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The Gradual and Progressive Codification of International Law

Published online by Cambridge University Press:  04 May 2017

James Brown Scott
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Extract

On Monday evening, April 18, 1927, his Excellency Octavio Mangabeira, Minister of Foreign Affairs of Brazil, formally opened the International Commission of American Jurists for the Codification of International Law, Public and Private, in the city of Rio de Janeiro, in the Monroe Palace, in the presence of the official representatives of seventeen of the twenty-one American Republics, having before them, as the bases of their labors,the projects of public and private international law drafted by the American Institute of International Law. On Friday afternoon, May 20, 1927, he formally adjourned the International Commission of American Jurists, which had to its credit twelve projects of public international law, and a code of private international law of no less than 439 articles, which the Commission had, within the short space of five weeks, put into shape primarily from the projects of the American Institute of International Law. It is the purpose of the present article to show how this Commission, the first official body which successfully and consciously endeavored to codify the two branches of international law, accomplished the purpose for which it had been created and assembled.

Type
Research Article
Information
American Journal of International Law , Volume 21 , Issue 3 , July 1927 , pp. 417 - 450
Copyright
Copyright © American Society of International Law 1927

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References

1 For the history and text of this resolution, see The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists. Report and Commentary by James Brown Scott, published by the Carnegie Endowment for Interoartional Peace (1920), pp. 133-138.

2 For the text of this resolution, see Report of the Delegates of the United States of America to the Fifth International Conference of American States (Washington, Government Printing Office, 1924), Appendix 14, p. 131.

3 For the texts of these documents, see Codification of American International Law — Projects of Conventions prepared at the request on January 2, 1924, of the Governing Board of the Pan American Union 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 (Pan American Union, 1925); also in Special Supplement to this Journal, Oct., 1926 (Vol. 20, pp. 279-387).

4 The texts of these articles, with documents relating to their preparation by the American Institute and presentation to the Governing Board of the Pan American Union, will be found in a pamphlet entitled, Codification of American International Law; A project of a Code of Private International Law, prepared at the request, on March 2, 1925,of the Governing Board of the Pan American Union for the consideration of the International Commissionof Jurists, and submitted by the American Institute of International Law to the Governing Board of the Pan American Union, February 3, 1926. (Pan American Union, 1926).

5 The Life and Letters of Francis Lieber, edited by Thomas Sergeant Perry (1882), pp. 330-331

6 Ibid., pp. 333-334

7 Das ModerneVolkerrecht der Civilisirien Staten als Rechisbuch Dargestellt (1878)

8 “ These instructions prepared by Lieber, prompted me to draw up, after his model, first,the laws of war, and then,in general, the law of nations, in the form of a code,or law book, which should express the present state of the legal consciousness of civilized peoples. Lieber, in his correspondence with me, had strongly urged that I should do this, and he lent me con-tinual encouragement.” “ Ldeber's Service to Political Science and International Law,” by Dr. J. C. Bluntschli, Introduction to Volume II, The Miscellaneous Writings of Francis Lieber (1881), p. 13.

9 David Dudley Field, Outlines of an International Code, Preface to the First Edition (Second Edition, 1876).

10 The Life and Letters of Francis Lieber, edited by Thomas SergeantPerry (1882), p. 391

11 Ibid., p. 391.

12 Ibid., p. 422.

13 To Privy Councillor Mittermaier, May 16, 1854. Life, p. 275.

14 Ibid., p. 362.

15 Retme de Droit International et de legislation Comparie, Tome V, 1873, p. 480

16 Translated from Annvmre de L'InstUut de Droit International, Premiere annie, 18731875 (1877), p. 24.

17 Tome V, p. 465.

18 “ Lieber's Service to Political Science and International Law,” by Dr. J. C. Bluntschli, Introduction to Volume II, The Miscellaneous Writings of Francis Lieber (1881), p. 14.

19 From the letter of the President of the American Institute of International Law , dated March 2,1925, to the Honorable Charles Evans Hughes, Chairman of the Governing Board ofthe Pan American Union, transmitting the projects of conventions. Codification of International Law (1925), pp. 5, 11

20 Report of the Delegates of the United States of America to the Fifth International Conference of American States, held at Santiago, Chile, March 25 to May 3, 1923 (1924), p. 131.

21 For the proceedings of these meetings, see American Institute of International Law, Informal Conversations of Lima, December 20-31, 1924, published in the four official languages of the Americas, by the Carnegie Endowment for International Peace: (Washington, 1924).

22 The committee was composed of the following members (in alphabetical order): Mr. Alejandro Alvarez (Chile), Mr. Luis Anderson (Costa Rica), Mr. Antonio Sanchez de Bustamante y Sirv6n (Cuba), Mr. Pierre Hudicourt (Haiti), Mr. Jos6 Matos (Guatemala), Mr. Rodrigo Octavio (Brazil), and Mr. James Brown Scott (United States).

23 Life and Letters, p. 367

24 Second International Conference of American States, Senate Document No. 330, 57th Cong., 1st Sess., p. 213

25 Fourth International Conference of American States, Senate Document No. 744, 61st Cong., 3rd Sess., p. 226.

26 Francis Lieber apparently had not considered the interchange of students, although he had discovered the traveling professor. Perhaps he had in mind both, inasmuch as the professor was, in his conception, only a student of matureryears. However this may be, this is what he said in a letter under date of May 26, 1872, to the distinguishedGerman publicist, Franz von Holtzendorff

27 This Journal, Vol. V (1911), p . 1079.