The Latin American View of Jus ad Bellum

For the past few weeks, Rebecca Ingber, Elvina Pothelet, Priya Pillai and I have been engaged in the task of systematizing State reactions to the April 14 air strikes carried out by the United States, the United Kingdom and France in Syria, trying to shed light on what Alex Moorehead accurately called the “less-well publicized views” on use of force. For Latin America, we found that of the 33 states south of the Rio Grande, not a single one considered the strikes legal. In total, 21 states didn’t make any statement at all, four (Bolivia, Costa Rica, Cuba and Venezuela) specifically considered them illegal, two (Panama and Chile) made neutral general statements, and six (Argentina, Brazil, Guatemala, Mexico, Peru and Uruguay), while not technically condemning them, did specifically reference their support for the UN Charter and/or international law principles on the use of force. Only two states (Colombia and St. Lucia) issued political (non-legal) remarks in support of the strikes, through brief comments by their heads of state during the plenary meeting of the Summit of the Americas. In the case of Colombia, it’s even more remarkable that the specific phrase expressing political support was later deleted from the written remarks uploaded to the Colombian Ministry of Foreign Affairs website.

As we devised our methodology, my coauthors and I constantly discussed how we should read these kinds of statements that neither condemn nor support the attacks, but that did offer specific support for international law. Like we said in our original post, “It may be possible to infer from their contextual invocation of legal principles an implicit disapproval of the strikes,” but, considering the fine-tuned diplomatic language they employed, “whether a particular state in this category has an implicit position leaning towards support or disapproval may be a matter of debate, taking into account political context, language, and nuance.”

For some scholars, this lack of express condemnation can be construed as acquiescence to the emergence of a new rule on humanitarian intervention or, as Professor Monica Hakimi argued, a sign that a state is willing to “tolerate the strikes but is worried about the precedent so uses language to hedge and try to make this a one-off situation.” In this post, I wish to offer the context and nuance necessary to demonstrate that the Latin American view on use of force cannot be construed in this fashion. As such, given the history of Latin America, all of these six non-committal statements should be properly read as implicit condemnations of the Syria strikes as illegal, just as any absence of condemnation should not be seen as evidence for approval. Generally, as I will show, I take the measured Latin American reaction to the strikes as evidence against the emergence of any new norm regulating humanitarian intervention outside the UN Charter regime.

Most Latin American nations were born in turmoil, frequently marred by civil war and competing “caudillos,” or strongmen. These relatively unstable governments found themselves increasingly in the crosshairs of great power politics. From the French appointment of Emperor Maximilian in Mexico in 1864, to the Spanish bombardment of the Chilean port of Valparaíso in 1866, to American intervention in Central America and the Caribbean in the early 20th century, “non-intervention” became a hallmark of the Latin American psyche from an early start.

This background explains the emergence of the Calvo and Drago doctrines in the late 1800s, and the signing of the Montevideo Convention in 1933. While mostly known for its definition of “State,” the original objective of the Convention was to codify the principle of non-intervention in positive international law. As such, article 8 of the Convention posits that “no state has the right to intervene in the internal or the external affairs of another” and, per article 11, 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.” In fact, this language was so specifically designed to address American expansionism in the region, that the U.S. delegation appended a declaration reassuring Latin American states of its commitment to non-intervention. This declaration stated that “under the Roosevelt Administration, the United States Government is as much opposed as any other government to interference with the freedom, the sovereignty, or other internal affairs or processes of the governments of other nations” and that “under our support of the general principle of non-intervention as has been suggested, no government need fear any intervention on the part of the United States under the Roosevelt Administration.” The emphasis on the Roosevelt administration (which had assumed office a mere 9 months prior) as a turning point is a clear signal of the regional mood in those times.

A dislike for interventionism has continued to this day, as a cornerstone of the Latin American understanding of international law. Judge Augusto Cançado Trindade, perhaps the most influential international law scholar in the Latin American tradition, has stated that “the principle of non-intervention [is] one of the basic pillars of international relations in the Latin American vision.” To Judge Trindade, “[e]very true jus-internationalist has the ineluctable duty to stand against the apology of the use of force.”

This context is what explains Brazil’s “robust defense” of the UN Charter regime at this year’s ASIL Annual Meeting. That panel was only one in a long line of instances when Brazil has asked for caution in the face of radical change. Just as in the case of the “unwilling or unable” test, Brazil was equally unenthusiastic in the early 2000s, when analyzing its position on humanitarian intervention and Responsibility to Protect (R2P). In 2004, then Minister of Foreign Affairs, Celso Amorim, published an article warning of a “humanitarian interventionism of potentially elevated human and material costs and questionable stabilizing effect.” At the UN World Summit of 2005, Brazil would argue that force “can only be considered when all other efforts have been exhausted and peaceful solutions have indeed proved not viable.” By 2011, the Brazilian position at the United Nations was that R2P could be misused, and that therefore states “must find a legitimate and effective way to aid those societies that call for reform, while keeping their citizens in the lead of the process.”

As Brazilian Professors Aziz Saliba, Dawisson Belém Lopes and Pedro Vieira conclude, Brazil has endeavored to limit the scope of the R2P doctrine and has “stressed the prevalence of non-coercive and diplomatic measures … [drawing] attention to the subsidiary and last-resource character of military intervention.” Brazil is not alone in such considerations. While expressing varying degrees of support for R2P itself, all six Latin American states under study very clearly stated that R2P can only be implemented through the UN Charter regime. Professor Ricardo Arredondo, for example, finds that Argentina “has also expressed a reluctance to accept the RtoP principle to be exercised unilaterally either by a State, a coalition of States, or a regional body without express authorization of the UNSC.” Likewise, in September 2017, during the UNGA-organized Informal Interactive Dialogue on R2P, Uruguay was clear to conclude it “believes that the use of force should only be used as a last resort and fulfill all the guarantees within the United Nations Charter, including the expressed resolution of the Security Council.” In a similar fashion, Peru has argued that through R2P “member states can adopt collective actions in a timely and decisive way in compliance with the Charter of the United Nations.” Guatemala, in turn, emphasized that humanitarian collective armed action may be employed “in accordance with the United Nations Charter, following Chapter VII therein.” Mexico, described by Arredondo as the “champion” of R2P in Latin America, stated in 2012 that R2P “opens the possibility of recurring to all the means specifically provided for by the Charter” and that “under no circumstances must it be understood that Pillar III [of R2P] automatically authorizes the use of force.” None of the six countries, therefore, supported any kind of emerging norm on unilateral humanitarian intervention before the April 14 strikes took place.

A reluctance to condone unilateral military action, however, is not limited to these six states, but is consistent throughout the region. It is because of these shared historical and policy considerations that Latin American states consistently vote in the UN Human Rights Council to declare unilateral coercive measures illegal under international law. Last year, Bolivia, Brazil, Cuba, Ecuador, El Salvador, Panama, Paraguay and Venezuela, all voted in favor of HRC Resolution 34/13, which urges all States to “refrain from imposing unilateral coercive measures … as they are contrary to the Charter and norms and principles governing peaceful relations among States.” Even this year, when many Latin American nations are looking for effective ways to constrain the dictatorial rule of Nicolás Maduro in Venezuela, no Latin American government changed this practice, with Chile, Cuba, Ecuador, Panama and Peru supporting this year’s Draft Resolution L.34, and Mexico and Brazil only abstaining.

Considerations regarding use of force, therefore, follow a very different path in Latin America than in the Western world. For instance, in 2008, after Colombian armed forces attacked a FARC camp in Ecuadorean territory, the official Colombian statement was highly apologetic. It said: “The Government of the Republic of Colombia wishes to present the illustrious Government of the Republic of Ecuador its apologies for the action it was obligated to undertake in the border zone (…). The Colombian Government has never had the will or the disposition to disrespect or violate the sovereignty or integrity of the brotherly Republic of Ecuador, its people, or its authorities, for whom it has historically professed affection and admiration” (unofficial translation). And more recently, in August of last year, when U.S. President Donald Trump appeared to be evaluating a military option for the Venezuelan crisis, Bolivia, Peru, Mexico and Mercosur (which encompasses Argentina, Brazil, Paraguay and Uruguay) issued clear statements to the contrary. Even the president of Colombia, the strongest  U.S. ally in the region, said that “the option of military intervention must not be contemplated [because] neither Colombia nor Latin America, from Rio Grande to Patagonia, could agree with it.” He continued, “America is a continent of peace. Let’s keep it that way.”

It is against this backdrop, therefore, that one must read the Latin American statements on the April 14 Syria strikes. Any ambiguity in language cannot be construed to mean an attempt to acquiesce to legal change, but rather as a diplomatic move to sustain the longstanding Latin American tradition of support for non-intervention, while at the same time not triggering a response from a world superpower, already distanced from the region, and involved in several complicated hot-topic issues, such as trade and immigration. Thus, if Brazil says that “[o]vercoming conflict in Syria requires full respect of the United Nations Charter and international law,” one should interpret this as an implicit condemnation and an evaluation of illegality, even if Brazil itself never argued that the attacks violated international law. Peru’s language of a “solution to the conflict in Syria (…) in a manner consistent with the United Nations Charter and international law” should warrant a similar evaluation, as should Uruguay’s call for parties to respect “the strict framework of the United Nations Charter.” Hence, in my opinion, it would be a mistake to interpret ambiguity in language as evidence of veiled agreement with, or toleration for, non-UN-sanctioned strikes. Such a view would simply run contrary to more than a century of practice and regional context that should not escape the analysis of scholars studying the alleged emergence of a new norm of unilateral humanitarian intervention. There is simply no indication that Latin America would support such a proposal. 

About the Author(s)

Alonso Gurmendi Dunkelberg

Professor of International Law at Universidad del Pacífico (Lima, Peru), Follow him on Twitter @Alonso_GD .