Papers Relating to the Foreign Relations of the United States, 1927, Volume I

710.C2/211a

The Secretary of State to Dr. James Brown Scott⁹⁴

Washington, March 15, 1927.

Sir: The Department refers to the credentials signed by the President on July 8, 1924,⁹⁵ designating you as a Delegate to the International Commission of Jurists, which was then scheduled to meet in Rio de Janeiro in 1925. Inasmuch as that meeting was not held, and in order to obviate any question as to the adequacy of your credentials in connection with the postponed meeting, which is to be held in Rio de Janeiro in April, 1927, the Department transmits herewith a new Presidential certificate of appointment, which you will present at the appropriate time as evidence of your designation on the part of the United States as Delegate to the Congress constituted pursuant to a Resolution of the Fifth International Conference of American States. The certificate of appointment signed by the President on July 8, 1924, should be returned to the Department, through the American Embassy at Rio de Janeiro.

The Resolution of the Fifth International Conference of American States, pursuant to which the Congress of Jurists is to meet in Rio de Janeiro next month, reads as follows:⁹⁶

“Resolution.

Codification of American International Law.

“The Fifth International Conference of American States,

Resolves:

1. To request each Government of the American Republics to appoint two Delegates to constitute the Congress of Jurists of Rio de Janeiro;

2. To recommend that the Committees appointed by the Congress of Jurists be reestablished;

3. To request these Committees to undertake and to reconsider their work in the light of the experience of recent years and also in view of the resolutions of the Fifth International Conference of American States;

4. To designate a Committee for the study of comparative Civil Law of all the nations of America in order to contribute to the formation of Private International Law, so that the results of this study may be utilized at the next meeting of the Congress of Jurists. It is understood that in the term ‘Civil Law’ there are included the following topics: Commercial Law, Mining Law, Law of Procedure, etc. Criminal Law may also be included therein;

5. To convene the International Congress of Jurists at Rio de Janeiro during the year 1925; the precise date to be determined by the Pan American Union after consultation with the Government of Brazil;

6. To recommend to this Congress that in the domain of International Law, the codification should be gradual and progressive, accepting as the basis the project presented to the Fifth International Conference by the Delegate of Chile, Mr. Alejandro Alvarez, entitled ‘The Codification of American International Law;’

7. The names of the Delegates referred to in Clause 1, should be communicated to the Government of Brazil and to the Pan American Union;

8. The resolutions of the Congress of Jurists shall be submitted to the Sixth International Conference of American States, in order that, if approved, they may be communicated to the Governments and incorporated in Conventions;

9. To recommend to the Congress of Jurists that will prepare an American Code of Private International Law, that if it should consider it advisable, it decide previously the juridical system or systems to be adopted or to be combined, instructing to that effect the Special Committees to be appointed to draft said Code, and taking into consideration the motions submitted to the Fifth Pan American Conference by the Delegations of Argentine, Brazil and Uruguay, as well as any other that may be submitted.”

While this Resolution provides that the conclusions of the Congress of Jurists shall be submitted to the Sixth International Conference of American States in order that, if approved, they may be communicated to the Governments and incorporated in conventions, it appears that the purpose and scope of the Congress is similar to the purpose and scope of the International Commission of Jurists, which was created by the Third Pan American Conference,⁹⁷ and which met in Rio de Janeiro in 1912. This earlier Commission was instituted to prepare a draft of a code of Private International Law, and one of Public International Law regulating the relations between the Nations of America.

Codification is a clear, systematic and authoritative statement of existing law; it does not involve the framing of new legislation. The Delegates of the United States to the Congress of Jurists should not, therefore, participate in the drafting of new international legislation embodying changes in the existing systems of law of the Nations of the Western Hemisphere. Accordingly, you are instructed to scrutinize all proposals in the light of the existing treaty arrangements and established policies of the United States of America.

The draft plans for the reorganization of the Pan American Union, contemplated by Project No. 9 of the Projects of Conventions, formulated by the American Institute of International Law, and the draft plans for a Pan American Court of Justice, Project No. 28 of the Projects of Conventions, formulated by the same Institute,⁹⁸ would require for their realization the conclusion of international agreements far-reaching in character and of doubtful advantage. As to such proposals the Delegates on the part of the United States should take no position from which ultimate official approval of the projects might even be inferred. You will, of course, take no position on any question which might be construed as committing the Government of the United States in any way whatsoever.

In a letter to the Secretary of State, dated March 15, 1926, the Director General of the Pan American Union referred to the following recommendation, approved by the Fifth International Conference of American States on May 3, 1923:

“To forward to the Congress of Jurists which is to meet at Rio de Janeiro in 1925 for the Codification of International Law, the proposal presented by the Delegation of Costa Rica, regarding the creation of a Permanent Court of American Justice, as well as all other proposals that the various American Governments may formulate in this respect.”

In compliance with this recommendation the Director General transmitted a copy of the project to which it referred, and requested that the text of the recommendation and a copy of the project of the Delegation of Costa Rica be transmitted to the Delegates on the part of the United States to the Congress of Jurists. In accordance with this request there are attached hereto a copy of the letter from the Director General of the Pan American Union, dated March 15, 1926, and a copy of the project of the Delegation of Costa Rica referred to therein.⁹⁹

In connection with this project you are informed that although the Government of the United States is most hospitable to the consideration of measures tending to the maintenance of peace and stability in Latin America and insuring a basis for beneficent cooperation it does not consider that the establishment of a Permanent Court of American Justice would be desirable. There would seem to be no reason why a permanent organization of this sort should be established in America to rival the Permanent Court of International Justice at The Hague, and the difficulty of establishing, in view of the relations of the Latin American states, a satisfactory method of selecting the judges of an American Permanent Court would be very great. What would seem to be needed, in order to promote judicial settlement of international controversies in this hemisphere, is an improved plan for arbitral settlements. In this way controversies of which disposition could be more advantageously made by an American tribunal could be referred to a tribunal established for the purpose in accordance with the accepted principles of arbitral procedure. It should be remembered in this connection that the representatives of five of the Latin American Republics, to wit, the Republics of Costa Rica, Guatemala, Honduras, Nicaragua and El Salvador, signed on February 7, 1923, a Convention for the establishment of a Central American tribunal,¹ with the provisions of which you are doubtless familiar. It is believed that a similar arrangement would meet the requirements of judicial settlement of controversies between all the Latin American States. If, therefore, adequate measures are taken to add to the existing facilities an appropriate plan for the arbitration of justiciable controversies, the proposal of the Delegation of Costa Rica to the Fifth Pan American Conference, providing for a Permanent Court of American Justice, would appear to be suitably met.

[Here follows a paragraph relating to expenses to be allowed the delegates.]

I am [etc.]

Frank B. Kellogg

94. An identical instruction was also addressed to the other American delegate, Dr. Jesse S. Reeves (file No. 710.C2/211b). These instructions were forwarded to the delegates through the American Embassy in Rio de Janeiro.
95. Not printed.
96. The resolution is also printed in Report of the Delegates of the United States of America to the Fifth International Conference of American States, etc. (Washington, Government Printing Office, 1924), as appendix 14, p. 131.
97. For text of the convention establishing an International Commission of Jurists, signed Aug. 23, 1906, see Foreign Relations, 1906, pt. 2, p. 1601.
98. For texts of projects 9 and 28, see American Institute of International Law, Codification of American International Law: Projects of Conventions Prepared at the Request on January 2, 1924, of the Governing Board of the Pan American Union for the Consideration of the International Commission of Jurists, etc. (Washington, Pan American Union, 1925), pp. 38 and 106.
99. Enclosures not printed. For text, of the project of the delegation of Costa Rica, see Quinta Conferencia Internacional Americana, Santiago de Chile, Verbatim Record of the Plenary Sessions of the Fifth International Conference of American States (Santiago de Chile, Imprenta Universitaria, 1925), vol. 2, footnote 1, pp. 345 ff.
1. For texts of the convention and protocol, see Conference on Central American Affairs, Washington, December 4, 1922–Feoruary 7, 1923 (Washington, Government Printing Office, 1923), pp. 296 and 401. The protocol, in which the United States “expresses its full sympathy and accord with the purposes of the aforementioned Convention” and agrees to cooperate “in the realization of said purposes”, is also printed in Foreign Relations, 1923, vol. i, p. 327.