INTRODUCTION
In 1912, Manuel Alvaro de Souza Sá Vianna (1860-1923)1 published his response to the thesis prepared by the Chilean international lawyer Alejandro Álvarez (1868-1960) on the existence of a regional international law in the American continent. These debates took place in the so-called Scientific Congress, an international scientific association with an important role in Latin America in the early twentieth century.2 The first three meetings of the Scientific Congress (Buenos Aires in 1898, Montevideo in 1901 and Rio de Janeiro in 1905) were held among Latin American members, without the United States and the influence of the Pan-American Union. This international organization preceded the Organization of the American States.
As an international scientific association, the Congress was constituted as “a public space for science in the sphere of international relations”.3 In this setting, between 1898 and 1917, the Scientific Congress was a space constituted by Latin American elites to showcase Latin America as a space of science, progress, and civilization, a different narrative when considering the US interventionist policy towards the region.4 Notably, the tensions between universalism and the particularities of the American context had a significant presence in the debates of the Scientific Congress in this early period of the twentieth century.5
Sá Vianna was a member of the Brazilian Historic and Geographic Institute and, in this capacity, actively participated in the meetings of the Scientific Congress as a Brazilian delegate.6 The discussions about universalism and regionalism were part of the academic context of the day, of which Sá Vianna was a participant. In other words, it is possible to understand his position against Álvarez’s thesis not as something isolated but as part of the academic debates held in the meetings of the Scientific Congress. The thesis De la non existence d’un Droit International Américain was presented at the fourth meeting of the Congress held in Chile in 1908 – then renamed the First Pan-American Scientific Congress because of the United States’ participation by Chile’s invitation.7 Sá Vianna’s thesis on regional international law was not the only work presented at the Congress meetings. Previously, at the Second Latin American Scientific Congress held in Montevideo in 1901, Sá Vianna presented “International Arbitration”. He analyzed whether the South American nations should conclude permanent arbitration treaties and the scope of these treaties.8
Recent works that explore the history of international law in Latin America mention Sá Vianna’s thesis about the non-existence of a regional international law in the Americas.9 However, most often than not, such mentions tend to concern Alejandro Álvarez, that is, as a way of contextualizing Álvarez’s work, without adequately exploring the universalist position of Sá Vianna in the debate, his main theoretical influences, and his intellectual path.10
It is essential to study the work of Sá Vianna precisely because of the limitations of the current perspective that opposes his work to that of Álvarez. In this context, Álvarez’s contribution is presented as innovative and open to Latin American peculiarities. At the same time, Sá Vianna’s work would be marked by a totalizing and backward universalism, contrary to the articulation of a regional sensibility. The perspective that opposes the work of Sá Vianna to that of Álvarez impedes us from gaining a detailed understanding of the contribution of the Brazilian jurist, which can lead to mistaken conclusions about the way Sá Vianna saw the relationship between the “periphery” and international law. It is not a question of merely “doing justice” to the work of Sá Vianna but of exploring the different uses of international law as articulated by jurists from the region in the early twentieth century. A context in which regional elites sought to showcase Latin America as a space of science, progress, and civilization. Without reducing him to an obscure and unknown figure who dared to challenge Álvarez’s position, Sá Vianna was a jurist with a robust humanist background and intense participation in the intellectual debates of the day, marked by deep tensions between universalism and the particularities of the American regional context.
This contribution aims to shed light on the universalist perspective of Sá Vianna in international law, considering his theoretical perspective and his career as a lawyer in Brazil. Without exhausting all the nuances of Sá Vianna’s thinking, we will explore his academic trajectory and how Sá Vianna assessed the issues related to a necessarily universal character of international law. In other words, to the Brazilian jurist, there was no room for a regional sensibility in the field. International law could only be universal.
The argument goes as follows. The next section will explore Sá Vianna’s academic trajectory, analyzing his universalist position in the debate on the existence of a regional international law specific to the American continent. The text will then focus on analyzing particular publications by Sá Vianna on politics, especially about the First World War and his work on international arbitration.
Despite the impact of Sá Vianna’s ideas among Brazilian, Latin American and even European and US jurists in the early twentieth century, his universalism seems to have been forgotten – perhaps accompanying the alleged decline of the debates about a Latin American regional sensibility in international law.11 However, we consider that redescribing12 in detail Sá Vianna’s thinking and his contribution to international law constitutes a fundamental step in mapping a Brazilian approach to international law.
1. SÁ VIANNA AS AN ACADEMIC: INTELLECTUAL TRAJECTORY AND DE LA NON EXISTENCE
The extent of Manuel Alvaro de Souza Sá Vianna’s academic work is inversely proportional to the current recognition of his contribution to the field of international law in Brazil. Sá Vianna published academic and professional texts consistently. Beyond thematic works assessed in the next section, he published textbooks and the lectures delivered when he was a professor of international law at the Rio de Janeiro Faculty of Legal and Social Sciences – currently the Federal University of Rio de Janeiro Law School. In 1908, he published the first volume of the book Elements of International Law, exploring the general part of the discipline of Public International Law. It was the basis of his teaching at the Rio de Janeiro Faculty of Legal and Social Sciences.
Sá Vianna openly dialogued with European, American, and Brazilian authors, showing the reader his influences, sources, and concurrent or dissonant opinions throughout the text. After presenting a definition of international law, Sá Vianna turned to classical authors to identify the foundations of international law. His research also extended to the roots of Roman law, Canonic law, and philosophy.
The author also dealt with the internal classifications or divisions of the discipline. On the one hand, the author discussed natural, philosophical, rational, and the so-called primitive international law; on the other, positive, conventional, or secondary international law. He also mentioned the ideas of the Brazilian jurist Pimenta Bueno on the law’s internal divisions. Sá Vianna had criticized Pimenta Bueno for the suggested division between public and private law but later recognized “that he had gone the wrong way, and the truth seems to have been unveiled by his great spirit”.13 In this setting, Sá Vianna began to consider private international law as a branch of international law, removing it from domestic law.
On the question of the existence of international law, Sá Vianna presented the reasons of those who opposed the existence of the discipline, relating them to the power of weapons over the fate of nations. In considering the difficulties of agreeing on disarmament, Sá Vianna cited the success of a South American initiative. It regarded Chile and Argentina and established the limitation and equivalence of armaments between the two nations.14 Sá Vianna highlighted the pioneering nature of the treaty signed by the South American countries, which admitted as mandatory, the “civilizing principle of arbitration” before its recognition at the Second Hague Peace Conference.15
After refuting the reasons against the existence of international law, Sá Vianna presented his arguments to meticulously demonstrate why international law exists. He made a great effort to base his ideas, reinforce his motives, and illustrate his conclusions by citing numerous treaties, conventions and academic congresses held in the Americas. For example, when mentioning the construction of international law through large assemblies, the author mentioned the two Peace Conferences in The Hague (1899 and 1907) and the three Pan-American Conferences held in Washington, Mexico, and Rio de Janeiro (1889, 1901 and 1906).16
Discussing the domain of science in international law, Sá Vianna considered the idea of an international law directed at nation-states. Some binary categories such as “potencies” and “savage peoples, indigenous tribes and nomads” were more evident. The use of categories of this type is present throughout the text and represents concerns specific to the time (civilization, progress, integration into the world context). The author even attributed to law a “constant, progressive and civilizing” action over politics.17 The historical connection between international law and the philosophical principles of Christianity was also noted. Being inspired by “so extraordinary and humane” principles, international law would be “perfectly adaptable to all nations that have always asked for it and obeyed it”.18
Sá Vianna also dealt with the origin and evolution of international law, dividing history into great epochs. The main objective was to identify international legal rules such as today’s rules in ancient times. The narrative was based on history, philosophy and law, and the author’s erudition is easily noted. He was familiar with the works of authors of various nationalities, using diverse sources in his research.19 There were references to the Monroe Doctrine, the Pan-American Conferences (1890, 1901 and 1906), the South American Congress of International Law (1888), the Second Latin American Scientific Congress (1901), the Hague Peace Conferences (1899 and 1907), the Drago Doctrine, among others.
At the end of the book, the author addresses the sources and subjects of international law. Although he considered the State, the individual, and the Pope subjects of international law, Sá Vianna questioned the legal situation of “nomadic peoples and savage tribes”. “Nomadic peoples and savage tribes” could not be considered political organizations and would not possess a common will, as manifested by their heads or assemblies.20 Accordingly, most scholars did not recognize them as subjects in the field. Sá Vianna reiterated, however, that they should be protected under international law “so that they are not victims of the effects of the painful conquests that they suffer in the name of civilization and on the part of civilized States”.21
The Special Part of the course that Sá Vianna taught at the Rio de Janeiro Faculty of Legal and Social Sciences was published as Public International Law and Diplomacy. It was a summary of his lectures organized by his students Pedro de Lamare S. Paulo and Edmir Pederneiras. The book addressed a diverse range of themes. Here it is worth highlighting Sá Vianna’s assessment on the Drago and Monroe Doctrines.
The Drago Doctrine was elaborated by the then Minister of Foreign Affairs of Argentina in 1902, Dr Luis María Drago. It was a legal reaction to the Venezuelan blockade, the hostile dispatch of a British, German, and Italian squadron to Venezuela for debt collection.22 When discussing the possibility of forcible debt collection between states –the core of Drago’s thesis– Sá Vianna criticized the position of the United States that “despite all its vaunted friendship with other American peoples, remained silent in the face of the brutal arrogance of the strong against the weak”.23 After Drago’s protest, the US government justified the impossibility of intervening in the case due to the principles of the Monroe Doctrine. This situation exposed the controversial relationship between the US and Latin America.
The forcible collection of debts under international law was discussed at the Third Pan-American Conference in 1906. It was eventually decided at the Second Peace Conference in the Hague in 1907 that the Drago Doctrine could not be entirely accepted in international law.24 Sá Vianna reported that the coercive collection of debts against the state was prohibited under international law, but exceptions to the general rule were admitted.25 Sá Vianna positioned himself in favor of the Drago Doctrine as initially proposed by the Argentine jurist since the state, unlike the private debtor, can offer guarantees to the creditor, which would not justify foreign intervention.
The paradoxical anti-colonial and imperialist nature of the Monroe Doctrine constituted a political statement and was not defined by James Monroe as a principle of international law.26 Notwithstanding Sá Vianna’s belief that Monroe did not want to take over the colonies emancipated from the European yoke, Sá Vianna warned of the doctrine’s flaws. The criticism was directed at the United States, which would only apply the principles inherent to it when they could take advantage of it.27 A number of examples of foreign interventions in the regional context were cited, including the cases of Santo Domingo and Mexico. The author also listed several US, Latin American, and French writers who assessed the theme in the same critical vein.
Furthermore, Sá Vianna mentioned a concrete case in which the United States would not have acted per the principles of the Monroe Doctrine. The issue was related to Brazil regulating the last terms of its independence in 1825. Brazil proposed an offensive and defensive alliance to the US government, complaining about an act of the Portuguese government, which Washington rejected.28
The third work by Sá Vianna to be examined in this section is De la non existence d’un droit international américain, which begins with the famous statement “il est manifeste qu’il n’existe pas, et ne peut exister a Droit International Latino-Américain”.29 The dissertation arose from the fruitful debate in Latin America, at the beginning of the twentieth century, between Sá Vianna and Alejandro Álvarez regarding the existence of a Latin American or American regional international law.
Controversy emerged when Alejandro Álvarez presented his work Origen y desarrollo del derecho internacional americano at the Third Latin American Scientific Congress in 1905, held in Rio de Janeiro. Álvarez presented arguments in favor of the existence of an American international law. After this event, Álvarez published two articles in English. In 1910, at the Fourth Pan-American Conference in Buenos Aires, Álvarez presented a book written in French – Le droit international américain: son fondement, sa nature: d’après l’histoire diplomatique des états du nouveau monde et leur vie politique et économique, in which he effectively assumed the position of a theorist by proposing the existence of an American international law.30
In response to Álvarez’s thesis, Sá Vianna presented his work at the First Pan-American Scientific Congress, held in Santiago de Chile in 1908, later published in 1912. It was a 290-page monograph also written in French, divided into three large parts, without internal divisions into titles and/or chapters. In its short introduction, the author presented the context of the debates of the Scientific Congress, which he called “The Antecedents”.
Sá Vianna was fiercely opposed to the existence of an international law specific to the region, whether only in Latin America or with the inclusion of the United States. US participation had always been a sensitive topic since “Pan-Americanism” and “Latin Americanism” were exclusionary notions. The decision, from the Fourth Scientific Congress onwards, not to use the term Latin American is significant, as what was at stake at the time of these scientific events was the construction of narratives and sensibilities about spaces on the American continent, which might (or might not) include the United States.31
The debate over the existence of regional international law was not new. Liliana Obregón inserts Alvarez’s work into a broader Latin American tradition of thinking about international law. According to Obregón, a “creole legal consciousness” shaped this Latin American tradition in international law. It encompassed a unique interpretation of the region, different from the European one, dating back to the post-independence era in Hispanic America. Obregón proposes a periodization of this tradition in three moments, in which a Latin American identity was invoked. There was a pre-classic period, marked by the contribution of the Venezuelan jurist Andrés Bello (1781-1865) and a classic phase represented by the Argentine jurist Carlos Calvo (1824-1906). In turn, Alvarez’s work represented a third moment in this tradition at the beginning of the twentieth century. Álvarez work can be seen as an effort to modernize the creole consciousness in international law.32
Four decades before Alvarez proposed his thesis, Carlos Calvo published Derecho internacional teórico y práctico de Europa y América in 1868. His compatriot, Amancio Alcorta (1842-1902), reacted to the publication, arguing in favor of the possibility of the existence of American international law. On the other hand, Calvo stated that international law was about juridical principles and was unsuitable for solving specific problems. The debate did not end with Sá Vianna either. In the 1950s, Alvarez still clashed with Daniel Antokoletz, defending Latin American international law until he died in 1960.
Despite its lack of originality, our interest in the discussion between Sá Vianna and Alejandro Álvarez is based on the fact that the Chilean jurist was responsible for theorizing and systematizing the political project of a Latin American tradition in international law.33 On the other hand, Sá Vianna’s work has been little explored by both Brazilian and Latin American academia, despite his academic engagements and the weight of his argumentation favoring the idea of a necessarily universal international law.
However, an adequate and historically detailed examination of Sá Vianna’s contribution, especially regarding the book De la non existence d’un droit international américain, should seek to identify the subtleties and sophistication of Sá Vianna’s reasoning. His argument was based on some primary considerations. First, he stated that international law is the set of rules and laws that Latin American states must observe in their relations with European countries and other American countries, as well as the law applicable in different continents.34 Second, the existence of a set of problems specific to the American continent does not generate a new regional international law, given that international law is a set of principles, laws, rules, and legal precepts with general application. International law cannot be seen as a set of problems and issues pertaining to a particular continent.35
Overall, the Brazilian jurist understood that American principles might contribute to and transform general international law, such as prohibiting the confiscation of private property, arbitration as a mandatory means of dispute settlement, and the principle forbidding the extradition of nationals. Although he did not deny the possibility of recognizing American contributions to international law, Sá Vianna did not accept that such contributions could configure a new regional law detached from (universal) international law.36
The tension between universalism and localism has always been present in the discipline of international law. While the universalist pull of international law emerged from a particular regional context (Europe),37 its rules and principles were aimed at the entire international community. It can even be said that this conflict between localism and universalism is constitutive of the discipline. Accordingly, Antony Anghie challenged a traditional version of the past of international law, intending to rewrite the field’s history from the central role played by the colonial encounter in structuring the principal doctrines of international law.38
Another sphere of the discussion focused on how the “universalization” of international law would have occurred. Without denying its colonial origins, Arnulf Becker Lorca stated that international law expanded throughout the nineteenth century through the internationalization and reinterpretation of classical categories by non-Western (non-European) jurists who studied in Europe.39 To Becker Lorca, Álvarez represents a modern sensibility in the field by recognizing the existence of an international law born in the American continent.
But what about Sá Vianna? Does opposing the idea of a regional international law mean that his universalist approach served hegemonic interests and despised the “peripheral” contribution to international law? This question does not have a straightforward answer. There are complexities in the history of international law in Latin America that deserve further exploration. Importantly, the defense either of Latin Americanism or Pan-Americanism has been assessed in detail by Juan Pablo Scarfi.40 Scarfi’s work highlights the alliance between US and Latin American jurists and institutions to advance the joint project of American international law. To Scarfi, the hidden history would be the civilizing character attached to developing international law in the Americas from 1890 to 1943.41 In other words, the defense of regional international law by Álvarez may not necessarily correspond to an emancipatory sensibility in the field.
This brief analysis of Sá Vianna’s contribution as an academic demonstrates the nuances of his thinking. The author was not limited to opposing the position adopted by Álvarez. On the contrary, Sá Vianna presented solid legal arguments and a vast knowledge of international law to support his position for the inexistence of a regional international law in the American continent.
It is worth noting that Sá Vianna’s marked universalism does not seem to constitute an isolated perspective. Scholars in the region agreed with his denial of Álvarez’s ideas and his universalist approach. His defense of the American nations’ celebration of permanent arbitration treaties also found support among Latin American scholars, and many Latin American delegates present at the Scientific Congresses expressed support for Sá Vianna’s theses. The fact that Sá Vianna’s universalist perspective is less well known than Álvarez’s proposal of a regional international law does not mean that it was an isolated position detached from the regional context of legal debates.
2. SÁ VIANNA, POLITICAL QUESTIONS, ARBITRATION, AND UNIVERSALISM IN INTERNATIONAL LAW
Sá Vianna did not have intense contact with the practice of international law. Even though he had a brief experience as General Consultant of the Brazilian Republic and his experience as a lawyer in Rio de Janeiro, his most significant contact with international law was through teaching. His practical activity had closer connections with issues of private international law, which, as presented in the previous section of this contribution, should be considered part of international law.
This section of the text explores Sá Vianna’s publications on political issues and arbitration. These works offer important clues for a more accurate understanding of his universalist position in international law. In particular, the way in which Sá Vianna elaborated the relationship between law and politics while analyzing the First World War provides further reasons for understanding his position against regional international law.42
Sá Vianna’s universalism can be further understood by examining his texts on international politics, especially those on the outbreak of the First World War. His two inaugural lectures on international law had the European conflict as their central theme and were published in Rio de Janeiro, both in French.43 In the text entitled Qui a provoqué la conflagration européenne?, published in 1915, Sá Vianna explored the assassination of Archduke Francisco Ferdinando, heir to the Austro-Hungarian Empire, and the Austro-Hungarian ultimatum to Serbia; events that led to the outbreak of the First World War. With an openly critical stance on the Austro-Hungarian intransigence towards Serbia, Sá Vianna sought to establish a dialogue on the conflict with an international audience.
Sá Vianna highlighted his criticism when mentioning the likely perplexity of his Brazilian students towards the European context. Lovers of law and freedom, young Brazilians “ne peuvent pas comprendre que dans la culte Europe, de telles choses arrivent et que les États se classent in deux groupes: une bande de lions and des troupeaux de montons”.44
At the end of his text, Sá Vianna concluded that the Austro-Serbian conflict was just a pretext for the great war. This pretext very conveniently served the interests of other European powers at the beginning of the twentieth century.45 In particular, for the author, the real cause of the war would have been Pan-Germanism, understood as “le rêve de l’empire universel, la fantaisie de Charlemagne, le délire de Charles-Quint, l’arrogance de Napoléon, la folie sanguinaire de Guillaume – Le Maudit!”46 Also according to the author, the “great crime” would not have been the lack of efforts to prevent the occurrence of the First World War, but the fact that the German empire patiently prepared this war.47
These observations by Sá Vianna provide essential clues on understanding his universalist position in international law. Here it is already possible to point out a particular way of thinking about the relationship between politics and law, as international law could not allow the realization of specific political interests of some states to the detriment of others. No sovereign state could subjugate other sovereign states by asserting their political interests despite the different claims of equally free states under international law.
In his second inaugural lecture on the First World War, published in 1916, Sá Vianna addressed a perspective that was more restricted but of equal importance for us “Americans”: the position of our continent in the face of the European conflict.48 After resuming his arguments against the existence of regional international law and considering the civilized character of the American continent as a space of freedom, peace and justice,49 Sá Vianna analyzed the influence that the political situation in Europe would have exercised over America.
Faced with Germany’s invasion of Belgium in August 1914, Sá Vianna argued that the American countries should have taken a strong stand against the violation of Belgian neutrality in defense of the universal principles of international law. Sá Vianna exhaustively explored the rights and duties of belligerents and neutrals in contexts of armed conflict, emphasizing classical German doctrine on neutrality. As a civilized region and a “continent of peace”, the American continent would have missed a significant opportunity to speak out openly against Germany’s violations of international law in the First World War.
According to Sá Vianna, the peaceful demonstration by the American states would represent a safeguard of rights, a measure of prudence that would have the power to prevent the violence practiced by Germany from being a precedent or an excuse, as often would have occurred in the international order.50
Sá Vianna deplored the silent attitude of the American states towards the European conflict. He affirmed that the region’s states preferred to submit to a convenience regime that has contributed to the degeneration of legal principles. This situation would also have disregarded the rich American diplomatic tradition in matters of neutrality and arbitration as a form of conflict resolution.51 The declaration of neutrality by the American states in the face of the European conflict, as defended by Sá Vianna, would also have economic reasons.
In this setting, the lack of an express declaration of support for Belgian neutrality by the American states had detrimental consequences for the neutrality status of the American states and, consequently, for the commercial relations of those states during the conflict. For Sá Vianna, the German action in the war would be in total disagreement with the rules of international law on neutrality and belligerence. An express position of the American states in defense of Belgian neutrality would have had the power to underline the importance of respecting international rules on neutrality and belligerence in the context of the First World War. According to Sá Vianna, it could have guaranteed the commercial relations of neutral American states during the war.
What is evident in Sá Vianna’s argument about the position of the American states in the First World War is that international law with its universal rules would be adequate to guarantee the interests of the American states. There would be no need to create a separate regional international law. The American states should demand for the existing universal rules of international law to be respected, rather than create a set of regional and exceptional rules.
In a text published in the University of Buenos Aires’ Revista de Ciências Econômicas in 1917, entitled Fuertes y débiles, Sá Vianna offered the reader a problematization of the relationship between law and politics, having explored the division between strong and weak countries in the international context of the time. For the author,
(…) el derecho no debía desinteresarse de la política, sino, por el contrario, procurar dirigirla, sustituir el interés egoísta de cada estado por el sentimiento elevado y muchas veces más provechoso de los intereses de la comunidad internacional, que no puede existir y desenvolverse útilmente, sino bajo la protección del derecho.52
Following the analysis proposed by Sá Vianna, despite the principles that were created to organize international society and the legal rules that emanated from it, such principles and norms clashed with some states’ selfish and unjustified interests.53 It is worth noting that Sá Vianna referred to the context of the beginning of the twentieth century, mentioning the developments in the scope of international law in that period, such as the Second Hague Peace Conference of 1907.
For the author, the problem of classification between strong and weak countries was related to German imperialism, once again expressly criticized by Sá Vianna: “En 1913, el problema llamado de las razas fuertes y de las razas débiles, era presentado sin reatos, y, digamos la verdad aunque duela, había quien admirara y tuviera envidia de esa organización de hierro prusiana, que creó la esclavitud espiritual”.54 For the author, the German description of Latin America as a space for weak races paved the way for “el tenebroso plan de absorción de una cantidad de estados americanos”.55
The desire for commercial and political influence by the United States of America should be added to the “German danger”. Thus, for Sá Vianna, this feeling of hatred produced concerning the American continent, characterizing it as a vast field for economic exploitation, also came from the United States.56
Sá Vianna thus questioned who should be considered strong and who should be considered weak in this context. Following the German and US context, strong peoples would be those in which material force would dictate the legal rule, even if contrary to reason and nature.57 Strong people would be those who use force to form a national conscience, according to their interests, whether they are honest or not, “siempre intereses para uso propio, para formar con los mismos fines la conciencia ajena”.58
In this context, the Brazilian jurist was openly critical of the descriptions of weak peoples, including Latin Americans, as incapable of taking advantage of their natural wealth because of their lazy character. It would not be possible for the author to consider as weak the peoples who fought bravely for their independence in the American continent. Nor would it be possible to view Latin Americans as weak peoples who gave the world an example of high culture and the perfect functioning of their respective states in less than a century.59 Sá Vianna vehemently probes: “¿Quién será ‘fuerte’, y quién será ‘débil’? ¿El que sabe ser obediente a la ley o el que es apenas servidor del brazo férreo de la autoridad?”60
Thus, the American continent would be more civilized than Europe and the United States of America. As a space of peace, justice, and freedom, we would have broad respect for international law without the region being considered to be based on agreements or political interests between Latin American countries. In other words, we would not have, in Latin America, the selfish interest that subverts the law but broad respect for the principles of international law.
This point is vital to understanding Sá Vianna’s universalist perspective and his thesis against regional international law. For the author, the law must guide politics, limiting the selfish interests of states in favor of the realization of the interests of the international community. To Sa Vianna, “ese panamericanismo estrecho, tortuoso y egoísta”61 has not produced any contribution other than minor international conferences. According to the author, this regional concert dominated by US interests should be replaced by a genuinely universal international law.
This genuinely universal perspective would encompass the feelings of justice, peace, and freedom typical of the American continent so that no European or American state could intend to colonize, occupy or dominate, under any pretext, the territory of the American republics. Likewise, no European or American state could intervene directly or indirectly in the internal affairs of other states.62
It is worth emphasizing that this is the context in which the author’s defense of international arbitration can be understood, with the American states signing permanent, broad, and binding arbitration treaties. For Sá Vianna, the region’s countries should resolve their disputes through arbitration and not the use of force – something typical of the European continent and that would not be part of the peaceful context of the American continent. Even with all of Sá Vianna’s criticisms of the Pan-American conferences, the author did mention that arbitration was recognized as a form of peaceful settlement of disputes since the first conference held by the Pan-American Union in 1889 in Washington.63
Sá Vianna did not, however, defend the creation of a permanent court of arbitration. For the author, the creation of a permanent court would face three obstacles present in international law: “a incerteza dos preceitos do Direito das gentes, a ausencia de um poder politico superior e a magistratura”.64 Sá Vianna questioned the convenience of creating an international court without existing “poder politico superior para dar execução às deliberações”65 since the most powerful nations could always use force to avoid a decision that went against their interests. For Sá Vianna, arbitration should be adopted gradually, so that its adoption could become increasingly comprehensive, since “a codificação do Direito Internacional, com o caracteristico da obrigatoriedade das leis positivas, e os tribunaes permanentes são aspirações irrealizaveis”.66
Furthermore, the nation that violated such a treaty could not demand the other signatories to observe the neutrality rules. This practical application of the principle of arbitration, “forma media, menos ampla nos primeiros tempos”,67 would be achieved by concluding a continental convention establishing permanent arbitration between the signatory countries to use force without prior establishment of arbitration would be prohibited.68 69 Sá Vianna’s idea is that this continental convention should contain general rules on arbitration. Specific issues related to its execution mode could be established in special treaties celebrated between two, three or more nations.70
As described in the previous section, even if it is possible to affirm the existence of principles of international law that originated in the American continent, and arbitration is generally identified as one of these principles, such a circumstance would not allow us to affirm the existence of American international law (or Latin American, depending on the inclusion of the United States in the regional idea). In this sense, Sá Vianna’s universalism seems to be related to the idea that politics should not override the law. In other words, occasional agreements or political interests cannot give rise to the transformation of the universal principles of international law. As humanity is one, so must international law be a single and universal right. Sá Vianna’s criticisms of the exceptionalism of Pan-Americanism or regional international law seem to make sense in this key that law must act as a transforming force for politics and not vice versa. Thus, political agreements specific to the American continent would not have the power to change the universal principles of international law even if it is possible to think of principles of international law that originate in the reality of the American continent.
CONCLUDING REMARKS
This contribution was intended to explore Sá Vianna’s universalist perspective concerning international law, considering his academic trajectory and career as a jurist in Brazil. Sá Vianna’s position can be seen as part of a broader framework of Latin American questions about the region’s particularities, as discussed at the Scientific Congress meetings at the beginning of the twentieth century. Exploring Sá Vianna’s work solely as opposed to Álvarez’s regionalism does not allow us to understand Sá Vianna’s universalist position in detail.
Sá Vianna’s defense of universal international law is not equivalent to asserting an irrelevant position of “peripheral” countries in international law. On the contrary, as seen in the discussion of his text Fuertes y Debiles, Sá Vianna articulated a critical analysis regarding the existence of strong and weak races. With a nuanced perspective about the civilization standard at the beginning of the twentieth century, Sá Vianna sought to shed light on the biased narrative that presented Latin American peoples as incapable and indolent. Such a discourse would only serve to camouflage the hegemonic interests of the United States and Germany in the region. However, it is worth considering that the criticisms presented by Sá Vianna were not intended to destroy the civilizing standard but rather to highlight the need to consider Latin Americans as equally civilized peoples.71
Sá Vianna’s universalism had a significant impact on other international legal scholars in Brazil and abroad, as illustrated by the statements of several jurists attached at the end of his thesis on regional international law, such as Oppenheim, Westlake, Fiori, among others.72
We consider it essential to understand Sá Vianna’s work in detail in its own terms as a necessary step for understanding a specific Brazilian approach to international law. Sá Vianna’s writings per se would not attest to the existence of a Brazilian approach in the field. What seems important to us is to understand the characteristics of his universalist thinking. The author’s position included strong criticism of the imperialist endeavors of the time, especially German imperialism. However, such criticisms did not lead to a vision of an international order totally free from imperialism since Sá Vianna believed that the law could contain politics. In other words, to use the jargon of the Brazilian jurist, the law remained “safe”, without it being part of the problem of the domination of weaker peoples. A critical perspective of the discipline, with international law as part of the problem of colonialism, imperialism, and forms of domination, would emerge later in the field with the work of Antony Anghie.73
The question of the existence of a Brazilian approach to international law certainly involves the ways in which Sá Vianna’s ideas circulated and were appropriated by Brazilian authors in new contexts across time. This text contributes to a broader investigation into the contours of a Brazilian universalist sensibility in international law.