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710.C2/228 : Telegram
The Secretary of State to the Ambassador in Brazil (Morgan)
WASHINGTON, May 13, 1927—5 p. m. 18. Your 22, May 12, 3 p. m. Please deliver the following immediately to Messrs. Scott and Reeves :
“Referring to your communication transmitted in the Embassy's May 12, 3 p. m., and having in mind the evident disposition as reflected in recent press despatches to attribute unusual official importance to the statements and proposals of the American Delegates, the Department does not consider it practicable or advisable for you to submit to the plenary session any plan such as the one you have in contemplation. Your plan has not been submitted and considered here, and from your statement it would not even be discussed or voted upon by the Commission of Jurists. The practical result of the proposed action would be to involve this Government in an implied commitment in favor of some plan which it has had no opportunity to examine and pass upon, thereby limiting to a certain degree its freedom of action at the next Pan American Conference. In these circumstances you are instructed to refrain from introducing the plan."
710.C2/230 : Telegram
The Ambassador in Brazil (Morgan) to the Secretary of State
RIO DE JANEIRO, May 14, 1927–11 a. m.
[Received May 14–10:55 a. m.] 24. Messrs. Brown Scott and Reeves have handed me the following text for transmission to the Department:
“In compliance with the Department's telegram of May 13th, we hasten to state that we shall refrain from introducing the plan. We avail ourselves of the opportunity of expressing our appreciation of the courteous language in which the Department's instruction is couched."
The Delegates of the United States to the International Commission of Jurists (Scott and Reeves) to the Secretary of State
WASHINGTON, June 10, 1927. SIR: The undersigned, Delegates of the United States of America, to the International Commission of Jurists created by resolution of April 26, 1923, of the Fifth International Conference of the American Republics, held at Santiago de Chile, to codify international law, public and private, have the honor to submit their report as Delegates of the United States, on the nature of the Commission, its procedure and labors, resulting in a recommendation of twelve projects of public
international law, and a convention of private international law consisting of no less than 439  articles,“ to be transmitted to the Sixth of the American Conferences, which is to convene at Habana, January 16, 1928, for such consideration as that body shall be pleased to give to them."
The word "codification” is used in a two-fold sense: strictly, as a statement of the law actually in force; and popularly, as a statement, not merely of the law in force, but such as it should be, in the opinion of those undertaking its formulation and statement. The Delegates of the United States have understood "codification” in its first and strict sense, and the sense in which they believe that the Commission likewise understood it. The projects, therefore, of public international law are in general, it is believed, an acceptable statement of the practice, not only of any one Republic, but of the American Republics, in their relations with one another. Whenever a statement did not seem to be in accord with the law as understood in the United States, the American Delegates called attention to that fact and entered what is called a “reserve". On one occasion they interposed their reserve to an
a entire project—that on asylum-on the ground that the practice of receiving political fugitives in a legation or embassy is contrary to the practice of the United States of America.
In the matter of the conflict of laws—which the Latin American States universally call “private international law”—the Delegates of the United States entered a general reserve to the entire convention, on the ground that the practice of the United States based, as it is, on domicile, is necessarily so opposed to the practice of those countries accepting the principle of nationality that it was better to refer the projected code of private international law in its entirety to the Department of State, in order that the appropriate authorities of the government might determine the extent to which the United States might be able or willing to accord its approval.
The Delegates of the United States are of the opinion that there is no provision in any one of the twelve projects of public international law, with the exception of that on asylum, which is contrary to any
* For texts of projects, see International Commission of Jurists (Sessions held at Rio de Janeiro, Brazil, April 18th to May 20th, 1927), Publio International Lar: Projects To Be Submitted for the Consideration of the Sixth International Conference of American States (Washington, Government Printing Office, 1927).
* For text of convention, see International Commission of Jurists (Sessions held at Rio de Janeiro, Brazil, April 18-May 20, 1927), Private International Lalo: Project To Be Submitted for the Consideration of the Sixth International Conference of American States (Washington, Government Printing Office, 1927).
* For texts of the conventions and the code of private international law as adopted at the Habana Conference, see Report of the Delegates of the United States of America to the Sixth International Conference of American States, etc. (Washington, Government Printing Office, 1928), pp. 96 ff.
• For text of the declaration of the delegation of the United States annexed to the convention and code as adopted at the Habana Conference, see ibid., p. 167.
thing to be found in the projects transmitted by the Pan American Union, and they believe that they did not, at any time during the session of the International Commission of Jurists, make or countenance any proposal which was inconsistent with the provisions, in whole or in part, of the Pan American Union projects, with which the officials of the Department of State are familiar.
The International Commission of Jurists for the Codification of International Law, Public and Private, formally opened its proceedings on the evening of April 18, 1927, in the Monroe Palace, in the City of Rio de Janeiro, the incomparable Capital of the United States of Brazil.
The Commission owed its immediate origin to a Resolution of the Fifth Conference of the American Republics meeting in Santiago de Chile, in the Spring of 1923, by virtue of which each of the twentyone American Republics was authorized and requested to appoint two jurists; and the jurists thus appointed were to compose the International Commission which was to meet two years later, in Rio de Janeiro, at a date to be fixed by the Governing Board of the Pan American Union, composed of the diplomatic representatives of the American Republics, which holds its regular monthly sessions in the Pan American Building, in the City of Washington.
The date finally agreed upon by the Governing Board, in consultation with the Minister of Foreign Affairs of Brazil, was April 16, 1927; and two days later, April 18th, the Commission was, in fact, formally opened by His Excellency Octavio Mangabeira, Minister of Foreign Affairs, in the presence of the Diplomatic Corps accredited to Rio de Janeiro, and other leading personalities of the Brazilian Capital.
The Commission chose as its President, the Honorable Epitacio Pessoa, an ex-President of the Republic, who had also presided the first Commission of Jurists, which had likewise met in Rio de Janeiro, in the summer of 1912. The Brazilian Government appointed as Secretary General the distinguished littérateur, Mr. Gustavo Barrosa, member of the Brazilian Academy of Letters, and Correspondent of the Royal Society of Literature of England.
Of the twenty-one American Republics, all but Guatemala, Hon. duras, Nicaragua, and San Salvador [Salvador), four of the five Republics of Central America, were represented in the Commission. Of the seventeen Republics taking part in the Commission, Argentina, Bolivia, Brazil, Colombia, Cuba, Mexico, Uruguay and Venezuela, were represented by two delegates each, apparently on the theory of one for public, and the other for private international law. Eight of the Republics (Chile, Costa Rica, Ecuador, Haiti, Panama, Paraguay, Peru and Santo Domingo [Dominican Republic]) had but a single delegate each. The two delegates of the United States were appointed without special reference to one or the other of the two branches of international law, and took part in the proceedings concerning each branch.
Under a Convention adopted at Rio de Janeiro by the Third Pan American Congress, meeting in that city in 1906, there had been appointed a first Commission for the Codification of International Law, Public and Private. It met in the summer of 1912, in the same city of Rio de Janeiro; and it failed, owing to a lack of preparation. It adjourned within a few weeks after its opening session, never to meet again, due, it is believed, to the outbreak of the World War two years later. The second Commission succeeded because of adequate preparation in advance of its sessions, with some thirty projects of convention dealing with certain phases of public international law, and a complete code of private international law to serve as the bases of discussion; and when the Commission adjourned, on the evening of May 20, 1927, it had twelve draft conventions of public international law to its credit: Fundamental Bases of International Law; States—Existence, Equality and Recognition; Status of Aliens; Treaties; Exchange of Publications; Interchange of Professors and Students; Diplomatic Agents; Consuls; Maritime Neutrality; Asylum; Obligations of States in Event of Civil War; and Pacific Settlement of International Conflicts; and a complete code of private international law.
Within recent years, in Europe, two peace conferences have been held at The Hague, in which certain phases of international law were put in the form of conventions. In the first, of 1899, three conventions and three declarations were adopted in a session beginning May 18th and ending July 29th of that year, that is to say, in a session of approximately two and a half months. In the Second Hague Peace Conference, of 1907,8 thirteen conventions and one declaration were adopted. This Conference met from June 15th to October 18th-1 session of a little over four months. There have been some conferences on private international law likewise held at The Hague, which have put in conventional form some topics on the conflict of laws. But hitherto, there has been no conference in Europe in which international law both public and private has been considered, and the labors of the various Hague Conferences on these two branches of the law do not equal—if the results achieved in private as well as public international law can be considered—the work of the Commission of Jurists meeting in Rio de Janeiro in 1927.
The modern movement of the Americas in favor of codification is due to gatherings of the American Republics commonly called Pan
American Conferences. The first of the series was proposed on November 29, 1881, by Secretary of State Blaine, to consider how the Americas could be spared the horrors of internecine wars by a timely resort to arbitration and other peace-keeping agencies. On October 2, 1889, the Conference met in Washington under Secretary Blaine's presidency and adjourned April 18 , 1890.10 The second Conference was held in the City of Mexico from October 22, 1901, to January 31, 1902.11 There the first conscious step was taken toward codification. Upon the motion of the Brazilian delegation, a convention was agreed to and signed on January 27, 1902,12 for the codification of public and private international law by a commission of seven persons of whom five should be publicists of the Americas, and two of Europe.
When the Third Conference assembled four years later in Rio de Janeiro,1% no progress had been made towards the realization of what may be termed this peculiarly American ideal. It was at the third of the Conferences, in the City of Rio de Janeiro, that definite action was taken in behalf of codification by a formal convention of eighteen of the American Republics, and ratified by fifteen of those then and there represented, just as the possibility of condification was to be demonstrated in Rio de Janeiro by the International Commission of Jurists in 1927. The ratifying Republics (Argentina, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Mexico, Panama, Peru, Salvador, United States and Uruguay) pledged themselves by convention of August 23, 1906, to the codification of public and private international law through a commission of experts to be composed of a delegate from each of the contracting Republics. However, when the fourth Pan American Conference met in Buenos Aires in the summer of 1910,14 the Commission had not as yet assembled. The action taken in Rio de Janeiro in favor of codification was reaffirmed 15 and the proposed commission was ultimately enlarged so that two delegates instead of one from each, represented the contracting Parties.
Foreign Relations, 1881, p. 13.
10 For reports and recommendations of this Conference with reference to the adoption of a uniform code of international law, see Executive Document No. 183, 51st Cong., 1st sess.; also, International American Conference, 1890, Reports a collection of reports of United States delegates to, and reports of committees of, the first International American Conference, 1889–90, and a collection of “Treaties now in force (1884) with the Central and South American States”(Washington, Government Printing Office, 1890).
* The report, with accompanying papers, of the delegates of the United States to the second Conference is printed in S. Doc. No. 330, 57th Cong., 1st sess.
» S. Doc. 330, 57th Cong., 1st sess., p. 201.
** See ibid., 1910, pp. 25 ff. For a report of the delegates with all the accompanying papers, see S. Doc. No. 744, 61st Cong., 3d sess.
15 S. Doç. 744, 61st Cong., 3d sess., appendix I, pp. 98-99.