Symposium on Rewriting Histories of the Use of Force: On “Unproblematic Eurocentrism” and the Rewriting of International Law

[Alonso Gurmendi Dunkelberg is a Departmental Lecturer of International Relations at Oxford University.]

Rewriting Histories of the Use of Force: The Narrative of Indifference, by Dr. Agatha Verdebout, is an impressive volume covering a vast time period with an ambitious goal: to, as the title suggests, “rewrite” the history of use of force in international law in the 19^th century. Dr. Verdebout starts by noting that 19^th century international legal scholarship suffers from “bad press” on account of being portrayed as a time when just war theories were “dismissed” and war was rather portrayed as an “absolute prerogative for sovereign states”, except for a minority of utopian natural law scholars (p. 15). She argues instead that the study of 19^th century state practice and academic scholarship do not warrant this view. For her, “not only did a substantial part of the literature assert that the right to use force was limited by international law, but also that this assertion was far from being a prerogative of a few ‘naturalist’ authors” (p. 16). Similarly, states did use international legal arguments in their justification of intervention (pp. 115-116). In essence, she concludes, 19^th century international law was not indifferent to the regulation of the recourse to war.

Dr. Verdebout’s argument is compelling, in that it shows a very lively 19^th century legal community that distances itself from more caricaturised, more cynical versions of international law’s history. Instead of this underlying argument, with which I find little disagreement, I want to focus on some of the methodological and narrative choices that underlie Dr. Verdebout’s book and how those impact the outlook of the 19^th century international law that she seeks to rewrite.

The first issue I want to discuss is the decision to study doctrine mainly through academic manuals. Dr. Verdebout argues these texts are “often considered to be the best reflection of the spirit and ideas that prevailed in a given society at a given time”. She argues that basing the study on manuals “allows to make direct links between a specific discourse on law and method on the one hand, and the conclusions reached regarding the use of armed force on the other” and makes express reference to the fact that the selection of these manuals factored three criteria: “impact, chronology and geography”. In terms of impact, “[c]are was taken to include the most influential textbooks”, like Wheaton, Bluntschli, Calvo, Martens and Oppenheim. Chronologically, the book covers a century, between 1815 and 1914. In terms of geography, the book covers manuals from England, France, Germany, Italy, Spain, Russia, the United States, Argentina, Peru, and Bolivia (pp. 16-17). It is these criteria for inclusion that spark most of my questions and hesitations.

Let me start with the most obvious. Dr. Verdebout herself admits that “this material remains, all in all, rather ‘western’”, but addresses this possible line of critique by noting that such Eurocentrism “is not really problematic in the context of this research, as the aim is to examine a narrative that has itself been built on ‘eurocentric’ premises”. I would like to offer some pushback on this conclusion.

The idea that “international law”, as a system, particularly in the 19^th century, was a Eurocentric creation that irradiated from a metropolitan, Western core towards a non-Western or “less Western” passive periphery is rather another perpetuated historiographic caricature in need of “rewriting”; not a research premise from which to build an outlook of the discipline. The production of international law, as the very existence of Peruvian and Argentinean manuals shows, did not happen exclusively from Europe and the US. Non-Western approaches to international law are as much a part of (the history of) international law, meaning that the claim that Eurocentrism is not problematic is suspect, to say the least. Are we really rewriting international law if we focus on eighty manuals from seven Western nations and three Latin American ones? Or is something else being rewritten (or perpetuated)?

In the specific case of Latin America (the region with which I am most familiar with, and the only non-Western sources used for the study of doctrine), the period Dr. Verdebout analyses covers two “generations” of Latin American scholars, with different approaches to the use of international law. The first generation, who wrote mostly in manuals, often wrote in dialogue with Western scholarship, to stake a claim in the so-called “family of civilised nations”, and are the only ones Dr. Verdebout covers. This will have inevitable consequences for her study.

As Latin American historiography often notes, “[f]or the first generation of Latin American jurists of the post-independence period, including among others Andrés Bello, Juan Bautista Alberdi, and Carlos Calvo, European traditions of international law were regarded, according to Liliana Obregón, as a fundamental influence to the extent that they gave birth to a new ‘creole legal sensibility’, deeply informed by European legal notions”. The second generation, in turn, emerged in the latter part of the 19^th and early 20^th century. These “Latin American legal anti-imperialists” instead “challenged the very idea of a ‘creole legal sensibility’, in that they took a step back” from US and European traditions of international law. And yet, in focusing exclusively on manuals, Dr. Verdebout unwittingly excludes this second generation of Latin American scholars, more prone to use speeches, magazine articles, diplomatic correspondence and pamphlets to complain about Eurocentric international law, than manuals to engage with it.

The book relies most heavily on the manuals of Peruvian José María Pando, Bolivian Agustín Aspiazu and Argentinean Carlos Calvo. All three belong to the “first generation” noted above, which is why Dr. Verdebout can find so much consonance between what they are saying and the writings of their European peers (pp. 40-50). In the case of José María Pando, however, an important precision is necessary: his manual is not actually his. As I wrote not that long ago, Jose María Pando’s manual was a plagiarised copy of Andres Bello’s much more influential Principles of International Law. Instead of Pando, therefore, the analysis should have focused on Bello.

Reliance in these manuals has Dr. Verdebout argue that Latin American scholars like Pando (and Bello) agreed with Halleck that a “fundamental principle of the law of nations” was that states had a “right, sometimes even the duty, to ensure their security as well as the protection of their interests and those of their nationals” through the doctrine of “self-preservation”. This is true of the first generation of Latin American scholars. But even here, as Dr. Verdebout acknowledges, the interpretation of self-preservation was different in Latin America. As she notes, discussing Pando and Aspiazu, they were “quite succinct in their presentation and appreciation of the circumstances in which intervention could be legal and mostly focused their attention on the issue of self-defence” (p. 48). This made much sense for the first generation of Latin American scholars, who, as Chilean historian of international law, Fernando Pérez Godoy, states, “had to consolidate independence from Spain and achieve the international legitimacy of their de facto states through their own reformulation of ius gentium”. In other words, they sought to appropriate European international law to defend the precarious position of Latin America in the international community, where the risk of recolonisation was very real.

In fact, in 1868, Carlos Calvo, still part of the “first generation”, famously argued that there was a double standard with the way interventions were carried out in Latin America and in Europe. According to Calvo, intervention in the Americas by European powers “were founded in the different political signification of the American peoples and the European states, and the memory by the latter of the time in which the great American continent was a colony of Europe”. Thus, he says, the interventions carried out by Europeans in Latin America “cannot feature under international law as a justified precedent”.

Dr. Verdebout sees this debate on the extent of self-preservation and self-defence as solely a scholarly debate that “greatly varied depending on the author” (p. 48). The fact that citizens of newly created Latin American states favoured non-intervention and anti-revolutionary Europeans favoured interventionism provides no broader context for the analysis of international law. Dr. Verdebout finds broad agreement that literature “generally supported and adopted the restrictive interpretation of what constituted a proper threat” (p. 50) and that “‘positive’ writings still adopted the restrictive view, according to which the sole existence of a revolt in another State did not constitute a sufficiently direct and imminent threat to justify intervention” (p. 99).

But the fact that Latin American authors like Bello dedicated extensive sections of their books to insist on just how large, manifest and imminent threats need to be to justify intervention is a relevant factor. Especially when acknowledging that Europeans were instead focusing more on self-preservation as a means to justify or “legally window dress” (p. 52) what Latin Americans saw as arbitrary and illegitimate cases of intervention. Could it not be then that Latin America’s non-indifference with (or in fact, its stalwart defence of) restrictive international rules on the use of force is worth rescuing from a non-Eurocentric research design?

This decontextualised approach instead leads Dr. Verdebout to conclude that “no one denied” the existence of a rule of non-intervention and that non-intervention “was itself part of the naturally imposed social contract amongst the nations” (p. 55). Latin America’s efforts to contest Europe’s more expansive definition of self-preservation through a strong legal principle of non-intervention is, regrettably, mostly left out or decontextualised, described instead as a discussion between scholars that agreed on the merits, but disagreed at the margins. As Calvo’s frustrated remarks on colonialist nostalgia show, however, these disagreements were much more fundamental.

This is only exacerbated in the context of Latin America’s second generation of scholars. Vicente Quesada, Roque Sanez Peña, Isidro Fabela, Alejandro Álvarez, Luis María Drago, are all left out of the analysis, mostly because, unlike their first generation counterparts, they did not write many manuals. Instead, they participated in lively and fast-paced debates at international conferences, giving speeches in public venues, writing magazine articles and even political pamphlets, with the specific intent of contesting, rather than agreeingwith, Western ideas on interventionism and imperialism.

Ironically, this is something that is hinted at when discussing US practice in enforcing the Monroe Doctrine against a Latin America seen as “semi-peripheral” to the US “metropolis” (pp. 170-177). As Dr. Verdebout states, while racist European standards of civilisation sometimes counted Latin America as so-called “civilised” lands, “[i]t has nevertheless been argued that with proclamation of the Monroe doctrine in 1823, followed by the Roosevelt corollary eighty years later, the United States had de facto established its own semi-periphery regime for Latin America” (p. 170). Predictably, then, Latin American scholars did not all agree with US conceptions of law that rendered them to a semi-periphery and contested them.

As Argentinean historian of international law, Juan Pablo Scarfi, notes, the Monroe Doctrine was a “central subject of controversy” in the region, where “Latin American legal anti-imperialist jurists sought to challenge both US and hemispheric exceptionalism”. In particular, “Latin American diplomats and politicians began to question how the Monroe Doctrine was deployed as a tool to legitimize US interventions in the region, in addition to standing against European intervention in Latin America”, leading to the emergence of a “Latin American legal anti-imperialism” that was fundamentally tied to the institutionalisation of international law in the region.

Thus, Saenz Peña’s main argument was precisely that the Monroe Doctrine “could never be regarded as a principle of international law”. In his famous May 2, 1898 Speech in Victoria Theatre, entitled “Por España”, Saenz Peña sets out a scathing critique of US intervention in the Cuban War of Independence (i.e. the Spanish American War in US historiography). For Saenz Peña, the Monroe Doctrine was not a part of international law, but rather an arbitrary policy that only made sense at the time when an unlawful European recolonisation of the Americas was a real possibility. “But, in the current relations of law, diplomacy, and humanity”, Saenz Peña continues, “unlawfulness must disappear alongside arbitrariness”. His fellow Argentinean, Vicente Quesada, and Mexican Isidro Fabela, and even US scholars like Hiram Bingham, where very adamant on the Monroe Doctrine’s arbitrariness from the get-go, leading, as Scarfi concludes, to the forging of a “Latin American tradition of legal anti-imperialism, which had a perdurable influence on Latin American international thought”.

This tradition, however, is left out of Dr. Verdebout’s analysis of 19^th and early 20^th century international law, where the focus on first generation manuals finds no profound disagreement with the Monroe Doctrine. In fact, not only is there very little engagement with the second generation of Latin American anti-interventionist tradition, but the insights of present-day leading Latin American historians of international law like Scarfi, Pérez Godoy, Liliana Obregón, Daniel R. Quiroga-Villamarin, Pablo Kalmanovitz, Alejandro Chehtman, Arnulf Becker-Lorca, and Fabia Fernandes Carvalho are left out as well. This gap makes for awkward silences where instead there could have been interesting discussions that would have made Dr. Verdebout’s argument (that 19^th century legal scholarship was not unconcerned with non-intervention) much richer. After all, all of these Latin American scholars, both past and present, would support her underlying argument, perhaps much more directly than by focusing in Elihu Roots’ defence of the Monroe Doctrine (pp. 172-173).

Because of this oversight, Root’s politicised defence of US hemispheric hegemony through an arbitrary and contested imperial policy that, as he himself admits, “is not international law”, but rather merely “rests upon [it]” (p. 172), is taken as evidence of international law’s role, while Saenz Peña’s incisive legal arguments against it are ignored. Thus, while Dr. Verdebout concludes her analysis by saying that the Monroe Doctrine “was not disconnected from legal considerations” but rather “merely the application of the principle of self-preservation” (p. 172), the arguably much more influential Latin American “second generation” tradition of legal anti-interventionism, in force to this day both through the UN Charter and the 1933 Montevideo Convention, receives no mention.

I have no way of verifying whether this also happens with the other cases examined, but the lack of Greek and Chinese sources in the discussion of European interventions in Greece and China certainly raises similar alarms. In the end, Dr. Verdebout’s methodological choice to focus on mostly European manuals, has very much limited the scope of the international law she seeks to rewrite. Dr. Verdebout rather presents an international law that reserves most (if not all) the agency to those Western European and US actors doing the invading, with those in the “peripheries” and “semi-peripheries” existing mostly as invadable space without an autochthonous legal tradition of their own. This perpetuates the kind of unidirectional flow of international law that many Global South scholars have tried to disprove in the first place.

Thus, while I fully concur with Dr. Verdebout’s conclusion that the use of force in 19^th century was not at all indifferent to international legal arguments, I do disagree with her concept of international law. Instead of a single set of principles irradiating from a metropolitan and Eurocentric core, 19^th century international law was diverse, allowing for multiple different traditions and debates. The Western “core” was often resisted, revised, reinterpreted in regional approaches that cannot be properly contextualised solely through manuals and long-form academic texts. These resistances, revisions and reinterpretations are as much a part of international law and, if incorporated into the dynamic, would provide many invaluable insights.

In conclusion, Dr. Verdebout has written a fascinating book and made an important contribution to our understanding of how Europeans and US Americans understood European and US international law on the use of force. It is a book that shows that 19^th century Europe and US were not indifferent to legality in war. This is a valuable contribution that deserves wide readership. But this conclusion is, however, different from the question Dr. Verdebout herself sought to answer on page 4 of her study: “Was international law” – i.e. all of international law – “really indifferent to the use of force before 1919?” As she continues, her book “wishes to interrogate how the discipline of international law ‘remembers’ its past and writes its history, but also the nature and the purpose(s) of that (hi)story”. I think such an interrogation does not imply that Eurocentrism is “unproblematic”, but rather that it should be rejected outright, as part of the caricatures in need of rewriting.