Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1912

File No. 710 C2/103.

The United States Delegates to the Secretary of State.

Washington, December 31, 1912.

Sir: The undersigned have the honor to submit the following report of the proceeding of the International Commission of Jurists which met at Rio de Janeiro during the past summer:

By a convention concluded by the Third International American Conference, at Rio de Janeiro, August 23, 1906, the American nations agreed to establish an International Commission of Jurists, consisting of one delegate from each country, to codify international law, public and private. (Exhibit 1.¹)

The commission, for which provision was thus made, was by the terms of the convention to hold its first meeting at Rio de Janeiro “during the year 1907,” but this stipulation was afterwards tacitly waived, most of the Governments, including that of the United States, having ratified the convention after the expiration of that year. The governing board of the Pan American Union therefore concluded, at Washington, on January 15, 1912, a supplementary agreement, by which it was stipulated that the commission should meet at Rio de Janeiro on June 26, 1912. It was also provided that each Government might be represented “by two delegates instead of one, but with a single vote.” (Exhibit 2.²)

In conformity with this agreement, the International Commission of Jurists met at Rio de Janeiro on the 26th of June last, assembling in the Monroe Palace, a handsome edifice, named for President Monroe, in which were held the sessions of the Third International American Conference.

By the convention of 1906 it was provided that the presence of representatives of 12 of the signatory States should be necessary for the organization of the commission. At the preliminary session, which was held on the afternoon of the 26th of June, the delegate of Mexico presiding, delegates of 14 States appeared, as follows:

• America (United States of): John Bassett Moore, delegate; Frederick Van Dyne, technical delegate.
• Argentina: Dr. Norberto Quirno Costa, Dr. Carlos Rodriguez Larreta, Jr.
• Brazil: Dr. Epitacio Pessôa, Dr. Candido Luiz Maria de Oliveira.
• Chile: Dr. Miguel Cruchaga, Dr. Alejandro Alvarez.
• Colombia: Dr. José Maria Uricoechea, Dr. Roberto Ancizar.
• Costa Rica: Dr. Alejandro Alvarez.
• Ecuador: Dr. Alejandro Alvarez, Dr. Matias Alonso Criado.
• Guatemala: Dr. Antonio Batres Jáuregui, Dr. Jose Matos.
• Mexico: Dr. Victor Manuel Castillo.
• Panama: Gen. Dr. Don Santiago de la Guardia.
• Paraguay: Dr. Cecilio Baez.
• Peru: Dr. Hernán Velarde. An additional delegate, Dr. Alberto Elmore, subsequently appeared.
• Salvador: Dr. Alonso Reyes Guerra.
• Uruguay: Dr. Juan Zorrilla de San Martin, Dr. José Pedro Varela.
• Other countries were subsequently represented, as follows:
• Bolivia: Dr. Victor Sanjinés.
• Cuba: Dr. Aniceto Valdivia.
• Venezuela: Dr. Pedro Manuel Arcaya.

Seventeen States were thus finally represented in the congress; but a delegate from yet another State, Dr. Américo Lugo, from Santo Domingo, was on his way to Rio de Janeiro when the congress adjourned.

The congress was formally opened on the evening of the 26th of June. Mr. Lauro Müller, Minister of Foreign Relations of Brazil, presided and made an address of welcome (Exhibit 3,²) to which a response was made by the delegate of the United States. (Exhibit 4¹)

Dr. Epitacio Pessôa, first delegate of Brazil, was elected permanent president. A translation of his address on taking the chair is hereto annexed. (Exhibit 5.¹)

The first ordinary session of the commission was held on the 28th of June. At this session a motion was presented by the Chilean and Argentine delegations, with reference to the work which the commission should undertake and the methods by which it should be carried on. (Exhibit 6.¹) Divested of argumentative matter, the motion raised various questions, namely, whether codification should be effected by means of identical national laws or by means of international conventions; whether it should be at the first moment complete, or should be gradual and progressive; in what form amendments should be made, or defects supplied; whether new rules should continue to be elaborated, so as to keep the code, or the agreed points, in harmony with the progress of nations. For the consideration of these and other preliminary points, including that of the codification of rules which specially or more directly interest the nations of America, the motion proposed that a committee should be appointed, consisting of five members, to collect the views of the various delegations and to submit a report. This motion, which was seconded by Mr. Moore, of the delegation of the United States, having been adopted, the president of the commission appointed the following committee: John Bassett Moore, Norberto Quirno Costa, Alejandro Alvarez, Hernán Velarde, and Candido Luiz Maria de Oliveira, being delegates, respectively, of the United States, Argentina, Chile, Peru, and Brazil. The committee, on motion of the delegate from Argentina, designated the delegate from the United States as chairman.

The committee thus constituted became in reality a committee on permanent regulations, and in this capacity dealt with what proved to be the crucial question before the congress. This was the result of certain circumstances which will be briefly narrated.

The committee, as has been seen, was charged with the duty of collecting the views of the various delegations on the work before the congress. At the preliminary session of the delegates, on the afternoon of the 26th of June, a complete printed draft of regulations, in Portuguese, for the government of the commission and its work, was presented by the Brazilian delegation. (Exhibit 7.¹) This draft the delegates were not asked to adopt finally; but in order that they might proceed to organize, it was, on motion of Mr. Moore, adopted provisionally, the question of its permanent approval being thus deferred. A subsequent examination of its contents disclosed the fact that its framers apparently intended to propose that the commission should proceed at once to the adoption of codes; and the proposed regulations were in this sense laid before the committee, as embodying the views of the Brazilian delegation, to the end that the committee might report them to the commission for adoption as permanent regulations. This proposal, which, in view not only of the magnitude and difficulties of the task before the commission, but also of the provisions of the convention of 1906, would otherwise have been incomprehensible, was explained by the circumstance that two eminent Brazilian jurists, Dr. Epitacio Pessôa, of the supreme court of the Republic, and Dr. Lafayette Rodriguez Pereira, a former minister of justice, had respectively prepared drafts of codes of public international law and private international law, for the use of the commission.

The Argentine member of the committee presented a proposal for the division of the commission into five committees, to sit, respectively, at Washington, Rio de Janeiro, Santiago (Chile), Montevideo, and Buenos Aires. The Montevideo committee was to be charged with the codification of private international law, Montevideo having been the seat of the congress of 1888 on that subject. To the other four committees were respectively to be assigned for codification: (1) The laws of war on land and sea; (2) neutrality and civil wars; (3) the laws of peace; (4) the organization of international tribunals. This proposal, like the previous Chilean-Argentine motion, was based upon the understanding that the sole object of the first meeting of the commission was that of organization and distribution of work.

The delegate of the United States, in his speech at the formal opening of the congress, had previously expressed the same understanding, saying:

The duty of the present congress is comparatively simple, and as it does not embrace the discussion of principles or the conclusion of conventions on controverted topics may no doubt be expeditiously performed. Our meeting upon the present occasion marks only the beginning of the great work that lies before us, a work that will involve hereafter the prolonged and profound study of general principles, of conventional agreements, and of domestic legislation and judicial and administrative decisions, to the end that, by becoming acquainted with our points of disagreement, as well as of agreement, we may be sure of our ground and go forward with a precise knowledge of the actual legal situation in each country concerned.

In conformity with this view the American member of the committee, taking the Brazilian draft regulations as a starting point, presented an amended draft containing the following clause:

Art. XV. In order to lay the foundation for the performance by the commission of the task committed to it of drafting a code of public international law and a code of private international law, each delegation shall, after the adjournment of the present congress, proceed to make a preliminary report, dealing with the subject of the codification of international law, public and private, fully and in detail from the point of view of the jurisprudence, the constitutional law, the legislation national and local, and the decisions of the authorities administrative and judicial, of its own country. In making such reports the several delegations shall take into consideration the draft codes already prepared by the Brazilian jurists, Messrs. Epitacio Pessôa and Lafayette Rodrigues Pereira, as well as the treaties of Montevideo of 1889, the acts of the international American conferences, the acts of the peace conferences at The Hague, the acts of the conferences at The Hague on private international law, and any other pertinent international conventions, and also any projects and propositions which the present congress may decide to include in such preliminary examination and reports.

The text of the preliminary reports shall be printed in English, Portuguese, Spanish, and French, and 25 copies of the report of each country, in each language, shall be delivered to each delegation.

The amended draft (Art. XVI) went on to provide that, after these preliminary reports should have been exchanged, the commission might, as indicated in the convention of 1906, divide itself into two committees to consider, respectively, the preparation of drafts of codes of public international law and private international law. A further amendment was also elaborated, by which these committees were to be authorized to constitute out of their members subcommittees for the consideration of particular subjects, but this amendment was never formally presented, it appearing that the immediate division of the commission into more than two committees, in accordance with the Argentine proposal, was generally desired.

As the result of this divergence of proposals, the proceedings of the committee became the center of a very active contest, in which there was exhibited on the part of the Brazilians so much earnestness and feeling that the American delegation sought a conference with Dr. Epitacio Pessôa, first Brazilian delegate and president of the Congress, in order to ascertain the precise views and wishes of his delegation. We thus learned that the Brazilian delegation maintained that the convention of 1906 contemplated or at least permitted final action by the commission at its first meeting on codes or parts thereof; that the note (Exhibit 8), with which the Brazilian draft codes were communicated to the other Governments, indicated that those particular codes were to be discussed and acted upon in whole or in part at that meetings that this indication was at least tacitly accepted and that the omission to act upon it would involve the defeat of the object of the meeting and in effect the abandonment of the task of codification.

Our instructions, which did not refer to the Brazilian note nor inclose a copy of it, were framed upon the understanding that the first meeting of the commission was to be essentially and appropriately preliminary for the attainment of the necessary and important object of organization and distribution of work. This understanding appears to be in strict conformity with the convention of 1906. By that convention (art. 3) it was provided that the “first meeting” of the commission should be held at Bio de Janeiro; that the commission, having met for “the purpose of organizing and distributing the work to the members thereof,” might divide itself into committees, and that it should designate the “time and place” of its subsequent sessions. Not only do these stipulations all indicate that the sole design of the first meeting was that of organization and distribution of work, but the requirement that the place as well as time of subsequent sessions should be designated would be devoid of meaning if it had been supposed that the commission would on its first assembling proceed, either as a body or by means of committees, to draft codes in whole or in part. The intention that the commission should deliberate upon its work is further shown by the provision (art. 3) that the “final meeting” should be held at a date sufficiently early to permit “all drafts or all important portions thereof” to be submitted to the several Governments at least a year before the coming together of the ensuing international American conference. The time originally set for the first meeting of the commission made it morally certain that two years would thus be allowed for the preparation of drafts, an interval of less than four years between the international American conferences never having been contemplated. Equally obvious is the meaning of the provision (art. 4) that the work shall be distributed “among the members” of the commission, and that if the commission should divide itself into committees such committees “must proceed separately.” It never was contemplated that the commission should as a body remain in continuous session while committees or individual members were engaged in the preparation of drafts of codes. The signatories of the convention evidently understood that the preparation of such drafts was a serious task, involving minute and prolonged study; that the holding together of all the members of the commission in continuous session during the performance of this task would be useless and impracticable; and that any detention of the commission in session, after it was organized and its work distributed, would represent merely loss of time and opportunity and involve to that extent the defeat of the object for which it was created.

An examination of the Brazilian note with which the draft codes were communicated to the other Governments shows that it contains certain clauses which may be construed as conveying the expression of a wish that those Governments might give to their delegates such instructions as would enable them to proceed with the discussion of the projects. The distinctness with which this impression would be received would no doubt largely depend upon the mental attitude of the person to whom the intimation was intended to be made. The department, having in mind not only the terms of the convention of 1906 but also the nature, magnitude, and complexity of the task of codifying international law, public and private, seems not to have supposed that the immediate discussion and adoption of codes was expected in any quarter. In any event, the indication of such an expectation by one of the interested Governments could be regarded only as the expression of a wish, the utterance of which would not relieve the task of codification of its difficulties or dispense with the necessity of proper preparatory investigations in all the countries concerned.

It having become apparent that a majority of the committee were adverse to the attempt to adopt codes at the first meeting of the commission, the Brazilian delegation, seeking to combine and reconcile the opposing views, proposed a regulation to the effect that the commission should divide itself into two committees for the preparation of drafts of codes, taking as a basis the Brazilian projects, and that if these committees should consider it to be impossible to draw up complete projects at the pending meeting, then each one should codify “one or more of the more practical and urgent subjects, such as, for instance, extradition in public law and foreign judgments in private law, and submit these partial works for the approval of the commission.”

After much consideration, the committee decided for the sake of harmony to accept this proposal to the extent of providing for the appointment of two special committees, respectively, to report drafts on extradition and the execution of foreign judgments, it being understood that these committees would report without delay. For the rest, it was decided to recommend that the commission should be divided for future work into six committees instead of five, the creation of a second committee on private international law, to sit at Lima, having been agreed upon, on motion of the delegate from Peru.

We have here reviewed all the important proposals formally laid before the committee. Various proposals or suggestions were informally put forward, such as that of the appointment of a committee near each ministry of foreign affairs to collect and furnish data, that of the appointment of agents to obtain information, and that of the submission of the work of the committees to “scientific associations, especially of international law,” such “scientific institutes” also to have the power, after prolonged deliberation upon a certain matter, to ask the committee to which it pertained to examine it and order its publication. These proposals or suggestions, being apparently outside the competency of the commission under the convention of 1906, did not reach the stage of a formal vote by the committee.

The report of the committee (Exhibit 9, q. v.), which was signed on the 6th of July, embraced (1) a draft of permanent regulations for the government of the International Commission of Jurists when in session, (2) a plan for the division of the commission into six committees for the preparation of codes, (3) a resolution fixing Rio de Janeiro as the place and June, 1914, as the date of the next meeting of the commission, and (4) a resolution providing for the appointment of two committees of five members each, respectively, to prepare projects of codes on extradition and the execution of foreign judgments for the consideration of the pending Congress. This report was signed by all the members of the committee, including the delegate from Brazil, but the delegate of the United States annexed to his signature a “provisional reservation” as to the recommendation that committees be appointed immediately to report draft codes on extradition and the execution of foreign judgments.

The report of the committee was presented to the congress on the 8th of July, and with the exception of the adverse vote of the delegate of Salvador, who spoke in favor of the immediate consideration of the Brazilian draft codes, was adopted unanimously and without amendment. The delegation of Guatemala made, however, a reservation similar to that of the United States, as to the appointment of committees to report drafts on extradition and the execution of foreign judgments.

The object of the first meeting being, as has been pointed out, the organization of the commission and the distribution of its work, the regulations adopted for the attainment of these ends may now be summarized.

The regulations for the organization of the commission (see under Exhibit 9) provide that the president of the commission, elected at the formal opening, shall retain his position till the next meeting, which, as has been seen, is to take place at Rio de Janeiro in June, 1914. Thus, Dr. Epitacio Pessôa, of the Brazilian delegation, who was elected at the opening session, remains as president. It is not improbable that the commission will continue to observe the rule, which has been followed by the international American conferences, of electing as its presiding officer a delegate of the country in which the meeting is held.

The precedence of the delegations is to be determined by the alphabetical order of the names of their respective countries. Under this rule, as applied by the international American conferences, the first place was assigned to the United States of America (America, United States of), the second to Argentina, and so on. The order, however, in which the delegations are, in the absence of the president, to be represented in the chair is determined by lot. The United States held the third place in the list thus made up at the late congress.

The commission also has a secretary general, who is named by the Government of the country in which the meeting is held. The duties of this officer, who has under his direction the secretaries, assistants, and other employees of the commission, are detailed in the regulations.

In conformity with the convention of 1906, by whose terms the presence of representatives of at least 12 of the signatory States was necessary to the organization of the commission, the regulations provide that the presence of representatives of at least 12 of those signatories shall be necessary to constitute a meeting of the commission, but that the presence of two-thirds of the delegations taking part in the meeting shall constitute a quorum for the transaction of business at a particular session.

A majority of the votes of the delegations present at a session suffices for the approval of a resolution, but for the approval of drafts intended to be incorporated in the codes the concurrence of two-thirds of those delegations is required. While the consideration of the extradition draft, article by article, was in progress, a question was raised as to whether, under this rule, a two-thirds vote was not essential to the approval of a particular article or of an amendment thereto. This question was not passed on by the commission, as it was found, on a second ballot, that the amendment was approved by more than two-thirds of the delegations. The question seems, however, to have arisen out of what may be regarded as the defective procedure followed on that occasion, under which the votes upon the several articles and the amendments thereto were treated as constituting in the aggregate a final approval of the draft as amended, the project in its entirety never having been put to a vote. It is obvious that the sense of an assembly on a project as a whole is not necessarily disclosed by the votes taken on separate articles, even though each article be thus voted upon. The requirement of a two-thirds majority for the approval of drafts designed to be incorporated in the codes was no doubt intended to apply to the final vote, namely, the vote by which the decision of the commission upon the project as an entirety should be given, and not to votes upon particular articles or amendments thereto.

One other clause of the regulations for the government of the commission when in session should here be noticed. The convention of 1906 having provided that reports and motions shall be printed in English, Portuguese, Spanish, and French, and distributed to the delegates for their examination, the regulations provide that they shall not be discussed except in a session subsequent to that in which they shall have been distributed in printed form. In connection with the requirements which also prevail in the international American conferences, it is proper and indeed important to observe that more attention should be paid than is sometimes done to the obtaining of competent translations and interpretations. In the work of the International Commission of Jurists this is a matter not of convenience but of necessity.

regulation for the distribution of work.

By the regulation for the distribution of work the International Commission of Jurists is divided into six committees, whose places of meeting, membership, and subject matter are as follows:

i. international law.

1. Washington: John Bassett Moore (United States), chairman; Frederick Van Dyne (United States), Victor Manuel Castillo (Mexico), Antonio Batres Jáuregui (Guatemala), José Matos (Guatemala), Alonso Reyes Guerra (Salvador), a delegate of Costa Rica (to be appointed in place of Alejandro Alvarez), Gen. Santiago de la Guardia (Panama).

The subjects assigned to this committee for the preparation of drafts of codes are maritime war and the rights and duties of neutrals.

As this committee, if all the Central American States and Haiti and Santo Domingo should send full delegations, would greatly exceed any of the rest in the number of its members, it is empowered to divide itself into two committees as nearly as possible equal in number, indicating at the same time the subjects which each is to study.

2. Rio de Janeiro: Epitacio Pessôa (Brazil), chairman; José Maria Uricoechea (Colombia), Hernán Velarde (Peru), a delegate of Cuba (who, it was understood, would be the Cuban minister at Rio de Janeiro).

This committee is to deal with war on land, civil war, and claims of foreigners growing out of such wars.

3. Santiago (Chile): Norberto Quirno Costa (Argentina), chairman; Alejandro Alvarez (Chile), Victor Sanjinés (Bolivia), Matias Alonso Criado (Ecuador).

Subject matter: International law in time of peace.

4. Buenos Aires: Miguel Cruchaga Torconal (Chile), chairman; Carlos Rodriguez Larreta (Argentina), Roberto Ancizar (Colombia), Juan Zorilla de San Martin (Uruguay). (Mr. Ancizar, it may be explained, resides at Buenos Aires).

Subject matter: The pacific settlement of international disputes, and the organization of international tribunals.

ii. private international law.

5. Montevideo: Cecilio Baez (Paraguay), chairman; Eusebio Ayala (Paraguay), Jose Pedro Varela (Uruguay), Candido Luiz Maria de Oliveira (Brazil).

Subject matter: Capacity, status of aliens, domestic relations, succession.

6. Lima: Alberto Elmore (Peru), chairman; Pedro Manuel Arcaya (Venezuela), a delegate to be appointed by Bolivia, and a delegate to be appointed by Cuba.

Subject matter: Matters of private international law not embraced in the preceding enumeration, including the conflict of penal laws.

The regulation provides that, if any of the delegates above named should resign or become disabled, the committee to which he was assigned shall request his Government to fill his place; and that delegates appointed from countries not represented in the late Congress, as well as any additional delegates appointed from countries that were so represented, shall be assigned by the president of the commission in such manner as he may deem most conducive to the performance of the work.

Each committee is to meet at the time designated by its chairman, acting in accord with his committee.

With a view to the preparation of drafts of codes, it is provided that each committee shall request from each Government a detailed report as to its domestic legislation, its judicial and administrative decisions, its conventions and practices, its international cases and their solutions, and as to the regulation which it deems most suitable on the subject with which the committee is charged. These reports, with the exception of printed documents annexed to or mentioned in them, are to be printed in English, Spanish, Portuguese, and French, and 25 of each report are to be furnished to each Government.

The regulation then provides that the committee, having before them the information thus obtained—

shall proceed to the preparation of drafts, and in so doing shall take into consideration the draft of a code of public international law and the draft of a code of private international law, prepared by the Brazilian jurists, Dr. Epitacio Pessoa and Dr. Lafayette Rodriguez Pereira, respectively,

And that—

in the conduct of their work the committees shall give preferential attention, as is recommended by the convention of 1906, to subjects and principles uniformly agreed upon in existing treaties and conventions and as to which there exists uniformity among the laws of the American nations, and particularly to the treaties of Montevideo of 1889, the conventions signed by the international American conferences and the debates thereon, and all other matters the treatment of which may promise judicial progress or tend to the elimination of misunderstandings or conflicts between those nations.

The drafts prepared by each committee are to be printed in English, Portuguese, Spanish, and French, and to be communicated to each Government. The same thing is to be done with regard to points on which the committee may be unable to agree. The drafts and disagreements are to be laid before the commission at its next meeting; and any draft adopted by the commission, by a vote of two-thirds of the delegations present, is to be considered by the next Pan American conference, unless the Governments should immediately embody it in a convention.

Each committee may request one or more of the Governments represented on it to assign experts for the consideration of special topics.

Finally, the regulation provides that the expenses occasioned by the preparation and printing of reports and drafts, as well as all other expenses of the committees, shall be paid in conformity with Article VI of the convention of 1906, which reads as follows:

Art. VI. Expenses of preparation of the drafts, including those of experts, shall be paid by all the States in the proportion and form established for the support of the International Bureau of the American Republics (now Pan American Union); but each Government shall pay its own members of the commission.

Such is the plan adopted by the International Commission of Jurists for the performance of the task committed to it. It was adopted only after prolonged and conscientious deliberation, and may be regarded as a worthy testimonial to the united desire of the congress to discharge its whole duty, faithfully and effectively. The execution of the task which the plan imposes will require, on the part of the committees into which the commission has been divided, serious and exacting labor, and the manner in which this labor is performed and the results which it affords will disclose the possibilities of codification under the conditions prescribed by the convention of 1906.

In this relation we beg leave to annex hereto a public statement made by Mr. Moore, of the delegation of the United States, on his departure from Rio de Janeiro. (Exhibit 10.) This statement was made in response to questions submitted by a person connected with the secretarial staff of the commission. In these questions there is, as will be observed, a reflection of the expectation which had been entertained in certain quarters, and to which reference has heretofore been made, that the congress would proceed at once to the adoption of codes. In these circumstances the submission of the questions afforded an opportunity which had not before been presented to exhibit the subject in its proper and necessary relations.

As has heretofore been stated, the commission agreed to the appointment of committees to report drafts of codes on extradition and the execution of foreign judgments. These committees were appointed on the 8th of July. The committee on extradition signed its report on the following day. This report is annexed to the minutes of the fourth regular session of the congress, at which it was discussed and amended. The draft as amended is annexed to the minutes of the fifth session.

The report of the committee on the execution of foreign judgments is annexed to the minutes of the sixth session. On motion of the delegate from Mexico, it was decided to refer the report to the committee on private international law at Lima for consideration and further action.

The commission held seven regular sessions, the last of which took place on the 20th of July. It finally adjourned, to meet again in Rio de Janeiro in June, 1914.

We can not express too strongly our appreciation of the generous hospitality with which the delegates to the congress were received and treated. Not only was every effort made to facilitate the work of the commission, but its members were in every way made to feel the warmth and cordiality of their welcome by the Government and people of Brazil. Nor can we close this report without acknowledging our deep sense of obligation to Mr. Morgan, our ambassador, and to Mr. Lay, our consul general, at Rio de Janeiro, for their unfailing aid and many courtesies.

Annexed hereto are English versions of the protocols of the congress. (Exhibits 11–17.)

Respectfully submitted.

• John B. Moore.
• F. Van Dyne.

Note.—Of the exhibits appended at this point to the above report the first seven, not printed in this volume, are: No. 1, the convention establishing the commission (printed in For. Rel. 1906, p. 1601); No. 2, agreement fixing time of meeting June 26, 1912; No. 8, speech of welcome by the Minister for Foreign Affairs; No. 4, response by Mr. John Bassett Moore; No. 5, speech of the president of the commission; No. 6, motion relating to codification; No. 7, draft of Portuguese proposed regulations for governing the commission.

Exhibit 8.

[Translation.]

Embassy of Brazil,
Washington, December 5, 1911.

The Brazilian Ambassador at Washington to the Secretary of State of the United States.¹

Mr. Secretary: Referring to this embassy’s communication of March 14 last and to the memorandum of the 31st of the same month replying thereto, I have the honor to offer to your excellency two copies of the drafts of codes of public and private international law which the Brazilian Government has ordered to be prepared for presentation to the Governments interested with the object of forwarding the work of the board of jurists that is to meet in the city of Rio de Janeiro under a resolution of the Third International American Conference.

In having the said two drafts of codes written out on the subject my Government proposed to facilitate the task to be undertaken and was actuated exclusively by the desire to put at once into a concrete form the labors the beginning of which we found ourselves much to our regret constrained to defer.

The circumstance that the preparation of these drafts was entrusted to such jurists as Counsellor Lafayette Rodrigues Pereira, former senator and president of the council of ministers of the Empire, representative of Brazil on the arbitration commissions of Chile and at the First International American Conference of Washington, member of the Permanent Court of Arbitration at The Hague and author of a treatise on international law and various other law books; and Dr. Epitacio Pessôa, delegate of Brazil on the board of jurists, former lecturer at the law school of Recife, former justice of the federal supreme court, does not prevent Brazil from regarding those drafts as mere bases that may serve to harmonize as far as possible the political views and expression of judicial culture of the American nations.

By systematizing principles, condensing the latest conquests of law, and defining the main points for study and investigation in the generally accepted doctrine, the drafts properly appreciated shall be of assistance in the practical labors of the board of jurists, which can thereby be attended by the delegates provided with instructions on certain fundamental and concrete points, thereby removing conditions of uncertainty and unexpectedness which may always spring from a lack of definite and formal ideas to discuss.

If, with that object in view, the drafts should be favorably received by the Governments concerned, Brazil will hold its initiative to have been fully rewarded.

My government further honors me with the pleasant duty of availing myself of this opportunity to renew to your excellency’s Government the assurance of the pleasure with which Brazil will receive the delegates to the board and to express the firm hope cherished by us that the spirit of cooperation and good will manifested in the American conferences will produce every possible practical result that we Americans must all sincerely desire to achieve.

In order to agree upon additional measures that may prove practicable and serviceable to the meeting of the board, it would be expedient to call an early meeting of the Pan American Union. As your excellency is aware, Brazil proposed that the date of the meeting of the board be set for April 22 next and also proposed that each country be represented thereon by two delegates instead of one, but with one vote only in the deliberation, a measure which would facilitate the labors of the board by making it possible for substitutes to take the place of members unable to attend, besides other considerations to be taken into account.

I avail [etc.]

D. da Gama.

Exhibit 9.

Report of the committee of five members appointed to study the draft regulations and the motion of Chile and Argentina.

On June 28 last the Commission of Jurists appointed a committee composed of the undersigned to study the draft of regulations prepared by the Brazilian delegation, as well as the motion of the Chilean and Argentine delegations, to the effect that the commission begin no codifying work until the several delegations have exchanged notes regarding certain subjects mentioned in said motion or any others which the other delegations may suggest.

I.

For the first time in the life of nations it is a question of realizing an aspiration of humanity, viz, the codification of public international law and of private international law.

Thanks to the solidarity which exists among the nations of the New World, the latter have been able, thus anticipating Europe, to agree to codify the rules which are to govern their mutual relations.

However, in order to carry out a work of this magnitude under the proper conditions, it is necessary that it be done in a way which will combine all the advantages of codification while avoiding its drawbacks.

Two currents of opinion have manifested themselves at the meetings of this committee in regard to the trend which should be given to the first meeting of the commission, one holding that the work of codification, complete or partial, should be proceeded with at once, and the other deeming it necessary, in order to accomplish this purpose, to agree previously on an organization and method of work which should enable an acquaintance to be made with the international life of the nations of America in order that the work might conform to the needs and aspirations of the New World. Moreover, those who held the latter opinion thought that the procedure pointed out by them was that provided by article 4 of the convention of 1906 which created the present commission.

After the agreement has been reached, which will be set forth at the end of this report, we take pleasure in stating that all the undersigned, as well as all the delegates with whom we have exchanged notes in this regard, are agreed that it will be impossible to proceed to a complete codification of international law at the present meeting of the commission.

The committee to which we have the honor of belonging has deemed it its duty to prepare two drafts, that of the permanent regulations of the commission and that on the organization of the several committees into which it has been decided to divide it. For the former, the draft prepared by the Brazilian delegation was taken as a basis and approved with slight modification.

For the latter, the drafts presented by the United States, Argentine, and Chilean delegations were taken into account and an endeavor made to harmonize them.

The idea prevailing in this latter draft is to divide the commission into six committees assigning international law subjects to each. Before undertaking their labor, these committees will have to request each Government, in regard to the subject assigned to them, to furnish information concerning the internal legislation of its respective country, the judicial or administrative resolutions, usages, international cases which have arisen, and modes of settling them, and finally, the mode of settlement which these Governments deem most adequate for the subject in question.

Each committee shall study all this data, as well as all international acts in which the uniform will of the nations of America is shown, especially the treaties of Montevideo of 1889 and the resolutions of the Pan American conferences. It shall give special consideration to the drafts prepared by the distinguished Brazilian jurists, Messrs. Epitacio Pessôa and Lafayette Rodrigues Pereira.

Taking into account all this information, the committees shall, in regard to those subjects on which it is possible to reach an agreement, prepare such drafts as they may deem suitable, making a note of those points on which it has been impossible to come to an agreement.

These drafts, as well as the reports embodying the points of disagreement, shall be printed in Spanish, Portuguese, English, and French for transmission to each government represented on the commission. Being given publicity, this work will be subjected to that criticism which is so necessary for a better study and perfection of work of this kind. Thereupon, they shall be studied at the next meeting of the Commission of Jurists.

The drafts which receive the approval of two-thirds of the delegations in the commission shall be considered at the next international Pan American conference, it being possible also, if the Governments so decide, to adopt them diplomatically.

II.

The motion of the delegations from Chile and Argentina, of which we have made mention at the beginning of this report, demonstrates the complexity of the mission intrusted to the commission. They furthermore deemed that, before undertaking the work of codification, it will be absolutely necessary for all the delegations to proceed to an exchange of ideas in regard to fundamental points, which shall relate chiefly to the underlying idea of codification, to a determination of the subjects thereof and to the method of work.

The commission shall likewise consider the motion presented by the Chilean delegation to the Fourth Pan American Conference, according to which the draft codes are to be divided into two parts, one comprising matters of worldwide interest and the other subjects of concern to America only.

The undersigned Chilean delegate, who sanctioned this proposition, declares that its purpose was not, as was supposed by some, to establish a material division implying an antagonism between the two groups of subjects and leading to the creation of a set of exceptional rules or rules opposed to international law. The grounds stated for this proposition define its real scope, which is to take matters of world-wide interest to The Hague conference in order that they may be discussed there by all the nations of the earth, a procedure which there would be no reason for recommending that it be applied to subjects solely American in character; that is, which concern our continent in a special or more direct manner.

We deem very worthy of consideration the various observations contained in the material presented to this commission by the Chilean and Argentine delegations, as well as that presented by the Chilean delegation to the Fourth Pan American Conference.

In regard to some of these ideas, the undersigned express their opinion in the appended drafts of regulations, and regarding the others we deem it more suitable that each special committee attach to it such importance as in its judgment it may deserve.

III.

While we, the undersigned, agree that the present session of the commission should deal particularly with the organization and method of work, we likewise think that two committees may be appointed at once to propose at the next session of this assembly only two drafts of resolutions, one regarding extradition and the other on the execution of judgments.

In view of the foregoing considerations, we have the honor to propose that the assembly of jurists adopt the following resolutions:

1. To approve the appended draft of regulations for the International Commission of Jurists.

2. To appoint two committees of five members each for the preparation during this session of a draft on extradition and another on the execution of foreign judgments.

3. To approve the appended draft on the organization of six special committees intrusted with preparing a codification of public international law and private international law.

4. To designate the month of June, 1914, for the second meeting of the Commission of Jurists at Rio de Janeiro.

Rio de Janeiro, Monroe Palace, July 6, 1912.

• John Bassett Moore.
• N. Quirno Costa.
• Candido de Oliveira.
• Alejandro Alvarez.
• Hernán Velarde.

Note.—The United States delegation signs the report of the committee under a provisional reservation in regard to the recommendation that committees be appointed to prepare and present drafts of codes on extradition and the execution of foreign judgments for adoption by the commission at its present session.

John Bassett Moore.

draft of regulations for the international commission of jurists.

Article 1. The president of the commission, elected by a majority of the delegations present at the inaugural meeting, will discharge this office until the next session.

The commission shall have a secretary general appointed by the government of the country in which the commission holds its meetings.

The order of precedence of the delegations shall be determined by the alphabetical order of the respective nations. At the first session the delegation whose members are to take the place of the president in case of absence shall be designated by lot.

Each delegation shall designate the delegate who is to preside over the session in this case.

Art. 2. It shall be the duty of the president—

1. To preside over the sessions of the commission and place under discussion the subjects comprised in the order of the day.

2. To recognize the delegates in the order in which they ask the floor.

3. To decide all questions of detail raised during the discussions. If any delegation should so request, this decision shall be submitted to deliberation.

4. To submit the matters under discussion to a vote and announce the result of the ballot.

5. To designate through the secretary general, and at the end of each session, the matters which are to be dealt with at the following session.

6. To have the secretary, after the approval of the minutes, give an account to the commission of the matters and projects presented subsequently to the previous session.

7. To adopt all necessary measures for the maintenance of discipline and the enforcement of the regulations.

Art. 3. It shall be the duty of the secretary general—

1. To have under his direction the secretaries, assistants, and other employees necessary for the service of the commission, and to distribute their work among them.

2. To carry on the official correspondence of the commission in conformity with the resolutions of the latter or of the president.

3. To prepare the minutes of the sessions and see to their printing and distribution among the delegates.

4. To prepare the order of the day in accordance with the instructions of the president.

5. To examine the translations made by the secretaries or interpreters.

6. To distribute among the special committees at the meetings of the commission, the matters which belong to them, and to place at their disposal all supplies necessary for the performance of their tasks.

Art. 4. Each delegation shall have a single vote. The ballots shall be taken orally, unless some delegation shall ask that they be in writing. In such case, each delegation shall deposit a ballot with the name of the nation it represents and the way it votes. The secretary shall read the ballots aloud and count the votes.

Art. 5. The presence of the representatives of at least 12 of the countries which signed the convention of 1906 shall be necessary to constitute a quorum of the commission.

No meeting of the commission shall be held without two-thirds of the delegations represented being present thereat.

Art. 6. In order that a resolution may be considered as being approved, it must receive a majority of the votes of the delegations present at the meeting in which the vote is taken. A delegation which has sent its vote in writing to the secretary general shall be considered to be present.

For the approval of drafts intended to form part of the codes, two-thirds of the votes of the delegations present shall be necessary.

Art. 7. When, owing to absence or abstention from voting, the majorities required by the preceding article are not obtained, the vote shall be repeated at the following session; and if the abstentions continue at this session, the vote shall be taken by the majority or two-thirds of the delegations which do not refrain from voting.

Art. 8. The delegates may speak or express their ideas in writing in their own language. The delegate or one of the interpreters or secretaries of the commission shall make a summary of the speech or written work in such language or languages as any delegate may request.

Art. 9. No delegate shall speak more than once or longer than 30 minutes on the same subject. However, the author of any draft or proposition may speak a second time for 15 minutes.

Any delegate may take the floor for five minutes only on a question of personal privilege, or to give the grounds for his vote.

Art. 10. The deliberations of the assembly shall not be public. The only persons admitted to the meeting room shall be the delegates, secretaries, assistants, and employees of the commission. The commission may, nevertheless, permit such persons as it may deem suitable to attend the sessions.

The secretary general shall furnish the press a summary of each session, unless a resolution be taken to the contrary.

Art. 11. The reports and motions presented to the commission shall be printed in Spanish, English, Portuguese, and French, and distributed to the delegates for their study, and they shall not be subjected to discussion until a session subsequent to that in which they were distributed.

Art. 12. In cases not provided for by the present regulations, whatever may be decided upon by the majority of the commission shall prevail.

• John Bassett Moore.
• Candido de Oliveira.
• Alejandro Alvarez.
• Hernán Velarde.
• N. Quirno Costa.

draft for the organization and method of work of the committees into which the international commission of jurists is divided.

• Article I. The International Commission of Jurists intrusted with the preparation of a draft code of public international law and another of private international law to govern the relations among the nations of America, shall be divided into six committees.
• Art. II. The committee shall be organized as follows:

  1. The first committee shall meet in Washington and be composed of delegates John Bassett Moore, chairman (United States); Frederick Van Dyne (United States); Victor Manuel Castillo (Mexico); Antonio Batres Jáuregui (Guatemala); José Matos (Guatemala); Alonso Reyes Guerra (Salvador), a delegate from Costa Rica, and Gen. Dr. Santiago de la Guardia (Panama).

  This committee, meeting at Washington, shall have power to divide itself into two, as far as possible equal in number, indicating the delegates who are to compose them and the subjects which they are to study.

  2. The second committee shall meet in Rio de Janeiro and be composed of delegates Epitacio Pessôa, chairman (Brazil); José Maria Uricoechea (Colombia); Hernán Velarde (Peru), and a delegate from Cuba.

  3. The third committee shall meet at Santiago de Chile and be composed of delegates Norberto Quirno Costa, chairman (Argentina); Alejandro Alvarez (Chile); Victor Sanjinés (Bolivia); Matias Alonso Criado (Ecuador).

  4. The fourth committee shall meet at Buenos Aires and be composed of delegates Miguel Cruchaga Tocornal, chairman (Chile); Carlos Rodriguez Larreta (Argentina); Roberto Ancisar (Colombia); Juan Zorilla de San Marín (Uruguay).

  5. The fifth committee shall meet at Buenos Aires and be composed of Delegates Cecilio Baez, chairman (Paraguay); Eusebio Ayala (Paraguay), Jose Pedro Varela (Uruguay), Candido Luiz Maria de Oliveira (Brazil).

  6. The sixth committee shall meet at Lima and be composed of Delegates Alberto Elmore, chairman (Peru); Pedro Manuel Arcaya (Venezuela), a delegate of Bolivia, and a delegate from Cuba.

• Art. III. If one of the delegates appointed shall resign or be unable to discharge his duties, the special committee to which he belongs shall request the Government concerned to fill his place.
• Art. IV. Delegates appointed by countries not represented in the present commission, as well as delegates designated by countries which have now designated only one delegate, shall be assigned by the president of the commission to the various committees, with the consent of the governments of the countries concerned.
• Art. V. It shall be the duty of the first of these committees to prepare drafts relating to maritime war and the rights and duties of neutrals; of the second, drafts relating to land warfare, civil war, and the claims of foreigners arising from such wars; of the third, drafts relating to subjects comprised in what is called a state of peace; of the fourth, drafts relating to the peaceful settlement of controversies and the organization of international tribunals; of the fifth, drafts relating to the following subjects of private international law—capacity, status of foreigners, family rights, successions; of the sixth, drafts relating to subjects of private international law not comprised in the foregoing enumeration, including matters relating to the conflict of penal laws.
• Art. VI. The committees established by the foregoing articles shall be intrusted with the preparation, within the limits of the subjects assigned them, of draft codes of public international law and private international law in accordance with the following provisions:
• Art. VII. In order to prepare these drafts each committee shall ask each Government to furnish, with respect to the matter assigned to the committee, a detailed report concerning its domestic legislation, its judicial or administrative decisions, its conventions, its usages, the international cases which have arisen and the way in which they have been settled, and, finally, the mode of regulation which each Government considers most adequate for the subjects in question.
• These reports, with the exception of the printed documents appended to or mentioned in them, shall be printed in Spanish, Portuguese, English, and French. Each Government shall be furnished 25 copies of each report.
• Art. VIII. The committees, with the documents mentioned in the foregoing article before them, shall proceed to prepare the draft or drafts. For this purpose they shall also take into consideration the draft code of public international law and the draft code of private international law edited by the Brazilian jurists Messrs. Epitacio Pessôa and Lafayette Rodrigues Pereira, respectively. It shall likewise give preferential attention, as recommended by the convention of 1906, to the principles and points which have formed the subject matter of uniform agreements in treaties and conventions and in regard to which there is conformity among the laws of the nations of America, and especially the treaties of Montevideo of 1889, the conventions signed by the international American conferences, the debates to which they severally gave rise, and other subjects which constitute a substantial juridical advance or which tend toward the elimination of misunderstandings or controversies among those same nations.
• Art. IX. The drafts prepared by each committee shall be printed in Spanish, English, Portuguese, and French, and communicated to each Government. The same shall be done in regard to the points on which the committee is unable to reach an agreement. These drafts or points of disagreement shall be dealt with at the next meeting of the commission.
• Each committee may ask one or more Governments represented to assign experts for the study of special subjects.
• Art. X. Every draft adopted by the commission by a majority of two-thirds the delegations present shall be considered at the next international American conference, or else the Governments may adopt it immediately by convention.
• Art. XI. Each committee shall meet on the date designated by its chairman, in accord with the committee itself.
• Art. XII. The expenses incident to the preparation and printing of the reports and drafts referred to in the foregoing articles, as well as any other expense connected with the work of the committee, shall be defrayed in accordance with article 6 of the convention of 1906, which established the Commission of Jurists.

Rio de Janeiro, Monroe Palace, July 6, 1912.

• John Bassett Moore.
• N. Quirno Costa.
• Alejandro Alvarez.
• Candido de Oliveira.
• Hernán Velarde.

Exhibit 10.

Public statement made by Mr. Moore, United States delegate, after the adjournment of the Congress, in reply to certain questions.

“A. Do you think that successive international conferences will give a practical result?”

Answer. The great and beneficient results already accomplished by international conferences justify an unhesitating affirmative answer. There is indeed every reason to believe that even more important results will be obtained by this means in the future than have been secured in the past.

“B. Especially in reference to the codification of international public and private law, do you think the results will be favorable?”

Answer. Undoubtedly. In so answering, however, I interpret the word “codification” in a general and comprehensive sense. During the past hundred years, and especially during the last fifty, great progress has been made in the work of embodying the rules of public international law in international agreements of world-wide operation. This is in reality codification, whether we describe it by that name or not. The process will go on. The codification of private international law is more difficult, because it deals with private rather than with public law, and involves to a great extent the element of procedure, which, according to a well-recognized rule, is governed by local law. This rule is not artificial, but inheres in the nature of the subject. It is important always to bear in mind that the object of law is the attainment of justice; that the different forms which prevail in different countries under their various legal systems have presumptively been worked out for the accomplishment of that end; and that efficiency is more to be desired than a preconceived uniformity of methods.

“C. Do you think it possible and reasonable that such codification should be for the exclusive use and interest of the North and South American countries?”

Answer. I do not, except so far as it may relate to conditions peculiarly local. So far as concerns principles of general application and interest, American countries will work in the spirit of cooperation, in the hope that the results of their labors may find world-wide acceptance through The Hague conferences or otherwise.

“D. Do you think that this work is well begun, or do you think like many people that the actual meeting was a fiasco?”

Answer. I unconditionally take my place with those who think that the work is well begun. Although I am aware that there has been some difference of opinion on this subject, I believe that the difference was due solely to the general and earnest desire felt on all sides to adopt the course that would best assure the accomplishment of the great object which all had at heart. This was the motive of those who wished the congress to proceed at once to the discussion and adoption of codes, just as it was the motive of those who, without regard to the intrinsic merits of the Brazilian projects, believed that such a course was impossible, and would, if entered upon, prove to be fatal.

According to the latter view, it was not enough that preparatory work, no matter how able and admirable it was, had been done in one country, for nothing could become a law without the assent of all the countries concerned, and the possibility of obtaining such an accord could be ascertained only by a thorough and comprehensive study of the jurisprudence, statutes, decisions, and practices of each country, as well as of international decisions and international conventions. This was not the task of a day or of a few months, nor could it be performed offhand by any body of men, no matter how capable and learned they might be. In this relation it is pertinent to recur to the history of the recent Imperial German Civil Code. In the first place, a commission was created for the purpose of preparing a project. This commission was appointed in 1874, and devoted 13 years to its work, presenting its report in 1887. After three years of public discussion, the project was committed to another commission, in 1890. The code received the imperial approval only in 1896, but did not take effect till 1900, 26 years after the appointment of the first commission. And yet the States for which this code was adopted were not only united under a Federal Government with a supreme legislature, but had similar political and legal traditions. I do not intend to intimate that the American nations, although they lack such similarity of traditions, may not progress more rapidly in the codification of international law than the Germans did in the codification of their civil law, but such progress will be possible only after the necessary groundwork has been laid through the labors of the committees into which the International Commission of Jurists has, by the decision of the recent Congress, been divided. This plan I believe to be the best that was attainable under the provisions of the convention of 1906, and we may look forward with confidence to the possibility of achieving valuable results on the reassembling of the commission at Rio de Janeiro in June. 1914, after the delegates have had an opportunity to become better acquainted with their task.

“E. If more could have been done, who should be held responsible for the bad result, and what are the reasons that caused it?”

Answer. The International Commission of Jurists is as a body responsible for the decision at which it arrived, but the votes of the members are a matter of record, and it is hardly possible that any delegate who by argument or by vote contributed to that decision would desire to evade a full measure of individual responsibility for it. The commission, acting intelligently, and with a full comprehension of the question before it, decided by a vote that bordered on unanimity, that the object of its first meeting was, as the convention of 1906 indicated, that of organization and distribution of work. The appointment of committees immediately to report projects on extradition and the execution of foreign judgments was a concession to those who, with equal intelligence and sincerity, maintained the opposite view; but I venture little in saying that the results demonstrate that the attempt to proceed at once to the discussion and adoption of projects of codes was premature. I yield to no one in homage to Brazil and her distinguished jurists for having gone far in advance of what the convention of 1906 required. It was an achievement worthy of a generous and high-minded nation, and the highest tribute that could be paid to it was to take care that it should not be lost by hasty, superficial, and ill-considered action.

Speaking for my own Government, I may say that the draft codes reached it only toward the end of last year, and the agreement to hold the congress was signed only in January, 1912. On the eve of sailing for Brazil I was furnished with copies of the original drafts in Portuguese and with an English translation of them, but I do not hesitate to say that there had scarcely been an opportunity to make a competent translation of the texts into English, for by a translation I mean not the mere matching of word for word, but the conversion of the sense and idiom of the one text into the equivalent sense and idiom of the other. Nor was this all. The phraseology was legal, and the task of finding equivalents, involving as it did the comparison of widely different systems of law, could be performed only by legal experts and under expert legal supervision. The services of men competent for such a task can not usually be secured on a moment’s notice. It is to be remembered, too, that the preparation of the different texts is not a mere matter of convenience, for, as is perfectly understood and agreed, each Government will deal with and primarily be bound by the text in its own language.

For the performance of work such as this, as well as for the performance of other preliminaries essential to the adoption of codes, the organization of the commission and the distribution of its work has now for the first time provided, in conformity with the design of the convention of 1906, the appropriate machinery. Only those unfamiliar with the subject can fail to grasp the necessity and the importance of what has been done. The plan adopted was the result of long and conscientious deliberation, and may be regarded as a worthy testimonial to the united desire of the late congress to discharge its whole duty faithfully and effectively. The execution of the task which the plan imposes will require, on the part of the six committees into which the commission has been divided, serious and exacting labor, and the manner in which this labor is performed and the results which it affords will disclose the possibilities of codification under the conditions prescribed by the convention of 1906.

Exhibit 15.¹

Minutes of the fifth regular session.

[Extract.]

On the 16th day of July, 1912, at 1.30 p.m., in the Monroe Palace, the session was opened * * *.

The president states that the order of the day is the final wording of the draft on extradition, which has been distributed among the delegates, and he thereupon gives some explanations in regard to the said wording, which is approved without discussion. * * *

draft on extradition.

Article 1. Extradition between the nations shall be compulsory.

Art. 2. In order that extradition may be granted, it shall be necessary—

(a) That the claimant nation have jurisdiction to prosecute and try the act on which the extradition is based.

(b) That the persons demanded be guilty, as principal or accomplice, of a violation of a penal law punishable in both nations with a penalty not under two years of imprisonment.

(c) That the demanding nation present documents which, in accordance with its laws, warrant the imprisonment of the person in question. (Art. 13.)

(d) That the violation or penalty be not barred by limitation according to the laws of both nations.

(e) That the fugitive, if he has already been convicted, shall not yet have served his penalty.

Art. 3. If the offense has been committed outside the territory of the demanding nation, the extradition shall not be granted unless the law of the nation of refuge authorizes, under identical conditions, punishment of the same offense when committed outside its territory.

Art. 4. Extradition shall not be permitted—

(a) When the person whose extradition is requested is under prosecution or has already been tried or pardoned in the nation of refuge for the same offense.

(b) When it is a question of political crimes or others connected therewith (excepting the murder of heads of nations), or of crimes against religion, or of purely military offenses.

(1. It shall be the duty of the requested nation to decide as to the political nature of an offense, taking into account the law which is most favorable to the fugitive.

2. Acts characterized as anarchy by the laws of both nations shall not be considered political crimes.

3. The surrender of naval or land deserters shall be optional, but it shall not be permissible for any nation to enlist the deserters from other nations in its armed forces, army, navy, or police.

Art. 5. The nationality of the fugitive shall never constitute a hindrance to extradition; however, no nation shall be obliged to deliver up its own citizens, unless the citizenship has been acquired since the act giving rise to the demand was committed.

Section 1. A nation which refuses to deliver up one of its citizens shall be obliged to prosecute and try him on its own territory, in accordance with its own law, and on the basis of such evidence as may be furnished it for this purpose by the demanding nation.

Art. 6. The surrender of the fugitive shall be delayed as long as he is under penal prosecution for another cause in the nation of which the extradition is requested, but this fact shall not interfere with the progress of the extradition proceedings.

Art. 7. Any civil obligations contracted by a person whose extradition is requested toward the nation of refuge shall not interfere with his surrender.

Art. 8. If the act committed by a person demanded is subject to the death penalty, the nation of refuge may, before granting the extradition, demand that this penalty be commuted to that next below.

Art. 9. When the extradition has been obtained, the demanding nation shall not be allowed to hold the guilty party responsible for any other act than that on which his surrender was based, unless the demanded nation has previously consented to his being tried for other offenses, or unless it is a case of an offense connected therewith and based on the same evidence as that of the request.

Art. 10. The provision of the foregoing article shall not comprise the case in which the extradited party himself freely and expressly consents to being tried for another act, or, after being set at absolute liberty, remains within the territory of the nation for a period exceeding one month, nor the case in which it is a question of offenses committed subsequently to the extradition.

Art. 11. The demanding nation shall not, without the consent of the nation of refuge, deliver up the extradited party to a third nation demanding him except in the cases contemplated in the foregoing article.

Art. 12. If several nations request the extradition of the same person for the same act, the nation in whose territory the offense has been committed shall be given preferential attention; if the extradition is requested for different acts, the nation to be given preference shall be the one in which the gravest offense has been committed, in the opinion of the nation of refuge; or, if the acts are of equal gravity, the first nation to request extradition shall be given the preference. When all the requests are presented on the same day, that of prior date shall prevail; if all are of equal date, the nation requested shall determine the order to be followed. In all the cases contemplated by this article, except the first, the reextradition of the offender may be stipulated so that he may be subsequently delivered up to the other requesting nations.

Art. 13. The extradition shall be requested through the diplomatic officers, and in the absence of the latter, through the consuls, or directly from Government to Government, the request being accompanied—

(a) By a copy of authentic transcript of the final sentence, together with proof that the criminal was summoned and represented at the trial or declared legally in default; or, if it is not a case of a convicted party, by a writ instituting criminal proceedings, issued by a judge or competent authority and formally decreeing or ipso facto effecting the subjection of the accused party to trial and substantiated by an authentic copy of the penal law applicable to the offense on which the request is based.

(b) By all the data and facts necessary in order to establish the identity of the person whose extradition is demanded.

Section 1. The documents required under (a) shall be issued in the form prescribed by the legislation of the demanding nation and shall contain an accurate statement of the acts charged and of the place and data at which it was committed.

Art. 14. In urgent cases the fugitive may, even by virtue of a telegraphic request, be placed under provisional arrest until the demanding nation presents to the requested nation, within the period to be fixed by the latter, and which shall not exceed two months, the formal request duly substantiated.

Section 1. All responsibility arising from the provisional detention shall be borne by the nation requesting the latter.

Art. 15. When the documents accompanying the request are deemed insufficient or irregular, owing to form, the requested Government shall return them in order that the deficiencies may be supplied or the defects corrected, and the party, if under arrest, shall remain under arrest until the period referred to in the foregoing article has expired.

Art. 16. The request for extradition, as regards the formalities connected with it, the decision as to whether it shall be admitted, and the admission and weighing of any defense which may be made against it, shall, as far as is not contrary to the provisions of this code, be subject to the decision of the competent authorities of the nation of refuge, in accordance with the legislation of that nation.

Section 1. The right of the individual demanded to utilize the remedy of habeas corpus or amparo shall be guaranteed in all cases, as shall also the right to demand release on bail, provided the conditions prescribed by the law of the demanding nations are fulfilled.

Art. 17. Together with the person claimed, or even subsequently, there shall be seized and delivered all articles found in his possession or deposited or hidden in the nation of refuge and which may have occurred in the perpetration of the punishable act or which may have been obtained by means of this act, as well as those which may serve as convicting evidence.

1. These articles shall be delivered up, even though because of the death or flight of the fugitive, the extradition does not take place, provided it has already been granted. If it has not yet been granted, the proceedings shall continue for that purpose.

2. Articles seized and which are in the possession of third parties, or in the hands of the offender but belonging to third parties, shall not be surrendered unless the latter are heard and state whatever objections they may have, and the articles shall be restored to them, if they are entitled thereto, without any expense, upon the termination of the proceedings.

Art. 18. The fugitive shall be taken, by agents of the requested nation, to the frontier of the latter, or to the port which is most appropriate for embarkation, and he shall there be delivered to the agents of the requesting nation.

Art. 19. The transit of the extradited party through the territory of a third nation shall be permitted upon the mere extradition of the original copy or an authentic transcript of the document granting the extradition, provided the offense is also punishable according to the laws of such third nation.

1. If the extradited party is a citizen of the third nation, the granting of the passage shall be optional.

2. The transit shall take place under the escort of agents of the third nation.

Art. 20. The expenses of the extradition shall be borne by each nation within the limits of its territory. Those of transportation through intervening nations, or by sea, shall be borne by the requesting nation.

Art. 21. A nation which secures the extradition of a person who has not been convicted shall be obliged to communicate the final sentence to the nation granting extradition, as rendered in the trial for which the extradition was requested.

Art. 22. The extradition of persons accused of acts of anarchy may be requested, provided the legislation of both nations punishes such acts. In this case the extradition shall be granted, even if the penalty prescribed is less than two years’ imprisonment.

Art. 23. The person demanded may be restored to liberty and shall not be again arrested for the same cause if, after the extradition has been granted, the proper diplomatic or consular officer fails to send him to his destination within 20 days from the date on which he was placed at his disposal.

Art. 24. Existing treaties shall remain in force so far as they are not contrary to the foregoing principles or afford greater facilities for extradition, especially as regards offenses which warrant extradition and as regards the preference in granting it when it is requested by several nations on the same date.

The nations may likewise conclude new agreements on extradition provided they observe these conditions.

Exhibit 16.

Minutes of the sixth regular session.

[Extract.]

On July 17, 1912, at 3 p.m., the session was opened. * * *

* * * The president states that, when the previous session adjourned, he thought of having a copy prepared of the approved draft on extradition, in order to receive the signatures of the delegates present; but in view of the opinion of the majority of the latter (which he heard) to the effect that the labors of the commission should not have assigned to them the character of final treaties, he agreed with the delegates that the chair should merely authenticate the copies which are to be sent to the Governments here represented.

The order of the day is now taken up, consisting of a discussion and vote on the report of the committee charged with preparing a draft on the execution of foreign judgments.

The secretary general reads the report, first giving explanations of the omissions and discrepancies which are noted in the printed copies distributed among the delegates. When the reading is finished, Dr. Candido de Oliveira, of Brazil, sends to the desk the draft he had prepared and of which the committee had meanwhile adopted some ideas.

The report having been placed in discussion, Dr. Victor Castillo, of Mexico, takes the floor and sets forth some lengthy considerations regarding what transpired in the committee regarding the difficulties which it encountered (as mentioned in its written note), and he finished by proposing that the Commission of Jurists, in view thereof, decide to send the report, the drafts annexed thereto, and the respective amendments to that one of the committees charged with the study of private international law which has to do with the execution of foreign judgments.

This proposal being placed in discussion, Drs. Candido de Oliveira, of Brazil, and Alberto Elmore, of Peru, speak against it, as does also Dr. Victor Castillo, of Mexico, in reiteration of his arguments. The president states that as no one else wishes to speak he will declare the discussion closed, and he will call for a vote first on the proposition of the delegate of Mexico.

The proposal is approved, in view whereof the president declares that the Chair will send the whole matter under discussion to the sixth committee, which is to meet at Lima, and which appears to him to be the competent one.

draft on the execution of judgments and letters rogatory.

The special committee encountered serious difficulties in preparing a draft on the execution of foreign judgments which should embrace all the points which this subject should cover. The opinion was then expressed in the committee by one of its members (this being appended separately as a note to this draft) regarding the impossibility of arranging this draft independently of the data which would be necessary in order to obtain the probable consent of the interested nations, these data being properly deemed necessary by the international commission in order that the other committees might undertake their work, but in the case of our committee they were deemed unnecessary in spite of the fact that the question submitted to our study so intimately concerns the sovereignty of the nations.

The said note is also founded on a variety of systems followed by the legislation of the American nations, which systems are difficult to harmonize in spite of the great spirit of conciliation with which those who sign the present draft are imbued.

The most serious difficulty seems to relate to a lack of knowledge of the system to be adopted by the fifth and sixth committees, which are instructed to present a draft code of private international law, so that the work projected by us lacks the unity which is essential to every conscientious work if we were now to decide in favor of some system.

The committee being aware of the force of these arguments, nevertheless thought that it ought to perform its duty, even though in an insufficient manner, according to its own view, provided it obeyed, as far as possible, the instructions which it received from this honorable assembly. Even though it does not succeed in attaining anything but an embodiment, as a principle of international law, of the execution of judgments rendered abroad, nevertheless, in view of the impossibility of accepting a uniform system, we believe that the only thing possible at the present time consists in respecting in this point the law of the country of execution.

This circumstance greatly diminishes the sphere of our action; but, on the other hand, we leave the field open for the study of more important questions by the fifth and sixth committees, which, with the draft which we now present, will encounter no obstacle in adopting the system which they may deem most suitable to propose to the Commission of Jurists.

We must state, as an homage to the illustrious author of the draft presented by the Brazilian Government, his excellency Mr. Lafayette Rodrigues Pereira, that the special committee accepted in general the articles of his draft with the modifications suggested by the difficulties set forth.

The committee, moreover, deemed it necessary in order to sanction a universal practice among nations and in order to better elucidate the ideas of some of the articles of the draft, to add one relating to letters rogatory in connection with court proceedings during trial, likewise taken from the Lafayette draft.

In view of the foregoing, we submit the following to the Commission of Jurists:

• Article 1. A judgment rendered in one nation shall be capable of being executed in another.
• Art. 2. In order that it may be admitted to execution, it will be necessary for the judgment to first obtain the proper exequatur or approval of the executive or judicial branch, in accordance with the laws in force in the country where the judgment is to be executed.
• Art. 3. The granting of the exequatur shall be subject to the following requirements:

  (1) The judgment shall be provided with the external formalities showing its authenticity.

  (2) It shall have become final in accordance with the legislation of the country in which it has been rendered.

  (3) It shall not be contrary to the laws of public order of the nation in which it is admitted to execution.

  (4) It shall have been preceded by a summons of the parties.

• Art. 4. It shall be necessary to present to the executing judge an authentic translation of the judgment in the language of the country in which the judgment is to be executed.
• Art. 5. A foreign judgment which has received an exequatur or approval shall become final.
• Art. 6. The foregoing provisions are applicable to arbitral awards whose authenticity and effectiveness are attested by a certificate of the court of the country in which they have been rendered.
• Art. 7. The execution proceedings and incidents thereof shall be governed by the laws and practices in force in the nation in which the judgment is to be executed.
• Art. 8. Letters rogatory sent by the judge of one district to that of another shall be subject to compulsory execution when they request the performance of certain acts or formalities of importance during the course of legal proceedings, such as the summoning of parties, the taking of testimony, inspections, examinations of books, taking of oaths, etc.

The requested judge shall observe the formalities of the laws of his country.

Rio de Janeiro, Monroe Palace, July 22, 1912.

(Signed) Miguel Cruchaga.

Article 1 accepted on condition that the judgment to be executed is not opposed to the laws of the country of execution.

(Signed) Roberto Ancizar.
A. Batres Jáuregul.
Victor Manuel Castillo.

The committee charged with preparing at this meeting a draft on the execution of judgments can not, according to my idea, duly fulfill its mission for the following reasons.

The idea which prevailed in the international commission when it divided between several committees the preparation of the drafts of a codification of international law was based on a desire to give greater solidity and constancy to the work undertaken, especially from a practical standpoint, and to this end the said commission approved the directing part of the opinion which imposes on the committee before undertaking their work the duty of requesting of each Government in regard to the subject indicated information on the internal legislation of its respective country, the judicial or administrative resolutions, conventions, international cases which have occurred, and settlements which have been given them, and finally the mode of regulation which these Governments deem most suitable for the matter under consideration. I do not see any reason why, since this rule was considered very appropriate and suitable for the other committees, an exception should be made in the case of our committee in a matter which so intimately concerns the sovereignty of the nations.

The diversity of systems adopted in American legislations, from the necessity of an exequatur, accompanied by the possibility of a contentious suit and the intervention of the public prosecutor, to the simple decision of a judge of first instance, rendered on a petition by a party and without summoning the litigants; from those which admit only of the execution of judgments which have been brought about by a personal action to those which give executory force to any judgment, even if rendered by default, with the exception of those which offend recognized public order; this constitutes another obstacle in the way of the committee’s entertaining the fond hope of arriving in a short time at an acceptable conclusion, even though its members be animated, as they are, with the best spirit of conciliation.

Moreover, the international commission appointed two committees (the fifth and sixth) charged with the elaboration of the drafts on private international law, so that we could not, without breaking the unity of the work, without knowing the system to be adopted by these committees, work out beforehand a draft on the execution of judgments which might deviate from the trend given them by those committees. Nor shall it be said that we can accept general or optional principles or exclude from the draft the indispensable examination of the international jurisdiction which is inevitably entailed by the application of the dominant system accepted in each country, for we should thus be performing an exceedingly deficient work on the one hand and an unnecessary work on the other, since there is not an American nation which does not, with more or less restrictions, admit the execution in its territory of judgments or decisions of foreign judges.

From what has been said I am of opinion, subject to the better judgment of my illustrious colleagues, that the International Commission of Jurists should be requested to permit our special committee to present its work after the committees charged with the drafts on private international law have adopted the system which they are to present in the way of a draft for its approval at the next session of the Commission of Jurists.

Candido de Oliveira, with restrictions. The Brazilian delegate thinks there is no difficulty in the immediate arrangement of the draft relating to the execution of foreign judgments which the Commission of Jurists almost unanimously thought ought to be prepared at this same session.

The jurists of the several nations previously had knowledge of the two drafts prepared by the Brazilian Government to serve as a basis for the discussion.

In the draft on private international law there was Chapter VII, which deals with the very subject the examination of which was intrusted to this committee.

Even if it were a case of a new law, which can only be in force after approval by the legislative branch of each nation, it would matter little if rules were established which were contrary to some principles laid down in the local laws.

The very purpose of private international law is to settle conflicts between legislations.

I therefore think that we ought to perform a more complete work than that outlined by the majority of the committee.

Some of the ideas which I expressed during the discussion were, to be sure, accepted and form part of the draft which is to be submitted to the consideration of the illustrious general commission. However, I deem that the following provisions should not be left aside, they having been embodied in the draft which I had the honor to submit to the committee and which the latter revised in the draft which it prepared.

Thus it is suitable that the following be added:

To article 6, No. 1:

The territorial judge or court shall not have the authority to modify, alter, derogate, supersede, or annul the judgment; he shall confine himself solely to declaring the judgment not subject to execution in case it contains a decision which infringes or offends laws of public order.

Let the following also be added:

Art. 9. Independently of the approval and solely on exhibition of the judgment of bankruptcy and of the certificates of appointment, in authentic form, of the legal representatives of the creditors these representatives shall be authorized, as mandatories, to demand, in the nation where the judgment is being executed, proceedings tending to preserve the rights of the creditors, collect debts, compromise, if they have powers of attorney for this purpose, and bring actions without the obligation of furnishing bond or costs. However, the attorney who institutes judicial proceedings shall be liable for these costs.

1. Any acts which involve the execution of judgments, such as the receiving and sale of the property of the bankrupt, shall be performed only after the judgment is rendered executory, by means of the approval or exequatur, the forms of the local law being observed.

2. Notwithstanding the approval or exequatur, the creditors domiciled in the nation where the judgment is executed and who have mortgages on property there situated shall be prohibited from demanding their claims and foreclosing the mortgaged property.

3. Concordats and other means of forestalling a declaration of bankruptcy shall be subject to approval or exequatur, and they shall only be binding on those creditors who have been summoned to take part therein.

Exhibit 17.

Final meeting of the commission.

[Extract from the Jornal do Comercio (Rio de Janeiro) July 20, 1912.]

The seventh meeting of the Commission of Jurists was held yesterday. * * *

The floor was taken by Dr. Epitacio Pessôa, who gave a summary of the labors; by Dr. Zorilla de San Martin, delegate from Uruguay, in behalf of all the foreign delegates; and finally by Dr. Lauro Müller, who gave thanks in the name of the Brazilian Government and people.

The speech of Dr. Epitacio Pessôa was in part as follows:

The work of the International Commission of Jurists being terminated for the present, in accordance with the opinion approved on the 5th instant, at its second regular session. I must, before declaring the work to be adjourned until the time assigned for our second meeting (June, 1914), present to you a slight sketch of the work accomplished during this first period.

At the first regular session, held on June 28, the delegations from Argentina and Chile presented a statement proposing that, before any work were undertaken on the codification, a committee of five members be appointed to secure the opinions of the several delegations regarding the underlying idea of the codification, the subjects which it should embrace, the method of work connected therewith, and any other points which might be suggested by the delegations, and to ascertain wherein and to what extent an agreement might be reached.

On July 6th the committee appointed presented, together with its opinion, a draft of internal rules and a draft on organization and method of work, and proposed besides: (1) That there be appointed two committees of five members each, one to prepare during these very sessions a draft on extradition and another on foreign judgments; (2) that the month of June, 1914, be set as the date for the next session of the International Commission of Jurists. This opinion was approved at the session of the 8th instant,* * *. The aforementioned draft on organization and method of work provides for the division of the International Commission of Jurists into six special committees, four for the codification of public international law and two for that of private international law, which committees are to act, during the interval between the two meetings, as follows: The first at Washington, with the privilege of subdividing into two parts; the second at Rio de Janeiro; the third at Santiago de Chile; the fourth at Buenos Aires; the fifth at Montevideo; and the sixth at Lima. The first four are to have in charge the codification of the following subjects of public law: The first, maritime war and the rights and duties of neutrals; the second, land war, civil war, and claims arising from such wars; the third, a state of peace; and the fourth, pacific settlement of controversies and organization of international courts. Private law was distributed as follows: To the Montevideo committee, capacity, status of foreigners, family rights, and successions; to the Lima committee, everything not comprised within this enumeration, including penal law.

Each special committee is to request of the American Governments, in regard to the subject allotted to it, minute information regarding the internal legislation of the nation, its judicial and administrative precedents, conventions, usages, settlements of international cases, and finally the mode of settlement which these Governments deem most suitable for the subject in question; and when in possession of these data it is to proceed to a codification of the point within its jurisdiction, taking into consideration the draft codes presented by the Brazilian Government, the principles in regard to which an agreement already exists in conventions or laws, the treaties of Montevideo of 1889, the labors of the Pan American conferences, etc. The drafts worked out by the committees, as well as those subjects on which it is impossible to come to an agreement, are to be submitted to the international commission at its next sessions in 1914.

I take pleasure in stating that the third and sixth special committees have already met here and arranged the plan of their labors.

In accordance with the proposition approved at the second session, the committees were appointed which are to take charge of the drafts on extradition and the execution of foreign judgments.

The draft on extradition, presented afterwards, was approved at the session of the 18th, and, in its final form, at the session of the 16th, and it will be sent to the American Governments in accordance with what was decided upon at the contention of August 23, 1906.

As to the draft on the execution of foreign judgments, it was submitted to the international commission at the session of the 17th, and, on motion of the delegation from Mexico and a vote of the majority of the commission, it was deferred to the sixth special committee of Lima for such consideration as it might deserve.

The International Commission of Jurists thus worked from June 26 until July 19, having held six regular sessions. During this period of time it prepared a draft on extradition and arranged the plans for its future labors.

We might have done more if the drafts offered by Brazil as a basis for the labors of the commission had been known to all the delegates after their distribution among the several nations, and if, on the other hand, all the Governments had furnished their representatives with the necessary instructions regarding the principal points of the codification, as had been laid down at the Pan American conference of 1906, so that the commission might immediately, with decision and method, begin the preparation of the two codes, as was the reason and object of its convocation. Nevertheless, the first efforts of the International Commission of Jurists should not be considered sterile along the line of accomplishing the extraordinary labor which the codification of the public and private international law of the two Americas will be. The working out of the draft on extradition—a matter of frequent application and of evidently practical scope—is already an accomplished fact, being the first result obtained in this crusade in which we are engaged, and at the same time it attests the commission’s capacity for labor. * * *

Note.—The official protocol of the proceedings at the seventh meeting of the Commission of Jurists has not been received, and this extract from the Jornal do Comercio is substituted, so that the present record may be complete.

1. See For. Rel. 1906, vol. 2, p. 1601, for the text of the convention establishing the commission; For. Rel. 1908, p. 2, for its ratification; it was proclaimed May 1, 1912.
2. Not printed.
2. Not printed.
1. Not printed.
1. Not printed.
1. Not printed.
1. Not printed.
1. The same, mutatis mutandis, to the other Governments concerned in the convention.
1. Exhibits 11 to 14 are the Minutes of preceding sessions, all leading to the business concluded as set forth in Exhibits 15 and 16.