The Sinister Turn : the Decolonized African State in ICSID Expropriation Arbitration

The sinister turn in international law can be defined as the paradox created by successful decolonization efforts when 1) the colonization and decolonization are/were characterized by race, such as in the case of former apartheid states, 2) decolonization reverses the political and legal hierarchy so as to render former subjects the new governing population and the former colonizers (and their descendants) both a demographic and political minority, and 3) the decolonization efforts of the state are subjected to adverse applications of international law to the benefit of their former colonizers (and/or their descendants) using legislation intended to protect and benefit the former subjects. I argue that international investment law provides fertile ground for the perpetual expansion of the sinister turn phenomenon because its fora procedurally shields the former colonized states and their indigenous populations from the application of international human rights law designed to promote their self-determination. International investment law thrives on the jurisprudential development provided by African states as “reverse contributors” and systematically perpetuates the sinister turn by obfuscating the reality that former colonial subjects that are now demographic and political majorities of African states are currently still “minorities” in the countries they control. This is accomplished at the tribunal level through jurisprudence that makes only passing reference to the previously mentioned international calls for self-determination of specific groups. Through minimizing an emphasis on indigenous, ethnic, and tribal applications of colonial rule, like apartheid, the practice of self-determination in the form of land expropriation to reverse said practices on those same terms is assigned the designation of erga omnes obligation violations it aims to reverse. The analysis before us demonstrates three distinctive tribunal actions that can be identified as sources for the sinister turn in international investment law in African state expropriation disputes. First, international investment law embraces a definition of “indigenous” in Africa that fails to recognize the ethnic characteristic of apartheid and racial colonialism on the continent. Second, international investment law ignores decolonization as a work-in-progress by applying legal references to state obligations under international investment law rather than references to self-determination in international humanitarian law. Finally, international investment law conceptualizes colonialism in Africa as in the past tense and frames the present as one of black domination. With these three actions, the procedural preclusion and substantive rejection of expropriation as part of a national purpose towards self-determination is replaced by expropriation as racial discrimination by a black dominated state over a white minority