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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
* Foreign Relations, 1899, p. 521. See ibid., 1907, pt. 2, p. 1188.
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
* S. Doc. 330, 57th Cong., 1st sess., Second International Conference of Ameri can States, appendix EE, p. 213.
* S. Doc. 744, 618t Cong., 3d sess., Fourth International Conference of Ameri can States, appendix X, p. 226.
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
In re Dillon, Consul of France, 7 Sawyer 561 (1854); Fed. Case 3,914.
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.28 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
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
20 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.
Approved Apr. 20, 1818; 3 Stat. 447.
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. 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."
* Foreign Relations, 1899, p. 521 ; ibid., 1907, pt. 2, p. 1182.
* 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 dele gation of Paraguay to the Fifth Conference.
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.
See ibid., 1911, pp. 38 fr.