to the table to collectively decide to
proceed differently. The only requirement is that powerful actors do return to the collective forum
to debate what should be done. Ruggie argues that when principled multilateralism operates at its
best, it generates a diffuse reciprocity, meaning a general adherence to the principles as opposed to
a more specific quid-pro-quo sort of reciprocity.33 The diffuse reciprocity claim is similar to what
normative legal scholars recognize as input or procedural legitimacy that generates the compliance
pull of law.
Multilateralism is not the same thing as international law, nor is it the same thing as
international legalization.34 Multilateralism is a way to conduct international relations that is
fundamentally different from bilateralism and imperialism, both of which are predicated on the

30
Ruggie, MULTILATERALISM, 568-71.
31
Rodiles argues that durable coalition of the willing agreements combine formality and informality, and they are
parasitic in that they complement but also challenge existing international law and they are designed to facilitate a
rhetorical recalibration of notions of legality. His argument is both about law-like rhetoric and about how powerful
states play on international regime complexity to further their preferred interpretations and understandings. ALEJANDRO
RODILES, COALITIONS OF THE WILLING AND INTERNATIONAL LAW: THE INTERPLAY BETWEEN FORMALITY AND
INFORMALITY 211-235, 250-258 (Cambridge studies in international and comparative law 2018).
32
Ruggie, MULTILATERALISM, 597. Of course, common rules usually also include exceptions. The larger point is that
the nature and terms of allowable exceptions are multilaterally defined, and thus even the exceptions represent a
principled agreement.
33
Id. at, 571, 593-7.
34
International legalization focuses on the creation of legal obligations that vary in the extent of their obligation,
precision and delegation to third-parties to implement or oversee compliance, without regard as to whether these
obligations are created through multilateral means. See: Kenneth Abbott, et al., The Concept of Legalization, 54
INTERNATIONAL ORGANIZATION 401(2000).

17
stronger defining or de facto imposing the terms of the agreement. Given that by definition
principled multilateralism requires only two things–three or more states and agreed upon
generalized principles of conduct–there can be multiple multilateralisms that generate nested,
overlapping and equally binding multilateral international law.35 Many regime complex maps depict
nested and overlapping multilateral institutions and/or multilateral legal agreements, but nothing
limits a regime complex to including only these categories.36 Principled multilateralism also need
not generate binding or enforceable international law. The conceptual distinction between the
standard IR understandings of multilateralism and international legalization is important insofar as
the IR legalization concept can span both the colonial and multilateral eras, whereas the
multilateralism concept recognizes that international politics (and lawmaking) post WWII is
fundamentally different from international politics (and lawmaking) in the colonial era.
Much more could be said, but the fundamental point is that the multilateral era added a new
way to make and expand upon international law. To be sure, power politics still operate. The fourth
and fifth quilt pieces will demonstrate how power works through yet is also constrained by
multilateralism. But multilateralism is fundamentally different from European international law
because it involves multiple states agreeing to general mutually binding principles that ideally
should preclude imperialism.37 Another difference, also developed in the fourth quilt piece, is that
multilateral actors, including committees and secretariats of multilateral institutions and decisions

35
Increasingly scholars are looking at strategy of creating new multilateral institutions to rival existing institutions. See:
Julia Morse & Robert Keohane, Contested multilateralism, 9 THE REVIEW OF INTERNATIONAL ORGANIZATIONS
385(2014). [Hereafter Morse & Keohane CONTESTED MULTILATERALISM, (2014)]. See also Laurence Helfer, Regime
Shifting: The TRIPS Agreement and the New Dynamics of International Intellectual Property Making, 29 YALE
JOURNAL OF INTERNATIONAL LAW (2004).
36
For example, in describing the global AIDs regime, Alter and Raustiala include the Gates Foundation and the Bush
Administration’s Pepfar programs as part of the global aid’s complex. Alter & Raustiala, THE RISE OF INTERNATIONAL
REGIME COMPLEXITY, 334-6.
37
I am using imperialism as Doyle defined it: “the process of establishing and maintaining an empire.” MICHAEL
DOYLE, EMPIRES 19 (Ithaca ed. 1986). Daniel Immerwahr finds evidence of modern day American imperialism:
DANIEL IMMERWAHR, HOW TO HIDE AN EMPIRE : A HISTORY OF THE GREATER UNITED STATES (History of the greater
United States. 2019). China arguably has or will create more examples. See Audrye Wong, How Not to Win Allies and
Influence Geopolitics, FOREIGN AFFAIRS 44(2021). [Hereafter Wong HOW NOT TO WIN ALLIES AND INFLUENCE
GEOPOLITICS].

18
of international adjudicatory actors, can add to collective legal understandings and they help
develop principles that are sometimes accepted as international soft law or that may later become
customary international law or be codified as treaty law.
The differences between multilateralism and European international law supplies a
legitimating narrative that European international law lacked. Post WWII, one could no longer
defend an international law that depended on the category of “civilized” and “uncivilized” states;
the concepts of sovereign equality and self-determination would not allow for this difference.
Multilateralism is the institutional apparatus to generate consent based international law. My claim
is not that multilateral international law was or is inherently legitimate. Rather in the multilateral
era, as an empirical matter, a much broader set of actors invoke international law, and they argue
that legality–the attribute of lawfulness-renders law-backed claims and actions legitimate. In these
ways, during the multilateral era, international law increasingly became a discourse of international
relations and a legitimating narrative invoked by a range of state and non-state actors.
In sum: international law remains the more encompassing category that includes everything
recognized by the practitioners of international law, while multilateral international law is the
subset of international law that is made, enacted, interpreted and debated via multilateral
institutions. Multilateral international law is predicated on the notion of sovereign equality and it
must adhere to the multilateral legal framework defined by the UN and the Vienna Convention on
the Law of Treaties. Meanwhile multilateralism is a distinct way of conducting international
relations that interacts with international law in three important ways: 1) Multilateralism’s penchant
for general principles makes international law an attractive goal and implementation strategy for
multilateral politics; 2) because multilateral international law is collectively made, it has a greater
consent-based legitimacy compared to European international law, and compared to bilateralism
(which cannot avoid being shaped by power asymmetries) and hegemony; 3) the legal invocations
and interpretations of multilateral international law by multilateral actors contributes to multilateral
international law’s autonomy from the interests and preferences of states.
These attributes of multilateralism are important as they also apply in a Post-American
world order. Even IR realists recognize that multilateral agreements are preferable. Hans
Morgenthau, the progenitor of IR realism, explained it this way:
legitimate power, that is power whose exercise is morally or legally justified, must be distinguished
from illegitimate power….[and] naked power…The distinction is not only philosophically valid but
also relevant for the conduct of foreign policy. Legitimate power, which can invoke a moral or legal

19
justification for is exercise, is likely to be more effective than equivalent illegitimate power, which
cannot be so justified. That is to say, legitimate power has a better chance to influence the will of its
objects than equivalent illegitimate power, which cannot be so justified. Power exercised in self-
defense or in the name of the United Nations has a better chance to succeed than equivalent power
exercised by an “aggressor” nation or in violation of international law.38
Communist China also recognizes this reality. A 2014 opinion piece by Wang Yi, then China’s
Minister of Foreign Affairs, emphasized China’s commitment to state sovereignty, the ‘democratic’
input of states in international policy-making and the international rule of law. Wang observed
(among other points) that “in today’s world, acting in accordance with international law is the
common sense, whereas breaching international law is unpopular.”39

Global economic law: colonial and multilateral eras compared

The category of global economic law is larger than international law, and different from
multilateralism. It includes elements that are traditionally considered part of global economic
relations. In colonial times, this included colonial laws facilitating trade; friendship agreements that
conferred trade and investor privileges on foreigners; law governing sea routes, piracy and the slave
trade; and domestic, private and international laws and practices pertaining to the resolution of trade
and investment disputes and the repayment of transnational and inter-state debts. The multilateral
era banned many of the colonial era practices that had been acceptable under European international
law, and it added new global economic elements, such as the law of World Trade Organization
(WTO), legal commitments associated with International Monetary Fund (IMF) membership, and
economic relations governed by bilateral agreements, such international investment law and
preferential trade agreements.

38
HANS MORGENTHAU & KENNETH THOMPSON, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 34
(1985).
39
Y. Wang, China: a Staunch Defender and Builder of the International Rule of Law, 13 CHINESE JOURNAL OF
INTERNATIONAL LAW (BOULDER, COLO.) 635, 637 (2014). Wang further argues that the Five Principles of Peaceful
Coexistence has been Chinese doctrine and policy for sixty years, that it is written into China’s constitution and its
bilateral treaties, and that China has never breached international law.

20
 Less traditionally, the global economic law category includes internationally or domestically
enforceable transnational private law, and a post-colonial category of extraterritorial domestic law.
In the colonial era, colonial powers used a mix of metropole law, law created for colonial territories,
and agreements reached with local leaders to protect the rights and interests of Europeans. Traders
and trading corporations also created their own arrangements with local rulers. Today these
agreements take the form of transnational private law (aka contracting) and extraterritorial domestic
law, which is more subtle than colonial law in that it often looks like domestic law that in certain
limited circumstances applies to actions beyond national borders.40 Extraterritorial domestic law has
grown considerably, especially after 9/11.41 Domestic law with an extraterritorial reach (and its
European Union variant) is how financing of terrorist organizations and money laundering are
tracked around the world, how firms are constrained from busting international sanctioning systems,
and how the monopolistic practices of new technology are curbed.
Table 1 brings together in one place the different binding and enforceable transnational legal
categories discussed thus far. These definitions are invoked as ideal type categories that
intentionally oversimplify and gloss over distinctions within.42 I fully recognize that soft-law is
important, and it will be the main multilateral mode for global financial regulation. But because the
economic rights of global economic actors find so valuable involve binding portable hard law, my
discussion focuses on the binding and enforceable category. The list is surely incomplete, but for
simplicity sake I will stop with this limited set and description.

40
BENJAMIN ALLEN COATES, LEGALIST EMPIRE: INTERNATIONAL LAW AND AMERICAN FOREIGN RELATIONS IN THE
EARLY TWENTIETH CENTURY (2016).
41
Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the Temptations of 9/11, 6 UNIVERSITY
OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW 1001(2004);Kime Lane Sheppele, The empire of security and
the security of empire, 27 TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL 241(2013);Scheppele, LAW IN A
TIME OF EMERGENCY.
42
Ideal types are analytical constructs designed to capture essential elements of a phenomenon. They are not meant to
correspond to all characteristics of a phenomena, nor does the term suggest some normative ideal. For more, see
Richard Swedberg, How to use Max Weber’s ideal type in sociological analysis, 18 JOURNAL OF CLASSICAL
SOCIOLOGY (2018).

21
Table 1: Categories of law with a global reach
Global An encompassing category for all types of binding and enforceable law that influences the
economic law economic decisions and actions of actors outside of the national territory.
International Colonial era (European international law): Law governing relations between civilized
law states and the law of the global commons. Multilateral era: Treaties, customary
international law, general principles of law, and scholarly and judicial elaborations of this
law.
Colonial law Law created by colonial actors in the metropole and the periphery. Sometimes this law
became domestically binding on all inhabitants; sometimes it applied only to settlers or
Western traders; sometimes it was applied and reviewed by metropole courts and
administrators.
Multilateral A subset of international law that is made, enacted, interpreted and debated via multilateral
international agreements and international institutions. This law adheres to general international law
law categories outlined in Article 38 of the ICJ statute and the Vienna Convention of the Law
of Treaties.
Extraterritorial Law made by a domestic Sovereign that can be applied to behaviors, agreements, actions
domestic law and actors outside of national borders. This law is primarily enforced in the parent
system’s courts and state entities, and it is arguably recreating colonial law.
Transnational Contracts that are treated by lawyers and judges as binding across borders. This category
private law includes contracts between private actors and Sovereigns, which in recent times are seen as
(aka private falling outside of the sovereign immunity prerogative. Arbitration is a common form of
contracting) private law dispute settlement.

Whereas lawyers traditionally follow legislative and judicial texts and scholarly idea
streams, and IR scholars follow state decisions, my analysis follows the behaviors and legal
strategies of economic actors across the colonial and multilateral eras. This mode of analysis brings
my discussion of global economic law closer to Mark Mazower’s description of how law operated
in the colonial era; it was made and defined by a variety of actors, including governments,
parliaments, firms, judges, diplomats scholars and legal practitioners. The perspective adds to
TWAIL discussions. Chimni set a TWAIL agenda of studying the global economic space, with its
“appropriate international law and international institutions.”43 In my rendition, this space must

43
B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8 INTERNATIONAL COMMUNITY LAW
REVIEW, 7 (2006). Chimni emphasizes that soft law is an important part of this space, and I agree.

22
include private contracting and domestic law with an extraterritorial reach. The larger point is that
viewing international law in the traditional way–as agreements crafted by and between states–hides
the way that states use a combination of legal forms in their foreign statecraft. It also hinders our
ability to see how global economic law sometimes aids and other times fails to provide national
systems with tools and means to avoid the social, political and ecological destructions that market
incentives can, left to their own devices, generate.
Figure 1 works with Table 1’s categories to map an international regime complex that
defines the legal space that is global economic law and that visually captures how this space
changed in the shift from the colonial to the multilateral era. What matters for figure 1 is how the
circles are positioned. The circles in both eras have international law and domestic law overlapping
not because I am presuming a monist system where international law is supreme to domestic law,
but rather because often domestic law is transferred into international law, or visa versa. My interest
is in global law that shapes transborder economic exchange. Global economic law falls within the
overlap that exists outside of the purely domestic legal space. Domestic law that does not
overlap with the other categories falls outside of the global economic law definition in that it will
only be applicable to and binding within the domestic system (in other words it is not
transnationally portable). Domestic law that reaches beyond these boundaries is either
extraterritorial domestic law or transnational private law that is backed by a domestic and/or
international legal force.

Figure 1: Global law complex in the colonial and multilateral eras

Note: What matters for this figure is the positioning. The relative size is notional; some categories are drawn larger
because modern capitalism is more complex and law-based, so I imagine that laws are more numerous and prevalent.

23
 The imagined IL/IR world has only two circles for both periods: international law and
domestic law. My global economic regime complexes redefine the imagined world by adding
colonial law to the colonial era, and by charting what happened to colonial law in the multilateral
era. An important conceptual point is that transnational private contracting has no autonomous
space since it always exists as part of a domestic, colonial or international legal regime that permits
it. Said differently, transnational private contracts gain their status as law and their enforceability
because of international law, colonial law, or domestic law. These contracts could also lose their
enforceability if they were supplanted by or rendered illegal under domestic and/or international
law. Today the category of private contracting includes but is not limited to international investment
law that exists as transnational contracts backed by networks of bilateral investment agreements,
Sovereign debt contracts that are private-contract based yet often government-backed, and private
agreements designed to either keep or disclose intellectual property secrets.
What we therefore see is that multilateralism transformed only part of the global economic
law regime complex. We see that the sources of global economic law have become more
complicated in the multilateral era, changing in number, in prevalence, in kind, and in territorial
reach. Global economic law may be more complicated because post WWII, the emergence of
sovereignty equality led law to (mostly) replace coercion as a means through which states and firms
extend their reach beyond national borders.44 We can also see that the international law discussed
by IL scholars has always been a subset of global economic law. My larger claim is that global
capitalism operates through the more encompassing complex of binding and enforceable global
economic law.
The question this essay poses is how different are these two eras? One difference is the
category of domestic extraterritorial law. Increasingly the US demands that banks and businesses
conducting transactions involving Americans or with operations in US territory follow US-defined
processes and rules. The growing extraterritorial category reflects the greater interdependence of
countries over time,45 but it is also true that extraterritorial domestic law was less needed during the

44
Anne Orford charts this change as she explores how the idea of ‘free trade’ has been enforced across the colonial and
multilateral eras. ORFORD, Theorizing Free Trade.
45
KAL RAUSTIALA, DOES THE CONSTITUTION FOLLOW THE FLAG: THE EVOLUTION OF TERRITORIALITY IN AMERICAN
LAW (2009);TONYA PUTNAM, COURTS WITHOUT BORDERS: THE POLITICS AND LAW OF U.S. EXTRATERRITORIALITY
(2014).

24
colonial era, since colonial powers instead could use colonial or international law backed by
military power. A second difference is the creation of multilateral international law as a subset of
international law.
To be sure, today’s multilateral Law of the Seas is fundamentally different from the
nineteenth century version.46 But is today’s international investment law all that different? What
figure 1 suggests is that European international law may well have changed fundamentally, and
multilateral international law may generate very different legal and policy results. Yet to the extent
that the categories in figure 1 are shaped by capitalist interests that have remain similar and
politically powerful, elements inherent to global capitalism across time may explain the felt sense
that the more things change, the more they stay the same. The Forward’s conclusion will return to
figure 1 to think about how global economic law interacts with the forces of globalization, which
are law-based insofar as capital and property rights are increasingly encoded into transnationally
portable law.

2. A patchwork history of global capitalism and international law

This section takes the form of a review essay constructed as a patchwork quilt. In political
science, review essays are a handy way to build theory by drawing on the empirical work of others.
The patchwork strategy allows me to integrate work from disciplines and authors who are not in
conversation with each other, connecting different objects of study into a larger whole. Following
the standard review essay format, I focus on newer books and identify the books up front. 47 The

46
Grotius’ vision of open access to the sea was aspirational. Benton’s analysis of colonial practice reveals legal
pluralism, competing legal claims, and violations of Grotian principles. See: Lauren Benton, Legal Spaces of Empire:
Piracy and the Origins of Ocean Regionalism, 47 COMPARATIVE STUDIES IN SOCIETY AND HISTORY 700, 716-19 (2005).
LAUREN A. BENTON & LISA FORD, RAGE FOR ORDER: THE BRITISH EMPIRE AND THE ORIGINS OF INTERNATIONAL LAW,
1800-1850 Chapter 5 (2018). [Hereafter BENTON AND FORD Rage for Order] The modern Law of the Seas, a single
encompassing regime that includes agreed upon territorial limits, an invented category of exclusive economic zones,
rules that guaranteed free access to international straights and the high seas, a set of dispute resolution mechanisms for
conflicts that arise, and institutions to govern issues pertaining to the deep seabed, does operate in practice.
47
Review essays are not book reviews. They do not summarize the book for the reader, nor do they critically engage the
book’s arguments. Review essays are also not literature reviews that synthesize bodies of scholarship on a given
subject. Rather political scientists use review essays to take stock of new scholarship on a topic, to explore new

25
quilt pieces are carefully curated and assembled. I spent five years asking for and following
historian and IL scholar recommendations, reading about different elements of colonial economic
and political systems. The result is an assembly of quilt pieces that are distinct in that each has a
very different object of study (e.g. traders, colonial powers, industries and sectors, institutions, legal
scholars and ideas). The pieces are ordered to advance the time-scope of analysis. Earlier quilt
pieces concentrate on times when empires were barely established and on the emergence of the
European international legal order; later quilt pieces span into the multilateral and globalization
eras. Each quilt piece goes into quite a bit of detail, yet they barely scratch the surface of each topic.
My focus is on the parts of the books that reveal the relationship between capitalism, empire, and
colonial or multilateral era law-making. For the most part, I take the authors at their word. The last
two quilt pieces bring in my research on the post-WWII trade system.
The result is an unusual (and incomplete) history of international legal practice from the 1500s
to the present, one that integrates colonial economic history into international legal history.
Interstate interests are not a central focus of the books I selected, which means that international
security and Sovereign interests fade into the background. What is revealed instead is how global
capitalism was built and structured as an alliance between Western economic free-agents living and
working abroad and their metropole protectors. As a preview, Table 2 identifies the six quilt pieces,
including the time periods,48 the different objects of study, and the ideas and parts of the Forward’s
analysis that each piece develops. The end of this Part recaps what we have learned and brings in
the omitted variable of finance and money.

directions for research, and to develop ideas about under-theorized questions in an explorative way. The new book bias
is because readers will want to learn about recent scholarship and because books published by venerable presses are
presumed to encapsulate and build on earlier scholarship. With the exception of Braudel and Anghie, I follow the new
book strategy. The journal World Politics explains their review essay format here:
https://www.cambridge.org/core/services/aop-file-manager/file/59c24de87e9dd2c3279b0440/WPO-Reviewer-
Guidelines.pdf
48
What matters for my analysis is the empire was either just forming, establishing itself, or in full force. The time
periodization is based on the part of the colonial period the quilt piece examines. Pre-colonial for one empire (e.g. the
United Kingdom) might be late-colonial for another empire (e.g. Spain).

26
Table 2: A quilt that explores the interaction of capitalism and global law-making across time
Time Period Object of Study Ideas developed
1. Pre- Long distance Firm incentives independent from colonialism; early jurisdiction
colonial traders jumping. Capitalist traders flexibly used law to gain or maintain
(1400 on) trading monopolies in pursuit of spectacular profits, employing
jurisdiction jumping and at times making legal claims that went
beyond written law.
2. Early Alliances between Fusion and differences between firm and colonial interests; the
colonial global traders and development of private/commercial law. Colonial law was built by a
(1600 on) colonial powers combination of alliances with corporate interests and the
metropole’s desire to protect nationals, address complaints and
create a semblance of order.
3. Middle and International legal Legal scholars and the end European international law. How
late colonial scholars and European international law evolved as a struggle between European
(1700 on) practitioners powers and peripheral resistance.
4. Early Multilateral actors How multilateralism is different. How the new global policy-
multilateral in the League of making technology of multilateralism created new means and
era Nations openings for states and international officials to develop
(1900 on) international law.
5. Multilateral Legal development The importance of multilateral non-decisions; continuities in post-
era outside of colonial commercial/private international law. Focusing on
(1940 on) multilateralism investment law, we see how colonial era law was maintained by
keeping investment protection largely separate from multilateralism.
6. Into the Post-war ideas Ideas operating through multilateral institutions. The clash between
globalization about international neoliberal and third world ideas about how to use multilateralism to
era law and the global develop global economic law. Multilateralism is a permissive
(1950s on) economy condition; ideas and political realities limit multilateral outcomes.

1. Long distance traders building global capitalism and global law

Braudel, Fernand 1981. Civilization and Capitalism 15th-18th Century Vol II: The Wheels of
Commerce. London: Collins. (The original French version is from 1967)
Beckert, Sven 2014. Empire of Cotton: a Global History. New York: Alfred A. Knopf.
One way to understand the trends and forces in global capitalism is to study global traders.
Studies of long distance traders inevitably lead to the subject of law, because traders end up
appealing to Sovereigns who then provide the protection of law (among other forms of protection);

27
absent the traders, it is hard to imagine that Sovereigns would have created many of the legal
devices that traders came to rely upon. This quilt piece also reveals how traders have long used
jurisdiction jumping to protect their interests.
In the colonial era, Sovereigns provided long-distance traders with legal protection,
extending their Sovereign legal assertions and national law in exchange for luxury goods, a share of
the profits and/or trader promises to extend their Sovereign land claims in “unoccupied” territories.
Of course, these territories were not unoccupied. Rather these were lands without recognized
property titles. The long-distance trading class started off small, and initially European Sovereign
claims were minimal and weak because the claims were unenforceable. But lucrative trade and
trading colonialism often led to settlement and settler colonialism, which then extended Sovereign
claims. The exchanges between Sovereigns and traders created a mutual dependence wherein
Sovereigns had a stake in the success of the global traders. There are many examples where
Sovereigns end up embroiled in the disputes of traders, which led to the sending troops abroad to
defend the rights of traders and European settlers. Meanwhile, both traders and Sovereigns often
dressed up the Sovereign and trader assertions in the form of colonial and international law.
The oldest book in this quilt is by Fernand Braudel, who wrote a three-volume global
history of capitalism that is directly on topic for this analysis. My discussion focuses primarily on
Volume II The Wheels of Commerce.49 Braudel’s method involved examining how European actors
engaged in trade, and the result is a world history that puts Europe at its center. Braudel implies that
the first European traders were basically pursuing arbitrage, buying cheap in producer markets and
selling high in consumer market. The costs and risks of their trips led traders to rely on investors
and contractual agreements that were based in European markets where the traders originated, and
where they would sell high. These traders, investors and the contractual systems that emerged
generated a profit that built rich European city-states, which then become hubs of global capitalism.
The wealth of the hubs fueled the wealth of European Sovereigns, including their ability to invest in
military vessels to protect important sea routes.

49
FERNAND BRAUDEL, CIVILIZATION AND CAPITALISM. 15TH-18TH CENTURY: VOL II: THE WHEELS OF COMMERCE
(Fernand Braudel ed. 1981). [Hereafter Braudel VOL II: THE WHEELS OF COMMERCE, 1981] Braudel is rightly criticized
for largely ignoring what occurred independent of Europe, such as Asian trade and the economic activities of other
empires.

28
 Following European traders led Braudel to investigate the tactics used to maintain their
economic advantage. The success of early traders led to copy-cats. Where possible, local producers
would replicate the foreign goods, which usually meant that foreign goods would become relatively
expensive since local goods did not require transportation or security. For Braudel, the class of
capitalists were the actors who became rich by extracting spectacular profits. Initially these profits
might come from traders profiting from a scarce commodity that was highly valued in Europe.50
Eventually, however, the spectacular profits could only be maintained by manipulating local
markets. Braudel describes how separate legal domains emerged. To earn spectacular profits,
capitalists had to be able to exploit monopoly power, which often required suppressing local
competition by buying up local goods before they were produced, and by hoarding critical goods
like foodstuff. To cover their tracks, traders would hide their actions and ownership across
jurisdictional lines (which at the time meant escaping the jurisdiction of a city-state), making it
difficult for local authorities to see or confront the larger strategy at play.51 Classes of actuarials,
lenders, store houses, extrajurisdictional trading entities etc. were created in and across European
hubs, helping to support foreign trade. Domestic laws regulated the domestic market, providing a
regime of commerce where participants were for the most part bound by the same rules of
exchange. Braudel argues that the “privilege” of capitalism is the ability to choose. Capitalist
players drew on their social standing, their small-world connections, their communication networks
and their access to power to hide their goods and strategies across European city-state jurisdictions,
creating “a series of unwritten rules and personal contacts.”52
Braudel was constructing his own patchwork quilt based on an assemblage of mostly
European insightful examples.53 He compiled historical examples into a long-durée history that
demonstrated his theory that capitalism “developed in a series of stages or leaps – from mercantile
capitalism to industrial capitalism to finance capitalism, with some kind of regular progression from

50
Id. at, 403-6.
51
Braudel is discussing the 15th through 18th centuries, and thus the era of European city-states id. at, 413-6.
52
Id. at, 622.
53
Braudel’s third volume includes brief discussions on what was happening in the Americas, Black Africa, the Turkish
and Russian empires, and the Far East Russia, Turkey and the Far East are discussed as world economies unto
themselves. FERNAND BRAUDEL, THE PERSPECTIVE OF THE WORLD (CIVILZATION AND CAPITALISM 15TH-18TH
CENTURYVOLUME 3) 467-536 (Fernand Braudel ed. 1984).

29
one phase to the next.”54 Braudel’s analysis was a global history only in the sense that Europeans
(and later Americans) were global actors. Each capitalist period he studied had a set of geographical
relationships, a center or a pole that was initially a European city and later a nation-state, and a set
of “successive zones” that were oriented around the European center.55
Whereas Braudel was interested in globetrotting actors and the local enablers operating
primarily in European markets, Sven Beckert’s Empire of Cotton: a Global History traces a single
commodity–cotton–around the world. Cotton is a particular type of commodity. Vast amounts of
land are needed to produce cotton, so the building of an empire of cotton involved territorial
capture. Technological innovations also transformed cotton production, so that the cotton trade
could expand beyond the luxury market. By limiting the focus to a single commodity–cotton–
Beckert can extend Braudel’s story in time and space, developing connections between what was
happening in European textile factories and what was occurring in the lands where Europeans
settled and traded. Beckert argues that “for about 900 years, from 1000 to 1900 CE, cotton was the
world’s most important manufacturing industry.”56 He also explains how a global market for cotton
emerged, with developments in the Americas impacting what happened to the cotton trade in Egypt,
England and India.
Beckert’s story begins before European colonialism, when the world’s best cotton was
produced and finished in India and Egypt, with many smaller markets supplying local demand.
Braudel’s globetrotting traders served as intermediaries for a trade in luxury cottons, and European
cities created their own local markets for cotton and other textiles.57 The slave trade transformed the
global cotton industry. When European producers and settler communities entered the world cotton
market, American slave-based cotton decimated Indian and Egyptian markets. The slave-produced

54
BRAUDEL, Vol II: The Wheels of Commerce 622.
55
FERNAND BRAUDEL, AFTERTHOUGHTS ON MATERIAL CIVILIZATION AND CAPITALISM (1977).
56
SVEN BECKERT, EMPIRE OF COTTON: A GLOBAL HISTORY xiii (2014). [Hereafter BECKERT Empire of Cotton, 2014].
57
Beckert’s story echoes Braudel’s history of early European trade: “Before 1770…European merchants secured the
valuable fiber through well-established trade networks from a wide variety of locations. With the exception of the West
Indies, their influence did not go much beyond the port cities themselves, as they had neither the power to tinker with
how cotton was cultivated in the hinterland nor the inclination to advance capital for additional cotton growing. Cotton
came to them thanks to the prices they were willing to pay, but they had no influence on how cotton came into being.”
Id. at, 41.

30
cheap cotton fueled the prosperity of industrialists engaged in the milling and finishing of cotton-
based products, who were located at first in England and the North of the United States, and later in
Germany and France. Beckert’s global history belies the story I learned in high school about Eli
Whitney’s invention of the cotton gin, and Britain’s creation of industrial looms, a whitewashed
account that puts Western technical ingenuity in the center of the story. Beckert, by contrast, tells of
the building of “war capitalism” underpinned by the
muscle of armed trade…the forging of a military-fiscal state [that] allowed for the projection of
power into far-flung corners of the world; the invention of financial instruments–from marine
insurance to bills of lading…the development of a legal system gave a modicum of security to
global investments; the construction of alliances with distant capitalists and rulers provided access
to local weavers and cotton growers; the expropriation of land and the deportation of Africans
created flourishing plantations. Unbeknownst to contemporaries, these alterations were the first
steps towards the Industrial Revolution.58
The ’war capitalism’ framing puts slavery at the heart of the early Western cotton empire.
Slavery was a business of its own, enabled and protected by global trade law and by local rules that
allowed slaves to exist as exchangeable chattel, including the forceable return of runaway slaves.
Beckert argues that cotton made slavery possible, “since African rulers and merchants almost
always demanded cotton cloth in exchange for slaves.”59 Slavery enabled European territorial grabs,
allowing Europeans to occupy and transform far-flung territories. And long before the invention of
the cotton gin, slavery made European and American cotton far cheaper than Indian and Egyptian
cotton.
Beckert’s account of how “war capitalism” created legal regimes of “insiders” and
“outsiders” is consistent with histories of European international law. As Beckert explains, “The
‘inside’ encompassed the laws, institutions and customs of the mother country, where state-enforced
order ruled. The ‘outside,’ by contrast was characterized by imperial domination, the expropriation
of vast territories, decimation of indigenous peoples, theft of their resources, enslavement, and the
domination of vast tracts of land by private capitalists with little effective oversight by distant

58
Id. at, 30-1.
59
Id. at, 36.

31
European states.”60 War capitalism began as a European creation, yet without the creation of this
“outside” world neither an Empire of Cotton, nor a British or American empire, nor a global cotton
market, could have been built.
Both Braudel and Beckert are most interested in the commercial actors engaged in global
trade, but in focusing on long-distance traders reveals how trade helped build domestic and
international legal infrastructures.61 By connecting the slave trade to the empire of cotton, Beckert’s
story reveals how the legal regime supporting the slave trade internationally and domestically was
intrinsically linked to the settler colonialism associated with European imperialism. A focus on
cotton reveals that settler colonists also contributed to deindustrializing the locations where cotton
was produced, occupying territories and determining what types of production would be allowed in
the occupied territory. In today’s terminology, during the colonial and slave period, cotton growers
were limited to the less lucrative parts of the global supply chain.62
The tremendous success of Britain’s cotton empire spurred emulation. Beckert argues that
Japan,63 Russia,64 France,65 and even Americans66 also sought to build their own empires of cotton.
“Colonial cotton symbolized the new symbiosis of a powerful nation-state with powerful national
industries. This symbiosis in fact characterized a new form of global capitalism centered on the
strengthening of national capital in rival capitalist nations.”67 This international competition kept
governments involved in developing and bolstering their foreign entanglements. But as empires lost
their territorial grip, the production model of centering the most profitable parts of the supply chain
in Europe was no longer sustainable. Locating mills and factories in the emerging Global South was

60
Id. at, 38.
61
Because they are not centrally interested in law, the agreements between traders and Sovereigns, and the colonial and
international legal rules that Sovereigns created at the behest of capitalists and in order to protect their own enmeshed
interests garner only brief references and comments. The next quilt piece will help remedy this limitation.
62
BECKERT, Empire of cotton Chapter 11.
63
Id. at, 342-4.
64
Id. at, 345-7.
65
Id. at, 349.
66
Id. at, 354.
67
Id. at, 357.

32
more profitable, at which point Europe and the United States turned towards protectionism to keep
their diminished domestic textile industries afloat.68
This piece and the next reveal that the interests of traders were prior to and independent
from the interests of colonial powers. The economic success of global traders spurred emulation
within European markets (in the form of local producers creating an import substitution strategy)
and internationally (in the form of other imperial powers trying to create their own empires of
cotton). When local competition emerged, traders turned to powerful Sovereigns for help, and
where that strategy was unsatisfactory they jumped jurisdictions to find a more hospitable
environment for their economic activities. The capitalist-friendly local and transnational legal
infrastructures traders built became a wake that remained as the global traders moved their
operations across jurisdictional borders. This quilt piece also included Sovereign delegations of
legal power. If the Sovereign defines a human being as chattel, authorizes slave owners to purchase,
own and trade slaves, and authorizes Masters to enforce their ownership rights with whips, guns and
private enforcement, and lets these rights and actions be defensible in colonial and metropole
courts, then the Sovereign has created the system of private law-making, ownership and
enforcement. These delegations are defined by the Sovereign, and they can be (and were) rescinded
by the Sovereign.

2. Colonial powers building global capitalism and global law

Stern, Philip J. 2011. The Company-State: Corporate Sovereignty and the Early Modern
Foundation of the British Empire in India. New York: Oxford University Press.
Benton, Lauren A. and Lisa Ford 2018. Rage for Order: the British Empire and the Origins of
International Law, 1800-1850. Cambridge, Massachusetts: Harvard University Press.
This quilt piece explores the symbiotic yet contrasting interests of firms and colonial
powers. Global firms depend on legal rights backed by metropole Sovereigns, yet they also resist
Sovereign efforts to reign them in. Meanwhile metropole actors are repeatedly confronted with
global traders demands for protection alongside complaints about abuses committed abroad. The
mutual dependence of traders and metropole actors creates a shared yet difficult ‘insider’ interest,
and this shared interests translates to the construction of ‘outsiders’ as both traders and Sovereigns

68
Id. at, 391-401.

33
grapple with the challenge of controlling and curtailing what imperial subjects do abroad. From
these tensions comes the European understanding that international and Imperial law applies only to
“civilized” actors.
Phillip Stern’s book The Company State: Corporate Sovereignty and the Early Modern
Foundation of the British Empire in India examines the relationship between the East India Trading
Company (EITC) and the British and East Asian state jurisdictions in which it operated during the
period before the Battle of Plassey (1757).69 The EITC was from its inception in 1600 a
significantly more institutionalized corporate version of Braudel’s globetrotting traders. Since its
legal rights and claims came from multiple jurisdictions, the EITC existed both inside and outside
of the British Empire.70 My focus will be on how the British state joined forces and assented to
EITC legal claims. The EITC was unusually successful and its operations covered a vast territory,
but the charter rights granted by the Crown to the EITC were not unique. 71
In this pre-Plassey period, the EITC defended itself as a corporation, not a state. Operating in many
localities, Stern finds numerous different arrangements, and a flexible willingness to invoke
whatever legal perspective would be useful to protect a legal claim. The EITC sought formal
agreements; it solicited reputable legal opinions and asserted its claims in legal and ethical terms;
and it defended its legal prerogatives in courts abroad and in metropoles. These practices helped

69
This battle is a defining line the history of East India Trading Company, and in Bengali history, because after the
battle the British government turned the keys to the castle over to the EITC. By focusing on the time before the Battle of
Plassey, Stern can examine the developing of ideas and understandings that led to the EITC seeing itself in state-like
terms, as an administrative and governing authority for the territorial spaces in which it operated.
70
PHILIP J. STERN, THE COMPANY-STATE: CORPORATE SOVEREIGNTY AND THE EARLY MODERN FOUNDATION OF THE
BRITISH EMPIRE IN INDIA 41-2, 185-6 (2011). [Hereafter STERN, The Company State, 2011] I am most interested in the
intersection of the EITC and the United Kingdom, but Stern notes that the EITC maintained a critical bureaucratic
structure abroad, depending on local financial practices and incorporating legal and administrative notions from the East
Indian territories in which it operated. See: Philip J. Stern, History and Historiography of the English East India
Company: Past, Present, and Future, 7 HISTORY COMPASS 1146, 1157 (2009).
71
Muldoon describes English charters given to various traders, beginning in 1498. These charters also conferred
monopoly and local governance rights. See James Muldoon, Grotius and English Charters, 37 GROTIANA (1980)
16(2016). Barreto describes the Dutch East India Trading Company (VOC) in terms very similar to Stern. See JOSÉ-
MANUEL BARRETO, CERBERUS: RETHINKING GROTIUS AND THE WESTPHALIAN SYSTEM 166-9 (Martti Koskenniemi, et
al. eds. International law and empire: historical explorations. 2017). [Hereafter BARRETO, Rethinking Grotius and the
Westphalian System].

34
instantiate European international law. The legal and ethical arguments of the EITC also contributed
to the white-man burden’s narrative of how liberal capitalists were improving the world.72
The EITC sought and obtained from the British Crown and from local rulers’ monopoly and
protection rights over shipping lanes, British trade in East Asia, and settlements that included all
inhabitants. It made arrangements to police the behavior of ‘pirates,’ defined as any actor that
interfered with trade in the Mughal Indian Ocean,73 and ‘interlopers’ defined first as British
nationals infringing upon the EITC’s monopoly over trade in East Asia, and later as ‘upstart rivals’
from elsewhere.74 Stern notes how the EITC particularly valued farman rights, a concept that it took
from its agreements with the Mughal empire. EITC officials saw farman rights as akin to a patent or
a charter that provided “certain protections and exemptions from legal and financial obligations and
impositions, such as customs duties or restrictions on the movement of people and goods.”75 In
modern terms, the farman rights Stern describes are akin to the special exceptions foreign investors
claim.
Given the vastness of the EITC’s jurisdictional claims, Stern suggests that the company
operated as a state, and that its legal claims and actions created examples that others then followed.
When convenient, EITC lawyers would defend the EITC as a mere corporation, but at different
times and in different places the company “did what early modern governments did; erect and
administer law; collect taxes; provide protection; inflict punishment; perform stateliness; regulate
economic, religious and civil life; conduct diplomacy and wage war; make claims to jurisdiction
over land and sea; cultivate authority over and obedience from those people subject to its
command.”76 The company state thus prefigured the colonial state, and after the Battle of Plassey
the company state was the colonial state in parts of South-East Asia.

72
STERN, The company-state chapter 4.
73
Id. at, 43-4.
74
Id. at, 44-5.
75
Stern is most interested in how the EITC understood and articulated its rights. He specifically notes that the EITC
translated farman rights in ways that fit its goals. In other words, Stern discussion may not be what farman rights
actually entailed in the Mughal empire id. at, 13.
76
Id. at, 5-6. The Dutch version of the EITC had similarly expansive powers, serving as a diplomatic embodiment of its
home government. See BARRETO, Rethinking Grotius and the Westphalian System 166.

35
 The EITC could be expansive and audacious in its claims because in the seventeenth
century, European ideas of sovereignty and the state were nascent, and the relevant domestic and
international legal rules were either non-existent or in flux. The Company’s strategy was to act as if
it had certain legal rights. Through aggressive claims and political coaxing, the Company became
unique among English corporations in possessing the rights to all the English trade, traffic and
passages by sea across a huge geography. The legal rights that the Company claimed and collected
were not necessarily recognized everywhere, which is to say that they were neither transnational nor
international legal rights. The Company was flexible. It would use English charters to supplement
rights it could not obtain in India, and Mughal rights to evade British legal claims. Yet by collecting
various legal rights that were vested around the world, it became more difficult for the British to
withdraw the EITC Charter or to curtail company power. Stern’s book discusses Parliamentary
efforts to rescind the EITC Charter, to create competitors, and to undermine Company power,
which the EITC repeatedly countered.77 We can thus see the EITC as a precursor to a global firm
that is beyond the legal control of any one jurisdiction.
Stern also documents how the Company was flexible, making at times contradictory
arguments as it defended its legal claims in metropole courts and invoking xenophobic European
sentiments. As mentioned, the EITC considered any actor entering into its monopoly terrain as
either a pirate or an interloper. Stern discusses the East India Company v. Sandys legal suit of 1683-
4 where the EITC made a number of audacious claims in its efforts to block a British vessel Sandys
from voyaging to India with the goal of engaging in trade. The EITC did not contest that Sandys
owner’s argument that under British law, monopolies were illegal. Instead, its lawyers argued that
the EITC had an exclusive charter from the Crown because of the particular needs of Christian
actors to enter peace arrangements in the dangerous lands of non-Christians. The EITC lawyers
based their claim not just in the common law, and as “the chief justice acknowledge in his
decisions, [the judge had to] take into account of ‘such other Laws also to be common to other
Nations as well as ours…namely the General Law of Nations, the Law-Merchant, the Imperial or
Civil law.’”78 The company went so far as to suggest that to compromise the EITC’s exclusive legal

77
STERN, The company-state 24-5, see also the discussion of the Crown authorized sedition of Company authority at
63-9.
78
Id. at, 53.

36
rights could jeopardize everything–treaties, complex agreements, and Christianity itself.79 Whether
these legal claims were winning arguments does not matter, as Stern is primarily interested in the
EITC’s vision of itself portrayed in the case (which it eventually won). The British judge rejected
the notion that the EITC’s rights came from anything other than a charter granted by the King. But
the Crown could grant the EITC exclusive rights to stop interlopers, because the Crown had the
prerogative to make or void charters and treaties at will.80 The Company took comfort in the
Crown’s willingness to uphold its exclusive right to bar interlopers. But for Stern the Sandys case is
mostly interesting for the arguments that were made in this case and in others. Stern demonstrates
how the Company made a variety of claims, inconsistently asserted across legal cases and contexts,
and echoed elsewhere by Portuguese and Dutch trading companies.
Lauren Benton and Lisa Ford’s book Rage for Order: the British Empire and the Origins of
International Law, 1800-1850 is more explicitly a pre-history of European international law. In
their telling, “the history of law in the empire…is less about legislation than about legal strategy.”81
Benton and Ford are focused on a later period of time, the British empire between 1800-1850,
which was before Britain actively tried to fashion global solutions that might apply more broadly
across the British empire. Rather than the traditional legal strategy of examining legislative acts,
written treaties and international law tomes, Benton and Ford study the decisions and policies
created by “middle power,” essentially by the mid-level bureaucrats that were charged with dealing
with problems arising in British occupied lands. What was happening is that local magistrates were
attempting to deal with the problems that arose between European settlers and local judges and
rulers. The complaints generated ad hoc solutions that were incoherent, or they generated
complaints that were registered in the metropole. British bureaucrats then tried to create policies
that would “protect.” Ostensibly the solutions on offer were designed to protect both sides–settlers
and the local officials who were subject to settler complaints. Unsurprisingly, it was the Europeans
who ended up more protected.

79
Philip J. Stern, “A Politie of Civill & Military Power”: Political Thought and the Late Seventeenth-Century
Foundations of the East India Company-State, 47 JOURNAL OF BRITISH STUDIES 253, 270-1 (2008).
80
STERN, The company-state 58. Later Stern will discuss Parliamentarian efforts to break the EITC’s monopoly rights,
including a new case adjudicated by a Parliamentary Committee where the outcome was to open Asian seas to all
English subjects. Id. at, 154.
81
BENTON & FORD, Rage for order.

37
 Benton and Ford see the practices and solutions they study as filling a gap, and thus as a
‘stand in’ colonial law that bridged domestic and international law.82 The authors extend their
insights into familiar territories of international law, such as rules governing the oceans and the
slave trade. They repeatedly draw connections to the writings of IL scholars of the time. For
example, they argue that the desire and justification of protection was echoed in the writings of
Francisco de Vitoria and Emer Vattel who argued for “protection rights to travel and trade” as a
natural law right that “provided a rational for Spanish conquest and colonization of the New
World.”83 The messiness of the process, and the variability of the solutions led colonial historians to
see this time period as one of great disorder. Benton and Ford, however, see the common thread of
trying to create coherence and order as creating a de facto order, even if this order was never named
or legislatively recognized, and even if this order was pluralistic in nature. Their larger argument is
that the British rage for order, created by mid level bureaucrats, built a law of empire that was a de
facto ‘vernacular constitution,’ meaning a set of practices that were not necessarily articulated in
legalized terms or legislatively endorsed, yet which eventually migrated into European international
law.84 The fourth quilt piece will feature a similar story, with ‘mid level’ League of Nations
officials trying to create order in the Mandate territories through textualism and efforts to create
generally applicable principles, which also migrated into international law.
If we fast forward to the multilateral era, we can see additional connections between Benton
and Ford’s account and international law today. According to Benton and Ford, the result of the
middle level interventions was a practice wherein domestic leaders could create their own laws and
legal practices, but these laws only applied to local/indigenous citizens. Foreigners– European
traders, settlers and missionaries–were governed by separate laws that replicated the rights found in
the metropole. The language of different laws for ‘civilized’ and ‘uncivilized’ peoples came from
these practices,85 as did the idea that Europeans abroad should be governed by separate and more
favorable legal protections. The fifth quilt piece, focused on contemporary international investment
law, will expand on this story.

82
Id. at, 188-9.
83
Id. at, 87.
84
Id. at, 19.
85
Id. at. 19.

38
 Both The company state and Rage for order find coherence in what others have heretofore
seen as incoherence. For Stern, the EITC’s grandiose sense of self, its ethical code of avoiding
becoming despicable, and its chutzpah in suggesting that a legal right obtained one jurisdiction
applied more generally, is a coherence that overrides the reality that the EITC was willing to invoke
contradictory legal justifications across time and space. For Benton and Ford, the rage for order, the
role of mid-level bureaucrats in trying to create a semblance of coherence, and the idea of a need to
protect overrides the reality that the particulars of protection necessarily looked different in
different parts of the British empire. In other words, the world of practice was a lot messier than
contemporaneously written IL tomes acknowledged.
This quilt piece demonstrates two features of colonial international legal practice that carry
forward in time. First, colonial legal practices were necessarily pluralistic, because legal claims had
to be adjusted to fit the preferences of local leaders and judges. This same dynamic underpin’s
Lauri Mäliksoo finding that Russian legal scholars have a distinct way of understanding
international law. When Anthea Roberts finds that there are today multiple understandings and
teachings of international law, 86 she is identifying a reality that colonial era legal practitioners also
grappled with. Second, firms opportunistically draw from the grab bag of law, legal forms, and
precedents. This flexible approach is countered by judges and civil servants who sought to create a
legal and policy coherence, and by scholars who also solidify the coherence of governments and
judges. This stability and coherence may be a scholarly and governance preference, but firms and
local actors have never been particularly interested in whether or not legal rules or governance
practices are consistent across time and vast territories. Said differently, today it is common to think
of firms desiring legal certainty to help them plan, but historically and today the greater priority is
to protect vested legal rights.

3. International lawyers building global capitalism and global law

Anghie, Antony 2005. Imperialism, Sovereignty, and the Making of International Law. Cambridge,
United Kingdom: Cambridge University Press.

86
ANTHEA ROBERTS, IS INTERNATIONAL LAW INTERNATIONAL? (2017). LAURI MÄLKSOO, RUSSIAN APPROACHES TO
INTERNATIONAL LAW (2015).

39
Becker Lorca, Arnulf 2014. Mestizo International Law: A Global Intellectual History 1842-1933.
Cambridge, United Kingdom: Cambridge University Press.
There are countless intellectual histories of international law that use the writings and
arguments of European legal scholars, practitioners and judges to explicate the lineage of
international legal ideas.87 I build a new quilt piece from Antony Anghie and Becker Lorca’s books
because both are focused on how encounters with non-European outsiders shaped the development
of international law. The two books demonstrate how legal ideas that would become constitutional
elements of a multilateral order (e.g self-determination, sovereign equality and sovereignty)
percolated in the periphery in response to European colonial rule. My discussion focuses on the
colonial era and the transition away from European international law.
Antony Anghie’s Imperialism, Sovereignty and the Making of International Law puts
imperialism and the denial of third world sovereignty at the center of his discussion of the history
international law. He grounds his study in the pre-legal positivist period, examining the thinking of
Francisco de Vitoria, a 16th Spanish theologian and jurist who first applied what Anghie calls the
‘dynamic of difference’ to justify Spain's war against native Americans.88 In de Victoria’s time,
international law shifted from claims based in Christian law to a natural law justification of
international law. Di Vitoria was anticlerical. He categorically rejected that Christians owned all the
land, and that the Pope was somehow a natural ruler of conquered lands. Many IL scholars have
lauded di Victoria as a protector of indigenous peoples and an early articulator of an international
human rights law because di Victoria insisted that Indians were sovereign people, with their own
reasoning, traditions and values. Yet Anghie argues that the stated equality was an illusion. Indians
were formally treated as equals with reciprocal rights at the same time that a natural law form of

87
Most of these accounts are Eurocentric, focused on the writings of European scholars and thereby implicitly
accepting that European legal scholars could divine and define what international law was. See: Martti Koskenniemi,
Histories of International Law: Dealing with Eurocentrism, 19 RECHTSGESCHICHTE 152(2011). Martti Koskenniemi,
Histories of international law: significance and problems for a critical view, 27 TEMPLE INTERNATIONAL AND
COMPARATIVE LAW JOURNAL (2013).
88
The dynamic of difference is defined at ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY, AND THE MAKING OF
INTERNATIONAL LAW 3-4 (2005). [Hereafter ANGHIE, Imperialism, sovereignty and the making of international law]. A
number of scholars have expanded on this insight. See: PITTS, Boundaries of the international;SUNDHYA PAHUJA,
DECOLONIZING INTERNATIONAL LAW: DEVELOPMENT, ECONOMIC GROWTH AND THE POLITICS OF UNIVERSALITY
(2011). [Hereafter SUNDHYA Decolonizing International law].

40
international law was invoked to deny the locals a sovereign right to exclude or impinge on the
Spaniards international legal right to travel and sojourn in their lands.89 The international law rights
di Vitoria asserted meant that indigenous peoples had to act in the way that Spaniards expected
them to act, inviting economic exchange and–in essence– welcoming invaders. When Indians did
not act as a sovereign nation must, it was an act of war. So ironically de Victoria’s doctrine ended
up justifying war, occupation and enslavement of the Indians. Others then built on di Vitoria’s
ideas. As international law developed into a natural law that justified war, it came be understood
that only Christians could wage a just war. Any other form of resistance to the terms of colonial
exchanges was inherently unjust.
Anghie suggests that the problem di Victoria encounters is structural; if sovereign rights are
grounded in international law, and restrictions on these rights are also grounded in international law,
then the expectation is that countries will do as an externally imposed international law requires.
This inherent contradiction carries forward across time, with new justifications for why certain
actors lose or do not have certain sovereign rights. Next Anghie discusses the legal positivists who
distanced themselves from natural law arguments, seeking to base international law in state-made
law. Positivist law became “scientific,” asserting universal maxims grounded in legislative and state
acts that were then developed by scholars through scientific rigor and logic. Yet the same ideas of
cultural difference leading to the creation followed by the denial of sovereign rights reappeared as
international law was cast in secular and universalistic terms. Anghie argues that because of
colonialism, the positivist universal claims of international lawyers had to be constantly adjusted to
allow European powers to deal with “exasperatingly troublesome” colonial problems.90 Here we see
Angie and Benton and Ford agreeing: from the practical need to deal with the demands of local
rulers and the situations of conflicts between colonial settlers and local peoples came the idea that
European international law applied only to “civilized” peoples.
Anghie is providing an intellectual history and later he discusses the League of Nations and
multilateral rules governing post-colonial states, arguing that the structural dynamic of difference

89
ANGHIE, Imperialism, sovereignty and the making of international law 12.
90
Id. at, 34.

41
repeats itself across new issues and across time.91 While not particularly interested in international
economic law per se, we can see the connection between Anghie’s argument and international
economic law in Stern’s analysis of the EITC’s legal assertions. The EITC created the stuff of
positivist international law–charters, legal rulings, treaties, grants from Kings, and legislative
endorsements– to further its economic interests, and EITC lawyers drew on the arguments of
positivist legal scholars to justify special legal rights at home and abroad. One can therefore see a
symbiotic relationship between Anghie’s actors, the capitalist actions and claims of global firms,
the needs and claims of colonial rulers, and the legal ideas of positivist scholars.92
Arnulf Becker Lorca’s Mestizo International Law: A Global Intellectual History 1842-1933
is most interested in how the conception that international law applied only to civilized nations
transformed into the modern conception that presumes sovereign equality.93 Whereas most
international lawyers, including the early parts of Anghie’s book, prioritize the legal conversations
of Europeans, Becker Lorca sees himself as documenting the emergence of a truly international
legal field of scholarship and practice. To be sure, Becker Lorca also spends a significant amount of
his book discussing scholarly and practitioner conversations that take place in Europe–in the Hague,
Geneva, at European universities where scholars from around the world convene to study and
debate international law, and in the pages of European journals. Yet Becker Lorca also follows the
non-Europeans back to their home terrain, where they debate international law amongst themselves
and advise their governments on how to push back on European incursions using the language of
international law.

91
Anghie sees discussions about good governance, human rights, and conversations related to the war on terrorism as
repeating practices from the Mandate System, facilitating Western powers’ use of international law to restrain the
sovereign rights of third world states. Id. at, chapters 5 and 6.
92
See also BARRETO, Rethinking Grotius and the Westphalian System. B.S. Chimni ‘third world perspective’ makes an
even broader claim suggesting that colonial-era practices continue via the category of customary international law
(CIL), where Western legal practices are still privileged over third-world country practices. Delving into the forms of
evidence that legal scholars and judges use in demonstrating the existence of CIL, Chimni documents the colonial
origins of CIL. The fifth quilt piece on investment law will pick up this point. B.S. Chimni, Customary International
Law: A Third World Perspective, 112 AMERICAN JOURNAL OF INTERNATIONAL LAW 1, 1, 14-20 (2018). [Herafter
Chimni, Customary International Law].
93
ARNULF BECKER LORCA, MESTIZO INTERNATIONAL LAW : A GLOBAL INTELLECTUAL HISTORY 1842-1933 (2014).
[Hereafter BECKER LORCA, Mestizo International Law, 2014].

42
 As Becker Lorca readily observes and documents, international law’s history never resided
exclusively in the land of ideas and formal texts. Rather the meanings associated with international
law were developed through diplomatic conversations. Becker Lorca’s analysis zeros in on the
fertile period of 1842-1933. The earlier part of his time window analyzes non-European scholars
trying to influence the development of international law inside of Europe, through direct
participation in IL debates. These lawyers would then travel home, where they would try to fit their
legal arguments into the categories that Europeans recognized. Non-European leaders, influenced
by their local international law experts, insisted that they were civilized countries entitled to the
legal privileges of sovereignty accorded under European international law. Europeans, however,
repeatedly refused to accord non-European countries the same rights.
The breaking point for non-European countries came at different times, and for different
reasons. Becker Lorca describes the East-Asian breaking point as the moment when the Japanese
were not accorded imperial prerogatives in Korea and China at the exact same time that Italy’s
imperial claims in Ethiopia were begrudgingly tolerated.94 The Latin America turning point was the
“unprecedented opposition” to European countries’ blockade of Venezuela’s port in 1902.95 Great
Britain, Germany and Italy used force to extract repayment of foreign debt and damages European
citizens suffered during Venezuela’s civil war, relying on international law to support this action.
European powers won the political fight, but within Latin America the counterargument became
known as the “Drago Doctrine” (expounded by Luis Drago, the Secretary of Foreign Affairs for
Argentina). The “Drago Doctrine” offered a different vision of an international law where
Venezuela had the sovereign right to determine the terms upon which debts were owed and repaid.
Becker Lorca notes that the Drago Doctrine did not prevail; it was “not well received by Western
legal scholars and diplomats….neither at the Pan-American Conference nor at the Hague did Drago
manage to convert his doctrine into treaty law.”96 This observation is revealing in that it shows that
for Becker Lorca, doctrine becomes international law once states assent.
The resistance stories matter insofar as failed efforts to push back against European
international law provide the groundwork for ideas to evolve. Becker Lorca sees the Venezuela

94
Id. at, 169-70.
95
Id. at, 152.
96
Id. at, 157.

43
blockade as a critical moment that revealed to Latin American leaders the importance of sovereign
equality, and it redoubled American support for the Monroe Doctrine. The pinnacle moment of
Becker Lorca’s story is the 1933 Montevideo Convention on the Rights and Duties of States.
Ratified by 16 countries–the majority of countries in the Americas– the Montevideo convention
established a sovereign right of states that existed independent of the recognition of European
powers. The next quilt piece will document a similar development, where the League of Nations
recognized the sovereignty of Iraq. The sovereign rights of states would reappear as a core feature
of the United Nations.
Examining international law from the vantage point of weaker powers, both Anghie and
Becker Lorca reveal the normative fragility of European legal claims in the early twentieth century.
As long as Europeans had guns and political power, their legal claims held. But lawyers in the
periphery were learning the art of arguing their claims in international legal terms, and they were
developing doctrines that would better protect them against European legal encroachments. Both
Becker Lorca and Anghie identify sovereign equality, and with it the right of self-determination, as
the overriding goal of peripheral states. The next quilt piece will help explain how these claims
were won. Yet the larger point of both books is that in the shadow of contradictions and problematic
assertions within European law grew a set of alternative international legal arguments that were
waiting for an opportunity to emerge.
The rising power of the United States would create this opportunity. The US supported
greater rights for colonized peoples, albeit with uneven enthusiasm and little follow-through. The
United States was also more open to the idea of sovereign equality, and it was ready to create its
own set of relationships in Latin America and East Asia. The Atlantic Charter embodied the new
hope of American foreign policy leaders in the 1940s and 50s, an aspiration that was not necessarily
shared by American economic and Southern interests, or the US Congressmen who catered to these
interests.97 As often happens when power mixes with interest, the US stated its ideals while
repeatedly bending international law to promote US priorities and interests.98

97
The Atlantic Charter is cited in Note 1. C. Donald Johnson history of US Trade Policy describes the very different
international attitudes of US industries and their congressional protectors. DON JOHNSON, THE WEALTH OF A NATION: A
HISTORY OF TRADE POLITICS IN AMERICA Part II (2018)..
98
According to Benjamin Coates, international always gets infused with the interests of great powers who have a
disproportionate influence on international law-making, and who unavoidably mediate ascending and descending

44
 This quilt piece was about the colonial era, where European countries developed an
international law that justified colonial practices and ‘uncivilized’ countries pushed back with force
and legal arguments. The pushback succeeded insofar as weaker countries gained a legal sovereign
equality. The sixth quilt piece examines another story of developing countries trying to
fundamentally redefine the terms of international law with less success. One might explain the
different outcomes in terms of changing US support for developing country perspectives, but my
argument will be about economic constraints created by global capitalism.

4. International institutions building public international law

Pedersen, Susan 2015. The Guardians: the League of Nations and the Crisis of Empire, Oxford
United Kingdom: Oxford University Press.
Fakhri, Michael 2014. Sugar and the Making of International Trade Law, Cambridge: United
Kingdom: Cambridge University Press.
This quilt piece examines how multilateral institutions started to shift international
legal politics, facilitating the transition away from an international system dominated by empire.
Both books are about League of Nations, the first global attempt to create a permanent international
multilateralism. Founded in 1920, it included an Assembly of States, a Secretariat, and the first
standing international court, the Permanent International Court of Justice. US President Woodrow
Wilson helped to establish the League, but he could not convince the US Congress to join. None of
the League members were deeply committed to League principles and ideas, so focusing on the
League reveals how the institutional forum of multilateralism in itself changed international legal
practice.
Common knowledge dictates that the League of Nations was a complete failure, in large part
because its principles and negotiations looked like a farce during the lead-up to WWII. Recent
scholarship is finding success within the League’s failures. Two of the League’s most spectacular
failures were the Kellogg-Briand Pact and the Mandate System. Not only did the Kellogg-Briand
Pact not end inter-state war, its signatory members were most responsible for WWII. The Pact

international legal arguments. See: COATES, International law and American foreign relations in the early twentieth
century 7. See also Anne-Marie Burley, Regulating the World: Multilateralism, International Law, and the Projection
of the New Deal Regulatory State, in MULTILATERALISM MATTERS (John Ruggie ed. 1993).

45
failed, but new scholarship suggests that the legal principles undergirding the Kellogg Briand Pact
fed directly into UN prohibitions on the use of force.99 Susan Pedersen’s book The Guardians: The
League of Nations and the Crisis of Empire, examines the second major League failure, the
Mandate System, which promised but did not deliver responsible international management of
territories released from German and Turkish colonial control after World War I. Michael Fahkri’s
Sugar and the Making of International Trade Law examines the sugar commodity agreement
created before, during and after the League of Nations. The two books together help us see how
multilateralism shifted the negotiating ground and created a global legitimation politics oriented
around multilateral principles. Peterson’s book further demonstrates the bare-knuckle nature of
multilateral politics and how colonial ‘facts on the ground’ interacted with multilateral politics.
The title The Guardians is a double entendre that represents both the promise the League
made to the Mandate territories, and the efforts of the League’s Permanent Mandate Commission
(PMC) as it oversaw the many concerns and crises in the League’s Mandate system. The League
came from Woodrow Wilson’s commitment to a system in which the needs of colonial people were
taken into account. Wilson’s vision was further elaborated by William Rappard, a League official
and a lawyer, who argued for a maximalist understanding of the League Covenant to advise the
Council on “all matters” relating to the fulfillment of the Mandates.100 Pedersen admits up front that
the colonists intended the Mandates to provide cover for their colonial system of management. Part
I of The Guardians documents this intent. She notes that Rappard “was ‘no anti-imperialist. Few
Western liberals, in 1921, were. He did not think the occupied areas ready for self-government; the
language of civilizational stages, of ‘backward’ peoples and Western guidance, fell easily from his
lips.” But he was an internationalist and an institutionalist, committed to the League’s formal
mandate and international governance. Importantly, Rappard recognized that textual and principled

99
Oona Hathaway and Scott Shapiro’s new book The Internationalists iconoclastically claim that the origins of the UN
approach to banning inter-state war was rooted in the League of Nation’s Kellogg Briand Pact. Their explanation of
how the Pact’s principles reappeared in the UN System focuses on the international legal field, the subject of the
previous quilt piece. OONA ANNE HATHAWAY & SCOTT SHAPIRO, THE INTERNATIONALISTS AND THEIR PLAN TO OUTLAW
WAR (2017). I discuss their book, and critiques of it, in: Karen J. Alter, The Empire of International Law?, 113
AMERICAN JOURNAL OF INTERNATIONAL LAW (2019).
100
SUSAN PEDERSEN, THE GUARDIANS: THE LEAGUE OF NATIONS AND THE CRISIS OF EMPIRE 3-4 (2015). [Hereafter
PEDERSEN, The Guardians]

46
analysis were discursive political resources he could use to protect the League and to help realize its
mandate.101
The original PMC was created as an “imperialists’ club,”102 but fairly quickly the
metropoles of colonial power lost interest, so that a bunch of practitioners who believed in
enlightened colonialism ended up managing the Mandates system through the PMC. Interacting
conversations in Geneva with accounts of what was happening in the Mandates, Pedersen reveals
how multilateral politics worked. The actual administration of the Mandates took place in distant
lands, so that “[n]ot administration but rather the work of legitimation moved to Geneva, as
imperial powers strove to defend–and others to challenge– their authority.”103 The Guardians
focuses on these legitimation politics. The first part of The Guardians discusses the challenge of
staffing the Mandate Commission and of adding definition to the Mandate system’s ideals.
Pedersen credits League officials with developing a “Geneva spirit” of commitment to League
principles, and she finds success insofar as the League’s bootstrapping leaders managed to seed the
PMC with some of the most progressive colonial officials from League member states. League
member states went along, but not because they were enlightened supporters. According to
Pedersen, the United Kingdom (UK) supported the appointment of progressives as a way to satisfy
British civil society, which was clamoring for an end to British support for slavery, and which
sought a more benign form of empire. UK officials also hoped to outmaneuver France, creating
Mandate definitions that were closer to British liking.104
Colonial empires ended for their own reasons. But according to Pedersen, despite the
intentions of French, British and Belgian overlords, the conversations within the PMC steered
international law to the point of recognizing an international legal right to self determination. By
admitting the constant failings and racism within the Mandate system, Pedersen creates space for us
to see what the system did accomplish. The first crisis the PMC had to confront was a British-
French disagreement over Middle Eastern Mandates (Group A Mandates), negotiated while the
Ottomans maintained political control in the region and the PMC was barely operational. France
and the UK worked out the Sykes-Picot agreement, using Mandate principles as a justificatory

101
Id. at, 3.
102
“Of the nine members, five were recently retired colonial governors, ministers or high officials” id. at, 61.
103
Id. at, 5.
104
Id. at, 24-5.

47
guide.105 From this experience colonial officials learned that the PMC would accept arrangements
that colonial states worked out amongst themselves, if these arrangements were backed up by “facts
on the ground.”106 This strategy of striking bargains and creating facts on the ground became the
template that colonial powers used going forward.
PMC officials then tried to address a number of logistical challenges and questions, all while
dealing with a series of crises. The key PMC strategy was to rely on textualism, literal readings of
League documents. In this way, the Mandate Covenant “became the language politics was forced to
speak.”107 For example, PMC officials had to figure out if citizens in the Mandate regions were
nationals of the administrator’s empire or “protected peoples” of a rather toothless League system,
and if colonial administrators could create favorable resource contracts that would bind Mandate
territories in perpetuity.108 In each of these conversations, colonial administrators sought to recreate
the institutions of their own empires including forced labor for the building of large-scale
infrastructure projects, while Mandate officials tried to realize the white man’s burden of preparing
Mandate countries for the moment when they could become independent nation-states. As if these
challenges were not enough, Zionist actors actively and successfully lobbied the PMC to secure
their objectives in Palestine,109 and the International Labor Organization (ILO) was pressuring the
PMC to end forced labor in Mandate territories.110 Diverse interests and actors congregated, and
Geneva became a site of international contestation among non-governmental actors, international
officials, and national representatives, with participants using the language of League norms and
principles to advance their agendas.
Pederson’s account is at times thrilling and depressing given the bad behaviors and atrocities
she documents. She shows how step-by-step political maneuvering to obtain short term objectives
led colonial powers to make concessions. When Germany joined the League (in 1926), its
representatives were constant disrupters in the PMC, defending Germany’s past practices, calling

105
The Sykes-Picot agreement was a secret British-French treaty that carved up the Mandate territories into spheres of
influence, with no regard to the self-determination preferences of the Mandate territories. Id. at, 25-27.
106
Id. at, 35.
107
Id. at, 65.
108
Id. at, 72.
109
Id. at, 95-103.
110
Id. at, 243.

48
out the failings of British, French and Belgian administrators, and insisting that all involved adhere
to the written down League principles. The German actions were not aimed at building international
law or at upholding the “dual mandate” to promote the well-being of inhabitants and the mutual
benefit of people and mankind.111 Some PMC officials were committed to this dual mandate, but
most PMC deliberations were public efforts to secure PMC assent for preferred policies, or to
embarrass other colonial powers.
Eventually, the UK created a tidy solution to deal with complex negotiations in Arabia,
while securing control of Iraqi airfields and oil for the British war effort. This solution involved
advocating that Iraq was ready for full admission to the League as an independent state. This
maneuver, full of deceit and self-interest, acknowledged that Mandate states might be ready for self-
determination much sooner than previously imagined. The vote to allow Iraq to become a member
was the first time that an international agency made a decision about state sovereignty.112 Overall,
Pedersen’s account shows an international institution striving to maintain and fulfill set of
principles that participants themselves were not really committed to. Modest as the successes were,
the periodic PMC successes demonstrated how multilateralism provided a means to push back
against colonial powers. Because the UN picked up where the League left off, League
developments lived to see another day.
Sugar and the Making of International Trade Law builds insight by explaining the making
and operation of three different multilateral sugar agreements in the twenty-first century: 1902
Brussels Convention, the League’s 1937 International Sugar Agreement (ISA) and the 1977
renegotiation of the ISA. Not only were these agreements collectively fashioned, they included a
mix of rich and developing countries working together as sovereign equals and especially the first
two agreements created global governance innovations. Reading Fakhri’s book, the accounts are so
different that one could well imagine that the two authors were discussing a different international
organization or a different period of time.113 Pedersen also recognizes this difference, noting that

111
These are the “Lugard Principles,” named after a book penned by Frederick Lugard as a sort of job application for
his post on the PMC. Pedersen explains the self-interested reasons that British and French officials sometimes embraced
the Lugard principles, and she also reveals moments where states would pivot towards defending practices that were
common within their respective empires. Id. at, 107-12.
112
Id. at, Chapter 9.
113
Id. at, 9.

49
there were essentially 3 leagues: the League to outlaw war, the Mandates, and the “’technical’
League working to combat the proliferating hazards and traffics of an increasingly interconnected
world… It is this [technical] League that laid the foundation for the institutions of global
governance we have today.”
International commodity agreements for sugar were extremely important for post-colonial
sugar colonies, whose economies were dominated by the sugar industry. The former colonies faced
a double economic challenge. Growing sugar in hot climates was grueling work, and the end of
slavery eliminated the supply source for cheap labor. In addition, European producers figured out
how to create sugar from beets, which created new competition and a European interest in the price
of sugar. The heart of the challenge was to strike an agreement that incorporated the needs of cane
and beet sugar producers, and that kept European and American markets open.
Fakhri sees the 1902 Brussel’s agreement as the beginning of modern trade law, and
international law as “one of the many new modes of governance forged out of empire.”114 The 1902
Brussel’s agreement is cast as the first modern multilateral trade institution governed by an
international institution. It included a Permanent Commission, a set of negotiated principles, and a
dispute settlement mechanism. The agreement was quite literally ahead of its time. European states
negotiated the agreement in an effort to protect their remaining colonial interests, but key details
were supposed to be worked out as participants created common policies. Unlike the empire of
cotton that Beckert discussed, there was no world sugar market at the turn of the century. Instead,
markets were fragmented along regional and colonial lines, which meant that there wasn’t really an
incentive for great powers to negotiate a shared set of free trade and price support rules. Fahkri
explains how the economic interests shifted. The 1902 sugar agreement was successful insofar as it
created a model of supranational commodity management that was previously nonexistent. The
same basic structure of supranational commodity management reappeared after WWII as the
European Coal and Steel Community.115

114
MICHAEL FAKHRI, SUGAR AND THE MAKING OF INTERNATIONAL TRADE LAW 5 (2014). [Hereafter FAKHRI, Sugar and
the making of international trade law, 2014].
115
Anyone who knows the European Coal and Steel Community recognizes the similarities. But these similarities are
not readily discussed by those who study the origins of the Shuman Plan, presumably because Shuman did not make a
link to the Sugar treaty’s blueprint.

50
 The League’s 1937 International Sugar Agreement (ISA) is seen as a success in that
developing countries were able to mobilize multilateralism for their own purposes. The ISA was not
implemented, but it was a roadmap that might be used for a post-colonial system of international
commodity agreements. Also the League provided a means for Cuba to buffer what would
otherwise have been its complete economic dependency on the US sugar market. As mentioned, the
US was by choice not part of the League, yet the League had a formal power to create international
economic agreements. Fakhri recounts the situation created by the US’ Platt Amendment, which
gave the US intervention rights into Cuba.116 US-based sugar refiners had the ear of the US
government, and this was a problem for Cuba’s sugar industry. Cuba turned to the League of
Nations as a venue for its sugar diplomacy in order to circumvent its dependence on the US market
and the Platt amendment. Meanwhile Europe supported the effort because the sugar market was
collapsing in price.
The League’s international technocrats crafted the ISA. It included the goals of economic
rationalisation through state led planning, promoting free trade and the objective of price stability.
These goals fit with a development agenda, but with twenty-twenty hindsight we already expect that
the agreements Fahkri describes would crumble under Cold War pressures. Fahkri spends a
significant amount of time explaining that developing countries sought to build on the 1937
agreement by including commodity agreements as part of the mandate of the International Trade
Organization (ITO), only to have the US abandon the ITO in part because it was cast as a socialist
anti-free market institution.117 The next two quilt pieces will revisit this story.
Both of these studies demonstrate how multilateralism shifted the law-making context,
generating a post-colonial multilateral international law. The success in fashioning a commodity
agreement despite the League’s larger institutional strife can be explained by the ability of
international institutions to functionally differentiate, so that economic agreements could proceed
despite the political fights taking place in other parts of the multilateral regime. Fakhri also argues
that in the realm of economics, the rule of experts allowed for an agreement that promoted

116
FAKHRI, Sugar and the making of international trade law 98.
117
Id. at, 141-165.

51
rationalized economic planning and free trade, justified by a narrative of using economic relations
to build harmonious relations.118
The ability of the League of Nations to negotiate a post-colonial international legal reality is
noteworthy insofar as multilateralism functioned even as the world crumbled around it. Great
powers were at best thinly committed to the League efforts. Indeed, European colonial powers were
actively trying to use multilateralism to maintain their colonial prerogatives. The League eventually
disintegrated under the weight of inter-state wars. One could easily imagine that a peacetime
multilateralism buttressed by US support and power might be more successful. The post WWII
period demonstrates this reality, and a vast literature discussing the liberal international order
focuses on this development.119 Rather than repeat what is a well-known story, the next quilt piece
investigates what happens when multilateralism fails.
In the context of this Forward, this quilt piece helps us to think about how multilateralism might
adapt and constrain a Chinese led world order. For imperial countries, the Mandates were new
territories to conquer and the PMC was a battle ground for imperialists to impose their empire-
specific visions on Mandate management and developing international legal norms. European
powers could control the facts on the ground, but they could not control PMC discussions and
decisions. The global shifts generated by WWII left imperial countries no longer able to control the
facts on the ground, at which point the League’s international law advances became a relevant
roadmap. The League was not the only roadmap; we need to remember Becker Lorca’s discussion
of growing support for sovereign equality in Latin America and the US. Meanwhile, Fahkri’s story
about how Cuba used the League to develop commodity allies and push back against the US is also
instructive. Sugar would again feature in Cuba-US relations (the US decision to compromise
sovereign immunity came in response to the Cuban nationalization of a sugar manufacturer), which
shows that a tiny country can only push its behemoth neighbor so far. But the fact that the League
was a resource suggests that multilateralism might be the way that China and a more authoritarian
version of international law will be contested.

118
Id. at, 83-9.
119
See, for example, G. JOHN IKENBERRY, AFTER VICTORY INSTITUTIONS, STRATEGIC RESTRAINT, AND THE REBUILDING
OF ORDER AFTER MAJOR WARS (2001). See also G. John Ikenberry, Why the Liberal World Order Will Survive, 32
ETHICS & INTERNATIONAL AFFAIRS 17(2018).

52
 5. Failed multilateralism generates continuities in colonial law

Miles, Kate. 2013. The Origins of International Investment Law: Empire, Environment, and the
Safeguarding of Capital. Cambridge United Kingdom: Cambridge University Press.
St John, Taylor. 2018. The Rise of Investor-State Arbitration: Politics, Law, and Unintended
Consequences. Oxford, United Kingdom: Oxford University Press.
This quilt piece examines what occurs when there is no multilateral regime, and how
private/commercial law adapted to the multilateral era. One of the most controversial parts of
international economic law today is the current international investment regime, a system that is
sustained by bilateral agreements and a multilateral convention that allows arbitration awards to be
enforced around the world. The institutional building blocks of the current international investment
law system are first explained to help readers see why the international investment law system
generates so much resistance. Then I draw on Kate Miles’ The Origins of International Investment
Law: Empire, Environment, and the Safeguarding of Capital to explain the colonial origins and
continuities in modern international investment law. Miles account provides many reasons to
believe that multilateralism would lead to a change in the colonial foreign investment protection
practices. This raises the question of why there is no multilateral system. I draw on my own
research to explain why the straightforward multilateral attempt to deal with investment law–the
ITO’s Havana Charter–failed. Taylor St John’s The Rise of Investor-State Arbitration: Politics,
Law, and Unintended Consequences picks up the story, explaining the forces that continued to
stymie multilateral efforts in the 1960s, and why the unpopular current system remains so difficult
to unwind.
The current investor-protection system: There is no substantive multilateral agreement
defining the rights of foreign investors or the obligations of states should their decisions and actions
affect the value or existence of these investments. Instead, international investment law is defined
by a dense web of bilateral international investment treaties (BITs) that are underpinned by two
multilateral conventions. The reliance on BITs is because foreign investors found the two
alternatives– domestic law or multilateral international law –less attractive. The domestic
alternative, favored by developing countries, was the jurisdictional rule of the Calvo doctrine, which
required that local disputes be resolved in the domestic system. Domestic resolution would consider
the applicable domestic and international law governing foreign investment and contract

53
enforcement.120 Only a BIT or a multilateral agreement can unseat this understanding. The post
WWII multilateral alternative was the ITO (the Havana Charter) solution of national treatment (that
foreign and domestic investment be treated in the same way) with the mode of dispute settlement
being inter-state consultations to find mutually acceptable solutions or dispute settlement in front of
the ICJ.
The controversial aspect of the current international investment regime is its dispute
resolution/enforcement system. Most studies of the international investment system, including both
books in this quilt piece, focus on the International Center for the Settlement of Investment Disputes
(ICSID). ICSID defines dispute resolution procedures, and it exists as an option–it is neither the
only forum for investment dispute settlement nor do we know that it is the most prevalent or used
forum. In my mind, the New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (aka the New York Convention) is the linchpin of the current system because it
requires contracting states to recognize and enforce foreign arbitral awards as if they were domestic
awards.121 Without ICSID plus the New York Convention, BITs would need to rely on inter-state
enforcement efforts, which would likely leave many investor complaints unaddressed. The
combination of BITs and the New York Convention is also why the domestic option of the Calvo
doctrine could be unseated.
The path to this system is complicated. To be overly reductive, the ITO failed in 1950 when
President Truman signaled that he would no longer seek the agreement’s ratification. The adoption
of BITs began in the 1960s, expanding greatly starting in the 1980s.122 Where BITs so allow, the

120
For more on the Calvo doctrine in the multilateral era, see Cremades Bernardo, Resurgence of the Calvo Doctrine in
Latin America (BLI Jan 06), 7 BUSINESS LAW INTERNATIONAL 53, 56-8 (2006).
121
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330
U.N.T.S. 3 This agreement was put forth by the International Chamber of Commerce in 1953, and
debated within United Nations Economic and Social Council in 1958. The best, yet very short
history, of the convention and its ratification is in ALEC STONE SWEET & FLORIAN GRISEL, THE
EVOLUTION OF INTERNATIONAL ARBITRATION : JUDICIALIZATION, GOVERNANCE, LEGITIMACY 60-63
(2017).
122
Between 1960 and 1980, 170 BITs were created. During the following two decades, 1783 BITs were created.
WALTER MATTLI & THOMAS DIETZ, INTERNATIONAL ARBITRATION AND GLOBAL GOVERNANCE : CONTENDING THEORIES

54
current system lets the parties define the contractual terms and dispute resolution process, with BITs
providing a boiler plate international legal backing. Firms can initiate arbitration with a state.
Parties pick their arbiters, and the arbiters follow a set of pre-agreed upon dispute settlement
procedures. Then, the awards can be claimed anywhere in the world, through raising a national
judicial case where the outcome may be the seizing of locally held assets. All of this can occur
regardless of whether the investment was ‘taken’ in accordance with domestic laws and practices.123
Meanwhile, studies find that pro-investor the BITs are more likely where inter-state power
inequities are greater.124 Since the current system is entrenched via BITs, and BITs did not become
prevalent until the 1980s, there was roughly a thirty year opening during which the colonial era practices
might have evolved.
Colonial origins and post-colonial continuities: Kate Miles traces the lineage of special
protection for foreign investors from the colonial era to the present. Like Becker Lorca, she finds
that colonial era European investor protections were contested, and force was often needed to back
investor legal claims. Interesting for this study is her analysis suggesting that European practices
might have been fairly easily revised when the colonial order collapsed.

AND EVIDENCE 5 (2014). For a good account on the evolution of the current system, see STONE SWEET & GRISEL, The
evolution of international arbitration : judicialization, governance, legitimacy Chapter 2.
123
The New York Convention includes elements that some observers see as potential checks on the system, even if
these checks are seldom used. National judges can refuse to enforce an award that offends public policy or matters that
are ‘inarbitrable’ ALEC STONE SWEET & FLORIAN GRISEL, THE EVOLUTION OF INTERNATIONAL ARBITRATIN:
DELEGATION, JUDICIALIZATION, GOVERNANCE 34 (Walter Mattli & Thomas Dietz eds. International arbitration and
global governance : contending theories and evidence. 2014). Moritz Renner discusses how “mandatory norms” could
be considered by arbitrators. MORITZ RENNER, PRIVATE JUSTICE, PUBLIC POLICY: THE CONSTITUTIONALIZATION OF
INTERNATIONAL COMMERCIAL ARIBTRATION 125 (Walter Mattli & Thomas Dietz eds. International arbitration and
global governance : contending theories and evidence. 2014). Julian Arato suggests that in practice, arbiters are
insufficiently attentive to these nuances. Julian Arato, The Private Law Critique of International Investment Law, 113
THE AMERICAN JOURNAL OF INTERNATIONAL LAW 1(2019).
124
As Todd Allee and Clint Peinhardt put it, the preferences of capital-exporting states explain where one finds the most
pro-investor BIT designs; “Capital-seeking governments do not so much tie their own hands with BITs as have their
hands tied for them” Todd L. Allee & Clint Peinhardt, Evaluating Three Explanations for the Design of Bilateral
Investment Treaties, 66 WORLD POLITICS, 82 (2014). See also Beth A. Simmons, Bargaining over BITs, Arbitrating
Awards: The Regime for Protection and Promotion of International Investment, 66 WORLD POLITICS (2014).

55
 Miles locates precursors to international investment law in the content of European
international Friendship, Commerce and Navigation treaties, which were reciprocal agreements
that, among other things, secured minimal standards of treatment for European investors.125 When
European countries generalized this practice and then sought to enforce the agreements in other
parts of the world, the agreements lost their reciprocal nature.126 Imperialism led investor protection
to be added as clauses in concession and capitulation agreements. Unequal capitulation treaties
“conferred one-sided rights and were the product of actual or threatened use of force by the
dominant Western commercial powers of the day.”127 Consular agreements also “established areas
of extraterritorial jurisdiction. In this way, regimes of exclusive consular rule were created within
the territory of the host state, under which foreign nationals and their property were not subject to
local laws, but remained within the jurisdiction of their home state.”128 Miles notes that unequal
treaties and consular provisions were not only unfair, they were also humiliating.129
Miles sees capitalism as the force driving these developments. Quoting John Ball and
discussing the Dutch East India Trading Company, Miles sees the desire for territorial rights as
subservient to the economic objectives of the Dutch company in developing its trade in spices.130
Territorial control may not have mattered for the spice trade, but in Beckert’s discussion of cotton,
the profitability of American cotton and European colonialism was based on slavery and territorial
control. The larger lesson might therefore be that companies readily asked for whatever they needed
to maintain their monopoly advantage and property rights. Initially, colonial investors asked for
monopolies over trading, access to the sea, and even access to internal waterways.131 Later, they
wanted foreign investment to have more security than local conventions (e.g. domestic law)

125
Miles further locates early investor protections as part of broader agreements where investor protection existed
alongside protection for European traders, missionaries and nationals residing abroad, and where investment protection
became part of capitulation agreements following military conquests, and part of concessions agreements made with
local leaders. KATE MILES, THE ORIGINS OF INTERNATIONAL INVESTMENT LAW: EMPIRE, ENVIRONMENT, AND THE
SAFEGUARDING OF CAPITAL 23-4 (2013). [Hereafter MILES The origins of international investment law].
126
Id. at, 21.
127
Id. at, 25.
128
Id. at, 26.
129
Id. at. 26.
130
Id. at, 37.
131
Muldoon, GROTIUS AND ENGLISH CHARTERS, 20.

56
allowed. Even later, long after the end of the monopolistic metropole trading charters Stern
discussed, the goal of economic dominance led colonial states and colonial interests to demand
strategic concession agreements that limited the expansion and power of European rivals in specific
regions.132
When companies believed that the various agreements were violated, they appealed to
metropole governments for support. Miles notes that European governments did not always
intervene. Certain types of legal violations–such as a breach of a commercial contract– did not merit
intervention, whereas other types of violations–such as nonpayment of bonds– resulted in varied
responses. Where the legal violation involved the ill treatment of European individuals, these
violations were seen as injuries upon the state itself. When European Sovereigns did mobilize to
defend their nationals abroad, the result was that state and investor interests became aligned.133
In the colonial era, European powers often responded with military force. But Miles is more
interested in how European governments and investment lawyers responded with principled
arguments. Miles talks about early debates between local hosts and European powers where local
hosts advocated for a national treatment standard, whereas Europeans argued for an international
minimum standard. Discussing these various exchanges, Miles identifies the emergence of
principles grounded in international legal claims. These claims, rather than any negotiated formal
agreement, came to be seen as European international law. An example Miles discusses is the
treatment of expropriation, which already in the nineteenth century was seen as only allowable for a
public purpose. Europeans insisted that expropriation could not be arbitrary or discriminatory, and
they required prompt, adequate and effective compensation.134 Sovereigns in the developing world
tried to offer alternative sets of principles, and European legal scholars responded by invoking
international law to defend European interests and perspectives. It did not matter that this minimum
standard was not written down positive international law.
According to Miles, the iterative invocation of investor rights, their framing in international
law, and their recognition in metropoles and colonial courts created Western expectations that other
non-European foreign investors then also claimed. Miles’ discusses a set of international

132
MILES, The origins of international investment law 30.
133
Id. at, 47, 52-55.
134
Id. at, 48.

57
arbitrations in the nineteenth century that occurred in different formats and locales. When
international arbitrators or commissions sided with host countries, the investors would appeal to
their metropole governments. European and American officials often took the side of the investor,
dressing up their defenses in principled terms. An evolutionary process that “involved repetitive
assertions by capital-exporting states of their viewpoint as representing international law” led to a
“dual process of assertion and creation.”135 In other words, in the absence of any codified
agreement, the repeated assertion of an international legal right led to the creation of the
international legal right.
Miles then shows how this process of building an international legal basis for investor
protections carried into the multilateral era. Friendship and navigation agreements could be re-
written, and concession agreements would inevitably expire or be rendered moot. The elimination
or expiration of these agreements stripped the treaty basis of specific investor protections.
Meanwhile states in the developing world became increasingly interested in economic development,
and they gained formal legal sovereignty. Miles discusses two widely shared state practices that
provoked international debates over investor rights in the multilateral era. Agrarian reforms adopted
in many parts of the world often involved the seizing of land, and nationalizations of certain
industries involved the seizing of industries and assets.136 Since both of these policies were
prevalent in European and non-European states, there was significant ‘international practice’ that
might support a change in customary-law understandings regarding the rights of foreign investors.
These debates could well have led international investment law to evolve towards a national
treatment standard. In addition, developing countries wanted to abrogate concession agreements
that colonial era governments had made, including agreements that had been coerced. The NIEO–
discussed more in the next quilt piece– also sought permanent sovereignty over national resources,
which would abrogate colonial era concessions agreements.
Miles notes these alternatives, and she explains that in the absence of any internationally
codified set of investor rights, investment lawyers turned to the “general principles of law” and
“acquired rights” to find a multilateral era international legal basis for investor protections.137 As

135
Id. at, 69.
136
Id. at, Chapter 2, esp. 74-84.
137
Id. at, 81-83.

58
she brings her study forward in time, Miles sees reframing in terms of “legitimate expectations,”
“fair and equitable treatment,” a need for “stable business and legal frameworks” and even the
human rights of investors. Miles focuses on these aspects because of her interest in environmental
issues, but the commonality in the story she tells is of firms repeatedly asserting investor rights
grounded in international law, with Western governments in their pronouncements and policies
backing the investor-framed terminology. Miles argues that “[o]nce an historical perspective is
taken, it becomes clear that parallel methodologies were employed in the emergences of rules of
foreign investment protection in the ninetieth century, the development of the doctrine of
internationalised contracts in the twentieth, the recent manifestations of the fair and equitable
treatment standard, and the current utilization of human rights language to create investor claims–
that is, the construction of rules, asserted as international law, and ultimately applied by arbitral
tribunals as established rules of international investment law.”138 Miles further argues that modern
investment law is imperial. She sees the reality of South-South bilateral investment treaties as
“international investment law remain[ing] a tool of imperialism, but in new hands.”139 Although she
does not go this far, one can easily see China’s Belt-Road contracts as a next part of this long story.
Why investment was left out of post-war multilateral economic governance: Miles does not
seriously investigate why there is no multilateral investment law alternative, although she briefly
notes the Havana Charter’s failure, the failed 1948 effort of International Chamber of Commerce,
and additional failures in 1959, 1961 and 1967.140 The common explanation for these failures,
which Miles echos, is that investors and investor-exporting countries did not support these
initiatives. Taylor St John will complicate this conventional understanding.
Let me first pause and draw on my own research to explain why the Havana Charter failed,
because its investment provisions were a key reason. For domestic political reasons, American and
British diplomats chose to negotiate the General Agreement on Tariffs and Trade (GATT)
separately yet in coordination with Havana Charter negotiations. The GATT entered into force in
1948 as an executive agreement, which means that it did not require congressional ratification. The

138
Id. at, 84.
139
Id. at, 91.
140
Id. at, 85.

59
GATT was also folded into the Havana Charter, but the relevant point is that the GATT also existed
as a separate executive agreement.141
By all accounts, the US’ executive branch wanted the Havana Charter adopted. As with the
League of Nations, American leaders drove the creation of the Havana Charter, and then a later
effort to create a paired down Organization for Trade Cooperation.142 Democrat President Truman
and Republican President Eisenhower pushed hard, because they saw an international trade
organization as a key building block of a more stable international economic order, and an
important tool in their Cold War efforts to attract developing countries to the Western capitalist
system. Neither of them managed to overcome Republican opposition to any institutionalized world
trading system.143
William Diebold provides what for Americans is the seminal account of why the US did not
ratify the Havana charter. Republican critics disliked the Charter’s ‘socialist elements,’ including
the economic planning of commodity agreements. Diebold argues that the Charter’s investor
dispute clauses were even more contested. Ironically, the US had lobbied for the inclusion of
investor protections in the Havana Charter, then according to Diebold,

141
It is a long story, but a key American concern was the need to adopt the GATT before the expiration of Reciprocal
Trade Agreement Act, which provided the Federal government its trade negotiating authority, and a key British concern
was to protect the imperial preference system. See: ALTER & NELSON, Ruling the Global Economy: Why is Money so
Different From Trade Chapter 3.. On the origins of the GATT, see: DOUGLAS A. IRWIN, et al., THE GENESIS OF THE
GATT (2008).
142
The larger political strategy involved a coalition of actors that Diebold calls “the perfectionists” arguing that
surely a better agreement might be created. Diebold sees this claim as implausible, but it was an effective if
insincere political strategy. WILLIAM DIEBOLD, THE END OF ITO 22 § No. 16 (Essays in International Finance.
1952).
143
After Truman failed to secure the ratification of the Havana Charter, advocates drafted an Organization for Trade
Cooperation (OTC), which provided the institutional mechanisms minus the contested substantive provisions.
Eisenhower even secured a waiver so that the OTC and GATT could not impact US agriculture policies, and he
repeatedly sent Cabinet members to implore Congress to take up the OTC bill. Eisenhower made clear, in his State of
the Union and via Cabinet officials, that the OTC was a priority because institutionalizing the GATT would
demonstrate America’s leadership and internationalist commitment and unify the “free world” in the fight against
communism. We discuss the debate over the OTC in ALTER & NELSON, Ruling the Global Economy: Why is Money so
Different From Trade chapter 3.

60
[o]ne of the greatest stumbling blocks for the business groups was the Charter's treatment of
investment.… The basic complaint was that the Charter did not provide private foreign investments
with any firm protection against confiscation or discrimination by governments. The crucial
passages were full of adjectives like "just," "reasonable," and "appropriate." Nothing was done to
check the freedom of action of countries receiving foreign investment to decide what investment to
permit and on what terms. So far as equal treatment was concerned, governments merely undertook
"to give due regard to the desirability of avoiding discrimination as between foreign investments."
Such provisions, said the businessmen, were worse than nothing at all. "This article not only affords
no protection for foreign investments of the United States but it would leave them with less
protection than they now enjoy." By committing itself to the Charter, ran this argument, the United
States would give up its right to take independent action to protect American investors. Acceptance
of the Charter would weaken the efforts being made publicly and privately to create a proper
“climate" for private investment.144
The take-away insight is how the US’ two-thirds threshold for ratifying international agreements
combined with the ‘worse than nothing at all’ argument of opponents to create a perhaps
insurmountable American Congressional opposition.145 Yet there were alternatives that did not
require Senate approval. St John discusses these options.
Multilateralism stymied: Notwithstanding the ITO’s failure, St John shows that the United
States remained a strong proponent of a multilateral system for foreign investment rules and dispute
settlement. St John focuses on three simultaneous conversations that occurred in the 1960s. This
methodological choice allows her to compare a similar global structural environment, and to avoid
analyzing debates where concerns other than international investment protection were also at play.
Limiting her analysis to these three agreements also allows St John to take a deep empirical dive
into the archives, where she searches for support and opposition for each initiative.
St John argues that in the 1960s international development was a high priority for Western
governments and international actors. The Cold War was in full force, which created an incentive

144
DIEBOLD, The end of ITO 18.
145
An additional part of the story is the near passage of the Bricker Amendment, a proposed amendment to the US
constitution that would have made it much harder for the US to join international institutions and agreements. See
Glendon Austin Schubert, Politics and the Constitution: The Bricker Amendment During 1953, 16 THE JOURNAL OF
POLITICS (1954).

61
for Western countries to promote development if only to discourage developing country alliances
with the Soviet Union. UNCTAD, founded in 1964, was considering ways to adjust the
international economic system to promote economic development,146 and the World Bank chose to
focus on the investor-state system. There was, in St John’s historical institutionalist terminology, a
critical juncture, meaning a moment when change could have occurred. The three efforts St John
studies are: 1) an OECD negotiated agreement defining common rules for investor protection, 2) a
multilateral insurance scheme should investment be seized, and 3) the ICSID agreement. According
to St John the three proposals were seen as complementary and as offering a package of reforms
that–if they became the subject of multilateral negotiation– could have garnered support among
Northern investment-exporting countries and Southern investment-importing countries.147 Also
worth mentioning is that World Bank rules could serve as focal points that would not require
Congressional ratification.
St John’s rejects the “conventional account” that has investors as the primary architects or
capital exporting states as subservient proponents. To be sure, investor interests matter. St John
would not dispute that investor interests shape BITs, nor would she disagree with Puhaja’s analysis
of the strategies American officials deployed to challenge the notion of a permanent sovereignty
over national resources.148 Rather her point is that in the 1960s, neither investor interests nor state
preferences explain which multilateral alternatives succeeded or failed.149 Indeed St John finds that
foreign investors were not highly mobilized actors shaping European and American conversations
regarding the various proposals she studies.
For European countries, local concerns made pro-investor arguments a hard sell. In
particular, European leaders wanted to avoid property protections that might generate new claims
associated with European war-related seizures. In addition, nationalizing key industries and
industrial planning were part of European political debates, and European leaders did not want to
embrace rules that might limit or render more costly their economic recoveries.150 Meanwhile

146
UNCTAD at 50: A Short History. (2014).
147
TAYLOR ST JOHN, THE RISE OF INVESTOR-STATE ARBITRATION: POLITICS, LAW, AND UNINTENDED CONSEQUENCES 71
(2018).
148
PAHUJA, Decolonizing International law Chapter 4.
149
ST JOHN, The rise of investor-state arbitration 10-12.
150
Id. at, 73-87.

62
American diplomats were more focused on promoting development, and they preferred common
rules that less developed countries would also embrace.151 All of this adds up to Western support.
Indeed we must remember that US and European leaders accepted the ITO’s loose and weakly
binding investment provisions during international negotiations.
Analyzing the diplomatic negotiations surrounding the three proposals from the 1940s
through the 1960s, St John argues that there was enough common ground to pursue some version of
the OECD draft of investor rules, the insurance scheme, and what became the ICSID system, and
Western powers repeatedly asked the World Bank and UNCTAD to pursue these initiatives.152 The
most controversial proposal was a set of investor-state rules. In St John’s telling, European
governments let the OECD and insurance proposals be developed by free-lancing advocates.153 The
government’s arms-length support allowed advocates to float trial balloons, and a number of the
ideas found their way into European BITs. Yet European states were also very wary. In principle,
an OECD agreement would allow those countries most involved in international investment to
define common rules that could either be multilateralized, or that could feed into BITs. For Western
countries, however, St John notes a concern that active inter-governmental bargaining would expose
a lack of political consensus that might be detrimental to the existing yet fragile customary
international law understandings about investor rights.154
St John then explains why multilateral institutions resisted American entreaties to deal with
the ever-recurring issue of international investment disputes. St John sees the World Bank as having
chosen the multilateral international investment strategy in that it chose not to pursue either the
OECD or the insurance option, but instead to pursue ICSID. She explains that World Bank insiders
saw the OECD proposal as a one-sided document. She quotes a published oral history where a
World Bank official (Aron Broches) shared the concern that “if we were to take it over, we would
have to look at the other side, namely the obligation of investors. The developing countries would
still feel that the Bank presented a proposal cooked up by their adversaries, and the industrialized
countries would accuse us of watering down a wonderful document. We were liable to end up

151
Id. at, 88, 94, 97-9.
152
Id. at, 84-95.
153
Id. at, 99-101, quote at 99.
154
Id. at, 95.

63
having everybody mad at us, or even worse, coming out with a meaningless document. So, we
definitely said no to that.”155
Having investigated the positions of different states, St John sees the multilateral insurance
fund as the most likely to have garnered broad support. Investors supported it, as did a number of
governments. She notes that the World Bank first proposed a multilateral insurance agency in 1948,
and that by 1962 there were “more than a dozen detailed proposals circulating. It is extremely
puzzling that none of these proposals was realized in the 1960s. Out of the three multilateral
options, insurance had the most widespread investor support. It also had support from powerful
states: The US Government was willing to take the lead in creating a multilateral insurance
agency.” There was also opposition to the circulating drafts, but St John argues that an insurance
scheme could have found developing country support if only the level of burden-sharing for the
costs of insurance had been opened for negotiation.156
The fact that only the ICSID system emerged was, in St John’s view, even less than what the
lowest common denominator bargaining outcome might have produced. According to St John, the
World Bank drove this outcome. She argues that the World Bank felt pressure to “do something” to
encourage foreign investment.157 Focusing on dispute settlement was the least risky of the set of
proposals Western interests were pushing, and it would allow the World Bank to demonstrate that it
was, indeed, helping to promote foreign investment. Unlike insurance, dispute settlement required
no capitalization, and it required little up-front cost. The World Bank also worried that companies
might not purchase their insurance, especially if they were not required to do so or if other options
existed. World Bank officials had been dragged into disagreements about the Suez Canal, among
other disagreements, which made it concerned about the “lack of machinery for resolving disputes
between governments and private interests.”158 One wonders what would have happened if
validated investor claims were paid out of a global insurance fund. But St John suggests that World
Bank officials actually undermined insurance proposals.159

155
Id. at, 113.
156
Id. at, 108.
157
Id. at, 112.
158
Id. at, 126.
159
St John observes that World Bank officials discouraged action on an international insurance system for investors,
raising issues and concerns that “were very different to those held by most governments and investors.” Id. at, 114.

64
 St John agrees with Miles that there was a moment in time when the customary law basis of
international investment law could have been unseated. This moment was before the current BITs
system became entrenched. During this time, developing country proposals could have replaced
European international law understandings, or in the absence of international legal rules, resolution
of investor disputes might have been repatriated back to the national level, which likely would have
meant a spread of the national-treatment and Calvo doctrines.160 Instead, the result was a system of
BITs that exemplify what Ruggie calls the generic form of bilateralism, where power differentials
help to secure a preferential agreement.161
The problem was that once investors had highly advantageous international legal rights,
changing these rights became difficult. As noted, certain American actors saw the ITO as worse
than nothing, and World Bank officials were worried about being accused of ‘watering down’
existing investor rights.162
A number of countries have actively discussed renegotiating BITs. The end of St John’s
book focuses on why this is not happening. To be sure, nothing precludes regional institutions or
the World Trade Organization (WTO) from bringing investor protection into a multilaterally
regulated international economic regime. Yet should investment law be brought into these regimes,
the outcome would inevitably require balancing investor rights and duties with carve-outs to
promote valid public policy objectives. Defenders of the current system would surely point out that
balancing does exist insofar as government can seize investments, as long as they offer prompt and
fair compensation. The larger point, however, is that not only did global economic law help
investors’ special private property rights continue despite the emergence of post-colonial states with
legal sovereignty, and despite Western government’s preference for a broad-based multilateral
solution, global economic law also created the private/commercial law New York Convention,

160
Jason Yackee still advocates for this outcome, suggesting that letting business negotiate case-by-case for investor
protections might be a way to minimize moral hazard. See: J. W. Yackee, Do we really need BITs? Toward a return to
contract in international investment law, 3 ASIAN JOURNAL OF WTO & INTERNATIONAL HEALTH LAW AND POLICY
121(2008).
161
Ruggie, MULTILATERALISM, 568. See note 124124 for studies that find that pro-investor BITs reflect the power of
investor preferences.
162
STONE SWEET & GRISEL, The evolution of international arbitration : judicialization, governance, legitimacy 77-8.

65
which provided a legal means to circumvent domestic control and to render arbitration outcomes
internationally enforceable.
This quilt piece investigated numerous decision-points that undermined various efforts to
resolve the perennial problem of international investors seeking their government’s support in
defending their private investment interests. The analysis suggests that the more private actors find
and invest in successful workarounds, the greater their incentive to dissuade or even sabotage
multilateral efforts. This sabotage incentive only exists, however, insofar as states will create
bilateral international law alternatives and let their domestic courts enforce arbitral awards
involving foreign governments. The last part of St John’s book examines the many failed efforts to
fundamentally change the terms of the current international investment system. Her explanation for
why reforms fail has to do with the many different anchors that lock the current system in place,
including BITs, business contracts, and legal understandings developed through investment
arbitration that occurs via the World Bank’s ICSID system.163 These many anchors mean that
removing or changing one anchor does not impact the other anchors that are holding the current
regime in place.
The resurrection of a bilateral pro-investor regime has proven controversial. Starting in the
1960s, developing countries became more numerous and demanding participants in multilateral
governance. Why did greater numbers not lead to a change in international investment law rules?
The final quilt piece addresses this question. This quilt piece, however, demonstrates how bilateral,
minilateralism and private law create alternatives that provide foreign investors with an attractive
best-alternative-to-a-negotiated-agreement (aka BATNA or reservation value), encouraging them
and their state protectors to slow down and block efforts to revise existing international investment
law.

6. Ideas challenging states and interests to shape international law

Slobodian, Quinn. 2018. Globalists: The End of Empire and the Birth of Neoliberalism. Cambridge
Massachusetts: Harvard University Press.

163
Alec Stone Sweet and Florian Grisel explain how what might be one of the most decentralized systems of global law
nonetheless generates international legal governance. Ibid.

66
Eslava, Luis, Michael Fakhri, and Vasuki Nesiah. 2017. Bandung, Global History, and
International Law: Critical Pasts and Pending Futures. Cambridge United Kingdom: Cambridge
University Press.
Political economists generally backward engineering an outcome, providing an ‘explanation’ of
the outcome that fits with the interest of powerful economic actors and/or states. My argument is
that multilateralism produces different outcomes, but multilateralism is easily stymied. The
multiplicity of legal formats, and in particular private contracts and bilateralism, has sustained some
colonial era practices (e.g. investment law) but not others (forced labor and gunboat diplomacy to
extract a repayment of debts).
This final quilt piece focuses on ideas as an explanation for when multilateral institutions
contribute to continuity or change international economic law. The two books contrast the
incredible success of a set of ideas that did not enjoy broad international support (German
neoliberalism) alongside the failure of the post-colonial Bandung imaginary, which had greater
international political support. Like St John and Pedersen, both books focus on multilateral
decisions, implicitly acknowledging that in the cases these books study, hegemons did not
determine the outcome. Quinn Slobodian’s book Globalists: The End of Empire and the Birth of
Neoliberalism investigates the ideas, actions and international legal strategies of Mont Pélerin neo-
liberals, who Slobodian calls “globalists.”164 For the Germanic neoliberals, post-WWII multilateral
institutions and international law were how the world would be made safe for roaming private
property and capital. Bandung, Global History and International Law, the only edited volume in
this quilt, examines a very different set of ideas associated with the post-colonial Bandung
conference. I picked these two new books because ideas and international law are central to the
analysis. From today’s vantage point, it appears that Slobodian’s neo-liberals won, and the
Bandung-inspired ideas failed. Yet neither book makes this case. Focusing on the package of ideas,
the authors identify successes, failures, and compromises. Success requires ideational persuasion,
and failure involves political push-back and structural constraints. For me the relevant question is
how power and interest capture multilateral institutions. A related question is whether international
law becomes the means through which multilateral institutions impose their ideas on unwilling

164
The people Slobodian studied created and advocated for globalist ideas, and they worked multilateral economic
institutions (especially the GATT, WTO, and IMF). For these reasons, Slobodian calls them globalists.

67
governments. Slobodian provides one answer, and the Bandung chapters offer a number of different
answers.
Slobodian’s Globalists is about a set of neoliberal ideas that have rather surprisingly changed
the world. As mentioned, Slobodian is focused on the Germanic strand of neoliberalism– the Mont
Pèlerin Society, a Geneva based group of historians, economists, philosophers, international
officials and business leaders whose intellectual leaders included Friedrich Hayek, Wilhelm Röpke,
Franz Böhm, Michael Heilperin, Lionel Robbins, and Gottfried Haberler and Ludwig von Mises.
This is not the Chicago school neoliberalism (Milton Friedman, Karl Popper, Frank Knight, Ronald
Coase, George Stigler), which is the face of neoliberalism today. Slobodian’s historian
methodology involves immersing the reader in the ideas, writings and activities of the Mont Pèlerin
members. According to Slobodian, the original Mont Pèlerin members blamed democracy and
nationalism for the catastrophe that was the Great Depression, fascism, and WWII. Mont Pèlerin
globalists of the 1930s and 1940s saw decolonization as inevitable, as an opportunity, and as
dangerous insofar as developing country leaders were attracted to government planning and
nationalization of key industries and resources.
The globalist solution imagined a world where the national choice of sovereign states would be
constrained by global institutions. Slobodian argues that the political strategy built on Carl
Schmitt’s concept of imperium and dominium, the idea being that there was not one but two worlds.
“One was the world partitioned into bounded, territorial states where governments rules over human
beings. This [Schmitt] called the world of imperium, using the Roman legal term. The other was the
world of property, where people owned things, money, and land scattered across the earth. This was
the world of dominium.”165 The globalist goal was to use law–both international and domestic–to
encase the world of dominium from the risks of democracy. Throughout Globalists we see
democracy––whether it operated at the domestic or the international level– being blamed for why
certain neo-liberal ideas failed and others prevailed.166 In short, full employment and social rights
were more politically popular than protecting the property rights of rich actors. The realm of
politics, therefore, would embed markets in ways that promoted social peace even if it meant

165
QUINN SLOBODIAN, GLOBALISTS: THE END OF EMPIRE AND THE BIRTH OF NEOLIBERALISM 10 (2018). [Hereafter
SLOBODIAN, Globalists]
166
Id. at, 126.

68
limiting the rights of property holders. The globalist antidote was an ever stronger, more
constraining, and a harder to change/less politically accountable international law.
Globalists is organized unusually, with each chapter named after a different imaginary for a
new global economic world. This strategy allows us to see success alongside failure. Many of the
Mont Pèlerin ideas died on the vine. The chapter on “A World of Rights” explains how some Mont
Pèlerin members drew on the Universal Declaration of Human Rights Zeitgeist to advocate “xenos
rights,” using the Greek term for the rights of a guest-friend. “The category of xenos rights helps us
think about individuals having protected rights to safe passage and unmolested ownership of their
property and capital, regardless of territory.”167 “A World of Races” explains how the most racist
member of the Mont Pèlerin Society, Röpke became increasingly enamored with the South African
solution to democracy; the system of apartheid.168 These failures suggests that idea depend on being
persuasive, especially when proponents cannot count on the backing of powerful states.
Other globalist ideas were successful, yet incompletely so. The chapter on the World of
Numbers explains how Mont Pèlerin members worked to create statistics and metrics to counter
government narratives and to demonstrate the success of their policies. Numbers and metrics have
taken over international institutional discussions,169 but the original plan was to demonstrate that
economic ups and downs were the natural result of business cycle fluctuations, and thus not
something that government policies might shape. This idea fizzled alongside the failure of business-
cycle theory.170 The World of Walls chapter explains the globalist thinking of a wall-free world for
property. Slobodian describes a moveable set of country puzzle-pieces that Mont Pèlerin members
carried to meetings and events to illustrate the idea of tariff walls dividing countries. The idea was
to flatten this puzzle map by eliminating tariff and currency control walls.171 These globalist

167
Id. at, 123.
168
Id. at, Chapter 5.
169
Judith G. Kelley & Beth A. Simmons, Introduction: The Power of Global Performance Indicators, 73
INTERNATIONAL ORGANIZATION 491(2019).
170
SLOBODIAN, Globalists 57-8. A later chapter shows the updated thinking, where Mont Pèlerin members argued that
markets were so complex that it was best to let the price system chose where to invest. This world of price-signals was
the antidote to the NIEO idea that government planning might contribute to economic development. Ibid at 224-35.
171
Id. at, 37-40.

69
aspirations were embedded into the Bretton Woods institutions, yet we are still living with tariffs,
currency controls, and customs borders.172
Many of us associate neoliberalism with the goal of limiting the power of governments and
letting markets operate on their own, both of which are Chicago school ideas. Hayek, however,
knew that markets needed to be encased in law and embedded into society, and that one needs
institutions to develop and defend this encasement strategy, especially in the face of popular
resistance and sovereignty-jealous governments. Slobodian reveals the numerous institutions Mont
Pèlerin members built and worked in, so as to develop and protect their particular market-
encasement vision. These include founding academic centers and institutes where free-market
principles guide the training of acolytes.173 Mont Pèlerin members were dispersed across a number
of European universities and centers, and they worked in government ministries, the European
Union, and Geneva based international institutions to promote and protect their vision from inside
the halls of power.
From the vantage point of 2020, it looks like the Mont Pèlerin vision won out. But
neoliberalism did not become embedded into the institutional culture of multilateral economic
institutions until after the end of the Cold War. From 1960s through the mid 1980s the dominant
multilateral vision was embedded liberalism, which was itself a rejection of laissez faire market
economics. As Ruggie explains embedded liberalism, it was more of a middle ground between the
liberal internationalist orthodoxy of New York financial circles and a rejection on the Left, Right
and center of unimpeded multilateralism: “unlike the liberalism of the gold standard and free trade,
its multilateralism would be predicated upon domestic interventionism.”174 The larger ‘social
purpose’ of embedded liberalism was to help governments promote economic growth and social

172
The IMF intended to limit and eventually eliminate currency controls and the ITO and the GATT wanted to
progressively lower tariffs. The IMF has not managed to eliminate currency controls, but the GATT has lowered tariffs,
only to find tariffs replaced with non-tariff barriers to trade.
173
The Chicago school has also employed this strategy. Scholars have studied the dispersal of Chicago trained
economists in Latin America and in the IMF. See: YVES DEZALAY & BRYANT G. GARTH, GLOBAL PRESCRIPTIONS: THE
PRODUCTION, EXPORTATION, AND IMPORTATION OF A NEW LEGAL ORTHODOXY (2002). STEPHEN C. NELSON, THE
CURRENCY OF CONFIDENCE : HOW ECONOMIC BELIEFS SHAPE THE IMF'S RELATIONSHIP WITH ITS BORROWERS (Cornell
studies in money. 2017).
174
John Ruggie, International Regimes, Transactions and Change: Embedded Liberalism in the Postwar Economic
Order, 36 INTERNATIONAL ORGANIZATION 379, 393 (1982).

70
security, through government intervention if so desired.175 The social purpose behind the GATT,
IMF, UNCTAD and the World Bank was embedded liberalism, not the Mont Pèlerin idea of a
world of property encased in international law.
Meanwhile, developing countries were imagining how international law could truly become
universal, and how newly independent countries might have a greater say over their own economic
development and over global economic rules.176 Bandung, Global History and International Law is
inspired by the 60th Anniversary of the Bandung conference, an event that embodied and crystalized
the hopes for a post-colonial world order. Held with great fanfare in April of 1955, the Bandung
conference included world leaders and delegates from countries representing two-thirds of the
world’s population. Participants shared a palpable sense of an emerging post-colonial world order,
and a desire for fundamental change. Yet Bandung participants were also deeply divided by their
experiences during colonization, their enthusiasm for communist alternatives, and their pragmatic
ability to cut colonial-era economic relations.177 Given the participating countries’ disparate
interests, and the fact that the Bandung conference included big-personality heads of state trying to
claim the post-colonial mantle (India’s Prime Minister Jawaharlal Nehru, China’s Premier Zhou
Enlai, Indonesia’s President Sukarno), the conference resulted in a Final Communiqué that included
a bit of everything.178
Bandung, Global History and International Law is less focused on the conference per se, and
more interested in how the spirit launched at the Bandung conference has shaped global history and
international law. There is no one answer to this question. All of the authors agree that the Bandung
conference has gained a mythic status. Indeed what actually happened at the event, and whether the
many groups and institutions that trace their origins to the Bandung conference have a legitimate
claim is not important for the book’s authors, in part because the “myth of Bandung and its spirit

175
Id. at, 394. Ruggie discusses the changes in the monetary system in 1971. Writing in 1982, Ruggie sees the IMF as
having relaxed its borrowing conditions. This would change in time. Id. at, 407-9.
176
Luis Eslava, et al., Introduction: The Spirit of Bandung, in BANDUNG, GLOBAL HISTORY, AND INTERNATIONAL LAW :
CRITICAL PASTS AND PENDING FUTURES 14-22, (Luis Eslava, et al. eds. 2017). [Hereafter Eslava, et al., Introduction:
The Spirit of Bandung].
177
Rose Sydney Parfitt, Newer Is Truer Time, Space, and Subjectivity at the Bandung Conference, in BANDUNG,
GLOBAL HISTORY, AND INTERNATIONAL LAW : CRITICAL PASTS AND PENDING FUTURES 51-2, (Luis Eslava, et al. eds.
178
Eslava, et al., Introduction: The Spirit of Bandung 6-9.

71
has become constitutive of its reality.”179 Sticking with the theme of this quilt piece, my focus on
the ideas and institutions that authors link to the Bandung spirit, and the explanations offered for
why developing country strategies linked to this spirit were less successful compared to the
neoliberal ideas Slobodian explores.
The Bandung spirit is often associated with neo-Marxism and leftist thought. This
association is valid insofar as some participants were avowedly Marxist. Yet it is too much to say
that the Bandung spirit failed because it was Marxist or because communism failed. Most of the
contributors to Bandung, Global History and International Law would agree that developing
countries mainly wanted a third way that was/is neither Soviet Communism nor neo-liberal
capitalism.180 Many people around the world feel this way, and the ideas of John Maynard
Keynes181 and Raúl Prebisch182–neither of whom were part of the Bandung Conference–provide
economic ideas that support this third-way vision.
The book’s many chapters discuss well known developing country international movements
and institutions linked to the Bandung conference imaginary, including the Non-Aligned Movement
(NAM), UNCTAD, the NIEO, and third world approaches to international law (TWAIL). We could
also add the Law of the Seas effort to have the oceans defined as the common heritage of
mankind.183 We tend to remember the failures more than the successes of the Bandung spirit, yet
there is no reason to believe that the NAM failed even if world history has moved beyond this

179
Hani Sayed, The Humanization of the Third World, in BANDUNG, GLOBAL HISTORY, AND INTERNATIONAL LAW :
CRITICAL PASTS AND PENDING FUTURES 432, (Luis Eslava, et al. eds. 2017).
180
Vik Kanwar, Not a Place, but a Project Bandung, TWAIL, and the Aesthetics of Thirdness, in BANDUNG, GLOBAL
HISTORY, AND INTERNATIONAL LAW : CRITICAL PASTS AND PENDING FUTURES Chapter 8, (Luis Eslava, et al. eds.
2017). [Hereafter Kanwar, Not a place but a project]
181
Keynes’ ideas spread throughout Europe and the US. See: PETER A. HALL, THE POLITICAL POWER OF ECONOMIC
IDEAS : KEYNESIANISM ACROSS NATIONS (1989). Keynes’ ideas are arguably being revived again. See: JOSHUA GANS,
ECONOMICS IN THE AGE OF COVID-19 (2020). Robert Skidelsky, Economic Recovery in the Age of COVID-19, 55
INTER ECONOMICS 345(2020).
182
Prebisch, who led UNCTAD, is associated with the import substitution strategy. Import substitution as an end in
itself is a failed idea, and the Latin American countries that tried this strategy failed to develop. That said, in Asia state-
led infant industry development in combination with import substitution is alive and well.
183
Adam Boczek Boleslaw, Ideology and the Law of the Sea: The Challenge ofthe New International Economic Order,
7 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW 1(1984).

72
movement. UNCTAD did become a way for developing countries to shape the developmentalist
debate. Developing countries wanted exceptions to GATT rules, and they received these exceptions.
Quite a few NIEO goals were achieved, including (with limits) technology transfer to developing
countries, capital controls, and an international system to provide access to minerals mined from the
high seas. This is to say that many offshoots of the Bandung imaginary succeeded.
But the more radical changes the NIEO sought have not been achieved. To name but a few
NIEO failures: the NIEO sought an equal voice in dealing with global economic problems, a right
to choose the economic and social systems appropriate for a country’s own development, full and
permanent sovereignty over natural resources, access to Western markets free from external
coercion, just and equitable relationship between the prices of raw materials and primary
commodities, and the extension of assistance to developing countries free of any political or
military conditions.184
The contributors to the Bandung, Global History and International Law find multiple
reasons why the NIEO failed. For some, the solidarity of Bandung participants, NAM members and
NIEO supporters was always more illusory than real, united by an idea of solidarity and of a third
way but lacking substantive agreement of what this third way should be.185 For others, ongoing
structural dependence kept developing countries tied to the metropoles.186 For the most Marxist
contribution to the book, there is a sense of inevitability that great powers–both the Soviet Union
and the US–would always put their own interests first.187 The political scientist in me finds Julio
Faundez’ explanation the most convincing. Faundez argues that Cold-War national security

184
Summarized in Julio Faundez, Between Bandung and Doha International Economic Law and Developing Countries,
in BANDUNG, GLOBAL HISTORY, AND INTERNATIONAL LAW : CRITICAL PASTS AND PENDING FUTURES 500, (Luis
Eslava, et al. eds. 2017). [Hereafter Faundez, Between Bandung and Doha]
185
Umut Özsu, Let Us First of All Have Unity among Us: Bandung, International Law, and the Empty Politics of
Solidarity, in BANDUNG, GLOBAL HISTORY, AND INTERNATIONAL LAW: CRITICAL PASTS AND PENDING FUTURES 301,
(Luis Eslava, et al. eds. 2017). Kanwar, Not a Place, but a Project Bandung, TWAIL, and the Aesthetics of Thirdness
152.
186
John Reynolds, Peripheral Parallels? Europe’s Edges and the World of Bandung, in BANDUNG, GLOBAL HISTORY,
AND INTERNATIONAL LAW : CRITICAL PASTS AND PENDING FUTURES 255, (Luis Eslava, et al. eds. 2017).
187
Germán Medardo Sandoval Trigo, The Bandung Conference and Latin America A Decolonial Dialogue with Oscar
Correas, in BANDUNG, GLOBAL HISTORY, AND INTERNATIONAL LAW : CRITICAL PASTS AND PENDING FUTURES 270,
(Luis Eslava, et al. eds. 2017).

73
interests took over the Bandung agenda, and the US’ many foreign interventions further fractured
the Bandung coalition.188
For my purposes, the important question is how the Bandung ideas were displaced, and whether
international law was once again a tool used to squash developing countries. In Slobodian’s telling,
the solution the NIEO proposed–a right to development to be realized through nationalizations and
exceptions from free trade obligations–“were the very transgressions of dominium that neoliberals
most feared.”189 Slobodian explains how the NIEO created a ‘counterrevolution’ in the form of a
‘trio of experts at the GATT, Jan Tumlir, Frieder Roessler and Ernst-Ulrich Petersmann [who]
explicitly applied the ideas of Hayek to rethink the international order [and in so doing] became the
standard-bearers of Geneva School neoliberalism.190 Slobodian suggests that this ideational counter-
reaction explains the “metamorphosis of the GATT into the World Trade Organization in 1995.”191
In my view, the blind spots of IL and IR continue to obscure what really killed the NIEO
agenda. The conclusion to this Part will discuss a more slow-moving economic force, triggered by
the US’ 1971 decision to close the gold window and the failure of IMF members to create an
alternative multilateral currency stabilizer. This non-decision, I will argue, unleashed financial
globalization. But the more proximate challenge to the NIEO agenda was the oil shock, generated
by the nationalization of oil industries in a number of post-colonial countries. According to John
Toye, some developing countries were happy to see oil producing countries challenge the West, but
the oil shock created huge cash infusions in oil-producing states and economic shocks and/or rising
foreign debt for oil dependent states. This, in turn, shattered the solidarity of Charter 77 members,
and it undermined UNCTAD efforts to create a development fund of its own.192 Many scholars of
the international investment regime see oil and mineral nationalizations as a key motivator for

188
Faundez, Between Bandung and Doha 504.
189
SLOBODIAN, Globalists 220.
190
Id. at, 223.
191
Id. at. 233
192
Solidarity would have involved oil producing countries helping developing countries. Toye explains that oil
producing countries were more interested in buying arms and investing their monies in the West than they were in
solidarity. John Toye, Assessing the G77: 50 years after unctad and 40 years after the NIEO, 35 THIRD WORLD
QUARTERLY 1759, 1764-5 (2014).

74
creating BITs.193 The larger point for now is that economic factors more than any neo-colonial
political, military or legal strategy undermined the possibility of a fundamentally different global
economic order. Sundhya Pahuja would surely disagree. She argues the category of ‘development’
and ‘developing country’ in itself recreates the subservience associated with colonialism.194 She
may be right, but a focus on ideas allows international actors to genuinely believe that their ideas
are the best means to a collectively shared end.
Few if any of the chapters in Bandung, Global History and International Law focus on the
economic forces I just mentioned, although implicitly Fauchez does finger the World Bank, IMF
and the globalist/neo-liberal imaginary as the culprits:
when World Bank economists were beginning to develop the current model of globalization, they
concluded that economic stagnation in developing countries and the endless succession of financial
crises were caused by flawed domestic policies rather than the inadequacy of the institutions of
global governance. This analysis prompted the launch of the infamous structural adjustment loans,
which required developing countries to introduce radical changes to public institutions in order to
reduce state involvement in the economy.195
If one then fast forwards twenty years after the NIEO’s collapse, Fauchez and Slobodian’s accounts
converge.
In the final chapter of his book–A World of People without a People– Slobodian summarizes
the goal of the Geneva school neoliberals into a list of points that describes today’s neoliberal
globalization with an eerie prescience. In Slobodian’s summation globalists sought: a world where
dominium (the rule of property) is protected from the overreach of imperium (the rule of states),
where consumer sovereignty trumps national sovereignty, where the public/private distinction is
more important than the foreign/domestic distinction, where world law trumps a world state, where
international governance is protected from the disruptions of democracy, where adjudication by

193
Figure 1.3 in Bonnitcha et al charts the rise of oil nationalizations from 1960-1979, with the number of
nationalization accelerating after 1968, See JONATHAN BONNITCHA, et al., THE POLITICAL ECONOMY OF THE
INVESTMENT TREATY REGIME 9 (2017).
194
See: PAHUJA, Decolonizing International law 112. My problem with Pahuja is that she defines ‘bare sovereignty’ as
the ability of a community to give itself its own law. This nationalist perspective creates, in my view, too little space for
multilateral international law to operate without complete state buy-in.
195
Faundez, Between Bandung and Doha 507.

75
judges is preferable to legislation by parliaments, where isonomy (same law) trumps autonomy
(own law), where trade over borders is enshrined in a legal code, and where “integration is not the
creation of something new but the restoration of something lost.”196 This world was achieved
exactly has the globalists had imagined, by letting international law protect markets, free trade, and
property and thus the world of dominium.
Fauchez believes that “neoliberalism has forever buried parts of the Bandung Spirit,”197 but for
Fauchez it is the practice unleashed by capital and markets that defeated the Bandung spirit:
This policy objective is reflected in the promulgated rules governing international trade,
investment, and finance. The combined effect of these reforms has been to transfer power over key
economic decisions from nation-states to the international sphere. This shift brought about a
fundamental transformation in the foundations of international law. From the perspective of
developing countries, globalization covertly seized a massive slice of their hitherto much-valued
economic sovereignty. While globalization has reduced the economic sovereignty of all countries,
its impact on developing countries is magnified because, with the exception of the so-called
emerging economies, these countries have little or no influence in the design or implementation of
these rules.198
Said differently, a turn to BITs and coalition of the willing forms of multilateralism, by design
excludes developing countries from the process of global economic rule creation.
Ideas help us see the big picture goal of the Germanic neoliberals and the Bandung imaginary.
Some ideas failed in their own right, and some generated too much pushback to proceed. Many
people believe that the World Bank and the IMF became neoliberal institutions that, especially after
the end of the Cold War used conditional lending to compel developing countries to adopt a
Washington Consensus policy orthodoxy.199 If this was what happened, then colonial international
law is not the cause of developing country weakness or the rising inequality that IMF-imposed
austerity has generated. The cause, therefore, was the power of capital combined with the capital

196
SLOBODIAN, Globalists 271-2, quote at 272.
197
Faundez, Between Bandung and Doha 489.
198
Id. at, 507.
199
The Washington Consensus, a set of ideas, is the term used to refer to the package of neoliberal reforms the IMF and
the World Bank advocated. See Sarah Babb, The Washington Consensus as transnational policy paradigm: Its origins,
trajectory and likely successor, 20 REVIEW OF INTERNATIONAL POLITICAL ECONOMY 268(2013).

76
dependence of developing countries. The IMF, the World Bank, and multilateral development
banks (e.g. the European Bank for Reconstruction and Development, the Inter-American
Development Bank) could have been less neo-liberal in their lending policies, which is why this
quilt piece’s emphasis on ideas is so important.

This larger quilt of insight and its missing piece (financial globalization)

This quilt has woven together studies of global traders, global corporations, colonial
powers, legal scholars, multilateral institutions, states, and ideas reveal the complex tapestry that is
global economic law. Conceptually, I propose that we see this tapestry as a global economic law
regime complex, a space where legal contestation occurs. The various actors move around and
reach within this space to assemble legality claims to justify their actions and policies. The global
economic regime complex is a legal rendering of the governance ecology for the global economy,200
one that allows us to see continuity and change from the colonial era to the multilateral era.
Many critical legal theorist highlight the need to decolonize international law by countering the
status-quo bias of IL that looks to past practices to explain the present and to lock-in the future.201
My argument is complementary yet different. I argue that blind spots of IL and IR and the scholarly
focus on legislative action at the expense of legislative non-action contribute to a status-quo bias
and Western dominance of international law. I have also been trying to tease out how capitalism
interacts with state and international institutional decisions to create a law-based continuity across
the colonial, multilateral and globalization eras.
My focus on the transformation of colonial era law brought in an additional blind spot that is
important today. The role of global economic law in regulating the money supply was not a colonial
era object of study, probably because in colonial times finance operated through the Crown, which
minted coins from gold and silver mined in the colonies. Only with the rise of paper and non-
precious metal coins did money to become an object of law.202 Even then, imperial Sovereigns

200
This is the term that IR scholars are starting to use to understand how the many pieces fit together. See: David Lake,
The organizational ecology of global goverannce, 27 EUROPEAN JOURNAL OF INTERNATIONAL RELATIONS 345(2021).
201
Chimni, CUSTOMARY INTERNATIONAL LAW.
202
See: CHRISTINE DESAN, MONEY AS A LEGAL INSTITUTION 26-8 (David Fox & Wolfgang Ernst eds. Money in the
western legal tradition: Middle Ages to Bretton Woods. 2016).

77
regulated the money supply largely on their own, so that currency and monetary exchange was not a
subject of international law.203 This changed with the creation of the IMF, when states made
promises to avoid balance of payments surpluses, to work towards eliminating capital controls, and
let the US dollar be the reserve currency of the global monetary system. The multilateral IMF
bargain changed when the US unilaterally decided to close the gold window in 1971 and the world
then shifted to floating exchange rates defended by Central Bank purchases of currencies. It is clear
today that the failure to create a currency stabilization alternative to the US dollar–despite various
proposals on the table204– opened the door for market actors to provide stabilization tools (currency
markets, futures markets, and more), leading to today’s financial globalization. The decision by
international and Western states to link private banking systems to international balance of
payments crises also created tremendous instability in the global financial system, contributing to
multiple global financial melt downs, the most significant of which (for the West at least) was the
2007 global financial crisis. Today, scholars increasingly see financial globalization as a creature of
law.205 For now, what I can say is that the today’s global finance system is fundamentally different
from the colonial system (the gold standard), and that once the US closed the gold window, the
market based global finance system that emerged is governed by soft law provisions that the global
economic regime complex of this Forward.
Weaving together scholarship employing different methods and different objects of study
reveals how the multiplicity of global economic law forms–itself a capitalist creation of the
European colonial era– has created a continuity in the form of private economic law practices that
firms and traders use to escape state and international legal efforts to preserve national economic
sovereignty. Slobodian’s Globalists give us a conceptual framework to think about how

203
In 1949, Mann wrote an article on money in public international law, arguing that “very little is to be gained from an
historical approach” to studying the customary practices of states in international monetary matters. F. A. Mann, Money
in Public International Law, 26 BRITISH YEARBOOK OF INTERNATIONAL LAW 259, 264 (1949).
204
This is something we will explore in our book on trade and money. ALTER & NELSON, Ruling the Global Economy:
Why is Money so Different From Trade.
205
Pistor focuses on the domestic legal elements, while Brummer discusses the soft-law elements, both of which are the
most part are not products of multilateral politics. KATHARINA PISTOR, THE CODE OF CAPITAL: HOW LAW CREATES
WEALTH AND INEQUALITY (2019);CHRIS BRUMMER, SOFT LAW AND THE GLOBAL FINANCIAL SYSTEM: RULE MAKING IN
THE 21ST CENTURY (2015).

78
international law fits into an intentional strategy to limit the new-found economic sovereignty of
post-colonial states. But even Slobodian and the Mont Pèlerin Globalists would agree that the
multilateral era has long involved a contestation between a competing set of rival economic
perspectives, which is to say that neither multilateralism nor international law portend neoliberalism
or globalization.
Capitalism exerts its own independent force, but I am not advancing a Marxist argument
about governments or international actors serving as the executive committee of capitalists, nor am
I arguing that capitalism inevitably leads to domination. Indeed throughout the discussion, I
highlighted how business actors were neither committed to nor inspired by a neoliberal imaginary,
nor were they trusting that metropole Sovereigns or international institutional actors to forever back
their claims. Braudel’s traders wanted to protect scarcity and monopoly which allowed them reap
spectacular profits. Stern describes the EITC’s efforts to stop interlopers and pirates from
encroaching on its lucrative monopoly on trade and international commerce. Miles’ foreign
investors mainly wanted to protect their vested economic interest through any means available,
including colonial use of force, efforts to exclude other colonial powers, and legal arguments and
principles. Beckert’s colonial cotton producers and industries wanted to protect their valuable slave
and industrial assets, but once this was no longer possible they then wanted to locate factories in the
global South where production costs were cheaper. The larger point is that economic interests are
opportunistic fair-weather allies of the political leaders who advance their cause. Should political
currents change, business will adapt to the new realities. This adaptation, stimulated by market
forces, is a dynamism that capitalism encourages and promotes. This dynamism has many good
sides. It is what makes capitalism compared to command economies especially innovative and
productive.
Government backing and devolved private law-making power enables these capitalist
strategies, for good and for ill. During the colonial era, metropole governments devolved powers
that many people in the West and the periphery rightly view as indefensible: abetting slavery and
the slave trade, privateering and looting on the high seas, settler and company repression of
indigenous populations, and a war to force China to open its market to the opium trade. These
devolutions and abuses are today illegal, but devolving power to private actors remains prevalent
especially because of the increasingly complexity of capitalism today.
Powerful countries continue to use domestic courts, extraterritorial law, and portable
enforcement agreements to help private companies make and enforce contracts. But as Stern,

79
Benton and Ford, Pedersen and Miles all note, metropole support is not always forthcoming. The
heart of the question, therefore, is when will states back private economic interests, and what are the
conditions that lead governments to encase markets in a law that protects social, political, and
ecological values?
A challenge that social scientist face is that sometimes multiple forces push in the same
direction, which makes it is hard to know which forces are responsible for the found outcome. I
have made a mostly structural argument about the nature of global economic law as a regime
complex that in the colonial era included colonial law and contracting relationships, and in the
multilateral era still includes private contracts and domestic extraterritorial law. Drawing on the
works of others with an intentional goal of bringing colonialism into international law, I suggested
how this law operated similarly and differently across the two time periods with one continuity
being the profit-seeking and property protecting interests of economic actors, which Western
metropoles sometimes and only partially indulge. We can observe and all agree that the Bandung
coalition failed to fundamentally redefine the global economic order. We can further agree the rise
of neoliberal globalization is a final nail in the coffin of the Bandung imaginary. Many would also
argue that debt crises and foreign investment dependence has contributed to a new form of
imperialism, with the IMF serving as the face that replaces colonial powers in forcing developing
countries to adopt the economic policies that these institutions prefer. But by their very nature,
review essays can advance theoretical propositions in exploratory but not confirmatory or
conclusive ways.

3. Global economic law in a post-American world order

This Forward has explored the system change created by the end of the colonial international
order as it interacted with the continuity of global capitalism. Global governance via multilateralism
was a twentieth century invention that became especially prevalent following WWII.
Multilateralism’s ascension coincided with and was related to a number of global changes. WWII
brought the end of colonialism, a decline of European and Japanese power and an unrivaled
American economic, military and political power. This system-change occurred on top of the inter-
war collapse of the gold standard and the catastrophe of the global Great Depression. It led to the
creation of the UN, the Bretton Woods institutions, the GATT, and an unprecedented expansion of
formal international law. The proliferation of states and the rise of a titanic Cold War and ideational

80
rivalry between the forces of communism and Western capitalism fundamentally shaped the
operation of these multilateral institutions. Especially because China embraces capitalism, today’s
international institutional precipice is by comparison quite a bit less momentous.
How relevant is this history to the situation of today? An unrivaled American power could never
have survived forever.206 The rise of China will change the international order. Yet John Ruggie
argued that multilateralism is particularly resilient, and I agree. The buy-in that multilateralism
creates is politically advantageous, and the consent-based nature of multilateral solutions renders
principled multilateral solutions more easily defensible at home and abroad. Even if multilateralism
generates less than ideal outcomes, weaker states know that a world without multilateralism would
not be better, and they too will defend multilateral over unilateral strategies. To be sure, great
powers still have the means and power to go it alone. But deviating from multilateral rules,
institutions and laws jeopardizes the support of others. This is something that Hans Morgenthau and
China’s Foreign Minister Wang Yi both recognized.207
Multilateralism changed international law making and international politics by creating new
venues where strong powers had to defend their actions in principled terms, and where weaker
powers could pursue shared interests and craft internationally binding agreements. It created new
international institutional actors that drew on the textual resources of mandates, charters and laws,
and that made their own choices about which policies and ideas to champion in their agenda setting,
policy drafting, implementation and oversight roles. Power politics still operates, and international
institutional actors have to carefully navigate between the principles and the power-interests of
states and private actors. There may be no better evidence that multilateral politics were and are
different than the fact that the same forces that undermined the ITO failed to stop the creation of the
Law of the Seas or the International Criminal Court, two international legal developments that went
ahead despite significant American opposition and political pressure.
The contribution of this Forward was to examine how capitalism generates a counterforce that
operates through the global economic law legal complex. Going beyond the IL/IR bifurcation of
domestic and international law, the analysis brings into light colonial and multilateral era legal tools

206
The idea that great powers eventually decline, and the role of war in undermining power are classic arguments in IR.
See PAUL M. KENNEDY, THE RISE AND FALL OF THE GREAT POWERS : ECONOMIC CHANGE AND MILITARY CONFLICT FROM
1500 TO 2000 (1987). ROBERT GILPIN, WAR AND CHANGE IN WORLD POLITICS (1981).
207
See notes 38 and 39.

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that contributed to European international law and European and American statecraft. Already in
the colonial era, as economic power replaced coercion as a political tool of imperial influence,
binding international and extraterritorial law became a more prevalent tool of international political
influence. The War on Terror then further expanded the category of extraterritorial domestic law in
the multilateral era.208
China has become very adept at using the legal strategies that Americans and Europeans
pioneered. China is using international legal arguments and the construction of facts on the ground
to assert its territorial claim in the South China Seas.209 Its Belt-Road initiative comes with binding
contracts and a separate Chinese court system to adjudicate foreign investment disputes.210 In
combination with the Communist Party’s ability to regulate the flow of Chinese tourists, trade, and
market access, China is poised to use its extraterritorial legal and economic power as a tool of
political influence.211 These trends make it is impossible to ignore that law remains an active tool of
international statecraft and power.
This Forward has advanced three arguments that remain relevant going forward. The first
argument is that capitalism has an economic logic that differs from the political and legal logics of
colonialism, authoritarianism and democracy. Economic actors then and now are profit seeking, and
they are willing use whatever legal arguments work (domestic, transnational or international).
Global economic actors will work within and around domestic and international laws, and through
and around governments, to protect their vested economic rights.
The second argument is that capitalist forces operate beyond and outside of the traditional IL/IR
category of agreements between states. We need to think of global economic law as a regime
complex with multiple legal options. Where capitalist actors can influence multilateral solutions,

208
Sheppele, THE EMPIRE OF SECURITY, 247-252. The extraterritorial category includes Orde Kitterie’s lawfare idea,
which describes American efforts to use law and US market power to further its security objectives. ORDE F. KITTRIE,
LAWFARE : LAW AS A WEAPON OF WAR (2016). Extraterritorial law is also being joined with weaponized
interdependence, a power-resource and structural force employed by powerful states to put pressure on others. See:
DANIEL W. DREZNER, ET AL., THE USES AND ABUSES OF WEAPONIZED INTERDEPENDENCE (2021).
209
Zhiguo Gao & Bing Bing Jia, The Nine-Dash Line in the South China Sea: History, Status, and Implications, 107
THE AMERICAN JOURNAL OF INTERNATIONAL LAW 123(2013).
210
Malik R Dahlan, Envisioning the Foundation for the Law of the Belt and Road Initiative; Rule of Law and Dispute
Resolution Challenges, 62 HARVARD INTERNATIONAL LAW JOURNAL ESSAY 1(2020).
211
Wong, HOW NOT TO WIN ALLIES AND INFLUENCE GEOPOLITICS.

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multilateral strategies are at a minimum acceptable and perhaps even preferable. But most of all
economic actors want their vested advantages to be legally secure. Where multilateral initiatives
threaten their vested rights, or their patron’s willingness to defend their rights, they will turn against
multilateralism. Because unilateralism and coercion are no longer seen as internationally legitimate,
when multilateral initiatives are blocked, the most likely result is a more power-based bilateralism.
Bilateralism in combination with extraterritorial domestic law and transnational private/commercial
law has created continuities from the imperial era, because as Ruggie notes, bilateralism allows the
country with greater power to set the terms of the agreement. Even if nationalist and authoritarian
leaders prioritize their own autonomy and power above all, as long as capitalism remains the
operating system of the global economy, similar economic logics are likely to continue to shape
global economic law, international law and international relations.
A third argument is that non-decisions–a failure of states to agree or assent to multilateral
solutions–can be as important and consequential as are the collective decisions that states do make.
I discussed three non-decisions in particular. The first was Republican success in derailing the
adoption of the ITO Charter, which created an absence of multilaterally negotiated international
investment rules while also delinking commodity agreements from the global trade regime. A
second non-decision was the World Bank’s decision to pursue ICSID but not a common set of
investor rules or an insurance scheme. The third non-decision involved the failure to stabilize the
international monetary system after the US broke its gold-convertibility promise. My claim is not
that these are the most important non-decisions. Surely the global failure to address climate change
would top that list. Rather, my counterfactual claim is that a multilateral solution, if it did exist,
would look different.
I am specifying how global capitalist interests operate through the larger global economic law
complex, a set of legal rules that are made by but not fully controlled by states. It is not new to
argue that capitalism follows its own political and economic logic, that capitalist interests are not
defined by a national culture or limited to one geography, and that capitalist interests exercise
power that is global in its reach. Whereas Karl Marx argued that capitalists have monolithic
interests that are materially determined, and neoliberals offer a one-size fits all pro-property rights
solution, my argument is different. No one state has the power to redefine the legal rules of the
global economy, yet the ability of capitalist interests to maneuver around the global economic legal
complex is only possible insofar as states both cede legal regulation to the companies and provide
the domestic legal enforcement tools that companies use to limit competitor’s encroachments and to

83
protect their property rights. The practice of letting companies escape and profit from the
metropole’s legal power spans the colonial and multilateral eras. The first two quilt pieces
explained how jurisdictions jumping began in the long-distance trading era. Today, the possibility
that firms will simply move their headquarters is how policymakers defend their inability to address
local problems generated by global capitalism.
One can hope that multilateral solutions will be more consent based and normatively defensible,
and less prone to global economic shocks like the 2007 global financial crisis. But given that power
politics operate through multilateral politics, this cannot be assumed. International regime
complexity allows for regime shifting and contested multilateralism.212 International regime
complexity also parcels responsibility and authority across venues. The fragmented distribution of
law and authority allows each institution and responsible party to claim that the problem resides
elsewhere in the global economic law complex, in a BIT, in contracts, in the World Bank’s or
IMF’s decision-making, in the failure of the UN etc. International legal scholars generally prefer
centralized solutions, as this is the best way to avoid legal fragmentation. But global capitalism
prefers legal fragmentation, and in general economic actors do not want any single set of actors or
institutions to create a centralized accountability or to resolve the tensions within the legal systems
that facilitate their operations.
This problem is neither new nor unknown. But it tells us where to look to understand how
global capitalism operates across very different international systems of governance. One might
blame the violence of the 19th century on Europeans, and the inadequacies of the current global
economic rules and institutions on an American neoliberal exuberance. One might also blame
multilateral institutions that in the 1990s fell prey to the allure of neoliberal ideas, thereby becoming
willing handmaids of neoliberalism. Yet it is also true that the US wanted to be a different sort of
hegemon compared to European colonial powers. Moreover, the US was different. American
dominance and leadership facilitated the end of empire, the incorporation of newly independent
states into a new system of global governance, and the most generative moment of international
institutional, legal and economic development in world history. The post WWII international
system, despite its many limitations, has overseen the greatest advances in the health and education

212
Laurence Helfer, Regime Shifting in the International Intellectual Property System, 7 PERSPECTIVE ON POLITICS
39(2009);Morse & Keohane, CONTESTED MULTILATERALISM.

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of humans, and a decrease in global poverty. As John Ruggie argued, the world today would look
vastly different had Nazi Germany or the Soviet Union won WWII.213

The task ahead: bringing all forms of global economic law back in

This historical journey has always had a forward looking objective. If I am right that capitalism
is a counterforce that operates through the regime complex of global economic law, then just like
China wants to be a different hegemon compared to the United States, it might find itself limited by
the global economic regime complex, and by its own foreign investment and economic interests. If
this analysis is correct, the national-populist solution of reclaiming the absolute sovereignty of
states will not be the antidote that some imagine it to be.
Tom Ginsburg has persuasively argued that authoritarian international law will be different,
noting areas where liberal and authoritarian states adopt different rhetoric, foreign policy and
international legal practices.214 His is a political argument, and most of the categories Ginsburg
identifies relate to liberal political values of democracy, human rights, and the rule of law. My
argument, based on the logic of capitalism, suggests a counter-force that follows its own logic. The
multilateralism-capitalism tension could be summarized as follows: the technology of
multilateralism could be a resource to generate global economic rights that either repatriate
sovereign power to the national level or replace customary, judge-made or bilateral international
law with multilateral international law, but this technology is foiled by an alignment of firm and
state interests in avoiding multilateral solutions that are not to their liking. The temptations of
international power may be an additional counterforce. It may well be naïve to believe that any
economic hegemon will be able to avoid the incessant temptation to throw their weight around so as
to favor their own domestic objectives and interests in international interactions.
An obvious conclusion of this analysis is that we need to fill in the blind spots of IL and IR,
actively studying how transnational private law and domestic extraterritorial law operate as tools of
international political power. A related conclusion is that decolonizing international law will not be
enough. Critical and neo-Marxist scholars often consider both international and multilateral

213
Ruggie, MULTILATERALISM, 585.
214
Tom Ginsburg, Authoritarian International Law?, 114 AMERICAN JOURNAL OF INTERNATIONAL LAW 221, 233-241
(2020).

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international law as a form of imperialism. The solution then is to decolonize international and
multilateral international law. Yet this Forward locates the continuity in capitalism, while at the
same time refuting the idea that capitalism is inherently imperial. Markets create incentives, and
economic actors seek profit and protection of their vested rights. There is not thing wrong with
these incentives; market incentives are what they are. Governments would be wise to work with
these incentives, encasing markets in governance rules that ensure that the pursuit of self interest
does not harm society, politics, and the environment.
The question at hand is how multilateralism and global economic law can be rewritten to
encase the global economy so as to better protect national choice while avoiding the political and
environmental turmoil that the current system has generated. Figure 2 below repeats the Figure 1
map of the multilateral era, adding shading to the two areas that this essay highlights. Because the
complex maps the sources and not the content of the legal rules, it incompletely captures
substantive gaps, soft law elements, and elements that may be important for the world of finance.
The larger point, however, is that decolonizing IL will be insufficient to address these political and
market-based legal evolutions, unless private contracting is brought into the domain of multilateral
international law.
As mentioned, regime complexes include lacunae and gaps, sometimes by design and other
times by accident. The problematic elements of transnational private contracting thrive in these
gaps. Private contracts are always limited by state governance, which may for example prohibit the
selling of babies and body parts or the use of misleading marketing practices. But if something
illegal in one market is allowed in another market, a transnational contract can proceed and even be
transnationally enforceable. Global contracting floors–such as a ban on slavery and the slave trade–
fill gaps in the international regime complex. The post-globalization suggestion is to use
multilateral international law to better balance public priorities by multilaterally prohibiting or
limiting the transnational enforcement of certain practices, or by authorizing national choice so as to
preclude some of the detrimental aspects of private contracting and extraterritorial domestic law.
The suggestion is not to eliminate private contracting, or to replace domestic difference with one-
size fits all solutions. Rather, the recommendation is to create a multilaterally negotiated private

86
contracting floor that protects national choice.215 After a global floor is established, states can
continue to create their own higher regulatory ceilings. To be sure, market regulation requires
constant updating so the floor cannot be static. Moreover if we have learned anything from the
WTO’s many challenges, it is that we need to create a more flexible multilateral way to update
global economic rules. But a global floor could include principles regarding state exemptions and
transparency, making it harder for business to hide and disperse in various legal venues. Post-
pandemic it is also clear that a global floor will need to allow for emergencies–droughts, natural
disasters and pandemics–where governments will inevitably focus on the supply of food and
healthcare at home.
An additional take-away is to use the entire regime complex of global economic law to promote
multilateral goals. An already mentioned goal is to encase the global economy in a way that protects
nation’s economic sovereignty, but the strategy also applies to climate change. For too long, global
climate change strategies have focused on inter-state agreements. By adding ecological liabilities to
contracts or to their domestic and international systems of enforcement, and by creating an
extraterritorial reach to domestic environmental rules (e.g. only admitting goods produced in ways
that meet national environmental standards), the now-toothless Paris Climate Agreement would
gain significant legal strength. Such a system might even encourage greater local production, which
can more easily meet national standards. This is just one example, but the larger point is that we
should emulate the success of global capitalists by deploying the whole legal tool kit to support
collectivist objectives.

215
Horatia Muir Watt proposes the European Convention on Human Rights as a possible multilateral floor, a step that
would require European judges to apply the New York Convention in conjunction with the European Convention.
HORATIA MUIR WATT, THE CONTESTED LEGITIMACY OF INVESTMENT ARBITRATION AND THE HUMAN RIGHTS ORDEAL:
THE MISSING LINK (Walter Mattli & Thomas Dietz eds. International arbitration and global governance : contending
theories and evidence. 2014). My suggestion would be a multilateral decision to subordinate transnational private
contracting to either national or international standards.

87
 Figure 2: Global law complex in the multilateral globalization and post globalization eras

Globalization Era Post-Globalization

Era?

Note: What matters for this figure is the positioning. The relative size is notional; some categories are drawn larger
because modern capitalism is more complex and law-based, so I imagine that laws are more numerous and prevalent.

To be sure, these are partial solutions. Economic power still remains, and this power can operate
via exit, domestic extraterritorial law, weaponized economic interdependence, intentional
complexity or algorithmic trading,216 or coercive force. We might also worry that the antidote to
over-globalization could be worse than the disease. But a global capitalism and law approach will
think about the legal encasement of markets to promote social, political and normative values, and
to facilitate global solutions to pressing joint needs while simultaneously allowing to national
polities to pursue their own paths and priorities.

Many diplomats and scholars see the American-led Liberal International Order as in decline.
The question is “what comes next?” Post WWII, the US inherited a discredited international order
and a system of international law that was widely seen as illegitimate. China is inheriting a
multilateral international order that is both more legitimate and appreciated. It is hard to imagine
states ceding the constitutional basis of the current international order since states benefit
tremendously from the formal right to sovereign equality, and from a UN system that defends these

216
MATTLI WALTER, DARKNESS BY DESIGN: THE HIDDEN POWER IN GLOBAL CAPITAL MARKETS (2019).

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rights. Perhaps to demonstrate their contrast with an America First agenda, Chinese leaders are not
envisioning abandoning international cooperation or multilateral institutions. But they do aspire for
a different sort of international order, one that is more respectful of national sovereignty and less
politically intrusive in domestic affairs. Not only is this a sincere desire, but it is also an attractive
vision for authoritarian minded leaders and nationalists around the world.217 Yet to the extent that
capitalism shapes Chinese and Western interests, and because capitalism operates through a global
economic law complex, we may well find that once again, that for some international political
economy issues, the more things change, the more they stay the same.

217
Ginsburg, AUTHORITARIAN INTERNATIONAL LAW?

89
Author: Karen J. Alter
Title: From Colonial to Multilateral International Law: A Global Capitalism and Law
Investigation
iCourts Working Paper Series, No. 248, 2021

Publication date: 17/May/2021

URL: http://jura.ku.dk/icourts/working-papers/

© Author
iCourts Working Paper Series
ISSN: 2246-4891

Name, Karen J. Alter, Professor of Political Science and Law, Northwestern University
Email: kalter@northwestern.edu

The iCourts Online Working Paper Series publishes pre-print manuscripts on

international courts, their role in a globalising legal order, and their impact on politics
and society and takes an explicit interdisciplinary perspective.

Papers are available at http://jura.ku.dk/icourts/

iCourts
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