The Political Economy of Interventionism and Arbitration: A Conversation Between Edward Jones Corredera and Allison Powers
Edward Jones Corredera (EJC) and Allison Powers (AP) have each respectively recently published Odious Debt: Bankruptcy, International Law, and the Making of Latin America and Arbitrating Empire: United States Expansion and the Transformation of International Law, both with Oxford University Press. In this exchange, they consider how the books relate to one another and what new paths the authors hope to open for the study of international political economy and international law.
Arbitration, Economic Disputes, and the Form of the History of International Law
EJC: I think your book does a great job of showing how arbitration worked on the ground and in contested frontier or porous territories. It even incorporates the complexity of the study of borderlands into this story. On one level, you might say that yours is a type of diplomatic history, and I think we need more of that in the historiography of international law.
I tried to incorporate diplomatic history into the history of international law in my own book – a book that studies how Latin American jurists, drawing on the writings of Hugo Grotius, sought to outlaw war over default. If we think about some of the big names in the study of arbitration and intervention – someone like Carlos Calvo – we are missing a contemporary and updated biography of the man that transcends the myth. Luis María Drago in turn is frequently featured in the Argentinian literature on the politics of the twentieth century, particularly in relation to the reform of divorce laws, but, again, we are missing a proper biography of the man. These diplomats were complex intellectuals – Drago was an important figure in criminology – and yet this rarely features in accounts of his approach to international law. We are therefore missing the professional background and the stories that made these jurists.
And this gets us to a second point: what counts as the history of international law. In your book you state: “Although the opinions of the 1868 United States– Mexico Claims Commission remained unpublished, the first generations of professionalized US international lawyers— John Bassett Moore, Edwin Borchard, Jackson Ralston, and others— cited the records of the tribunal as evidence of international legal doctrines.” (Arbitrating Empire, Powers, p. 48) This gets us to an important question which both our books cover: what counts as the history of international law? The focus on congresses and paradigm shifts obscures all sorts of considerations – including how mixed-claims commissions directly influenced the shape of international law. What you did in the book with these sources should serve as a guide for others: your work on mixed claims commissions is incredibly meticulous.
AP: Like you, I'm interested not only in identifying the origins of contemporary international legal doctrines, but also in trying to understand the broader terrains of contestation through which the ideas that came to be known as canonical emerged–and what alternatives that canon foreclosed. To that end, my book is about how seemingly ordinary people not typically considered relevant to the history of international law in fact turned to a series of international tribunals to demand redress for colonial violence during the decades when the United States was first becoming a global power. Tens of thousands of petitioners brought these really powerful legal charges against the United States government between the 1870s and the 1930s, concerning the acts of US state agents in Mexico, Samoa, the Panama Canal Zone, and the continental United States. Their claims challenged military and paramilitary operations targeting civilians, the overthrow of democratically enacted governments, repression of labor organizing, and police brutality. And then their stories really got excised almost completely from the records, the published treatises on international law.
I concluded that this excision, this erasure of international legal critiques of state violence was itself a constitutive feature of US global power. As for how I chose the five arbitral claims commissions that I focus on in the book, out of hundreds of arbitrations to which the United States was a party during the decades in question, these five Claims Commissions became unexpected sites where rather than instantiating US hegemony, they became venues through which plaintiffs were able to critique the everyday workings the US legal system. That’s really why I focused on and wanted to think much more carefully about the Claims Commissions that the United States convened with Mexico in 1868 and in 1923, concerning Samoa in the 1890s, following US intervention in the Cuban and Filipino Wars of Independence in 1898, and in the Panama Canal Zone throughout the 1910s.
And what about you? How did you choose these three case studies of Mexico, Argentina, and Colombia?
EJC: I had a sense that the eighteenth-century concerns over public debt and federations carried through to the nineteenth century, but I was not sure how. I also knew about the early modern Habsburg debt crises, and it occurred to me that it would have been reasonable for creole Latin American jurists to study them to avoid replicating past mistakes. I started looking at three very different models of nation-building in Mexico, Argentina, and Colombia, and I started seeing patterns. I gradually found that much of the Latin American engagement with international law, and ideas of what today we would call sovereign debt, was mediated not just through Hugo Grotius, but through Grotius’ reading of Spain’s monarchy and its debts. On one level, this made sense: Latin American jurists tried to synchronize their histories with those of international law.
What I did not expect to find was a story that was bigger than the sum of its parts. Thanks to Napoleon III’s intervention in Mexico, in 1864 archduke Ferdinand Maximilian became Emperor Maximilian I of Mexico. There was a way in which Maximilian I’s regime fed into debates about intervention in Colombia and Argentina; the 1902 Venezuela crisis in turn fed into Drago’s own writings on Argentina and international law. In the process, Latin America was created – both as an idea and as a space. Gradually, the shared regional experience with colonial and foreign debts became a story of debt and intervention.
I just followed my hunch in terms of choosing these sources. I thought about the making of the problem of indebtedness, and the making of the solutions. And then I came across these three figures of Manuel de Payno in Mexico, Juan Bautista Alberdi in Argentina, and Ezequiel Rojas in Colombia. Payno and Alberdi both engaged with the possibilities and limits of international law to redress conflicts generated by foreign debts; Rojas, in turn, framed constitutional debates about the nature of public debt in Colombia.
What struck me was just how complex the issue of simply historically narrating was for these jurists. I wonder whether we could talk a little bit about where you see where you see the role of sort of forgetting in your work.
AP: Absolutely. Speaking of Mexico City, one of the documents that I came across in the diplomatic archives there that made me want to better understand the stakes, the outcome, and the subsequent narration of the last mass claim settlement commission that the United States and Mexico formed in 1923 was this note that Mexican Minister of Foreign Affairs Eduardo Hay wrote to U.S. Ambassador to Mexico Josephus Daniels as the arbitration was drawing to a close. In it he says kind of enigmatically, if the Commission were allowed to complete its work, it was not known which state would turn out to be the creditor and which state the debtor. And at face value, this is an extraordinary thing to say. Mexico has just nationalized petroleum. The United States had already brought claims for upward of $514 million in compensation before the tribunal, while Mexico had presented claims for a total of $245 million. How is it possible then that Hay is suggesting, were this Claims Commission allowed to complete its work, the United States might in fact end up indebted to Mexico? Looking at the US National Archives, parts and fragments are there. But it was only in the SRE Archives in Mexico City that I found two things.
First, the meeting minutes of the final two commissioners who were charged with bringing this tribunal to a close. These records reveal that the arbitration ultimately failed to complete its work not because of, or not only because of, the reason identified by US Secretary of State Cordell Hull: contests over whether Mexico owed US investors prompt, adequate, and effective compensation for any expropriated property. Attention to the meeting minutes of those final two appointed commissioners instead makes clear that the cases they had the most trouble deciding actually concerned claims brought by Mexican nationals against the US government, for lynching, police and employer murders, and forced labor. And second, these archives make clear that it was letters from claimants themselves to Mexico’s Secretary of Foreign Relations that made it possible for Eduardo Hay to propose that the United State might leave the Claims Commission indebted to Mexico. It’s the petitioners who explained to government lawyers that all of these international legal claims that Mexican nationals brought against the US did not concern isolated lapses in an otherwise exemplary rule of law. They were instead structural features of a political economy of racialized labor violence in the United States. These critiques of the United States political economy were then effectively erased from the international legal record.
EJC: Yes, I thought that way that you integrated these individual petitions within these broader diplomatic debates was great. I mean, that speaks to an admirable historiographical subtlety and an archival work.
AP: And if I can ask; it’s so fascinating to me how you show us that just as, and I'm quoting you, “just as modern international law forgot Latin America,” (Odious Debt, Corredera, p. 2) this tradition of legal thought that you're recovering and tracing and uncovering–these multiple alternatives–were also largely forgotten. I'd love to hear more about how you think about the politics of forgetting in your work as well.
EJC: This was a really interesting topic to explore because it initially came about from my interest in historiography. I felt a lot of sympathy for administrators who, after a civil war, would have to sit down and say, right, we lack the paperwork that establishes who is owed what. This is where narrative power really takes on a whole new meaning. It was interesting to see how changing ideas of obligation, law, and international law shaped ideas of debt and guilt. What I tried to show in the book was how forgetting without forgiving became an integral part of constitutional nation-building processes and connected this to twentieth-century debates on the Latin American experience with amnesties and forgiving. It would be great to do something comparing the Latin American and the US experience on his front, particularly in relation to pardons.
AP: I agree. And I'm glad you brought up this question of genealogies of democratic political thought in the Americas, because I think one thing that we're both thinking through is how debates over non-intervention were actually crucial to formations of mass politics and in shaping the limits of state accountability to democratic publics during the nineteenth century and beyond. I'd be interested to talk with you about how we see these seemingly narrow international legal disputes concerning the circumstances under which one state can justifiably intervene in affairs of another are actually inseparably entangled with questions of what a democratic politics might mean and look like. Given that many of the charges brought by corporate investors concern democratically enacted legislation relating to labor rights, environmental protections, the right to express dissent. And also, because so many of these arbitral claims directly concerned the tactics through which US government agents violently repressed democratic political projects. So, I think that we do need to better understand how it is that early twentieth century international tribunals became sites through which a broad range of historical actors debated not just legal meanings of diplomatic protection, but also political questions about democracy and self-governance.
EJC: That's right. This was one of the things that excited me the most in reading your book. One of the ideas I talk about is the rise of this strange term, “retroactivity”, in diplomatic history. I think it is a fascinating element of what happened throughout the 19th century where we have three different sources of authority laying claim to have retroactive effect, right? And as a historian, the idea that law can be used to rewrite history, to legally rewrite history, that was crazy to me.
In the 1820s there are three claims to retroactivity that are going to inform what will later become known as gunboat diplomacy. First, we have constitutional reform. You can retroactively deem a vanquished or a former regime despotic or disavow the actions of a former regime with retroactive effect. Secondly, we have debt settlements. Debts apply retroactively and generally, during this period, without any relation to a change in regime, because of state succession. Thirdly, we have diplomacy and treaties; treaties which also have diplomatic effect.
So, a lot of nineteenth-century diplomacy would focus on establishing a hierarchy of obligations with retroactive application. A lot of gunboat diplomacy during this period is going to turn on Latin American jurists saying, actually, we just reformed our constitution. You have to respect the new charter. And US and European diplomats will refuse to accept these changes: the nature of a diffuse private, public, and international contract trumps your reform of your social contract. A debt settlement or a treaty has been signed that trumps your constitutional reform. What I found brilliant about your book is that it almost like it explained where that story goes well into the twentieth century.
In the book I talk about how “the sanctity of contracts was used to legitimate conflict, but the use of violence undermined the sacred purpose of debt: to fulfil the state’s obligations to the community.” (Odious Debt, Corredera, p. 2) The mixed-claims commissions you studied ensured that diplomacy and debt trumped consent: you looked at how these commissions served to isolate arbitration from the politics of consent; these commissions became a sort of black box that allowed the US to override democratic processes. It’s amazing to see how these commissions allow the US to implement a strategy of creative ambiguity in diplomatic negotiations.
AP: Exactly. Reading your book was such a revelation to me because of the ways in which you interrogate who the stories we often tell about international law serve, why these narratives emerged, and how they functioned as propaganda masquerading as empirical description. We need your account of debates over international law in this moment of constitution making in the 1820s, 30s, and 40s in order to understand the stakes of international legal debates over non-intervention a century later. By the 1920s, the State Department assumed it could invoke arbitration as a mechanism through which to take the teeth out of Mexico’s revolutionary 1917 constitution by bankrupting the Treasury if Mexico enacted mass redistributive projects. This assumption fell apart just a decade later. We so often tell the story of early twentieth century US-Latin American relations as a clash between the Calvo and Hull doctrines. But there are moments in the 1930s when Hull charged a Mexican consul with inappropriately intervening in US politics simply by virtue of the fact that he had spoken at an international labor rally. To return to your insight about how we need to rethink the schemas that we so often work with as international legal historians, this diplomatic exchange demonstrates the inseparability of political questions concerning labor exploitation and the ostensibly discrete field of diplomatic protection of subjects abroad.
EJC: I loved this aspect of your book. While writing the book, I was trying to figure out how to situate economics and international law in all this. I was coming at it from a traditional political economy, and I was really sensitive to the fact that a lot of Latin American history had been written through a series of ideas like “informal empire”, dependency theory, but also this way in which Latin America was an object rather than a subject in international finance.
Latin American jurists were obsessed with international law and with finance – I really tried to drive this point home. And one of the things I loved about your book was that you showed how the everyday political economy of empire and diplomacy, but you also show how internal debates within the US sort of affect these international deliberations, and then, of course, these political debates and fiscal debates in Central and Latin American states affect their politics. And that's really, really hard to do And I wonder if you could speak a little bit more. I'd be really interested in sort of knowing how you had such an acute understanding of the political economy at play on the ground.
AP: Thank you. When I began to look at these international arbitral tribunals that emerged in the aftermath of US wars of imperial expansion, I initially thought that I would find primarily disputes over land. And those are certainly there. But land claims weren’t the whole story, and they didn’t even comprise the bulk of the cases that proved most concerning to State Department lawyers. What I found instead were claims about the United States violating the laws of war by engaging in naval bombardments that targeted civilians. About US colonial administrators trying to overthrow democratically enacted governments. Claims about US state agents engaging in rampant fraud, threats, and intimidation to target labor organizers, tenants’ rights organizers, anti-colonial activists. Claims concerning lynching, police violence, and forced labor. The petitioners who brought these cases did something much more than demand discrete compensatory awards. They exposed and challenged a political economy of state-sanctioned violence and labor exploitation across the United States Empire.
EJC: That makes complete sense, and it helps me understand how you reflect this language of the petitioners so well.
Finance and International Law
AP: One of the things that we both write about is how it is that we get to a world today in which corporations can and regularly do bring international legal charges against foreign states for policies deemed expropriatory, while people who are abducted, incarcerated, tortured, even murdered by the agents of powerful states seem to have little international legal recourse. Can you talk more about how you think we've gotten here? How is your attention to debates from nearly two centuries ago actually crucially important for us to think through this contemporary moment we find ourselves in now?
EJC: This goes back to the “father” of international law, Hugo Grotius. Grotius is a bit of a strange figure in that everyone cites him, everyone talks about him, but no one reads what he wrote. One of the things that Grotius did was he crystallized the association between bankruptcy and tyranny. The Spanish Empire was ruled through an economy of salvation: debts to God trumped profane pecuniary debts. Debts were commutative; they served to fulfill the needs of the community. Spanish Kings used the threat of default to bully creditors to then finance their conquests, with which they hoped to deliver salvation to a greater number of souls.
Grotius changed the terms of the debate with one of the most powerful analogies in international relations: he bound the King of Spain to the moral code of a merchant by introducing the idea that a King could go bankrupt. Bankruptcy, and the shame associated with it, became symptomatic with tyranny as he drew on the events of the “Spanish Fury”, and a number of other instances when as a result of Spain's fiscal difficulties, a number of soldiers went unpaid, and as a result they rampaged and pillaged cities. Insolvency, in Grotius’ view, led to tyranny and inhumanity: this was, according to this legend, the beginning of the end of the Spanish Empire.
Now, it’s worth noting that this use of “bankruptcy” wouldn’t have made sense at the time; merchants could sue other merchants over insolvency. Grotius was using the term as an analogy. And as I note, by the 1730s, the association between insolvency and tyranny had become so well-known that Montesquieu could refer to Philip’s bankruptcy as the one that ‘everyone knew about’. This is, in my reading, how the idea of sovereign debt was created.
At the same time, Grotius wanted to make clear that there were certain contracts – those incurred without the consent of the people or without their wellbeing in mind – that were not binding on peoples once they vanquished the tyrant that subjected them to these terms. So, Grotius also came up with the criteria for odious debt.
When Latin American jurists engaged with Grotius and his reading of the Spanish Empire, they found that this was not a history they recognized at all. The idea that the Dutch Revolt ended the Spanish Empire was untenable: for creole Latin American philosophers, the centuries after the revolt saw their consolidation of power in the Americas – this was, in their view, an age of Enlightenment. In engaging with the law of nations they had to engage with the nature of propaganda and historiography and, above all, how they understood debt (private and state debts) in an entirely different way than it was presented in the history of international law.
And to skip ahead there is a way you can read the mid-nineteenth-century constructional reforms, such as Alberdi’s constitutional blueprint, as Latin American jurists biting the bullet and saying not only do we accept what Grotius said; it’s not just that states can be like merchants, judged according to the rules of merchants. Rather, let’s say that states are merchants. As it happens, merchants have more rights than some of our nations. When they fail to pay their debts, they're protected by private law. Why are states not protected by private law? Why is it that creditors have access to bankruptcy mechanisms as a sort of safe haven, whereas a state that is deemed insolvent is attacked, invaded, or conquered?
This then influenced Luis María Drago who literally used the metaphor of a bankrupt company and made this exact parallel to draw attention to the need for the reform of the international law on global insolvency. Why was it that a bankrupt company has more rights than entire nations?
And this brings me to your insight in your book which I think follows beautifully from this: you mention how in 1970, Luis Padilla Nervo complained that – at least this was my reading of your account – that states like Mexico were treated as undeserving of the rights of corporations. A state is literally less than a company. And you say, and I quote, “an enduring legacy of the mid 20th century collapse of state-to-state arbitral dispute resolution has been the bifurcation of physical violence and wealth distribution into two distinct realms of international law.” (Arbitrating Empire, Powers, p. 245) And when I read that, I thought this is exactly this tradition that I've been following.
And here is where you have to understand the moral economy of bankruptcy and private finance to understand the rise of ideas of sovereign debt. This language is an important part of the Latin American tradition of this period that is trying to outlaw war over finance or, if you want, outlaw war over financial failure
That is where I think, as I note in the book – and you've reiterated this in a new brilliant article published in Diplomatic History – that we don’t have a good the history of the idea of sovereign debt, one that captures how bankruptcy went global, bankruptcy internationalized is in the construction of ideas of sovereign debt.
AP: I love your analysis of Grotius because we so often talk about a figure like Grotius as the “father of international law.” There's this premise or assumption that he is deducing from the ether axiomatic principles to which all emerging nation states will come to be beholden. And you're showing us absolutely not. Mare Liberum is written as a brief for the Dutch East India Company. Some of his other canonical works were essentially, to use an anachronistic but I think apt term, diss tracks against the Spanish Empire. Yet these texts, as you show us, came to be treated somewhere along the way as descriptive rather than propagandistic. I'm fascinated by the ways in which your work prompts us to question what we today as historians treat as natural or given–to rethink alternative visions of international legal responsibility, of what we owe each other. Your book demonstrates so powerfully how attempts to make these alternatives not only invisible, but in fact unthinkable, have shaped the history of modern international law.
We’re both asking in a way why the institutionalization of sovereign equality and non-intervention as recognized tenets of the international legal order did not translate into the dismantling of colonial power relations that advocates of these principles envisioned. And of course, there are many, many different ways of answering this question. But one that you've raised that I think we do need to think about more is the post-World War II bifurcation of what had been the law of diplomatic protection into two ostensibly discrete realms of international law. One purporting to attend to questions of life, what comes to be known as human rights. And another claiming to deal only with questions of property, what we call international investment law. And of course, this cleavage is a fiction, right? International economic law today mandates extraordinarily repressive state violence in the interest of corporate profits. And human rights clearly cannot be separated from questions of economic security. But it is a bifurcation that does important conceptual, institutional, and distributive work. I'm curious to know more about other historical moments where, to use your insight, the kind of telescopic thinking that we often, myself included, use in our analysis of international law actually prevents us from seeing historical transformations in the conditions of possibility that then laid the groundwork for particular international legal debates.
EJC: I have this line: “the study of the origins of doctrines encourages the pursuit of historical solutions to a problem, rather than the study of the origins of the problem that once led to its proposed solution.”(Odious Debt, Corredera, p. 14) That is indicative of how the way we study a lot of ideas in international relations is actually quite prosaic and foregrounds efforts to save certain doctrines from the odd attack. But what happens if we look at the origins of the problems instead? And what happens when both the problem and the solution both emerged in a region that we don’t usually consider having generated new ideas in international law in the early nineteenth century?
In a section on why lawyers should learn about Latin American history, I show how Mohammed Bedjaoui, probably the most important active international lawyer to have written on odious debt today, entirely misread Latin America’s history. His analysis of debt and state succession was, it turned out, based on a focusing on the terms of a single treaty, rather than on the history of diplomacy that showed that the terms of that given treaty generated countless problems for Latin American nations.
I'd be curious to know more about how you approach this problem of histories that don’t fit in international law; I feel like we've told two stories don't fit within a lot of chronicles of international law, and you show how there's a whole different vernacular in which you can talk about these stories. I think the way you show how different the discussions are on property rights, human rights, and economic rights really opens up the question really of how far is international law relying on a certain view of potted history? How far, and going back to Grotius, is the canonical history of international not history but theology. After all, the moment that the history of a field is not open to change it’s no longer history – it’s something else. And the International Court of Justice (ICJ) and its trials echo religious themes and rituals. At the Grotius Census Project at the Max Planck Institute for Comparative Public Law and International Law we spent a lot of time talking about this – what happens when you demystify international law? How do we include histories of the economics of empire within our traditional accounts of international law?
In the book I talk about the political economy of international law. I feel like I articulated the need for this type of language, but you actually provided the language to do this, which is why I really admired your book. There are so many sub-disciplinary languages that we're both dealing with and I thought you did such a brilliant job of sort of just cutting across all of these and being incredibly clear pointing to the political motives, the economic incentives and the legal structures that were at play all the time. I think we need more histories like yours.
AP: Well, I would say we need more histories like yours to allow us to rethink the very questions, terms, concepts, and conceits that today animate our international legal debates. You brought up the ICJ. As we see the US withdrawing from the jurisdiction of the ICJ, disregarding ICJ decisions with impunity, I think there's a temptation to conclude that powerful states can simply ignore international law as they see fit. And to some extent that's of course true. But I do think it's important to recognize how that narrative itself serves the interests of existing power relations by naturalizing the conclusion that there is nothing that can be done. That international law cannot be made to work toward the ends of liberatory struggles or emancipatory politics. And that is actually itself a very old story–and one that obscures as much as it reveals.
Neoliberalism and the Future of the Historiography of International Law
EJC: I think there would be something radical in rewriting the history of international law through the writings of petitioners, those times when people pushed back against the idea that you just have to accept the might is right. And I love that aspect of the way that you looked at how this combination of petitioners but also diplomats were just able to say, okay, well, the dominant power is changing in terms of the debate. How can we exploit this to our advantage?
AP: I'm thinking about the ways that you bring in these questions of political economy and diplomatic history to uncover new genealogies of international law around odious debt. One thing this kind of work shows us that is so crucially important to keep in mind is that even historical dynamics that appear at face value to be stories of continuity, such as the continuity of inequities between and within states, need to be explained. Because the reproduction of particular relations can proceed through a dramatic recasting of institutional forms. And the production or reproduction of inequitable power structures often necessitates the erasure and forgetting of critiques and alternative demands, to return to where we began. And I appreciate so much the work you do in tracing these alternative political and legal genealogies.
EJC: I also think this type of research challenges traditional binaries and structuring ideas in international law; one of the most obvious is the private-public dichotomy. For instance, in the book I look at how Payno has to deal with the fact that local lenders who want to be paid by the Mexican government realize they’re more likely to have their debts repaid if they can convince a consult to list their debts among their claims, rather than just seeking restitution from the government through local means. As Payno notes, this really confuses the private, the public, the national, and the international. This is why we ultimately need political stories of debt and bankruptcy – which is what I am trying to do now.
AP: You're tracking two really important historical developments in the broader history of international law and political economy. The first being how bankruptcy under various configurations of international law has been used not only to ensure the financial viability of various corporate forms, but also to insulate specific institutions from accountability for acts of violence. The second relating to the residues left by a system of international law organized around an explicitly racist, civilizational discourse. You’re showing us how confessional and colonial concepts continue to inform data models that might seem at first glance to be wholly separate from these antecedents–economic indicators, credit worthiness, public versus private law. And you trace how these forgotten histories of debt and obligation left resonances that are all too often elided by the stories we tell about international law.
EJC: I mean, I just couldn't put it better, to be honest.
Edward Jones Corredera is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International and a Lecturer at the UNED. His book Odious Debt: Bankruptcy, International Law, and the Making of Latin America was published by Oxford University Press in November of 2024.
Allison Powers is Assistant Professor of History at the University of Wisconsin-Madison. Her book Arbitrating Empire: United States Expansion and the Transformation of International Law was published by Oxford University Press in December of 2024.