710.C2/240

The Delegates of the United States to the International Commission of Jurists (Scott and Reeves) to the Secretary of State

Sir: The undersigned, Delegates of the United States of America, to the International Commission of Jurists created by resolution of April 26, 1923, of the Fifth International Conference of the American Republics, held at Santiago de Chile, to codify international law, public and private, have the honor to submit their report as Delegates of the United States, on the nature of the Commission, its procedure and labors, resulting in a recommendation of twelve projects of public [Page 370]international law,3 and a convention of private international law consisting of no less than 439 [437] articles,4 to be transmitted to the Sixth of the American Conferences, which is to convene at Habana, January 16, 1928, for such consideration as that body shall be pleased to give to them.5

The word “codification” is used in a two-fold sense: strictly, as a statement of the law actually in force; and popularly, as a statement, not merely of the law in force, but such as it should be, in the opinion of those undertaking its formulation and statement. The Delegates of the United States have understood “codification” in its first and strict sense, and the sense in which they believe that the Commission likewise understood it. The projects, therefore, of public international law are in general, it is believed, an acceptable statement of the practice, not only of any one Republic, but of the American Republics, in their relations with one another. Whenever a statement did not seem to be in accord with the law as understood in the United States, the American Delegates called attention to that fact and entered what is called a “reserve”. On one occasion they interposed their reserve to an entire project—that on asylum—on the ground that the practice of receiving political fugitives in a legation or embassy is contrary to the practice of the United States of America.

In the matter of the conflict of laws—which the Latin American States universally call “private international law”—the Delegates of the United States entered a general reserve to the entire convention, on the ground that the practice of the United States based, as it is, on domicile, is necessarily so opposed to the practice of those countries accepting the principle of nationality that it was better to refer the projected code of private international law in its entirety to the Department of State, in order that the appropriate authorities of the government might determine the extent to which the United States might be able or willing to accord its approval.6

The Delegates of the United States are of the opinion that there is no provision in any one of the twelve projects of public international law, with the exception of that on asylum, which is contrary to anything [Page 371]to be found in the projects transmitted by the Pan American Union, and they believe that they did not, at any time during the session of the International Commission of Jurists, make or countenance any proposal which was inconsistent with the provisions, in whole or in part, of the Pan American Union projects, with which the officials of the Department of State are familiar.

The International Commission of Jurists for the Codification of International Law, Public and Private, formally opened its proceedings on the evening of April 18, 1927, in the Monroe Palace, in the City of Rio de Janeiro, the incomparable Capital of the United States of Brazil.

The Commission owed its immediate origin to a Resolution of the Fifth Conference of the American Republics meeting in Santiago de Chile, in the Spring of 1923, by virtue of which each of the twenty-one American Republics was authorized and requested to appoint two jurists; and the jurists thus appointed were to compose the International Commission which was to meet two years later, in Rio de Janeiro, at a date to be fixed by the Governing Board of the Pan American Union, composed of the diplomatic representatives of the American Republics, which holds its regular monthly sessions in the Pan American Building, in the City of Washington.

The date finally agreed upon by the Governing Board, in consultation with the Minister of Foreign Affairs of Brazil, was April 16, 1927; and two days later, April 18th, the Commission was, in fact, formally opened by His Excellency Octavio Mangabeira, Minister of Foreign Affairs, in the presence of the Diplomatic Corps accredited to Rio de Janeiro, and other leading personalities of the Brazilian Capital.

The Commission chose as its President, the Honorable Epitacio Pessôa, an ex-President of the Republic, who had also presided the first Commission of Jurists, which had likewise met in Rio de Janeiro, in the summer of 1912. The Brazilian Government appointed as Secretary General the distinguished littérateur, Mr. Gustavo Barrosa, member of the Brazilian Academy of Letters, and Correspondent of the Royal Society of Literature of England.

Of the twenty-one American Republics, all but Guatemala, Honduras, Nicaragua, and San Salvador [Salvador], four of the five Republics of Central America, were represented in the Commission. Of the seventeen Republics taking part in the Commission, Argentina, Bolivia, Brazil, Colombia, Cuba, Mexico, Uruguay and Venezuela, were represented by two delegates each, apparently on the theory of one for public, and the other for private international law. Eight of the Republics (Chile, Costa Rica, Ecuador, Haiti, Panama, Paraguay, Peru and Santo Domingo [Dominican Republic]) had but a [Page 372]single delegate each. The two delegates of the United States were appointed without special reference to one or the other of the two branches of international law, and took part in the proceedings concerning each branch.

Under a Convention adopted at Rio de Janeiro by the Third Pan American Congress, meeting in that city in 1906, there had been appointed a first Commission for the Codification of International Law, Public and Private. It met in the summer of 1912, in the same city of Rio de Janeiro; and it failed, owing to a lack of preparation. It adjourned within a few weeks after its opening session, never to meet again, due, it is believed, to the outbreak of the World War two years later. The second Commission succeeded because of adequate preparation in advance of its sessions, with some thirty projects of convention dealing with certain phases of public international law, and a complete code of private international law to serve as the bases of discussion; and when the Commission adjourned, on the evening of May 20, 1927, it had twelve draft conventions of public international law to its credit: Fundamental Bases of International Law; States—Existence, Equality and [Recognition; Status of Aliens; Treaties; Exchange of Publications; Interchange of Professors and Students; Diplomatic Agents; Consuls; Maritime Neutrality; Asylum; Obligations of States in Event of Civil War; and Pacific Settlement of International Conflicts; and a complete code of private international law.

Within recent years, in Europe, two peace conferences have been held at The Hague, in which certain phases of international law were put in the form of conventions. In the first, of 1899,7 three conventions and three declarations were adopted in a session beginning May 18th and ending July 29th of that year, that is to say, in a session of approximately two and a half months. In the Second Hague Peace Conference, of 1907,8 thirteen conventions and one declaration were adopted. This Conference met from June 15th to October 18th—a session of a little over four months. There have been some conferences on private international law likewise held at The Hague, which have put in conventional form some topics on the conflict of laws. But hitherto, there has been no conference in Europe in which international law both public and private has been considered, and the labors of the various Hague Conferences on these two branches of the law do not equal—if the results achieved in private as well as public international law can be considered—the work of the Commission of Jurists meeting in Bio de Janeiro in 1927.

The modern movement of the Americas in favor of codification is due to gatherings of the American Republics commonly called Pan [Page 373]American Conferences. The first of the series was proposed on November 29, 1881, by Secretary of State Blaine,9 to consider how the Americas could be spared the horrors of internecine wars by a timely resort to arbitration and other peace-keeping agencies. On October 2, 1889, the Conference met in Washington under Secretary Blaine’s presidency and adjourned April 18 [19], 1890.10 The second Conference was held in the City of Mexico from October 22, 1901, to January 31, 1902.11 There the first conscious step was taken toward codification. Upon the motion of the Brazilian delegation, a convention was agreed to and signed on January 27, 1902,12 for the codification of public and private international law by a commission of seven persons of whom five should be publicists of the Americas, and two of Europe.

When the Third Conference assembled four years later in Rio de Janeiro,13 no progress had been made towards the realization of what may be termed this peculiarly American ideal. It was at the third of the Conferences, in the City of Rio de Janeiro, that definite action was taken in behalf of codification by a formal convention of eighteen of the American Republics, and ratified by fifteen of those then and there represented, just as the possibility of condification was to be demonstrated in Rio de Janeiro by the International Commission of Jurists in 1927. The ratifying Republics (Argentina, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Mexico, Panama, Peru, Salvador, United States and Uruguay) pledged themselves by convention of August 23, 1906, to the codification of public and private international law through a commission of experts to be composed of a delegate from each of the contracting Republics. However, when the fourth Pan American Conference met in Buenos Aires in the summer of 1910,14 the Commission had not as yet assembled. The action taken in Rio de Janeiro in favor of codification was reaffirmed15 and the proposed commission was ultimately enlarged so that two delegates instead of one from each, represented the contracting Parties.

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The Commission itself met in Rio de Janeiro in the summer of 1912, and passed out of existence in the course of the same summer. The procedure to be followed had not been proposed beforehand, and projects for discussion had not been drafted and circulated among the interested Republics in advance of the meeting. When the delegates from seventeen States met, the Brazilian Government laid before them codes of public and private international law prepared respectively by Dr. Epitacio Pessôa and Dr. Lafayette Rodriguez Pereira.16 The Commission was unwilling to consider the codification of either public or private international law in its entirety. Although the first article of the convention stated that the Commission was to meet, “for the purpose of preparing a draft of a code of private international law and one of public international law, regulating the relations between the nations of America,” the members declared themselves in favor of partial and progressive codification of each of the two branches of international law, and appointed a number of committees to collect information from the American governments, and to prepare reports on the subjects submitted to them for the consideration of the Commission at a later session.

The outbreak of the war in Europe in 1914 which affected profoundly the thought of the world and the relations of the American Republics—some of which were eventually drawn into the conflict—put an end to the labors of the first American Commission for the Codification of International Law. However, codification was to be adjourned only for the moment. In the Spring of 1923, some three years after the World War was officially declared to be ended, eighteen of the American Republics met in conference at Santiago de Chile, and in this fifth of the Pan American assemblies, a resolution was voted in favor of reconstituting the International Commission of Jurists, to be composed of two members from each of the American Republics, to meet in Rio de Janeiro, to proceed anew to the codification of public and private international law. The resolution contemplated the partial and progressive codification of public international law, and recommended to the Commission the projects of Mr. Alejandro Alvarez as a basis for discussion.17 A code of private international law was also to be prepared.

The Honorable Charles Evans Hughes was then Secretary of State of the United States, and, as such, Chairman of the Governing Board of the Pan American Union, as it was then organized. Deeply interested [Page 375]in the codification of both branches of international law, he was anxious that projects of both should be prepared well in advance of the meeting of the Jurists in Rio; that the projects should be drafted by unofficial publicists of repute, and transmitted by the Pan American Union to the various American governments, and by them laid before the International Commission of Jurists, for such consideration as its members should care to give to them. Therefore, Secretary Hughes proposed to the Governing Board of the Pan American Union, at its meeting of January 2, 1924, that the American Institute of International Law be invited to prepare a series of projects on public international law. The motion was unanimously adopted. The American Institute was thereupon invited to prepare the projects. It did so, and on March 2, 1925, Secretary Hughes was able to lay before the Governing Board a series of some thirty projects on timely and important phases of public international law.18 He advised that they be transmitted by the members of the Board to their respective Governments, and by them laid before the Commission to serve as a basis of discussion.

In presenting the projects in the four official languages of the Americas, Secretary Hughes said:19 “At last we have texts and projects, the result of elaborate study, for consideration. We have the inspiration and stimulus of this action full of promise for the world. We feel that, thanks to American initiative, we are on the threshold of accomplishment in the most important endeavor of the human race to lift itself out of the savagery of strife into the domain of law breathing the spirit of amity and justice.” And he thus concluded his remarks: “I believe that this day, with the submission of concrete proposals which take the question of the development of international law out of mere amiable aspiration, marks a definite step in the progress of civilization and the promotion of peace, and for that reason will long be remembered. For in this effort we are not unmindful of the larger aspects of the question, and it is our hope that the American Republics by taking advantage of this opportunity may make a lasting contribution to the development of universal international law.”

The success of the American Institute in framing projects of public international law suggested to Secretary Hughes the feasibility of preparing a code of private international law. He therefore proposed at the same session of the Governing Board of the Pan American Union—the last [at] which he was to preside—that the Executive Committee of the American Institute be invited to prepare “a project or series of projects embodying the principles and rules of private international law for the consideration of the commission of jurists.” [Page 376]This motion was unanimously adopted by the Board, and a special committee of the American Institute, which had already been appointed by that body at its meeting in Lima in anticipation of such a request, undertook the preparation of the desired code. The distinguished publicist of Cuba, Mr. Antonio Sanchez de Bustamante y Sirvén, laid aside the many important and pressing calls upon his time, to prepare a code of private international law. This was done in the course of a few weeks, approved with slight modifications by the committee of the American Institute at a special meeting in Habana, laid before the Governing Board of the Pan American Union on February 3, 1926,20 by Mr. Hughes’ successor, Secretary of State Kellogg, [and] transmitted to the Governments of the American Republics to be by them laid before the International Commission of Jurists. Therefore when this body met in Rio de Janeiro on April 16, 1927, it found itself in possession of thirty projects of international public law, and a code of private international law of no less than 435 articles.

The members of the International Commission of Jurists met in Rio de Janeiro under very different conditions from those of its predecessor of 1912. It was ready to go to work, and it lost no time in getting to work. In advance of the opening meeting the delegates already in Rio met informally at the residence of Mr. Rodrigo Octavio, the second of the Brazilian delegates, and himself a person of great and deserved distinction in the domain of private international law. Mr. Epitacio Pessôa, who had been President of the first Commission and, in the interval between the two, President of the Republic of Brazil, was also present. This informal and unofficial exchange of views great[ly] facilitated the future labors of the Conference. It was there suggested that Mr. Pessôa should be asked to preside over the Commission; that the rules of the first Commission with sundry modifications and additions should be adopted, and that the Commission should be divided into two sections, to be composed of delegates from all of the Republics represented: Subcommission A, for public international law; Subcommission B, for private international law; that a Subcommission C, of five members, should be appointed to consider the ways and means of continuing the work of codification after the adjournment of the Commission; a Committee D, likewise of five members, for the uniformity of international legislation. These suggestions proposed by Mr. Victor M. Maurtua, delegate of Peru, met with unanimous [Page 377]approval. It was also suggested by the members present, upon the motion of Mr. Bustamante, delegate of Cuba, that Mr. Maurtua should respond in behalf of the Commission to the address of welcome of the Minister of Foreign Affairs of Brazil, at the formal opening of the Commission.

Saturday, the 16th of April, had been agreed upon for the opening session of the Commission, but as this was a holiday, and as some of the delegations would not arrive on or before that date, the 18th was proposed by the Minister of Foreign Affairs. The members of the Commission met in the Monroe Palace at four o’clock of the afternoon of the 16th. The delegations of twelve countries, the quorum required for a regular meeting was present. Mr. Pessôa made a report of the informal suggestions and the proposal was adopted to have the formal opening take place on the evening of the 18th.

At five o’clock on the afternoon of Monday, the 18th, the delegates of seventeen American Republics met in the Senate Chamber of the Monroe Palace in a formal, which, however, the official minutes somewhat inaccurately call a preliminary session. The suggestions of the informal meeting of April 14th and of the regular session on the 16th were laid before the members and approved. The proposal of Mr. Pessôa by Mr. Bustamante as temporary President of the Commission was unanimously adopted; the rules of 191221 as amended were likewise adopted; the division of the Commission into subcommissions was agreed to, as were the appointments of other committees. The appointment by several Republics of a single delegate instead of two, as recommended by the resolution of the Fifth Pan American Conference of Santiago, made it impossible for the two Commissions to meet at one and the same time, as the one delegate would be obliged to attend the session of each of the subcommissions. This cut in half the working hours of each, and laid an undue burden on the single delegates. It operated to the disadvantage of the Subcommission on public international law, as the Subcommission on private international law was to meet in the mornings, and that of public international law in the afternoons, when the Plenary sessions of the Commission were to be held. One or other had to suffer unless the plenary sessions should be in the evenings. This was, however, looked upon with disfavor and, with the exception of the formal opening, the plenary sessions were held in the afternoons at the expense of public international law.

Upon the proposal of the delegation of the United States, both members of the various delegations were allowed to register in and [Page 378]attend both Subcommissions. This enabled them personally to take part in the sessions of the Subcommission of public international law, and, by their presence, to show their interest in the Subcommission of private international law. This is believed to have been the first occasion on which official delegates of the United States attended and took part in an official conference on the conflict of laws, to give private international law the name by which it is generally known in the English-speaking world.

At 9 o’clock on the evening of April 18th, the International Commission of Jurists met in plenary and official session. Mr. Pessôa, its temporary President, called the meeting to order and appointed a committee of three to await his Excellency Mr. Mangabeira, the Minister of Foreign Affairs of Brazil, and to escort him to the Chair. The Minister appeared and opened the Commission with a gracious and earnest address of welcome, in which he contemplated, indeed, predicted the success of its labors.

[Here follow extracts from Mr. Mangabeira’s address. For full text, see Bulletin of the Pan American Union, October 1927, volume 61, page 956.]

On behalf of the Commission whose sessions were thus formally opened by the Minister of Foreign Affairs, Mr. Maurtua, of Peru, responded in the three-fold character of statesman, jurist, and philosopher. His address is too long to be reported in this place, and it is dangerous to paraphrase in English more than a few of its passages from a Portuguese print of a Spanish original.

[Here follows a summary, with quotations, of Mr. Maurtua’s address. A full text is printed in Bulletin of the Pan American Union, October 1927, volume 61, page 957.]

At the conclusion of his address, Mr. Maurtua proposed as permanent President, Mr. Epitacio Pessôa, senior Delegate of Brazil, and former President of the Commission of Jurists of 1912. Elected without the formality of a vote, he assumed the Presidency amid the applause of his colleagues, and immediately delivered an excellent and admirably phrased address, so clearly pronouncing his Portuguese that even the foreigners divined its meaning, although they lost here and there a word, a phrase, or even a sentence. The American delegates feel it their duty to reproduce a paragraph or two in the text of this report, although the entire address is given in the appendix.22

[Here follow extracts from Mr. Pessôa’s address. For full text, see Bulletin of the Pan American Union, October 1927, volume 61, page 961.]

This was the atmosphere in which the official delegates of seventeen of the American Republics met, and this was the spirit in which they [Page 379]labored day and night, for the space of their sojourn in the most attractive, the most hospitable, and the most sympathetic of cities and of countries, in order to give to the Americas the inestimable benefit of a law known in advance, agreed to in conference, and to be interpreted and applied if necessary in tribunals of arbitration and courts of justice.

The Commission was now formally opened and ready to enter upon its arduous labors. The Sub-Commission B. on Private International Law met on the morrow at 10 in the morning; the Sub-Commission A. on Public International Law, at 3 in the afternoon, and the process of codification of the two branches began. Committee C. on the Ways and Means of Continuing Codification after the Commission’s adjournment met later, and presented its report. The Commission, and all of its sub-divisions and committees adjourned on Friday, May 20, 1927, with codification in both domains a reality instead of a dream, a hope, an aspiration.

What was the nature of the International Commission of Jurists? The Commission was international, in the sense that it was composed of the official representatives of some seventeen independent and sovereign nations. It was continental, in that these nations were part of one and the same continent, and the nations were the free and equal Republics of America. Such was the outward aspect of the Commission. Looked at from within, it was a body of experts in international law, public and private—not a conference of diplomatists vested with political powers by the Republics appointing them, but jurists representing what our Latin American friends and neighbors so happily call the juridical conscience of the Americas. Their purpose was to state international law, public and private, in the form of articles—not to make law as a legislature, or to adopt conventions which, when ratified by the treaty-making Powers of their respective countries would become law for the High Contracting Parties. Their task was humbler, but still honorable: to state in the form of articles, principles of international law and the conflict of laws, to recommend them to the favorable consideration of the Sixth Conference of the Americas, to meet in Habana, January 16, 1928, in order that the diplomatic representatives of the American Republics taking part in that conference might, through the exercise of political power, invest them, in their original or modified form, with the force of conventional law. The diplomatic representatives, acting under instructions from the governments of their respective Republics would bind their countries to the extent of their instructions, and the countries would bind themselves and each to each, by subsequent ratification of the conventions adopted by the Conference.

The Commission was therefore a meeting of the jurists possessing the confidence of, and appointed by their respective governments for [Page 380]the preparation of draft-conventions of public international law, and a code of private international law, to be submitted to the Sixth Conference of the American Republics, for such consideration as the Governments therein represented might care to give to them. The Commission of Jurists could not, therefore, bind the governments which they represented, nor could the Delegation bind the government appointing it. This was evidently the idea of the Conference of Santiago de Chile, which planned the Resolution creating the Commission; it was the conception of the Government of the United States as expressed in the commissions of its Delegates; it was the opinion of all of the Delegates themselves expressed in the first plenary session of the Commission, and at various times in the Sub-Commission.

It is, therefore, manifest that the Governments are not legally bound either by the views expressed by their respective Delegates in the Commission, or in the projects of convention of public law, or code of private law. Their hands are free, but they have before them materials of public and private international law upon and about which they may instruct their diplomatic and therefore political Delegates to the forthcoming Conference of the Americas at Habana.

i. the sub-commission a. for the codification of public international law

This Sub-Commission, composed at least of one, and in some cases of the two members of the Republics which were represented by a delegation of two persons, held its first meeting at 3 o’clock in the afternoon of Tuesday, the 19th of April. As its members were taking their places at the long table in one of the Committee Rooms of the Monroe Palace, in which the Senate of Brazil meets, and which was placed at the disposal of the International Commission of Jurists, the delegation of the United States proposed, on behalf of the Sub-Commission, that Mr. Pessôa, who had registered in the section of Public International Law, and who was present, be asked to assume the Presidency of the Sub-Commission, just as in the morning the Sub-Commission of Private International Law had requested Mr. Rodrigo Octavio, the other Brazilian Delegate, to preside that Sub-Commission. Mr. Pessôa yielded to the unanimous desire of his colleagues, and assumed the Chair.

Thereupon, the American delegation proposed that a committee of five persons, with the President as its Chairman, and ex-officio an additional member, be appointed by the President to examine the projects of international law, in order to determine those which might reasonably be considered and passed upon in the limited time at the disposal of the Commission, it was understood that it would [Page 381]adjourn at least before the 24th of May, at which time Messrs. Bustamante and Pessôa would be obliged to repair to Europe in order to attend the sessions of the Permanent Court of International Justice at The Hague, of which august tribunal they have the honor to be members. It was felt that a small committee could work more quietly and expeditiously than the Sub-Commission, composed of the representatives of the seventeen Republics. After discussion, the suggestion was adopted, and the President named the following members: Mr. Scott, of the United States; Mr. [Carlos] Saavedra Lamas, of Argentina; Mr. [Alejandro] Alvarez, of Chile; Mr. [Cesar] Zelaya, of Cuba; Mr. [Julio] Bastos, of Uruguay. Mr. Reeves, of the American Delegation, and Mr. [Luiz A.] Podestá-Costa, of Argentina, regularly attended the meetings of the Committee, with the permission of its President.

The American Delegation further proposed that Mr. Pessôa’s Code of Public International Law, as presented to the Commission of 1912, be considered as before the present Commission; that Mr. Alvarez’ projects likewise be considered as before the Commission. Mr. Pessôa assured the members that he had no desire to force his Code upon the attention of the Commission, and Mr. Alvarez finally stated that his project laid before the Conference of Santiago had been merged in those of the American Institute. The American Delegation, however, insisted, notwithstanding Mr. Alvarez’ declaration, that his projects in their original form be laid before the Commission for its consideration, so as to carry out to the letter the Resolution of 1923, under which the International Commission was constituted. The Delegation also urged that Mr. Pessôa’s Code should be considered by the Commission as before it, and note taken of its contents in the deliberations of the Commission. These views prevailed, and the Sub-Commission of Public International Law, taking as its basis the projects submitted by the Pan American Union, had also before it the Code of Mr. Pessôa, and the original projects of Mr. Alvarez.

The Commission thereupon adjourned, to meet at the call of the President, when the Committee of five should have projects to report for its consideration.

This Committee frequently, and indifferently, called “Special Committee,” Committee of Examination” or simply, “the Committee”, met regularly in the afternoons during the month in which the International Commission was in session. At its first meeting, Mr. Pessôa indicated the topics which he was inclined to believe could be profitably and adequately treated. They were for the most part those to be found in his own Code of 1912, as well as in the projects transmitted by the Pan American Union. In many instances, he expressed [Page 382]himself as preferring the form of his Code to that of the projects. To this, the Committee made no objection. The result was a comparison of the drafts of 1912 and of 1924, and the amalgamation of the two in the form of separate projects which Mr. Pessôa undertook to prepare and lay before the Committee.

The consideration of some of the projects of the Pan American Union, he proposed to defer for the moment; others of the projects, he suggested should be combined and merged in a single project, so that while the final product of the Commission’s work in public international law is set forth in an even dozen of projects, these fairly embody the substance of thirteen of the Pan American Union, or fourteen, if the project of extradition, transferred from public to private international law, is to be included.

It should be said, in this connection, that two of the thirty projects—those on the Pan American Union (No. 9) and aerial navigation (No. 20) were withdrawn from consideration at the request of the Pan American Union, as these subjects were being elsewhere and otherwise considered. At the request of Mr. Bustamante, the subject of extradition (No. 17) was referred to the Sub-Commission on private international law, as contained in his draft code. The original projects transmitted by the Pan American Union were thus reduced to twenty-seven. Of these twenty-seven, fourteen were adopted in whole or in part.

Mr. Pessôa had expressed the opinion at the first session of the Committee, that some of the projects should not be discussed; that others should be deferred. With the consent of the Committee, the following were laid aside: The Preamble (No. 1); the General Declarations (No. 2); Declaration of Pan American Unity and Cooperation (No. 3); Fundamental Rights of the American Republics (No. 8); National Domain (No. 10); Rights and Duties of Nations in territories in Dispute on the question of Boundaries (No. 11); Jurisdiction (No. 12); Diplomatic Protection (No. 16); Navigation of International Rivers (No. 19); Pan American Court of Justice (No. 28); Measures of Repression (No. 29); Conquest (No. 30).

It was, however, the view of the Committee that some of these might be appropriately embodied in general declarations, such as the Declaration of Pan American Unity and Cooperation; Fundamental Rights of the American Republics; and the Declaration against Conquest. These were, as a matter of fact, incorporated, with their general conceptions and juridical aspirations, in a masterly report prepared by Mr. Maurtua, of Peru, and presented in behalf of himself and Mr. [José Pedro] Varela, the majority of an informal committee appointed by the President near the close of the Commission, to draft a general declaration to precede the projects, and to explain their nature, purpose, and significance. The opposition of Mr. Al [Page 383]varez, of Chile, the third member, prevented a unanimous report; and because of the lack of unanimity, the matter was dropped.

Under these circumstances, Mr. Pessôa was requested to prepare a report as President of the Sub-Commission. He did so in a short and admirable document which is to precede the texts of the projects actually adopted.

As a summary analysis of the projects of public international law as finally adopted is essential to an understanding of the work of the Commission, each project is briefly considered:

I. The Fundamental Bases of International Law. In this project an effort is made to set forth what are usually termed the sources of international law, their mutual and relative importance and validity, the nature of international law and the character of its binding obligations, together with the relation of public international law to the municipal legal system of each of the States accepting and applying the law of nations. In this project, as in all of the others, every effort was made to state general principles only, but to state them clearly and concisely, leaving the necessary consequences to follow of themselves. It is also to be observed with reference to this, as to every other project, the Commission endeavored to declare the law, rather than to attempt to make it.

The text of the Fundamental Bases of International Law is to a considerable extent that of Project No. 4 of the Pan American Union.

II. States: Existence—Equality—Recognition. This project embodies four important, indeed fundamental principles of international law: (1) the legal equality of States; (2) the duty of non-intervention; (3) the doctrine of unconditional recognition of new States and (4) the elimination of the distinction between de jure and de facto governments fully in possession and exercising the will of the State:23

“States are equal before the law, enjoy equal rights and have equal capacity to exercise them. The rights of each are dependent not upon the power which it possesses to ensure the exercise of them, but solely upon the fact of their existence as a person of International Law.” [Article II]

“No State may intervene in the internal affairs of another.” [Article III]

“Recognition is unconditional and irrevocable.” [Article VI]

“A government is to be recognized whenever it fulfills the following conditions: (1) Effective authority with a probability of stability and consolidation, the orders of which particularly as regards taxes and military service, are accepted by the inhabitants. (2) Capacity to discharge pre-existing international obligations, to contract others, and to respect the principles established by International Law.” [Article VIII]

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This project is also to a considerable extent the embodiment of propositions contained in Projects Nos. 5, 6 and 7 of the Pan American Union.

III. Status of Aliens. The purpose of this convention is to vest in the States the right under international law to establish, by means of municipal law, the conditions under which aliens may enter and remain within their territory. It recognizes the general principle, that aliens are to be entitled to the civil, other than political rights of nationals, but that they may be expelled by any and every State for “reasons of public order or safety,” notice of the expulsion to be communicated as soon as possible to the country to which the person so expelled belongs.

The convention is an amplification, with additional matter, of the principles contained in Project No. 14 of the Pan American Union, and it is, in the opinion of the American Delegates, an improvement on that Project.

IV. Treaties. This project has a double importance, in that it states general practice, and at the same time lays stress upon certain tendencies which have only recently taken definite form and effect. An example of this is to be found in the very first article, declaring expressly what can not be too well understood—that treaties are only to be made in accordance with the municipal law of the contracting States. In like manner, Article 4 is a guaranty against secret treaties.

Article 6, dealing with ratifications, assumes particular importance, in that it recognizes and approves reservations in multilateral treaties as follows: “In international conventions celebrated between different States, a reservation made by one of them in the act of ratification, affects only the clause in question and the State to which it refers.”

Article 15 is either a step in advance, or a statement of the most recent theory and practice. “Obligations contracted by treaty shall be sanctioned in cases of non-compliance as when diplomatic negotiations have failed, by decision of an international Court of Justice or by an arbitral tribunal.”

This disposition renders effective the Hague Conventions. In Article 16 of the Pacific Settlement Convention of the First Hague Peace Conference of 1899,24 arbitration is declared to be the most equitable and efficacious means of interpreting and applying treaties and conventions, when diplomacy has failed to reach an adjustment.

In the Second Hague Peace Conference, of 1907, the forty-four Powers there represented, including all of the American Republics with the exception of Costa Rica and Honduras, declared that the interpretation and application of treaties and conventions could be submitted to obligatory arbitration without reserves of any kind.25

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The present Article reaffirms in no uncertain terms the doctrine unanimously proclaimed by the two Hague Peace Conferences, and provides specific machinery for its realization. This article will be considered later, in a different connection.

The final Article (No. 17) provides that, “Two or more States may agree that their relations are to be governed by rules other than those established in general conventions celebrated by them with other States.”

The convention on treaties is a happy combination of the provision contained in Mr. Pessôa’s proposed Code of 1912, and Project 21 of the Pan American Union, with the addition of Article 15, which is not contained in either.

V. Exchange of Publications. This is peculiarly an American proposal, providing for the interchange of publications of the Americas. It is substantially Project No. 24 of the Pan American Union, and is the realization of a long-standing aspiration. It is, in fact, with slight modifications, the Convention of January 27, 1902, of the Second Pan American Conference.26

VI. Interchange of Professors and Students. This is Project No. 25 of the Pan American Union and is the culmination of efforts extending over many years. It is, with trifling changes, the Resolution on the Interchange of Professors and Students, adopted by the Fourth Pan American Conference meeting in Buenos Aires in 1910.27

VII. Diplomatic Agents. This project is drafted in accordance with modern theory and modern practice. Its theory is that the immunities of diplomatic agents exist solely for the purpose of facilitating and regularizing the official contacts between States. It rejects in toto the outworn and unacceptable theory of extraterritoriality.

In addition, it embodies, it is believed, the accepted practice of the United States and of the other American Republics. The Commission was unanimous that there should be but two classes of permanent chiefs of mission: the Minister Plenipotentiary and the Chargé d’Affaires. The Commission felt that in the Americas, the State, and not an official of the State, should be represented, and that therefore the Ambassador, representing the President, and having personal access to the President of another Republic not enjoyed as of right by the Minister Plenipotentiary, was inconsistent with the democratic conditions of the New World.

Unwilling to change the law and practice in this respect, the Commission unanimously adopted a recommendation to this effect, in the [Page 386]form of a voeu to the forthcoming Sixth Conference of the Americas, to meet in Habana.

Article 24, which deals with specific immunities, contains in clause 3 a somewhat novel suggestion, designed to meet novel but not altogether unfamiliar conditions—freedom from customs duties on objects intended for the diplomat’s personal use and that of his family, in a sum total limited by the Government of the State to which he is accredited. The basis of this admirable project was No. 22 of the Pan American Union, which, in turn, with sundry provisions taken from American practice, was based upon various resolutions of the Institute of International Law. It is believed that the ultimate form of the present project is superior to any and all of its predecessors.

VIII. Consuls. This project is believed to be of unusual merit. As in the case of the project concerning diplomatic agents, that on Consuls is based upon the resolutions of the Institute of International Law and upon modern theory and practice, drawing a sharp distinction between diplomatic and consular functions, and hence in the status respectively of these two types of officials. No personal immunities are accorded to consuls who, however, are protected for the purpose of the adequate exercise of their official duties. The supremacy of municipal law over the consul is to be presumed in absence of express stipulations to the contrary.

Attention is invited to certain specific provisions:

“Consuls shall exercise the functions that the law of their State confers upon them, without prejudice to the legislation of the country in whose jurisdiction they are serving.” (Article 10)

“In judicial affairs in which his compatriots are involved consuls shall have the right of interference except as expressly provided for by local legislation.” (Article 11)

“The consul can not compel his compatriots by force to comply with his orders or decisions, but, in cases where this is necessary, he shall have recourse to the competent local authorities.” (Article 12)

“Consuls are not obliged to appear as witnesses before the courts of the State where they exercise functions: they shall, in conformity with local legislation, give their testimony in the building of the consulate or send it in writing to the authority designated for that purpose. They shall nevertheless give it personally in a trial in criminal prosecutions when the accused are entitled to present them as witnesses for the defense.

“If the personal appearance of the consul should be indispensable the territorial government, in case of refusal, can have recourse to diplomatic measures.” (Article 17)

It will not escape notice that these provisions are an express confirmation of the attitude of the United States in the well-known case of Dillon, French Consul in San Francisco.28

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Article 22 abrogates all claims to consular asylum.

The immediate source of this project is No. 22 of the Pan American Union with modification of form rather than of substance.

IX. Maritime Neutrality. This project is based upon the enlightened practice of modern times. It is not original. Its basis is the Rights and Duties of Neutral States in Maritime Warfare, drafted by the Second Hague Peace Conference in 1907, ratified by the United States as well as by the other leading maritime powers.29 It is superior to its predecessor or model, in that it takes note of the experience had in the World War, and sets forth in twenty-nine articles the law and the practice of the present day.

It was accepted by the Commission as such statement without reserve.

X. Asylum. The delegates of the United States deemed it to be their duty to interpose a general reserve to the entire project on the express ground that it was not only contrary to the long-established and well-known policy of the United States, but also, in their opinion, opposed to the generally recognized modern practice of the world at large in such matters.

As, however, it appeared that all of the countries represented in the Commission, with the exception of the United States, were desirous of recognizing the right of asylum for political refugees, as stated in the convention, the American delegates did not oppose its discussion and adoption by the Commission. Their desire was in this case as in all other ways, to advance the work of the Commission without interposing objections to the desires of the other delegations.

It is an original project of the Commission.

XI. Obligations of States in Event of Civil War. This project, also original with the Commission, undertakes to define the duty which one State owes to another with which it is at peace, with reference to civil war and insurgency within the other. It is believed that this short project of but five paragraphs summarizes the legislation and practice of the United States for more than a century. It reads like a series of extracts from the Neutrality Laws of the United States, particularly that of 1818.30

XII. Pacific Settlement of International Conflicts. The purpose of this project, in form and in substance that of Pan American Union No. 27, is to gather in an ascending series into a single convention, the various forms of pacific settlement, good-offices and mediation, commissions of inquiry, conciliation and friendly composition, arbitration and judicial decision. There is little or nothing new to be found [Page 388]in its 23 articles; whenever possible the exact language of approved texts has been used, so that there might be no doubt as to the acceptance of the project as a whole.

The articles relating to good offices, a word of advice to one or other or both of the disputants by a third and disinterested party; and mediation, similar to good offices, but bringing the process a step forward by suggesting a solution, are taken from the Pacific Settlement Convention[s] of the Hague Peace Conferences.31 The Commission of Inquiry is, in an abbreviated form, the so-called Gondra Convention.32 It was adopted in 1923 by the Fifth Pan American Conference of Santiago de Chile, and it has already been ratified by Brazil and the United States. It is based upon the commissions of inquiry of the Hague Peace Conferences and Secretary of State Bryan’s Treaties for the Advancement of Peace.33

The advantages of Commissions of Conciliation have been much discussed in recent years, but it is only yesterday that they have been given definite form in official conventions.

The present project adopts the method of settling disputes in a conciliatory manner, and makes of the Governing Board of the Pan American Union a permanent Commission.

Friendly composition was much used in the past, but appears to have been overlooked in recent years. It was, however, resorted to by Chile and the United States for the settlement of the Alsop Claim by the King of England acting as friendly compositor in 1911.34 Its usefulness has been made manifest by the most Southern and Northern of the American Republics, and its acceptance by the Commission recognized it as an adequate method for classes of disputes where the settlement is desired to depend upon the good faith of a single person in whose good judgment and sense of equity the parties in controversy have confidence.

The project ends with a series of articles on arbitration based upon those of the Hague Conventions, and the suggestion, that, in case of a desire to resort to judicial settlement of their controversies, the parties in dispute may refer their differences either to the Permanent Court of International Justice at The Hague, or “to any other court of justice which may be constituted for this purpose by the American States.”

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The project is, with trifling modifications, the original text of Project 27 of the Pan American Union, submitted to the various American Governments and transmitted by the Union to the International Commission of Jurists. It is to be presumed that it had been carefully considered by the Foreign Offices of the American Republics, and that they approved of it, as no amendment of a critical nature was suggested in any phase of its passage through the Committee of Five, the Subcommission on Public Law, to its final adoption by the plenary session of the Commission on May 20, 1927.

It was evidently a project in which the Governments of the Americas appear to have taken a greater interest than in that of any other of the projects transmitted to the Commission, for the Pan American Union recommended by formal resolution the Commission to give preference to the project on Pacific Settlement in case it should not have time at its disposal to consider all of the projects. The preamble to the original project as transmitted by the Pan American Union stated the purpose of the project:

“The American Republics in order to conserve the peace upon which their civilization depends, and to avert war, which menaces it, agree to have recourse for the settlement of all disputes between them, when direct negotiations have failed, to the measures regulated in the present convention.”

One of these measures was arbitration, and, according to the preamble, all questions susceptible of arbitration might be submitted to an arbitral tribunal constituted by the parties, provided only diplomatic means have been tried and failed.

The Gondra Convention provided controversies between the American Republics should be submitted to American Commissions of Inquiry, composed exclusively of American members. The delegates of the United States therefore stated in the plenary session of May 6, 1927, their intention to submit a plan for an American Tribunal of Arbitration, for the adjustment of American controversies in the form of an amendment to Article 25 of the original project in order to promote arbitral settlement of international controversies in this hemisphere. In the opinion of the American Delegates the plan of the Commission of Inquiry in the Gondra Convention suggested the 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.

The amendment which it was contemplated to submit for the consideration of the commission was to have been based upon the Convention signed at Washington, February 7, 1923, by the representatives [Page 390]of five of the Latin American Republics for the establishment of a Central American Tribunal.35

Project No. 27 of the Pan American Union was not reached until the closing days of the Commission, and when it was laid before the Subcommission on Public International Law, May 19th, the day before the final adjournment, the Delegates of the United States announced that they would abstain from presenting the plan. The statement made by the American Delegation in the plenary session of May 6th, and the statement made at [next to] the final session of the Subcommission of Public International Law, are attached hereto in the appendix to this Report, together with the memorandum prepared! by the American Delegation, with a view to its being presented as an accompaniment to the contemplated plan.36

ii. subcommission b. private international law

Subcommission B. was formed to consider the code of the American Institute on International Private Law, prepared by Mr. Bustamante, although he himself always referred to it as that of the Institute, and transmitted to the International Commission of Jurists by the Pan American Union.

It is believed to be unnecessary in the present connection to rehearse the various attempts, more or less successful, by which the Latin American States have sought agreement upon this important branch of law. The United States did not participate in any of the earlier conferences dealing with this subject. Among the twenty Latin-American Republics there have been serious divergences of position resulting from the acceptance by some of them of the system of domicile, and reception on the part of the others of a system based on nationality. The Code presented to the Commission for its consideration is very largely based upon the system of nationality and it was at once perceived by the American Delegates, that the projected Code would be opposed by the representatives of those States almost wholly south of the Equator which had adopted in their municipal systems the theory of domicile. The opponents of Mr. Bustamante’s code, however, were not prepared to present a substitute code based upon domicile, although they did insist upon those portions of a code so based, known [Page 391]as the Conventions of Montevideo of 1889.37 The American Delegates soon became convinced that unless the Code as prepared by Mr. Bustamante was adopted at least in substance by the Commission, all attempts at the codification of Private International Law at Rio de Janeiro would prove abortive; that thereby the Resolution of the Fifth Pan American Conference would fail of execution, and that the forthcoming Sixth Conference would fail to have before it, for its consideration, any constructive projects dealing with the subject. The Delegates of the United States therefore determined to support wherever possible, the Recommendations of the Commission by which the projected code might be transmitted to Habana. This position was set forth in a declaration made by the American Delegation on May 9th, as follows:38

The delegation of the United States desires to have its vote recorded in favor of the articles reported to this Plenary Session from Sub-Commission B, and based upon the project of the Code of Private International Law, prepared by the learned and very distinguished delegate from Cuba, Mr. Bustamante.

In so recording its affirmative vote the delegation does not desire to imply that the articles for which it votes are in accordance with the laws of the various jurisdictions of the United States, forty-nine in all. As a matter of fact and as is well known the jurisprudence of the United States is based in general upon the theory of domicile, while the project of the proposed code is based largely upon the theory of nationality. The reason for this affirmative vote is that the delegation of the United States desires to further the work of codification of private international law. It desires, furthermore, to make this recognition of what it believes to be a constructive effort of very considerable value, and it desires that, by the adoption of these articles, the forthcoming Panamerican Conference at Habana may have before it, for its mature consideration, a substantial basis for the discussion of Private International Law.

In conclusion, the delegation of the United States desires to express the hope that ultimately a code of private international law may be proposed for the Americas, by which the opposing principles of the two theories of domicile and nationality may be reconciled. In this happy event it is to be hoped that the United States may be able to join with her sister republics.

The clash between the adherents of the opposing theories of domicile and nationality seems to have reached its height when Article 7 of the Preliminary Title of Mr. Bustamante’s code came under discussion. [Page 392]Article 7 as originally drafted was as follows: “Each contracting State shall apply to the nationals of the others the laws of an internal public order of their domicile or of their nationality, according to the system adopted by the State to which they belong.” Thereupon, Mr. Bustamante withdrew Article 7 as originally proposed and, after the whole of the code had been substantially approved in the closing days of the Commission, proposed a substitute for Article 7 as follows:

Each contracting State shall apply as personal law that of the domicile or that of the nationality according to the system which its domestic legislation may have adopted or may hereafter adopt.

It is to be observed that there seems to be no substantial difference between the original and amended form, as it failed to satisfy the Delegates of the States choosing a system of domicile, who were frank in the expression of their desire to have the system adopted by them prevail universally in the Americas.

There is, however, one portion of Mr. Bustamante’s code in which it is believed the United States have an immediate and direct interest—namely the title concerning extradition. In the opinion of the American Delegates, this subject should have been retained by the Subcommission of International Public Law, using Project No. 17 of the Pan American Union as a basis of discussion collated with the draft in Mr. Bustamante’s code. However, the provisions on the subject in his code seem generally to be in accord with the law of the United States and their accepted practice; but in order to reach a maximum of agreement, the Delegates of the United States suggested that extraditable offenses should not be determined on the basis of minimum punishment, but specifically listed as such in the various treaties and conventions dealing with extradition. This suggestion was adopted in Article 346.

The question of the extradition by a State of its own nationals aroused considerable discussion. In Mr. Bustamante’s proposed code, Article 347 was as follows: “The contracting States are not obliged to hand over their own nationals.” While the provision thus stated would leave each of the contracting parties free to adopt its own policy in this respect, it was felt that, in the interest of international justice, some obligation should be imposed upon the State refusing to do so. Therefore the following clause was added: “The nation which declines to hand over one of its own citizens must try him.” Although the provision contained in Article 380, that, “In no case shall the death penalty be imposed or executed for the offense upon which the extradition is founded,” appears in certain extradition treaties to which the Government of the United States is a party, the American Delegation has some doubts as to the wisdom [Page 393]of its adoption of such a general policy. In their opinion, the abolition of capital punishment, if considered desirable, should be by direct enactment, rather than indirectly by treaty arrangement.

iii. subcommission c. on ways and means for the work of codification

The members of this Subcommission, five in number, met toward the end of the session, under the Chairmanship of Mr. Maurtua, and submitted a report on the subject-matter with which they had been entrusted. It was a unanimous report, and unanimously approved by the Commission in plenary session, May 16th. It is in itself a summary of ways and means, and is perhaps shorter than an analysis of it would be; certainly, it is more satisfactory. Therefore, it is printed in its entirety, and without comment:

The International Commission of Jurists, having in view the necessity, demonstrated by experience, of permanently organizing the preliminary work for formulating and developing International Law in America, as well as the unification of legislation, recommends that the Sixth Pan American Conference approve the following plan:

1st. To make the International Commission of Jurists of Rio de Janeiro a permanent body, and to provide for a stated, regular session, every two years.

2nd. To organize two committees of examination, one at Bio de Janeiro and the other at Montevideo, for International Public Law and International Private Law, respectively, with the following duties:

a)
To present to the various Governments a list of matters susceptible of being submitted to contractual regulation. In this list will be included, besides the matters initiated by the Committees, those which the International Commission of Jurists judges proper to indicate, on terminating each of its sessions.
b)
To decide, in accordance with replies received, what matters are generally considered ripe for discussion and appropriate for legislation.
c)
To submit to the various Governments the different viewpoints from which matters selected may be contemplated; to petition and obtain an indication along general lines, of the opinion of each Government.

3rd. To entrust the Executive Council of the American Institute of International Law with the duty of studying scientifically the matters referred to in the above article, with the task of drawing conclusions and presenting them with proper explanations duly supported in reports, inasmuch as they are to serve as bases of discussion by the International Commission of Jurists for the definite formulation of the ante-projects intended for Pan American Conferences.

Whenever possible, the above information shall be submitted to the deliberations of the Institute at its biennial plenary sessions.

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4th. To organize in Habana an office and a committee for directing the studies of comparative legislation, and for the unification of legislation.

5th. The three above mentioned Committees are to be formed by the various Governments from the members of their respective National Societies of International Law.

They shall communicate with the various Governments and with the Executive Council of the Institute, through the Pan American Union.

6th. The Pan American Union, in so far as its By-Laws permit, shall cooperate in all the preliminary legislative work referred to in the above article.

It will be observed that the report of Subcommission C. includes that of Subcommission D. in the matter of universality of legislation.

General Observations on the Labors or the Commission

The Commission of Jurists was considered by all of its members as a body of experts to put into the form of articles, certain topics of international law, public as well as private; that the delegates were chosen for their supposed familiarity with one or other of these branches, and that as jurists they were not clothed with political powers. In an early plenary session of the Commission39 this question was presented in an acute and concrete form. Under date of April 27th, the following telegram was sent by Mr. Pedro José Cepeda, Minister of Nicaragua in Mexico to the President of the International Commission of Jurists:

Although the opinion of the world has passed a just judgment in the case of Nicaragua, I beg you, in the name of my countrymen sacrificed in ten months of a titanic struggle, to make an express declaration which will condemn the unlawful policy of the Department of State of the United States of North America, which, inconsistent with the principles of President Wilson, does not recognize that “small nations of the world …40 have the same rights as the large nations, with respect to their existence and integrity.”

Nobody is more authorized than this honorable assembly to make such a vindication of international law, trampled under foot by force.

I consider it unnecessary to give the history of the conflict, but you will recall the imposition of Diaz as President of my country, against the national will and the express provisions of our Constitution. The blockade of our coasts frustrated the efforts of the legal government to give assistance to our wounded soldiers; and now the illegal use of North American marines who establish arbitrary “neutral zones” which are nothing more than zones of refuge for our defeated enemies, and places for recruiting bad citizens who compromise the liberty of the country.

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This congress, giving effect to the high principles of international justice which inspired it, will condemn these acts.

In the name of the constitutional government of Nicaragua, I send you a cordial greeting and my best wishes that the elevated views and noble endeavors of the distinguished members of this great congress may be fruitful of accord and peace for the great Continental family.

On May 6th, the President of the Commission read the foregoing telegram to the plenary session of that date, and his proposed answer in the following terms:

I acknowledge receipt of your Excellency’s cablegram of the 27th ultimo. In reply, I beg to inform you that the assembly being a Commission of Jurists of an exclusively juridical character, without power, quality, or political qualifications, it is not permissible to express an opinion upon the subject contained in your cablegram. I have the honor to present to your Excellency the assurance of my high consideration.

The President’s proposed answer was unanimously approved as read by him and it was immediately transmitted to its destination.

It was therefore not to be expected that political proposals or proposals with a political implication would be presented and that, if they were, they would not receive consideration. However, there were presented from time to time propositions falling under one or other of the above categories. In each case, the Commission refused to take favorable action, and contented itself with referring them to the approaching Pan American Conference at Habana, without recommendation. There are four instances which should be specially mentioned:

1) In the Subcommission, on April 30th, and at the plenary session of May 9th, the proposition originally presented by the Dominican Delegate, and in which the Mexican Delegation joined as a proposing party at the last plenary session, of May 20th, in which projects were considered.

It is thus worded: “No State may in the future directly or indirectly, nor by reason of any motive, occupy even temporarily any portion of the territory of another State. The consent given to the occupying State by the State occupied will not legitimatize the occupation and the occupant will be responsible for all occurrences resulting from the occupation not only with respect to the State occupied, but to third parties as well.”

2) At the same plenary session of May 9th, the Haitian Delegate presented a proposition to the effect that treaties procured by pressure or menace of armed force should be considered as intervention. He presented his proposition in the last working plenary session of the Commission of May 20th, in the following form: “Any action carried out by a State, whether by means of diplomatic pressure or by armed [Page 396]force, in order to force its will upon that of the other State, constitutes intervention.”

3) The Argentine Delegation had already proposed in the same plenary session of May 9th, to add, “or external” to the following text unanimously adopted by the Subcommission of Public International Law: “A State may not intervene in the internal affairs [nor in the external affairs]41 of another State.”

In this condition of affairs, Mr. Reeves, on behalf of the American Delegation made the following statement:42

I desire to make an observation concerning the amendments to Article 3 [Project No. 2]41 suggested by the delegates of Haiti and Santo Domingo.

The third article has been carefully expressed in general terms. If, however, it is determined to depart from the general theory of this project by introducing various details and particular cases, I shall be obliged to call attention to two exceptions to the general rule: 1st, on grounds of humanity; 2nd, in self-defense. I do not desire to seem unmindful of the legal basis upon which the United States, on grounds of humanity intervened to stop a régime of inhumanity in Cuba, as a result of which Cuba was freed. But I hope that this will not be necessary because of the recognition and acceptance of the general principles of Projects 1 and 2, and that in the future there will be no opportunity for the recognition of these exceptions.

The whole matter was referred back to the Subcommission for consideration—the Delegation of the United States abstaining from the vote.

4) A proposal of a somewhat similar nature by the Paraguayan Delegate is as follows: “Intervention or any act of a State within the territory of another State without a previous declaration of war, with the intent to decide by force, material pressure, or moral coercion, internal or external questions of the other State, will be considered as a violation of international law.”

The American delegation under these circumstances repeated on May 20th the formal statement made in the plenary session of May 9th, whereupon the following action was taken by the Commission in the plenary session of May 20th, the last, as has already been remarked, in which it considered projects, as appears from the official report presented by Mr. Pessôa in behalf of the Commission:43

The Commission of jurists understood with regard to these propositions [seven had been presented]41 that some of them did not have [Page 397]that degree of maturity necessary for incorporation in the codification, and others, being drafted in the terms in which they were, might be considered as manifestations of a means of obtaining the Commission’s views regarding pending American political questions. For this reason the Commission decided to transmit and to submit some of them for the consideration of the Sixth International Conference to meet in 1928 in the city of Habana.

There are two articles in the project on treaties, which should be considered in this connection. There had been at various times proposals to exclude intervention even with the consent of the States involved.

The American delegation took the position that no such act arising out of the consent of a State could be considered as an act of intervention properly so called and in the sense of Article 3 of the Project No. 2 on States, and that, furthermore, any such attempt would be an unacceptable limitation of the State’s sovereignty.

That this view prevailed appears from Article 17 of the project on Treaties, providing in express terms that, “Two or more States may agree that their relations are to be governed by rules other than those established in general conventions celebrated by them with other States.”

There is a further example of an Article, although expressed in general terms, which was considered to have a political implication. The Chilean Delegate took exception to Article 15 of the project on Treaties as submitted by the President to the Commission. It was as follows: “If one of the States [parties to a treaty]44 fails wholly or in any respect to fulfill the obligation which it has contracted, the other can exact the fulfillment or consider the treaty as abrogated.” The Peruvian Delegation made no objection to the article as drafted by the President, but, upon the insistence of the Chilean Delegate, the Commission struck out the article, the American Delegation expressing the hope that a substitute might be drafted which would satisfy the opposing views of the Delegates in question. This hope was realized, for in the last plenary session and as the last act, the following substitute, drafted by the Peruvian Delegation, was unanimously adopted: “Obligations contracted by treaty shall be sanctioned in cases of non-compliance as when diplomatic negotiations have failed, by decision of an international Court of Justice or by an arbitral tribunal.”

A source of difficulty which has already been mentioned in passing deserves to be dealt with in some detail. Each of the twenty-one American Republics was invited by the Resolution of Santiago de Chile, creating the International Commission of Jurists, to appoint two delegates, no doubt in the belief that in this way a specialist [Page 398]in each of two branches of international science would attend and participate in the labors of the Commission. In the event four or five of the Central American Republics were not represented, and of the seventeen Republics sending delegates, eight sent but one delegate each. This made it necessary for the single delegate to attend the sessions of both Subcommissions and, on this account, the remaining nine States each having two delegates were generally represented in both Subcommissions by their two delegates. To accommodate the eight States, each with one single delegate, the Subcommissions were obliged to meet at different hours—an arrangement which hampered the work of the Subcommission on Public International Law, as, meeting in the afternoons, it was obliged to give way to the meetings of the Committee of this Subcommission, for the plenary sessions, as well as for certain social duties. Considering the encroachments thus effected, the work of the Commission in the field of International Public Law in agreeing upon a dozen conventions may properly be held to be an eminently satisfactory achievement. On the other hand, the Subcommission on Private International Law was enabled to devote on an average, three hours in the morning of each day, with scarcely an interruption throughout the five weeks of the Conference. This arrangement was not satisfactory to the American Delegation, but it was impossible to secure any material modification of it.

The difficulties due to diversity in language have been evident in all international conferences. It is well known that the American Conferences have four official languages: Spanish, Portuguese, French and English. However, at formal Conferences arrangements are usually made for rapid and accurate translation of the proceedings as they occur for such members of the Conference as may, for one reason or another, request it. In the case of a Commission such as the one under consideration, where discussion and debate were informal and technical in nature, continuous translation would have greatly interrupted the course of proceedings and materially curtailed the exchange of views and limited its results. In the Subcommission of Private International Law the basic text used was Spanish, although the projected code of private international law was furnished to each government and its representatives in each of the four official languages of the Americas. The projects on public international law were likewise transmitted by the Pan American Union in the four languages, but in the various sections dealing with public law the President used Portuguese, drafted the projects in Portuguese, and distributed them to the members in Portuguese. In view of these facts the American delegation suggested that, while the four languages were equally official, in case of doubt or disagreement as [Page 399]to the meaning of a project, the language of the Capital in which the Commission was sitting should be accepted as authoritative. Courtesy as well as expediency suggested this, in the opinion of the Delegates of the United States. The delegations which expressed themselves as in accord with the American view were Argentina, Bolivia, Brazil, Colombia and Peru. The result is four different versions which, if the experience of international conferences is to be enlightening, will disclose not unimportant divergences in meaning, with the requirement of a knowledge of the four languages on the part of those who use them, and a minute scrutiny of each version.

With these difficulties out of the way, the reasons for the success of the Commission should be mentioned. The element which made for success more than any other, and indeed all others, was the desire of success constantly expressed by the Brazilian Government through its sympathetic, courteous and broadminded Minister of Foreign Affairs, Mr. Octavio Mangabeira, from the opening session to his farewell banquet to the Delegates, with which it closed. The Commission was thus surrounded with a congenial atmosphere proceeding from his evidently sincere desire and ambition that the meeting should justify the Americas in choosing the Capital of Brazil as the seat of the Commission’s deliberations. The hospitalities, official and private, tendered to the members of the Commission were many and varied. They brought the delegates together and enabled them in an atmosphere of friendly informality to learn each other’s views and to appreciate those qualities of grace and courtesy which are sometimes missing from official discussions. The American Delegates could not fail to notice, what they were pleased to consider an implied compliment to their country, in having the Commission meet in the Monroe Palace, the official seat of the Brazilian Senate, where everything tended to the comfort and convenience of the Commission and its members.

The Delegates of the United States believe themselves justified in calling attention to another element making for success. The careful and satisfactory preparation in advance of the Commission, due in large part to private initiative. The American Institute of International Law, composed of five publicists of each of the twenty-one American Republics, and of which the American Delegates are themselves members, prepared at the request of the Pan American Union the series of Projects of Public International Law and the projected Code on the Conflict of Laws, which were transmitted by the Governing Board of the Pan American Union a year or more in advance of the meeting to the governments of the Americas for their consideration. This was made possible by the munificence and far-sighted generosity of the Carnegie Endowment for International Peace, [Page 400]which enabled the American Institute to hold its sessions and to prepare both the projects and code, and which bore the entire expense of the printing and the distribution of the preparatory work accomplished by the American Institute of International Law and in the form in which it was laid before the Commission by the Pan American Union.

The services of the American Institute were formally recognized by the Commission of Jurists in plenary session by a vote of thanks46 and, in an even more substantial way, by a resolution submitted by Subcommission C on the ways and means of continuing the work of the International Commission.47 The report of the Subcommission was unanimous; the approval of the plenary session of the Commission, and the tribute were therefore unanimous.

At half-past four o’clock on the afternoon of Friday, the 20th of May, the International Commission of Jurists held its last and closing session.48 Its distinguished President, Mr. Epitacio Pessôa, in the remarks with which he opened the closing session, stated its success in unequivocal terms and looked forward to a closer and more intimate association of the Americas in the future.

“It is my desire,” he began, “that in this final session all those who are interested in the codification of international law in America may find an enumeration, at least a simple enumeration, of the work accomplished.

“The Commission of Jurists prepared a general convention of International private law and, in addition, twelve projects of International public law, having to do with the following subjects:

“Fundamental bases of international law; States—existence, equality, recognition; status of aliens; treaties; exchange of publications; interchange of professors and students; diplomatic agents; consuls; maritime neutrality; asylum; and the pacific settlement of international conflicts.

“As the Commission will see, our efforts were not unproductive; to the contrary, they give great promise for fruit from our labor. A general convention of international private law and the twelve projects regarding the important points of international public law—here you have that which the Commission of Jurists was able to accomplish in this second session, in the short space of one month during which it met.”

[Page 401]

And of the future, he ventured to express the hope “that shortly we may be able to reunite the Americas in a vast and majestic confederation of interests, of aspirations and of common ideals, in the midst of which all States, be they grand or small, may tranquilly live, prosper and progress in an ambient of true independence, of justice and of liberty.”

After the applause with which his address was greeted, Dr. Leopoldo Melo, of Argentina, Member of the American Institute, President of the Argentine Society of International Law, and nominee of the Presidency of Argentina by one of the political parties of that great and progressive nation, was called upon to voice the appreciation of his fellow delegates. From Dr. Melo’s carefully prepared address the American Delegates believe that at least a few paragraphs of his calm and measured pronouncement should find a place in their official report. They have ventured to select the following extracts as showing how a statesman of the most southern of American Republics speaking under a sense of political responsibility, as well as principle, views the Commission and its labors:

[Here follow extracts from Mr. Melo’s address.]

Mr. Melo’s address was immediately followed by that of Mr. Garcia Ortiz, principal Delegate of Colombia and its Minister Plenipotentiary to Brazil. The American delegates deem it important to add, in this connection, that he was Minister of Foreign Affairs of his country at the time when the treaty between Colombia and the United States, signed in 1914 but only ratified in 1922,48a reestablished those intimate, friendly and confidential relations which should always exist between members of the great American Family of Nations.

His address, of which but a few phrases may be quoted, made a most pleasing appeal to his fellow delegates, and to the country in which they had labored unceasingly for the codification of international law, public and private, for the Americas.

[Here follow quotations from Mr. Ortiz’ address.]

The Minister of Foreign Affairs, who had appeared and graciously consented to preside at the session, arose—in what is always an impressive and solemn moment in international gatherings—to close the Commission. His few words, spoken in behalf of the United States of Brazil, which he has the honor to represent in its foreign relations, were instinct with regard for the Delegations, with respect for the countries which they represented, and with appreciation for the labors of the Commission, which he was to adjourn sine die.

“In closing the second session of the International Commission of American Jurists, I am pleased,” he said, “to declare publicly to you all the approval which the Government of Brazil desired to be the [Page 402]first to voice, and to express the gratitude of America for the most important services which you have just rendered. The Government of Brazil congratulates itself for having convoked this assembly which in adjourning today is, however, not dissolved without having deserved the benedictions of the friends of peace and of justice. Carry away and transmit, gentlemen, to the nations of which you are the representatives, to their peoples and their governments, the assurances of respect and of loyal friendship of the people and government of Brazil. May my last words be in honor of America, the last which shall echo and reecho in these halls and in this beautiful manifestation of continental fraternity. To America! To its moral progress, to its increasing economic prosperity, to its political greatness. To America! To America, happy, industrious, pacific! To America, that it may the better contribute to the advancement of humanity.”

On the evening of Saturday, May 21st, the Minister of Foreign Affairs offered, on behalf of the Government of Brazil, a banquet to the Delegates and the ladies accompanying them. In the course of the evening he took advantage of the occasion to express in gracious and generous terms, vibrating with an emotion which he did not attempt to conceal, the feelings of regret and appreciation with which he and his government took leave of their departing guests.

[Here follow extracts from Mr. Mangabeira’s remarks.]

It is customary in strictly official banquets offered by the Government of Brazil to have the Presiding Officer toast the guests, and to request one of them to respond with a toast to the President of the Republic. On this occasion, the Minister of Foreign Affairs honored the American Delegation with the request that Mr. Scott propose, on behalf of his colleagues, the toast to the President. He did so in a few remarks, which he deemed appropriate to the occasion, thanking the Brazilian hosts for their hospitality and courtesy, for which he ventured to coin the expressions, Brazilian hospitality and Brazilian courtesy, voicing appreciation of the attentions lavished upon them by the Minister of Foreign Affairs, who, laying aside his official duties, had anticipated the desires of his guests and satisfied their most exacting requirements. And he ended by declaring that the codification of the law of nations and of the conflict of laws had ceased to be a dream, because of its realization by the Commission in the incomparable capital of Brazil.

With those expressions of gratitude, of appreciation, and of a purpose accomplished, the International Commission of Jurists passed into history.

What were the aims and purposes of the International Commission of Jurists, which sat in Rio de Janeiro for the short space of a month? What were the immediate, and what the implied results of their de [Page 403]liberations? They have been stated in a masterly manner by Mr. Maurtua, the Delegate of Peru, in a statement which is at once the envy and the despair of the American Delegates. Therefore, they asked Mr. Maurtua’s permission to include it in their official report to their Government. The permission was at once and graciously granted, in plenary session.49 The statement therefore follows in full.

“The International Commission of Jurists has been in session for a month, in order to accomplish the mission confided to it by the Pan American Conferences. The result of its deliberations consists in twelve draft conventions of public international law, a general convention of private international law, and a plan of organization for the permanent and continuous workings of American legislation.

“This result should still be viewed as an attempt to formulate the law destined to regulate inter-American relations. Their complexity, both in public and in private law, the supreme importance of many of the legal relations regulated in the drafts, the difficulties, some of them hitherto insuperable, in adopting uniform rules or in developing certain essential but vaguely enunciated principles, show that what has now been realized is but the first stage, subject to correction, in an undefined journey which is to be continued as time goes on. The significance of the work done, then, lies not so much in its content as in what it reveals of the possibility of formulating law in America, and of the exigencies of this great undertaking in the future.

“This attempt of American jurists is the first one in the world brought into an organic form by the mandate of the Governments of a Continent. The first need, therefore, was that of determining the program and methods to be followed, or the procedure conducive to determining the subjects suitable for enactment, or the content itself of the task, and the mode or modes of dealing with them in order to reach satisfactory conclusions.

“In dealing with the preparation of international conventions, we must constantly bear in mind the conditions controlling the States in their acceptance of obligations with regard to each subject of international law. Indeed, what makes each subject possible for legislation is the certainty of such conditions and of their scope and limits. Such is the prime fundamental basis which those who prepare codification in America in the future are to build upon.

“But this governmental element which, in brief, is a fact or an empirical point of legislation, is not sufficient. In order that this work may acquire the excellence, the lofty spirit and the nobility proper for international legislation in a group of young idealistic [Page 404]nations like ours, which are aspiring to constitute on the continent an exceptional region of justice, liberty and human welfare, it is indispensable that the actual desire of the States, as the synthesis of circumstantial or transitory national interests, be explained or clarified at times, corrected at other times, and given in all cases, so far as possible, the directions which are most generous and most consistent with the conclusions of the international science as the exponent of the most select thought and highest rectitude among men. Such is the second constitutional basis for the elaboration of American legislative work.

“These two bases have been laid down in the program which the Commission of Jurists is presenting to the consideration of the Governments and of the approaching Sixth Pan American Conference.

“Because they have not hitherto existed, the International Commission of Jurists has on some occasions hesitated, and on others met serious inconveniences in reducing to concrete contractual formulas given principles necessary in international life.

“The main inconveniences have arisen out of the difficulties inherent in distinguishing between pure law and law with political tendencies calculated to bear an influence on existing questions in controversy between American Republics. Those difficulties have often been insuperable and have prejudiced, contrary to the desire of the International Commission of Jurists itself, the sincere and frank expression of great principles of law in all phases of their application.

“In international conferences in Europe and America, the problem of eliminating the influence of political questions has not been difficult to solve because everything was limited to dealing with subjects not connected with questions pending between the States. But those who are engaged in formulating international law by taking up its entire content and beginning with its fundamentals, would not be able to subtract from the law its inevitable, political content, without ignoring certain essential principles. Such an omission would be inexcusable in the framework of international legislation, and it would, in itself, carry an admission of the political questions actuating their omission. In this way, we should have in the defect precisely what was sought to be avoided, at the cost of the very substance of all legal regulation. This, as is seen, is a field sown with obstacles, and one which the International Commission of Jurists has had to tread with consummate prudence.

“Positive law, in general, takes its root in the conceptions of natural reason and the human sentiment of justice. If it is to be a law worthy of civilization, those elements should never be ignored; nor should they be offended in any case; nor is it to be permitted that its provisions should fail to be inspired by them in the greatest possible degree. But positive law is not, domestically or externally, nor can it be at any given moment, the natural law or the finished expression of justice. This—justice—is a progressive and perennial, but not precipitant realization by the positive law, which in every stage of its formulation is nevertheless subordinated to the complexity of human life, involving the consideration and comparative control of factors of different kinds and, inter alia, that of strong national interests which yield only gradually to its influence, but fortunately yielding more and more.

[Page 405]

“In this way is sketched the explanation of how the American jurists, through the possible formulas adopted in the draft projects, accept and proclaim in all their amplitude the rights and duties of nations in their purest and noblest meaning within the full radius of action necessary for them as a reality in American life.

“The human person within organized societies, and the States within the Society of Nations, have only one law. The law of persons springs from the individual conscience. The law of nations springs also from their consciousness of nationality. They are different aspects of human life and different areas of application of a single law which has for its end justice, secure and harmonious contacts, and reciprocal cooperation, assuring general welfare.

“Nations, like persons, have the right to exist and to preserve their existence. This right, like others, cannot be exercised absolutely as it would be injuring in its name the very right to life and self-preservation of innocent nations. Such a limitation is absolute and essential, but it is of a kind different from that of the salutary limitation of the right of independence.

“Independence is the affirmation of the legal personality of nations. Its concept and function in the life of States is irreconcilable with any control in its internal or external affairs intended to be imposed upon them by any method of coercion by a foreign will. Any nation invested with a right by international law can demand that it be respected and protected by all other nations because right and duty are correlative, it being incumbent upon all to respect the right of each. This is the necessary equality in law and in capacity to exercise the faculties which spring from sovereignty and independence. But that independence is not absolute. It is governed by the justice and cooperation necessary in the legal community of nations.

“In America cooperation finds special circumstances. The American nations hold common political ideals, and their history and geography have created between them for a century, commercial, social and spiritual bonds of a kind not different but closer than with the rest of the world. Since the revolution of independence a current of friendship and fraternity has been flowing over the continent, passing boundaries in good fortune and in bad. This situation would nevertheless not be sufficient to produce a well-defined obligation of cooperation if those circumstances did not create, as they have done, a state of things in virtue of which the welfare of each American State, in its democratic régime and in its external position, affects all States, as they do affect them. There is the root of the foundation of the American cooperation which imposes various and important duties, and which ought to be organized in forms in which the life of a continent can be expressed as a whole, without exceeding respect for internal sovereignty and external independence of States. The initial organization is constituted now by the continental conferences, the Pan American Union, and the International Commission of Jurists. There is, besides, a series of organs for limited functions of continental cooperation. All this comparatively incipient organization requires progressive, gradual development, parallel with the growth of the spirit of solidarity and with the ever louder and clearer affirmation of the American legal consciousness.

[Page 406]

“The duties derived from the law of cooperation do not have, nor can they have, a contractual character, nor can they be executory in law. But they are none the less necessary in the common life of our Republics. They pertain, properly speaking, to the high-minded and moral manner in which the rights are to be exercised. Sovereignty, which is the internal phase of independence, implies the duty of sincerely maintaining democratic and republican forms, in order to insure stable order and a regime of guaranties for all the inhabitants of the territory. The historical destiny of America, in being built up by the efforts of all men of the earth who are seeking liberty, work and happiness, demands of each Republic the special duty of realizing that destiny within itself. Independence, which is the external phase of sovereignty, implies in its turn the duty of not withholding its aid in all the works of continental coordination.

“The rights and duties which are expressed would not be sufficient to assure legal tranquility and peace on the continent. These are to repose upon inviolability of the territory of the American Republics, upon respect for obligations of treaties freely negotiated and accepted, and on the régime of international justice to give the necessary sanction, with the exclusion of force, to all the essential rights of nations. American law must be founded on the reciprocal guaranty of territorial integrity. Every future act of conquest should be condemned. Neither war, nor the threat of war, nor the presence of armed force, constitutes a legitimate mode of acquiring territory. In the wake of acquisitions effected by such means, there would arise incurable insecurity.

“The history of America is free from the stain of popular hatreds and rivalries among its nations. The territory of any one of them exceeds its immediate needs and will exceed for many generations its possibility of assimilation or of utilization. The development of the unlimited riches embraced within each Republic is a work of great enterprise, destined to absorb all its energy and activity. Consequently, there is nothing which could explain any aggression whatever prompted by malign covetousness of foreign territory. For more than a hundred years America has lived with its powerful right of extra-continental territorial integrity. It will continue so to live, with this same strong right as now affirmed by the voices of each and all of the constituent Republics, because they possess the consciousness of their own destiny and capacity for their responsibilities. Moreover, it will be governed in the future by the powerful law of inter-American territorial integrity. The relations of the American Republics in this field being established among themselves and with the rest of the world, they will be inspired by the strongest desire for harmony, equity and justice, and in practice will conduct themselves in foreign affairs and diplomacy under the domination of truth and the most salutary influences of public opinion.

“The enumerated principles are summed up in the following large and solid legal bases: independence, realization of common political ideals, territorial integrity, régime of international justice in place of force, non-intervention, equality and cooperation. Such are the advanced aims for American legislation. They are all contained as principles in the draft projects of public international law. Their regulation or their development, in their various modalities, is not a [Page 407]work that can be realized at any one time, nor at a given moment. It is a work of legal evolution. Nor is it an exclusive function of official jurists called to present formulas susceptible of immediate realization. On the basis of those principles the Governments themselves, through the medium of their diplomatic representatives, are the ones who should, in the legislative sessions of the Pan American Conferences, trace out the regulations and developments compatible with the state of inter-American relations, with the exigencies of policy, with national interests, with all the factors, in sum, which make up the complexity of practical international life, which is always for civilized nations a compromise between what ought to be and what is, or between the ideal of law and of justice and the human reality which is relative justice and imperfect law influenced by the interests of the States.

“In private international law this same situation has in a certain manner presented itself to the International Commission of Jurists. The two doctrines of the laws of nationality and domicile for governing personal relations are embodied in the legislation of different American Republics. Each one of the groups considers its system as a fact of transcendent public order affecting its social, economic, and political constitution. There is no way for the present of settling upon one uniform law.

“In this matter, therefore, the same as in public law, a compromise with reality has been unavoidable. The Republics will continue to apply as the personal law, what their domestic system prescribes. Happily, that does not imply an impossibility of regulating private international law in a vast field of legal relations which are not affected by the applications of personal law. Neither does it imply the necessity nor the convenience of renewing partial or sub-regional concerts on the continent founded upon the system of the two laws adopted for personal relations. Quite the contrary: the common interest consists in keeping the work within the Pan American concert until reaching, by a continuous effort of reciprocal penetration, the solution of the divergence in a system of legislative uniformity.

“All America should be viewed legally as a single field in which the relations of individuals and of States are in play. The rivalry of national laws should be settled by the selection of the most adequate, in justice, for the relations to be dealt with. Relations between States are also contests of laws and sovereignties which should be regulated by laws superior to the individual sovereignties which are the most adequate, because the most just, to insure peaceful coexistence and the welfare of all the members of the American international system. Here we have the integral concept of American law. Its analytical formulas will be a ‘continuous creation.’ ”

The Delegates of the United States have avoided the mention of personalities in the text of the report, in so far as this was possible, believing that it would be invidious on their part to mention the names of some Delegates, when all had contributed in various ways to the labors of the Commission.

They feel, however, that they are unable to conclude their report without referring to the unfailing kindness, courtesy and helpfulness [Page 408]of the American Ambassador to Brazil, the Honorable Edwin V. Morgan. Throughout the entire session of the Commission, he placed himself at their disposal, and gave them the benefit of his large experience, to such an extent that they deem it their duty to put on record a statement of their appreciation and indebtedness, to which they can not give adequate expression.

Respectfully submitted,

  • James Brown Scott
  • Jesse S. Reeves

Henry M. Campbell, Jr.
Secretary to the Delegation of the United States of America

[Annex 1—Translation]

Statement Made in the Plenary Session of May 6, 1927, by Dr. James Brown Scott of the American Delegation50

Mr. President: The delegation of the United States has the honor to request Your Excellency to bring to the attention of the members of the Commission this communication, which the American delegation will submit in the form of an amendment when the said Commission enters on the discussion of project No. 27, of the Projects of Convention prepared at the request, on January 2, 1924, of the Governing Board of the Pan American Union to be submitted for the consideration of the International Commission of Jurists and submitted by the American Institute of International Law to the Governing Board of the Pan American Union, March 2, 1925.

The project which the Delegation of the United States will submit for the kindly consideration of the Subcommission on Public International Law contemplates the establishment of a Permanent Inter-american Arbitration Tribunal which would be able to guarantee effectively the rights of the American Republics and to maintain unalterably peace and harmony in their reciprocal relations without obliging them to resort in any case to armed force.

The justification for the undertaking to resort to arbitration, which we shall have the honor to bring to the attention of the Subcommission, is found quite admirably expressed in the preamble of the Convention for the Establishment of a Central American Tribunal, signed February 7, 1923, in the preparation of which former Secretary of State Hughes took an active part. The following is the text of the engagement as found in the first article of the said Central American Convention.

“The Contracting Parties agree to submit to the International Tribunal established by the present Convention all controversies or questions [Page 409]which now exist between them or which may hereafter arise, whatever their nature or origin, in the event that they have failed to reach an understanding through diplomatic channels, or have not accepted some other form of arbitration, or have not agreed to submit said questions or controversies to the decision of another tribunal.

“Nevertheless, the questions or controversies which affect the sovereign and independent existence of any of the signatory Republics cannot be the object of arbitration or complaint.”

There is no need to emphasize the importance of such a proposal, the acceptance of which would guarantee for all time both the territorial integrity and the political independence of each of the American Republics, and which would maintain peace between them.

The proposal, which the American delegation will present in due time, is not only in conformity with the aspirations and the best traditions of North America, but also of each of the Latin American Republics.

If the proposal be eventually adopted with such modifications as may be judged necessary, all violations of international law as well as all violations of the rights and duties of the Republics will be submitted to arbitration. We feel quite certain that the project which we will submit to the Commission is inspired by our common aspirations and that it will make an irresistible appeal to the juridical conscience of the continent.

[Annex 2—Translation]

Statement Made Before the Subcommission of Public International Law, May 19, 1927, by Dr. James Brown Scott of the American Delegation51

Mr. President: In the name of the Delegation of the United States, I wish to make the following statement: It was our proposal to present for the kind consideration of the International Commission of American Jurists a most liberal project, and we reserved the right to prepare this in the form of an amendment to the project relative to pacific settlement by means of arbitration. But owing to the difficulty of submitting to the Commission questions which require a definite solution, we have resolved not to present it here and now. As the problem of establishing an American tribunal of arbitration is difficult and laborious, not possible of definitive discussion and solution in an assembly such as this, comprised exclusively of jurists, we have believed that we ought to abandon the attempt to modify, in any way, the method which now exists, leaving for a more favorable future occasion the discussion of these questions by delegates provided with political powers.

  1. For texts of projects, see International Commission of Jurists (Sessions held at Rio de Janeiro, Brazil, April 18th to May 20th, 1927), Public International Law: Projects To Be Submitted for the Consideration of the Sixth International Conference of American States (Washington, Government Printing Office, 1927).
  2. For text of convention, see International Commission of Jurists (Sessions held at Rio de Janeiro, Brazil, April 18–May 20, 1927), Private International Law: Project To Be Submitted for the Consideration of the Sixth International Conference of American States (Washington, Government Printing Office, 1927).
  3. For texts of the conventions and the code of private international law as adopted at the Habana Conference, see Report of the Delegates of the United States of America to the Sixth International Conference of American States, etc. (Washington, Government Printing Office, 1928), pp. 96 ff.
  4. For text of the declaration of the delegation of the United States annexed to the convention and code as adopted at the Habana Conference, see ibid., p. 167.
  5. See Foreign Relations, 1899, pp. 511 ff.
  6. See ibid., 1907, pt. ii, pp. 1099 ff.
  7. Foreign Relations, 1881, p. 13.
  8. For reports and recommendations of this Conference with reference to the adoption of a uniform code of international law, see Executive Document No. 183, 51st Cong., 1st sess.; also, International American Conference, 1890, Reports— a collection of reports of United States delegates to, and reports of committees of, the first International American Conference, 1889–90, and a collection of “Treaties now in force [1884] with the Central and South American States”—(Washington, Government Printing Office, 1890).
  9. The report, with accompanying papers, of the delegates of the United States to the second Conference is printed in S. Doc. No. 330, 57th Cong., 1st sess.
  10. S. Doc. 330, 57th Cong., 1st sess., p. 201.
  11. See Foreign Relations, 1906, pt. 2, pp. 1565 ff.
  12. See ibid., 1910, pp. 25 ff. For a report of the delegates with all the accompanying papers, see S. Doc. No. 744, 61st Cong., 3d sess.
  13. S. Doc. 744, 61st Cong., 3d sess., appendix I, pp. 98–99.
  14. The Portuguese texts of these codes are printed in Epitacio Pessôa, Codigo de Direito International Publico and Lafayette Rodrigues Pereira, Codigo de Direito International Privado (Rio de Janeiro, Imprensa Nacional, 1911).
  15. For Spanish text of these projects, see Alejandro Alvarez, La Codificación del Dereeho International en América: Trabajos de la Tercera Comisión de la Asamblea de Jurisconsultos reunida en Santiago de Chile (Santiago de Chile, Imprenta Universitaria, Estado 63, 1923), pp. 65 ff.
  16. For texts, 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, etc. (Washington, Pan American Union, 1925).
  17. See ibid., p. 3, par. 2, 1. 2.
  18. See American Institute of International Law, Codification of American International Law: A Project of a Code of Private International Law, Prepared at the Request, on March 2, 1925, of the Governing Board of the Pan American Union, etc. (Washington, Pan American Union, 1926).
  19. For a draft of regulations for the International Commission of Jurists, as proposed at the first meeting in 1912, see Foreign Relations, 1912, p. 32.
  20. The appendix containing Mr. Pessôa’s address has not been found in Department files.
  21. See International Commission of Jurists, Public International Law: Projects To Be Submitted for the Consideration of the Sixth International Conference of American States, p. 8.

    Bracketed references to articles appear on the original of the report.

  22. Foreign Relations, 1899, p. 521.
  23. See ibid., 1907, pt. 2, p. 1188.
  24. S. Doc. 330, 57th Cong., 1st sess., Second International Conference of American States, appendix EE, p. 213.
  25. S. Doc. 744, 61st Cong., 3d sess., Fourth International Conference of American States, appendix X, p. 226.
  26. In re Dillon, Consul of France, 7 Sawyer 561 (1854); Fed. Case 3,914.
  27. Adherence of the United States deposited at The Hague Nov. 27, 1909. For text of the convention, signed Oct. 18, 1907, see Foreign Relations, 1907, pt. 2, p. 1239.
  28. Approved Apr. 20, 1818; 3 Stat, 447.
  29. Foreign Relations, 1899, p. 521; ibid., 1907, pt. 2, p. 1182.
  30. i. e., treaty to avoid or prevent conflicts between the American states: Foreign Relations, 1923, vol. i, p. 308. Manuel-Gondra was chairman of the delegation of Paraguay to the Fifth Conference.
  31. Bilateral treaties concluded at various times in 1913 and 1914 between the United States and 21 other countries; for texts, see Foreign Relations, 1914, pp. 171, 304, 331, 971, 1068, 1082; ibid., 1915, pp. 30, 41, 276, 380, 551, 1275, 1279, 1283, 1290, 1307; ibid., 1916, pp. 43, 46, 257, 389; ibid., 1921, vol. ii, p. 941.
  32. See ibid., 1911, pp. 38 ff.
  33. Conference on Central American Affairs, etc., p. 296.
  34. None of these documents found in Department files. Translations of the two statements (printed as annexes 1 and 2 of this report) have been supplied by the editor from the texts as printed in Ministerio de Relaciones Exteriores del Brasil, Comisión International de Jurisconsultos Americanos: Reunión de 1927 (Edición Castellana, Rio de Janeiro, Imprensa Nacional, 1927), vol. i, pp. 139–141, and vol. ii, p. 354.
  35. i. e., eight treaties and an additional protocol respecting international private law, concluded at a Congress of South American States, 1888–1889. For texts in Spanish, see Congreso Sud-Americano de Derecho Internacional Privado, Montevideo, 1888–1889, Tratados sobre Derecho Internacional Privado celebrados en el Congreso Sud-Americano de Montevideo (Montevideo, Imp. “El Siglo Ilustrado”, de Gregorio V. Marino, 1911).
  36. For Spanish text of the declaration, see Ministerio de Relaciones Exteriores del Brasil, Comisión Internacional de Jurisconsultos Americanos: Reunión de 1927, vol. i, p. 186.
  37. i. e., the first plenary session; see Ministerio de Relaciones Exteriores del Brasil, Comisión International de Jurisconsultos Americanos: Reunión de 1927, vol. i, pp. 87–88.
  38. Omission indicated in the original report.
  39. Brackets appear in the original report.
  40. For Spanish text, see Ministerio de Relaciones Exteriores del Brasil, Comisión Internacional de Jurisconsultos Americcmos: Reunión de 1927, vol. i, p. 164.
  41. Brackets appear in the original report.
  42. See Ministerio de Relaciones Exteriores del Brasil, Comisión Internacional de Jurisconsultos Americanos: Reunión de 1927, vol. i, p. 261.
  43. Brackets appear in the original report.
  44. Brackets appear in the original report.
  45. Spanish text in Ministerio de Relaciones Exteriores del Brasil, Comisión International de Jurisconsaltos Americanos: Reunión de 1927, vol. i, p. 235.
  46. Ante, p. 393.
  47. For a stenographic report, in Spanish, of the closing session, containing the remarks of Messrs. Pessôa, Melo, Ortiz, and Mangabeira, referred to and quoted in the following pages of Dr. Brown Scott’s report, see Ministerio de Relaciones Exteriores del Brasil, Comisión International de Jurisconsultos Americanos: Reunión de 1827, vol. i, pp. 265 ff.
  48. See Foreign Relations, 1922, vol. i, pp. 974 ff.
  49. The minutes of the fourth plenary session, May 20, 1927, contain a statement by Mr. Maurtua in which he expresses appreciation for the generous spirit of the United States Delegation in offering to include in its report the statement prepared by him; Mr. Alvarez, the Chilean Delegate, then observes that the “statement [preámbulo] is to be inserted in the report of the Delegation of the United States and not in the minutes of the Conference”; and the President of the Conference, Mr. Pessôa, closes the discussion of this subject by stating that Mr. Scott has “permission to include the statement [proposición] of the Delegate of Peru, in the report which the American Delegation will submit to its Government.” See Ministerio de Relaciones Exteriores del Brasil, Comisión International de Jurisconsultos Americanos: Reunión de 1927, vol. i, p. 263.
  50. See footnote 36, p. 390.
  51. See footnote 36, p. 390.