« PreviousContinue »
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
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 SubCommission.
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.
CODIFICATION OF PUBLIC INTERNA
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. Pessốa, 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 SubCommission 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, for it was understood that it would
adjourn at least before the 24th of May, at which time Messrs. Bustamante and Pessốa 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. Pessoa'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. Pessoa 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. Pessoa 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
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.
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. Pessoa 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)
* 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.