American Legal History

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The Monroe Doctrine and the Law of Nations: a brief History Ken Yang

The fascinating aspect of the Monroe Doctrine comes from its duality. As Sexton points out, the 1823 message originally started as an anti-colonialism pronouncement aimed against the specters of the “Old Continent” that were lurking at the edge of the republic’s frontier, but was later “transformed” into the instrument for asserting imperialist prerogatives in the Western Hemisphere as the young republic had matured into a new world power. The later reinterpretation of the doctrine, had not relinquished the doctrine’s anti-hegemonic/anti-imperialist potentials; on the contrary, the two elements continue to exist in juxtaposition and enabled flexible application of the doctrine to accommodate changing needs and conditions. It had become a “living Doctrine” subjected to constant reconstruction under various statecrafts and had become part of the national myth. The aim of this brief note is to examine the Doctrine’s duality through a quick review of its history, especially the legal significance embedded within those lines, how a declaration that started as a unilateral political reaction of the insecure republic had become gradually entangled with the law of nations. As we would see, the normative potential of the doctrine had not only justified U.S. exceptionalism, but had also posed a bound upon its state practice.

2) The 1823 Message and its Geopolitical Context It is crucial for us to pierce through the later nationalistic narratives that had mythologized the Doctrine as an expression of U.S. confidence. The making of the Monroe Doctrine concerned both the ambition and the insecurity of the “Statesmen of 1823”. The ambition concerned the natural impulse to march westward, a goal that was envisioned since the very inception of the republic, that like Rome, an extensive empire would rise out of a relatively small core . The accomplishment of such goal required tremendous political prudence, as the young republic was literally surrounded by neighbors that remained as segments of Europe. While the former Colonial Governor Thomas Powell was optimistic enough to address the former North American colonies as “Sovereigns of America” (as the conclusion of independence war would soon result in the recognition of the sovereign status under the Law of Nations), he was also keen to remind his friends in his 1781 memorial that the union “as yet ripe for Political Freedom and formed for Empire; your liberty is immature, your sovereignty is premature.” As a clear-sighted friend to America, he had advised that “it is contrary to the nature of her existence, and consequently to her interest, that she should have any connexions of Politics with Europe other than merely commercial.” This line of thought was later embodied in the principle known as American Isolationism. Historian Albert Bushnell latter coined the term “Doctrine of Two Spheres” (which he considers to be the synonyms for the “Doctrine of Isolation”) to describe the shared conviction among American statesmen regarding the dichotomy or division between the “New World” and the “Old Continent”, that the foreign policies for the republic of the New World ought to take into account the antagonism that rose out of fundamental differences between the political and economic systems of the two continents (and it is important to note beforehand that the later ascendance of American nationalism ensured that such antagonistic sentiments were shared by nations on both sides of the Atlantic). Particular concern was given to the “balance of power” that was played between European powers, a dangerous game that would cost the state a standing army, thus constantly threatening domestic liberty. The axiom would require the young republic to refrain from rushing towards a position of significance, whose essence can be best captured by the words of Washington, that “for our situation is such, as makes it not only unnecessary, but extremely imprudent, for us to take a part in their quarrels ; and whenever a contest happens among them, if we wisely and properly improve the advantages, which nature has given us, we may be benefited by their folly, provided we conduct ourselves with circumspection.” As we would later notice, the making of the Monroe Doctrine would be based on such premise, and the theme of “inherent distinction” between the old and the new would continue to reemerge in future discourses. Significant achievements in both diplomatic and military realms during first decade of the Federal government had laid the initial groundwork for further moves in the grand geopolitical game. The union finally demonstrated its capacity for sustaining its own independence after she had concluded her 1812 duel with the world’s foremost military power with a draw, which gave rise to nationalism and opened up the nation’s appetite for further expansion. Yet it was not before long when unsettling developments in Europe started to cast new shades in the Western hemisphere. The most notable moment would be the downfall of Napoleon and the establishment of the “Holy Alliance”, where old monarchs stood together to react against liberalism and further pledged to safeguard each other’s “legitimate” interests. During the Congress of Troppau of 1820, the Habsburg Empire, Prussia, and Britain joined hands in declaring that the allied governments recognized that any “changes brought about by illegal methods” (i.e. revolution) would gave the Allied Powers right to intervene. Just as strife for independence in Latin-American colonies seemed to have created the opportunity for further U.S. expansion (and for that purpose the U.S. administration became the first major player to offer recognition, despite previously the U.S. had made promise to the Spanish Crown regarding the union’s “neutrality between Spain and the South American provinces” in exchange of Spain ceding Florida), their immediate military intervention into post-revolution Spain gave U.S. Secretary of State John Quincy Adams the fear that European powers would utilize this opportunity to retake its Latin American colonies. If puppet monarchs were to be reinstalled by the Alliance states, such entities would very much likely to close their doors on the U.S. in favor of business and commerce ties with the Old Continent. That had exactly been the scheme of Bourbon France. Meanwhile, Russian imperialist enterprise was stretching towards the north-west Pacific, reaching the North American continent, and toward such development Adams gave his direct objection. In face of Russian and British infiltration at the west coast, just five month before the enunciation of the Doctrine, Adams asserted in his correspondence to the Minister to Britain Richard Rush that the solution for resolving disputes between Britain, Russian and the U.S. in the North-west territories was to admit that the American continent “is occupied by civilized nations”, stressing that there were no more unclaimed or undiscovered territory (or to say terra nullius) in the New World that could enable original colonization. In any event, the political status of such colonies that had lied within the periphery of the expanding republic would be of crucial strategic importance for America’s future expansion. Adams felt the necessity to respond to this immense change in Europe in advance, and had become the major formulator of the Doctrine. There had been a major split between the more hawkish statesmen such as Henry Clay and John Calhoun and statesmen like Adams; the former group who had deeply internalized the division and adversarial relationship between the two worlds interpreted the developments in Europe with much more urgency and thus called for more radical preemptive actions in response to the inevitable interventions in Western hemisphere, including cooperation with the hated British, both a former nemesis and future rival. By comparison, it was the belief of Adams that no eminent interventions would take place in Spanish provinces; in fact, the reluctance for Adam to continue this “Great Flirtation” (between the U.S. and Britain) derived from his calculation regarding the high possibility of future competitions, and had thus arrived at the conclusion that it would be against the union’s interest to “tie ourselves down to any principle which might immediately afterwards be brought to bear against ourselves.” The eventual comprise agreed that the message were to formally demonstrate the U.S.’s strategic interests in the Western hemisphere, with the expectation that such message would further minimize continental-style of political dominance in the Western Hemisphere (especially in North America, whose territory was meant for the possession of the U.S.). In his 1823 annual message to Congress, President James Monroe declared that “the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers” (which is often respectively referred as “the principle of non-colonization” and “principle of non-intervention”; according to his diary, Adams solely authored the non-colonization paragraph and deeply influenced the other two non-intervention paragraphs), and then warned the European powers that the U.S. “should consider any attempt on their part to extend their system to any portion of [the western] hemisphere as dangerous to our peace and safety.” The final draft of the message sugarcoated the U.S. attitude by addressing that the union would in return not to involve itself in European struggles, including reactionary efforts for crushing revolutions. Despite the fact that Adams was a trained lawyer and that the message was meticulously crafted in terms of generality (that defined actions would be taken in response to defined situations), there were not much indications that the author had attached a clear legal significance to its work. Nor did the message appeared to have asserted a general bar for acquiring territory via treaty, purchase or lawful conquest under the Law of Nations. In addition, vague phrases and terms that had appeared in the doctrine also implicate that the message was not meant to be an assertion of legal rights or obligation. For instance, the line “controlling in any other manner (their destiny)” seems to be sweep up all forms of control, which eventually leave the discretion of the U.S. to determine its response. At most, the second part of the doctrine that had artificially extended the interest of the U.S. beyond its own frontiers (that extension of European power would amount to threat to America’s peace and safety) could perhaps be associated to a rather extensive version of the principle of self-defense. This later explanation of doctrine in the terms of international law, does has its merits in corresponding the historical reality. By framing the message of 1823 as an assertion regarding the ultimate right of self-protection, it does capture the essence that the invocation of the doctrine was completely left for the discretion of the U.S., unsusceptible to the will and interest any other apparent “stake holders”, most notably all the other Latin-American states that appeared as the beneficiaries under the doctrine; and since the this right to self-protection has been preemptively extended beyond the union’s formal limits, there remained plenty of space for maneuvers. The inaction of President Jackson when help was called for by Argentina when the British forcibly seized the Falkland/Malvinas Islands one decade after the message clearly demonstrated that the doctrine was not meant to be binding upon the U.S.. Ironically, it was old-school European diplomacy rather than the message itself that had contributed to the eventual decision of non-intervention in the year of 1823, an issue that had already been settled due to British efforts for balancing continental power struggles before the debate regarding the message had begun within the Monroe cabinet. While the message was thought to be proactive from the perspective of the Holy Alliance, little attention was attributed to it and no major reaction triggered; in other words, no action from the U.S. was called for in order to substantiate its words. This had further thwarted the assumption that the declaration had succeeded in unilaterally establishing general obligations for European powers. Yet, despite the fact that the Doctrine itself had not saved the former Spain provinces from recolonization, especially as European governments started acknowledging their independent status one after another. Yet, the declaration itself remained appealing for the Latin-American states due to prospects of future conflicts with European powers. Wordings used in the doctrine implying kinship between American institutions further consolidated the conviction, that the “the eldest son” of the American republics who had offered his commitment would faithfully safeguard his brethren’s territorial integrity from future European encroachments. Such immediate hope may be observed in the efforts of Brazil and Colombia to bring the U.S. to the tables of the Panama Congress of 1826, hoping that this frontrunner would endorse the Pan-American unity for the republican idealism. Domestically, the articulation of the doctrine echoed with rising nationalism and received utmost popularity, and the established link between the two ensured the value of future reassertion of the Doctrine. Bemis was right with his observation that “The Monroe Doctrine was a document of the future than of the time of its first utterance”. With another few years the union will be ready for further territorial expansion westward and be set on track for the competition in asserting hegemonic influence over Latin-American states. It would be at those moments that the Monroe Doctrine will be revitalized for inciting further release of national enthusiasm.

3) The Imperialist Agenda and the Civilizing Mission The Reference to the Doctrine undergone a drop as external crisis had vanished from the horizon while the union continued to thrive. By the 1830s, the union only had to compete with the Indians and Mexicans with regard to populating the North America continent. The 1823 message was brought out again by President James Polk in the 1840s, when the Monroe Doctrine was reinterpreted for the purpose of justifying the controversial annexation of Texas. From the perspective of southerner statesmen, American slavery was on the very verge of total annihilation as the possibility of an independent Texas siding with the abolitionist Britain started to unfold . The situation was the recognized as the existential threat for slavery by proslavery statesmen, and thus the perfect moment for bringing out the banner of “non-intervention”. With the doomsday scenario for slavery finally foreclosed, President Polk started to reinvigorate the existing Doctrine that had been long associated with national pride to drive the nation towards the ultimate prize, the rest of the North America continent (which by then means the acquisition of California and the control over Oregon). In 1845, the same year when the phrase “Manifest Destiny” was coined, Polk formally reasserted the Monroe Doctrine in his message to Congress; by emphasizing “no future European colony or dominion shall with our consent be planted or established on any part of the North American continent”, a fresh warning was signaled to Britain implying the old rival not to meddle in the territory where America had already laid its eyes on. The role played by the British empire during this phase must be taken into account. Lasting Anglophobia as well as its dominant presence had made the maritime empire the republic’s archenemy, an rival that would rush the maturing union upon the imperial path. As Sexton points out, the series of real and imagined conflicts and crisis from the 1812 War to the Texas annexation as well as constant Indian rebellions were all blamed upon the former colonial master. For the Polk administration, this menace for national security justified a policy of further preemptive expansions. With the card of necessity in hand, expansion and domination may thus temporarily trump promotion of republicanism as the number one priority of the union. Another important development that had accompanied the rising national enthusiasm was the ascendance of Anglo-Saxon racism. While racial and religious condescendence towards Latin-American populations were not unfamiliar within domestic political discourses, such sentiment had gone through a steady rise during the 1820s and had further surged during the Mexican-American War, especially when debates regarding the annexation of the entire Mexican territory fueled the abomination against the “debased population” of color who were unfit for self-governance. Such discrimination first brushed the invasion with the tint of “liberation” but eventually contributed to the brutality of the conflict. While Mexicans committed atrocities via guerrilla tactics, it was to the surprise for General Zachary Taylor that the respect for and participation in the law of war had gone through a temporary suspension as the conflict further protracted; as the war reached its second year, robbery and pillage had been rampantly committed by raw recruits against Mexican civilians, who condemned by the General as “God Damned” thieves and cowards. Despite the reputation of his troops left a lasting mark upon the General, such experience had not haunted him the way accusations of perpetrating war crimes against French troops had once troubled George Washington, nor had such experience prevented Taylor from becoming the country’s 12th president. Moral controversies had accompanied the “aggression” were eventually settled as the U.S. had later demonstrated efforts to establish discipline, with nearly 300 Americans tried by the military commission for their atrocities; such effort was later praised with national pride, and even critics of the war had later come to think that “no war in any age or country, was waged upon principles so humane, so civilized”. One narrative that was conceived around the same time was much more resonant to the expansionist cause also levitated the potential anxieties: violence against savages and barbarians are simply the inevitable (and thus perhaps acceptable) cost for realizing the “Manifest Destiny”. Such position was succinctly captured by an 1845 editorial posted on the New York Morning News: “We are contiguous to a vast portion to the globe, untrodden save by savage and the beast, and we conscious of our power to render it tributary to man. This is a position which must give existence to a public law, the axioms of which Pufendorf or Vattel had no occasion to discuss. So far as the disposition to disregard mere conventional claims is taken into account, the acquisition of Texas, commencing with the earliest settlements under Austin down to the last conclusive act, may be admitted at once, to be aggressive. But what then? It has been laid down and acted upon, that the solitudes of America are the property of the immigrant children of Europe and their offspring. Not only has this been said and reiterated, but it is actually, although perhaps, not heretofore dwelt upon with sufficient distinctiveness, the basis of public law in America.” Such mentality was not entirely novel to the New World. As Anghie has pointed out in his examination of the work of Vitoria, it happened to be his articulation of natural law that seemingly regulate the equal relationship between Spaniards and Indians, via discourse regarding universal rights of “travel” and “trade” that had led to the emergence of a “comprehensive…inescapable system of norms” that would be inevitably violated by the Indians. The Monroe Doctrine could also be apprehended as an overarching “system”, with its grand narrative regarding the fate and objective for the imagined community, as well as an evolving enforcement mechanism (in other more vulgar terms, the U.S. state apparatus). It is a process of perpetual self-reinforcement and self-justification, as every encounter with the “enemy”, whether they be superfluous uncivilized savages, inappreciable non-White aliens or formidable imperial rivals would justify further expansion or dominance. And every success achieved in such direction would have further justified the American cause. A new wave of oversea expansion was just the natural outcome of the transformation of the republic, as stronger centralized state was forged through the first ever modern warfare in human history. It would be no surprise that four decades later President Theodore Roosevelt, once a rancher that lived on the frontiers, would now update the Doctrine with explicit defense for the interventionist approach in the Western Hemisphere, provocatively asserting the U.S.’s prerogative of implementing international law against “Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society” of uncivilized states, for the purpose of avoiding European intervention. Despite the fact that Latin-American states had been long recognized by the U.S. and major European powers as sovereign states (unlike Africa or the Orients, by the end of the 19th century, there were already 18 formally recognized independent states in the western hemisphere, only waiting Cuba and Panama to join their ranks), their membership to the “family of nations” and their qualifications for the protection under international law was thus placed under the mercy of the imperialist America. Fortunately, the U.S had always been in favor of maintaining an “informal empire” via financial and commercial influence rather than direct colonial control, while the “sticks” were mostly reserved for more necessary occasions; . The shift to “civilization” vocabularies should also be associated with the demise of the previous “Two Spheres Doctrine”, as unfolding liberal political reforms in European states, as well as the continuous flow of knowledge, culture and population between the two continents took away the factual basis for such assumptions regarding the inherent differences. The concept of “civilization” that indicate development and progress thus became the suitable alterative, a new ideology for labelling their superiority without having to give away too much explanation, especially at a time when the U.S had far surpassed other American states in wealth, military capacity and political stability. The biggest irony of the Monroe Doctrine at this imperial phase was that much forcible interventions were actually targeted against local democratic processes, especially suppressing nationalism movements that had posed threats to U.S. commercial interests overseas. Despite there were brief moments where U.S. statesmen such as James G. Blaine would make the nominal concession of gratifying “absolute equality” to other American republics, yet such good will eventually fell short of establishing a desired American assembly representing the continents’ shared interest over differences regarding the distribution of power among its members.

4) Monroe Doctrine under the Legalist Epoch The Monroe Doctrine started as strategic response and was not meant to be an articulation of new set of legal principles. Perhaps it is also excessive to characterize the 1823 message as a “call for a new world order”. Yet, nor would the normative concepts, the embedded idealism for republican self-governance would be submerged by hegemonic practices of the increasingly assertive empire. Thus, international publicists would continue to resort to the Doctrine as normative source, hoping to draw authority from the will and interest of the most mighty state in the Western Hemisphere.


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r6 - 23 Jan 2017 - 21:05:12 - EbenMoglen
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