The Chapultepechian De-Grotianization of Jus ad Bellum

Opinio Juris

Over at Just Security, my friend Adil Haque has written a fantastic post on self-defense and non-state actors. Adil’s main point is that Article 51 of the UN Charter does not apply to armed attacks by non-state actors given its “Latin American origin”. He explains how it should be read in accordance with the Act of Chapultepec, which referred only to inter-state uses of force. I highly recommend everyone to read it. Here, I wanted to share the historical context to the Act of Chapultepec in order to add to Adil’s claim that it does not support self-defense against non-state actors.

The story begins way back, in the early 1820s, immediately after the independence of Spanish and Portuguese America. The victors of the Napoleonic Wars – Austria, Prussia and Russia – agreed at Troppau that they reserved their right to intervene in other countries against revolutions. It was – as Scott Shapiro and Oona Hathaway call it – a Grotian international law, where war was a common and legal occurrence. To protect against European intervention, the new American republics had to de-Grotianize it. As Calvo said, “the right to intervention (…) cannot constitute the basis of a system of international law” (see here, p. 142).  

The United States issued its now (in)famous Monroe Doctrine in solidarity with this goal: The US would consider any European intervention as an attack on the US itself. As I’ve explored elsewhere, the doctrine was born anti-colonial in the 19th century, but mutated into imperialist in the 20th, when Roosevelt issued his famous corollary:

“Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may (…) ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence (…) to the Monroe Doctrine may force the United States, however reluctantly, (…) to the exercise of an international police power”.

In other words, if a Latin state could not control a revolution or other domestic threat, the US would “fix it”. The US had argued this before, in the context of Mexico-US cross-border raids by indigenous peoples (see here, p. 112). Mexico consistently rejected this position just as Latin America rejected Roosevelt’s Corollary. In 1928, at the VI Pan American Conference, the US and Latin America had their biggest showdown. In the words of the Argentinean delegate:  

“This is the time for categorical and precise definitions. State sovereignty consists in the absolute right, the complete interior autonomy and full external independence. This right is guaranteed in strong nations by their strength, and in the weaker ones by its respect by the strong. If that right is not realized and put in practice in an absolute form, there will not be international juridical harmony”.

The US delegation disagreed with absolute non-intervention: “What are we to do when government breaks down and American citizens are in danger of their lives? Are we to stand by and see them killed because a government in circumstances which it cannot control and for which it may not be responsible can no longer afford reasonable protection?”

Latin America seemed to think so, and the Conference ended without agreement. 5 years later, at the VII Conference, Latin America won, giving birth to the 1933 Montevideo Convention, categorically expressing that “[n]o state has the right to intervene in the internal or external affairs of another” and that “[t]he territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily”.

The outcome of World War II, however, changed how the US approached Inter-American security. At Dumbarton Oaks, it supported a global system, led by the Security Council, not regional agreements. Chapter VIII, Section C, of the Dumbarton Oaks Proposals permitted their existence, but only if they acted with prior Security Council authorization.

This was problematic for a defense of absolute non-intervention. If the US intervened in a Latin state, its neighbours would not be able to respond on their own terms. Latin America feared re-Grotianization and wanted to constrain the US’s ability to act unilaterally, promoting the “hemispherization” of the Monroe Doctrine. The Conference at the Castle of Chapultepec was the perfect venue for yet another showdown.

At Chapultepec, the Latin American consensus was that “controversies of an inter-American character be settled so far as possible in accordance with inter-American methods and systems”. The Act of Chapultepec set out these “methods and systems”. This was a problem for the US. The Act’s language of collective Inter-American defense was incompatible with Dumbarton Oaks’ requirement of Security Council authorization. At San Francisco, the US had the difficult task of balancing Chapultepec and Dumbarton Oaks.

It did not take long for things to go wrong. Contradicting Chapultepec, the US accepted a Soviet proposal to exempt from UN control only defensive pacts against wartime enemies. The Latin bloc was so furious that when US Secretary of State Stettinius got stuck in an elevator with several other Latin diplomats they “seized the chance to harangue him mercilessly for nearly half an hour before their rescue”. 

Faced with a total collapse of trust, the US submitted a new draft changing the language of exceptions to that of self-defense and extending it to regional arrangements. To please the Latins, the draft even mentioned Chapultepec expressly. After the well-known British objection that this formula was too Latin American, the US withdrew mention of Chapultepec in exchange for a public commitment to a “postwar hemispheric alliance”. In many ways, Chapultepec was the Latin American attempt to secure its Montevideo guarantees against interventionism and unilateralism in the post-war era.

This was confirmed during the negotiation of the 1947 Inter-American Treaty of Reciprocal Assistance (the Rio Treaty), that turned the Chapultepec principles into a binding treaty. In order to crystalize anti-unilateralism and anti-interventionism, Venezuela proposed a distinction between intra and extra Hemispheric attacks. The latter would trigger self-defense, while the former only peaceful settlement mechanisms. This way, the US would not be able to invoke self-defense to unilaterally intervene in Latin America.

The US opposed to this so much that its State Secretary himself decided to go straight to the Venezuelan Foreign Minister’s hotel room and try to change his mind. Venezuelan Minister Morales told him that a distinction was necessary because it is not as easy to determine who is the aggressor in intra-continental conflicts as it is in extra-continental ones. In the recent Leticia Conflict, for instance, “although Colombia had invaded Peru it claimed that it had done so in view of Peruvian preparations to attack Colombia”. In order to avoid different states siding with different parties, the Governing Board of the Pan American Union should simply determine who the aggressor is, set out sanctions and initiate peaceful dispute settlement mechanisms.

US Secretary Marshall countered with a typical “Corollary” scenario:

“I told Dr. Morales that (…) I had in mind the possible case of a revolution in an American republic inspired and abetted by a non-American state. I said that in reality this would constitute an extra continental aggression and that in dealing with it considerable confusion might result if the distinction advocated by Venezuela were introduced in the treaty”.

In other words, the dispute once again boiled down to the US trying to secure a right to intervene in cases of domestic turmoil and Latin Americans trying to prevent it. While the Venezuelan proposal was ultimately not approved, Latin states did manage to incorporate important safeguards into the treaty:

  1. Article 4 limits the treaty’s scope of application to an Area covering only the American Continent.
  2. Article 2 says recourse to collective self-defense is permissible only until the Organ of Consultation decides what measures will be taken by the treaty parties as a whole.
  3. Article 7 provides that when two American States go to war, member states “shall call upon the contending States to suspend hostilities” and take all measures to peacefully resolve the conflict. Moreover, “[t]he rejection of the pacifying action will be considered in the determination of the aggressor and in the application of the measures which the consultative meeting may agree upon”. 
  4. Article 9 defines aggression broadly, including “invasion, by the armed forces of a State, of the territory of an American State, through the trespassing of boundaries (…)”, without nuance or exceptions.

At the end of the day, therefore, saying that Article 51 is “clearly of Latin American origin” means accepting it is simultaneously a landmark for international law in general, but also just another episode of Latin America’s centuries-old history of anti-interventionism; a history deeply rooted in opposition to one state invading another under the Corollary’s excuse of “chronic wrongdoing or impotence” – or, as we might just as well call it, being “unwilling or unable”.

Print Friendly, PDF & Email

Read the full article at Opinio Juris