St John: Three Conceptions of Sovereignty in Investment Law

Taylor St John (Univ. of St Andrews - International Relations) has posted Three Conceptions of Sovereignty in Investment Law (in Sovereignty in a Global Perspective, Christopher Smith, ed., forthcoming). Here's the abstract:

Contemporary investment law is often depicted as a field in which transnational corporations and other private actors float freely above territorially-bound, constrained states. Investment law epitomises fears about the erosion of sovereignty in these depictions. Yet sovereignty is a concept with layers of meaning and a loss of policymaking autonomy, while important, is only one story of sovereignty in investment law. This chapter draws out three conceptions of sovereignty and how they manifest to officials negotiating investment law reform at the United Nations today. The first conception is sovereignty as control, as supreme authority within a defined territory. Concerns that investment law has eroded the ability of states to make policy fit here. The second conception is sovereignty as eligibility, as recognition that a government is eligible to participate in intergovernmental deliberations. Recognised states are the only actors eligible to participate in investment law reform at the United Nations. The third conception is sovereignty as capability, as being able to participate meaningfully in intergovernmental deliberations. While all governments are eligible, their actual participation in reform varies. In investment law, the persistence of sovereignty serves as a bridge to enduring questions about who should participate in rulemaking.