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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.
"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 selfpreservation 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.
"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 régime 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. Ámerican 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 extracontinental 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
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.' 999
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
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.
HENRY M. CAMPBELL, Jr.
JAMES BROWN SCOTT
Secretary to the Delegation
of the United States of America
Statement Made in the Plenary Session of May 6, 1927, by Dr. James Brown Scott of the American Delegation
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 Interamerican 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 ques"See footnote 36, p. 390.