2. A new canon of international law in Spain/America in context: The decline of the Spanish Empire, the rise of US Informal Empire and the professionalization of international law

The Spanish-American War of 1898 marked the final decline of the Spanish empire and its colonial and political hegemony in Latin America, and at the same time the rise of the US as an informal empire in the region. This momentum is often regarded as a turning point in the emergence of the US as a new empire in competition with the European powers, including Spain.Footnote ⁸ In fact, the outcomes of the Spanish-American War led to the independence of Puerto Rico, the Philippines and Cuba from Spain and their occupation and incorporation under US formal and informal empire and sphere of influence and the institutionalization of the Platt Amendment, which gave the US the right to intervene on a regular basis in Cuba until 1934.Footnote ⁹ These transformations were complemented by a broader process of displacement of European powers from the Americas and the formal recognition of US leadership on the continent by these very same European powers, especially Great Britain. Indeed, the British-Venezuelan boundary dispute over British Guiana in 1895–1896 created a window of opportunity for the US to displace Great Britain from the Americas. Great Britain accepted US conditions to submit the dispute over an arbitral commission and US Secretary of State Richard Olney invoked the Monroe Doctrine to assert US hegemony and control over the Western Hemisphere.Footnote ¹⁰ Olney famously affirmed: ‘Today the United states is practically sovereign on this continent.’Footnote ¹¹ The consolidation of US formal and informal hegemony over Puerto Rico, Cuba and the Philippines reinforced US leadership on the continent and the sense of loss and decline in Spanish political and cultural leadership over Latin America at the turn of the century.

The revival and recovery of the work of Francisco de Vitoria a few decades later in the 1920s was certainly informed by the different geopolitical anxieties that began to arise after the Spanish-American War, which prompted a significant redefinition of US and Spanish policies towards Latin America. Such policies were to be consolidated in the early decades of the twentieth century. Indeed, the global momentum of 1898 generated incentives for the institutionalization of the US-led policy of Pan-Americanism and the emergence in Spain of the cultural foreign policy of Spanish Americanism. These two opposing geopolitical visions were only translated into concrete policies towards Latin America in the first two decades of the twentieth century when the institutionalization of the discipline of international law took shape in Spain, the US and the Americas. In other words, Pan-Americanism and Spanish-Americanism played a central role, as will be shown in more detail, in the inception and institutionalization of international law in these two countries and also in Latin America at large.

Pan Americanism and Spanish Americanism underwent a renewal at the turn of the century in Spain, the US and Latin America, but while the former was the product of US ascendancy in Latin America, the latter adopted a defensive character in an attempt on the part of Spain to preserve and modernize its cultural influence in Latin America after losing the last remains of its colonies and political hegemony in Puerto Rico, Cuba and the Philippines. On the one hand, Pan-Americanism emerged in the 1880s under the leadership of Secretary of State James Blaine as a US-led policy of economic, political, legal and cultural co-operation towards Latin America and it has been rightly regarded as ‘the friendly face of US dominance in the hemisphere’.Footnote ¹² In the context of economic and political competition among the European powers over Asia and Africa in the 1880s and 1890s, Blaine regarded this situation as a threat to US investment and leadership in Latin America.Footnote ¹³ On the other hand, the dispossession of the Spanish colonies in the Caribbean and the subsequent dissolution of the Spanish monarchy contributed to the formation and adoption of a series of cultural policies in Spain towards Latin America that were associated to the cultural policy of Spanish Americanism. This culturally oriented foreign policy gained popularity and resonance in the 1900s and 1910s. One of its most notable architects was the Spanish historian and jurist Rafael Altamira and the Spanish Americanists at the University of Oviedo who strove to further disseminate Spanish culture in Latin America in the early 1920s.Footnote ¹⁴ The Spanish Americanist policy of cultural co-operation was based on two premises. First, it was imperative to recover the influence over former colonies that Spain had lost in Spanish America following the First Spanish Republic and help Spain to overcome the crisis of the Spanish-American War of 1898. Second, it was also essential to project Spanish cultural influences and its traditions throughout Latin America in order to moderate the effects of US expansionism in the region.Footnote ¹⁵

The institutionalization of international law in the US and the Americas was shaped by the renovation of Pan Americanism and the rise of US hegemony in the Americas. A geopolitical anxiety of forging a Pan-American US-led approach to international law motivated the creation of continental ideals and new disciplinary institutions of international law in the Americas. Secretary of State Elihu Root and his legal advisor Scott were central protagonists in the inception of a US-led approach to international law in the Americas. They were founding members of the American Society of International Law (ASIL), created in 1906, and they occupied executive positions within the Carnegie Endowment for International Peace (CEIP) since its creation in 1910. Root, and especially Scott, believed that US legal and political values and traditions, such as the US Declaration of Independence, the US Supreme Court of Justice and the Monroe Doctrine, and even the US institutional experience of the ASIL, were ideal models for forging continental Pan-American legal institutions, such as the American Institute of International Law (AIIL).Footnote ¹⁶ When in 1906, Root visited a number of South American countries in the context of the Third Pan American Conference held in Rio de Janeiro, the Pan-American movement experienced a renewal. Root’s engagement with South American countries and his successful effort to gain seats for the Latin America delegations in the forthcoming Second Hague Conference generated a wave of Pan American enthusiasm in South America.Footnote ¹⁷ An important Chilean jurist, Alejandro Álvarez, was particularly receptive of this renovation to the extent that he became a devoted advocate of Pan Americanism and promoted a continental approach to what he termed American international law.Footnote ¹⁸ Álvarez redefined the US unilateral Monroe Doctrine as a founding hemispheric and multilateral principle of American international law.Footnote ¹⁹ These ideas generated enthusiasm in Scott and under the intellectual inspiration of Álvarez regarding the existence of a specific continental approach to American international law, they joined together and promoted the creation of the AIIL. The AIIL was inspired in a US-led Pan-American approach to international law, as advocated by Scott and Root and modelled on the previous experience of the ASIL, and it sought to co-ordinate the work of all the societies of international law of the Americas, promoting their creation in each of the countries of the continent. Funded by the CEIP and closely attached to the Pan-American Union and the Pan-American movement, the AIIL, under the leadership of Scott and based on some of the ideas of Álvarez, played a fundamental role in the institutionalization of a Pan American US-led approach to international law in the Americas between 1912 and the 1930s.Footnote ²⁰ Scott’s interest in the work of Vitoria as a founder of international law emerged out in the 1920s and 1930s from the US-led approach to American international law and Pan-Americanism he promoted though the AIIL.

Yet Scott manifested an interest in the history of international law as early as 1906, right at the time when the ASIL was founded, but it was only in the 1930s, when he was a well-established jurist and president of the ASIL and the AIIL that he regarded Vitoria as the founder of international law. Back in 1906, at a time when the ASIL was to be founded and Root redefined the Pan-American movement along the lines of continental solidarity and co-operation, Scott envisioned the idea of publishing a book series to establish a canon for the discipline of international law and contribute to popularizing it through a book series devoted to the Classics of International Law. Eventually the series was published under Scott’s editorial co-ordination in 1909 and was sponsored by the CEIP, as was to be the case of the AIIL. Scott believed that the study of the past had to be at the service of the progressive evolution and growth of international law. Even when focusing on the study of the past and the classics of the discipline, his legal mind-set was projected towards the future, and this became clear in his initial plans for the series. In his letter proposal, Scott stated:

By contrast, the institutionalization and consolidation of the discipline of international law in Spain was marked by a rather defensive and reactive attitude towards Spanish America, which led in turn to the formation of the Spanish Americanist approach. Rafael Altamira and the jurists grouped around the University of Oviedo were leading promoters of this defensive cultural policy and also advocated a historical approach to legal studies. Altamira began to advocate Spanish rapprochement to Latin America as early as in the aftermath of the Spanish-American War, emphasizing Spanish stagnation and reactionary political attitude and the need to renovate Spanish progress and cultural energy by reorienting its policies towards the old colonies of Spanish America.Footnote ²² Barcia graduated as a lawyer at the University of Oviedo in 1909 and thus was influenced by Altamira’s Spanish Americanist and historical approach to law. These approaches influenced Barcia and the first generation of professional international lawyers in Spain more broadly.Footnote ²³ By 1911–1913, Barcia went on to work with the Belgian historian of international law Ernest Nys and was influenced by the high esteem and scholarly attention that he devoted to the Salamanca School and Vitoria in his historical investigations on the origins of the discipline. It was in 1917 that Altamira launched officially the culturally oriented foreign policy devoted to promoting Spanish Americanism. In the 1910s and early 1920s, Barcia began to publish extensively on Spanish Americanist themes, such as the nature of the Monroe Doctrine and US imperialism and its oil industry, advocating a progressive and even anti-imperialist approach to such political, legal and economic questions.Footnote ²⁴ By the time he took up the chair of International Law at the University of Valladolid in 1920, he founded the ‘Section of Americanist studies’.

3. Vitoria and the futures past of international law: Common origins for contending US and Spanish geopolitical and legal designs

Barcia and Scott were not the first international lawyers to propose Vitoria as a founding father of the discipline and promote at the same time a revival of the natural law tradition. Since the late nineteenth century a growing interest in the natural law tradition to moderate the limitations of the positivist method prompted a number of scholars and practitioners in Europe to advocate a new moral and legal understanding of the international community as a foundational principle to justify the binding force of international law and its subsequent obligations. These doctrinal transformations were also informed by the imperial European expansion over Africa and Asia. In this context, Vitoria became eventually a central reference for revisiting the historical evolution of the discipline. In fact, Ernest Nys (1851–1920) played a central role in the advancement of the first professional historical studies of the School of Salamanca and the work of Vitoria, focusing on their contributions to the consolidation of the discipline.Footnote ²⁵ By 1911–1913, Barcia spent two years in Belgium, working with Nys and thus was influenced by his investigations on the origins of international law, the Salamanca School and the contribution of Vitoria. At the same time, Scott was perfectly aware of the importance of the work by Nys on Vitoria since the 1910s to the extent that he invited him to write the introduction of Vitoria’s De Indis, published in 1917 in the series sponsored by the CEIP he himself co-ordinated as general editor on the Classics of International Law.Footnote ²⁶ Scott and Barcia not only were familiar with these important debates in Europe, but they also became increasingly more engaged from the late 1920s with the scholarship focusing on the contributions of the School of Salamanca, as they began to shape themselves the renaissance of Vitoria.Footnote ²⁷ For instance, Scott was also cognizant by 1928 of the work of the German scholar Joseph Muller, who regarded Vitoria as ‘the father of the science of international law’.Footnote ²⁸

When Scott discovered Vitoria as a foundational legal figure in the discipline in the late 1920s, he was aware of the work of Nys and Muller, but was also deeply inspired by Barcia’s understanding of Vitoria’s contribution to the origins of the modern law of nations.Footnote ²⁹ In his encounter with the work of Vitoria through the writings of Barcia, Scott saw an opportunity to connect and enrich his own Pan-American legal vision and his approach to American international law with a renovated historical interest on the Spanish origins of international law.Footnote ³⁰ At the same time, Barcia was captivated by the fact that a US jurist was convinced that the origins of international law were above all Spanish and Catholic.Footnote ³¹ There was also a contextual coincidence, for they both contributed to what might be termed as the early twentieth century revival of Vitoria in the late 1920s and 1930s. For shortly after Barcia was invited to deliver a lecture on Vitoria at the Hague Academy of International Law in 1927, Scott delivered a series of lectures at the University of Salamanca in the context of the inauguration of the Francisco de Vitoria Chair in 1928 and was also honoured as ‘doctor honoris causa’.Footnote ³² Barcia’s lecture was published later in 1928 as a book under the title of Francisco de Vitoria, Founder of Modern International Law as the third volume of ‘Section of Americanist studies’.Footnote ³³ From May 1928 to August 1929, Barcia was invited as the first European Visiting Professor of the CEIP in Washington, in which context he prepared a study on the Monroe Doctrine. This study led to a second lecture at The Hague Academy of International Law, and eventually to a book on the Monroe Doctrine and International Cooperation (1930).Footnote ³⁴

Scott’s lectures at Salamanca in 1928 were published in Spanish by the University of Valladolid press and as part of the ‘Section of Americanist studies’, including a prologue by Barcia.Footnote ³⁵ In the prologue, like Scott, Barcia associated the incorporation of the New World into the sovereignty of Spain with the emergence of a new legal conception of international justice, as formulated by Vitoria. Moreover, they both interpreted American international law and the projects for continental codification advanced by the AIIL in the 1920s and 1930s through the prism of Vitoria, associating the ‘right to migrate’ and travel defended by Vitoria, what he termed jus perigrinandi, as an anticipation of some important principles of American international law advanced by the AIIL.Footnote ³⁶ Barcia affirmed:

By 1932, in the context of the 400^th anniversary of De Indis, Scott contributed to the creation of the Vitoria-Suarez International Association and Barcia joined this initiative as another founding member. At this point, the sense of a mutual understanding between Scott and Barcia in their common quest for the renaissance of Vitoria as the founder of international law reached its highest point.Footnote ³⁸ More importantly, although Latin American jurists and politicians had been long familiar with the work of Vitoria and the School of Salamanca to the extent that they revived and made used of it in the context of the revolutions of independence to question the legitimacy of the power of Spanish monarchy over the indigenous populations and the settlements established in the Americas,Footnote ³⁹ Scott’s engagement with Vitoria prompted a number of Latin American jurists involved in the US-led Pan-American legal initiatives of the AIIL, including Álvarez (Chile), José Matos (Guatemala), and Simón Planas-Suarez (Venezuela), to join him also as founding members, in the project for the creation of the Vitoria-Suarez International Association.Footnote ⁴⁰ In other words, Scott’s work on Vitoria and his Pan American legal initiatives through the AIIL contributed to revitalizing Latin American interest in Vitoria, Francisco Suárez, and the School of Salamanca and especially in the broader quest for the recovery of Vitoria as the founder of the law of nations. A few years later, Scott was to publish his influential book, The Spanish Origin of International Law: Francisco de Vitoria and his Law of Nations (1934), as part of the Classics of International Law Series. The important repercussions and positive reviews of Scott’s book contributed to consolidating the recovery of Vitoria and eventually to canonize him as the founder of the law of nations, and these were to have a special impact among the Latin American jurists involved in the AIIL. Interestingly, the Cuban jurist Antonio Sánchez de Bustamante, who was a close friend of Scott and a leading member of the executive committee of the AIIL, wrote a highly positive review of the book, and he went as far as to affirm, in Scott’s similar vein, that many of the resolutions of the Pan American conferences could be defended with similar arguments to those originally advanced by Vitoria.Footnote ⁴¹ Scott’s book and initiatives regarding Vitoria prompted and stimulated thus a number of Latin American jurists within the circles of Pan Americanism and the AIIL, including Bustamante, Álvarez, Matos, and Planas-Suarez to regard Vitoria not only as a founder of international law, but also as a foundational figure of the contemporary Latin American legal tradition in its current Pan American version. In short, they engaged with and followed Scott in promoting the recovery of Vitoria as both a founder of the law of nations and a foundational precedent of the ideal of Pan America. Scott’s book became associated with the renaissance of Vitoria, more than Barcia’s contribution and previous Latin American usages of the School of Salamanca, despite the fact that Barcia anticipated Scott in situating Vitoria as the founder of international law. According to Carl Schmitt, Scott, more than any other jurist worldwide, ‘dedicated himself to becoming the official exponent of Vitoria’s fame’.Footnote ⁴²

All in all, the recovery of Vitoria as the founder of international law by Barcia and Scott responded to different disciplinary institutionalizations and contextual orientations in the field of international law in Spain and the US. The friendship and dialogue between Barcia and Scott, whom the former considered his master, made possible that these two foremost jurists with different legal sensibilities and educated in opposing cultural and disciplinary legal traditions could join together in the common quest of promoting the renaissance and fame of Vitoria in the 1920s and 1930s. The geopolitical and disciplinary motivations were different and so were their projections towards the work and legacy of Vitoria. While Scott’s engagement with Vitoria, as will be shown in the following section, adopted a optimistic approach oriented to excavate the past as a way to project and envision the future of international law, Barcia’s fixation with Vitoria was certainly nostalgic and even Romantic, as he felt at ease somehow submerged in the past to rescue a lost legal and intellectual treasure from Spain’s imperial golden age.

From when they began their quest for the renaissance of Vitoria in the late 1920s, both Scott and Barcia were convinced that the Dominican theologian was the true ‘creator’, rather than the ‘precursor’, of international law.Footnote ⁴³ This distinction sought to dethrone Hugo Grotius as the founder of international law and invert the terms, for those who regarded Grotius as the founder father tended to consider those who belong to the School of Salamanca, including Vitoria, as mere precursors. Both Scott and Barcia agreed in that the origins of international law were Spanish and Catholic, and they had to be traced back to the work of Vitoria, whose legacy encompassed Spain and the Americas at large. According to Scott and Barcia, Vitoria was the founder of international law and a jurist especially concerned with the destiny of Spain/America. Both Spanish American international law and continental American international law were geopolitical legal visions inspired in the legacy of Vitoria and they could legitimately claim to be inheritors of the spirit of Vitoria. The agreement on the Spanish origins of international law and the role of Vitoria as its founder father were common shared grounds about the past.

These legal and geopolitical visions and designs responded in Barcia and Scott to different and even opposing anxieties, as they emerged from Spanish and US disciplinary approaches to Vitoria. To some extent, Barcia and Scott sought to institutionalize the discipline of international law with the idea in mind of setting up its origins and historical foundations in a similar point in time, namely sixteenth century Spain. The excavation of the past and the work of Vitoria could pave the way and provide a window to envision different futures for the discipline. While Scott’s approach to Vitoria was certainly projected towards envisioning US-centric liberal internationalist designs for the international law of the future, where the US was destined to remain a hemispheric hegemon in the Americas and potentially become a global world power, Barcia’s insight into the past was rather nostalgic and celebratory of the old achievements and the intellectual and legal fruits of the Spanish empire, notably the international legal thought of Vitoria, and its lasting impact in Latin American legal and political culture in the nineteenth and twentieth centuries.

In his 1927 lecture on Vitoria delivered at The Hague Academy, Barcia proposed a Romantic and rather nostalgic interpretation of Vitoria, for he connected the contribution of the Spanish theologian not only to origins of the law of nations, but also to the roots of Spanish American legal and political culture, that is, a time when the Americas became closely inter-connected to Spain through imperial occupation and colonial rule. Vitoria gave birth to and discovered a new conception of international law as a result of a broader process of the discovery and conquest of America. These could all be regarded as achievements of the Spanish empire in its golden age. In a classic study on Romanticism, Philippe Lacoue-Labarthe and Jean-Luc Nancy have affirmed that the Romantic tradition was driven by a quest to overcome the binary divisions of history by reintroducing the classic world into the modern one, that is, the restoration of a lost ‘golden age’ as part of a search for total unity.Footnote ⁴⁴ This sense of a lost ‘golden age’ and the search for a unified vision of the Americas makes Barcia a late exponent of a Romantic tradition. According to Barcia, once Great Britain consolidated its position on the east coast of North America and the Americas were divided between the Anglo-Saxon and the Spanish, the intellectual essence of a common law of nations for the Americas lost its original meaning. The Romantic impulse of returning to the golden age of Vitoria, a time when the Americas were a single unified entity with a common law of nations, allowed Barcia to envision alternative forms of reconciliation in the past for understanding the dilemmas of the present.

Barcia regarded Vitoria and the Spanish professors of the sixteenth century as devoted to ‘the cult of truth’, which gave them an ‘eternal’ character in ‘human life’ and ‘immortal profile’.Footnote ⁴⁵ He contrasted these attributes of Vitoria as a moralist to the rather mundane character of Hugo Grotius. Barcia believed that the principles Vitoria forged proved to have an eternal validation. By contrast, the work of Grotius dealt with international questions in connection to concrete ‘realities’ and ‘international rivalries’, for he was above all a ‘diplomat’.Footnote ⁴⁶ Vitoria’s work was primarily concerned with a new and unique phenomenon that was not present in the work of Grotius: the Spanish occupation of the New World and the rights of the ‘American Indians’. As such, Vitoria questioned the legitimacy of the universal authority of the Emperor and thus the practice of imperialism as such. As a moralist, rather than a jurist, Vitoria was immortal and epitomized ‘anti-imperialist redemption’, whereas Sepulveda justified on juridical grounds the rights of the Spanish empire over the ‘American Indians’ and their territories. Vitoria defended, according to Barcia, a robust notion of sovereignty and condemned interventions.Footnote ⁴⁷ This anti-imperialist moral attitude rendered Vitoria and his ideas a perennial treasure of the past with long lasting resonances in the present. According to Barcia’s view of Vitoria, the lessons of the Spanish theologian could be traced back to a specific context of the past, but their fruits were destined to be perennial.

Yet Barcia’s Romantic interpretation of Vitoria as a moralist with an anti-imperialist and anti-interventionist attitude was neither abstract nor idealist, but essentially nostalgic of the past glory of imperial Spain, and critical of the contemporary US regular interventions in Latin America. By the late 1920s and early 1930s, Barcia regarded ‘the plague of interventions’, in particular US interventions, as ‘the evil of the Americas’.Footnote ⁴⁸ In the view of Barcia, as Vitoria was the intellectual progenitor of a Spanish American legal and political tradition, his successors could only come from the Southern and Spanish side of the Western Hemisphere. These were thinkers and statesman such as Simón Bolívar and José Martí. Indeed, Barcia portrayed Bolívar as an authentic successor of Vitoria, since he was a defender of ‘confederative Hispanic-American unity’.Footnote ⁴⁹ Barcia thus portrayed Vitoria as the founder of a broader Spanish American anti-imperialist and anti-interventionist legal tradition, which had its inheritors in both Spain and Latin America, that is, Spanish American culture. For this reason, Vitoria’s law of nations could never be a precedent of ‘American international law’, the continental ideal advocated by Álvarez, Scott and the AIIL and rooted in a US-led understanding of the Western Hemisphere, and it was instead a precedent of what Barcia defined as ‘Ibero-American international law’.Footnote ⁵⁰ As has been shown, the central tenet of American international law, as defined by Álvarez, was the Monroe Doctrine as a continental and multilateral principle for the Americas. By contrast, the foundations of Ibero-American international law could be found in Vitoria’s work and legacy. Barcia believed that the glorious past of Vitoria and Spain in the sixteenth century was still meaningful for the Americas in the 1920s, for Vitoria’s legacy was providential for Spanish Americanist legal culture. He thus concluded categorically his study on Vitoria as follows:

Unlike Barcia, Scott adopted a liberal internationalist optimist and futurist approach to the ideas and lessons of the Dominican theologian. Scott regarded Vitoria above all as a liberal internationalist prophet of the international law of the future, that is, of international legal organizations and institutions of global governance, such as the League of Nations and the Court of International Justice, and even the US Declaration of Independence, Woodrow Wilson’s Fourteenth Points and also Franklin Delano Roosevelt’s Good Neighbour Policy. He went as far as to associate Vitoria’s notion of jus gentium with the US Declaration of Independence, for he affirmed: ‘perhaps the American reader would not be averse to a phrase from the Declaration of Independence, which is a classic statement of the Victorian law for human beings – “life, liberty and the pursuit of happiness”’.Footnote ⁵² Moreover, Scott regarded Vitoria as an intellectual prophet of Wilson’s Fourteenth Point, since he stated: ‘we come now to a second series of proofs, culminating (with apologies to the late President Wilson) in what might be called Victoria’s fourteenth point’.Footnote ⁵³ Scott presented Vitoria as an intellectual anticipation and epitome of a US-centric vision of liberal internationalism, as formulated in classic US declarations and contemporary policies, before both liberalism and internationalism existed, at least as they were conceived in the eighteenth and twentieth centuries within US legal and foreign policy circles. As such, Vitoria was ahead of his time and even ahead of all times. Scott stated: ‘I have wondered why it is that Francisco de Vitoria was so liberal that even in our day his views seem ahead of the times.’Footnote ⁵⁴ According to Scott, the legacy of Vitoria was destined to be providential because Vitoria’s liberal legal vision was moving towards evolution and progress in a world that was also ‘leaning towards liberalism’ and ‘it is only the writings of liberals that survive’.Footnote ⁵⁵ Before US-led liberal internationalism and American international law were formulated and promoted by jurists such as Scott and Álvarez, so Scott argued, Vitoria was able to envision and foresee these ideals: ‘Vitoria was a liberal. He could not help being a liberal. He was an internationalist by inheritance. And because he was both, his international law was a liberal law of nations.’Footnote ⁵⁶ Unlike Barcia, Scott regarded Vitoria above all as a jurist, rather than a moralist, but one possessing the skills of prophecy and futurism. All in all, Scott associated Vitoria to both US classic and contemporary political and legal traditions, as well as liberalism and liberal internationalist ideals and institutions, especially those closely tied to US Wilsonian visions and designs for international organization, such as the League of Nations and the Permanent Court of International Justice.

In the view of Scott, Vitoria was a prophet of the law of nations of the future, because he proposed a wider notion of the law of nations that encompassed a broad ideal of humanity, rather than Christianity, and providential progress. Scott considered himself and all his contemporaries committed to the effort of institutionalizing the discipline and practice of international law as the natural successors of Vitoria’s legacy, but the beneficiaries of such an anticipatory and futurist legacy were all human beings, including those who are still waiting to be born. Therefore, Vitoria was able to anticipate and foresee the creation of institutions such as the League of Nations and the Permanent Court of International Justice, ‘established but a decade ago – so Scott affirmed – upon the initiative of the successors of Vitoria’s aborigines, is the culmination of the phase of his system of international law’.Footnote ⁵⁷ Scott concluded his study on the Spanish origins of international law reaffirming that Vitoria was at the very same time the founder of international law and a prophet of its future. He thus stated that Vitoria ‘was not merely the founder of the modern law of nations, but the prophet of the newer law of nations’.Footnote ⁵⁸

As a President of the AIIL and a jurist deeply engaged with the Pan-American movement, Scott regarded the wide-ranging liberal internationalist and humanitarian vision of Vitoria also as a culmination of the US-led approach to American international law, as promoted by the AIIL and the Pan-American Union, and the ideals of inter-American diplomacy, as formulated by Franklin D. Roosevelt.Footnote ⁵⁹ In the late 1930s, in the context of a series of conferences he delivered at the University of San Marcos in Peru, following the 8^th Pan American Conference (1938), he traced a connection between Vitoria and the Good Neighbour Policy, originally formulated in 1933 by Roosevelt as a multilateral engagement with Latin America.Footnote ⁶⁰ The Good Neighbour Policy is often associated to the formal US commitment to the principle of non-intervention and multilateralism in inter-American affairs. Scott regarded the Good Neighbour Policy as a culmination of the principles of peace, friendship and international co-operation originally advanced by Vitoria. Vitoria’s moral and legal lessons anticipated, so Scott argued, the Good Neighbour Policy and a number of other principles that emerged from the declarations of the AIIL, such as the Declaration of the Rights and Duties of Nations, elaborated by Scott in 1915 and the Pan American Conferences.Footnote ⁶¹ He also opposed Vitoria to Hugo Grotius, who did not possess the gift of being a prophet, but rather of someone who drew heavily on Vitoria and the Spanish scholastics. The work of Grotius, according to Scott, ‘had as its basis the writings of the Spanish scholastics’, since ‘the most important factors above all that have been proposed by Grotius within the field of international law consist in his own adoption and proclamation of the international doctrines of the Spanish scholastics’.Footnote ⁶² Finally, in his lectures, Scott paid special attention to Vitoria’s emphasis on the binding nature of the law of nations and the consequences underlying the violation of its principles and legal commitments of reciprocity. When presented by Scott to a Latin American audience engaged in the Pan American movement and the tradition of American international law, Vitoria’s warnings about the violations of the law of nations could have implications for the future of international law and inter-American relations. Through Vitoria’s notion of the law of nations, Scott warned Latin American nations, particularly their jurists and diplomats, not to violate the law of nations and thus avoid committing ‘mortal crimes’ within the Americas and beyond:

4. Vitoria and the spatial meaning and scope of the Monroe Doctrine: From Spanish America to Pan America

Scott and Barcia maintained geopolitical approaches to Vitoria that were also grounded on complementary spatial anxieties about the meaning and scope of the Monroe Doctrine. In the early twentieth century, following the emergence of the Roosevelt Corollary of the Monroe Doctrine and Drago’s redefinition of the doctrine as a continental principle, a series of hemispheric and global reinterpretations of the Monroe Doctrine emerged in the US and Latin America. This led to Pan-American, as well as anti-imperialist critical interpretations of the Monroe Doctrine in the Americas.Footnote ⁶⁴ These debates were to inform the legal ideas of Scott and Barcia, and their approaches to Vitoria. As will be shown in this section, while Scott maintained an ambivalent understanding of the Monroe Doctrine as a President of the AIIL and legal advisor of the US Department of State, in the context of his visit to Washington in 1928 as a CEIP European Visiting Professor, Barcia prepared a study on the historical trajectory of the Monroe Doctrine, tracing an explicit connection with Vitoria. It is no coincidence that it was then in that context that they both initiated a common quest for promoting the renaissance of the work of Vitoria. These shared endeavour around the cult of Vitoria were to inform and shape their new geopolitical understandings of the Monroe Doctrine, especially that of Barcia.

Barcia proposed a Spanish Americanist understanding of the Monroe Doctrine and traced a connection between the intellectual origins and prehistory of the Monroe Doctrine and the work of Vitoria. Indeed, he traced back Vitoria’s scepticism regarding Spanish sovereignty and its rights of property over the Americas as an intellectual and legal precedent of the Monroe Doctrine.Footnote ⁶⁵ In its original formulation of 1823, the Monroe Doctrine emerged as a US unilateral declaration setting up limitations to European interventions and intromissions on the Western Hemisphere. It was thus an anti-interventionist and anti-colonial doctrine. At the same time, as long as it regarded any European interventions in the Americas as a threat to US national interests, it entailed a proclamation of US paternalism and supremacy over Latin America, as if the former was the protector of the whole continent.Footnote ⁶⁶ US President James Polk later in the 1840s applied it as an expansionist and even an imperial principle over the Americas. As such, the Monroe Doctrine could be regarded as a manifestation of US ‘imperial anti-colonialism’.Footnote ⁶⁷ Barcia regarded the anti-colonial component of the Monroe Doctrine, in particular the idea that the Americas were not a political and colonial subject for the Spanish monarchy and European powers and thus they were not res nullius, as a notion originally addressed by Vitoria’s law of nations. Indeed, according to Barcia, this idea was at the very same time universal and Spanish Americanist in Vitoria’s original formulation. In other words, Spanish-Americanism and Spanish-American international law predated not only Pan-Americanism and American international law, but also any other alternative notion of Americanism broadly understood. By 1823, according to Barcia, Monroe appropriated a principle created by Vitoria, but made of it a US unilateral, transient and selfish doctrine. The US Monroe Doctrine in its 1823 formula introduced above all divisions and tensions within the Americas, in the view of Barcia. Unlike Vitoria, the Monroe Doctrine was opposed to any ideal of international or hemispheric co-operation.Footnote ⁶⁸ ‘Vitoria focuses on the problem of America objectively’, whereas ‘Monroe sustained a circumstantial thesis’.Footnote ⁶⁹

Barcia’s Spanish-American understanding of the intellectual roots of the Monroe Doctrine was much closer to the anti-imperialist critiques of the doctrine proposed by Latin American figures than to any Pan-American redefinitions of it, as they emerged in the 1910s and 1920s. For Barcia went as far as to associate Vitoria, as has been already shown, with ideals of ‘anti-imperialist redemption’. As long as Spain and Spanish America maintained common cultural and linguistic traditions and were unified in the sixteenth century, Latin American anti-imperialist and anti-interventionist jurists, intellectuals and politicians were the natural Spanish-American successors of the tradition initiated by Vitoria. Yet while the golden age of Vitoria represented the Americas as a unified continent connected to Spain, the enunciation of the US Monroe Doctrine in 1823 gave birth to a cultural division between the two Americas, Latin (Spanish) America and the US and their respective legal and political traditions. This tension did not manifest itself until Britain established an outpost in North America, and after the nations of the Western Hemisphere gained their independence from both Spain and Great Britain. Since the aftermath of the independence of the South and North American republics, according to Barcia, ‘it would be no longer possible to refer to the history of America’ as a unit, ‘but to the history of two diverse Americas that haplessly sought to engage in dialogue and work together, since neither their psychologies nor their aspirations proved compatible’.Footnote ⁷⁰ By rendering Vitoria’s original universal notion of the law of nations unilateral in the nineteenth century, the Monroe Doctrine generated an irreversible division between the two Americas, dissolving the continental unity that began with the Spanish ‘discovery’ of America.

The Spanish American intellectual genealogy of the Monroe Doctrine, as proposed by Barcia, contrasted sharply with the ideas of Alejandro Álvarez, Scott’s partner and co-founder of the AIIL. While Álvarez regarded the Monroe Doctrine as a foundational principle of American international law, Barcia sought to dismantle this Pan American tradition by offering an alternative genealogy for what he defined instead as Spanish American or Ibero-American international law tracing its origins in the work of Vitoria. Although some core notions of the Monroe Doctrine were anticipated by Vitoria, the latter had less commonality with the former than with its Latin American critics. Bolívar, Martí and other Latin American jurists, such as Isidro Fabela and Emilio Roig de Leuchsenring, were much closer to the anti-interventionist regional ideals and those of Vitoria than to any unilateral US doctrine. These two latter figures regarded the Monroe Doctrine as an elastic and ambivalent principle that allowed the US to intervene in Latin America and create a state of exception, promoting interventionism and Pan Americanism in the name of the very same principle.Footnote ⁷¹ As a result, all these Latin American statesman, jurists and intellectuals were intellectually connected to Barcia through Vitoria. And Barcia himself was a Spanish successor, rather than a Latin American one, of a much broader Spanish American legal tradition, whose founder was Vitoria.

Scott, by contrast, was captivated by the idea of Álvarez according to which the origins of the ideal of American international law had its intellectual grounds in the Monroe Doctrine. For Scott promoted the institutionalization of this ideal as the main architect and promoter of the AIIL. As has been already shown, Álvarez proposed a Pan American and multilateral redefinition of the Monroe Doctrine and regarded it as a proper principle of American international law. Although Scott maintained a US-led and ethnocentric legal approach, he engaged with the multilateral approach of Álvarez. Indeed, in the context of the first institutional meeting of the AIIL held in 1915 in Washington, Scott drew on and cited the Pan American version of the Monroe Doctrine advocated by Álvarez and presented it as a broader hemispheric legal principle based on Western Hemisphere ideals and practices of ‘continental solidarity’. Citing Álvarez and translating him into English, Scott affirmed:

A few years later, in the context of the centenary of the Monroe Doctrine, Scott commissioned Álvarez through the CEIP to prepare and edit a volume on the Monroe Doctrine, focusing on ‘its importance in the international life of the states of the New World’.Footnote ⁷³ The volume included a prologue by Scott, where he affirmed that the ‘book is a service alike to North America, Central America and South America’, and that such a volume, including US and Latin American views on the doctrine, could only be prepared by Álvarez, who was an authentic ‘friend of all the Americas’.Footnote ⁷⁴

At the same time, like most US politicians and jurists working as legal advisors for the US Department of State, Scott proved to have a certain official resistance to promote the redefinition of an original US national doctrine as a broader multilateral Pan-American principle of international law for the Americas. Therefore, he oscillated between a nationalist political and a Pan-American legal approach to the Monroe Doctrine and ended up promoting these two opposing versions. Similarly, he regarded it alternatively as a principle of international law and in certain occasions as one that ‘had no basis in international law’, as he affirmed in an address he delivered at the University of Michigan in 1932, right at the time when he was deeply involved in his cult of Vitoria as the founder of international law.Footnote ⁷⁵

Since the US was an informal empire in ascendance, Scott’s appropriation of Vitoria had more concrete geopolitical effects than that of Barcia, at least for Cuba and Pan America. In the context of the preparations for a 400-year anniversary of Vitoria’s delivery of De Indis (1532), Scott proposed to celebrate it twice as part of the annual meeting of the Institut de Droit International, once in Salamanca, where Vitoria’s lectures were originally delivered, and also another time in Havana. One might wonder why celebrate it also at Havana and whether there were any strategic or geopolitical reasons for the US Department of State or the AIIL to organize celebrations in Spain and Cuba. Scott confessed that there were clear geopolitical reasons, and these were connected to a specific political and geographical representation of the origins of the modern world and modern international law. Scott believed that it was worth celebrating the anniversary in Havana, Cuba, because it was the city where Columbus landed in his first arrival to America in 1492. He thus affirmed: ‘On October 28, he landed upon Cuba, the first of the future American Republics to be touched by Columbus on the first of his western voyages.’Footnote ⁷⁶ There was a more concrete important geopolitical motivation to celebrate this in Cuba connected to the future of the AIIL and Pan Americanism. Under Scott’s initiative and on the basis of a series of resolutions adopted at the Sixth Pan American Conference (1928) held in Havana, Cuba’s President Gerardo Machado approved a decree in March 1929 for an ambitious project of creating a Pan American Academy of International Law in Cuba and a Palace of Justice for the AIIL, similar to the one established at The Hague, centralizing and institutionalizing in Cuba all the activities of the AIIL.Footnote ⁷⁷ The future of (American) international law conceived by Álvarez in the abstract wonderland of Pan America was envisioned and relocated then by Scott in the concrete land of Cuba. Therefore, Havana was to become the new city centre of Pan America, a strategic and geopolitical point of contact between the (Spanish) past roots and the future of (American) international law, that is, between Vitoria, American international law and Pan America. Vitoria’s roots and legacy made it possible to reconcile in the twentieth century three contradictory legal traditions from Spain, the US, and Latin America, connecting the emerging US-led Pan-American legal imagination of Scott and the AIIL with the classic Spanish legal tradition.

Moreover, thanks to Scott’s concrete and successful appropriation, Vitoria proved to become especially meaningful in the 1930s for the geopolitical and legal imagination of the US in the Americas as the leading promoter of Pan-Americanism, as well as an emerging global power. In the context of the Seventh Pan American Conference (1933) held in Montevideo, it was established with unanimity, under Scott’s initiative, that the bust of Vitoria, which was located in the University of Salamanca, where the Dominican theologian famously imparted his lectures, be relocated in the official offices of the Pan American Union in Washington.Footnote ⁷⁸ Therefore, in the 1930s Vitoria’s legacy migrated from Spain and Spanish America to Pan America.