Globalizing the Latin American legal field: continental and regional approaches to the international legal order in Latin America

Through an analysis of the international legal thought of Alejandro Alvarez, Ruy Barbosa, Isidro Fabela and Carlos Saavedra Lamas, this paper shows that Latin America played a vital and complex role in the reconfiguration of a new global legal order in the early twentieth century and the consolidation of the modern discipline of international law, as well as a specific legal field in Latin America. It argues that the region was a pioneer in the promotion of distinctive continental and regional approaches to international law and world peace before and after the creation of the League of Nations.


Introduction
L atin America seems to occupy an awkward place in global history, perhaps because it is not always clear whether it is in the West or the non-West. Through the eyes of the great majority of global historians, Latin America is an "odd region out" (Benton 2004). Since the recent emergence of global history as a field, more specifically in discussions about global intellectual history and international relations' accounts of the expansion of international society, Latin America has been overlooked. However, Latin American global modernity and its assimilation to international society were not only influenced by global historical transformations. The continent also played an important and original role in such transformations. Historians working on global intellectual history and the history of international law have tended to disregard the role of Latin America, as if studying global issues forces us to dismiss particularities. To start practicing region, which resonated in the contemporary Latin American international society. As such, it combines a historical approach to international relations and international law and the methodology of intellectual and global history for the study of international legal and political traditions. The comparative hemispheric intellectual and legal history of the Americas, as proposed in this article, has not yet received the attention it deserves.
It is often assumed that Latin America has been marginal within broader global historical transformations of international society. However, this article contributes to provincializing the global history of international law, focusing on Latin America as an unsettled region. Provincializing dominant historical accounts of international relations in order to include Latin America within the global history of international law could expand the horizons of research about what modernity meant to Latin America and how Latin Americans conceived and sought to transform the international legal order.
The most important obstacle we face is that the framework through which we conceive globality tends to be organized around a division between the West and the non-West. In the emerging field of global history, and even in comparative political theory, there is an attempt to represent the countries and regions beyond the scope of the West. Yet, Latin America tends to be portrayed as part of the non-West and thus as a unitary region with unitary characteristics. Latin Americanists should celebrate this emerging interest in the continent and its political and legal thought but they must be cautious with this new scholarly enthusiasm, especially regarding the debate of whether Latin America is part of the West or the non-West. As Louise Fawcett has shown in a recent article, Latin America, particularly Latin American international thought, could be better regarded as neither West nor non-West (Fawcett 2012). If we accept this notion, the unsettled nature of the region within this division and the norms and identity associated with it makes it a particularly intriguing case for understanding the anxiety posed by the rise of U.S. hegemony in the region, on the one hand, and the assimilation and inception of Latin America in international society, on the other. Exploring how Latin American international lawyers and diplomats have conceived of the role and mission of the region within the global legal order could provide an insight into how this region of the world adopted global, hemispheric and regional approaches.
The progressive assimilation of Latin America to international society, its increasing participation in international conferences and institutions, such as the Hague Peace Conferences, the Pan-American Conferences and the Pan-American Union and then the League of Nations, as well as the globalization or expansion of international society, prompted Latin American jurists and diplomats to envision the role of the region in this emerging global order and thus a conception of globality as such. These transformations stimulated reflections about Latin American self-image and self-identity within a global context, as much as about the nature of globality and the region's ability to display its norms and role in a more globalized international order, in which unsettled regions, jurists and intellectuals began to play their roles in the world stage. Most of them believed that Latin America had the mission to construct a new global order on new foundations, based on the promotion of peace, the peaceful and legal settlement of international disputes, cooperation, Globalizing the Latin American legal field: continental and regional approaches to the international legal order in Latin America Rev. Bras. Polít. Int., 61(2): e005, 2018 Scarfi 4 solidarity and non-intervention. Therefore, the approach to the notion of globality, as proposed in this paper, seeks to point out that this was an uncertain notion in this context. These jurists and diplomats sought to redefine the notion of globality under American or Latin American traditions. Thus, this article is not so much about Latin America and global history, as it is about Latin America in global history.
Moreover, it is worth avoiding unitary and self-evident definitions of the idea of Latin America and what is Latin America, which are not addressing its diversity and heterogeneity. This is especially relevant for scholars working on global and transnational approaches to intellectual history and the history of international legal and political thought. This paper seeks to make a case for globalizing the Latin American legal field and Latin American international legal thought in an attempt to show the wide range of visions that emerged in the region; more importantly, the disputes and misunderstandings that took place around continental and regional, American and Latin American approaches to international law. In short, the article could be seen as an attempt to propose a global interpretation of the Latin American approach to the international order that emerged with the rise of U.S. hegemony and the creation of international organizations dominated by European powers, such as the League of Nations.
This paper focuses on two opposing legal traditions and four international lawyers and diplomats: Alejandro Alvarez, Ruy Barbosa, Isidro Fabela and Carlos Saavedra Lamas. The first section explores the rise of Pan-Americanism, especially the idea of a continental American international law in Latin America. It takes a step back from Europe in the emergence of the U.S. as a hemispheric power and the institutionalization of the so-called Inter-American System. The second section analyzes the different attitudes adopted by the Argentine and Mexican jurists, a regionalist and Latin Americanist defensive legal attitude, more sympathetic to Europe and opposed to the Pan-American movement. Finally, the article offers some conclusions and reflections about the rise of Latin American international legal thought and the formation of two different traditions that have persisted, to some extent, until the present day.

The Continental U.S.-led Approach and the Rise of the Inter-American System
It is no coincidence that by 1915, in the context of the Second Pan-American Scientific Congress, the American Institute of International Law (AIIL) was founded by James Brown Scott (U.S.) and Alejandro Alvarez. The AIIL was Pan-American organization devoted to promoting the development of a specific and distinctive hemispheric American international law for the Americas. This organization sought to coordinate continent-wide the work of all the national societies of international law of each country (Scott 1916, 107-108). Alvarez, Scott and other jurists believed that this new hemispheric "international law of the future," as Alvarez termed it, could be a model for the reconstruction of a new world order following the Great War. In his work "Le droit international américain", Alvarez (1910)

had already drawn a distinction between
Globalizing the Latin American legal field: continental and regional approaches to the international legal order in Latin America Rev. Bras. Polít. Int., 61(2): e005, 2018 Scarfi 5 the European legal tradition, based on the notions of monarchical order, imperial competition, the balance of power and intervention, and an "American international law" rooted in a strong and solid notion of continental solidarity, republican democracy, non-intervention and state independence (Alvarez 1910). Alvarez also advocated the pan-americanization of the Monroe Doctrine as a hemispheric principle of international law. More importantly, Alvarez believed that U.S. hegemony and the Monroe Doctrine, redefined as a multilateral principle of international law, were both beneficial for the Americas.
Pan-Americanism was, from the beginning, as advocated by one of its pioneering promoters, U.S. Secretary of State James Blaine, a hegemonic policy devoted to promoting U.S. economic, legal and intellectual cooperation towards Latin America. The AIIL was a clear crystallization of a central feature of Pan-Americanism: the legalistic movement concerned with the construction of a Pan-American legal order. At the first meeting of the AIIL, Alvarez was assigned the task of writing a treatise on how to rebuild the foundations of international law following the Great War. This resulted in his study "El derecho internacional del porvenir" (The international law of the future), published originally in French under the auspices of AIIL (Alvarez 1916). In this important work, Alvarez argued that the Great War "has already defeated, or profoundly altered the political, economic and social life" and overall the international life of nations. It relied on Pan-American institutions, the Pan-American Union and the AIIL to rebuild the foundations of the international law of the future. "In order to undertake this arduous task, the Americas have a double mark: its neutral character and the harmony that is epitomized in its political, economic and social development" (Alvarez 1916, 9-10). He continued: "While in Europe one of the most destructive social storms ever known in history is taking place, in the American continent one observes, though, a progressive trend among all its states toward a more perfect harmony and to a better international intelligence, perhaps the best that has ever existed among peoples of different nations" (Alvarez 1916, 17-18).
The Brazilian jurist and politician Ruy Barbosa also projected a great mission for the Americas in the reconstruction of international law and international life following the Great War. Similarly, he advocated the continentalization and pan-americanization of American international law as a specific body of hemispheric norms. In 1916, one year before Brazil entered the conflict, Barbosa (1939), another founding member of AIIL, visited Argentina and delivered a long speech at the School of Law of the University of Buenos Aires under the title "Los conceptos modernos del derecho internacional" (Modern concepts of international law) (Barbora 1939). In a similar vein to Alvarez, Barbosa argued that the Americas should play an active and protagonist role in the context of the European war promoting what he termed organized neutrality: "no with the sword, to use force, but with the law, to enforce justice" (Barbosa 1939, 153) through the pressure of public opinion of the peoples of the Americas. Like Alvarez, Barbosa believed that the Great War would lead to a new reconfiguration of international law, mainly on the principle of solidarity among nations. The countries of the Americas, under the leadership of the United States, should guide Europe towards the path of peace and justice.
Globalizing the Latin American legal field: continental and regional approaches to the international legal order in Latin America Rev. Bras. Polít. Int., 61(2): e005, 2018 Scarfi 6 The principles of law and liberty contributed to give shape to North America [...] Based on these principles of law and liberty it now rests on this exemplary North American champion -the U.S. -of American politics the mission to act in European politics, surrounded and followed by the Latin American nations, under the influence of its legal and moral attraction, like stars gravitating, towards a great ideal, to the orbits of peace and justice (Barbosa 1939, 164).

The Rise of a Regional and Defensive Latin American Approach
In contrast to Alvarez and Barbosa, who (Fabela 1920). In a final section entitled "The United States against Europe," he argued that, since the outbreak of the Great War, the United States had not only displaced Europe in their cultural, economic, and political relations with Latin America but also acted against the Old World. Europe did not oppose this situation, since Article 21 of the Covenant of the League of Nations had approved the idea that the pact did not affect the status of the Monroe Doctrine as "regional understanding" for the maintenance of peace in the Americas (Fabela 1920). This proved, according to Fabela, that Europe was legitimizing the Monroe Doctrine. "The truth is that neither Europe nor the Spanish America should accept this doctrine as a principle of international law" (Fabela 1920, 310). While acknowledging that they had specific interests that led Latin America to maintain good relations with the United States, Fabela (1920)

Fabela (1920) concluded with a warning and an open question:
The United States, referees in the world, in a recent moment of our history, have imposed their ideas and their will to many other nations. How long would the universal supremacy of the Great Republic last?" (311).

The Clash between the Two Legal Traditions
The two approaches and traditions of Latin American legal thought that have been explored throughout this article confronted each other at the Sixth Pan-American Conference held in Havana in 1928. During the Conference, a controversial debate took place over the right to intervene deployed by the U.S., which promoted regular interventions in Central America and the Caribbean, particularly the occupation of Nicaragua in 1927. This debate derived from a series of projects for the codification of public international law prepared by the Board of the AIIL by the mid-1920s, which were then presented to the Rio de Janeiro Commission of Jurists of 1927 and later discussed at the Havana Pan-American Conference in 1928. An original proposal prepared by Alvarez for the Fifth Pan-American Conference, held in 1923 in Santiago, Chile, was used as the basis for the projects elaborated in Paris in 1924 by the Board of the AIIL. This Board was composed by Alvarez, the U.S. jurist James Brown Scott, the Costa Rican jurist Luis Anderson and the Cuban jurist Antonio Sánchez de Bustamante (American Institute of International Law 1925, 6). In article 5 of the projects prepared by Alvarez there was a clear reference to the principle of non-intervention in the following terms: "No State could intervene in the internal or external affairs of another American State against its will. The only possible form of interference is of a friendly and conciliatory nature, without any imposition" (Alvarez 1923, 98). The article was slightly modified in the project that was elaborated afterwards by the Board of the AIIL in 1924. Although article 5 and the project that followed it did not invoke either legitimate the principle of non-intervention as an absolute principle -as was the case for the tradition of the regionalist defensive and Latin Americanist approach -they clearly condemned interventions. By 1927 in the context of the Rio de Janeiro Commission of Jurists, the deliberations contributed to legitimate and establish a robust version of the principle of non-intervention in article 3, declaring that "No State could intervene in the internal affairs of another" (International Commission of Jurists 1927, 240). The most fervent advocate of non-intervention as an absolute principle and promoter of that article was Luis Anderson. Anderson's initiative, which derived from that article, was received with fervent applause by the great majority of jurists in the continent (Yepes 1927). Although the initiative was accepted, the U.S. delegation, and Scott in particular, expressed Globalizing the Latin American legal field: continental and regional approaches to the international legal order in Latin America Rev. Bras. Polít. Int., 61(2): e005, 2018 Scarfi 8 important reservations regarding this article and the way in which it legitimized the principle of non-intervention, stressing two exceptions which had to be placed above this principle: reasons of humanity and self-defense.
Finally, in the context of the Sixth Pan-American Conference, held in Havana in 1928, there was a controversy over the principle of non-intervention, when Latin American jurists took stands along the lines of the two contending traditions of Latin American legal thought distinguished throughout this paper: Pan-American liberal internationalism and legal defensive and anti-imperialist Latin Americanism. The controversy was incarnated, on one hand, by the Argentine delegate Honorio Pueyrredón, who defended the principle of non-intervention as absolute and not subjected to any other superior principle; on the other hand, by the Peruvian jurist and diplomat Víctor Manuel Maúrtua, who, going against the principles that had been established at the Rio de Janeiro Commission of Jurists, sought to establish exceptions and to give an important scope to authorize and legitimize interventions. As is well-known, at Havana, it was not possible to establish non-intervention as an absolute principle.

The Anti-War Treaty and the Redefinition of the Inter-American System
Although he was heavily influenced by the Pan-American ideology and the critical context inaugurated by the Great War in 1916, the Argentine jurist, politician and diplomat Carlos Saavedra Lamas was gradually taking a step back from these projects in the 1920s, criticizing U.S. hegemonic leadership in the Pan-American initiatives for the construction and codification of American international law. However, he always maintained a strongly pacifist ideology. As Fabela with the Carranza Doctrine, Saavedra Lamas tried to define non-intervention as an absolute principle, raising the profile of South American countries and particularly that of Argentina, and stating that the approach of South American countries to international law and the promotion of international peace were different from those promoted by the U.S. These international legal ideas were reflected in two important works he published, tracing a balance of such Pan-American projects for the codification of international law and the distance that Argentina had to maintain from such initiatives.
Serving as Foreign Minister of Argentina since 1933, Saavedra Lamas's ideology for international law was reflected in a concrete initiative: "The South-American Anti-War Treaty of non-aggression and conciliation" in the face of the Chaco War (1932)(1933)(1934)(1935), involving the territorial dispute between Bolivia and Paraguay. The treaty was originally conceived and implemented as a South American anti-war treaty. As such, it could be read as a synthesis of the aspirations that distanced Saavedra Lamas and other Latin American jurists from the Pan-American projects. Saavedra Lamas (1933) was explicit about Pan-Americanism: [...] Pan-Americanism certainly represents a vast community regarding the moral unity of the continent, but it should also be recognized that it involves something of Globalizing the Latin American legal field: continental and regional approaches to the international legal order in Latin America Rev. Bras. Polít. Int., 61(2): e005, 2018 Scarfi 9 a bilateral expression of the inevitable differences between the Latin and Anglo-Saxon worlds, in modalities of temperament, in terms of the geographic and economic situation, and also in terms of the consolidation of political institutions (14).
The treaty was signed by Argentina, Brazil, Chile, Paraguay and Uruguay and was open to all the countries of the world, thus submitted to the League of Nations, taking a step back from Pan-Americanism. The Treaty adhered to the principle of absolute non-intervention as a South American and Argentina doctrine, referencing the so-called Drago Doctrine (Saavedra Lamas 1943). In Article 3, it stated: "Contracting States undertake to use their best efforts to maintain peace [and] will bring the influence of public opinion, but in no case resort to intervention, either diplomatic or military" (Saavedra Lamas 1933, 4). In recognition of his contribution to the promotion of South American peace during the Chaco War, Saavedra Lamas was awarded the Nobel Peace Prize in 1936.
Although the principle of non-intervention was long invoked by the Latin American jurists who belonged to the defensive legal tradition, such as Fabela, before Carlos Saavedra Lamas institutionalized the principle as part of the South American Anti-War Treaty and consolidated it at the Montevideo Pan-American Conference of 1933, it was only when Franklin Roosevelt assumed power in the U.S. and proclaimed the Good Neighbor Policy that the U.S. submitted and formally adjust its behavior to the principle of absolute non-intervention. Moreover, at this very moment, following the Montevideo Pan-American Conference, inter-American multilateralism was institutionalized and, therefore, the principle of non-intervention began to structure, at least formally, U.S.-Latin American relations since the mid-1930s.
The institutionalization of Inter-American liberal multilateralism in the 1930s could be seen, in principle, as the culmination of the liberal international ideals and aspirations advocated by the Pan-American liberal internationalist tradition. Indeed, Alvarez and Barbosa made a more concrete contribution, since they participated actively in the Pan-American conferences, also assuming, in the case of Barbosa, a leading role in the context of important international conferences, such as the Second Hague Peace Conference, as well as contributing to the foundation of Pan-American legal organizations, such as the AIIL, and explicitly supporting the institutionalization and consolidation of a U.S.-led Inter-American System. However, the legal defensive and anti-imperialist Latin American tradition, epitomized by Fabela and Saavedra Lamas, performed a rather indirect role within the Inter-American System, creating the grounds for opposing the Pan-American legal tradition and consolidating a more robust and assertive understanding of the principle of non-intervention, in turn, redefining the basis of the Inter-American System under multilateral terms. While Saavedra Lamas played a central role at the Seventh Pan-American Conference, held in Montevideo, as the architect of the South American Anti-War Treaty and a leading, and fervent, advocate of non-intervention, contributing in concrete terms to the consolidation of this principle within the Inter-American System, Fabela also had a fundamental role, which had a real and concrete impact on the Inter-American System before Montevideo. Fabela sent a message from Paris to the Latin American delegates appointed for the Sixth Pan-American Conference, held in Havana in 1928, instructing them to confront and demolish the elastic Monroe Doctrine and the U.S.-led Pan-American movement, in the name of an alternative Latin American legal approach and robust ideas of absolute non-intervention (Fabela 2000). Fabela's instructions had a great impact on the controversial and fervent debate that took place at Havana over the question of intervention. His legal international defensive approach had reverberations among Latin American jurists within and outside the Inter-American System, which led, in turn, to the consolidation of the principle of non-intervention at Montevideo a few years later, and the rise of inter-American multilateralism.

Conclusion
The quest for provincializing -American and Latin American -international law, as shown throughout this article, could be seen as an attempt to globalize the Latin American legal field, so that Latin American legal norms and Latin American jurists could play a central role in the world stage. Latin America as an unsettled region, and part of the American continent, played both an important and ambiguous role in the context of the new global legal order inaugurated with the creation of the League of Nations and the rise of the U.S. as a global hegemonic power, as a region between the West and the non-West, between the U.S., Europe and what would later become the Third World. The region -and the emerging Latin American legal field as such -was a pioneer in the promotion of continental and regional approaches to international law and world peace, before and after the creation of the League of Nations, through the languages of American and Latin American international law.
Secondly, in the consolidation of international law as a modern subject of study in the region and the assimilation of Latin American to a European-led international society, Latin American jurists and diplomats contributed not only to globalize a series of norms and legal principles associated to the region's identity, but also to forge a global and normative identity that was elusive, since its inception within the new international legal order. Although it was clear that there emerged a specific regional legal field and two traditions, this was an unsettled legal field, which could be assimilated in a common hemispheric American tradition. This emerging legal field had strong European influences but it was, at the same time, part of an authentic regional defensive trend encompassing the broader family of weak nations and the so-called Third World, outside the West. The elusive roots of these traditions and approaches associated to Latin America and America resonate until the present day, to the extent that Latin American norms could be associated at the same time to James Monroe and Simon Bolivar, the Inter-American System and UNASUR or ALBA, the non-aligned countries of the Third World and the Western Hemisphere, the West and the non-West at the same time. All these contradictory and opposing traditions and institutions have been associated to Latin America in the global arena.
Thirdly, as shown throughout this article, the attempts to provincialize international law led to the formation of two opposing traditions in Latin America. Therefore, it is worth comparing these two traditions that emerged and were projected by Latin American jurists and diplomats in order to forge an international normative identity. They were both deployed and invoked in the name of Latin America and the Americas at large, as if the idea of American and Latin American international law could be associated to different bodies of norms and principles. While the Pan-American, liberal and internationalist tradition gained prominence by invoking a monist principle of solidarity, organized neutrality and cooperation in the quest for the construction of a unitary, U.S.-led continental vision, the defensive, legal and anti-imperialist Latin American tradition adopted a pluralist worldview, associated with a robust notion of absolute non-intervention and the idea that collaborating with other legal traditions outside the Americas, such as Europe, could be beneficial for the consolidation of Latin American legal autonomy and its progressive assimilation to international society. More importantly, in the inception of Latin America to international society and the rise of U.S. hegemony in the Americas, the two traditions performed an active role in consolidating the principle of non-intervention within the Inter-American System, its redefinition under multilateral norms and, in turn, the institutionalization of the Inter-American System as such. This process contributed not only to provincialize international law but also to globalize the Latin American legal field. However, the ideals and principles under which these provincializations and globalizations took place were disputed, thus unsettled, and remained unsettled until the present day.