3 - The Cases: Autonomy, Ambiguity and Doctrine in the Work of the Commissions

Summary

The mixed claims commissions, which had a degree of autonomy from the agendas of the states that imposed them, produced a rich and extensive body of case law on state responsibility for rebels. The practice of the commissions to enforce claims based in contract greatly increased the scope of state responsibility for rebels, in a way that reduced the risks for foreign nationals of doing business in Latin America and insulated commercial relations from political instability; the arbitral practice had a politics, even if it did not necessarily or straightforwardly reflect the context of the commissions’ establishment. The commissions engaged with a number of important international legal rules and principles: the general principle of non-responsibility for rebels, with exceptions for successful rebels, rebels who establish de facto authority and negligence in failing to protect against rebels. The exceptions to non-responsibility, particularly the duty of protection, would end up being more important than the rule. At the same time, the practice of the commissions was at times contradictory and ambiguous, providing only the shakiest foundation for future obligations.