Dr. Claiton Fyock is a Lecturer in Law at the University of Essex. He researches International Economic Law and Development from critical methodologies. He teaches Trade, Investment, Human Rights and Environment; Jurisprudence; and Human Rights. Claiton recently concluded his PhD thesis ‘International Investment Law as Development: The Ideological Constraint of the Grand Bargain.’ and is interviewed for the ELR Blog about the originality of his research, his PhD journey and his future plans.
In two sentences, what is your thesis?
My thesis examines how the narrative of the ‘grand bargain’ found in International Investment Law (IIL) constrains the legal and political economic agency of developing states participating in the regime.
The grand bargain posits that, in ceding a portion of their regulatory sovereignty to IIL, developing states signal to foreign investors that they are committed to the legal protections offered by the regime, which is presumed to benefit developing states by encouraging further Foreign Direct Investment (FDI) to enter their borders.
How did your research emerge?
I came to this research out of a deep skepticism about the project of international economic law prompted by engagement with Marxist theory and Third World Approaches to International Law. I was and remain very interested in how international law helps entrench and reproduce the current exigencies of inter- and intranational wealth inequality and environmental degradation – exigencies that are particularly felt in the Global South.
My intuition was that international law’s role in the reproduction of human and environmental exploitation was perhaps most readily apparent in its involvement at the sites of economic production (sites increasingly located in the Global South). IIL seemed to be the most obvious point of departure for this reason, and the more I researched the topic, the more IIL’s constraint on developing states’ legal and political economic agency became apparent.
How would you describe your argument and methodology?
The thesis questions the rationale of the grand bargain by developing a theory of ideology critique I label the ‘ideological process’. This method attempts to account for how developing states are simultaneously constrained by both the conceptual and practical elements of IIL.
I argue that, rather than being purposed for the legal protection of foreign investment, the raison d’etre of IIL is the facilitation of the accumulation of capital for a transnational capitalist class. It does this largely through a narrative about development embodied in the notion of the grand bargain. Though the grand bargain’s discursive weight has waned in recent years, coinciding with contestation over the regime’s ability to encourage FDI, it remains that international organisations continue to promote FDI and IIL as necessary factors in developmental initiatives such as the Sustainable Development Goals.
My thesis argues that, through the practice of international arbitration, treaty-making and scholarly engagement, IIL’s features embody and entrench the hegemonic, specifically capitalist concepts put forth by the regime’s more powerful actors.
Consequently, the capitalist iterations of features such as development’s role in the definition of investment, sovereignty in cases of indirect expropriation and consent in investor-state contractual disputes circumscribe the plurality of these same concepts.
By accepting the narrowly capitalist iteration of these concepts in their participation in IIL, developing states accept a circumscribed agency in configuring their own political economic and legal policies.
What is your contribution to research in your subject area?
My contribution to the subject area is two-fold:
First, I provide an original approach to ideology critique and international law. While ideology critique is a long-standing Marxist approach to legal analysis, previous uses of the method have either been preoccupied with a fixed definition of ideology or overly focused on power’s discursive role in entrenching ideological practices.
My approach is to treat ideology as a dynamic process which accounts for both the relationship between practice and concept and the impact hierarchical power relations have on the relationship between practice and concept. By approaching ideology this way, I am able to demonstrate how the operation of IIL reifies and entrenches particularly capitalist iterations of some of IIL’s most fundamental concepts – development, sovereignty and consent.
My hope is that this method would be applicable across various areas of international law and provide scholars a new way of apprehending ideology in legal practice.
Second, my thesis places IIL’s justification for itself (the grand bargain) within the context of global concerns about wealth inequality and environmental harm while not relying on competing legal norms or criticisms of neoliberalism. While there have been many effective criticisms offered against the regime from disciplines such as human rights (several fine examples originate from here at the University of Essex), my research attempts to locate IIL’s inherent deficiencies at the level of the capitalist political economy.
I take an explicitly radical approach which contends that the problems identified with IIL are intrinsic to its explicitly capitalist operation – it will only ever reproduce capitalist practices and concepts; practices that will only ever facilitate the accumulation of capital for a transnational capitalist class. Accordingly, efforts at its reform are misplaced; IIL’s problems are intrinsic to the structure of the regime itself. Implicit in my argument is that nothing short of abandonment will rectify IIL’s harms.
However, this need not be of concern for states or practitioners of international law. There is not a fixed necessity for any one of IIL’s practices or conceptual formulations. Rather, effort should be focused on how international law can meet the needs of communities and the environment in ways alternative to the capitalist political economy.
Has your view of your research topic changed during the research?
I wouldn’t say that my view of IIL has changed. It has certainly, obviously become much more nuanced, but I believe my original intuition about IIL’s role in the previously mentioned problems of wealth inequality and environmental degradation has remained.
What has changed over the course of my research is my understanding of the pliability of international law and its scholarly discourse. Early in my research I had a tendency of viewing IIL as a fixed thing. Over the course of the PhD, I was constantly reminded how swiftly things can change in a regime such as IIL – for example, the discourse about sustainability has exploded in the scholarship over the last 5 years.
What would you advise someone who is about to embark on a PhD journey in your field?
I have a hard time thinking that there is any kind of universal advice for embarking on a PhD in international law. One thing I’m happy I did consistently throughout the process was read outside the field of law, particularly theory. I do think legal research can become very insular. I very much believe that there is a lot to be gained from venturing outside of this silo and embracing multidisciplinary approaches.
In doing so, we’re better able to identify potential alternatives to legal practices that might bring about the kind of progressive changes I believe are needed with issues such as wealth inequality or environmental degradation.
Now that you submitted your thesis, how do you plan to move forward in terms of your research?
While writing my thesis I had the opportunity to publish a side piece on international economic law and degrowth and some polemics on climate litigation and corporate actors. I plan to continue to investigate the nexus between international economic law, development and the environment with some upcoming articles.
After the publication of these works, I hope to revisit and transform my thesis into a monograph and look forward to submitting the book proposals after some time off from it.