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BRAZIL.

MESSAGE OF THE PRESIDENT, MARSHAL HERMES R. DA FONSECA,

TO THE CONGRESS. File No. 832.032/4.

*

(Translation of extracts containing all references to the Government

of the United States.) A few days ago we expressed to the Governments of the United States of America and Great Britain the profound regret which we felt at the terrible disaster to the Titanic, while later we also forwarded the vote of condolence passed by the Chamber of Deputies at its preparatory sittings. * On July 26, 1911, the convention with the United States of America, signed at Washington on January 23, 1909, was mutually ratified and [was] promulgated by Decree No. 8890 of August 9, 1911.

The conventions for a mutual parcels post service which we concluded

with the United States of America on March 26, 1910,

were still waiting, as I had the honor to inform you in my last message, the mutual ratification of the signatory powers.

So far as we are concerned these international agreements have already been approved.

We are now drawing up the necessary regulations for these agreements (which had not yet been done) in order that they may be put into execution without delay. * The Ninth International Red Cross Conference is to meet in Washington on the 7th instant, and Brazil has been invited to be represented. The Brazilian Ambassador at Washington has been appointed to represent us at this conference, which will be honored with the presence of the President of the United States. Rio de Janeiro, May 3, 1912.

HERMES R. DA FONSECA.

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AMERICAN INTERNATIONAL LAW. THE REPORT OF THE UNITED

STATES DELEGATES TO THE INTERNATIONAL COMMISSION OF
JURISTS AT RIO DE JANEIRO.

File No. 710 C2/103.

The United States Delegates to the Secretary of State.

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WASHINGTON, December 31, 1912. Sir: The undersigned have the honor to submit the following report of the proceeding of the International Commission of Jurists which met at Rio de Janeiro during the past summer:

By a convention concluded by the Third International American Conference, at Rio de Janeiro, August 23, 1906, the American nations agreed to establish an International Commission of Jurists, consist

ing of one delegate from each country, to codify international law, public and private. (Exhibit 1.")

The commission, for which provision was thus made, was by the terms of the convention to hold its first meeting at Rio de Janeiro “ during the year 1907," but this stipulation was afterwards tacitis waived, most of the Governments, including that of the United States, having ratified the convention after the expiration of that year. The governing board of the Pan American Union therefore concluded, at Washington, on January 15, 1912, a supplementary agreement, by which it was stipulated that the commission should meet at Rio de Janeiro on June 26, 1912. It was also provided that each Government might be represented " by two delegates instead of one, but with a single vote.' (Exhibit 2.2)

In conformity with this agreement, the International Commission of Jurists met at Rio de Janeiro on the 26th of June last, assembling in the Monroe Palace, a handsome edifice, named for President Monroe, in which were held the sessions of the Third International American Conference.

By the convention of 1906 it was provided that the presence of representatives of 12 of the signatory States should be necessary for the organization of the commission. At the preliminary session, which was held on the afternoon of the 26th of June, the delegate of Mexico presiding, delegates of 14 States appeared, as follows:

America (United States of): John Bassett Moore, delegate; Frederick Van Dyne, technical delegate.

Argentina: Dr. Norberto Quirno Costa, Dr. Carlos Rodriguez Larreta, jr.

Brazil: Dr. Epitacio Pessoa, Dr. Candido Luiz Maria de Oliveira
Chile: Dr. Miguel Cruchaga, Dr. Alejandro Alvarez.
Colombia: Dr. José Maria Uricoechea, Dr. Roberto Ancizar,
Costa Rica: Dr. Alejandro Alvarez.
Ecuador: Dr. Alejandro Alvarez, Dr. Matias Alonso Criado.
Guatemala : Dr. Antonio Batres Jáuregui, Dr. José Matos.
Mexico: Dr. Victor Manuel Castillo.
Panama: Gen. Dr. Don Santiago de la Guardia.
Paraguay: Dr. Cecilio Baez.

Peru: Dr. Hernán Velarde. An additional delegate, Dr. Alberto Elmore, subsequently appeared.

Salvador: Dr. Alonso Reves Guerra.
Uruguay: Dr. Juan Zorrilla de San Martin, Dr. José Pedro Varela.
Other countries were subsequently represented, as follows:
Bolivia: Dr. Victor Sanjinés.
Cuba: Dr. Aniceto Valdivia.
Venezuela: Dr. Pedro Manuel Arca va.

Seventeen States were thus finally represented in the congress; but a delegate from yet another State, Dr. Américo Lugo, from Santo Domingo, was on his way to Rio de Janeiro when the congress adjourned.

The congress was formally opened on the evening of the 26th of June. Mr. Lauro Müller, Minister of Foreign Relations of Brazil, presided and made an address of welcome (Exhibit 3,) to which a response was made by the delegate of the United States. (Exhibit 4.)

1 See For. Rel. 1906, vol. 2, p. 1601, for the text of the convention establishing the commission; For, Rel. 1908, p. 2, for its ratification; it was proclaimed May 1, 1912.

: Not printed.

Dr. Epitacio Pessôa, first delegate of Brazil, was elected permanent president. A translation of his address on taking the chair is hereto annexed. (Exhibit 5.1)

The first ordinary session of the commission was held on the 28th of June. At this session a motion was presented by the Chilean and Argentine delegations, with reference to the work which the commission should undertake and the methods by which it should be carried on. (Exhibit 6.1) Divested of argumentative matter, the motion raised various questions, namely, whether codification should be effected by means of identical national laws or by means of international conventions; whether it should be at the first moment complete, or should be gradual and progressive; in what form amendments should be made, or defects supplied; whether new rules should continue to be elaborated, so as to keep the code, or the agreed points, in harmony with the progress of nations. For the consideration of these and other preliminary points, including that of the codification of rules which specially or more directly interest the nations of America, the motion proposed that a committee should be appointed, consisting of five members, to collect the views of the various delegations and to submit a report. This motion, which was seconded by Mr. Moore, of the delegation of the United States, having been adopted, the president of the commission appointed the following committee: John Bassett Moore, Norberto Quirno Costa, Alejandro Alvarez, Hernán Velarde, and Candido Luiz Maria de Oliveira, being delegates, respectively, of the United States, Argentina, Chile, Peru, and Brazil. The committee, on motion of the delegate from Argentina, designated the delegate from the United States as chairman.

The committee thus constituted became in reality a committee on permanent regulations, and in this capacity dealt with what proved to be the crucial question before the congress. This was the result of certain circumstances which will be briefly narrated.

The committee, as has been seen, was charged with the duty of collecting the views of the various delegations on the work before the congress. At the preliminary session of the delegates, on the afternoon of the 26th of June, a complete printed draft of regulations, in Portuguese, for the government of the commission and its work, was presented by the Brazilian delegation. (Exhibit 7.1) This draft The delegates were not asked to adopt finally; but in order that they might proceed to organize, it was, on motion of Mr. Moore, adopted provisionally, the question of its permanent approval being thus deferred. A subsequent examination of its contents disclosed the fact that its framers apparently intended to propose that the commission should proceed at once to the adoption of codes; and the proposed regulations were in this sense laid before the committee, as embodying the views of the Brazilian delegation, to the end that the committee might report them to the commission for adoption as permanent regulations. This proposal, which, in view not only of the magnitude and difficulties of the task before the commission, but also of the provisions of the convention of 1906, would otherwise have been incomprehensible, was explained by the circumstance that two eminent Brazilian jurists, Dr. Epitacio Pessoa, of the supreme court of the Republic, and Dr. Lafayette Rodriguez Pereira, a former minister of justice, had respectively prepared drafts of codes of public international law and private international law, for the use of the commission.

* Not printed,

The Argentine member of the committee presented a proposal for the division of the commission into five committees, to sit, respectively, at Washington, Rio de Janeiro, Santiago (Chile), Montevideo, and Buenos Aires. The Montevideo committee was to be charged with the codification of private international law, Montevideo having been the seat of the congress of 1888 on that subject. To the other four committees were respectively to be assigned for codification: (1) The laws of war on land and sea; (2) neutrality and civil wars; (3) the laws of peace; (4) the organization of international tribunals. This proposal, like the previous Chilean-Argentine motion, was based upon the understanding that the sole object of the first meeting of the commission was that of organization and distribution of work.

The delegate of the United States, in his speech at the formal opening of the congress, had previously expressed the same understanding, saying:

The duty of the present congress is comparatively simple, and as it does not embrace the discussion of principles or the conclusion of conventions on controverted topics may no doubt be expeditiously performed. Our meeting upon the present occasion marks only the beginning of the great work that lies before us, a work that will involve hereafter the prolonged and profound study of general principles, of conventional agreements, and of domestic legislation and judicial and administrative decisions, to the end that, by becoming acquainted with our points of disagreement, as well as of agreement, we may be sure of our ground and go forward with a precise knowledge of the actual legal situation in each country concerned.

In conformity with this view the American member of the committee, taking the Brazilian draft regulations as a starting point, presented an amended draft containing the following clause:

ART. XV. In order to lay the foundation for the performance by the commission of the task committed to it of drafting a code of public international law and a code of private international law, each delegation shall, after the adjournment of the present congress, proceed to make a preliminary report, dealing with the subject of the codification of International law, public and private, fully and in detail from the point of view of the jurisprudence, the constitutional law, the legislation national and local, and the decisions of the authorities administrative and judicial, of its own country. In making such reports the several delegations shall take into consideration the draft codes already prepared by the Brazilian jurists, Messrs. Epitacio Pessoa and Lafayette Rodrigues Pereira, as well as the treaties of Montevideo of 1889, the acts of the international American conferences, the acts of the peace conferences at The Hague, the acts of the conferences at The Hague on private international law, and any other pertinent International conventions, and also any projects and propositions which the present congress may decide to include in such prelimi. nary examination and reports.

The text of the preliminary reports shall be printed in English, Portuguese, Spanish, and French, and 25 copies of the report of each country, in each language, shall be delivered to each delegation.

The amended draft (Art. XVI) went on to provide that, after these preliminary reports should have been exchanged, the commission might, as indicated in the convention of 1906, divide itself into two committees to consider, respectively, the preparation of drafts of codes of public international law and private international

law. A further amendment was also elaborated, by which these committees were to be authorized to constitute out of their members subcommittees for the consideration of particular subjects, but this amendment was never formally presented, it appearing that the immediate division of the commission into more than two committees, in accordance with the Argentine proposal, was generally desired.

As the result of this divergence of proposals, the proceedings of the committee became the center of a very active contest, in which there was exhibited on the part of the Brazilians so much earnestness and feeling that the American delegation sought a conference with Dr. Epitacio Pessốa, first Brazilian delegate and president of the Congress, in order to ascertain the precise views and wishes of his delegation. We thus learned that the Brazilian delegation maintained that the convention of 1906 contemplated or at least permitted final action by the commission at its first meeting on codes or parts thereof; that the note (Exhibit 8), with which the Brazilian draft codes were communicated to the other Governments, indicated that those particular codes were to be discussed and acted upon in whole or in part at that meeting; that this indication was at least tacitly accepted and that the omission to act upon it would involve the defeat of the object of the meeting and in effect the abandonment of the task of codification.

Our instructions, which did not refer to the Brazilian note nor inclose a copy of it, were framed upon the understanding that the first meeting of the commission was to be essentially and appropriately preliminary for the attainment of the necessary and important object of organization and distribution of work. This understanding appears to be in strict conformity with the convention of 1906. By that convention (art. 3) it was provided that the “first meeting” of the commission should be held at Rio de Janeiro; that the commission, having met for the purpose of organizing and distributing the work to the members thereof," might divide itself into committees, and that it should designate the “time and place” of its subsequent sessions. Not only do these stipulations all indicate that the sole design of the first meeting was that of organization and distribution of work, but the requirement that the place as well as time of subsequent sessions should be designated would be devoid of meaning if it had been supposed that the commission would on its first assembling proceed, either as a body or by means of committees, to draft codes in whole or in part. The intention that the commission should deliberate upon its work is further shown by the provision (art. 3) that the “ final meeting” should be held at a date sufficiently early to permit “all drafts or all important portions thereof” to be submitted to the several Governments at least a year before the coming together of the ensuing international American conference. The time originally set for the first meeting of the commission made it morally certain that two years would thus be allowed for the preparation of drafts, an interval of less than four years between the international American conferences never having been contemplated. Equally obvious is the meaning of the provision (art. 4) that the work shall be distributed “among the members of the commission, and that if the commission should divide itself into committees such committees - must proceed separately.” It never was contemplated that the commission should as a body remain in continuous session while committees or

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