The Revitalization of United States Aterritorial International Logic: The World

before and after the 1989 Invasion of Panama

Stewart Sutley

Canadian Journal of Political Science / Revue canadienne de science politique, Vol. 25, No. 3.
(Sep., 1992), pp. 435-462.

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The Revitalization of United States Atemitorial
International Logic: The World Before and
After the 1989 Invasion of Panama*

STEWART SUTLEY University of Alberta

Recent activities by the United States on the world stage are as much a
challenge to conventions of state behaviour in international law as they
are a challenge to the intellectual conventions guiding political scientists
in their understanding of international events. In particular, an explana-
tion of the US invasion of Panama (Operation Just Cause) in 1989 would
be both unsuitable within the terms of a discussion on lawful state
conduct, given the censure the US received internationally, and incon-
sistent with the premises of leading paradigms used to describe interna-
tional affairs. Here, the US neither appealed to the narrow rational-
izations to which states usually refer in taking action against other states
nor used discretely legal arguments. Instead, what the US did and said
remains misunderstood due to the conceptual monopoly on the state
exercised by realists and neo-realists in political science1and the norma-
tive monopoly of a European-formed international law. By treating all
states as analytically and behaviourally alike,2 adherents of these
monopolies generally fail to recognize that significant and theoretically
divergent notions of statehood and interstate relations both exist
amongst states and are practised by them. At the practical and theoreti-
* I wish to thank Andrea Jaspers. Saleem Qureshi. Greg Poelzer and Larry Pratt for
their help, and the JOURNAL'S anonymous referees for their constructive criticism. I
gratefully acknowledge the generous support given to this research by the Consular
Corps of Edmonton and the University of Alberta.
I See K. J. Holsti, The Dividing Discipline (Boston: Allen and Unwin. 1985).
2 Recent examples include Alan James. "The Realism of Realism: The State and the
Study of International Relations," R e ~ . i e ~c~fltltertlnriot~nl
c. Srrtdies 15 (1989). 215-29,
and Tom Keating, "The State and International Relations." in David G. Haglund and
Michael K. Hawes, eds., World Politics: P01t.er. Interdependence and Dependence
(Toronto: Harcourt Brace Jovanovitch, 1990). 16-37.

Stewart Sutley, Department of Political Science, University of Alberta, Edmonton,

Alberta T6G 2H4
Canadian Journal of Mitical Science / Revue canadiinne de science politique, XXV: 3 (September/sep-
tembm 1992). Printed in Canada / Imprime au Canada
436 STEWART SUTLEY

cal levels, therefore, there is little in the received literature on state

practice (including realist, neo-realist and regime-analysis approaches)
and state theory (international law) with which to comprehend US
actions and arguments.
Instead of trying to impose the disciplinary conventions of political
science or international law upon US actions and arguments, why not
pose the question, "How does a state's power relate to territory?" This
way it is possible to hypothesize that, throughout their modern histories,
Europe and the Americas have faced different problems pertaining to
power, the state and the ordering of territory among them. Indeed, it is
possible, through a rigorous historical focus upon the variable of terri-
tory, to recognize today that there are not merely states competing for
power, as realists, primarily, wouldargue, but also two vital and compet-
ing logics of and about the state. To speak of the former is to recall
nineteenth-century Europe and its public law and conventions, which
survive to this day; to speak of the latter is to address the inter-American
ideal of state relations that manifested itself periodically in the last and
present centuries and, increasingly, manifests itself in current US for-
eign policy.
To develop the foregoing argument, this study will outline the
nineteenth-century European state system, including its norms, as con-
structed around a peculiar territorial solution in the wake of the
Napoleonic Wars. The recent invasion of Panama is juxtaposed against
this background to show how US theory and practice differ markedly
from explanations of the event that are derived from Eurocentric prem-
ises of politics and law that relate to territory. The analysis will then
outline how the bases for American policies, as revealed in the invasion
of Panama, have developed historically and in contradistinction to Euro-
pean tenets of interstate relations. Finally, the study draws together the
rival logics of interstate relations and traces their effects on political
developments in the twentieth .century while underscoring the theoreti-
cal and practical significance of Operation Just Cause.

Nineteenth-Century Europe and the Post-Medieval Territorial Order

At the outset of the nineteenth century, the basic problem confronting
the European powers as a group related to the survival of states which,
as political units, had acquired through time distinct identities and were
delimited by territorial boundaries. The solution sought in 1815 to the
problem of revolutionary France's territorial aggrandizement and the
destruction of incipient state identities emphasized the specific rights of
the state to its territory and the general recognition of the given pattern
of territorial appropriation and distribution. During the nineteenth cen-
tury, therefore, the state became the supreme subject and object of
Abstract. This article suggests the existence of two rival solutions to the political prob-
lem of territorial possession and appropriation among states. If we take temtorial control
as the analytical starting point, it is possible to examine the evolution, over the last two
centuries, of two divergent solutions to this issue. The nineteenth-century European
response of supreme sovereignty within the context of a true community of states may be
contrasted with that of the comity of republican American states sharing a moral vision
and, more recently, US refinements of an atemtorial logic. The US invasion of Panama in
1989 may be understood as marking the resumption of the historical rivalry between these
two logics and the widening of the application of US state practices and principles. Tracing
the expansion of the American logic in this way helps to explain the greater focus among
states on problems of economic production and distribution and the lesser focus on
territorial appropriation.
Resume. Deux solutions rivales peuvent ktre avancees afin de tenter de resoudre le
probleme politique que pose la possession et I'appropriation du territoire. En prenant la
maitrise du territoire comme point de depart, on peut voir evoluer la rivalite de ces deux
solutions au cours des deux derniers siecles. Le contraste apparait entre, d'une part, la
solution de 1'Europe du 19e siecle, fondee sur la souverainete suprime? dans le contexte
d'une veritable communaute d'etats et, d'autre part, la solution des Etats republicains
americains, fondee sur une conception de la morale qui a evolue, dans ses raffinements
recents, vers une logique a-territoriale. L'invasion de Panama en 1989 marque une
resurgence de la rivalite historique entre ces deux logiques, ainsi que la mise en application
plus poussee des principes et des pratiques des Etats americains. Poser en ces termes
I'importance prise par la logique americaine aide a expliquer la priorite accordee par les
fitats a la distribution et a la production tconomique plutbt qu'a l'appropriation du
territoire.

European practice and theory, as in the European Public Law (ius

publicurn Europaeum).
The formalization of an incipient society of European states in the
wake of the French Revolution and the Napoleonic Wars was a collec-
tive solution to a common problem. We may understand that solution,
and principally its international law component, as a convention deliber-
ately arranged by the actors themselves. Thus, the community of Euro-
pean states and the positivistic European Public Law that emerged in the
early nineteenth century and lasted until the First World War were
products of the specific conditions of Europe. The laws and practices of
this period constituted the model of an "international society," which
some students of international relations have mistakenly imagined
existed in other historical periods and place^.^
The problem of the French Revolution and the Napoleonic Wars
found its clearest expression in the threat posed to the centuries-long
process of reconciling Europeans to the reality of discrete states and to
the guarantee of their continued existence. As such, the European
solution of 1815 was unique because it was a multi-faceted endeavour,
originating in a fundamental desire to preserve the post-bellum pattern of
territorial appropriations, while also influencing, in this conservative
spirit, the nature of the state, interstate relations and the notion of
3 See Hedley Bull, The Anarchical Society: A Study of Order in World Politics (Lon-
don: Macmillan, 1977), and Martin Wight, Power Politics, ed. by Hedley Bull and
Carsten Holbraad (2nd ed.; Harmondsworth: Penguin Books, 1985).
438 STEWART SUTLEY

warfare. It became a logic of political and military relations that

responded to the problems of curbing medieval conceptions of power
and warfare, and mitigating state ambitions vis-a-vis territorial appropri-
ations. Indeed, the solution to both of these problems lay in creating "a
coalition of states founded on public law for the defence of that law."4
Thus, after 1815 "the newer ideas" of "a happy family of independent
states," Hinsley has observed, "were ultimately strengthened, [and] the
older programme of universal European monarchy. . . and [the] closely
associated ideal of a single federated Europe . . . was d e ~ t r o y e d . "Sub-
~
stantively, then, Europe's statesmen sought two goals: the "civiliza-
tion" of warfare such that instances of territorial changes were, at the
very least, predictable and subject to community management, and the
socialized as opposed to selfish nature of the state.
After 1815 a notion of absolute political war was advanced,
recourse to which became the exclusive domain of each social member.
States were increasingly required to recognize each other through a
common language of power that meaningfully imputed to the state-
qua-entity a guaranteed existence and common forms of interaction,
including a subdued, de-theologized form of war (iustum bellum). The
right to wage war was notably predicated upon a "civilized" conception
of what it was to start, wage and end war, as well as what it was to remain
neutral. Only European states that shared the perception that their
adversaries were "just enemies" (iustus hostis), and not "foes" bent
upon the annihilation of their adversaries in "just wars" (based on iusta
causa), could together constitute a society in Bull's sense.6For indeed,
an international society of equal, territorially based powers could not
sustain the presence of even one powerful state that perceived war in
terms of justice or injustice. Since "the distinction of friend and
enemy," wrote Schmitt, "presupposes both friend and enemy,"' the
Europeans undertook to banish from their presence the remaining traces
of ambiguity in their interrelations by achieving conciseness on all
matters relating to its external environment, that is, the right to make the
political determination that could lead to legitimate warfare, interna-
from emerging. The attendant form of state, therefore, was one whose
meaning started with territory and was consolidated with collective
norms and procedures that sought to make territorial changes more
gentle and less disruptive to Europe.
4 F. H. Hinsley, Power and the Pursuit of Peace: Theory and Practice in the History of
Relations between States (Cambridge: Cambridge University Press, 1963), 196.
5 Ibid., 189-90.
6 G. L. Ulmen, "American Imperialism and International Law: Carl Schmitt on the US
in World Affairs," Telos 72 (1987), 43-73, and George Schwab, "Enemy or Foe: A
Conflict of Modern Politics," Telos 72 (1987), 194-201.
7 Quoted in G. L. Ulmen, "Return of the Foe," Telos 72 (1987), 189.
United States Aterritorial International Logic 439

This conception of the state was supported by a number of opera-

tional props, which, when used together, underscored and strengthened
the interdependent nature of the European state and community. For
instance, European statesmen altered international law (a mature ius
publicum Europaeum) to recognize states' legitimate right to wage polit-
ical warfare. By conferring on each state a monopoly of decision in
matters relating to its external environment, that is, the right to make the
political determination that could lead to legitimate warfare, interna-
tional law curtailed the earlier tendency to criminalize opponents. In an
emerging context where each state recognized all others as equal, espe-
cially in their claims to existence, and where recourse to political war-
fare was acceptable, it was unnecessary for a state to annihilate com-
pletely an opponent whose own political and coercive conduct was also
motivated by the awareness that the state's very existence was contin-
gent on the preservation of social norms.8 Thus, diplomacy became a
second device to support both European states and society. In time,
diplomacy became a highly formalized and effective vehicle that
epitomized the genius of the European compromise by simultaneously
allowing territorial changes while preventing the destruction of states.
Lastly, great powers were expected to, and often did, arrive at solutions
to political problems in a concerted manner. That is why thinkers like
Bluntschli could advocate the exemption of some great-power matters,
like war and peace, from the strictures of international organization.
The European solution presupposed the special character of
Europe, where all within the community were to be preserved and
extra-European areas were to be appropriated and apportioned so as to
sustain the former. European states were premised upon a type of
inequality that distinguished them from all others-not by their Chris-
tian character, but by their collaboration in finding and perpetuating a
post-medieval solution to a specifically European problem pertaining
mainly to the interrelationship between conceptions of warfare and
territorial appropriations. European society, European states and all the
instrumentalities of European interstate relations were postulated on a
distinct set of historically shaped concepts, grew interdependent in time
and in practice, and were based, fatally as it happens, upon a fixation for
the territorial integrity of European society's constituent members.
The assumption that the preservation of the territorial state was all
that constituted the substance of the European state system, or society,
is wrong and serves only to obfuscate the intellectual accomplishment
peculiar to European states, and indeed carried by them in all their
common affairs for almost a century. Likewise, to equate the nature of
states of Europe's yesteryear with those of today is to have misun-
derstood the veritable accomplishment that occurred in Europe. Thus,
8 Ulmen, "American Imperialism," 65
440 STEWART SUTLEY

current discussions of diplomacy, international law and war that fail to

acknowledge the historically situated and therefore limited nature of the
European achievement are anachronistic, imputing dated standards to
the present character of diplomacy, law and war. A discussion of these
three aspects of the US invasion of Panama, as well as a focus on the
aterritorial bases for US actions, indicates the inadequacy of applying
these standards when searching for explanations for Washington's
activities on the world stage.

Operation Just Cause and "Historic Times"

The existing analyses of the 1989 invasion of Panama are curiously
divorced from the actual event, from the US attitude to territory
reflected in the incident and from the historically based policies pursued
by Washington. Some political analysts view the invasion as a mere
moment in the temporally larger saga of a fitful and crudely militaristic
American imperialism besieging the Western h e m i ~ p h e r e .For
~ most,
the importance of the invasion barely registered because of the enor-
mous strategic and ideological sea-change sweeping Eastern Europe and
the world. For their part, international lawyers have been quick to
condemn the US by means of a strict interpretation of law inspired by
the accomplishments of European states in the previous century.1
Thus, conventional barriers, whether legal, time-bound (as in the Cold
War orientation), or geographical have obscured the interpretation of
exactly what Washington sought to achieve with Operation Just Cause.
There are, therefore, two ways in which to perceive the invasion:
negatively, by delineating the legal contraventions the Americans com-
mitted, and positively, by focussing on territory and showing how these
transgressions attest to a distinctly U S aterritorial international logic.
Viewed negatively, the violations of international law committed by
the US from 1987 to 1990 are discernibly consistent: they all weaken the
concept of a "political state," a state exercising ultimate authority over
its identity and territory. First, the autonomy accorded to the h n a m a -
nian state by virtue of the principle of non-intervention was an early
victim of American sanctions initiated in 1987. Second, the US did not
observe the principle of recognition, which seeks to preserve whatever
9 Richard L. Millett, "The Aftermath of Intervention: Panama 1990," Journal of
Interamerican Studies and World Affairs 32 (1990), 1-15, and Charles Maechling, Jr.,
"Washington's Illegal Invasion," Foreign Policy 79 (1990), 113-31.
10 Ved P. Nanda, "The Validity of United States Intervention in Panama under Interna-
tional Law," American Journal of International Law 84 (1990), 494-503, and Tom J .
Farer, "Panama: Beyond the Charter Paradigm," American Journal of International
Law 84 (1990), 503-15. An opposi~~g view appears in Anthony D'Amato, "The
Invasion of Panama Was a Lawful Response to Tyranny," American Journal of
International Law 84 (1990), 516-24.
United States Aterritorial International Logic 44 1

domestic identity comes to prevail within a state. This occurred despite

the fact that Panama passed the two tests, effective control and ability to
meet international obligations, that determine whether or not a govern-
ment within a state is internationally recognizable. In early 1988, Presi-
dent Eric Delvalle was replaced by Manuel Solis Palma, and, although
this replacement was accomplished at the instigation of, and militarily
supported by, General Manuel Noriega in his capacity as chief of the
Panama Defence Forces, it did not invalidate the international recogni-
tion that the latter government enjoyed. The United States chose to
disregard other states' recognition of the Palma government's legitimacy
and viewed all Panamanian government actions after March 1988 as
illegitimate, that is, as departures from Panamanian "popular sover-
eignty." Third, the Americans contravened the principle of immunity,
which flows logically from the notion of recognition and whereby lead-
ing state actors enjoy the privileges of respect due to them in instances of
war. During the course of Operation Just Cause, the United States
ill-treated Noriega (through his incarceration) in spite of the precise
guidelines of the Geneva Convention on Prisoners of War (1949). Diplo-
matic immunity (in this case Nicaraguan), as safeguarded in the Havana
Convention on Diplomatic Officers of 1928, was also violated.ll Fourth,
the US seemed to violate its own treaty commitments. It interpreted the
terms of the 1977 Panama Canal Treaty and the Treaty Concerning the
Permanent Neutrality and Operation of the Panama Canal so as to effect
control over Panamanian territory without actually appropriating it. In
particular, the Americans rather liberally interpreted the reasonable
limits permitted them in the latter treaty for defence of the Panama
Canal.12 "U.S. military representatives," Panama argued before the
OAS, "have claimed the allegedly absolute right to unlimited and unre-
stricted movement throughout the national territory of the Republic of
Panama. . . conferring occupation rights equivalent to those of a con-
quering army in a conquered land."13
The latter Treaty also granted Panama the right to nominate, and the
United States the duty to accept, a Panamanian national to head the
Panama Canal Commission (PCC) from January 1, 1990. Indeed,
Panama reported to the OAS on August 29, 1989, that its Legislative
Assembly had appointed Tomas Duque to this position.14Nevertheless,
in officially recounting the dispute with Noriega, the US State Depart-
11 See the OAS, Permanent Council (OEA1Ser.G CPlINF.2940190) January 2, 1990,
(0EAlSer.G CPlINF.2946190) January 5 , 1990 and (0EAlSer.G CPIRES. 536
[802/90]) January 8, 1990.
12 Cited in Nanda, "The Validity," 501.
13 OAS, Meeting of Consultation of Ministers of Foreign Affairs (OEA/Ser.F/II.21
Doc.24/89), June 2, 1989, 9.
14 OAS, Meeting of Consultation of Ministers of Foreign Affairs (OEA/Ser.F/II.21
Doc.61/89), August 29, 1989.
442 STEWART SUTLEY

ment asserted in August 1990 that "the absence of a legitimate govern-

ment prevented Panama from nominating a Panamanian citizen for
appointment."15 In this instance, the United States rejected what was
unequivocally Panama's monopoly on decision, and this denial of
Panama's state sovereignty constituted a fifth contravention of law.
This set of transgressions against both the letter and spirit of inter-
national conduct is significant not merely for its comprehensiveness, but
also for the discernably aterritorial conceptual thread linking each viola-
tion. The successive breaches of state conduct enacted by the US
indicate a steady narrowing of focus on the political apparatus and
leadership of the Panamanian state. What began as economic pressure
on, and non-recognition of, the Noriega-backed Palma government
became the incarceration of Noriega himself. This process had the
concomitant effect of neatly cleaving the leadership's claim of authority
from the territorial base upon which it was founded. In short, the
legitimacy of the Panamanian leadership's claims over Panamanian terri-
tory was completely ignored by Washington.
An analysis that focusses on the fact that the US sought to surpass
territorial questions during the conflict and subsequent invasion of
Panama forges the connection with the positive aspects of the affair.
Clearly, the US was not interested in securing all or even some Panama-
nian territory, and Operation Just Cause was distinctly not about the
control of territory. The series of American violations of international
conventions engenders the misleading notion that the US acted like any
other state in conflict with (and usually over the territory of) another
state. The US did not seek control of Panamanian territory; Washington
sought control over Panamanian territory. To distinguish subtly between
"of" and "over" helps overcome the conventional condemnation of the
US, a condemnation which is premised on an obsolete, normative code
of law and a conception of the generic state derived from realism and its
variants, and the explanation of the evolving United States' aterritorial
international logic of interstate relations.
Viewed positively, the economic nature of the struggle against
Noriega, the breadth of the rationalization of Operation Just Cause, and
the historical regard in which Washington framed the whole affair, speak
to an attempt by the US to act on, and advance, an aterritorial logic of
interstate relations. The starting point in the American campaign against
Panama was to exert economic pressure, and the choice to adopt eco-
nomic, as opposed to physically coercive, measures from the outset is
significant. At a practical level, the use of a variety of economic sanc-
tions was an effort to employ the condition of economic interdepend-
ence as a political weapon. As a political and normative act, moreover,
15 US, Department of State, Panama and the Canal Treaties: The Second Decude, Gist
series (August 1990).
United States Aterritorial International Logic 443

the initiation of economic war against Panama was ultimately designed

to lead Panamanians to believe in the separateness of the people and
their government. This form of warfare, in which combatants and civil-
ians are initially indistinguishable, progressively imposes the categorical
difference between the people and their leaders as the former suffer.
Together, the practical and normative dimensions of the choice for
economic sanctions amount to a distinct departure from the highly
formalized protocol of territorial warfare between states that legists
would predict and realists would expect.
Thus, President Ronald Reagan's Executive Order No. 12635 of
April 8, 1988,16which enacted wide-ranging measures against the eco-
nomic and financial well-being of the Panamanian leadership, was
intended to effect the simultaneous erosion of the Noriega regime and
the enhancement of the Panamanian people's long-term interests. The
foregoing document and changes made through time to the basket of
sanctions adopted therein succinctly illustrate this choice and the ater-
ritorial priorities of US international logic. To trace this argument, we
may consider two factors: the timing of the Order and its contents, and
the deliberate exclusions and alterations effected to the sanctions as the
struggle with Panama evolved.
Throughout the conflict with Panama, the United States applied
economic pressure in accordance with its reading of Panamanian popu-
lar sentiment toward Noriega. Thus, sanctions either followed quickly
in the wake of mass expressions of anti-Noriega sentiment, or were
designed to accompany and sustain upsurges of popular opposition. In
June 1987, when allegations were made about Noriega's connections to
narcotics traffickers and his involvement in political killings, Panama-
nians demonstrated, and Washington then acted. The US saw an oppor-
tunity to straiten the Noriega regime, which was already in poor finan-
cial shape in June, by suspending economic and military aid in August
1987. Thereafter, Washington made piecemeal efforts to augment the
pressure on Noriega by linking US assistance to political and human
rights (in December 1987),eliminating Panama's annual sugar quota and
linking its reinstatement to guarantees of due progress for Panamanian
citizens (in December 1987) and withdrawing preferential tariff treat-
ment for Panama until there was genuine co-operation in combatting the
narcotics trade (in March 1988).I7
President Delvalle renewed efforts on February 25, 1988, to oust
Noriega, but his failure to do so led to his own "impeachment" the
following day and his eventual flight from Panama. Again, actions taken
16 U S , President, Executive Order, "Prohibiting Certain Transactions With Respect to
Panama," Federal Register 53, no. 70, April 12, 1988, 12134-35.
17 U S , President, "Proclamation 5779," Public Papers of rhe Presidents of the United
Stares (Washington, DC: United States Government Printing Office, 1990), Ronald
Reagan, 1988, Book I, 373.
444 STEWART SUTLEY

by indignant Panamanians, including labour strikes and the hoarding of

foreign currency, precipitated a crisis in the economy. On March 4,
Panama's National Banking Commission "announced the indefinite
suspension of both domestic and international banking operation^."'^ A
shortage of money was a consequence of Delvalle's strategy to oppose
Noriega, and was itself contingent on continued US recognition of the
former's claim to legitimate power. Further, Delvalle requested and
received Washington's support in withholding payments from the
Panama Canal Commission, as well as taxes due at the end of the month.
Spurred in this way by Delvalle's strategy, and given the growing eco-
nomic chaos in the Panamanian economy, the rationale for Executive
Order 12635 crystallized.
The Order was timed precisely to deliver simultaneous economic
and political blows against Noriega. The liquidity crisis that Delvalle had
intensified caused more popular demonstrations against Noriega. Then,
on March 16, there was an attempted coup against the general, and five
days later his regime, after failing to pay its employees, faced a general
strike. The US intervened on April 8 with economic measures designed
as much to destroy the Panamanian regime as to support the upsurge of
popular resentment. The timing of the Order thus neatly coincided with
Noriega's point of maximum weakness.
In acting in this way against Panama, Washington's atenitorial
priorities were embodied in two respects. With regard to its timing, the
Order implied that confidence in the power of the Panamanian people,
and not territorial violations, was the decisive factor in removing
Noriega. At one level, then, economic sanctions became a cover for
political ends. At a second and deeper level the choice of measures
actually applied reflected an interesting political choice. Order 12635
was decidedly different from other and earlier sanctions the US has
brought against its adversaries. Notwithstanding Panama's claim that
"unprecedented" measures of a-form"hitherto never employed [by the
US government] against [even] its most formidable foes" were
adopted,lg and despite charges that the sanctions included measures
directed against the well-being of individual P a n a m a n i a n ~Washington
,~~
did not use the most lethal components of its economic armoury. Lom-
bard has demonstrated that, in contrast to the treatment of Iran, Libya
and Nicaragua, the US moderated its stance vis-a-vis Panama. Whereas
in the previous three cases enforcement measures were wide in scope
and included trade and travel restrictions, Order 12635 excluded these
items. Indeed, the range of sanctions permitted was deliberately kept
18 Joseph C. Lombard, "The Survival of Noriega: Lessons from the U . S . Sanctions
Against Panama," Stanford Journal of International Law 26 (1989), 278.
19 OAS, Permanent Council (0EAlSer.G CP/INF.2876/89), September 8, 1989.
20 OAS, Meeting of Consultation of Ministers of Foreign Affairs (OEA/Ser.F/II.21
Doc.24/89), June 2, 1989, 12-13.
United States Aterritorial International Logic 445

small. It appears that Washington assumed the timing of the Order

would be sufficient to push Noriega immediately from power. Thus, the
US was content to limit itself to blocking all Panamanian property and
interests, and prohibiting direct and indirect payments or transfers from
the US or by US citizens in Panama. Lombard has stated that
the early measures taken to deny Noriega access to Panamanian government
accounts. . . created pressure that was indeed well timed, sudden and concen-
trated. . . . As a practical matter, these early measures could not have been much
broader or more comprehensive in the short term. Once Noriega survived the
initial jolt, though, the financial controls, specifically the prohibition of pay-
ments to the Noriega regime, were largely irrelevant to Noriega's financial
situation.21

Noriega did survive this situation; however, the fact that the timing of
the Order was not enough to displace him does not vitiate the argument
that Washington was keen on proceeding against him in an aterritorial
manner even after April 1988.
The measures excluded from the Order and the exemptions it per-
mitted between April 1988 and December 1989 reaffirm evidence of an
aterritorial logic. Interbank clearing payments, for example, were
excluded from the outset. The decision to keep this instrument off the
list of sanctions is quite significant given that Panama's banking sector
serves as a major regional clearinghouse for transactions between the
US and Latin America. To damage that sector would seemingly be to
attack Panama's most vulnerable point. It is revealing, therefore, that
the regulations of Reagan's Executive Order were not to "be deemed to
prohibit interbank clearing payments." Caught between its distaste for
Noriega and its longer-term interest in the economic productivity of the
Panamanian economy and the role of American business there, Wash-
ington held back on destroying the livelihoods of the Panamanian peo-
ple.
In developments subsequent to the promulgation of the Executive
Order, Washington modified the sanctions to reflect its dual concern for
the welfare of the Panamanian people and the health of US business
interests in the region. Between April 1988 and December 1989, 46
exemptions of various types were granted with respect to the sanctions.
On the occasion of the first modification to the Panamanian Transac-
tion Regulations, Deputy Assistant Secretary of State Michael Kozak
plainly asserted that "we continue to adjust the IEEPA proclamation in
an effort to lessen the impact upon Panamanian citizens, while avoiding
any benefit to the regime."22 Thus, on June 15, 1988, the payment of
21 Lombard, "Survival of Noriega," 272.
22 US, Congress, House, The Political Situation in Panama and Options for U . S . Policy,
1988: Hearing Before the Subcomm. on Western Hemisphere Affairs of the House
C o m m . on Foreign Affairs, 100th Cong., 2d Sess., p. 127, cited in ibid., 288.
446 STEWART SUTLEY

social security taxes related to health, maternity and retirement benefits

was authorized. On August 24,1988, and September 27, 1988, business-
related payments pertaining to port fees, import fees and information-
gathering costs were exempted. Lastly, a licensing procedure was
created whereby US businesses and persons could circumvent the pay-
ment procedures originally outlined in the Order. By virtue of what was
included in Executive Order 12635, excluded, and through time
exempted, we can conclude that the method behind the US rationale
"gave a concrete manifestation to an image the administration very
much wanted to foster: the United States as a partner of the Panamanian
people. "23
Another example of the aterritorial dimension of Washington's
international logic was the nature of the official rationalization that
Operation Just Cause received. The American position was perhaps best
elucidated in President George Bush's letter of December 21, 1989, to
Congress. Here, Bush laid out a framework of "legal principles" for the
determination of America's "just cause."24 While only two of the four
principles (relating to the safety of Americans and treaty rights) "find
support in precedent and the language of treaties,"25 there was no
reluctance on Bush's part to label them all as "legal." That some
international lawyers simply and directly concluded that the American
actions were unlawful, or at least enacted with utter disregard for
international law, may be irrelevant. What Washington really accom-
plished, and what its representatives readily argued in public interna-
tional forums, was political, not legal, in nature.
Clearly, throughout the conflict Washington envisioned more than a
"splendid little war,"26 and this is quite apparent in Bush's claims to be
defending democracy and combatting drug trafficking. The intrusion
into Nicaraguan diplomatic facilities, the musical bombardment of the
Papal Nuncio, and the indignities inflicted on Noriega during the Opera-
tion, in addition to the previous years of economic pressure, amount to a
calculated subversion of international conventions. By Washington's
thinking, it appears that the territorially centred rights of states will
come to be supplanted by those pivoting on popular sovereignty. Thus,
the real source of America's "just cause" is political, perhaps even
moral, in nature: the self-appointed right to determine the content of
popular sovereignty and economic well-being. America did not claim
any right to Panamanian territory, but rather the right to speak for
Panamanians and thereby obtain control over Panamanian territory.
Arguing and effecting the political legitimacy of a "just cause," unen-
23 Lombard, "Survival of Noriega," 293.
24 Marian Nash Leich, "Contemporary Practice of the United States Relating to Inter-
national Law," American Journal of Internufional Law 84 (1990), 545-49.
25 Maechling, "Illegal Invasion," 124.
26 Farer, "Beyond the Charter," 514.
United States Aterritorial International Logic 447

cumbered as it is by territorial considerations, is a "precedent. . . not

easily c~ntained."~'
Accompanying the official US faith in popular sovereignty was a
marked tendency to associate it and the Operation with the perceived,
irresistible flow of history. Here, American representatives took the
unfolding lessons of Eastern Europe as their starting point. "Ours is a
remarkable, a creative time," US Secretary Lawrence Eagleburger
argued before the Organization of American States, "a time when peo-
ple who for too long suffered the degradation of totalitarianism, took
back into their own hands the right to determine their own futures."28
OAS Representative Luigi Einaudi identified global aspirations and
America's part in their realization:
Today, we are. . . living in historic times, a time when a great principle is
spreading across the world like wild fire. That principle. . . is the revolutionary
idea that the people, not governments, are sovereign. . . it is an idea which has,
in this decade, and especially in this historic year-1989-acquired the force of
historical necessity.
Democracy today is synonymous with legitimacy the world over; it is, in
short. the universal value of our time.2g

To Washington, the execution of Just Cause was a necessary prelude to

removing a major obstacle to subsequent prosperity. Accordingly, the
destructive aspect of the conflict was to diminish further the sway of a
dictatorship and the realm of oppression. Further, the constructive
dimension was the ensuing peace itself, which invariably demanded that
"Countries. . . must be open and outward-oriented, ready to engage
effectively with the rest of the world-in trade and commerce and, more
generally, in affairs across the board. . . . Our common democratic orien-
tation provides an opportunity, indeed creates an obligation, to move
from consensus to action, from high aspirations to practical meas-
ure~.''~~
The values stressed in these statements-idealistic, heroic and lim-
itless in their nature and application-are strikingly "liberated" from the
other considerations of territory and territorial sovereignty. Indeed,
both territory and territorial considerations are implicitly seen as restric-
tive in the American way of thinking. In this connection, the assertions
US representatives made both before and after Operation Just Cause,
and the more tangible economic and military pressures brought to bear
upon Noriega, are not separate or separately rationalized. Rather the
practical and ideational aspects of the campaign against Panama
27 Ibid., 509.

28 US, Department of State, The OAS and the Crisis itr Parrcltt~rr.Current Policy

No. 1205 (August 1989).

29 US, Department of State, Panama: A Just Cause, Current Policy No. 1240 (1989).
30 US, Department of State, Human Rights Problems in a Drttloc,rrrtic Hrtt~isplrerr.
Public Information Series (July 1990).
448 STEWART SUTLEY

together constitute an example of an aterritorial logic that addresses the

two fundamental issues of every system of interstate relations: the form
of warfare and the nature of peace. The sweeping claims of these
representatives remind us, however, of previous US rhetoric and a
defiant attitude toward a demonstrably strong historical and intellectual
tradition of safeguarding territorial sovereignty. That I impute so much
significance to Operation Just Cause, an event seemingly ill-qualified as
a demonstration of a "force of historical necessity," may, therefore,
lead one to question the claim of historical validity for America's ration-
ale. To demonstrate that this claim has some basis, the historical condi-
tions that were conducive to, and helped to consolidate, the United
States' distinctly aterritorial international logic will now be outlined.

The Supersession of Territorial Questions: Practical Idealism and

American Imperialism in the Western Hemisphere
In the sweep of modern history, the United States, unlike all earlier great
powers, with the partial exception of Great Britain, has pursued an
aterritorial agenda. That is not to say that the US is less imperialistic
than previous great powers. In fact, its pursuit through time of increas-
ingly global policies indicates the widening scope of its ambitions. Yet,
far from considering the appropriation of territory per se, the US has
consciously aspired to move the common affairs of humankind beyond
questions of territory, beyond territorial politics. Herein, the key to
understanding US imperialism lies with the often dismissed distinction
that Americans themselves have drawn between politics and economics.
The political distinction between economics or commerce and politics
first drawn by President George Washington was not, however, a pecul-
iarly American attitude, and it is for this reason that the US has been so
successful in expanding its world role. Just as certain territorially and
militarily related problems gave rise to a unique and collective political
solution to territorial questions in Europe, common conditions gave rise
to distinctive (that is, non-European) solutions in the Americas. The
independence of the American republics and the growth of their comity
was conducive to the supersession of territorial considerations.
Moreover, the United States' emphasis on economic production at
home and abroad, animated by its own territorial aggrandizement and
coupled with growing moralism, produced a discretely aterritorial logic
by the turn of the nineteenth century.
Alvarez has asserted that the "common origin and interests"
encompassed by the republicanism of the Latin American states in the
nineteenth century meant that "they could come to a general under-
standing regarding many matters which could not be accepted by the
world in general."31 This relationship placed the affairs of the Americas
31 Alejandro Alvarez, "Latin America and International Law," American Journal of
United States Aterritorial International Logic 449

on a historical trajectory different from that of Europe. A common

republican origin also bound the US to the Spanish-American states at
the very outset of their political existence. Thus, when President James
Monroe made his famous declaration in 1823 on the inviolable sovereign
equality of the new Latin states and the virtues of republicanism, he was,
in addition to expressing his anti-European sentiments, attempting to
catch up to the political ideas espoused by his southern confreres.
"Whether the famous message of 1823 had been written or not,"
Alvarez has declared,
the principles contained in it would always have been sustained in the New
World. In this sense. . . the Monroe Doctrine is neither doctrine nor of Monroe.
But that which constitutes its undeniable merit and makes it famous, is that
such an exact synthetic statement of the destinies of America should have been
given thus early in the period of emancipation, by a people whose increasing
power would not permit the rest of the world to regard that statement as merely
Utopian. It was this that enabled America, from the very beginning of indepen-
dent life, to give to its foreign policies a safe norm. . . . In this sense the Monroe
Doctrine is doctrine and is of Monroe.32

By ideals and circumstance the Latins and the people of the United
States began to forge a hemispheric order, a geographically delimited
interstate system.
In this endeavour, the collective solution to territorial questions
played a significant and enduring role. At the very outset of their
newly-proclaimed independence, the Latin states sought to overcome
their vulnerability in a world order that was avowedly anti-republican.
First, they aimed to dispense with territorial questions among them-
selves by replacing the notion of res nullius with a greatly modified
version of the utipossidetis doctrine.33Prior to Latin independence, the
prevailing notion in international law characterized New World territory
as res nullius, that is, effectively unowned for want of exploration.
Given that large parts of the New World remained unexplored and
unmapped even on the eve of Latin independence, the potential for
disputes among the new states was great. Remarkably, the Spanish
American revolutionaries agreed among themselves to a new doctrine
that would by-pass such conflicts by its very reciprocity. With the
agreement on the administrative boundaries of the Spanish empire as of
1810,34the essence of the colonial uti possidetis doctrine, the problems
Internritional Law 3 (1909), 303; see also by the same author. "The New International
Law," Transactions of the Groti~tsSociety 15 (1929), 35-51: "Le developpement du
Droit des Gens dans le Nouveau-Monde," Transactions o f tile Grotirrs Society 25
(1939), 169-84; and Le Droit Internationale Nornfeorc (Paris: Rdone, 1959).
32 Ibid., 311-12
33 See Eduardo Jimenez de Arechaga, "Boundaries in Latin America: uti possidetis
Doctrine," Encyclopedia of Public International L a w , Vol. 6, 45-49.
34 The borders agreed upon were those delimited by the previous viceroyalties,
450 STEWART SUTLEY

of territorial appropriation and distribution were immediately

addressed. By 1824, therefore, mutual assent to this doctrine brought
common relief and security to the American republics, at least for the
time being.
The initial success in setting territorial matters aside gave the
Spanish Americans an opportunity to create a comity of American
states. In this respect, a second dimension of their aterritorial vision was
expressed in an ebullient moralism governing inter-Latin affairs.
Informed by the thoughts of Vitoria and Suarez, early Latin leaders
made pronouncements that reflected a concern for a new Law of Na-
tions "based upon a Natural Law of rights and obligations applying to all
men e ~ e r y w h e r e . " Juan
~ ~ de Egana's "Project for a Declaration of
Rights of the People of Chile" (1810) and Bolivar's "Letter from
Jamaica" (1815) unmistakably heralded a morally infused, even
judgmental, point of departure in interstate affairs. Setting themselves
against the principles of European balance-of-power politics, Egana and
Bolivar helped to found a vital strand of political and legalistic thought in
Latin American affairs; one survey of Latin American legal thinkers
found the philosophical concerns of Vitoria and Suarez to be enduring,
although fading, considerations in recent works of this century.36
The peculiarly "American" disposition toward territory and the
imperative to act morally fostered an intensely legalistic political culture
among the Latins during the nineteenth century.37 This morally and
juridically premised aterritorial vision manifested itself both in activ-
ities designed to prevent wars and in schemes that followed in the wake
of wars. The first major international event in which an aterritorial logic
came into play was Bolivar's 1826 call for a confederacy of American
states. This notion, which was without precedent in European diplo-
m a ~ reaffirmed
~ , ~ ~the penchant to resist tempting but troublesome
territorial questions. Likewise, Mexican initiatives in 1831, 1838 and
1840 aspired to fulfil this elusive.goa1. Despite the failure of the Mexican
schemes, such momentary setbacks were quickly overcome by ever
more ambitious logical extensions of aterritorial thinking. For instance,
while the confederacy pact of 1826 limited its subscribing members to
certain forms of government, unusual for any international treaty of the

captaincies-general, audiencias, presidencias and provinces. The date selected for

the application of the uti possidetis doctrine in Central America was 1821.
35 Frank GrifYith Dawson, "Contributions of Lesser Developed Nations to International
Law: The Latin American Experience," Case Western Reserve Journal of Interna-
tional Law 13 (1981), 42.
36 H. B. Jacobini, A Study of the Philosophy of International Law as Seen in Works of
Latin American Writers (The Hague: Martinus Nijhoff, 1954).
37 C. Neale Ronning, Law and Politics in Inter-American Diplomacy (New York: Wiley,
1%3), 3.
38 Alvarez, "Latin America," 276.
United States Aterritorial International Logic 45 1

time, the 1856 "Treaty of Union of the American States" and the 1865
"Union of Defensive Alliance" went so far as to deny their signatories
the right to part with any attribute of their sovereignty, including their
territory.39 Further, in the 1859 "Treaty of Alliance" linking Brazil,
Argentina and Uruguay, the former two states committed themselves to
the perpetual defence of the latter's republican form of government.
Generally speaking, in the first decades of Latin independence natural
growth occurred in the assumptions about territory and proper state
conduct; the pattern of territorial distribution, when not "unnaturally"
disturbed by war, came to be regarded as sacrosanct.
Even when faced with the unnatural conditions of warfare over
territory, in post-bellum periods the Latins fashioned further extensions
of their aterritorial thinking. Thus, while the history of Latin America
affords many examples of territorially related wars, it also recorded
many efforts to solve realistically, even supersede, the territorial con-
cerns that caused these wars.40Illustrative of this persistent strain was
the outcome of the two Cisplatine Wars between Argentina and Brazil
(1825-1828 and 1839-1852). These saw the creation of Uruguay and a
perpetual guarantee, on the part of the two belligerents, to its territorial
and governmental defence by means of the 1859 tri-partite treaty noted
above.41The results of the Wars of the Pacific furnish an example of how
to act practically on the philosophical values of rational thought and
people's own preferences: arbitration and plebiscites became the instru-
ments of aterritorial thinking. Following the First War of the Pacific
(1839-1841) between Chile and the Peruvian-Bolivian Confederation,
which resulted in the destruction of the Confederation, a second War of
the Pacific (1879-1883) was fought. Chile emerged victorious in this
second conflict and seized two Peruvian provinces. The eventual out-
come partially reversed the Chilean conquest by returning Tacna to Peru
through the instruments of plebiscite and arbitration. Indeed, during this
time, only the effects of the War of the Triple Alliance (1865-1870) were
not mitigated by applications of aterritorial thinking: Paraguay lost vast
expanses of territory to Argentina and Brazil.
While the Latins endeavoured to fashion and refashion (after wars)
an identifiably American state system during the early to mid-1800s, a
distinct, but not separate, process of growth in aterritorial thinking was
occurring in the United States. Although the US had been ideologically
linked with the Latin republics since their beginning, it struck out on
new conceptual terrain by stressing the virtues of commerce in its

39 Ibid., 284 and 287.

40 See Waldemar Hummer, "Boundary Disputes in Latin America," Encyclopedia of
Public International Law, Vol. 6, 60-66.
41 The outstanding controversy over the Misiones region was resolved by an 1895
arbitral award of US President Cleveland.
452 STEWART SUTLEY

dealings with the other new states. For more than half a century,
between the promulgation of the Monroe Doctrine and the first Pan-
American conference in 1889-1890, the US refrained from overtly co-
opting or leading the Latins. Eventually, the force of growing US power
compelled greater co-operation. The prospects for closer relations were
facilitated by an intense and shared US-Latin moralism about the Euro-
pean threat of territorial appropriations in the Western hemisphere. The
creation of a meaningful Pan-American forum, however, probably could
not have occurred in the absence of two preconditions in the hemi-
spheric position of the US: its peculiar success in securing territory and
control over others' territory, and its unbridled determination to expand
its commerce.
The very process of US territorial aggrandizement is illustrative of
America's peculiar disposition to view territory as a commodity, as an
aspect of "commerce," rather than "politics." The US has purchased
more of its territory than any other great power in modern history,
perhaps in all of history. The Louisiana Purchase (1803), Florida Pur-
chase (18 19) and Alaska Purchase (1867), as well as the acquisition of the
Philippines (1898), the Sulu Islands (1900) and the Danish West Indies
(1917) comprise a long series of financial deals. Even the earliest and
most egregious example of American imperialism, the war with Mexico
that saw one-third of Mexican territory ceded to the US, possesses an
economic-financial rationalization. In American thinking, the Mexi-
can's failure in 1835 to sell the port of San Francisco was grounds for
action; when Mexican territory was yielded, Americans brushed off
their actions by asserting that "although we might have claimed them by
right of conquest in a just war. . . we purchased them for what was then
considered by both parties a full and ample e q ~ i v a l e n t . "Not
~ ~ surpris-
ingly, in subsequent alterations to its border with Mexico, the US
arranged an additional purchase (the 1853 Gadsden Purchase) to ease the
construction of a railroad to California.
While the linkage between American interests and territory was
rationalized through a "pay-as-you-take" logic in the few instances of
US territorial appropriation, in the more frequent instances of control
over others' territory, a "profit-as-if-you-possess" logic was in opera-
tion. Here, the 1846 "Treaty of Peace, Amity, Navigation and Com-
merce" between the US and New Granada (Columbia) exemplifies this
line of thinking. In pursuing the agreement the US was motivated by its
long-standing interest in building a trans-isthmusian canal and the eco-
nomic prospects that the success of this project offered with regard to
access to the Pacific Ocean. Accordingly, in the Treaty's 35th article, a
slice of territory was subject to extraordinary reciprocal guarantees:
42 US, Congress, House, The Ostend Conference, Executive Document No. 93, 33d
Cong., 2d sess., 1854-1855, 131.
United States Aterritorial International Logic 453

New Granada would guarantee the US and its citizens a free and open
right of way across the Isthmus of Panama, while the US would guaran-
tee the territory's "perfect neutrality" and New Granada's "rights of
sovereignty and property."43 New Granadian Secretary of Foreign
Relations Manuel Mallarino was anxious to convince the US Senate
of the merits of this article and secretly stated its ~ i g n i f i c a n c eHe
. ~ ~took
the threat of ascending British maritime and mercantile power in Latin
America as his point of departure: "if the usurpation of the Isthmus in its
channelizable portion should be added to [British] encroachments [in
the River Plate, the Orinoco River, and the Mosquito Coast], the empire
of the American seas, in its strictly useful or mercantile sense, would fall
into the hands of the only nation that the United States can consider as a
badly disposed rival." "The guaranty of territorial possession to be
given by the United States," Mallarino continued, "ought to be inciden-
tally introduced in treaties of commerce, as a part of, and subordinate to,
them." At most, according to Mallarino, ensuring the freedom of the
seas in this way would force the British to abandon their plans to
appropriate American territory; at the very least, British trade would
"suffer the damages consequent on the want of a participation in the
franchises that the United States would thus acquire." The New Grana-
dian offered the US the chance to strengthen "at the same time the
future freedom of the American seas and the mercantile advantages
which the United States must always enjoy on account of their proximity
to our markets." Not surprisingly, President James Polk's message to
the Senate invited its ratification of the Treaty, especially article 35,
because "we are more deeply and directly interested in the subject of [its
territorial] guarantee than New Granada herself or any other country.''45
Seemingly, only a state that possessed both the conceptual orientation of
aterritorial thinking, and power, could profit from others' territorial
possessions without appropriating them.
Battling British influence in Latin and Central America at the
mid-nineteenth century demanded commercial zeal and further exten-
sions in aterritorial thinking. On both scores, what the British prac-
tised, the US sought to perfect. In seeking to impose the American
commercially minded way of thinking, for instance, little could compare
with the uncompromising argument US representatives made in their
(futile) attempt to acquire Cuba from Spain. They reasoned that if the
43 US, Department of State, Treaties and Other International Agreetnents of the United
States of America, 1776-1949, Vol. 6 , "Peace, Amity, Navigation, and Commerce,"
879-80, by Charles I. Bevans (Washington, DC: U S Government Printing Office,
1971).
44 US, Department of State, Treaties and Other International Acts of the United States
of America, Vol. 5, "New Granada: 1846," 151-52, ed. by Hunter Miller (Washing-
ton, DC: United States Government Printing Office, 1937).
45 "New Granada: 1846," 157.
454 STEWART SUTLEY

Spanish declined the sum of $120 million for Cuba, then "by every law,
human and divine, we [Americans] shall be justified in wresting it from
Spain if we possess the power."46 The Gadsden Treaty of 1853 included
terms ostensibly designed to further US commercial interests in yet
another canal project; in reality the provisions were so liberal, they
could have allowed the exercise of virtual US sovereignty over the
Mexican land in question.
The US also sought to emulate the British by acquiring a naval
capacity. Naval power, the Americans quickly grasped, was a distinc-
tive form of aterritorial power. The United States recognized in the
"informal empire" of the British, the key to global control. This empire
was sustained by sea power and an uncompromising ideology of free
trade that placed the world's oceans in the service of British interest^.^'
What the British had begun, the Americans attempted to bring to frui-
tion. Unlike its adversaries, however, the US was not constrained by the
need to compete with other European powers in scrambles for territory.
Far freer in this connection, the United States could focus its attention
on turning seemingly minor territorial (usually insular) possessions into
springboards for global power. Throughout the second half of the
nineteenth century, therefore, US diplomacy was characterized by "an
emphasis on recognition, on neutrality, on virtually every aspect of
maritime war. "48The~e newly embraced extensions in aterritorial think-
ing were realized in a spate of annexations at the close of the century:
Hawaii, Guam and Puerto Rico (all in 1898) and Samoa (1899). By
controlling these islands, and consequently the seas or oceans around
them, the United States began to position itself so as to have effective
control over the hemisphere and, tentatively, portions of the Pacific. By
logical extension, therefore, the completion of the Panama Canal in 1914
marked a quantum leap in US global power and pretension: there now
existed a means by which Washington's navy could exercise timely
influence on the territorial affairs of the whole hemisphere and in the
Pacific. The US concerns for its commerce and the preservation of the
existing pattern of territorial distribution, in a republican hemisphere,
were thus tangibly expressed in the Panama Canal.
While the Latins shared in an expanding hemispheric aterritorial
logic, they were unenthusiastic about growing US power. Against the
backdrop of International American Conferences, they recognized that,
in forming a common moral position against continued European threats
to American territory, the Latins had given a dangerous and uncontrolla-
ble moral boost to US imperialism. At their first conference, the repub-
46 U S , Congress, The Ostend Conference, 131; see also Charles E. Hill, Leading
American Treaties (New York: AMS Press, 1922), 317.
47 Ulmen, "American Imperialism," 49-50 and 53-54.
48 Malbone W. Graham, American Diplomacy in the International Community (Balti-
more: Johns Hopkins Press, 1948), x.
United States Aterritorial International Logic 455

lics settled on a declaration "that the principle of conquest shall not. . .

be recognized as admissible under American public law."49 This state-
ment of moral disapproval was also intended for European audiences,
but in its subsequent policies and statements the US expressed the moral
duty of ensuring the inviolability of the New World. Thereafter, and
occasionally in conjunction with bursts of the Latins' own moral spir-
it,50 the US brandished its newly confirmed moral righteousness
throughout the Americas. Oftentimes, when the US inveighed in poten-
tial territorial difficulties, equal offence was given to the Latins and
Europeans. For instance, in the Venezuelan-British Guiana border dis-
pute of 1895-1896, Secretary of State Richard Olney brusquely asserted
that "to-day the United States is practically sovereign on this continent,
and its fiat is law upon the subjects to which it confines its interposi-
t i ~ n . " ~This
l very same moral sentiment was to find expression in the
resolution of the Spanish-American War (1898), the Roosevelt Corollary
(1904), sundry constitutional arrangements with Panama and Cuba that
ensured the US right to act in their "best interest," and the extension of
the Monroe Doctrine to Asian powers in 1912.52The spate of arbitrations
of territorial disputes in Central and Latin America at the turn of the
century gives further evidence of the widening influence of aterritorial
thinking. 53
In asserting hemispheric leadership by the beginning of the twen-
tieth century, the US had, in the words of one Latin observer, trans-
formed the Monroe Doctrine "successively from the defensive to inter-
vention and thence to the ~ f f e n s i v e . "In
~ ~so doing, the US had applied
its accumulated power, including its crucial naval component, while
availing itself of what must have seemed a felicitous moral attitude in the
hemisphere. Increasingly, as the new century wore on, the US began to
expand its aterritorial thinking beyond the nursery of the Western hemi-
sphere.

Conflictive Logics of Territory and State in the Twentieth Century

The twentieth century has been the battlefield of rival European and
American territorial logics. At the outset of the new century the Ameri-
49 Francis A. Boyle, "American Foreign Policy Toward International Law and Organi-
zations: 1898-1917," Loyola of Los Angeles International and Comparative Law
Journal 6 (1983), 294.
50 See Alejandro Alvarez, The Monroe Doctrine (New York: Oxford University Press,
1924), 18-19, and Dawson, "Contributions of Lesser Developed Nations," 48-54, for
discussions of salient moments in Latin diplomacy.
51 John Bassett Moore, The Principles ofAmerican Diplomacy (New York: Harper and
Brothers, 1905), 248.
52 Alvarez, Monroe Doctrine, 18.
53 See Hummer, "Boundary Disputes," 62-66.
54 F. Garcia Calderon, Latin America: Its Rise and Progress, trans. by Bernard Miall
456 STEWART SUTLEY

can states, empowered by increasing US power and assured by their

common moral stance against "aggression" and territorial appropri-
ations, were driven to resist the continuing practices of Europe's
imperialism. Not contentjust to stop such practices in the Americas, the
US and the Latins have carried their thinking into Europe and beyond.
During the course of the twentieth century their aterritorial logic
evolved from a defensive posture, "protected" and "isolated" within
the Western hemisphere, to a proactive one, first in the Old World and
then the "Free World." As the geographical spread of this logic oc-
curred, Latin American support for the process diminished as the US
increasingly asserted its own interpretations of world political situa-
tion~.~~
The Second Peace Conference at The Hague in 1907 recorded the
first instance of a resolution of the divergent European and American
attitudes toward territory on the international stage. The opportunity
to shift fundamentally the European perception of territory arose
because of attempts to coerce Venezuela to pay its debts. The task, in
short, was to compel the Europeans to accept the inviolability, or at least
the priority, of economic processes over exercises of coercion against
the territory of another state. To this end, the United States lobbied
successfully for the adoption of a "Convention Respecting the Limita-
tion of Employment of Force for the Recovery of Contract Debts" (the
Porter Convention). Accordingly, contracted debts were not to be
secured through armed force and recourse was to be made to arbitration
for the resolution of any conflicts. In contrast to the European norm,
then, the Convention "did not contain the usual reservations of vital
interests, honour, independence and the interests of third parties."56 In
fact, the record of arbitration to which it gave effect was phemomenally
successful, virtually ending a long-standing European practice. More
importantly, European states conceded ground to a competing notion of
international order that amounted to "an implicit recognition by all
signatories of the validity of the Monroe Do~trine."~'Hence, President
Washington's "great rule of conduct"-to extend commercial relations
but "to have with them as little political connection as possiblew-
became grounded in the Old World and the New World alike.
The First World War and its aftermath heralded the progressive
expansion of aterritorial thinking in world affairs. During the war, the
(London, 1913), 290, quoted in James Wilford Garner, American Foreign Policies
(New York: New York University Press, 1928), 118.
55 The Latins have increasingly focussed on state rights in relation to developmental
issues, but not without divergent views; see Dawson, "Contributions of Lesser
Developed Nations," 64-69, and F. V. Garcia-Amador, "Regional Cooperation and
Organization: American States," Encyclopedia oj'Puhlic Inrernational L a w , Vol. 6,
308-14.
56 Boyle, "American Foreign Policy," 263-64.
57 Ibid., 266.
United States Aterritorial International Logic 457

United States backed its self-righteousness and moral self-con-

sciousness with irresistible power. Hence, that conflict bore the
marks of earlier religiously-inspired wars in Europe, and the re-
introduction of the concept of foe at the behest of the US signalled the
exhaustion of the European territorial conception. In particular, the
notion of aggression, which was ascribed to the behaviour of the Central
Powers, was particularly damaging to the now-weakened conceptual
fabric of the European order. Aside from entailing an extremely harsh
form of economic warfare, the combat against aggression ensured a
peculiar form of peace--one reflecting a moralizing, aterritorial and
economically-minded conception of state relations. The much-
discussed war guilt clause that was imposed on Germany, for instance,
was only one example of similar treaty provisions concerning morality
that were thrust upon the defeated powers. In the previous century of
European warfare no place was accorded to such moral injunctions;
their inclusion in the treaties of 1919-1920 further weakened the dis-
tinctly European theory and practice of interstate relations.
Territorially, the logic of the victorious Americans was expressed in
the destruction of the German, Austro-Hungarian and Ottoman Empires.
A moral stance thus helped to pave the way for territorial re-
organization. The US, which long opposed the organization of territory
in the form of empires, helped to sponsor new states in their stead.
Territory, it held, was "an incident, not an end."58 The territorial diffi-
culties the new European states encountered in working out the finer
details of national self-determination as an end did not derogate from
President Woodrow Wilson's legacy: the establishment of new states in
all areas affected by the treaties of settlement. The very creation of new
and more states, in turn, diluted the earlier exclusivity of the European
club and its conception of statehood and interstate relations.
The conventional view of the inter-war period is that the United
States resumed its isolationist stance and left the stage of world politics.
It is apparent, however, that the logical strands of US thinking were
refined throughout the 1920s and 1930s, if not more widely applied.
Instead of "retreating," the US, together with its Latin allies, moved to
perfect and consolidate the gains they had made in the wake of the First
World War. During this period the Americans began to express, in law,
the priority of the needs of the community of states over those of its
constituent units by way of arbitration treaties, which narrowed the
number of matters subject to exclusive domestic jurisdiction and wid-
ened the number of internationally justiciable questions, and through
the Kellogg-Briand Pact (1928). Whereas before the Pact non-American
states could generally engage freely and at their own discretion in
warfare, afterward moral and quasi-legal injunctions deprived states of
58 The Lansing Papers, 11, 461-62, quoted in Graham, Atnericon Diploti~trc,.~,
166.
458 STEWART SUTLEY

the right, as an attribute of statehood, to warfare. Further, the Pact

augmented the international right, even obligation, to act against par-
ticular aggressors. The United States, as the leading proponent of this
interpretation, and as the possessor of the requisite, globally oriented
mental framework and accompanying naval power resources, would be
the greatest benefactor. As a moral and political undertaking, the Pact's
renunciation of war claimed one important remaining relic of the Euro-
pean conception of warfare: as the British observed at the time, "there
can be no neutral rights, because there can be no neutrals."59
The Kellogg-Briand Pact marked the apogee in the expansion of
aterritorial thinking on the world stage until the creation of the United
Nations. While the US stood aloof from the League of Nations, it "was
officially absent but effectively present, because many of those
[American] states which belonged to the League were either directly
dependent on or indirectly controlled by the US,"60 or shared strands of
its aterritorial logic. Moreover, the US was active in European affairs in
an economic sense by backing the Young Plan and the Dawes Plan. In
fact, it took the simultaneous assault on the postwar economic and
territorial orders in 1931 before aterritorial thinking receded from the
world stage. "On September 18th [1931], the very day-almost the very
hour--of the outbreak in Manchuria," US Secretary of State Henry
Stimson wrote, "I was receiving word from the British charge that Great
Britain could no longer maintain the gold standard. It seemed as though
from the Occident to the Orient, politically and economically, the world
was rocking. . . . If anyone had planned the Manchurian outbreak with a
view to freedom from interference from the rest of the world, his time
was well chosen. "61
While the geographical scope and practice of aterritorial thinking
shrunk after 1931, and even American states withdrew from the League
of Nations, a renaissance of this thinking occurred in the Western
hemisphere. Paradoxically, territorial disputes among American states
served as the catalyst to a period of remarkable growth in moral-juridical
co-operation. In the rapidly changing international arena of the early
1930s, Stimson's pronouncement against Japanese militarism hastened
the inter-American drive to check threats to the territorial order by
building upon earlier commitments to diminish territorial threats, such
as the Gondra Treaty (1923) and the General Treaties of Inter-American
Arbitration and Conciliation (1929). In 1932, in response to the outbreak
of war between Bolivia and Paraguay over the Gran Chaco, 19 American
59 Great Britain, Parliamentary Papers, Miscellaneous No. 12 (1929), Cmd. 3452, 10,
quoted in Robert Renbert Wilson, The International Law Standard in Treaties of the
United States (Cambridge: Harvard University Press, 1953), 228.
60 Ulmen, "American Imperialism," 60.
61 H. L. Stimson, The Far Eastern Crisis, 5-6, quoted in Graham, American Diplo-
macy, 232, n. 7.
United States Aterritorial International Logic 459

republics issued a declaration accepting the Stimson Doctrine on the

non-recognition of forceful territorial appropriations. Beginning in 1933,
the Leticia conflict between Columbia and Peru provided additional
pressure for concerted and effective action among the American states.
The culmination of these activities was the adoption of the "Good
Neighbor" policy by the US, and, subsequent to this act of good faith,
meaningful hemispheric co-operation that helped to end the territorial
disputes ensued. The Chaco War helped to produce the Anti-War Treaty
of Non-Aggression and Conciliation (1933), and, in its turn, the Monte-
video Conference (1933) adopted a convention of the rights and duties
of states that encompassed the previous decade's accomplishments
vis-a-vis conflict resolution. Confident in the deepening hemispheric
commitment to aterritorial thinking, the US abrogated the Platt Amend-
ment (1934), ended its protection of Panama and other American repub-
lics (1934-1935) and terminated privileges in Mexico conferred by the
Gadsden Treaty (1937). The spirit of hemispheric solidarity was
advanced at the 1936 Inter-American Peace Conference of Buenos Aires
and capped by the elaboration of hemisphere-wide collective security
principles at the 1939 8th Pan-American Congress at Lima. Finally, with
the outbreak of war in Europe, the American states announced in the
Panama Declaration (1939) that acts of war were prohibited by belliger-
ent non-American states in a neutral zone extending 300 miles around
the Americas (excluding Canada).
The quantitative and qualitative expansion of aterritorial thinking
that the Panama Declaration embodied indicated the willingness of the
US, given the felicitous political condition of other powers engaged in
warfare, again to widen the scope and application of its logic. In this
regard, the outcome of the Second World War conferred great opportu-
nities upon the US. For instance, the war did permit further US suc-
cesses on a number of fronts that, broadly speaking, have helped shape
the architecture of world politics. Indicators of greater applications or
instances of aterritorial thinking are: international conventions and trea-
ties regarding state rights and international rights; the expansion of the
number of states and the reduction of the number of empires; paramount
US economic power; and the growing application of moral standards to
interstate relations. In these many respects, the political and economic
business of the "Free World" has been that of the American comity of
states in the 1930s writ large. What prevented the further geographic
expansion of this process, of course, was the consolidation of a rival
ideological bloc of states headed by the Soviet Union.
While there was a limit to the territorial growth of the American
logic, some of its elements intensified during the Cold War. For
instance, within the "Free World," US economic power was con-
solidated, and there was an expansion of the American form and sub-
stance of the state. As in the wake of the First World War when several
460 STEWART SUTLEY

European empires were dismembered to produce new states, following

the Second World War the Americans facilitated the disintegration of the
Japanese, Dutch, British, French, Italian and Belgian empires. In place
of colonies, new states were proclaimed. The destruction of the imperial
form of territorial organization and the potential realization of popular
will advanced the prospects of a widening US-derived international
order. With each successive act of independence in the developing
world, no matter how tenuous the claim to real political independence or
national viability, the remnants of a European conception of interna-
tional relations faded.
The extension of the anti-imperialist component of the American
logic was accompanied by an intensification of economic linkages. Recent
analyses of the trade, financial and technological regimes govern-
ing the world's distribution and production processes have underscored
the significant, even determinative, role played by the US. From the
Marshall Plan to its later economic ties with the Communist states, the
US has sponsored the economic revitalization of Western Europe and
Japan, facilitated the growth of the Newly Industrialized Countries, and
opened other vast areas to capitalist economic production. The effects
of these broad US strategies have, no doubt, redounded to its own
long-term advantage, notwithstanding some pessimistic analyses.62
Studies alleging the senescence and decline of US hegemony typically
focus upon America's veritable economic problems but avoid discussing
the other elements that have contributed and probably will add to US
success-the preparation in the "Free World" for greater and more
intense production and distribution through the solution or supersession
of troubling territorial questions.63The United States remains unrivalled
in both its military and economic capacity, a position some believe it will
not readily yield,64and in its social proclivity to sustain this role.65
Parallel to its effects on the territorial and economic dimensions of
the American logic, the Cold War forged an intense moral conviction in
the US. During every international test facing the "Free World" since
1950the US has viewed its communist adversaries as foes. The remark-
able feature of this is not so much the singularity of the US perception as
its wide advocacy. In the Korean War, for instance, the US called upon
the resources and commitments of scores of countries to combat "com-
munist aggression." Across nearly four decades of international events
62 See "Decline or Renewal: America's Role in the World," Dialogue, no. 86 (1989),
30-52, for the views of leading scholars in this debate.
63 The views of Henry R. Nau, The Myth of America's Decline (New York: Oxford
University Press, 1990), reinforce the general sense here of American power and
potential: its ideational bases have not been adequately articulated in the discipline.
64 Joseph S. Nye, Jr., "American Strategy after Bipolarity," International Affairs 66
(1990), 513-21.
65 Stephen Gill and David Law, The G l o k l Political Economy: Perspectives, Problems
and Policies (Baltimore: Johns Hopkins University Press, 1988), 347-55.
United States Aterritorial International Logic 46 1

the support given to this type of classification has been fairly constant,
and in the American case it has even intensified: most of its opponents,
from Castro's Cuba to Khomeini's Iran, communist or otherwise, were
personified and conceived of as foes.
On balance, during the Cold War, the US promoted the intensifica-
tion of its logic, ultimately destroyed the logic of "socialist inter-
nationalism" among the communist states, and weakened the lingering
strongholds of the European logic in all but international law. The policy
of "containment" was not mainly designed to limit the outward territo-
rial expansion of communist power. Instead, the US devised the policy
of containment to isolate the "Free World" just as the Monroe Doctrine
had earlier protected the geographically less impressive "Western
hemisphere" from allegedly menacing European politics. Although
these two policies were separated by an immense gulf in time, they were
fundamentally alike in practice: neither the policy of Americanism nor
containment aimed to enclose the territorial source of those threats;
rather, these policies were implemented to limit the universalizing
impulses of Republicanism and moral self-righteousness, respectively,
that were purposely confined to their own spatial zone. Indeed, the
struggle for US policy-makers during this time was not so much the
juidicious suppression of communism as it was prudent self-limitation.
The need to be realistic in assessing whether potentially unlimited moral
commitments could be sustained by power resources, has, in particular,
been a constant challenge to American leaders. Thus, in the late 1980s,
as the Cold War was ending, it seemed that the US began to reconsider
its role in the world. America's role in 1989, as in 1917 and 1939, augured
a great outward step amid conditions of its foes' weakness. Operation
Just Cause marked the United States' return to the active expansion of
its international logic; the Cold War marked an interregnum.

The Panamanian Invasion as Prelude to the New World Order

The 1989 invasion of Panama signalled both an end and a beginning to the
US' self-conceived role in world affairs; its transition from belligerent in
the Cold War to architect of a New World Order began in Panama. The
mere fact that the United States engaged in an armed endeavour that was
incongruous in light of the collapse of the Soviet bloc points to Washing-
ton's trenchant concern for its role in a newly emerging world order. The
Operation was not undertaken merely to "set matters right" in Panama;
rather, it became the vehicle to demonstrate both US desire and capacity
to supersede the Cold War framework while returning to, and refurbish-
ing, an aterritorial international logic of an increasingly moral-juridical
type upon which to ground permanently its global a m b i t i ~ n s . ~ ~
66 Wilson, Infc,rnc~fioncrlLtrvc, Stundnrd, 4.
462 STEWART SUTLEY

In taking theoretical account of this episode, political scientists may

recognize that what makes Operation Just Cause significant is the shift in
historical context in which it occurred. The rejuvenation of the peculiar
moral-juridical logic of the US came at a time when it alone retained the
political position of global hegemon, when it was free of the stalemating
geographical encumbrances of the Cold War, and after almost 45 years
of responding nearly globally to the real or imagined threats of commu-
nism in the "Free World." The success of this outward US movement,
although dependent upon the exercise of US power, was and remains no
less dependent on an intellectual or conceptual mindset. The latter, in
fact, constitutes the crucial antecedent condition for guiding the former.
In 1989, the moral component of the American logic had become an
overriding addiction, and the US resolved to continue pursuing its
aterritorial vision. This view of US power, which is akin to Strange's
notion of "nonterritorial imperiali~m,"~~ promises an alternative per-
spective in the analysis of contemporary affairs.
At the level of interstate practices it seems, too, that further exam-
ples of aterritorial thinking are promised by the US resolve to create
a New World Order. Operation Just Cause has proven infectious-
ly successful; it constituted a rehearsal for Operation Desert Shield
and Operation Desert Storm. Indeed, Washington acted in 1989 as it had
in previous endeavours to expand its thinking, that is, by recognizing
that "the periods in which the United States [had] been most potentially
influential in shaping the institutions and mores of the Great Community
[had] been at moments when protracted wars [were] drawing to a close
and the fundamental principles of reconstruction [were] at stake."'j8
Scarcely a year later, the identity of the New World Order began to
crystallize in the Arabian sands. No lonely US episode, these operations
were collective exercises channelled through the United Nations. As
such, they were instances of the enduring ideal sought by the US in the
UN before the onset of the Cold War. Graham, writing in 1946, best
identified that ideal by noting that "the only global scheme of organiza-
tion which the United States has ever accepted, namely, the United
Nations, expressly discards the extreme territorial guarantees of the
League of Nations, pinning its faith on the efficacy of procedure rather
than on the explicitness of guarantee^."^^ In the New World Order, it
truly appears that territory will be an incident, not an end. The New
World Order is, accordingly, equally a new order for the world as it is a
New World conception of order for the planet.
67 Susan Strange, "Cave! hic dragones: A Critique of Regime Analysis," International
Organization 36 (1982), 482.
68 Graham, American Diplomacy, 74.
69 Ibid., 23.
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The Revitalization of United States Aterritorial International Logic: The World before and
after the 1989 Invasion of Panama
Stewart Sutley
Canadian Journal of Political Science / Revue canadienne de science politique, Vol. 25, No. 3.
(Sep., 1992), pp. 435-462.
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[Footnotes]

The Aftermath of Intervention: Panama 1990

Richard L. Millett
Journal of Interamerican Studies and World Affairs, Vol. 32, No. 1. (Spring, 1990), pp. 1-15.
Stable URL:
http://links.jstor.org/sici?sici=0022-1937%28199021%2932%3A1%3C1%3ATAOIP1%3E2.0.CO%3B2-W

Washington's Illegal Invasion

Charles Maechling, Jr.
Foreign Policy, No. 79. (Summer, 1990), pp. 113-131.
Stable URL:
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10
The Validity of United States Intervention in Panama under International Law
Ved P. Nanda
The American Journal of International Law, Vol. 84, No. 2. (Apr., 1990), pp. 494-503.
Stable URL:
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10
The Invasion of Panama Was a Lawful Response to Tyranny
Anthony D'Amato
The American Journal of International Law, Vol. 84, No. 2. (Apr., 1990), pp. 516-524.
Stable URL:
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24
Contemporary Practice of the United States Relating to International Law
Marian Nash Leich
The American Journal of International Law, Vol. 84, No. 2. (Apr., 1990), pp. 536-549.
Stable URL:
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31
Latin America and International Law
Alejandro Alvarez
The American Journal of International Law, Vol. 3, No. 2. (Apr., 1909), pp. 269-353.
Stable URL:
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31
The New International Law
Alejandro Alvarez
Transactions of the Grotius Society, Vol. 15, Problems of Peace and War, Papers Read before the
Society in the Year 1929. (1929), pp. 35-51.
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31
Le Developpement du Droit des Gens dans le Nouveau-Monde
Alejandro Alvarez
Transactions of the Grotius Society, Vol. 25, Problems of Peace and War, Papers Read before the
Society in the Year 1939. (1939), pp. 169-184.
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64
American Strategy after Bipolarity
Joseph S. Nye, Jr
International Affairs (Royal Institute of International Affairs 1944-), Vol. 66, No. 3. (Jul., 1990), pp.
513-521.
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67
Cave! Hic Dragones: A Critique of Regime Analysis
Susan Strange
International Organization, Vol. 36, No. 2, International Regimes. (Spring, 1982), pp. 479-496.
Stable URL:
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