Contemporary Latin American approaches to international law, development, and regional integration were forged in the shadow of two imperial systems. The Spanish colonial system produced a cultural and structural narrative of vertically arranged and centrally planned organization. The American commercial system embedded a strong ideology of markets and privatization of control bound together by regulatory effects of markets and organized according to relative market power. In their contemporary and embedded forms, Latin American states oscillate between Western liberalism, indigeneity, and variations of Caribbean Marxism. They swing between rigid hierarchies of centrally planned control and technocratic managerialism of markets.

The Spanish imperial system provided the baseline narrative. That system was built on an integrated legal-political and economic structure at the heart of which was the Spanish Crown, whose authority was exercised through the Council of the Indies. This served as the supreme legal, administrative, military, trade, and financial authority. Through patronage, it asserted a substantial influence over the operations of the Roman Catholic Church (Church) in Latin America. The hierarchical structure of the central imperial authority was then replicated within the colonial vice-royalties, each presided over by the viceroy and administered through his council (ardencies), and for indigenous affairs, the General Courts of the Indians.

However, the heart of the Spanish Imperial system was embedded in its economic organization, at the core of which was a modified encomienda system. The system arose as a means of pacifying territories during the Reconquista, the reconquest of lands seized and lost to the Muslim invasions of the eighth century. The system was based on the grant of a large tract of land (and everything on it) by the monarch to a designated individual (repartimiento) who held the land in trust but could exploit it and its inhabitants. The encomendero was obliged to do service for superiors and protect (according to law and custom) the welfare of the inhabitants (with spiritual matters reserved to the Church). As adapted for the colonial system, the repartimiento was initially granted to a resident of Spain (ultramar) or a person who could trace origins there. Locals were to work the land and pay tribute; the encomendero was responsible for the well-being of the inhabitants and their conversion to the Catholic faith.

All economic activity was directed outward, after satisfaction of local needs—from the inhabitants to the encomendero, the vice-regal apparatus, and finally to transport to Spain. The effect was a form of a “Silk Road” with all roads leading up to Madrid. Macro-encomendismo reproduced the relationships of the encomienda at the colonial level. Legal and political structures ensured system function grounded on principles of strict central planning and control. In lieu of markets, there was law and the administrative practices (implemented through discretionary decision making by vice-regal officials and ultimately those in Madrid-Seville-Cadiz), with authority to tax, license, and manage the availability of technology and knowledge. Combined with direct ownership, the system turned all activity in the direction of the Spanish Crown. Development was bent to the benefit of the central authority, which constituted the apex of a global production chain in which those in control at each level could extract some value but where the bulk of the value added was meant to be directed toward the Crown. It was a system of order, hierarchy, and control.

The Spanish Imperial system generated its own counternarrative, one that erupted almost from the start of the Spanish conquest. A part of that resistance was marked by an adherence to the basic system and its ideology but conflict over the allocation of material benefits among the elites along the wealth production chain. Thus, the Conquistador rebellion in Perú produced encomienda reforms and the New Laws of 1542. Similarly, nascent Latin American solidarity with the wars of independence and the regionalism of Bolívar might rearrange the path of the production, but not its methods or ideologies. The Church sought to protect its own prerogatives both by serving the interests of the elites and by protecting those at the bottom. Others sought to carve out a greater space for autonomy, including a long pattern of indigenous subversions in Central and South America that continue to this day. The African slave trade changed the complexion of hierarchy, but not its forms. Moreover, all of this was complicated by the raiding of competing empires.

It was onto this system that, starting in the nineteenth century, the American imperial system was superimposed. Its symbol was the Monroe Doctrine (evoked as recently as April 2019 with the reimposition of sanctions on Cuba and other Caribbean states). That provides the principles through which the empire could be protected against internal challenges within Latin America and external challenges by other empires (European, and now Chinese). Unlike its Spanish predecessor, the American Empire was a distracted empire. It did not seek to rule land but rather to control markets. It was uninterested in the control of populations, but rather in their management for enhanced production. It sought control of productive forces and the autonomous power to develop and exploit them as the Americans liked. This was a privatized empire—driven by great economic actors, protected by American public power, but constrained by markets. In the place of rigid and centralized control was the operation of markets and the control of capital. What the Americans offered was independence from colonial masters and a degree of local autonomy in matters of customs and traditions (preserving the Spanish imperial structures of power to the extent not inconsistent with American corporate aims), but at the price of deference to American (markets based) needs. While all roads would lead to Washington (or better, New York), there was a substantial space for local elites to order things as they liked.

This system also produced its own resistance. Its principal effect might be understood as reactionary—in the sense of solidifying a Latin American consciousness (around religion and language) built around the structures and forms of the Spanish colonial legacy (but without the bother of the old imperial master). Into this tradition, one finds José Martí and Caribbean regionalism, the outlawry of Pancho Villa, and the rise of political indigeneity.

Nevertheless, its greatest effects have been on Latin American approaches to the shaping of the normative content of international law and policy. On the one hand, one sees the shadow of Spanish centralized authoritarianism and the obligations of the ecomienda system in the push for a “New International Economic Order”Footnote ¹ and the policies of import substitution and legal nationalism of the Calvo Doctrine. On the other hand, one sees the shadow of American privatized empire in the development of multiple forms of free trade arrangements, and in the privatization of the state (through sovereign wealth funds). Nevertheless, it is in the organization and operation of the Organization of American States, and its Inter-American human rights system that one sees both the promise and perils of these two conflicting imperial visions.

To conclude, Latin America was formed in the shadow of empires. The first was public and hierarchical; with the state/Church at the apex of everything. The second was private and markets oriented; business serving markets and the state. Both sparked strong cultural adherence and equally strong resistance, shaping Latin America's internal organization and external relations. They define the master narrative of the region, and structure the way they see themselves and the world around them. Latin American internationalism reflects those contradictions of empire and resistance. These are reflected in the strength and challenges of Latin American regionalism at the core of their engagement with international law and policy. These are evident in notions of sovereignty and no interference; unless there is a reason to pressure. They are reflected as well in ethnonationalist regionalism around an imperial language; yet racial and ethnic stratification. They are reflected in the simultaneous rejection of markets while building economies and cultures around them. In Latin America, the state is conceptualized as both the best friend and worst enemy of people and of rights—fostering a broad legalized internationalism that predated the establishment of the UN system, in the reconstruction of an imperial center not in Washington or Madrid, but in New York and Geneva as capitals of global public institutions. International organization or in the organization of powerful blocs, in global human rights, but sometimes with a hole in the center, and in resistance to all of this. Given this structure, the question for Latin America going forward is the way that these engagements with older empires has prepared Latin America to engage with the rising empires of China (with its Belt and Road Initiative as the next generation American form of empire), and the more traditionally Spanish empires of a rising Russia. Will Latin America resist or succumb?