In the Shadow of Empires—Latin American Perceptions of Development and International Law.Larry Catá BackerProceedings Contribution
Panel--Diverse Perspectives on the Impact of Colonialism on International LawAmerican Society of International LawApril 2019This presentation considered the legacy of the Spanish colonial and the U.S. commercial empires on the development of contemporary Latin American approaches to international law, development, and regionalism. These two imperial systems, have provided a master narrative from out of which Latin American states have sought to develop a common approach to international law, to development, and to the their own regional integration. On the one side is a narrative of vertically arranged and centrally planned organization; on the other side is a loosely organized aggregation of arrangements bound together by regulatory effects of markets and organized according to relative market power. Within this spectrum, Latin American states oscillate between Western liberalism, indigeneity, and variations of Caribbean Marxism. They swing between rigid hierarchies of centrally planned control and technocratic managerialism of markets that look inward to the organization of the state for the satisfaction of the needs of superior powers, and outward toward the building of sites of resistance from out of old colonial institutions.The baseline of Latin American sensibilities were built into the ideologies and structures of the Spanish imperial system. That system was built on an integrated legal-political and economic structure. At the heart of the legal-political system was the Spanish Crown, whose authority was exercised through the Council of the Indies. This served as the supreme legal, administrative, military trade, and financial authority. It ordered all activities within the colonial system. It also asserted a substantial authority of the cultural colonialism undertaken by the Roman Catholic Church, through the practice of substantial patronage by the Crown and Council on which the Church developed some dependence. The hierarchical structure of the central imperial authority was then replicated within the colonial vice-royalties, each presided over by the Viceroy and administered through his council (ardencies) and for indigenous affairs, the General Courts of the Indians. Imperial law and edicts were supreme but generally vague; they were filled by vice-regal rules and then local custom and practice.But the heart of the Spanish Imperial system was embedded in its economic organization. The core of that system was the encomienda, a practice of land ownership and economic exploitation that was perfected during the centuries of the Reconquista, the reconquest of lands seized from the old Visigoth Kingdom during the course of the Arab invasions. The encomienda served as a system of social control, of economic exploitation, and of the replication of the system of obligation and responsibility that marked the Spanish governmental system as it developed through the early modern period. The system was based on the grant of a large tract of land (and everything on it) by the monarch to a designated individual (repartimiento) who held the land in trust but could exploit it and its inhabitants. At the same time the individual was obliged to do service for the monarch and to protect and oversee (according to law and custom) the welfare and lives of the inhabitants (with spiritual matters reserved to the Church). As adapted for the colonial system, the repartimiento was initially granted to a resident of Spain (ultramar) or a person who could trace origins there. Locals were to work the land and pay tribute; the encomendero was responsible for the well-being of the inhabitants and their conversion to the Catholic faith.All economic activity, then, was directed outward, after satisfaction of local needs—from the inhabitants to the encomendero, the the viceregal apparatus and finally to transport to Spain. The effect was a form of a “Silk Road” with all roads leading up to Madrid. And this “Belt and Road” initiative, macro-encomendismo, ordered the economic activities of the colonies. Legal as well as political structures ensured the functioning of this system grounded on principles of strict central planning and control. In lieu of markets there was law and the administrative practices (implemented through discretionary decision making by the official ultimately in Madrid-Seville-Cadiz) of the Casa de las Indias, with authority to tax, license, and manage the availability of technology and knowledge. Combined with direct ownership and taxes, the system operated for the benefit of the Crown at the apex of a centrally controlled global production chain in which those in control at each level could extract some value but where the bulk of the value added was meant to be directed toward the Crown. It was a system of order, hierarchy, and control.The Spanish Imperial system generated its own counter narrative. That counter narrative, of resistance and avoidance, erupted almost from the beginning of the organization of the system in the 16th century. A part of that resistance was marked by an adherence to the basic system and its ideology but conflict over the allocation of material benefits among the elites along the wealth production chain. Thus the Conquistador rebellion in Perú produced encomienda reforms and the New Laws of 1542. Similarly nascent Latin American solidarity with the wars of independence and the regionalism of Bolívar, might rearrange the path of the production but not its methods or ideologies. The Church sought to protect its own prerogatives both by serving the interests of the elites and by protecting those at the bottom. Others sought to carve ought a greater space for autonomy, including a long pattern of indigenous subversions in Central and South America that continue to this day. The African slave trade changed as well the complexion of hierarchy but not its forms. And all of this was complicated by the raiding of competing Empires.Onto this system was superimposed the American imperial system of the 19th and early 20th Centuries. Its symbol was the Monroe Doctrine (evoked as recently as April 2019 with the reimposition of sanctions on Cuba and the extension of sanctions to other Caribbean states). That provides the principles through which the empire could be protected against internal challenges within Latin America and external challenges by other empires (European, and now Chinese). Unlike its Spanish predecessor, the American Empire was a distracted empire. It did not seek to rule land but rather to control markets. It was uninterested in the control of populations, but rather in their management for enhanced production. It sought control of productive forces and the autonomous power to develop and exploit them as the Americans liked. This was a privatized empire—driven by great economic actors, protected by American public power, but constrained by markets. In the place of rigid and centralized control was the operation of markets and the control of capital. What the Americans offered was independence from colonial masters and a degree of local autonomy in matters of customs and traditions (preserving the Spanish imperial structures of power to the extent not inconsistent with American corporate aims) but at the price of deference to American (markets based) needs. While all roads would lead to Washington (or better, New York), there was a substantial space for local elites to order things as they liked.This system also produced its own resistance. Its principal effect might be understood as reactionary—in the sense of solidifying a Latin American consciousness (around religion and language) built around the structures and forms of the Spanish colonial legacy (but without the bother of the old imperial master). Into this tradition one finds José Martí and Caribbean regionalism, the outlawry of Pancho Villa and the rise of political indigeneity.But its greatest effects has been on Latin American approaches to the shaping of the normative content of international law and policy. On the one hand one sees the shadow of Spanish centralized authoritarianism and the obligations of the ecomienda system in the push for a “New International Economic Order” (1 May 1974, A/RES/S-6/3201), and the policies of import substitution and legal nationalism of the Calvo Doctrine. On the other hand, one sees the shadow of American privatized empire in the development of multiple forms of free trade arrangements, and in the privatization of the state (through sovereign wealth funds). But it is in the organization and operation of the Organization of American States, and its Inter-American human rights system that one sees both the promise and perils of these two conflicting imperial visions.To conclude, Latin America was formed in the shadow of Empires. The first was public and hierarchical; with the state/Church at the apex of everything. The second was private and markets oriented; business serving markets and the state. Both sparked strong cultural adherence and equally strong resistance, shaping Latin America’s internal organization and external relations. They define the master narrative of the region; and structure the way they see themselves and the world around them. Latin American internationalism reflects those contradictions of empire and resistance. These are reflected in the strength and challenges of Latin American regionalism at the core of their engagement with international law and policy. These are evident in notions of sovereignty and none interference; unless there is a reason to pressure. They are reflected as well in ethno-nationalist regionalism around an imperial language; yet racial and ethnic stratification. They are reflected in the simultaneous rejection of markets while building economies and cultures around them. In Latin America the state is conceptualized as both the best friend and worst enemy of people and of rights—fostering a broad legalized internationalism that predated the establishment of the U-N. system, in the reconstruction of an imperial center not in Washington or Madrid, but in New York and Geneva as capitals of global public institutions. International Organization or in the organization of powerful blocs, in global human rights but sometimes with a hole in the center, and in resistance to all of this. Given this structure the question for Latin America going forward is the way that these engagements with older empires has prepared Latin America to engage with the rising empires of China (with its Belt and Road Initiative the next generation American form of Empire), and the more traditionally Spanish Empires of a rising Russia. Will Latin America resist or succumb?