About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
In this interview, Katharine Fortin talks to Kathryn Greenman about her new book ‘State Responsibility for Rebels: The History and Legacy of Protecting Investment Against Revolution’ (2021, CUP). The interview will be of interest to scholars working on State responsibility (particularly 9 and 10 of the ARSIWA), investment law, (critical) history of international law and decolonisation. The book traces the emergence and contestation of State responsibility for rebels during the nineteenth and early-twentieth centuries. In the context of decolonisation and capitalist expansion in Latin America, it argues that the mixed claims commissions-and the practices of intervention associated with them-served to insulate economic order against revolution, by taking the question of who assumed the risk of harm by rebels out of the scope of national authority. The jurisprudence of the commissions was contradictory and ambiguous. It took a lot of interpretive work by later scholars and codifiers to rationalise rules of responsibility out of these shaky foundations, as they battled for the meaning and authority of the arbitral practice. The legal debates were structured around whether the standard of protection against rebels owed to aliens was nationally or internationally determined and whether it was domestic or international authority that adjudicated such standard-a struggle over the internationalisation of protection against rebels.
Kathryn Greenman is a senior lecturer in law at the University of Technology Sydney (UTS). Kathryn’s research is interested in the interrelation between the economic and the humanitarian in international law. Her work touches upon state responsibility, international investment law and international humanitarian and human rights law and has been published in the London Review of International Law, the Leiden Journal of International Law and the International Journal of Refugee Law. With Anne Orford, Ntina Tzouvala and Anna Saunders, Kathryn is an editor of the collected volume Revolutions in International Law: The Legacies of 1917 (Cambridge University Press 2021).
Katharine: First I’d like to congratulate you on what I find to be a very fascinating and also unusual book. It’s unusual because it delves into a body of case law, that is hardly known but clearly continues to have significance influence on the law on State responsibility. It’s also unusual because it brings together different strands of public international law that despite having a common lineage rarely come into contact with each other. It’s as if you’ve done the work of a genealogist on the law of state responsibility and armed groups, questioning, explaining, puzzling and untangling – in order to find out how the law today is as it is. I’d love to hear more about some points in the book and your motivation for writing it, so I’m very pleased to have the opportunity to ask you the following questions.
I’m curious first to hear how the idea for the book came about? What got you interested in this very old case law from the turn of the last century?
Kathryn: On one hand, I started the PhD from which this book was born in 2013 when I think the turn to history in critical circles in international law was really getting into full swing. So I was definitely very inspired by this historical scholarship in critical international law and excited by the possibilities of using a historical approach to critique present international law. At the same time, I was beginning to find unconvincing the accounts in the existing literature of why responsibility for armed groups and why now. This was often treated as self-evident. I remember that in some of my own early work I, like many others, had argued that the responsibility of armed groups was a ‘gap’ in international law and my then daily advisor sent me Roger O’Keefe’s ‘Once upon a time there was a gap’ and it really made me think! So both of these things together drove me to look backwards to try and figure out how we came to be where we are and how the responsibility of armed groups seemed to emerge as a problem for international law at a particular time.
Originally the mixed claims commissions were just going to be one chapter of the PhD, and there were going to be other chapters about the Geneva Conventions and the Additional Protocols and the contemporary practice, and the Spanish Civil War and decolonisation. So in one sense things got a bit out of hand, but I also realised that this could stand alone as a story.
Katharine: At the beginning of the book you refer to the growing body of investor claims coming out of the series of revolutions and civil wars known as the Arab Spring, that are relying on arbitral awards relating to State responsibility for rebels that are over one hundred years old. Perhaps it’s helpful if at the start of this interview, you briefly describe to the readers the sort of factual scenario that these claims – the old ones and the new ones – look like? Who is the claimant? Who is the respondent? And what is the complaint about?
Kathryn: For the older claims, they were brought by foreign nationals against a state. In practice most of the claims were against Latin American states. One important type of claim was where a foreign national was killed, injured or detained by rebels, they were forced to loan money to rebels, or their goods or property were seized, damaged or destroyed by rebels. Property claims tended to be most common. Foreign nationals included individuals, companies and other sorts of associations. It was the full spectrum, from ‘rebels killed my husband or burnt down my garden shed’ to ‘rebels blew up my mine or stole my consignment of coffee beans’, although it’s my argument that the personal claims were secondary to the commercial ones. There were also claims based in contract where a right that a foreign national had under a concession agreement was damaged, for example. Maybe rebels stopped the railway running or something. The ‘international’ status of these contract claims was controversial, but mixed claims commissions often took jurisdiction over them anyway. There were other sorts of claims too though. Foreign nationals would voluntarily loan money to rebels or sell them arms or enter into other sorts of business arrangements with them. When these arrangements fell through, the foreign national would bring a claim against the state for compensation. All of these claims were based on the rules of state responsibility for injuries to aliens or alien protection.
In terms of the contemporary claims, these are brought by foreign investors where their investments are damaged or destroyed by rebels or reduce in value due to their conduct. These claims are most commonly based on the state having failed to fulfil their obligation to provide investments with ‘full protection and security’ under a relevant bilateral investment treaty. Examples include claims where rebels attacked an oil pipeline resulting in an investor not receiving the gas supply they were contractually entitled to, rebels looted constructions camps that were subsequently abandoned by the investor due to the poor security situation, and where a prawn farm was damaged during hostilities between rebels and government forces.
Katharine: In your book, you bring to light case law from three sets of mixed claims commissions: the nineteenth-century Mexican-US commissions of 1839, 1849 and 1868; the Venezuelan commissions of 1903; and the Mexican commissions of the 1920s. You indicate that you chose these three commissions out of forty plus similar commissions operating at the time. Can you explain why you chose to focus on these three commissions? And how/ whether they differed from some of the other commissions? I suppose I’m just wondering what still lies uncovered (if anything) in these other unstudied commissions and how/ whether it might change your findings.
Kathryn: On one hand, I chose those commissions because I argue that they represent the beginning, the middle and the end—or if we are so inclined, the rise and fall—of the mixed claims commissions. The 1839 Mexico–US commission (actually a domestic commission but based on an unratified international treaty) and 1849 Mexico–US commission were the first two commissions that I could find that addressed state responsibility for rebels. They addressed claims coming out of the Mexican War of Independence and the first few decades thereafter. The 1903 Venezuelan commissions (see here and here), which were established following the Venezuela blockade, were really a high point in several ways. They were so directly and openly imposed by force, and their awards were so influential on later scholars’ development of doctrine—they are some of the most widely cited awards in the context of state responsibility for rebels. At the time they were described as ‘the most notable instance of international arbitration in the history of the world’! In contrast, the 1920s Mexican commissions (see here and here), which dealt with claims coming out of the Mexican Revolution, had a less overt relationship with the use of force and a number of them had equitable rather than legal jurisdiction. I argue that they represented mixed claims commissions on the wane.
All of these commissions received lots of claims about responsibility for rebels, hundreds in total, so by choosing them I had a lot of material to work with. Looking at these commissions covers a significant number of the most influential awards. Other commissions dealt only with single claims or received few claims about responsibility for rebels. The commissions I looked at also had easily accessible records so there was a more practical aspect to their choice as well. The other set of commissions that I would have liked to look at was the commissions with Chile in the 1890s after the Civil War/Revolution of 1891, but it just wasn’t so straightforward to access information about them. There was very little available information about some of the other commissions.
One interesting thing that my choice of commissions overlooked is that there were claims against colonial powers (made by other colonial powers) about damage caused during anti-colonial uprisings. I engaged briefly with some of the awards in these claims (e.g. Spanish Zone of Morocco Claims, Home Frontier and Foreign Missionary Society of the United Brethren in Christ (United States) v Great Britain), but I didn’t really contextualise them. There were also a couple of commissions between Latin American states. So there are definitely other stories there.
Katharine: One of the main arguments in your book is that the existence of these claims commissions took the regulation of the conditions of entry into capital out of national jurisdiction, thereby insulating economic order. Can you explain a bit more to readers of this blog what you mean by that and why it was special at the time?
Kathryn: My argument is that the mixed claims commissions ‘internationalised’ the resolution of disputes between foreign nationals and capital-importing states. The obligations owed to foreign nationals by capital-importing states would be determined by an international arbitral tribunal as would the question of compensation for their breach. It’s not the case, as I show in the book, that these tribunals always decided against states. But they did say that all states owe foreign nationals a certain degree of protection against rebels and that this duty was to be enforced internationally. Now, this did not actually prevent states from making domestic laws or putting clauses in contracts with investors to the effect that foreign business had to accept the risk of injuries by rebels or even just that disputes would be resolved by domestic courts. But this could always be overridden. While mixed claims commissions had to be agreed on an ad hoc basis, demands for international resolution of claims were accompanied by diplomatic and not infrequently military pressure. The existence of this system reduced the risk of doing business—even though political instability was very much a foreseeable risk and not an unreasonable price to pay perhaps for the huge profits that were being made. It provided economic and commercial relationships with a certain amount of insulation from revolution and civil war. Foreign traders and investors knew that if things went wrong, there was the possibility of internationally enforceable compensation claim as a back-up. Some of the commissions that I study received hundreds of millions of dollars’ worth of claims, so a lot was at stake. That this took place in the context of the decolonisation of Latin America is crucial. It was the first experiment in economic ordering through international law after the end of formal colonialism. How were Britain, France, Germany and the US going to access Latin American markets and resources without political control? How would Latin America’s integration into the North Atlantic economy be protected against revolution and civil war? One way was through state responsibility for injuries to aliens enforced by mixed claims commissions.
Katharine: In Chapter 3 of your book, you develop a theory that the rule of retrospective responsibility for successful rebels now articulated in Article 10 of the Articles on State Responsibility came about by accident, through a misreading – rather than through logic or policy. This is very interesting. Can you briefly explain this argument?
Kathryn: The ILC commentaries to Article 10 ARSIWA cite the Bolívar Railway Case in support of the rule, as do a number of US leading commentators from the 1920s. The Bolívar Railway Case was an award from the British-Venezuelan commission of 1903. It’s the first articulation I can find of the rule in Article 10. It draws on a US Supreme Court case Williams v Bruffy to support the rule of retroactive responsibility for successful rebels and non-responsibility for unsuccessful ones. But the extract it cites from Williams v Bruffy deals with the case of secession. It turns out that if you read Williams v Bruffy in full, the US Supreme Court distinguished secession from the case where a de facto government ‘has expelled the regularly constituted authorities from the seats of power and the public offices, and established its own functionaries in their places’. In the latter case, the rule that states are responsible for the conduct of their governments be they de jure or de facto applies. Success or not doesn’t come into it. In Williams v Bruffy, retroactive responsibility for successful rebels only applies in the event of a successful secession, not in the case of a successful revolution in the same state. The umpire in the Bolívar Railway Case totally ignored this distinction and it subsequently got forgotten. Through ongoing citations, the mistake kept getting repeated and just became fact. So Article 10 is as it is today because of a random mistake made in 1903 by the umpire of the British-Venezuelan commission, a US lawyer and politician called Frank Plumley. I suppose this ties in with another important thing about the book, which is that it is a very detailed study of how arbitral practice was received and interpreted by later scholars and codifiers and just how much interpretive work was done to find normative authority in what was in large part a pretty messy and contradictory set of awards.
Katharine: You assert that Article 10 of the Articles of Responsibility for Internationally Wrongful Acts has been largely irrelevant, by which I think you mean it has been hardly used. If we agree that this is true, do you think that this is because of its unstable foundations or is it simply because there are very few instances in which armed groups have actually been successful in the manner in which the article requires?
Kathryn: That’s an excellent point. Even if there was a convincing intellectual justification for the rule, it would never be a rule of everyday application. Successful revolutions and secessions are relatively infrequent of course. But then I suppose the question becomes: why is it that the only rule coming out of the mixed claims commissions to make it into the ARSIWA is one that deals with a peripheral situation. Roberto Ago retained a reference to due diligence, although he didn’t go as far as turning it into a rule of attribution. This option was open to him though in my view. James Crawford then carves due diligence out entirely into the sphere of primary obligations—a decision that was necessary to achieve consensus of course because of the intense disagreement over the appropriate standard of due diligence, but one which I argue gutted the rules of state responsibility for rebels in the ARSIWA of relevant content. And it doesn’t solve the disagreement about the standard of due diligence either. It has just left it to play out, for example, at investment arbitration tribunals and the winners from that have been foreign investors.
Katharine: I’m imagining the current situation in Afghanistan would be a classic Article 10 situation. Do you agree? And if so, what kinds of claims might this allow and in what forum?
Kathryn: I do agree, yes. As I read Article 10 ARSIWA, it means that Afghanistan is responsible for the conduct of the Taliban since the beginning of their insurgency—so I suppose since around 2003. It’s the retroactivity of this responsibility that is really interesting.
One scenario I can see flowing from this is that foreign investors could use investor-state dispute settlement (ISDS) mechanisms to enforce arrangements made previously with the Taliban against the Afghan state or seek compensation from the state for damage caused to their investments by the Taliban or the failure of the Taliban to provide their investments with security in Taliban-controlled areas or during Taliban military operations even prior to the Taliban’s taking power. According to Investment Policy Hub, Afghanistan only has three bilateral investment treaties in force (with Iran, Germany and Turkey) so it’s perhaps not very likely—and I don’t want to give any foreign investors any ideas—but it’s certainly a plausible scenario I think. Daria Davitti, whose fantastic book is about investment protection during armed conflict taking Afghanistan as a case study, would be a good person to ask about this!
You could also imagine complaints being brought against Afghanistan for violations of international humanitarian law by the Taliban during its insurgency, or other sorts of claims by individuals or local communities. However, compared to ISDS, there just aren’t the same sorts of mechanisms to bring or enforce these claims, so it’s the foreign investment protection scenario that I keep coming back to—the potential liability could be significant.
Katharine: One of the parts of the book that I found most interesting was your reflection on Article 9 of the Articles on State Responsibility and the similarities between the principle that it reflects (if applied to armed groups) and earlier case law from the mixed claims commission. One of the reasons that I found it so interesting is that this was an Article that I struggled with in my own research on armed groups and international law. In reflecting on this case law and its relationship with the modern law on State responsibility, you provide an explanation for some of the oddities in these rules that I found convincing. You argue that two different strands of case law relating to armed groups have got conflated over time (i) case law relating to the continuity of government and (ii) case law relating to responsibility of States for the acts of armed groups. You explain how both strands of case law got caught up in the drafting process of the Articles on State Responsibility, despite only one strand of case law having a proper connection to the notion of attribution which ended up being the focus of the final project. I liked how you explained this. It made sense to me. In particular, it provides an explanation for why the application of Article 9 and 10 (when applied to armed groups) apply more logically to some acts by armed groups, than others. In fact, it provides an explanation for why these articles (especially Article 9) fits awkwardly to the kind of ‘wrongful acts’ that the articles on State responsibility were designed to address (unless a strict liability approach is taken), while fitting more logically with beneficial acts. Your explanation of how these rules stemming from continuity of government found themselves in the middle of a project relating to attribution makes quite a lot of sense. In that light, you show how the changing shape of a particular drafting project can have unintended results on the rules that emerge.
Kathryn: I’m so glad you found this interesting, Katharine, because you yourself are an expert on Article 9 ARSIWA of course! This was also one of the most interesting things that came up during this research for me. Ultimately, the ARSIWA translate into secondary rules of attribution rules that were not based on a distinction between primary and secondary rules and were not rules of attribution. Some distortions have occurred in this process of translation. Rules that were originally designed to deal with the question of whether a state was bound by a contract made with a local de facto authority do not necessarily translate well into rules for attributing wrongful conduct. We probably want to be able to distinguish, for example, the question of whether ISIS marriages, tax collection or postal orders are valid and the question of whether the territorial state is responsible for violations of international humanitarian law by ISIS. We don’t want necessarily to give the same answer to those questions!
Katharine: In your book, you explain how the rule of non-responsibility for rebel groups was qualified by an exception that became more important than the rule. This was the rule that States owed a duty of protection or a standard of due diligence. Despite some agreement on the existence of this rule – and its confirmation in successive commissions – you show that in the Venezuelan claims commission, no finding was ever made that a respondent State was ever held responsible for a lack of due diligence. Were there ever findings along these lines by other commissions? And if so, what did they say? What did the existence of that due diligence rule mean that a State was supposed to do – in those days – to protect businesses?
Kathryn: Yes there were findings of a lack of due diligence by other commissions, the Mexican commissions of the 1920s made a number of such findings for example. The duty of protection covered foreign nationals themselves and their property and goods, so it did capture non-commercial interests, but as I already mentioned my argument is that this was incidental or peripheral to the core operation of the duty. The reason why I think it’s important that I haven’t been able to find any such finding of negligence by the Venezuelan commissions is because their awards are so often cited in support of quite a high standard of due diligence even though that’s inconsistent with the application of the standard by the commissions themselves—in fact the held claimants to quite a high standard in terms of proving negligence on the particular facts. Some of the awards were even cited as examples of findings of negligence when that simply wasn’t the case.
Katharine: And what about today? You analyse the recent case in which a company takes a claim against Sri Lanka for the damage it suffered to a prawn farm during a counter-insurgency operation by the Sri Lanka government against the LTTE. And you analyse a recent case against Egypt in which a company took a claim for damage against Egypt for failing to exercise due diligence in preventing attacks by an armed group against an oil pipeline. In both these cases, the claimant company won and was awarded substantial damages. But what did the arbitral tribunal say was required in these instances? It strikes me that the due diligence obligation is one that that requires domestic law and its enforcement mechanisms to be realised, both of which are obviously under strain in situations of civil war. Indeed, arguably one of the key features of an insurgency is the inability of a government to enforce law. So considering these circumstances, what kind of actions is it reasonable to ask of States in these instances? The provision of security? Or more far ranging measures such as agreements with armed group? Or even repressive actions towards armed group e.g. hostilities? Surely what a government can do will depend on its capabilities or the capabilities of the armed group.
Kathryn: That’s a great question! And funnily enough, I have a new piece out in the London Review of International Law that looks in a bit more detail at some of these more recent cases.
In awards like the one against Egypt and another important recent award against Libya (Cengiz), what is required is the provision of physical security to some sort of infrastructure, like a pipeline or construction camps. The tribunals in those awards did acknowledge that the duty of protection is qualified by ‘the scale of the disorder and the extent of [the state’s] resources’. However, Libya was unsuccessful in arguing in Cengiz that they weren’t reasonably able to provide security in the circumstances due to factors such as lack of capacity, widespread insecurity, the remote and difficult location of the projects, the large number of workers involved and the considerable time required to complete the projects. My argument is that tribunals are extremely quick to find that states should have done more without a great deal of evidence or expertise to support this.
In the case of Oztas, an investor did try to argue that Libya had breached its duty of protection by failing to ‘resign and conclude protests peacefully without causing civil war’ but this argument was trashed by the tribunal, which described it as ‘unwarranted and unsubstantiated’.
However, in the middle of these two options, the question of whether states could be required to take military action to suppress rebels is probably the most interesting. Now AAPL v Sri Lanka establishes that if states do take such actions, they must take precautions in attack. They can’t be rash in their operations against armed groups. But I think states could certainly be held responsible for failing to take military action against rebels. The tribunal in Cengiz distinguished basic security, which it held that Libya could reasonably have provided in the circumstances, and dynamic security, which it held was beyond Libya’s capacities. What is this dynamic security? For the tribunal this meant security that would have enabled the construction project to continue. Could such dynamic security have required engaging in hostilities with armed groups? Almost certainly, it seems to me. The extent of such a duty is uncertain though.
Jure Zrilic has also written about this in the context of cases where states have tried to argue a defence of force majeure. Was the conflict an ‘irresistible force’ such that the State could no longer perform its obligations? In the Autopista claim (which was about protests rather than conflict but nevertheless raises similar issues), the tribunal held that:
Venezuela admits that the civil protest was not irresistible in the sense that it could not have been mastered by the use of force. This being so, the question then becomes: by all reasonable judgment how much force can a State be legally required to deploy to perform its contract obligations? The answer to this question implies a delicate assessment that calls in part for political judgment.
The tribunal found that it didn’t need to answer that question to make a decision, but it is live one and goes to the heart of the matter. As Zrilic argues, ‘[t]o effectively deal with violence, a government will often have other options than violating obligations owed to foreign investors. The question then arises what are the costs of such alternatives, measured not necessarily in monetary but, more importantly, in security and humanitarian terms.’
Katharine: In your book you show that scholarship examining the place of armed groups within the legal framework is not at all new. Indeed, you skilfully show that state responsibility for rebels was one of the most urgent problems for international law in the late 19th and 20th century and the insights that you uncover on this topic are really fascinating.
You identify the importance of reflecting on ‘claims to newness’; and provide some reflections on why modern scholarship has taken so little note of older scholarship on this topic. For example, you point out that some of the perception that armed groups and international law is ‘new’ might come from a shift in focus, from the economic dimension of the problem of rebels to the humanitarian. I also wondered whether there might be something else at play here, namely that what is ‘new’ in modern scholarship is not just the humanitarian dimension, but also the way in which armed groups are being spoken about. What is under discussion in contemporary scholarship is that armed groups themselves are bound by international norms and responsible for their breach. As far as I know this really is a relatively new perspective, but I would be curious to hear your thoughts on this. Was it discussed in any of that early case law or scholarship? In my mind, what is special about this perspective is that brings along a whole set of new questions i.e how armed groups are bound by international law, how wrongful acts can be attributed to the armed group and the whole legitimacy discussion. I assume that these questions don’t arise in the scholarship dealing with whether and when States are responsible for losses caused by armed groups? I’d love to hear your thoughts.
Kathryn: I absolutely do agree that there’s something new there. In other work I have traced the origins of the focus on the direct responsibility of armed groups to the period following the adoption of the Additional Protocols to the Geneva Conventions in 1977 when a new body of human rights practice emerged that engaged directly with armed group compliance with IHL and human rights and a new body of scholarship developed following that. I only found ONE reference to the direct responsibility of armed groups in my research for the book. It was in the Institut de Droit International’s 1900 regulations on ‘the responsibility of states by reason of damage suffered by foreigners in the event of riot or civil war’, which provided that where rebels have been recognized as belligerents, claims for damage caused by the rebels or done on their territory must be addressed to the rebel government not the legitimate government.
I think it’s interesting that this didn’t get picked up anywhere else as far as I could find because I think that the doctrine of belligerency did grapple with some of those issues you raise: the question of rebels having international rights and duties themselves and the question of their status. So I don’t think these questions are new (although the attribution one is, but then responsibility has only been conceived of in terms of attribution in the last 50-60 years). They’ve been completely reframed of course, but that then takes me back to humanitarianism. The idea that the lack of direct responsibility of armed groups is a gap in international law and that only such responsibility could adequately address the harm done by the conduct of armed groups is definitely a new one, but I don’t think we can make sense of it without putting it in the context of the reframing of rebels as a humanitarian problem.
Katharine: It occurs to me that the story that comes through when studying this kind of case law is a story of triangle of actors: State, armed group, company. The corporate actors are portrayed as the capitalist actor at risk in dangerous environments, where they face danger from the bad actor i.e. the armed group that harms them. But there is another story that can be told with the same triangle of actors that is increasingly coming to light and that is the corporate actor acting with the armed group, either giving it payments or somehow complicit in its abuses (e.g. Lafarge case). You can think of another scenario where the corporate actor is somehow complicit with the State. Were there any situations like that in the case law you reviewed? Are there any insights that your research can shed on these kinds of scenarios?
Kathryn: Yes absolutely, but those sorts of stories were mainly going on in parallel to the stories in the case law! Corporations didn’t only bring claims for compensation for losses suffered at the hands of rebels, they also funded and armed rebels to try and overthrow governments that they felt were inimical to the interests of foreign capital. In Venezuela for example, foreign companies supported the revolution led by Antonio Matos (Venezuela’s richest man) against Cipriano Castro. Although there were occasional allusions to their bad behaviour, there was no suggestion in the case law or scholarship that these corporations had any sort of international obligations or responsibility or that their home states might. However, scholars did debate whether, given that foreign corporations were accessing potentially huge profits, they could easily have foreseen the risk of political instability and they often behaved badly, they should really have access to alien protection claims. I guess we do see similar arguments being made today about ISDS—there are those who argue that reform to promote respect for human rights by investors is futile and the whole thing should be scrapped.
Katharine: I also wondered where your conclusions leave us. Where is the law going in this regard? Do you expect to see a greater convergence between the various areas of law? And where do they leave us in terms of the equity which you talk about earlier in the book about the remedies available for ‘aliens’ versus ‘locals’? Presumably, the remedies for aliens remain significantly more favourable.
Kathryn: Well, I would expect that the arbitral practice and scholarship on the protection of foreign investment during internal conflicts and particularly from non-state armed actors will continue to grow and there will be more million-dollar awards in favour of investors. And I wouldn’t expect that it would suddenly become more straightforward for local communities who’ve experienced human rights or international humanitarian law violations at the hands of rebels to seek redress, and definitely not large sums of compensation. Of course, there have been all sorts of ad hoc domestic and international reparations schemes, but not really comparable to the redress available to foreign investors. International law has a long history of insulating economic order against revolution and civil war and of prioritising the protection of economic interests over the protection of human ones in times of conflict. Those preferences are kind of built-in now, so it’s not easy to change.