American International Law Research Articles

The Mexican Embassy and the battle over asylum in Trujillo’s Dominican Republic, l946–1954

ABSTRACT Between 1945 and 1954, a series of conflictive asylum cases unfolded in the Mexican Embassy in Santo Domingo. An examination of Foreign Ministry records from the era reveals a complex situation, in which different players sought to harness diplomatic asylum for their own purposes. Dominican asylum seekers, Mexican representatives and the Trujillo dictatorship all struggled to define the parameters of a practice that was integral to the region’s politics. This article details two particularly challenging cases that confronted Mexican officials during this period, that of Dominican labor leader Mauricio Báez and his four brothers and a second case involving Tomás Reyes Cerda, who spent nineteen months confined to the Mexican Embassy. The two cases highlight the competing interests that drove the Mexican and Dominican governments: as Mexico defended an open and generous application of asylum that was key to its international image, the Trujillo regime was determined to stop an exodus of Dominicans who could undermine its own reputation abroad. Their decade-long struggle over the intricacies of diplomatic asylum not only shaped Latin American international law, but it also raised questions about the unfettered right of states to persecute their own citizens.

Science of International Law and Regional Orders: A Critical Appraisal of Alejandro Alvarez and Carl Schmitt

In this article, I deconstruct the legal science of Alejandro Alvarez – a Chilean jurist – and Carl Schmitt – a German constitutional and international law scholar – to represent the normative traces of the theoretical construct of regional international law. The article revisits Schmittian grossräume theory and Alvarez's American international law as empirical evidence of normative deliberations of regionalism's functionality in international law. It then comparatively concludes that both theories that hinge on the Monroe doctrine have envisioned distinct patterns of regional international law: vertical-apologetic and horizontal-utopian. It finally elucidates the contemporary relevance of revisiting their scholarship on regional international law in the 21st century.

The IDI, The ILA, and their Impact on the Institutionalization of International Law in the Americas: Resonances and Dissonances

The Institut de Droit International (IDI) and the International Law Association (ILA) have bequeathed complex and contradictory legacies to the Americas. This essay explores both the resonances and the dissonances that the formation of the IDI, and to a lesser extent, the ILA, had in the institutionalization of the modern discipline of international law in the Americas. On the one hand, the IDI's establishment as an elite Eurocentric organization with a missionary imperial approach to the promotion and reform of international law, generated resonances across the Americas, inspiring the creation of the American Institute of International Law (AIIL). On the other hand, the AIIL emerged as a reaction to the IDI, insofar as the former promoted juridical values based on the idea of American international law and a distinctive sense of U.S. and continental legal exceptionalism. The essay argues that the institutionalization of international law in the Americas was both inspired by the Eurocentric imperial and elitist legal approach promoted by the IDI, and the desire to forge a distinctive Western Hemispheric counterpart: a continental American international law.

One Cuba is Enough

Despite the contribution of new streams in international law scholarship, the decades of the Cold War remain underexplored in Latin American current historiography. Removing the geopolitical conflict from the centrality of historiographic analysis, the present article aims to understand the operation of international law in the Cold War through Latin American regional dynamics. Through the reading of the articles on “collective security” published in some international law journals during the period of the Cold War (American Journal of International Law and the Mexican Foro Internacional), this article recounts the history of the jurisdictional conflict between regional and universal organizations. It demonstrates that the history of collective security in the hemisphere begins as experiment in formalization of the long and distinct American tradition in international law. The defense of this tradition served as a basis to formalize or legalize the projection of US power in the Americas. Latin Americans responded to this push first by endorsing the creation of a regional organization and a collective security arrangement, later by using law as a strategy to advance their position. However, as collective security increasingly became a justification for violations of the UN Charter, solidarity among American republics faded and cooperation, despite a regional treaty, became virtually impossible. The regional agreement thus proved to be both an enabler and an obstacle for this strategy. Thus, we conclude that the history of the International Law in Latin American during the Cold War was also the history of the demise of American International Law.
 KEYWORDS: Cold War. Latin America; International Law; Collective Security.

The Origins of Regional Ideas: International Law, External Legitimization and Latin America’s ‘legalismo’

Abstract Latin American politics are widely characterized by legalismo: a set of practices that can be traced to the notion of a continental or regional, American or Latin American International Law (AIL/LAIL) including the American international congresses and treaties, the practice of invoking AIL/LAIL’s various principles, and the use of judicial and quasi-judicial means of conflict resolution. However, it is far less clear where the origins of Latin America’s legalismo culture lay. Moreover, why did this formalistic-legalistic culture not take root in other regions? The article uses an original comparative historical approach to show that legalismo was a product of two conditions unique to Latin America: the distinctive security needs of its newly independent states and the time of independence. In comparison with Southeast Asia and Africa, I argue that legalismo was central to Latin America’s regional idea but that the practical impact of international law was not stronger than elsewhere.

Francisco de Vitoria and the (geo)politics of canonization in Spain/America

AbstractWhile the founder of international law was long considered to be Hugo Grotius, attempts were made in the late 1920s and early 1930s to dethrone him in favour of the Spanish theologian Francisco de Vitoria. This took place as the professionalization of the field of international law was reaching its golden age both in Europe and the Americas. Leading this case were the prominent US jurist James Brown Scott, one of the founders of the American Society of International Law, and the Spanish jurist Camilo Barcia Trelles. But why did they decide to revive Vitoria then, and why would they couch him specifically as the founder of international law? This article focuses on the intellectual history of the canonization of Vitoria in the context of the formation and consolidation of a continental Pan-American ideal and network of American international law in the Americas. Particular attention is paid to the American Institute of International Law, presided by Scott, and the formation of a Spanish Americanist cultural tradition in Spain. The latter deeply influenced Barcia, who developed a profound interest in Latin American questions, notably around the Monroe Doctrine. The article argues that these geopolitical Pan-American and Spanish-Americanist anxieties of re-unifying the Americas and Spain/America strongly influenced the depiction of Vitoria as a new founding father of international law and allowed Scott and Barcia to elevate themselves as Vitoria’s heirs.

Implementation of international humanitarian law: The work of Latin American international humanitarian law committees

AbstractRespect for international humanitarian law (IHL) in the battlefield is contingent on the measures undertaken in peacetime. Indeed, satisfactory compliance with IHL rests in the implementation of multiple measures at the domestic level crossing different spheres, including legislative, administrative and educational. In most latitudes, governments and other stakeholders coordinate these measures in what is known as National Committees for the Implementation of International Humanitarian Law. The article addresses the practice of these bodies in Latin America and provides alternatives to enhance their work.

Latin American International Law and Afro-Descendant Peoples

After the Third World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, held by the United Nations in Durban, South Africa, in 2001, an important movement emerged. The African diaspora communities in the Americas, or “Afro-descendants,” as they prefer to self-identify, began to seek legal recognition in the context of international human rights law, and especially within the inter-American human rights system. Progress has been remarkable, including the rulings of the Inter-American Court of Human Rights, changes in the constitutional and legal systems of Latin American countries, and a UN draft of a Declaration of the Rights of People of African Descent, as part of the International Decade for People of African Descent (2015–2024). However, conceptual, technical, and doctrinal issues still exist in defining the legal agency of people of African descent under international law. Who are Afro-descendants in legal terms, and how do we understand “Afro-descendance” within the context of Indigenous and tribal peoples? In this essay, I explain how different regional bodies in Latin America have interpreted Indigenous rights progressively to overcome the marginalization of Afro-descendants, and address some important questions that remain unclear despite this welcome evolution.

Introduction to the Symposium on Latin American International Law

Introduction to the Symposium on Latin American International Law

Camilo Barcia Trelles on the Meaning of the Monroe Doctrine and the Legacy of Vitoria in the Americas

Abstract This article explores three important dimensions of the work and trajectory of Camilo Barcia Trelles: his understanding of the Monroe Doctrine; his vision and contribution to the debates in Latin America and the United States over intervention and the codification of American international law; and how his own understanding of the intellectual legacy of Francisco de Vitoria shaped his views and approaches to these topics. The article argues that Barcia Trelles provided a Spanish Americanist version of international law in the Americas, according to which, following the Spanish conquest of America and Vitoria’s important contribution to international law, a irreversible division began to emerge between the two Americas, that is, the Latin American and US traditions of international law, especially since the US Declaration of Independence, the collapse of the Spanish Monarchy and the independence of the Spanish American republics.

American Identity Politics and International Law

It has long been conventional in our public discourse to assume that special interest groups play a destabilizing role in shaping international law. In the United States, commentators are quick to point to a solution: increase transparency and try to engage the larger voting public regarding the moral and economic merits of legal globalization. This Article argues the opposite: if the American experience with international trade controversies is any guide, appeals to mass politics all too often give rise to moral inflation, which is likely to increase the role of identity politics in international law and render beneficial and durable bargains more difficult. The problem is that when economic and cultural cleavages happen to overlap, as they often do in the United States, disagreements over relatively mundane and technical issues between narrow groups in international law can sometimes be converted into high stakes contests over social identity that divide wide swaths of the population into rival camps. To illustrate these claims, this Article uses the recent controversy over the renegotiation of the North American Free Trade Agreement (NAFTA) and the American experience with tariff disputes in the late nineteenth and early twentieth centuries.

Imagining Alternatives? Latin American Scholarship on International Economic Law and the Global Economic Order

Author(s): Perrone, Nicolas M. | Abstract: This Article analyzes the role of Latin American international economic law scholarship within the global economic order. Many of the problems that Latin Americans face today relate to the global economy, such as labor conditions, access to medicine, and the use of natural resources, among others. The discussion of these problems, however, seldom recognizes the role of international economic law scholarship. Although the knowledge created by this scholarship may not completely explain why States actively behave in a certain way, it can serve to explain why they may refrain from certain actions. This Article argues that scholarship on international economic law plays a crucial role in the creation and reproduction of the current global economic order. If this claim is correct, regional scholarship can do more for Latin America than serving the advisory and litigation needs of States. By recognizing its role in constituting the global economic order, international economic law scholarship can promote alternative theories and practices that may help Latin America and its people find their place in the global economy.

Jus Cogens: an European Concept? An Emancipatory Conceptual Review from the Inter-American System of Human Rights

The main subject of this paper is to investigate in Latin American international law the existence of a more comprehensive list of jus cogens rules, to the detriment of the one existing in general/Europeanized international law. To do so, through a descriptive and exploratory bibliographical and jurisprudential research, the concept of jus cogens in the field of international law will be investigated in the light of the knowledge forged in the inter-American human rights system, beyond those places considered as traditional, precisely because they are exclusive and dominating. The conclusion reached is that, based on libertarian theses, especially in the area of human rights, it is possible to note the important role of the inter-American plan by offering a counter-hegemonic voice with regard to the understanding of the concept of jus cogens on the basis in its decisions, proving to be a possibility of resistance of the South in the present time, in search of its space in the construction of the international right, from its own knowledge.

HUMAN RIGHTS IN INTERNATIONAL LAW? THE FORGOTTEN ORIGINS OF HUMAN RIGHTS IN LATIN AMERICA

Patrick Macklem’s book is a welcome intervention in current discussions about the contextual and structural dimensions that account for human rights abuses. Macklem’s book contributes to this discussion, introducing the international legal order as a relevant dimension to be considered. Macklem does so by arguing that international law in part structures our globalized world and that human rights as international legal entitlements also play a role in this process. Human rights, Macklem argues, monitor the international legal order’s structuring of our world, they mitigate the adverse consequences of this structuring, and, when monitoring and mitigating, they also render the international legal order legitimate. What Macklem proposes is a conceptual link between human rights and the international legal order, in which legitimacy of the latter depends on meeting the structural demands of justice required by the former. This conceptual link, however, requires actual articulation. I will explore an example of this articulation in Latin America. When human rights appeared in the region, they did so under a conception that linked them to the international legal structure. Latin American states participated in the codification of human rights not only to limit the scope of diplomatic protection but also to give social policies like land redistribution international legitimacy. While the conceptual link identified by Macklem is crucial, the Latin American example suggests that it was an underlying political ideology about regional solidarity – the project of ‘American International Law’ – which allowed human rights to embody structural transformation. With that ideological project gone, it remains to been seen if human rights, at least in Latin America, may again convey yearnings for international justice.

CONSTITUTIONAL CHALLENGES OF THE SOUTH: INDIGENOUS WATER RIGHTS IN CHILE - ANOTHER STEP IN THE “CIVILIZING MISSION?

This article explores the struggles of indigenous rights based on the adoption of the 1980 Chilean Constitution, under an authoritarian frame, that resulted in water being considered as a commodity and, therefore, subject to radical market rules that serves as a relevant local example in conflict with ratified international treaties. The argument proposes a critical approach to establish a continuum of the recurring rejection of the ancestral beliefs of Indigenous People since colonial times. In light of the actual constituent process for drafting a new constitution in Chile (2015), the article evaluates the emancipatory potential of Chile’s early sovereignty proposal on natural resources and later articulations of water as a human right. The argument assesses the possibility of including alternative views in the constituent debate over water, under the light of Third World Approaches to International Law [TWAIL] and Latin American International Law [LAIL] legal scholarship, aiming to find space in the Chilean constitutional realm for non-extractive perspectives.

Efectos del control de convencionalidad en la jurisprudencia del consejo de estado

The Jurisprudence of the Court I.D.H. has created the Conventional Control. Created on purpose, this is a figure of American International Law that implies that all the organs of power of the States that conform the Pact of San Jose especially those in charge of administer justice must abide and apply. This control is of international praetorian creation. We analyze the jurisprudence of the Council of State that orders the Colombian State to repair damages caused when its military forces of colombia and the police forget their constitutional duties. They highlight the efforts to fully repair the victims of mass violations in Colombia in collusion with “Paracas” organizations applying the jurisprudence of the Court I.D.H. This means that the time when compensation was only ordered in gold pesos or based on the present value formula is exceeded and therefore in the matter of reparation the control of conventionality operates in full supported by the principle Restitutio in Integrum. Keywords Conventional control, Council of State, Court I.D.H. Human Rights, integral reparation, victims.

News on conflictual autonomy in Latin American international private law

News on conflictual autonomy in Latin American international private law

Exceptional and Universal? Religious Freedom in American International Law

This essay explores the paradoxical claims to exceptionalism and universalism that lie at the heart of the American tradition of religious liberty. In considering how and with what consequences religious freedom has become embedded in the international legal order with the rise of American power, the essay considers three themes linking together this history: first, the ambiguity of religious liberty conceived as internal to and outside of history; second, American efforts forcibly to transform the constitutional orders of foreign states over the last century to include religious freedom; and third, attempts to promote religious freedom through international conventions and extraterritorial domestic legislation.

La nacionalidad en el derecho internacional americano

American International Law, in particular Human Rights instruments, refers to certain rights of individuals in relation to nationality. This article examines these rights from the perspective of the precedents of the Inter-American Court and the Inter-American Commission on Human Rights. It also mentions other instruments, from the universal level, that are in force in the American states.

In the Name of the Americas: The Pan-American Redefinition of the Monroe Doctrine and the Emerging Language of American International Law in the Western Hemisphere, 1898-1933

The historiography of the Monroe Doctrine has tended to concentrate on nineteenth century interpretations, as proposed by U.S. politicians. More importantly, Latin American interpretations of the doctrine have been overlooked. This article explores the hemispheric intellectual history of the doctrine in the U.S., Argentina, Brazil, Chile, and Uruguay, examining its re-interpretation by Latin American jurists and politicians, such as Luis María Drago, Alejandro Álvarez and Baltasar Brum, and the reactions it provoked in the U.S. in the context of the emergence of the modern version of Pan-Americanism (1889) and a continental approach to international law. It argues that by re-interpreting the Monroe Doctrine as a Pan-American principle, these Latin American figures contributed in turn to redefining U.S. hemispheric hegemony along the lines of multilateralism and non-intervention. However, U.S. politicians and jurists were for the most part reluctant to renounce U.S. unilateral aspirations and interventionism on the continent until 1933.