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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 repre
sentatives of five of the Latin American Republics for the establishment of a Central American Tribunal.38
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.86
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
Conference on Central American Affairs, etc., p. 296. 30 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 Internacional de Jurisconsultos Americanos: Reunión de 1927 (Edición Castellana, Rio de Janeiro, Imprensa Nacional, 1927), vol. I, pp. 139–141, and vol. II, p. 354.
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: 88
The delegation of the United States desires to have its vote recorded in favor of the articles reported to this Plenary Session from SubCommission 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.
* 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. Mariño, 1911).
For Spanish text of the declaration, see Ministerio de Relaciones Exteriores del Brasil, Comisión Internacional de Jurisconsulto: Americanos: Reunión de 1927, vol. I, p. 186.
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 interestnamely the title concerning extradition. In the opinion of the Amer. ican 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
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
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 Rio 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.