Visions of Progress and International Law in Nineteenth-Century Latin America

The concept of progress in international legal scholarship and practice has been explored over time. The narratives of progress in international law are conventionally drawn from the European or North American vision of how the rest of the world should move forward. In this contribution, I will present a novel intertwinement of progress and international law that emerged in a very particular context: the French Intervention in Mexico (1862-1867), and in a geographical space other than Europe or the United States.

The French Intervention was for the Mexican Republicans an open violation to Mexico’s sovereignty, and as such triggered novel visions of enforcement of international law, which contested the application of international law based on civilizational and racial features, as starkly represented by Scottish legal scholar, James Lorimer (here, and here).

In the following sections, I will explore three examples of transformative visions of international law: a) the Law of 1862, criminalizing acts against the nation and the law of nations (here); b) the military trial against Maximilian of Habsburg, in Queretáro Mexico in 1867 (here); and c) the Mexican Criminal Code of 1871 (here).

The Law of 1862 Punishing Acts “(…) Against the Nation, the Law of Nations and Individual Rights”

When French Forces were advancing on Mexican territory, Benito Juárez (the first indigenous president of Latin America) issued the Ley para castigar los delitos contra la nación, contra el órden, la paz pública y las garantías individuales (1862). The law consisted of 31 articles and was divided into four categories of crimes: (a) crimes against the independence and security of the nation (art. 1); (b) crimes against the law of nations (art. 2); (c) crimes against public peace and order (art. 3); and (d) crimes against individuals’ rights (art. 4).

This law defined a crime against the independence and security of the Mexican nation as any armed invasion executed by a foreign citizen or a Mexican citizen, if no declaration of war was preceded by the “invading power”. This provision was an attempt to regulate the use of force. Foreign powers could not use force and violate the integrity of a sovereign nation without complying with the formality of declaring war.

Art. 2 of said law defines crimes “against the law of nations”, being piracy, slavery, the slave trade and, most remarkably, “engaging nationals to serve foreign powers to invade the nation”. The Mexican provision was ahead of international law, as it was not until 1874 that art. 36 of the Brussels Declaration and art. 44 of the Hague Convention of 1899 prohibited “(…) any compulsion of the population of occupied territory to take part in military operations against its own country”.

Additionally, art. 4 of the law issued by Juárez defined crimes against individual rights, punishing violence against individuals or against their property. This provision materialized the idea of protecting persons and property from the calamities of war through criminal law. European efforts to protect the rights of individuals during war through criminal punishment came years later in the thought of Gustave Moynier.

Procedural guarantees were inserted in the law, giving jurisdiction to the military authority and institutionalizing court-martials composed of seven military judges. Defendants were given 60 hours to present their arguments and the death penalty was foreseen as punishment for most of the above-mentioned crimes.

Through this decree, Benito Juárez was proposing a model in which territorial integrity and political independence would be protected through domestic law. Additionally, the decree enabled domestic criminal punishment when individuals’ rights were injured during the invasion. It also aimed at enforcing the right to self-determination through criminal justice, foreshadowing art. 8 bis para. 2 of the Rome Statute.

The Military Trial Against Maximilian of Habsburg

In 1867, after the French had retired their forces from Mexican territory, Republican forces defeated the Mexican Imperial Army under the command of Archduke Maximilian. When Maximilian was captured, president Juárez ordered a court martial under the 1862 law. The trial would be held in the Teatro Itúrbide with a capacity to hold 600 spectators.

The public prosecutor established a narrative of the French intervention, which was actually labeled by the public prosecutor as a historical account. Maximilian was charged for serving as an instrument of the French intervention (akin to the “Mittelbare Täterschaft” theory in German criminal law) and for waging war against the legitimate Republic of Mexico without declaring war and the formalities established by the law of nations. Other charges included: (a) usurpation of a sovereign people’s rights, (b) using violence to dispose people’s interests, rights and life; (c) excesses committed against civilians and, most significantly, (d) issuing a decree that according to the Public Prosecutor violated the law of nations and the laws of war by ordering the execution of all those who opposed the imperial government within 24 hours. Other acts categorized as “against the law of nations” were plunder, murder and the burning of villages.

As for the competence of the Mexican jurisdiction, the prosecutor invoked Vattel, arguing that “(…) according to international law, the law of a State, obliges all of its subjects with exception of foreigners. However, if a foreigner altered the order and peace of a nation, they would be subject to the criminal law of the nation whose rights were violated (…)”.

The trial against Maximilian of Habsburg was to represent the embodiment of progress, as a monarch was being criminally punished for acts of war and for violating the law of nations. It was also a display of how both parties, the defendant and prosecutor, employed European legal scholarship as in the trial proceedings numerous invocations of Vattel, Grotius and Wheaton can be found.

[Riva Palacions Martínez de la Torre, Drawing of the military trial against Maximilian of Habsburg, Queretáro, 1867; Source: Mediateca Instituto Nacional de Antropología e Historia, Lugares INAH – Proceso de Maximiliano]

The Mexican Criminal Code of 1871

Benito Juárez commissioned the Mexican Criminal Code in 1861 and was completed in 1871. The Mexican legislator opted for a criminal enforcement model to criminalize harm against legal interests, that according to the drafters were protected by the law of nations. The drafters created the category “crimes against the law of nations”, which included five crimes: piracy, violations of immunity to diplomats, slavery, the slave trade, and violations of the duties of humanity. This catalogue of crimes shows what was considered at the time as the most valuable interests to be protected by “civilized nations”.

The most novel of all the above-mentioned provisions and related to the French Intervention was the crime “violations of the duties of humanity” inscribed in article 1139 of the Mexican Criminal Code. The Mexican legislator aimed at incorporating international law into domestic law and enforcing the laws of war through criminal law, defining the protected persons and objects: the wounded, prisoners of war, hostages and field hospitals.

As for the concept “duties of humanity”, the Mexican legislators did not define it as such, but doctrines and official documents argued that “humanity” was a feature of “civilized nations”, and this feature imposed certain duties during warfare such as not harming the wounded, prisoners of war, hostages, and field hospitals. Finally, by incorporating “duties of humanity” in domestic criminal law, the Mexican provision transformed “humanity” into a legal interest to protect. This was a major milestone in the history of international law and the laws of war, as the Mexican legislator chose to protect the principle of “humanity” over the principle of military necessity.

Conclusion

The implied visions for improving international law in early Mexican legal thought and jurisprudence were the (1) Equal recognition of sovereignty; (2) Ban of the use of armed violence in order to impose a government not supported by popular will; (3) Incorporation of international law in domestic law; and (4) enforcement of international law through criminal law.

Mexican liberals conceived international law as an expression of progress and held the law of nations as a binding body of law. But they also believed that improvement within the “law of nations” had to take place in the form of protecting every nation’s sovereignty and abiding by this principle. This would eventually become the principle of self-determination and non-intervention as set out in the Montevideo Convention of 1933. The most immediate response to protecting sovereignty was the “law against the sovereignty of the nation”, decreed in 1862 and the trial against Maximilian of Habsburg (1867). A more elaborate version, at least regarding the laws of war, would then be articulated in the Mexican Criminal Code of 1871.

In conclusion, the idea of progress and international law are not per se determined to have an unsettled relationship. The above case shows that, transformative visions of international law related to emancipatory goals like equality before the law or political independence from powerful states are possible. It is, rather, the arbitrary application of international law based on race or cultural features that undermines alternative visions in international law from materializing.

Acknowledgement: The author would like to thank Marlen Vesper Graeske and Jan Boesten for their thoughts and comments.