Jedidiah Kroncke

Inherent in historical work is recovering aspects of the past lost to contemporary awareness. In her new book, Arbitrating Empire: United States Expansion and the Transformation of International Law, Allison Powers recovers one such aspect that has been more than passively forgotten—it was actively erased. Her target is a series of state-to-state arbitral claims commissions central to American international law during the country’s rise as a global power. Here Arbitrating Empire revises understandings of early international arbitration as an instrument of “civilized” non-violent dispute resolution by exposing its function as a legal technology of imperial power. Powers’s intervention is a powerful and persuasive addition to the rapidly expanding literature on the evolution of the legal forms used to project American power abroad while denying accountability for its violence. The initial history of American international arbitration, she shows, was governed by the imperative “to secure territory, wealth, and political power across the globe while disavowing charges of colonial aggression.” (P. 7.)

Arbitrating Empire centers on five different claims commissions from 1870-1930 tasked with resolving thousands of claims for damages incident to U.S. imperial expansion. In seven well-ordered, richly detailed chapters, Powers examines claims stemming from the Mexican-American War, the U.S. bombardment of Samoa, the Spanish-American War, land expropriations in the Panama Canal Zone, and the Mexican Revolution.

Powers shows how these commissions were seen as novel forms of dispute resolution requiring a neologism—as she notes, “they called it arbitration.” (P. 2.) The product of such commissions became a foundational legal corpus for how “international law” was understood in this era, and helped form now-ubiquitous concepts such as sovereign debt. Yet, this corpus is largely absent from contemporary and modern treatises. Moreover, state-to-state arbitration was abandoned after nearly sixty years of serving as a primary means by which the United States deflected and contained accountability for the effects of exerting its power abroad.

While traditional accounts explain this abandonment as a result of arbitral commissions’ inefficiency, Powers shows that their demise was largely driven by their very efficacy—but an efficacy in exposing the hypocrisies of American empire far too readily and publicly. After victims of American imperial violence forced this hypocrisy into public light through their claims, many within the U.S. State Department worked to remove these voices from public awareness to ensure that these cases would only live on as narrow legal precedents shorn of their troubling imperial content or implications.

One consistent thread through these diverse settings was how American claims were justified and foreign claims denied by delegitimizing others’ self-governance. The decisions of the 1868 US-Mexican Claims Commissions routinely concluded that the regular operation of Mexican law—such as condoning labor strikes for unpaid wages—was a result of incompetency. Similarly, local Samoan governance was rejected for being “non-democratic” and thus inherently suspect. Even the presence of private consumer boycotts or peaceful protests was reframed as existential threats to normal business operations. These judgments did so by invoking the “law of nations” or “standards of civilization”—then popular to frame American international engagement as neutral and benevolent. Even participation in arbitral commissions themselves was demanded by the U.S. as a demonstration of other polities’ “civilized” status.

Such invocations also grounded a global “right to commerce” as inherent in modern civilization. Powers notes how American claimants saw themselves as entitled to special privileges abroad, from an individual entrepreneur’s “rights as an American” to essentially ignore foreign obligations to a military official’s right to act as a “boss of the ranch” wherever his warships took him. This language of commerce by right was most explicit in the Panama Canal Zone, referred to as the “world easement.” Here Panamanians’ eviction from their lands as “squatters” was justified, per Secretary of State John Hay, “not only by the stipulations of the treaty, but also by the interests of civilization.” (P. 117.)

Arbitrating Empire is most evocative when it uncovers how the seductive illusions of legal formalism worked to advance imperial power. Arbitral judges often openly acknowledged the tenuous legal grounds on which they operated, including famed jurist Francis Lieber, who saw his role in the 1868 US-Mexican Commission as one of near pure legal invention. Less reticent were actors such as the U.S. lawyer deemed “Chief Justice” of the “Supreme Court of Samoa” who penned “international law” judgments offshore from within a British warship.

The discretionary power that arbitral judges wielded enabled legal reasoning that ultimately denied the vast majority of claims brought by non-Americans. Judges openly used cultural degradations to reject evidence presented against Americans—whose own representations were uncritically accepted on the grounds that they were “highly respectable and men of intelligence.” (Pp. 39-40.) These racialized denials played upon all-too-familiar tropes of foreign idleness and criminality, and went so far as to claim that foreign peoples were genetically incapable of participating in law itself. Panamanian citizens were deemed “racially ineligible for any form of property ownership legible under international law.” (P. 143.) Even when legally cognizable, the value of foreign murder victims lives’ was reduced to zero as their “wages had been so low that they could not realistically have contributed significant financial support to their families.” (P. 213.)

Through such racialized reasoning, arbitral doctrines were intertwined with the emergent rhetoric of the Insular Cases and the Bureau of Naturalization. Arbitral judges routinely used logics of national exclusion, going so far as to categorize Chinese citizens as “natives” of Samoa. They also cited domestic cases challenging the rights of naturalized Chinese and Japanese citizens to deny claims by other naturalized citizens resident in Cuba—a tactic that justified dismissing 98% of such claims. And when claims were made by foreign citizens based on actions within the United States, judges worked to deem such claimants as “stateless.”

Throughout, Arbitrating Empire shows how the legal reasoning of arbitral decisions worked to rationalize and exceptionalize imperial violence. In some cases, such violence was acknowledged but naturalized. One case drew on a precedent from French Polynesia where the court cast an “uprising as a natural disaster rather than an anticolonial movement.” (P. 74.) In the Philippines, widespread violence was cast by an American general as “an inevitable consequence of war…that the innocent generally suffer with the guilty.” (P. 92.)

However, whenever legal discipline threatened to impinge on imperial prerogatives it was circumvented either internally or externally, or violently. Arbitral judges were not automatons and occasionally resisted subordinating their reasoning to the bare demands of imperial power. The Samoan commission was shut down when King Oscar of Norway disputed dubious testimony given by imperial agents, and judgments in the Panama Canal Zone that acknowledged the impact of structural violence on land valuations were openly resisted by colonial authorities—who went as far as nullifying any claims based on equity. (P. 154.) One American delegate characteristically related how in Samoa “the shells of British and American guns relieved from some difficult questions of international law that might otherwise have arisen.” (P. 66.)

Herein, Arbitrating Empire demonstrates the limits of imperial legality, or at least its need for continual iteration and adaptation. By the 1930s, subjects in imperial locales—often aided by lawyers specializing in such work—had become so proficient in documenting the immense violence of American imperialism that it became American law, and not the law of putatively inferior nations and peoples, that was effectively held up as falling below noble notions of the “law of nations.” Practices such as convict labor, the use of civilian concentration camps, racialized vigilante violence, and restrictions on foreign investment rights had become part of American law domestically and deployed in American imperial projects abroad. Instead of depoliticizing imperialism through legalization, arbitral proceedings became powerful forums for publicizing imperial violence. Though initially seen as a “civilized” means of managing imperial power, over time arbitral commissions became overwhelmed by the scope of imperial violence.

As a result, the end of state-to-state arbitration in 1937 coincided with a general move in American international law away from universalist invocations of the “law of nations.” Powers emphasizes how the subsequent rise of investor-state arbitration was made possible as so much of economic globalization had already enshrined operational principles that served American interests and were actuated by the energies of the American legal profession—obscuring the systemic connections between trade and violence that state-to-state arbitrations had unintentionally made so visible.

The main “victors” after 1937 were, unfortunately, not the claimants whose injuries had often overwhelmed arbitral commissions. Rather, the victor was the form of the nation-state itself. Foreign diplomats used the publicization of American imperial violence to insulate their domestic prerogatives—even to later enact their own xenophobic legislation. This process sealed injustices into the past, under the guise of pragmatism, as one American official clearly stated: “I have not the time to enter upon any suggestion as to who has been wrong in the past.” (P. 78.)

Powers goes beyond simply explaining this lost and formative period of American international legal history by tying it to contemporary tensions still unresolved in the modern international legal system. She narratively centers a case that carried a radical challenge by indigenous peoples against the Mexican state but was transformed from an “international legal critique of colonial dispossession to a perfunctory citation presuming the existence of adequate legal remedies within states.” (P. 242.) Today, such claims have again become visible as indigenous and other marginalized people push against the nation-state as the sole arbiter of justice and raise the same issue of intra-state distributions of power that the modern international legal order has remained so reticent to address.

Arbitrating Empire makes the connections between American international law and the history of American empire in exactly the way that U.S. State Department officials hoped to erase. Powers works with archives across time and space to remedy both excisions made to treatises and misrepresentations of past precedents to directly challenge this induced amnesia. She also shows how this transition stemmed from an intra-imperial understanding that all imperial locales, and their histories, were concurrently part of a global imperial strategy in which experimental lessons could be broadly applied to avoid accountability for imperial power.

Ultimately, Powers complicates any easy notion of international law’s relationship to post-colonialism in a global economic order in which so many forms of exclusion and violence remain bound up in the legal formalisms of today’s commonly far-from-democratic nation-states. The primary challenge today for such legal historical scholarship on American empire is fully integrating the diversity of studies that have begun to map that empire’s interconnected global scope.