Between Civilisation and Barbarism: Creole interventions in international law

This article argues that Latin American regionalism in international law is a direct consequence of a ‘creole legal consciousness’ meaning a shared basic assumption about the origins of law in the region (as coming from Europe through Roman law and Spanish law) as well as a belief in the uniqueness of an American (as in the continent) interpretation and development of that law. Those who participate of such a consciousness assume themselves as being part of the metropolitan centre (as descendants of Europeans), while at the same time challenging the centre with notions of their own regional uniqueness (as natives of America). Creole consciousness about international law was an instrument of nation and region building during the 19th century. This led to a discussion of the actual existence of a regional international law ‘[Latin] American international law’ (derecho internacional Americano) in the first half of the 20th century. The article concludes with a look at how a regional perspective was also inherent in the construction of a human rights regime in the second half of the twentieth century. The term Latin America was coined during the second half of the 19th century out of the expanding ideas of ‘Panlatinisme’ promoted by the French and adopted by local patriots in an effort to criticise US and British (Anglo) imperial interventions in the region. In consequence, several new proposals for a Confederation, Union or League of the Latin countries of America came forth. A new cadre of international lawyers who were situated in the Parisian milieu, such as the renowned Carlos Calvo, helped to promote the notion of a Latin America, as well as the use of the term in reference to the special characteristics of international law for the region. The rediscovery of an American connection with its Latin roots in Europe was interpreted as a further argument for the advancing state of civilisation in the region, during a period when Darwinism and ideas of progress were highly influential. At the beginning of the 20th century the Brazilian diplomat and professor of international law, Manoel Álvaro de Souza Sá Vianna (1860 – 1924), argued that ‘Latin American International Law or American International Law does not and cannot exist’. His book, De la non existence d’un droit Liliana Obregón is in the International Law Programme, University of Los Andes, Cra 1E No 18A-70, Bogotá, Colombia. Email: [email protected]. Third World Quarterly, Vol. 27, No. 5, pp 815 – 832, 2006 ISSN 0143-6597 print/ISSN 1360-2241 online/06/050815–18 2006 Cambridge University Press DOI: 10.1080/01436590600780136 815 international americain, was presented at the Fifth Latin American Scientific Congress of 1912 in an effort to challenge the Chilean legal scholar Alejandro Álvarez’s earlier proposals for a general recognition of the existence of an ‘American International Law’. Sá Vianna’s intention was to put an end to the notion of a regional international law, arguing that problems common to the countries of Latin America or to the American continent did not and could not constitute a basis for an autonomous or separate sphere of international law. For Sá Vianna international law was based on principles, laws and rules observed by international society and not on common historical experiences among a group of countries, as Álvarez had argued. The Sá Vianna – Álvarez debate is important because it brings forth the underlying story of a regional sensibility, or what I call a Criollo consciousness about international law that began in the early 19th century and, arguably, continues to this day. In the early 19th century Criollo lawyers and intellectuals received and articulated international law as part of their nation-building projects and their search for recognition and legitimate participation of the new states in the ‘community of civilised nations’. The idea that there were particular regional problems of international law carried on well into the 20th century. The discussion of Sá Vianna and Álvarez troubles the common assumption that the discourse of international law went unchallenged when received and appropriated by Latin American nations peripheral to European and US economic and political dominance. Henry Wheaton, the renowned US international legal scholar of the 19th century, articulated the idea that Latin American internationalists merely appropriated European law and culture when he stated in 1845 that the sphere of European international law was simply extended by the accession of the ‘new American nations that have sprung from the European stock’. Even late into the 20th century many scholars of international law continued to present Latin Americans as having an unproblematic acceptance in international society during the 19th century because ‘they shared common features: Catholicism, a sense of the same regional belonging, common economic interests . . . and a common language’. For Latin Americans the 19th century is determinant in their view of international law because it is the end of a period of more than three centuries of colonialism. The 19th century began with the uprisings and manifestos for independence of the 19th century and ended with the Spanish –American war of 1898. Internationally, for Latin America, it was the century of the Monroe Doctrine, the American and Pan-American Congresses, US imperialism, European interventions and the admiration of French models of civilisation rather than the previous Anglo (England and the USA) ones. It was thus characterised by the shift of identities from ‘Americans’ during the first half of the 19th century to ‘Latin Americans’ in the second half. Nationally it was the era of different models of statehood and state consolidation, civil wars, uti possidetis iuris, caudillismo, the struggle over local interpretations of liberalism, the appropriation of indigenous lands, and the abolition of slavery. The 19th century for Latin LILIANA OBREGÓN