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, 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 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.”
—SK]
156 U.N. Charter, supra note 64, art. 2(4).
157 Id., art. 51.
[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
by Stephan Kinsella on November 24, 2025
[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, 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. [continue reading…]
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