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Abroad: Law, Migration, and Capitalism in an Age of Globalization

  • Author(s): Casey, Christopher Arthur
  • Advisor(s): Sargent, Daniel J
  • et al.
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Abstract

John Locke’s famous triad of inalienable rights included life, liberty, and property. Historians of human rights, however, have neglected property in favor of the more heroic categories of life and liberty. This dissertation asks what the relationship between life, liberty, and property has been in international law by studying the protection of nationals abroad in the nineteenth century and the various attempts to internationalize that protection in the twentieth.

The late nineteenth century was a global age. People, goods, and money moved around the world at unprecedented speeds and in unprecedented scales. At the same time, jurists mobilized old principles of allegiance and protection to justify intervention on behalf nationals who were far outside the territorial boundaries of their state. States, they argued, had a right to protect the person and property of their nationals abroad (a principle known as "diplomatic protection"). Such a right, however, was difficult to reconcile with the principle of territorial sovereignty. Importantly, just who was a national? Nationalism and migration tested the traditional bonds between states and their subjects and strained the stability of the international system.

The end of the First World War brought with it new potential for international legal innovation. Among the most persistent reimaginings of international law was expanding just what, or even who, could be a subject of international law. Would nations and national minorities become subjects? How would the system deal with millions of refugees? Would they gain international protection and rights to bring claims before international courts and tribunals? Would refugees be classified as a group, as members of a nation, or would individuals themselves become subjects of international law? In this moment of legal change, business interests worked with the League to craft legal instruments to smooth out the frictions of international trade and to arbitrate disputes between investors and sovereign states.

Whereas the protection of minorities and the principle of national self-determination had been central to the conception of the interwar legal order, the sovereignty of states was confirmed in the postwar world and, if there were any other subjects of international law, they were individuals, not nations or minorities. The international system was increasingly suspicious of nationality and of intervention for the protection of nationals. The response was a shift toward the individual, with human rights, the refugee protocol, and modern investor-state dispute settlement, among others.

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This item is under embargo until March 10, 2023.