Related:

• International Law, Libertarian Principles, and the Russia-Ukraine War
• Alan Bickley, The Nature of International Law: Response to Kinsella, Libertarian Alliance (UK) (17 January, 2026)
• KOL250 | International Law Through a Libertarian Lens (PFS 2018)
• Rubins, Papanastasiou, Kinsella, International Investment, Political Risk, and Dispute Resolution, 2d ed. (Oxford University Press, 2020)
• Alan Bickley, The Nature of International Law: Response to Kinsella, Libertarian Alliance (UK) (17 January, 2026)

Reprinted as “Using International Law to Protect Property Rights and International Investment,” Libertarian Alliance (UK) (6 Dec. 2025)

Update: See also my comments in International Law, Libertarian Principles, and the Russia-Ukraine War regarding a recent Human Action Podcast, where Bob Murphy and Peter Klein have an illuminating discussion about international law, in Dr. Peter Klein on International Law and “Might Makes Right”.

Regarding the hostility of some libertarians to my pro-international law views, as mentioned below, Rothbard had some relevant and interesting comments on international law.

Rothbard’s pro-international law comments in War, Peace, and the State:

The libertarian objective, then, should be, regardless of the specific causes of any conflict, to pressure States not to launch wars against other States and, should a war break out, to pressure them to sue for peace and negotiate a cease-fire and peace treaty as quickly as physically possible. This objective, incidentally, is enshrined in the international law of the eighteenth and nineteenth centuries, that is, the ideal that no State could aggress against the territory of another—in short, the “peaceful coexistence” of States.9

Suppose, however, that despite libertarian opposition, war has begun and the warring States are not negotiating a peace. What, then, should be the libertarian position? Clearly, to reduce the scope of assault of innocent civilians as much as possible. Old-fashioned international law had two excellent devices for this: the “laws of war,” and the “laws of neutrality” or “neutrals’ rights.” The laws of neutrality are designed to keep any war that breaks out confined to the warring States themselves, without aggression against the States or particularly the peoples of the other nations. Hence the importance of such ancient and now forgotten American principles as “freedom of the seas” or severe limitations upon the rights of warring States to blockade neutral trade with the enemy country. In short, the libertarian tries to induce neutral States to remain neutral in any inter-State conflict and to induce the warring States to observe fully the rights of neutral citizens. The “laws of war” were designed to limit as much as possible the invasion by warring States of the rights of the civilians of the respective warring countries. As the British jurist F.J.P. Veale put it:

The fundamental principle of this code was that hostilities between civilized peoples must be limited to the armed forces actually engaged…. It drew a distinction between combatants and noncombatants by laying down that the sole business of the combatants is to fight each other and, consequently, that noncombatants must be excluded from the scope of military operations.10

[Notes]

9 The international law mentioned in this paper is the old-fashioned libertarian law as had voluntarily emerged in previous centuries and has nothing to do with the modem statist accretion of “collective security.” [I.e., the UN and its framework. —SK] Collective security forces a maximum escalation of every local war into a worldwide war—the precise reversal of the libertarian objective of reducing the scope of any war as much as possible.

10 F.J.P. Veale, Advance to Barbarism (Appleton, Wis.: C.C. Nelson, 1953), p. 58.

This recognizes that classic international law was, in fact, perfectly compatible with libertarian natural law theory as I have maintained. I think the confusion arises partly because of legal positivism and the confused idea that international law is not “real” because there is no world government to enforce it, ¹ and because of ignorance of international law itself and the modern UN. International law pre-dates the UN and is not legislated or created by the UN.

(I still think the UN is on balance good, as a forum for states to try to settle disputes without engaging in violent combat, but negative aspects of the UN ² do not reflect on international law itself.”)

And in this connection, see the following excerpt from my book Rubins, Papanastasiou, Kinsella, International Investment, Political Risk, and Dispute Resolution, 2d ed. (Oxford University Press, 2020), ¶¶ 10.83–88:

10. Intervention of States in Investment Disputes

F. Prohibitions against the Use of Force

1. Overview

[¶10.83] Until the early twentieth century, States not infrequently applied military force against other States as a means to resolve investment disputes involving their nationals’ property.¹⁴⁵ Under certain circumstances, this sort of “gunboat diplomacy” was considered lawful under customary international law.¹⁴⁶ In his classic treatise The Law of War and Peace, the great international law scholar Hugo Grotius opined that the recovery of property was one of three situations justifying the use of force under the law of nations.¹⁴⁷

In 1900, for instance, the U.S. Secretary of State approved the dispatch of a naval vessel to Venezuela to prevent the destruction of property belonging to the New York & Bermudez Company, an American corporation. He instructed the Secretary of the Navy that “the gunboat should also protect all existing rights and maintain the status quo pending an investigation and decision as to an attempt which was alleged then to be in contemplation to deprive the company of its property by executive action.”¹⁴⁸ The Jecker Claim is another notorious example. Here, Mexico obtained a loan from a bank owned by French and Swiss interests. The Mexican government never received more than 5 percent of the face value of the loan,¹⁴⁹ but its subsequent default was one of the primary justifications for France’s invasion of Mexico in 186–62.¹⁵⁰

Today, some investors hailing from militarily and politically powerful States might favor the threat or use of force to obtain restitution or compensation for expropriated property.¹⁵¹ Such an option is no longer available, however, due to fundamental changes in international law and politics. In particular, the U.N. Charter has since 1945 prohibited the use of force to resolve disputes, except in the case of self defense.¹⁵² Today, it is generally accepted that a State may not use force against another State in response to a taking of the property of one of its nationals. This conclusion is reinforced by the modern movement toward “permanent sovereignty over natural resources,” which emphasizes the right of a State to control over its own resources and territory.¹⁵³

As Professor Brownlie concludes in his important study on the use of force under international law:

Is nationalization, with or without prompt and adequate compensation, a measure which justifies protection? If so, can a state protect property of nationals threatened not by nationalization but by laws restricting use of currency, discriminating export regulations, or taxation? May the right be exercised in favor of bond holders? It is submitted that the answer must be negative in these cases since if it were other-wise any state accepting foreign investment or permitting ownership of property by aliens is severely curtailing its sovereignty as a result.¹⁵⁴

2. The U.N. prohibition against the use of force

The U.N. Charter prohibits the use of force by any State, except in limited cases for the purpose of self defense. The general prohibition against the use of force is set forth in Section 2(4) of the Charter. This prohibition is regarded as a principle of customary international law,¹⁵⁵ and thus is applicable to all nations, not only those that have voluntarily acceded to the Charter by joining the U.N. Article 2(4) of the Charter provides:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.¹⁵⁶

The self defense exception is set forth in article 51 of the Charter:

Nothing in the present Charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.¹⁵⁷

145 M. SORNARAJAH, THE INTERNATIONAL LAW OF FOREIGN INVESTMENT 19-20 (3d ed. 2010); M. Sornarajah, Power and Justice in Foreign Investment Arbitration, 14 J. INT’L ARB. 103 (1997); ]AMES CABLE, GUN BOAT DIPLOMACY: POLITICAL APPLICATIONS  OF LIMITED FORCE (1981); Matthew B. Cobb, The Development of Arbitration in Foreign Investment, MEALEY’S INT’L ARB. REP. (Apr. 2001).

146 IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 289 (1963).

147 The other two occasions were for defense or punishment. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS, ch. 1, § 2; ch. 2, § 13 (A.C. Campbell trans., 1814), available at http://www.constitution.org/gro/djbp.htm. See also HIGGINS, supra note 37, at 238.

148 Letter from Mr. Hay to Sec. of Navy, Dec. 28, 1900, 250 MS. Dom. Let. 8, reprinted in 6 MOORE’S lNT’L LAW DIGEST 258 (1906).

149 The loan’s face value was 75 million francs, but the Mexicans received only 4 million.

150  DONALD R. SHEA, THE  CALVO  CLAUSE: A PROBLEM  OF INTER-AMERICAN  INTERNATIONAL LAW AND DIPLOMACY 14 (1955); IBRAHIM SHIHATA, TOWARDS A GREATER DEPOLITICIZATION OF INVESTMENT DISPUTES: THE ROLES OF ICSID AND MIGA 1 n.2 (1992).

151 See Hans-Hermann Hoppe, Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order, in THE ECONOMICS AND ETHICS OF PRIVATE PROPERTY 61, 80-81 (1993) (“The need for a productive economy that a warring state must have also explains why it is that ceteris paribus those states which have adjusted their internal redistributive policies so as to decrease the importance of economic regulations relative to that of taxation tend to out-strip their competitors in the arena of international politics. Regulations through which states either compel or prohibit certain exchanges between two or more private persons as well as taxation imply a non-productive and/or non-contractual income expropriation and thus both damage homesteaders, producers or contractors [i.e., those that cause wealth to come into existence]”).

152 U.N. Charter, supra note 64, arts. 2(4), 51.

153 See Chapter 5.

154 BROWNLIE, supra note 146, at 301. See also [M.N.] SHAW [International Law, 7th ed. 2014], supra note 18, at 829-31; HIGGINS, supra note 37 [Rosalyn Higgins, Problems and Process (1994)], at ch. 14. On the doctrine of legislative or parliamentary sovereignty, see Chapter 4, Section B.l.

155  SHAW, supra note 18, at 814-15. [Here Shaw cites K. Skubiszewski, ‘The Use of Force by States,” in Manual of Public International Law (ed. M. Sørensen), London, 1968, pp. 739, 742–4, p. 745 [§12.02, 12.03], and L. Henkin, R. C. Pugh, O. Schachter and H. Smit, International Law: Cases and Materials, 3rd edn, St Paul, 1993, p. 893. See also the Third US Restatement of Foreign Relations Law, St Paul, 1987, p. 27; J. P. Cot, A. Pellet and M. Forteau, La Charte des Nations Unies: Commentaire Article par Article, 3rd edn, Paris, 2005, p. 437, and The Charter of the United Nations (ed. B. Simma et al.), 3rd edn, Oxford, 2012, p. 203, noting that it also constitutes a rule of jus cogens.

See also Clive Parry, “The Function of Law in the International Community,” in Manual of Public International Law, M. Sørensen, ed. (London, 1968), §1.04, p. 35: “War, then, has ceased to be a relevant legal concept and the right of war to be a legal right.” And as usual, it all started in Rome:

From §1.02, p.10:

Our story, then, begins with Rome and its empire. While the imperial idea still held sway in Rome and the Roman world there could in theory be no state within that world save the one universal state. There was equally but one law. Theory, however, had to make some concession to reality. Thus the universal law of Rome was not the tribal ius civile of the city of Rome itself, forced upon Rome’s allies and vassals. On the contrary, it was largely the ius gentium, an amalgam of the customs practised by the numerous peoples who made up the empire. If there was one common law it was common to all because immemorially familiar to all. A common or universal law did not, moreover, connote a single jurisdiction. Under the empire, jurisdiction was parcelled out between the territorial provinces—a circumstance of great significance for the future. But, at least after the extension of Roman citizenship to the whole empire, the drawing of a distinction between the law applying to a particular people and the law applying in a particular place could have no meaning. And this was the politico-legal condition of things to which the barbarian invaders of the empire came.

And see K. Skubiszewski, ‘The Use of Force by States,” in Manual of Public International Law (ed. M. Sørensen), London, 1968, pp. 739, at 742–4, p. 745 [§12.01, 12.02]:

“We have seen in 1.04 how the traditional place and role of war in the international community underwent a basic change during the twentieth century. Prior to 1919, inter-state relations abounded in wars, and situations developed frequently where states felt free to begin wars when recourse to arms appeared to be to their advantage. But neither the study of the last millennium, especially in Europe, nor the recent date of the instruments prohibiting war warrant the conclusion that until 1919 or 1928 international law licensed war as an always perfectly lawful means of settling disputes or changing existing rights. It may be argued that the twentieth century instruments relating to the outlawry of war and the prohibition of the use of force bring to conclusion a historical development, the origins and beginnings of which go far beyond our times. In the early law of nations states had a right of war (jus ad bellum), but that right was not identical with a licence to wage war. Long before the creation of the League of Nations and the United Nations, states justified, or attempted to justify, their belligerency. In particular, states attached legal significance to the existence of a cause of war. Discussions on the just and unjust causes of war go back to the Middle Ages, but were not merely theoretical discourses of theologians, philosophers, political writers and publicists. They reflected, if not the actual practice of states, at least the preoccupations of governments and rulers.

However, until the post-1918 developments, international law lacked a specific rule prohibiting certain kinds of war, let alone war in general. We are not concerned here with rare and occasional limitations such as the neutrality treaties or The Hague Convention No. II, of 1907 (Martens, NRC, 3rd ser., vol. 3, p. 414). International law never defined the permissible causes of war. The state remained for centuries the sole judge of what constituted a valid and sufficient cause. As long as the state was, in fact, free to determine the object of its obligation, the element of legal obligation did not exist. Hence the frequent practice of states to resort to war whenever the national interest so demanded and the general acceptance among the positivist writers of the view that, prior to 1919, states had an unlimited right of war. While the right of war which states enjoyed was not necessarily unlimited, and international law did not give a licence to wage wars, it remains a historical fact that only the twentieth-century instruments have had the effect of radically modifying the place of war in international law. For it is these instruments which abolished the traditional jus ad bellum. The reader must, however, remember that this change in the law did not eliminate war and other categories of force from international life. Outlawry is one thing, compliance with the new law another. Contrary to their obligations, states continue to resort to force, and actual physical conflict remains, alas, an ever present phenomenon in inter-state relations.”

And Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment of 27 June 1986 – Merits – Judgments [1986] ICJ 1; ICJ Reports 1986, p 14; [1986] ICJ Rep 14 (27 June 1986): (wikipedia; digest): pdf, p. 100–101, ¶190:

the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law.” The Court further noted that this principle “has come to be recognized as jus cogens” (a peremptory norm of general international law from which no derogation is permitted)

—SK]

156 U.N. Charter, supra note 64, art. 2(4).

157 Id., art. 51.

***

See this Grok summary and analysis of the status of the illegality of war under customary international law:

Yes, the prohibition on the use of force against another state—except in self-defense or when authorized by the UN Security Council—is widely recognized as a rule of customary international law (CIL), independent of treaty obligations such as those in the UN Charter. This norm prohibits states from threatening or using armed force against the territorial integrity or political independence of another state.

This rule is also considered a peremptory norm (jus cogens), binding on all states without exception.

The prohibition became settled as CIL in the post-World War II era, particularly following the adoption of the UN Charter in 1945, though its foundations include earlier developments such as the 1928 Kellogg-Briand Pact (which renounced war as an instrument of national policy) . By the mid-20th century, through consistent state practice and opinio juris (the belief that the practice is legally obligatory), the norm had crystallized into CIL. Evidence includes widespread adherence to the UN Charter’s principles, the 1970 UN General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (Resolution 2625 (XXV)), which elaborates the principle of refraining from the threat or use of force , and subsequent judicial affirmations.

Prior to this period, international law often permitted certain uses of force (e.g., for debt recovery, reprisals, or conquest), but such permissive practices were progressively restricted and ultimately superseded in modern CIL.

The leading ICJ case affirming this as CIL is Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment of 27 June 1986) . In this judgment, the ICJ explicitly held that the prohibition on the use of force—corresponding to Article 2(4) of the UN Charter—exists as a rule of customary international law, binding independently of the Charter itself (see especially paragraphs around 187–201 in the judgment, where the Court examines state practice and opinio juris to confirm the customary status; for example, it states that “A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter” is found in various sources, and the Court applied it to find U.S. actions in breach of CIL obligations “not to use force against another State” ; see also excerpts confirming the customary prohibition applies to armed attacks, including via proxies ; and detailed analysis in scholarly sources noting the Court’s reliance on the rule’s customary nature ).

The Court rejected U.S. justifications for supporting Contra rebels and concluded that self-defense under CIL requires an actual armed attack, necessity, and proportionality—paralleling but independent of Charter Article 51.

Your 2022 article on the Russia-Ukraine war aligns with this view, noting that CIL prohibits aggression against sovereign states and complements treaty law in condemning invasions (https://stephankinsella.com/2022/04/international-law-libertarian-principles-and-the-russia-ukraine-war/). Similarly, your 2025 article on protecting property rights highlights how modern CIL has evolved to bar force for purposes like recovering expropriated assets, contrasting with pre-20th-century allowances (https://stephankinsella.com/2025/11/international-law-protect-property-rights/).

Regarding the development of customary international law and jus cogens, see also the similar doctrines in municipal law e.g. Louisiana civil law which regards custom as a source of law and distinguishes it from mere usage. See La. Civ. Code arts 1, 3:

Art. 1. Sources of law
The sources of law are legislation and custom.

Art. 2. Legislation
Legislation is a solemn expression of legislative will.

Art. 3. Custom
Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation.

See, on this, Gail S. Stephenson, “Custom as a Source of Law in Louisiana,” La. L. Rev. 79, no. 4 (Summer 2019): 1045–1070, Michel Fromont and Alfred Rieg, Introduction au Droit Allemand: Foundations, 1 (1st ed. 1977; J.-R. Trahan tr. 2001), p. 196–199; A.N. Yiannopoulos, “The Civil Codes of Louisiana,” in Louisiana Civil Code 2010, , ed. (West/Thomson Reuters, 2010).

See, e.g., Stephenson, “Custom as a Source of Law in Louisiana“:

Custom’s key characteristics are “longevity, consistency, and widespread observance.”40 Professor Emily Kadens condenses these characteristics into two parts: “an objective requirement that an act be done repeatedly over time [the longevity and consistency factors], and a subjective requirement [known as the opinio juris] that the people engaging in the act do so out of a sense of legal obligation [the widespread observance factor].”41 The comments to Civil Code article 3 are in accord: “According to civilian theory, the two elements of custom are a long practice (longa consuetudo) and the conviction that the practice has the force of law (opinio necessitatis or opinio juris).”

41. Kadens, supra note 11 [Emily Kadens, “Introduction: Lessons from the History of Custom,” Texas Int’l L. J. 38, no. 3 (2013): 349–355], at 350. The common law concept of custom also requires a sense of legal obligation. As one commentator explained, “[T]he custom must, even prior to its formal recognition by the courts, have created in some people an obligation to conform.” Schauer, supra note 26 [Frederick Schauer, “The Jurisprudence of Custom,” Texas Int’l L. J. 38, no. 3 (2013): 523], at 524. Furthermore, the “notion of custom arising out of a sense of legal obligation . . . has been specifically recognized as an attribute of customary international law.” David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375, 1451 (1996).

[p. 1050; most footnotes omitted]

See also Yiannopoulos, “The Civil Codes of Louisiana”:

Customs arises from a long series of acts constantly repeated, which by such repetition, and uninterrupted acquiescence, have acquired the force of a tacit and common consent. This notion of customary law was first formulated in Roman law during the period of the Republic. It is accepted today in most civil law jurisdictions. Civil codes, however, do not ordinarily include definitions of customary law because, according to modern legislative technique, definitions have no place in a legal text.

The definition of customary law indicates that customs consist of two elements: (1) a long series of actions constantly repeated; and (2) a juridical sentiment that the practice is binding. This definition makes it clear that there is a substantial difference between usage and custom. Usage is a practice lacking the element of juridical sentiment. However long repeated, usage is not binding. If a practice is binding, it is custom rather than usage. Thus, the assumption of the husband’s name by the wife was a custom because it reflected a general sentiment that the practice was binding. [LXXII] ³

… Conventional usages are certain practices, sometimes general, more often local or professional, that individuals follow in their contracts. By virtue of the principle of freedom of contracting, and the requirements of the principle of good faith, these conventional usages are implied in every juridical act. If they are not expressly excluded, they are considered to have been adopted by the parties. Such usages are particularly numerous in the relations among merchants, in labor law, in letters of credit, and in maritime contracts.

Conventional usages are clearly distinguishable from customs. Customs contain two elements, a series of actions constantly repeated as well as a feeling that these actions are binding in law. In contrast, conventional usages contain only one element, that of a constant practice. People do not consider themselves bound by conventional usages; they may adopt or reject them. Conventional usages are considered as having been adopted in a contractual relationship, in order to supply or construe the intention of the parties, because the parties are presumed to have taken them into account. The very choice of adopting or rejecting conventional usages excludes the feeling that they are binding.

[LXXIII]

And see, on this, the Grok analysis:

In international law, jus cogens refers to peremptory norms that are fundamental principles accepted by the international community as non-derogable, meaning no state can opt out or derogate from them through treaties or other agreements. Examples include prohibitions on genocide, slavery, torture, and aggression. These norms emerge primarily from customary international law (CIL), which itself requires two key elements: (1) consistent state practice (longa consuetudo) and (2) opinio juris sive necessitatis—the subjective conviction among states that the practice is legally obligatory, not merely a matter of convenience or habit. Jus cogens represents an elevated subset of CIL, where the opinio juris is particularly strong, reflecting a near-universal belief in the norm’s binding and overriding nature. Without opinio juris, a widespread practice might exist but would not crystallize into CIL or jus cogens; it would remain a non-binding convention or usage. This is exemplified in the updated discussion on the blog post, where the prohibition against the use of force (as in UN Charter Article 2(4)) is affirmed as both CIL and jus cogens: “The Court further noted that this principle ‘has come to be recognized as jus cogens’ (a peremptory norm of general international law from which no derogation is permitted)” (from the ICJ case Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment of 27 June 1986, as quoted in International Investment, Political Risk, and Dispute Resolution, 2d ed., 2020, ¶10.83–88). The added quotes highlight how pre-20th-century practices, such as using force for property recovery (e.g., gunboat diplomacy justified by Grotius for recovering property as one of three situations warranting force), have been overridden by this jus cogens norm, solidified through post-1945 state practice and opinio juris rejecting self-help in favor of peaceful dispute resolution.

This framework parallels the distinction between custom as a primary source of law and mere usage in Louisiana’s civilian tradition, as detailed in the attached documents. In the Louisiana Civil Code (as discussed in both PDFs), custom is explicitly recognized as an authoritative, primary source of law alongside legislation (La. Civ. Code art. 1). The “Stephenson” PDF (pages 7–9) defines custom as arising from “practice repeated for a long time and generally accepted as having acquired the force of law” (La. Civ. Code art. 3), requiring both objective elements (longevity, consistency, and widespread observance) and a subjective element: opinio juris, or the conviction that the practice is legally obligatory (opinio necessitatis or opinio juris). The comments to article 3 emphasize this dual requirement, drawing from civilian theory (e.g., Marcel Planiol and François Gény). Usage, by contrast, is distinguished as a secondary, persuasive source (La. Civ. Code art. 1, cmt. b; art. 4). It encompasses habits, mores, social conventions, or business practices that lack the “coercive idea” or sense of legal obligation (pages 8–9). For instance, Planiol notes that usages are “freely adopted” rather than “imposed,” and Gény describes them as non-coercive manifestations of society (e.g., etiquette or daily habits). The “Yiannopoulos” PDF reinforces this on page 63, stating that usage lacks the “element of juridical sentiment” and is not binding, whereas a binding practice with opinio juris constitutes custom (e.g., the historical custom of a wife assuming her husband’s name). Courts may resort to usages for guidance in interpreting contracts (La. Civ. Code arts. 2053–55) or filling gaps (art. 4), but they do not have the force of law like custom. Thus, just as opinio juris elevates practice to jus cogens in international law, it transforms mere usage into binding custom in Louisiana law—without it, the practice remains non-obligatory. The new quotes in the blog post illustrate this shift in international contexts: historical “self-help” uses of force for property disputes (e.g., the U.S. naval intervention in Venezuela in 1900 or France’s invasion of Mexico in 1861–62 over the Jecker Claim) were once accepted practices but lacked the opinio juris to persist as custom against modern prohibitions; as Brownlie concludes, allowing force for nationalization or property recovery would “severely curtail[] its sovereignty,” reflecting a evolved opinio juris that now deems such actions unlawful (International Law and the Use of Force by States, as quoted in IIPR, 2d ed., ¶10.83–88).

This ties into the concept of prescription in civil law, which operates as a mechanism where long-standing practice or possession can acquire legal force, akin to a form of custom grounded in time and acceptance. In Louisiana (La. Civ. Code Book III, Title XXIV), prescription includes acquisitive prescription (gaining ownership through uninterrupted possession for a specified period, e.g., 10 or 30 years) and liberative prescription (extinguishing claims after a lapse of time). It reflects civilian principles where prolonged, consistent behavior—often with an implicit opinio juris of legitimacy—alters legal rights, overriding initial defects (e.g., possessing property without title eventually grants ownership if unchallenged). This mirrors custom’s formation: both rely on longevity and a sense of obligation or acquiescence to “prescribe” new legal realities. The “Stephenson” PDF notes the historical roots of custom in preliterate societies and medieval Europe (pages 4–5), where unwritten practices became law through repetition and conviction, similar to how prescription “cures” flaws over time. The added blog quotes underscore this in international law’s evolution: Skubiszewski observes that 20th-century instruments prohibiting force “bring to conclusion a historical development” that abolished traditional jus ad bellum, yet “outlawry is one thing, compliance with the new law another,” implying that persistent non-compliance could theoretically prescribe exceptions, though jus cogens’ peremptory nature resists such erosion (“The Use of Force by States,” in Manual of Public International Law, 1968, pp. 739–745, as quoted).

Richard Epstein extends this prescriptive logic analogously to U.S. constitutional law in his book The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2014), invoking a “prescriptive constitution” to reconcile long-standing practices with original constitutional design. Drawing from common-law doctrines like adverse possession (a counterpart to civil-law acquisitive prescription), Epstein argues that entrenched institutions or precedents, even if inconsistent with the Constitution’s original intent or text, can gain legitimacy through prolonged acceptance and practice, provided they avoid massive societal dislocations. He explains: “I chose the term ‘prescriptive constitution’ to highlight the immense difficulties that arise whenever long practices are in tension with the original constitutional design,” analogizing to property law where “a continued trespass can protect title by prescription and adverse possession” after a “magic point” of time. This approach tempers strict originalism: while Epstein favors overturning errors in areas like economic liberties where text aligns with classical liberal principles, he advocates sustaining certain “constitutional errors” if they have become embedded and functional. Applied to the Federal Reserve (an independent agency blending monetary policy powers not neatly fitting legislative, executive, or judicial branches, potentially violating separation of powers on its face), Epstein’s view suggests its century-long operation (since 1913) has effectively “prescribed” its constitutionality through uninterrupted acquiescence and societal reliance, modifying the Constitution de facto without formal amendment. This echoes custom’s opinio juris (widespread belief in its legitimacy) and prescription’s time-based validation, treating the Fed as a “long-standing practice” that, despite original tensions, should be upheld to prevent upheaval—much like how custom supplants gaps in Louisiana law or jus cogens overrides conflicting treaties. The new Rothbard quotes in the blog align with this libertarian skepticism of modern statism, praising “old-fashioned international law” for ideals like “peaceful coexistence” and “severe limitations upon the rights of warring States,” while critiquing “modern statist accretion” like collective security (e.g., the UN), suggesting that prescriptive entrenchment of such institutions might warrant reversal if they infringe core liberties (“War, Peace, and the State,” Mises.org).

And more from Grok:

Jurisprudence constante, a doctrine rooted in civilian legal traditions (particularly French and other civil law systems, including Louisiana’s hybrid framework), refers to a consistent, long-standing series of judicial decisions that interpret or apply a legal rule in the same manner across multiple cases. It is not formally binding like common-law stare decisis but carries significant persuasive authority, especially when the jurisprudence forms a “constant” or unbroken line of reasoning. In essence, it elevates judicial interpretation to a near-normative status through repetition and consistency, often filling gaps in legislation or custom. As noted in the attached “Stephenson” PDF (page 3), some commentators view it as akin to custom—thus potentially a primary source of law—because it represents “an interpretation of a rule of law that has been accepted and applied by the courts in repeated decisions in a long line of cases” (quoting Mary Garvey Algero). However, Louisiana courts predominantly treat it as a secondary source with only persuasive effect, distinct from true custom (e.g., Delta Chem. Corp. v. Lynch, cited on page 3, affirming that even jurisprudence constante is not binding). The “Yiannopoulos” PDF echoes this on page 63, emphasizing that jurisprudence lacks the coercive force of custom unless it embodies opinio juris.

This concept relates directly to the analysis in several ways, bridging the civilian distinctions between custom and usage, the role of opinio juris, prescription, and even Epstein’s prescriptive approach:

• Connection to Opinio Juris and Custom vs. Usage: Jurisprudence constante mirrors the formation of custom in requiring both objective repetition (a “long line of cases” akin to consistent state practice or longa consuetudo) and an implicit subjective element of conviction (opinio juris) that the interpretation is legally sound or obligatory. In the analysis, custom demands this dual structure to become binding law (e.g., La. Civ. Code art. 3, as discussed in “Stephenson” pages 7–9), while mere usage lacks the “juridical sentiment” or coercive idea (Planiol and Gény references). Similarly, jurisprudence constante isn’t automatic; it gains weight only when courts repeatedly affirm it with a sense of normative necessity, transforming judicial habit (usage-like) into a persuasive norm (custom-like). Without opinio juris—e.g., if decisions are inconsistent or lack conviction—it remains non-binding, much like how international practices without opinio juris fail to form CIL or jus cogens. The updated blog quotes highlight this evolution: historical self-help force (e.g., gunboat diplomacy) was once a repeated practice but lost opinio juris under modern jus cogens prohibitions, shifting from permissible usage to illegality.
• Parallels to Prescription: In civilian law, prescription solidifies rights through time and unchallenged practice, “curing” initial defects (e.g., acquisitive prescription in La. Civ. Code Book III, Title XXIV). Jurisprudence constante operates analogously: a prolonged, uninterrupted judicial consensus “prescribes” an interpretation as effectively part of the law, overriding potential statutory ambiguities. This ties to the analysis where prescription validates long-standing behaviors with implicit legitimacy, similar to how jurisprudence constante embeds judicial norms over time. For instance, if courts consistently interpret a code provision in a novel way without legislative correction, it acquires prescriptive force, akin to the “historical development” Skubiszewski describes in international law’s abolition of jus ad bellum (as quoted in the blog).
• Relation to Epstein’s Prescriptive Constitution and Libertarian Critiques: Epstein’s framework, as analyzed, uses prescription-like reasoning to legitimize entrenched “constitutional errors” through prolonged acceptance, drawing from adverse possession doctrines. Jurisprudence constante extends this to civilian adjudication: repeated judicial affirmance can “prescribe” a rule’s meaning, even if it tensions with original text, provided it avoids societal disruption. In the Federal Reserve example, longstanding judicial deference (a form of constante) has effectively prescribed its constitutionality despite separation-of-powers concerns, reflecting opinio juris via acquiescence. From a libertarian lens (as in the blog’s Rothbard quotes praising “old-fashioned international law” for limiting state aggression), this raises caution: jurisprudence constante could entrench “modern statist accretions” (e.g., expansive regulatory interpretations) unless checked, much like how custom’s opinio juris might solidify jus cogens norms that override individual rights, such as barring force for property recovery. In Louisiana, where custom is primary but jurisprudence secondary, this doctrine tempers such risks by keeping judicial “custom” persuasive rather than coercive.

***

[In this connection, see my article International Law, Libertarian Principles, and the Russia-Ukraine War. —SK]

In the present discussion, the relevant question is whether the self defense exception allows a State to use force against another State in response to interference with or taking of the property rights of its nationals.¹⁵⁸ If property has been illegally taken by a host State, the use of force by a State to recover the property would fall more under the category of “self help” than self defense. Self help has been defined as “the use of force to obtain legal rights improperly denied.”¹⁵⁹ Article 51, which allows self defense, does not permit self help. In fact, it is nearly universally accepted that it is unlawful for a State to use such self help to recover property of its nationals.160 Thus, the self defense exception to the prohibition on the use of force does not allow the “self help” necessary to recover property.

Incidentally, the customary international law (not “UN” law) is more or less compatible with the views of libertarians such as Rothbard and Ayn Rand, others such as Tom Woods, etc., in Rothbard’s Objectivist Influences. Their view is that while the US government may have an obligation to respect and protect the rights of American citizens in the US, especially if the citizen travels to or invests in a regime hostile to private property rights, it should not intervene to protect his property rights from expropriation in these regimes, as he knew the risks. (Plus, as I argue in this article, there are measures the investor can take to reduce this risk, such as investment insurance, international concession agreements protected by internationalized stabilization clauses (under international law), or relying on international investment protection treaties negotiated between their home country and the host state.)

Thus, see Rothbard’s further comments in War, Peace, and the State:

Let us see how libertarian theory applies to the problem of imperialism, which may be defined as the aggression by State A over the people of country B, and the subsequent maintenance of this foreign rule. Revolution by the B people against the imperial rule of A is certainly legitimate, provided again that revolutionary fire be directed only against the rulers. It has often been maintained—even by libertarians—that Western imperialism over undeveloped countries should be supported as more watchful of property rights than any successor native government would be. The first reply is that judging what might follow the status quo is purely speculative, whereas existing imperialist rule is all too real and culpable. Moreover, the libertarian here begins his focus at the wrong end—at the alleged benefit of imperialism to the native. He should, on the contrary, concentrate first on the Western taxpayer, who is mulcted and burdened to pay for the wars of conquest, and then for the maintenance of the imperial bureaucracy. On this ground alone, the libertarian must condemn imperialism.¹¹

¹¹ Two other points about Western imperialism: first, its rule is not nearly so liberal or benevolent as many libertarians like to believe. The only property rights respected are those of the Europeans; the natives find their best lands stolen from them by the imperialists and their labor coerced by violence into working the vast landed estates acquired by this theft.

Second, another myth holds that the “gunboat diplomacy” of the turn of the century was a heroic libertarian action in defense of the property rights of Western investors in backward countries. Aside from our above strictures against going beyond any State’s monopolized land area, it is overlooked that the bulk of gunboat moves were in defense, not of private investments, but of Western holders of government bonds. The Western powers coerced the smaller governments into increasing tax aggression on their own people, in order to pay off foreign bondholders. By no stretch of the imagination was this an action on behalf of private property—quite the contrary.

In other words, Rothbard supported the classical international law, not the UN’s system, and saw it as largely incompatible with “gunboat diplomacy,” which further bolsters his (and that of others like Rand, Woods, etc.) view that if a US national or company has its property expropriated in another country, it is not the obligation or even right of the US to use force against the host country; rather, the international law principle of sovereignty and opposition to aggressive war should be upheld.

Using International Law to Protect Property Rights and International Investment

[Libertarian Alliance (UK) (6 Dec. 2025)]

Among libertarians I am known most for my intellectual property (IP) and general libertarian theorizing, as in my books Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008) and other publications. In my libertarian writing and theorizing I have tried to blend my practical and theoretical legal knowledge (of IP law, oil & gas law, international law, Roman/Louisiana/civil law, and common law) with libertarian and Austrian economics scholarship and insights.

I viewed this “libertarian legal” writing as my hobby or avocation, although I devoted a lot of time to this research and writing, and in retirement it is what occupies much of my time and attention. In my vocation, ⁴ I also practiced law for over thirty years, initially in the fields of oil and gas and international law, then specializing in IP and patent law, and general commercial law as general counsel of a high-tech company.

In addition to my purely libertarian writing (my avocation) and my legal career (my vocation), I also did a good deal of publishing and scholarship on purely legal topics such as civil law, oil & gas law, and international law—e.g., International Investment, Political Risk, and Dispute Resolution, 2d ed. (Oxford University Press, 2020), Louisiana Civil Law Dictionary (Quid Pro Books, 2011) and many others. ⁵  Some of this I did for career purposes—to advance at law firms or to help land clients. This is so-called “business development” or “client development,” which is one way to succeed or make partner at law firms, to get clients, and so on. And some of it was done as a lucrative publishing side-business—e.g., editing multi-volume commercial law, international law, and IP law treatises for various publishers, often with co-editors or co-authors. ⁶ For this reason, unlike my libertarian writing, all of which I post online for free and under Creative Commons CC-BY or CC0 licenses, much of this work is paywalled, with the copyright held by mainstream publishers such as Oceana Publications or Oxford University Press.

In the end, most of this purely legal scholarship was done because of my interest in law and legal theory itself, e.g. on international law, oil & gas law, IP law, and so on. And as noted above, I attempted to use some of this knowledge to bolster my libertarian theory work. Inevitably, some of my purely legal scholarship was affected by my libertarian views, interests, and values. For example, in earlier writing for publications such as the Russian Oil & Gas Guide and others I provided advice to clients on how to use international law to protect their investments in developing countries from expropriation. ⁷ This was all shortly after the collapse of the Soviet Union, when the ABA and its “CEELI” (Central European and Eurasian Law Initiative) and related initiatives sought to held guide emerging economies such as in newly-freed Eastern Europe in reforming their law to protect property rights, the rule of law, and so on. ⁸ I was asked by ABA/CEELI to analyze various draft laws, such as those of Romania, Lithuania, Russia, and so on. ⁹

Some of this culminated in a long law review article, “Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA & OPIC Investment Insurance,” published in the New York Law School Journal of International and Comparative Law in 1994. ¹⁰ As I noted there,

Western investors seek to benefit themselves and the populace of developing countries by investing needed capital to finance production and economic growth. But unless political risks are minimized, investors will not be willing to invest their precious time and capital. Fortunately, as the world begins to gain a greater appreciation for the importance of property rights, methods are becoming available to lower political risks to allow investment to proceed.

Concessions, directly negotiated between the investor and the host state, containing stabilization and international arbitration clauses, are one method of reducing political risks; purchasing government-sponsored or even private insurance is still another. The protections won by BITs also serve to reduce the political risks inherent in foreign investment. BITs create a regime anchored in international law which is favorable, not hostile, to investment—a regime which attempts to prevent expropriation, direct or indirect, and to provide for full compensation when expropriation does occur.

Hopefully, for the sake of both investors and the developing countries, the trend towards greater protection of the property rights of investors will continue in this direction.

My goal here was to help clients and explain how to protect private property rights, especially with investments in developing countries which have a history and tendency to expropriate such investments. This is one reason I was hopeful about the now-defunct Multilateral Agreement on Investment, or MAI— ¹¹ this was before I was aware of the use of such treaties and negotiations to export US IP protections to other countries, which I call IP imperialism.

The 1994 article got the attention M.C. Susan De Maio, an acquisitions editor at Oceana Publications, a legal publisher in Dobbs Ferry, NY. She asked me and my co-author, Paul Comeaux, to turn this into a book, which we published in 1997, Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk. I later published an expanded and updated version of this, with other co-authors, with Oxford University Press in 2005, second edition 2020, to-wit International Investment, Political Risk, and Dispute Resolution (IIPR). IIPR is in use by practitioners, students, and scholars around the world, and has been excerpted in various treatises and is used in various international law courses and has received many accolades. ¹² Like my previous writing, including the 1994 article, one goal of this work was to help western investors protect their investments in developing countries for their benefit and for the benefit of the host countries. (Some reviewers noted this pro-property rights stance, one even chiding us for a youthful and naive “pro-property enthusiasm.”) ¹³ Thus, as I wrote in the Preface to Protecting Foreign Investment Under International Law:

Political risk—the risk that a host government will interfere with the property rights of a foreign investor—is a topic that has been discussed with increasing frequency in recent years, partly because of the increasing attractiveness of investing in developing economies.  While legal and political considerations in the host state are critical in assessing political risk, international law also plays an important role.  Matters such as international responsibility of a foreign government to an investor, treaties protecting foreign investment, political risk insurance, immunity of states from suit in other states, and international arbitration between states and investors are all either governed or affected by international law.

It had been clear to us for some time, when we conceived of writing this book, that there was no up-to-date reference work integrating these and other issues that affect political risk. Many of the relevant topics, such as political risk insurance, bilateral investment treaties, and arbitration, have been addressed in various law journals in the past, but not as an integrated whole in the context of political risk.  Other topics, such as provisions in investor-state contracts that may reduce political risk, have not been given much attention at all in recent years.  And while there is certainly a wealth of material covering the international law of expropriation and nationalization, much of it is written from an academic viewpoint rather than from the perspective of assisting the investor in avoiding confiscation of property located in a host state. We thus undertook this project in an attempt to address these and other topics, integrated by a common theme: protection of the investor against the risk of interference with or confiscation of property rights by a host government.

This book is addressed to a wide audience, and is written to appeal to both lawyers and non-lawyers alike.  It is suitable as a primer for attorneys and investors seeking to familiarize themselves with international law affecting political risk.  It is also addressed to both in-house and outside counsel for corporations that either have or are contemplating foreign investment in developing countries.  Experienced attorneys involved in expropriation-related litigation should also find this book useful as a reference guide to important principles of international law related to political risk.  It should also be useful to law students studying international law and academics seeking a reference work pertaining to the legal aspects of political risk.  Practitioners should find the sample documents in the appendices of use as well, for both comparison purposes and for ease of reference.

Readers may note a certain unconventional non-neutrality in the book expressed towards both investors and governments that expropriate investments. We readily admit that we are pro-investor, since we believe in the sanctity of individual rights and private property rights.  We acknowledge the absolutely essential role of entrepreneurship and capital investment in the production of wealth and in human flourishing, prosperity, and, indeed, civilized survival. (Some of our reasons for this view are presented in Appendix I.)  For these reasons we cannot help but rejoice when private property rights are respected and gain greater acceptance worldwide, and cringe when host states engage in expropriation.  These sentiments are one motivation for our undertaking this book and, we believe, have spurred us to attempt to point out as many ways for investors to protect themselves as possible.  However, while admitting our pro-investor bias, we have attempted to remain strictly objective in our evaluation and discussion of international law and business and political realities.  Where investors face dangers and their rights are insecure, a sober and realistic assessment of these dangers is essential so that the investor may make wise investment decisions.

In the Introduction, we lay out the history and risks of expropriation of international investments, and note:

In light of this, what can an investor in a developing country do to measure the political risk in a given country before deciding whether to invest? What can an investor do to protect itself against political risk once it has invested? What type of protection against political risk currently exists under international law? Finally, what can an investor do after political risk has materialized and caused it damage? This book is an attempt to set out the answers to these questions that are provided by international law.

… International law does not provide the entire solution to an investor seeking to reduce the political risks of investing in a developing state. The laws and political climate of the host state, as well as the organizational structure of the investment vehicle, also play important roles. A solid understanding of the international law related to political risk, however, is vital to any investor seeking to reduce such risks.

In my 2005 follow-up treatise IIPR I expressed similar pro-property rights sentiments, and in fact dedicated the book to libertarian philosopher Hans-Hermann Hoppe. As I wrote in the Preface:

The present volume addresses the same issues as did the 1997 work, with updated and expanded coverage. Our goal here is to enable the investor to appreciate the risks associated with government interference in property rights, to minimize those risks and deal effectively with their consequences. But we also hope to promote understanding within host governments about investors’ expectations and concerns, to allow them to avoid conflict and maximize the benefits of foreign direct investment for their countries and constituencies.

… We are convinced that the reduction of political risk, through the active participation of both host countries and foreign investors, is a critical factor in the improvement of the human condition worldwide. Entrepreneurship and capital investment are essential to the expansion of prosperity. This conviction, in addition to a more detached enthusiasm for the subject of our practice and research, is one motivation for undertaking this book and, we believe, has spurred us to forcefully explain both how investors can protect themselves, and the ways that host States can make such protection superfluous. It should be noted that, regardless of the authors’ policy preferences, we have attempted to remain strictly objective in evaluating the realities of international law, business, and politics.

Given all this, I have been somewhat surprised to have been sometimes criticized by other libertarians for occasionally promoting international law. Most libertarians are ignorant of my legal work on international law (or of international law at all; yet they feel competent to comment on it), but I have spoken and written on it on occasion from a libertarian perspective. For example, I led a panel on related topics, based on my  at the inaugural meeting of the Property and Freedom Society in 2006: Chair, Panelist, Panel discussion, Property and Freedom Society Inaugural Meeting, Bodrum, Turkey (May 18–22, 2006): “Property Rights and the Protection of International Investment. The case of Turkey, Lithuania, Romania, Bulgaria, Czechia, Georgia, and Poland.” I spoke on this topic again at the PFS in 2018 and recently published International Law, Libertarian Principles, and the Russia-Ukraine War, Free Life (19 April 2022). ¹⁴

It is true that international law is not perfectly libertarian; neither are the English common law or Roman law, though they are largely libertarian in content. ¹⁵ International law does tend to have a leftist or socialist tinge, ¹⁶ but the UN has no power to tax or legislate and in any case the UN is not the same as customary international law.

In the past, some conservatives, such as John Birch Society types, driving cars adorned with bumper stickers like “Get the US out! of the UN,” were very wary of the UN. I understand the fear of one-world government and loss of sovereignty, but in today’s world it seems unlikely that the US will cede its authority to the UN; it has not joined the UN’s International Criminal Court or the welfarist United Nations Convention on the Law of the Sea, for example. If anything, the US is more likely to use the UN to control other nations, for example in foisting IP treaties or other treaties with IP provisions on other nations, which I dub IP imperialism. ¹⁷ But again, the UN is voluntary, cannot tax or legislate, and is not the same thing as international law.

Another criticism of international law seems to be that it is not “real” law since there is no government. This is yet another ignorant comment, which I dispatch in KOL250 | International Law Through a Libertarian Lens (PFS 2018):

In response to the simpleminded but common comment and legal positivistic sentiment that international law is not real or that international law does not exist, because there is no sovereign state and enforceable legislation, see, inter alia, Anthony D’Amato, “What ‘Counts’ as Law?,” in Law-Making in the Global Communkty, Nicholas G. Onuf, ed. (1982), Northwestern Public Law Research Paper No. 11-02, and many other treatises and papers. Also Is international law real? Professor José Alvarez weighs in (“almost all 0:18 states comply with almost all international law almost all the time. 0:22 Most people focused on the almost, but the fact is that they do comply it’s 0:28 just not front page news when they do”); International Law Explained | Kal Raustiala | Big Think; Philip Allott – The True Nature of International Law.

See my International Law, Libertarian Principles, and the Russia-Ukraine War; see also Murray Rothbard, “Just War,” in John Denson, ed., The Costs of War:

Much of “classical international law” theory, developed by the Catholic Scholastics, notably the 16th-century Spanish Scholastics such as Vitoria and Suarez, and then the Dutch Protestant Scholastic Grotius and by 18th- and 19th-century jurists, was an explanation of the criteria for a just war. For war, as a grave act of killing, needs to be justified.

… Classical international law … should be brought back as quickly as possible.

In any case, international law is in many ways more libertarian than municipal law (the domestic law of states). State legal systems are nowadays overrun with legislation and central planning and welfare rights. International law is primarily concerned with upholding agreements or treaties (pacta sunt servanda) and with limiting or restricting the power of states to wage war, e.g. the laws of war (Geneva Conventions; Just war theory). Because international law is less detailed and more abstract than municipal law and less based on statute, there is more chance to argue with natural law type reasoning, such as the law of war. And for those of us who are opposed to war, isn’t it good that there is a forum for nation-states to meet and try diplomacy instead of war? When libertarian law is to be formed, it makes sense that it would borrow from, build on, and correct private law principles developed in Roman law and the Anglo-American common law, and also in other systems such as the Law Merchant, International Law, and so on. ¹⁸

One final note. The critics are not only usually ignorant about international law but also of other legal systems they criticize, such as their mistaken notion that the Roman-law based European civil law adopts the rule that “All that is not permitted is forbidden”. This is true of totalitarian systems but not of code-based or even legislation-based systems.

A note on Próspera. As I noted previously, ¹⁹ I visited Próspera, a charter city on the island of Roatán, Honduras, earlier this year on the Tom Woods Cruise. ²⁰ Naturally, it is under assault by the statists and leftists (or do I repeat myself). ²¹ See, for example, this pathetic Vice hit piece, Libertarian Island Utopia is Now A Legal Boondoggle, dripping with bile and malice. ²²  The leftists in Honduras appear to be doing their best to shut it down; no doubt the contrast with the relatively free-market Próspera enclave makes the rest of the socialism-ruined country look bad. But apparently this would breach a 50 year agreement which could result in $11B in damages, about 1/3 of the country’s GDP. ²³

I do not know the specifics, but as best I can tell, the liability would stem from (see Grok overview):

• Honduras’s ZEDE enabling law, “Law for the Promotion and Creation of Development and Employment Zones,” enacted in 2013 (declared unconstitutional its Supreme Court in April 2024)
• The creation of the Próspera ZEDE under the ZEDE enabling law in 2017
• Dominican Republic-Central America Free Trade Agreement (CAFTA-DR), a multilateral treaty that includes investor-state dispute settlement (ISDS) provisions (see text here)
• Honduras’s membership in ICSID (even though Honduras withdrew in Aug. 2024) ²⁴

The ICSID claim ²⁵ is proceeding. There appears to be jurisdiction due to a combination of factors: Honduras’s membership in ICSID; the Central America – United States – Dominican Republic Free Trade Agreement [the “CAFTA-DR”]; and the Agreement for Legal Stability and Investor Protection between Honduras Próspera Inc., and Honduras [the “LSA”]. ²⁶ The combination of the CAFTA-DR and ICSID agreements, recognized treaties under international law, and the LSA between Honduras and Honduras Próspera Inc. under the ZEDE enabling law, which invoked these treaties, were enough to “internationalize” the LSA so that Honduras cannot change its terms by domestic legislation after the law.

This is exactly the point of using treaties and international law as it applies to international concessions and related agreements to “stabilize” or freeze the state’s municipal (domestic) law in place at a given time so that the legislature cannot just change it later without consequence. The doctrine of parliamentary or legislative sovereignty permits states to change their law, but if an agreement has been properly “internationalized” then the state can still have liability under international law. I discuss all this in detail in International Investment, Political Risk, and Dispute Resolution, ¶¶2.29, 2.53, 5.109, et pass.; and in non-paywalled pieces such as “Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA & OPIC Investment Insurance” and “Reducing the Political Risk of Investing in Russia and Other C.I.S. Republics: International Arbitration and Stabilization Clauses.”

This also shows that critics who say international law is not “real” do not know what they are talking about.

1. As I discuss in International Law, Libertarian Principles, and the Russia-Ukraine War; see also my discussion there of Dr. Peter Klein on International Law and “Might Makes Right”. [↩]
2. Such as the leftist or socialist tinge of modern international UN resolutions, as mentioned in my article: see, e.g., the United Nation’s Universal Declaration of Human Rights, U.N. GAOR, 217A (III) (1948), at articles 22–26 (reciting, for example, “human rights” to “social security” and to “free” “education”); Khawaja on Socialist Welfare Rights; What Libertarianism Is, n.38. But as I noted in the article below, “the UN has no power to tax or legislate and in any case the UN is not the same as customary international law.[↩]
3. See also the related observation by Rosalyn Higgins that “Law, far from being authority battling against power, is the interlocking of authority with power.”Review of Higgins, Problems and Process: International Law and How We Use It (1995); A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. And as I note in KOL395 | Selling Does Not Imply Ownership, and Vice-Versa: A Dissection (PFS 2022), n.21, “Similarly, ownership stems from the interlocking of possession and intent.” [↩]
4. Career Advice by North. [↩]
5. See, e.g., other legal publications such as Digest of Commercial Laws of the World, Editor (Oxford University Press, 1998-2011; West/Thomson Reuters 2011–2016), World Online Business Law, (Oxford University Press, 2003-2011), Online Contract Formation (Oxford University Press, 2004), Trademark Practice and Forms (Oxford University Press, 2001-2011; West/Thomson Reuters 2011-2013), Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Dobbs Ferry, New York: Oceana Publications, 1997), Louisiana Civil Law Dictionary (New Orleans, La.: Quid Pro Books, 2011). [↩]
6. See The Start of my Legal Career: Past, Present and Future: Survival Stories of Lawyers; New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing; KOL455 | Haman Nature Hn 109: Philosophy, Rights, Libertarian and Legal Careers; KOL139 | Power and Market Report with Albert Lu: Law, Careers, Scholarship. [↩]
7. See, e.g., “An International Framework for the Protection of Investment,” Philadelphia Lawyer (Fall 1997); “An International Framework for the Protection of Investment,” Philadelphia Lawyer (Fall 1997); “Insuring Investments in Russia and Other C.I.S. Republics: MIGA and OPIC,” Russian Oil & Gas Guide (Vol. 2, No. 4, October 1993); “United States Bilateral Investment Treaties with Russia and Other C.I.S. Republics,” Russian Oil & Gas Guide (Vol. 2, No. 3, July 1993); “Political Risk and Petroleum Investment in Russia,” Currents, International Trade Law Journal (Summer 1993); “Reducing the Political Risk of Investing in Russia and Other C.I.S. Republics: International Arbitration and Stabilization Clauses,” Russian Oil & Gas Guide (Vol. 2, No. 2, April 1993). [↩]
8. See ABA, About the Rule of Law Initiative; ABA Rule of Law Initiative (Wikipedia). [↩]
9. See Comments on Draft Law on Stimulation of Foreign Investments in Romania, for ABA/CEELI (Spring 1997); Comments on Draft Law on Foreign Investment Activities in Nizhny Novgorod Oblast (Russia); Comments on Draft Project of “Law on Foreign Capital Investment in the Republic of Lithuania, Memorandum to Mr. M. Černiauskas, President, Association of Lithuanian Chambers of Commerce and Industry (November 18 1993); Lithuania’s Proposed Foreign Investment Laws: A Free-Market Critique, Russian Oil & Gas Guide (Vol. 3, No. 2, April 1994); “The Russian Constitution of 1993–Provisions of Interest to the Energy Industry,” Russian Oil & Gas Guide (Vol. 4, No. 2, April 1995). [↩]
10. “Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA & OPIC Investment Insurance,” 15 New York Law School Journal of International and Comparative Law 1 (1994). [↩]
11. “An International Framework for the Protection of Investment,” Philadelphia Lawyer (Fall 1997). [↩]
12. See the IIPR home pages; reviews of IIPR and the 1997 volume. [↩]
13. For example, re the 1997 book, “This work also serves as a thought provoking assessment of the clash between capitalism and counter forces including communism, socialism, and related collective conceptions affecting investment in developing countries. One might recall, for example, the evolution of the G-77’s New International Economic Order of the 1970s, designed to affect the global redistribution of wealth.” See Reviews of Kinsella Publications, Review by Professor William R. Slomanson, ASIL Newsletter, June 1998 [American Soc. Int’l Law: Reader’s Corner (Issue #16, June 1998)]. And one reviewer of the 1997 book somewhat condescendingly chided us for a youthful and naive “pro-property enthusiasm”: “Different from those parallel works, the authors profess, often and strongly, their emphasis on private property of rich countries as a way to wealth—though they seem compelled—with regrets—to accept that force is no longer accepted to enforce foreign investment protection. This advocacy approach—perhaps more in line with the attitudes and requirements of the global economy than the more sovereignty-oriented study by Sornarajah or the studiously non-ideological book by Muchlinski—leads, though, to a significant problem: The book is meant for the use of the non-specialised practitioner, but the authors have often underplayed or simply ignored significant opposition to their views. Whatever is good for protection of property is acclaimed, but necessary information on the disputed nature of international law positions is not presented in a neutral and balanced way. A perhaps youthful pro-property enthusiasm (sign of generational change, no doubt) leads to information risk for the unwary reader. It reminds of those young Wallstreet traders who have only seen upturns, but never a bear market. … The real life of foreign investment does not much enter these pages, but rather a bookish reading of recent literature conforming with the authors’ one-dimensional value system.” See Reviews of Kinsella Publications, T. Wälde review (CEPMLP Internet Journal, vol. 3 (1998) (local copy). [↩]
14. See KOL250 | International Law Through a Libertarian Lens (PFS 2018), and other links there including Kinsella, On the UN, the Birchers, and International Law, and Joseph R. Stromberg, Sovereignty, International Law, and the Triumph of Anglo-American Cunning. [↩]
15. The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism (Aug. 17, 2010); On the Non Liquet in Libertarian Theory and Armchair Theorizing; On the Role of Commentators and Codes and the Oracles of the Law; Epstein on Roman Law; “Corpore Corpori”: “To the body”: Torts in the Roman Law; A Tale of Two Legal Systems: Common Law and Statutory Law; Roman Law and Hypothetical Cases; Reading Suggestions for Prospective/New Law Students (Roman/Civil law focus); Legislation and the Discovery of Law in a Free Society; PFP244 | Alessandro Fusillo, “Roman Law Reconsidered” (PFS 2022). [↩]
16.  See, e.g., the United Nation’s Universal Declaration of Human Rights, U.N. GAOR, 217A (III) (1948), at articles 22–26 (reciting, for example, “human rights” to “social security” and to “free” “education”); Khawaja on Socialist Welfare Rights; What Libertarianism Is, n.38. [↩]
17. See, e.g., Decouple Trade and IP Protection. [↩]
18. See The Universal Principles of Liberty: “If these Principles are silent or unclear, arbiters may consult: …  Relevant secondary codes, customary practice, and generally recognized legal principles; Well-established bodies of private law, such as Roman law, the Anglo-American common-law tradition, or modern civil codes; Codifications, restatements, and respected scholarly commentaries—especially from libertarian thinkers—provided they are consistent with these Principles.” As noted in Announcing the Universal Principles of Liberty, “See suggestions in On the Role of Commentators and Codes and the Oracles of the Law and Roman Law and Hypothetical Cases, such as: modern treatises and encyclopedias such as Corpus Juris Secundum, American Jurisprudence 2d (AmJur), Halsbury’s Laws of England, Williston on Contracts, Prosser & Keeton on Torts, Corbin on Contracts, and so on; the American Law Institute’s (ALI) Restatements of the Law and local versions such as New York Jurisprudence, 2d, Texas Jurisprudence, 3d., California Jurisprudence 3d, Summary of Pennsylvania Jurisprudence, 2d. Then there is the Uniform Commercial Code, or UCC, which clarified, streamlined, and codified common law principles but was then mostly enacted as statutes in the 50 US States, similar to the way civil codes codified Roman and European law and were enacted as statutes. Illustrative and influential modern civil codes include the French, German, Louisiana, Italian, and Greek civil codes. For international law, which is also useful for more general principles of law common to “civilized nations,” there is Brownlie’s Principles of Public International Law, Oppenheim’s International Law, Shaw’s International Law, and the ALI’s Restatement (Third) of the Foreign Relations Law of the United States.” [↩]
19. Kinsella, My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025. [↩]
20. wikipedia; official site; Próspera’s e-Governance Portal; Prospera legal code; Próspera ZEDE; Official ZEDE Statute, Unofficial English Translation, and Commentary; Libertarian Nation and Related Projects. [↩]
21. Writes Hoppe: “socialism, by no means an invention of nineteenth century Marxism but much older, must be conceptualized as an institutionalized interference with or aggression against private property and private property claims. Capitalism, on the other hand, is a social system based on the explicit recognition of private property and of nonaggressive, contractual exchanges between private property owners. Implied in this remark, as will become clear in the course of this treatise, is the belief that there must then exist varying types and degrees of socialism and capitalism, i.e., varying degrees to which private property rights are respected or ignored. Societies are not simply capitalist or socialist. Indeed, all existing societies are socialist to some extent. … the question regarding the socio-psychological foundations of socialism is identical to that of the foundations of a state, if there were no institution enforcing socialistic ideas of property, there would be no room for a state, as a state is nothing else than an institution built on taxation and unsolicited, noncontractual interference with the use that private people can make of their natural property. There can be no socialism without a state, and as long as there is a state there is socialism. The state, then, is the very institution that puts socialism into action; and as socialism rests on aggressive violence directed against innocent victims, aggressive violence is the nature of any state.” Hans-Hermann Hoppe, A Theory of Socialism and Capitalism, ch. 1, 8. [↩]
22. Luis Prada, “Libertarian Island Utopia is Now A Legal Boondoggle,” Vice (Feb. 19, 2025). [↩]
23. See Prospera: Próspera ICSID ruling on Próspera et al. vs. Honduras; Stephen Gibbs, “On the paradise island where millionaires go to avoid death (and taxes),” The Times (June 20 2025); Umar Farooq and Michael D McDonald, “A Libertarian Island Dream in Honduras Is Now an $11 Billion Nightmare,” Bloomberg UK (Feb.  13, 2025). [↩]
24. ICSID, Honduras Denounces the ICSID Convention. [↩]
25. See Honduran government loses attempt to dismiss Zedes claim at ICSID; Honduras Próspera Inc., St. John’s Bay Development Company LLC, and Próspera Arbitration Center LLC v. Republic of Honduras (ICSID Case No. ARB/23/2); Pratap Chatterjee, “Próspera Demands Honduras Pay $11 Billion for Outlawing Privately Run City,” CorpWatch (July 25, 2023). [↩]
26. See Decision on Preliminary Objections Under Article 10.20.5 of CAFTA-DR (February 26, 2025) English (Original), ¶6. [↩]