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Published online by Cambridge University Press: 12 April 2017
Even before the attack upon the United States by Japan at Pearl Harbor and the subsequent declarations of war by Germany and Italy, the Inter-American Neutrality Committee had already been forced into a position where it could not fulfill the purposes for which it was originally intended. At the time of its creation by the meeting of Foreign Ministers at Panama in 1939, the Committee represented a genuine desire on the part of the American Republics to observe “certain standards” of neutral conduct which would insure their being able to maintain their status as neutral States; and in fulfillment of the functions assigned to it, the Committee proceeded to make “recommendations” which it believed to be in accord with the traditional principles of neutrality. The recommendation on the Security Zone, while upholding a departure by the American Republics from the specific rules of neutrality, was justified by the Committee on the basis of the fundamental right of self-defense under the conditions of modern submarine warfare.
1 See “The Inter-American Neutrality Committee,” this Journal, Vol. 35(1941), p. 12.
2 Even if, from the point of view of domestic law, the transfer of the fifty destroyers by the United States to Great Britain in September, 1940, was legal, it is clear that the transfer was in contravention of the ordinary rules of neutrality contemplated at the time of the Panama meeting. The provisions of the Lend-Lease Act of March, 1941, were even more contrary to the standards of the Panama resolution. There was more than enough justification in both cases for the departure from strict neutrality; but that issue was not before the Neutrality Committee.
3 For the text of the program, see Third Meeting of the Ministers of Foreign Affairs of the American Republics: Program and Regulations, Pan American Union, 1941. For a survey of the organization and activities of the meeting, see Fenwick, C. G., “The Third Meeting of Ministers of Foreign Affairs at Rio de Janeiro,” this Joubnal, Vol. 36 (1942), p. 169 Google Scholar.
4 An interesting feature of the project (No. 25) presented by the United States delegation was that the Committee, in addition to having a broad jurisdiction with respect to “problems having an international and juridical aspect arising in connection with the existing war of general interest to the American Republics,” was also authorized to “give advisory opinions on matters of difference between two or more American Republics, if so requested by the interested Governments.”
5 For the text of the resolution, No. XXVI of the Final Act, see Report on the Third Meeting of the Ministers of Foreign Affairs of the American Republics, Pan American Union, Congress and Conference Series, No. 36; this Journal, Supp., Vol. 36 (1942), p. 86.
6 At the time of its transformation into the new Juridical Committee the Inter-American Neutrality Committee consisted of the following members: Afranio de Mello Franco of Brazil, Chairman; Eduardo Labougle of Argentina, substituting for Luis A. Podestà Costa; Mariano Fontecilla of Chile; Charles G. Fenwick of the United States; Fernando Lagarde y Vigil of Mexico; Carlos Eduardo Stoik of Venezuela; and Manuel Francisco Jimenez Ortiz of Costa Rica., The legal continuity of the two committees was stressed by the Chairman of the Juridical Committee at its opening session, and the customary formalities attending such opening sessions were deliberately avoided.
7 It was definitely understood that the members of the Neutrality Committee, although designated by the governments of which they were nationals, were not representatives or delegates of their several countries but of the inter-American community. But this technical position was difficult to maintain when the member happened to be as close to the Foreign Office as an ambassador or a counsellor of legation must of necessity be.
Three of the members of the Neutrality Committee, two of them being respectively the resident ambassadors of Argentina and Chile and the third being counsellor of the Mexican Embassy, were unable to continue as members of the Juridical Committee. The Mexican Government promptly appointed Pablo Campos Ortiz to succeed Fernando Lagarde, and the Chilean Government appointed Felix Nieto del Rio to succeed Ambassador Fontecilla. The Argentine member, Luis A. Podestà Costa, for whom Ambassador Labougle had been substituting, has not as yet taken part in the work of the Committee. The Costa Rican member, Sr. Jimenez, who had found it impossible to be in permanent residence at Rio de Janeiro, felt it proper under the circumstances to decline appointment to the Juridical Committee (See Ata da 12a Sessão). The post remains unfilled at present writing. Dr. Mello Franco, who had been Chairman of the Neutrality Committee, was elected Chairman of the Juridical Committee, while Dr. Chermont continued as its Executive Secretary. (The death of Dr. Mello Franco on Jan. 1 deprives the Committee of the leadership of one of America’s greatest jurists.)
8 It is possible that by means of this provision the Committee may be able to avail itself of the counsel of distinguished jurists who could not, even if designated members of the Committee, arrange to reside permanently outside their countries.
9 In the case of the technical experts employed by the Committee, provision is made that their salaries will be met by the American States through the intermediary of the Pan American Union. By a liberal interpretation of the resolution this provision might also be held to apply to the jurists invited to take part in the deliberations of the Committee.
10 The voluntary assumption by the Government of Brazil of the expenses of the Secretariat of the Neutrality Committee was influenced naturally by the fact that the Governing Board of the Pan American Union selected Rio de Janeiro as the seat of the Committee. It is a question whether, in view of the heavier expenses of the Juridical Committee, it would not be more equitable to distribute the burden among all of the American Republics. In the project (No. 25) on “The Inter-American Committee on Juridical and Post-War Problems” presented to the Rio meeting of Foreign Ministers by the United States delegation it was proposed that the members of the Committee should be paid by the governments of the countries whose nationals they were (as was the case with the members of the Neutrality Committee), and that the Committee should make to the Governing Board of the Pan American Union “a recommendation covering an annual budget of other expenses to be met by the Governments of the American Republics.” The Governing Board was then to pass upon the budget and submit to the American Republics a specific proposal for the financing of the Committee. Had this provision been adopted, the expenses of the Committee would have been borne by all of the American Republics in the usual quotas.
11 The Neutrality Committee had been in existence only six months when the Habana meeting assigned to it the task of preparing a preliminary draft of a convention for the more effective enforcement of the Security Zone. The meeting also requested the opinion of the Committee regarding the project presented by the delegation of Uruguay concerning the extension of territorial waters. See resolutions I and VIII of the meeting, this Journal, Supp., Vol. 35 (1941), pp. 5, 12.
12 For the text of the resolution, No. XXV of the Final Act, see Report, p. 52, and this Journal, Supp., Vol. 36 (1942), p. 85.
13 For the text of the resolution, No. XXVII of the Final Act, see Report, p. 54, and this Journal, Supp., ibid., p. 87.
14 As might be expected, most of the work of the Committee is done in subcommittees. As a general rule the Committee holds only one formal session a week. The minutes of this session are stenographically reported and later abridged somewhat and forwarded to the Pan American Union for distribution to the governments. See Minutes of the Inter-American Juridical Committee, March 20–July 3, 1942, Pan American Union, September 1942. Spanish and Portuguese are used alternatively in the discussions, but the minutes are drawn up in Portuguese only.
15 For the text of the resolution, see Report, p. 55, and this Journal, Supp., ibid., p. 88.
16 In spite of the intrinsic merit of many of the projects presented by the delegations to a consultative meeting of Foreign Ministers, they are not printed in the Diario of the meeting, due, possibly, to the large number of them presented. The Diario of the Rio meeting lists 81 projects in all. See “The Third Meeting of Ministers of Foreign Affairs at Rio de Janeiro,” this Journal, Vol. 36 (1942), p. 173.
16a The text is printed in full in Supplement to this Journal, p. 21.
17 The subcommittee which prepared the final draft of the Reaffirmation explained the sources from which the principles were drawn in the following terms:
“The principles set forth have already been incorporated into American conventional law or are the object of resolutions and declarations approved at inter-American conferences or consultative meetings. But at the same time the draft declaration includes certain principles which, if not the subject of provisions of the written law, are in fact part of the juridical inheritance (patrimonio) of America and have been implicitly accepted by all the States of this hemisphere.” (See Minutes of the Inter-American Juridical Committee, p. 31.)
18 The same position was taken in connection with the assertion of the priority of the moral law made in Article I of the “Conclusions” of the Preliminary Recommendation on Post-War Problems. See text, below, p. 20.
19 It would seem improbable that, in view of the extended use of written agreements in recent years, usage and custom will constitute in the future a source of international law. But assuming the contrary, it would nevertheless be necessary that all states should at least give implied consent to the validity of the rule introduced by custom.
20 The argument was based upon the Declaration of Principles of Inter-American Solidarity and Coöperation, adopted at Buenos Aires in 1936, in which it is laid down that “every act susceptible of disturbing the peace of America affects each and every one of them [the American States], and justifies the procedure of consultation…,” and in which the principle is accepted, among others, that “any difference or dispute between the American States, whatever its nature or origin, shall be settled by the methods of conciliation, or unrestricted arbitration, or through operation of international justice.”
21 The statement, released on July 16, 1937, refers to the revision of treaties in the following language:
“Upholding the principle of the sanctity of treaties, we believe in modification of provisions of treaties, when need therefor arises, by orderly processes carried out in a spirit of mutual helpfulness and accommodation.” (Department of State Press Releases, July 17, 1937, P. 41.)
22 Even this vague phrasing met with objection from one of the American Governments. See below, n. 26.
The paragraph proclaiming that “treaties must be in the nature of open covenants openly arrived at” was believed to be a rule of inter-American law in view of the acceptance of the Covenant of the League of Nations by most of the American States and the independent acceptance of the principle by the United States. One of the members of the Committee was of the opinion that the clause “there must be no secret agreements or understandings between States” should be modified by adding “in matters affecting their relations to third States.” But this was rejected by the Committee, partly on the ground that the only reason for secrecy would be the fact that the interests of third States were involved, and partly because, if it should become known that a secret treaty existed, third States would be suspicious of its terms however inoffensive these might be. See Minutes, p. 39.
23 See Argentine Anti-War Treaty, 1933; Montevideo Convention on the Rights and Duties of States, Art. 11; Buenos Aires Declaration of Principles of Inter-American Solidarity and Coöperation, 3(a); Lima Declaration on Non-Recognition of the Acquisition of Territory by Force; Rio Resolution on Condemnation of Japanese Aggression.
24 The further argument was made that international law has always recognized the subordination of agreements condemning the use of force to the primary right of self-defense against an aggressor. The covering letter of Secretary Kellogg specifically excepted wars of self-defense from the terms of the Treaty for the Renunciation of War. But even without that formal interpretation, the provisions of the treaty would not have been understood to apply to defensive action against aggression.
For other articles, in addition to those contained in the Reaffirmation, that were proposed by individual members but rejected by the Committee as a whole, see Minutes, pp. 23–24, 41–42.
25 See Minutes, pp. 42–43.
26 As it turned out, the decision of the Committee to recommend that the document should be signed in the form in which it was drafted, by duly appointed representatives of the American Governments, rather than be submitted to the Governments for their observations, proved to be inacceptable. A number of the Governments notified the Pan American Union of their intention to sign the document in the form submitted; others were prepared to sign it with understandings as to the meaning of particular paragraphs. The Government of Venezuela, however, taking exception to the paragraph relating to the revision of treaties (Art. IV), proposed an alternative text. Minor modifications, chiefly in respect to the Spanish text of the document, were also proposed. The Governing Board of the Pan American Union, acting upon the report of a subcommittee, thereupon postponed signature of the document and referred it to the American Governments for their approval in the modified form. Exception was taken by members of the Committee to this procedure, their position being that the modifications proposed by the Venezuelan Government should have been referred back to the Committee for further consideration. For the objection made to the procedure of the Governing Board, see Ata da 19a Sessão, pp. 1–6. For the text of the modifications proposed by the Government of Venezuela, see Appendix to Reports of Committee on Codification of International Law, Pan American Union, Oct. 19 and Dec. 30, 1942.
27 For the report of the subcommittee outlining the variety of functions entrusted to the Committee, see Minutes, pp. 73–77, 91–94.
28 See Minutes, pp. 78, 91–94.
29 An analytical table classifying the various problems raised by the war and the relation to them of the three groups into which the American States were divided may be found in the Minutes, pp. 95–99.
30 The Panama Resolution (No. VII of the Final Act) registered the opposition of the American Republics to the placing of foodstuffs and clothing intended for civilian populations on lists of contraband, and declared that it was not to be considered contrary to neutrality to grant credits to belligerents for the purchase of such merchandise. For the text, see International Conferences of American States, First Supplement, 1933–1940, p. 330 (Carnegie Endowment for International Peace, Washington).
Resolution XXVI of the Rio meeting instructs the Juridical Committee “to continue the studies on the subject of contraband of war and on the project of a code relative to the principle and rules of neutrality.” Under the circumstances, however, the Committee came readily to the conclusion that its studies in this field could be deferred until others of greater urgency had been completed.
31 The problem had already been studied in respect to the status of refugees in general, and the possibility of adopting for the American States provisions along the lines of the conventions adopted in Europe under the auspices of the League of Nations. See Holborn, L. W., “Legal Status of Refugees, 1920–1938,” this Journal, Vol. 32 (1938), p. 680 Google Scholar; Kempner, R. M. W., “Enemy Alien Problem,” ibid., Vol. 34 (1940), p. 443 Google Scholar; Sir Hope Simpson, John, The Refugee Problem, London, 1939 Google Scholar. The purpose of the Committee was directed toward the formulation of a uniform policy for the American States under the circumstances presented after three years of war.
32 See Ata da 22a Sessão, pp. 3–11 (text published by the Committee); Ata da 23a Sessão, pp. 2–8; Ata da 24a Sessão, pp. 3–14.
The term “refugee” as used by the reporter refers to “a person who, whether or not deprived of his nationality, in consequence of serious and notorious political conditions in the country from which he comes has left the territory of his own accord in order to preserve his liberty or has been constrained to leave it by the public authorities; and who, moreover, does not enjoy the diplomatic protection of another State.” The reference is to refugees of non-American origin, and does not include American political exiles or emigrants.
In the course of the discussions the Chairman of the Committee referred to the case of stateless refugees (apatridas) as being the problem of greatest importance, and he expressed the view that, inasmuch as nationality is exclusively a matter of domestic legislation, a refugee should not be considered by a third State as still being a national of the State which has expressly deprived him of his nationality. See Ata da 23a Sessão, p. 3.
33 For the text of the address, see Department of State Bulletin, Jan. 17, 1942, Vol. VI, p. 55.
34 For the text of the resolution, see Report, p. 52, and this Journal, Supp., Vol. 36 (1942), p. 85.
35 See Preliminary Recommendation on Post War Problems, Pan American Union, November 1942, Introduction. The document also appears in Ata da Reunião de 18 de setembro, 1942, Anexo 3.
36 See Minutes, p. 133.
37 For the report of the subcommittee, summarizing the views of the different members in respect to the procedure to be followed, see Minutes, p. 128.
38 See the introduction to the recommendation. The elaborate analysis made by the subcommittee of the basis upon which its draft was prepared may be found in Ata da 11a Sessão, Anexo 1.
39 It is obvious that the recommendation draws freely upon the literature of recent years bearing upon the causes of war in general and upon the failure of the League of Nations in particular. To attempt to make specific references to sources would be impossible. Phrases that called for quotation marks a decade or two ago have now become common property. But if one reference rather than another may be cited, the Committee discussed at length the views presented in the Preliminary Report of the Commission for the Study of the Organization of Peace (International Conciliation, April, 1941).
40 The inclusion in the recommendation of the “Social Factors” responsible for the breakdown of law and order carries us even further outside the field of traditional international law than the inclusion of “Economic Factors.” But the Committee was of the opinion that international law must henceforth include within its scope the same interests that are the concern of the individual State in the maintenance of domestic law and order.
41 The heading “Conclusions” was used partly to prevent any confusion with the Reaffirmation of Fundamental Principles of International Law already submitted to the American Governments and partly to avoid the suggestion that the Committee was competing with the Atlantic Charter or other formal pronouncements upon the fundamental conditions of a permanent peace. The discussion of the form and content of the fourteen articles of Part II took place chiefly in informal meetings of the Committee, the proceedings of which are not recorded in the Minutes. Drafts proposed as the basis of these discussions may be found in Ata da 14a Sessão, p. 4; Ata da 15a Sessão, Anexo; Ata da 16a Sessão, Anexo 5.
42 Inasmuch as the Recommendation on Post-War Problems did not call for any action by the American Governments, the Committee believed itself warranted in departing somewhat further from a literal translation than would have been permissible in the case of a conventional agreement. In justification of this practice it may be observed that a phrase originally drafted in English, then converted freely into Spanish and then retranslated back into English without reference to its original form will frequently take on a more abstract character in the process.
43 For the text of the protest, see Ata da 15a Sessão, p. 2.
44 It was proposed by one of the members of the Committee that the connection between the act of aggression and the terms of the Habana resolution be specifically pointed out; but the majority of the Committee preferred to let that conclusion be drawn from the protest itself.
45 See Report on the Status of the Work Provided for in the Resolutions on the Codification of International Law and the Improvement and Coördination of Inter-American Peace Treaties Approved by the Eighth International Conference of American States, Submitted to the Governments, Members of the Pan American Union, pursuant to Resolution XI of the Second Meeting of the Ministers of Foreign Affairs of the American Republics, held at Havana, July 21-30,1940. The report shows that while the preliminary task of organizing the different committees and compiling the projects has been largely completed, the actual work of codification has scarcely begun.
46 See International Conferences of American States, 1889–1928, p. 69.
47 Convention on International Law, ibid., p. 144.
48 Resolution on the Codification of American International Law, ibid., p. 245.
49 Resolution on the Future Codification of International Law, ibid., p. 439. At the Habana Conference provision was made that the draft-projects prepared by the Permanent Committees should be submitted to the Executive Council of the American Institute of International Law, which was to make a technical study of them and prepare a report upon them. In this way the American Institute, a private organization, became to the extent indicated an agency of the inter-American community.
50 Recommendation (LXX) on Methods of Codification of International Law, ibid., First Supplement, p. 84.
51 Resolution (VI) on Codification of International Law, ibid., p. 145.
52 Resolution (XVII) on Methods for the Codification of International Law, ibid., p. 246.
53 See Inter-American Agencies for the Codification, Unification and Uniformity of Law in the Americas, Fourth Edition, April, 1942, Pan American Union. There is also the Permanent Committee of Jurists on the Unification of the Civil and Commercial Laws of America, but its functions lie outside the field of international law.
54 The resolution of the Habana Conference (see above, n. 49) calls upon the Pan American Union to “coöperate in the preparatory work” to the extent that its statutes may permit. A resolution (XI) of the Habana meeting of Foreign Ministers (International Conferences, First Supplement, p. 358) called upon the Union to prepare a report on the “present status” of the work provided for in the resolutions of the Lima Conference. In fulfillment of that task the Union prepared the Report above cited (see n. 45). At the same time, acting in pursuance of Resolution XV of the Eighth International Conference of American States (International Conferences, First Supplement, p. 244), the Union has published (to date) four volumes under the title “The Perfection and Coordination of Inter-American Peace Instruments,” containing projects submitted to the American Governments for their criticisms and comments and the replies received in regard to the same. The series bears the subtitle, “Codification of International Law.”
55 Minutes, pp. 87–89. While the Juridical Committee is listed by the Pan American Union (Inter-American Agencies for the Codification of International Law, 4th ed., p. 13) as an agency of codification, this was not regarded by the Committee as determining its competence in respect to the actual work of codification.
56 Minutes, pp. 89, 131. This view was supported by the opinion of the Director General of the Pan American Union holding that the Committee “can take the initiative in the whole field of codification.” See Ata da 13a Sessão, p. 8.
57 For the divergent views of the members of the Committee on this question, see Minutes, pp. 87–89, 131; Ata da 18a Sessão, p. 14; Ata da 21a Sessão, p. 6. The discussion of this point led to a lengthy discussion of the difference, in point of contractual character, between a formal treaty and a mere resolution or declaration. What was the legal force of the Declaration of Lima, for example, or the Habana Resolution on Reciprocal Assistance? Both agreements entered into force without the necessity of ratification. Did this mean that they had only the value of moral·obligations? Or was the obligation “legal” in the usual sense of that term in international law, but of such a vague character as not to commit the signatory State to acts sufficiently specific to amount to an agreement in violation of the constitutional requirement of ratification in States whose constitutions required the ratification of treaties. See Ata da 85a Sessão.
58 In view of his experience with the work of codification as Chairman of the Committee of Experts, the Committee requested Dr. Mello Franco to undertake a study of this aspect of the problem.
59 For the text of the resolution, see Report, p. 54, and this Journal, Supp., Vol. 36 (1942), p. 87.
60 See Ata da 18a Sessão, Anexo A.
61 Ibid., p. 14.
62 Ata da 21a Sessão, pp. 3 ff.
63 For the report of the subcommittee, see Ata da 23a Sessão, p. 8. Analytical tables presenting alternative classifications of the consultative meetings at Panama, Habana and Rio de Janeiro, arranged according to subject-matter and according to the particular meeting, may be found as appendices to the Atas of the 20th and 21st sessions. An appendix to the Ata of the 24th session contains a suggested classification for future consultative meetings, and an appendix to the Ata of the 25th session reclassifies in accordance with this table the work of the three meetings already held. The complexity of the task of coördination is evident, and the need of it equally so.
64 The existing Committees on Coördination are no more than drafting committees, appointed to bring the four texts of the final act into harmony.
65 See, on this point, “The Third Meeting of Ministers of Foreign Affairs at Rio de Janeiro,” this Journal, Vol. 36 (1942), p. 198 ff.
66 Article XIII of the Preliminary Recommendation on Post-War Problems contemplates a program of reconstruction which would require elaborate administrative machinery.
67 Compare the provisions of Art. XIV, “Elimination of the Social Factors of War,” of Part II of the Preliminary Recommendation. Above, n. 40.
68 In the Joint Declaration of Continental Solidarity adopted at the meeting of Foreign Ministers at Panama, the Governments of the American Republics, after reaffirming the Declaration of Lima and their intention “to maintain and strengthen peace and harmony among the Republics of America,” declare:
“That these principles are free from any selfish purpose of isolation, but are rather inspired by a deep sense of universal coöperation, which impels these nations to express the most fervent wishes for the cessation of the deplorable state of war which today exists in some countries of Europe, to the grave danger of the most cherished spiritual, moral and economic interests of humanity, and for the reëstablishment of peace throughout the world—a peace not based on violence, but on justice and law.”