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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 OF 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 Commission 39 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.
*i. e., the first plenary session; see Ministerio de Relaciones Exteriores del Brasil, Comisión Internacional de Jurisconsultos Americanos: Reunión de 1927, vol. I, pp. 87-88.
Omission indicated in the original report.
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 indi. rectly, 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
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]" that some of them did not have
* Brackets appear in the original report.
"For Spanish text, see Ministerio de Relaciones Exteriores del Brasil, Comisión Internacional de Jurisconsultos Americanos: Reunión de 1927, vol. I,
See Ministerio de Relaciones Exteriores del Brasil, Comisión Internacional de Jurisconsultos Americanos: Reunión de 1927, vol. I, p. 261.
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]“ 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
“ Brackets appear in the original report.
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