FROM GUNBOATS TO BITsTh e evolution of modern international investment law 从炮艇到钻头：现代国际投资法的演变.pdf

C H A P T E R 1 7 FROM GUNBOATS TO BITs: h e evolution of modern international investment law O. THOMAS JOHNSON JR . AND JONATHAN GIMBLETT * INTRODUCTION In the Middle Ages, and even at er the emergence of the modern nation State in the seventeenth century, an alien and his property were subject to abusive and discriminatory treatment, either at the hands, or with the implicit permission, of the local governing authority.1 h e remedy for mis- 2 treatment of an alien, to the extent one existed, was reprisal from the alien’s home territory. It was not until the middle of the eighteenth century that our notion of State responsibility for injuries to aliens began to emerge. h e core of that notion was i rst stated by Emmerich Vattel in 1758: “Whoever uses a citizen ill, indirectly of ends the State, which is bound to protect this citizen.”3 h is article will trace the development of that core notion as it has been applied to the prop- erty of aliens through four historical phases: (1) the nineteenth century (ending in 1914), during which European States and the United States maintained — by legal, diplomatic, and military means — the view that international law permits States to take the property of aliens only if they compensate the alien in an amount equal to the value of the property taken, and also during which resistance to this Euro-American view began to develop in Latin America; (2) the * h e authors wish to thank Eric Sandberg-Zakian, Member of the District of Columbia Bar, for his assistance in preparing this chapter. h e authors wish to thank three anonymous peer reviewers for their helpful comments. 1. “h e legal po