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Published online by Cambridge University Press: 12 April 2017
During the course of some thirteen years, from the Fifth International Conference of American States at Santiago in 1923 to the Conference for the Maintenance of Peace at Buenos Aires in 1936, the American Republics adopted a wide variety of treaties and conventions dealing with the pacific settlement of disputes arising between them. These agreements cover all of the generally accepted procedures, except that of judicial settlement in the sense of submission to a permanent court as distinct from an arbitral tribunal. Each of the separate procedures appears to have been adopted without any plan of coordinating it with other procedures, with the result that there is duplication and overlapping of provisions and occasionally open contradiction. There is no logical progression of obligations so that a dispute could, at the initiative of a plaintiff State, go forward from one procedure to another until final settlement.
1 The various inter-American procedures admit of practically interminable delays. The reason for this is due, perhaps, not so much to a deliberate drafting of the obligations so as to permit evasions as to the lack of progression from one procedure to another and the absence of time-limits in the application of the several procedures.
2 Treaties providing for peaceful procedures between the American States come into effect between the States ratifying them; but when a later treaty mpdifies an earlier one it is a complicated matter to determine the obligations of a particular State towards twenty other States, some of which have ratified one treaty, some another, some neither treaty. See on this point the observations of Dr. Luis Anderson in his report on the Mexican Peace Code, quoting the words of Dr. Parra Perez at the Buenos Aires Conference of 1936. Pan American Union, Improvement and Coordination of Inter-American Peace Instruments, Vol. II, p. 127.
3 For the text, see International Conferences of American States, Supp. 1933–1940, p. 51.
4 The resolution (XXXV) of the Conference was accompanied by a preamble referring to “the advantages which would be offered by the concentration and arrangement in a single instrument of all the provisions scattered throughout different treaties and other pertinent principles for the prevention and peaceful settlement of international conflicts”; ibid.
5 For the text, see Pan American Union, Improvement of Peace Instruments, Vol. II, p. 84.
6 Resolution (XXVIII), Code of Peace, International Conferences of American States, 1933–1940, p. 161.
7 Improvement of Peace Instruments, Vol. II, pp. 121, 124.
8 For the text of the project, see Report of the Delegation of the United States of America to the Eighth International Conference of American States, p. 193.
9 Resolution (XV), Perfection and Coordination of Inter-American Peace Instruments, International Conferences of American States, 1933–1940, p. 244.
10 Letter of May 7, 1943, enclosing a report of the Committee of the Governing Board on the Codification of International Law presented under date of March 19. The views expressed in the present article are no more than the personal observations of the writer, and they do not necessarily reflect the views of the other members of the Juridical Committee.
11 Both treaties clearly ban all wars except wars of self-defense. But in case reliance upon Secretary Kellogg’s note of June 23, 1928, should lead to too broad an interpretation of selfdefense, the terms of the Convention to Coordinate, Extend, and Assure the Fulfillment of Existing Treaties, adopted at Buenos Aires in 1936, appear to subject the decision of a particular State to the collective public opinion of the consultative meeting of Foreign Ministers. See below, note 43. The declaration (XXI) on Continental Solidarity in Observance of Treaties, adopted at the meeting of Foreign Ministers at Rio de Janeiro in 1942, reaffirms the applicability of the procedure of consultation in the event of the alleged violation of a treaty between American States resulting in a threat to the peace. Pan American Union, Report on the Third Meeting of the Ministers of Foreign Affairs of the American Republics, p. 50.
12 It is frequently said that if there is to be peace between nations a peaceful solution must be found for every controversy. If so, the maintenance of the status quo may be at times the necessary solution of a controversy between States, just as it frequently is between individuals pending remedial action by the legislative organ of the State. See below, n. 43.
13 The discussion of the Chilean project by the First Commission on the Organization of Peace may be found in the Diario of the Conference, December 18, 19, 1936. In answer to the reporter’s objections and those of others, reference was made by the Chilean delegate to the similar commissions established in commercial treaties between Chile and other States and to the Canadian-United States Joint High Commission. Adas of the Conference, p. 162.
While two-thirds of the American States have ratified the Treaty for the Prevention of Controversies, none of them, to the knowledge of the Pan American Union, have under-taken to designate the members of the bilateral mixed commissions called for by the treaty.
14 This resolution (XIV), entitled “The Peaceful Solution of Conflicts,” has also not yet been put into effect. It calls for a committee of five members to be organized by the Pan American Union. The following countries were selected to designate members to the committee: Argentina, Brazil, Cuba, Mexico and the United States. But because of the reservations made by a number of governments, it was not found advisable to proceed with the actual organization of the committee. For the steps taken to carry out the resolution, see Reports of the Special Committee of the Governing Board of the Pan American Union, approved October 2, December 4, 1940, January 8, 1941.
15 The term “mediation” appears as far back as the Treaty of Perpetual Union signed in 1826 at the close of the Congress of Panama. International Conferences, 1889–1928, p. XXIV. The traditional procedure of good offices and mediation formed part of the Treaty on Compulsory Arbitration signed at the Second International Conference of American States at Mexico City in 1902. Ibid., p. 100. A resolution (XXXVI) on Good Offices and Mediation, was adopted at Montevideo in 1933, to the effect that it should never be deemed an unfriendly act for any State or States to offer their good offices or mediation. The proviso is added that the method of settlement shall not be applicable when other methods of peaceful solution provided for by the treaty shall have begun to function. Ibid., 1933–1940, p. 65. Article 5 of the General Convention of Inter-American Conciliation gives indirect recognition to the procedure by a provision that nothing in the convention should preclude the tender of their good offices or their mediation by the contracting parties “on their own motion or at the request of one or more of the Parties to the controversy,” provided the procedure of conciliation is not in progress. Ibid., 1889–1928, p. 456. The United States draft Treaty of Consolidation of American Peace Instruments, changes the negative provision of the Conciliation Convention into a positive provision that the contracting States “have authority” to interpose by way of tendering their good offices and mediation.
16 For the text of the treaty, see International Conferences, 1933–1940, p. 199. Fifteen governments have ratified the treaty and nine of these have communicated to the Pan American Union their designations for the panel of mediators. Thus far there is no record of use being made of the panel in an actual case.
17 Diario of the Conference, December 18, 1936, pp. 147 ff. In the original Brazilian project the provisions for good offices and mediation were part of a larger scheme providing for consultation and cooperation in case of aggression, with condemnation of the aggressor. These latter were eliminated by the committee in charge on the ground that they were already taken care of by other conventions approved by the committee. While the treaty combines the two procedures of good offices and mediation, the reporter of the committee (Sr. Soto del Corral) emphasized the distinction between the two, “good offices” being the offer of friendly assistance in the settlement of a dispute and “mediation” being the act of giving such assistance. Ibid., p. 148. See also on this point, Hackworth, Digest of International Law, Vol. VI, 24 ff., where the recent practice of the United States is set forth.
18 See Habicht, Post-War Treaties for the Pacific Settlement of International Disputes, pp. 1001 ff.; Oppenheim (sixth ed., by Lauterpacht, ), Vol. II, pp. 12 Google Scholar ff.; Hyde, C. C., “The Place of Commissions of Inquiry and Conciliation Treaties in the Peaceful Settlement of International Disputes,” British Year Book of International Law, Vol. X (1929), p. 96 Google Scholar.
19 For the text of the treaty, see International Conferences 1889–1928, p. 285.
20 Ibid., p. 455.
21 Ibid., p. 458.
22 In addition to the exceptions formally set forth in the treaty reservations were entered by as many as thirteen States, most of which, however, deal with denial of justice in relation to pecuniary claims.
23 This recognition of conciliation as an alternative procedure is also present in the General Act for the Pacific Settlement of International Disputes, signed at Geneva in 1928, but in the General Act the procedure of conciliation is offered as an optional preliminary procedure, failing which resort to arbitration or to judicial settlement becomes obligatory.
24 The General Treaty of Inter-American Arbitration makes clear the necessity of exhausting diplomatic negotiations before an appeal to arbitration is permissible. For the controversy over this technical point in connection with the Statute of the Permanent Court of International Justice, see Hudson, Permanent Court of International Justice, 366.
25 The Covenant of the League of Nations, Article 13, did no more than obligate the members of the League to submit to arbitration (subsequently to judicial settlement as well) disputes which they might recognize to be “suitable for submission to arbitration.” The Statute of the Permanent Court solved the problem by providing for an optional acceptance of compulsory jurisdiction; but even then the signatories were allowed to enter reservations as to certain types of disputes. By the inter-American treaty of 1929 the parties “bind themselves” to submit to arbitration the specified kinds of controversies, but the exceptions and reservations accompanying the obligation reduce it in fact to a very limited scope.
26 The classical statement of the argument is to be found in Lauterpacht’s treatise on The Function of Law in the International Community. Antedating Lauterpacht’s challenging study were numerous discussions of more restricted aspects of the problem. See, in particular, Proceedings of the American Society of International Law, 1924, pp. 44, 57, 126. More recently, the problem is considered in a careful and provocative study by Hans, Kelsen, “Compulsory Adjudication of International Disputes,” this Journal , Vol. 37 (1943), p. 397 Google Scholar.
27 See, in particular, a careful analysis of the scope of arbitration under the Washington Treaty of 1929 by Whitton, J. B. and Brewer, J. W., “The Inter-American Treaty of Arbitration,” this Journal , Vol. 25 (1931), p. 447 Google Scholar. For a discussion of the problem in connection with the Permanent Court of International Justice, see Hudson, op. cit., § 428, “Scope of jurisdiction under Article 36.”
28 The subject is discussed exhaustively by Lauterpacht, op. cit., Part II, who arrives at the conclusion that in so far as the doctrine of the limitation of the international judicial function rests upon the supposed non-existence of legal rules applicable to disputes, it is “contrary to generally accepted principles of positive municipal law and of general jurisprudence.”
29 This is not to deny that governments have on occasion taken advantage of the distinction between juridical and non-juridical disputes to avoid submitting to arbitration disputes which were readily susceptible of decision ex aequo et bono, that is, by general principles of justice. But as a practical matter something must be left to the good faith of governments and to the influence of the public opinion of the community, without which no system of peaceful settlement could in any case be effective.
30 The sharpness of Lauterpacht’s attack upon the procedure of conciliation (op. cit., Chap. XII) is chiefly due to the assumption that because the parties are not bound to accept the recommendations of the commission of conciliation the procedure represents only an attemptat settlement rather than a final and binding settlement. The answer lies in the extent to which we can look forward to the development of new rules of international law to meet the needs of justice. A static international law would be equally inadequate to hold States to an all-inclusive obligation of judicial settlement.
31 The phrase “not controlled by international law” has also been interpreted to mean that a particular question was outside the scope of international law. Strictly speaking, if a question is actually “within the domestic jurisdiction of any of the parties,” international law recognizes it to be there. What is meant is that there are no general rules of international law upon the particular subject, so that each State is left to handle the matter as its own national interests dictate. See the article by Whitton and Brewer cited in note 27.
32 An inter-American code covering the responsibility of the state in cases of contract and tort is an outstanding example of the need of progress in the development of specific rules as a condition of extending the jurisdiction of arbitral tribunals. The Committee of Experts tried its hand at formulating such a code in the weeks preceding the Lima Conference of 1938, but without success. See Borchard, E., “The ‘Committee of Experts’ at the Lima Conference,” this Journal , Vol. 33 (1939), pp. 269, 272.Google Scholar
33 Article 62 of the Statute of the Permanent Court of International Justice provides that: “Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene as a third party.”
34 The interpretation of the reservation by Judge Hughes, bringing the Monroe Doctrine within the exception as relating to the action of a non-American state, seems somewhat strained. Pan American Peace Plans, p. 32. In any case there are more direct ways, if need be, of excluding a dispute involving the Monroe Doctrine.
35 In depositing its ratification of the treaty on April 16,1935, the United States entered an understanding, made a part of the ratification, “that the special agreement in each case shall be made only by the President, and then only by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur.” President Taft’s problem of 1911 was still unsolved.
On the subject of the special agreement called for by the treaty, see Wilson, R. R., “Clauses relating to reference of disputes in obligatory arbitration treaties,” this Journal , Vol. 25 (1931), p. 469 Google Scholar.
36 See Hudson, M. O., “The Permanent Court of Arbitration,” this Journal ,Vol. 27 (1933), p. 440 Google Scholar. The panel here proposed might also be made to serve for the establishment of commissions of investigation and conciliation. See below, note 40.
37 The two so-called “permanent” commissions established by the Gondra Treaty (Art. III) were merely diplomatic bodies whosè functions were limited to receiving from the parties in controversy the request for a convocation of the actual commission of inquiry.
38 For the text of the Protocol, see International Conferences, 1933–1940, p. 120. The Pan American Union is called upon to initiate measures to bring about the nomination of the fifth member of the commission in accordance with the provisions of the Gondra Treaty. The task has proved to be a singularly difficult and complicated one. Seven governments have appointed their respective members to the commissions, making twenty-one bilateral commissions, but only two of these (1943) have been constituted by the designation of fifth members. “If all countries were to ratify the Protocol and appoint their respective members and all commissions became established, the number of commissions would amount to 219” (data from the Juridical Division, Pan American Union).
39 In as much as the Protocol is in force between the states which have ratified it and the Anti-War Treaty is likewise in force between the same states and others, it would appear that in the event of a controversy between the United States, for example, and the Dominican Republic, the matter would be referred to the Permanent Commission of Investigation and Conciliation existing between them, whereas in the case of a controversy with Panama, a special commission would be created under the Gondra Treaty.
40 There would seem to be no substantial difference between the qualifications appropriate to members of a panel of possible arbitrators and to members of a panel of conciliators. Nor does there appear to be any reason why the panel of mediators, established by the Treaty on Good Offices and Mediation, should not be the same as the panel of arbitrators and of conciliators.
41 The reservations contained in Article V appear to be a step backward. The reservations under (a) and (b) relate to controversies provided for in other treaties and those which the parties prefer to settle by other procedures. These might better have been stated not as limitations but as general provisions. The limitations under (c) and (d) relate to questions within the exclusive competence of each State and to matters which affect the constitutional precepts of the parties. The Gondra Treaty, following in the tradition of the Treaties for the Advancement of Peace, made no exceptions to the obligation to submit controversies to a commission of inquiry. Nor did the Conciliation Convention of 1929 make any exceptions when the functions of the commissions of inquiry were extended to include conciliation.
42 Perhaps it has been the prospect of having things continue indefinitely in statu quo which has limited the effectiveness of the procedure of conciliation and made resort to it so infrequent. What is really desired by the complainant state is, as has often been pointed out, not so much the enforcement of actual rights as a change in the law, under which new rights might arise.
43 For the text of the Convention, see International Conferences, 1933–1940, p. 192.
44 Ibid., p. 160.
45 Report on the Third Meeting of the Ministers of Foreign Affairs, Pan American Union, 1942, p. 50.
46 The Delegation of Colombia, in signing the convention, went so far as to say that the phrase “in their character as neutrals” implied “a new concept of international law which allows a distinction to be drawn between the aggressor and the attacked, and to treat them differently.” Progressive and commendable as this declaration was, it can with difficulty be reconciled with the terms of the convention or with the ideas of the other delegations at the conference.
47 See, in particular, the Declaration of American Principles, adopted at Lima in 1938, International Conferences, p. 309, the declaration on Maintenance of International Activities in accordance with Christian Morality, adopted at Panama in 1939, ibid., p. 332, and the declaration on Continental Solidarity in the Observance of Treaties, adopted at Rio de Janeiro, 1942, Report, p. 50.