Kate Miles has written an interesting contribution to a nascent literature on the history of international investment law (IIL). IIL is concerned with the obligations that states (in the international law sense) have toward foreign investors. Although the rules of IIL have long been incomplete, inchoate, embodied almost exclusively in custom, and not directly enforceable by private parties, in recent years, states of all stripes have entered into “bilateral investment treaties” (BITs) that codify and expand upon that custom. Perhaps most importantly, BITs give private actors—foreign investors—the ability to enforce their treaty rights through binding international arbitration. The result has been to transform IIL from a sleepy academic backwater into one of the most dynamic and controversial areas of international law today. This transformation is because foreign investors have increasingly turned to BITs to sue governments for actions that allegedly violate the treaties’ promises of favorable “treatment.” Most notoriously, Philip Morris, the tobacco company, has sued Australia for billions of dollars on account of Australia's passage of an antismoking law, the legality of which has been upheld by the Australian Supreme Court under Australian law. In Philip Morris's view, the antismoking law amounts to an “expropriation” of its property rights (to market cigarettes), and is compensable under IIL, even if entirely non-compensable under domestic law.

Miles's main theoretical inspiration is the work of law professor Antony Anghie, who has written a number of articles tracing the development of general international law to the experience of the Western powers in colonizing Africa and the New World. For Anghie, in order to properly understand why we have the modern international law that we do, we must understand how that law was constructed around concepts of “otherness,” of the childlike incapacity of “others,” and of the responsibility of the Western states to bring these childlike “others” into modern civilization. In Miles's account, a similar dynamic undergirds modern IIL. Her principle argument is summarized thus: “Through the assertion of foreign investment protection rules as existing international law, together with the use of force, capital exporting states directed the evolution of the substance of international investment law solely to that of investor protection”(7). By this she means that historical IIL, and its modern descendant, fail to strike a proper balance between the property rights of foreign investors and the rights of the host state government to pursue policies designed to effectuate public goods, such as protection of the environment or of health. This is because the origins of IIL lie in an era in which the sole interest of the creators of IIL was to exploit the natural resources of dependent states, and, therefore, to create a system of IIL that protected the companies who were doing the exploiting from any domestic interference by uncivilized and impetuous host states.

In illuminating the “imperial origins” of IIL, Miles seeks to promote a rebalancing of modern IIL that recognizes a more robust right of host states to regulate, even where regulation harms the profitability of foreign investments. In that sense, Miles situates herself squarely on the political left in the increasingly vituperative debate over whether IIL, in its current form, should be included in ambitious free trade agreements among the United States, the European Union, and Asia. But Miles does not wish to do away with IIL entirely; in other words, she does not argue that IIL, because it is “imperial,” serves no useful modern purpose. Rather, she wants to “reconceptualise” it (chapter 6), and her book closes by offering a number of practical suggestions for redrafting BITs to better suit her vision.

Miles's book illustrates some ways in which historical scholarship on IIL might be advanced. First, Miles, like Anghie before her, works almost entirely from secondary sources, and historical-method purists may tend to discount the work as not being “real” history. Very few works on IIL, to my knowledge, actually attempt to wrestle with modern IIL by wrestling with IIL's primary sources; therefore, there is real room for “professional” historians to enter the IIL field. Second is the issue of causation, one that bedevils even “professional” historians making “origins” claims. By definition, an “origins” claim entails the notion that we have the law of today because we had the law of yesteryear. More work needs to be done in tracing out the processes through which yesteryear's IIL actually became today's. It seems epistemologically insufficient to identify facially similar concepts across eras and to assert, even implicitly, a causal relation. In sum, however, Miles's book is an important and interesting contribution that deserves to be widely read.