AMERICAN PUBLIC INTERNATIONAL LAW

Source: Advocate of Peace through Justice, Vol. 87, No. 5 (MAY, 1925), pp. 253-256
Published by: Sage Publications, Inc.
Stable URL: https://www.jstor.org/stable/20660902
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Advocate of Peace through Justice

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 ADVOCATE OF PEACE
V0L?ME MAY, 1925 NUTER
EDITORIALS
AMERICAN PUBLIC INTERNA obtained by means of war or under the
TIONAL LAW
THE American
thirty Institute
projectsof International
submitted by the
Law to the Governing Board of the Pan
American Union by the Secretary of
State, Charles Evans Hughes, March 2,
1925, have been printed by the Pan
American Union of Washington, D. C, in
a brochure of 121 pages. In submitting
these resolutions, Secretary Hughes said:
"I believe that this day, with the submis
sion of concrete proposals . . . marks
a definite step in the progress of civiliza
tion and the promotion of peace, and for
that reason will long be remembered."
Because of these words, made public at
the time, students of international affairs
have awaited the projects with deep in
terest. Do these conventions warrant the
estimate put upon them at the time of
their submission by Mr. Hughes? We
think they do.
The most striking of them is the last.
This project reads:
"The American Eepublics, . . . ani
mated by the desire of preserving the
peace and prosperity of the continent, for
which it is indispensable that their mu
tual relations be based upon principles of
justice dnd upon respect for law, solemnly
declare as a fundamental concept of
American international law that, without
criticizing territorial acquisitions effected
in the past, and without reference to ex
isting controversies?
"In the future territorial acquisitions
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menace of war or in presence of an armed
force, to the detriment of any American
Kepublic, shall not be lawful; and that
"Consequently territorial acquisitions
effected in the future by these means can
not be invoked as conferring title; and
that
"Those obtained in the future by such
means shall be considered null in fact and
in law."
This suggestion for a self-denying ordi
nance may be said to be the central
thought of the projects. It will be noted
that it contains no provision whatsoever
for affirmative action, no binding of the
nations to go to war against a recalcitrant
State, no threat of any kind. Nations
adopting such a principle simply renounce
the right to acquire another's territory by
conquest. There are no drastic demands
whatever. There is not even a ban on
war. It simply proposes an agreement by
the terms of which any inducement for
aggressive action is forever removed. It
is a peace proposal. It is an Americaniza
tion of the Monroe Doctrine. It is the
essential first step which the nations must
collectively take before there can be any
hopeful efforts toward the upbuilding of
that justice between States without which
no abiding peace is conceivable.
The thirty projects cover a wide range.
The titles of the projects are as follows:
1, Preamble; 2, General declarations; 3,
Declaration of Pan American unity and
co-operation; 4, Fundamental bases of in
 254 ADVOCATE OF PEACE May
ternational law; 5, Nations; 6, Becogni peaceably if both parties really desire
tion of new nations and new governments; peaceable settlement, while there are few
causes of dispute so trifling that they can
7, Declaration of rights and duties of na not be made the occasion of war if either
tions; 8, Fundamental rights of Amer party really desires war. The matters in
ican republics; 9, Pan American Union; dispute between nations are nothing; the
10, National domain; 11, Eights and du spirit which deals with them is every
ties of nations in territories in dispute on thing."
the question of boundaries; 12, Jurisdic The projects are peace projects. They
tion; 13, International rights and duties contain no proposals for the regulation of
of natural and juridical persons; 14, Im war. They bar conquest and intervention.
migration; 15, Besponsibility of govern They renounce any imperialistic aims on
ments; 16, Diplomatic protection; 17, the part of the United States. They as
Extradition; 18, Freedom of transit; 19, sume the equality of all States before the
Navigation of international rivers; 20, law. Article 2 of project 5 distinctly
Aerial navigation; 21, Treaties; 22, Dip says: "Nations are legally equal. The
lomatic agents; 23, Consuls; 24, Ex rights of each do not depend upon the
change of publications; 25, Interchange power at its command to insure their ex
of professors and students; 26, Maritime ercise." Project number 7 is the interna
neutrality; 27, Pacific settlement; 28, tional bill of rights adopted by the Amer
Pan American Court of Justice; 29, ican Institute of International Law at its
Measures of repression; 30, Conquests. first session, in the city of Washington,
If these projects are adopted by the In January 6, 1916. Article 1 of project
ternational Commission of Jurists meet number 8 reads:
ing next year in Eio de Janeiro and rati
"The, following principles are declared
fied by the twenty-one American repub to constitute American public law and
lics, we shall have for the first time in shall be applied and respected in America
history an association of nations based by all nations:
upon a definite code of law. Therefore we "1. The American republics, equal be
fore international law, have the rights in
are speaking here of important matters.
herent in complete independence, liberty,
The rules and regulations here sug and sovereignty. Such rights can in no
gested are based upon the idea of co-oper way be restricted to the profit of another
ation, international duty, and common in nation, even with the consent of the inter
terests. They contemplate the gradual ested American republics.
"2. No American republic can cede any
evolution and free development of inter part whatever of its territory to a non
national law. They show the way for the American nation, even if it consents to
American republics to determine among do so.
themselves the rules which shall regulate "3. No nation shall hereafter, for any
their reciprocal relations. They are all reason whatsoever, directly or indirectly,
occupy even temporarily any portion of
founded upon a principle enunciated by
the territory of an American republic in
Mr. Elihu Boot, who, as Secretary of order to exercise sovereignty therein, even
State of the United States, at the laying with the consent of the said republic.
of the cornerstone of the Pan American "4. No nation has a right to interfere
Union Building, in Washington, in 1908, in the internal or foreign affairs of an
said: American republic against the will of that
republic. The sole lawful intervention is
"There are no international controver friendly and conciliatory action without
sies so serious that they cannot be settled any character of coercion.*

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 1925 EDITORIALS 255
Since no code of international law can international obligation; as to the inter
be satisfactory without provision for a pretation of a sentence passed by the
court of international justice to render court, and as to all disputes of any kind
decisions in cases of controversy, project which may be submitted to the court by
number 28 shows how a Pan American an agreement of the parties. Appeals
Court of International Justice may be set from the decision of the Court of First
up. The plan proposed is adapted from Instance may be made to the Court of
the project of the Commission of Jurists Appeal, but the judgment of the Court of
which met at The Hague in 1920. There Appeal shall be final.
are 45 articles in this project, the second Project number 29 provides for meas
and third of which are as follows: ures of self-redress short of war. These
are of two kinds?pacific and coercitive.
"Article 2. At a date to be fixed by the
governing board of the Pan American The pacific measures provided for are sev
Union, each contracting republic shall be erance of diplomatic relations, pacific em
requested to appoint a member, and the bargo, and non-intercourse. Those of a
names of the persons so appointed shall coercitive nature are those actions taken
be transmitted to the Director General of
the Pan American Union. The members by a country in order to compensate it for
thus appointed shall form the court, and damages suffered where another nation
the Director General shall send a list of has taken the law into its own hands.
them to each republic. Such action, known as retorsion, might be
"The Pan American Union shall re extended to the display of force, such as
quest from each contracting republic the the maintenance of a naval squadron in
name of a Canadian jurisconsult who pos
sesses the qualifications specified in Arti or near the waters of the nation charged
cle 1 and who is disposed to accept the with wrong-doing.
position of member of the court. The Another series of coercitive acts pro
names of the persons proposed shall be vided for are such as may be undertaken
drawn by lot by the Director General of
for the purpose of obtaining, directly or
the Union at a meeting of the governing
board, the person whose name is thus indirectly, reparation for the illegal con
drawn from the urn being appointed to duct of another nation. Such acts are
the court. acts of reprisal. Other acts of coercitive
"Article 3. At a meeting of the govern nature, called hostile embargo, are such
ing board the names of the members shall as when ships or properties of a foreign
be placed in an urn and the director Gen nation are detained for one reason or an
eral shall draw them one by one. The other. A final list of coercitive acts in
first half shall form the court of first in
stance ; the second, the court of appeal. cludes acts of pacific blockade. This con
"In respect to the United States and sists in the obstructing or closing of the
Canada, the person whose name is first ports or coasts of one country by another.
drawn shall be in the first branch, and the If confined solely to the country against
person whose name is last drawn shall be
which the measure is taken, such an act
reserved for the court of appeal."
is said to be pacific, and it does not neces
It is proposed that this court shall have sarily create a state of war. This is the
obligatory jurisdiction as to the interpre maximum of force provided for in the
tation of a treaty, the existence of any projects. But, in the case of force against
fact which, if established, would consti any American republic, it is pointed out
tute a breach of an international obliga that such a republic should immediately
tion; as to the nature and extent of repa uotify the Pan American Union in order
ration to be made for the breach of an
that the governing board thereof "may

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 256 ADVOCATE OF PEACE May
consider the matter and take such action Antonio Sanchez de Bustamante y Sirven,
as it may deem advisable." This is a fair this distinguished jurist turned his atten
summary of those portions of the projects tion at once to the problem of codifying
dealing with the coercion of States. private international law.
We do not know that these projects will Judge Bustamante is professor of pub
pass the gauntlet of the International lic and private international law in the
Commission of Jurists and of the various University of Havana, in the Bepublic of
governments; but it must be apparent to Cuba. He is vice-president of the Insti
every one who will take the time to study tute of International Law and a member
them that we have here the most hopeful of the American Institute of Interna
beginning of a society of nations gov tional Law. He is vice-president of the
erned by law that the world has hereto International Academy of Comparative
fore seen. It is peculiarly fitting that the Law. His law firm in Havana is said to
Pan American Union should have printed have the largest practice of any law firm
at the top of the title page of these proj of the Western Hemisphere, which prob
ects those words of Joubert: "C'esi la ably means of the world. He is probably
force et le droit qui reglent tout es choses best known to our readers, however, by
dans le monde; la force, en attendant le the fact that he is one of the judges of
droit"?"Force and right rule everything the Permanent Court of International
in the world; force, until right is ready." J ustice.
Judge Bustamante has shown the keen
est interest in the projects for the codifi
THE CODIFICATION OF PRIVATE cation of American public international
INTERNATIONAL LAW law; but, realizing also the necessity for
rendering a similar service in the field of
THE projects
internationalfor the codification
law submitted by the of private international law, he withdrew
American Institute refer only to public from the practice of law and devoted him
international law. By public interna self intensively to drafting a code of pri
tional law is meant those rules and prin vate international law, with the result
ciples which are generally observed by that his work has appeared in the form
States in their relations with each other. of a volume, 269 pages, printed by El
There is another branch of interna Siglo XX, Havana, Cuba. This remark
tional law, having to do with rights of able work, begun some time last fall, ap
individuals. That portion of interna peared from the press in March of this
tional law which relates to the rules and year.
principles governing private rights is A translation of the introduction ap
commonly known as private international pears in our department of international
law. documents, page 293 of this number.
These private international laws are as In the light of these two works?one
much in need of clarification and codifi by the American Institute of Interna
cation as public international laws. tional Law, in the interest of public in
When the work of the American Acad ternational law; the other by the distin
emy of International Law, which ended guished jurist of Havana, in the interest
in the projects to which we refer, was of private international law?there can
brought to the attention of the Honorable remain no doubt either of the interest or

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