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Carnegie Endowment for International Peace 

DIVISION OF INTERNATIONAL LAW 



RECOMMENDATIONS ON INTERNATIONAL LAW 

AND 

OFFICIAL COMMENTARY THEREON 

OF THE 

SECOND PAN AMERICAN SCIENTIFIC CONGRESS 

HELD IN WASHINGTON 
DECEMBER 27, 1915 -JANUARY 8, 1916 



EDITED, WITH INTRODUCTORY MATTER 
BY 

JAMES BROWN SCOTT 

DIRECTOR 



NEW YORK 

OXFORD UNIVERSITY PRESS 

AMERICAN BRANCH: 35 WEST 32ND STREET 

London, Toronto, Melbourne and Bombay 

HUMPHREY MILFORD 

1916 



COPYRIGHT 1916 

BY THE 

CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE 
WASHINGTON, D. C. 



BYRON 8. ADAM*. PRINTER 
WASHINGTON. D. C. 



UNIVERSITY OF CALIFORNIA 
SANTA BARBARA COLLEGE LIBRARY 



PREFATORY NOTE 

The present little volume contains recommendations of the Second 
Pan American Scientific Congress relating to international law, as they 
appear in the Final Act of the Congress, and they are accompanied by 
that part of the official report, prepared by the undersigned, explain- 
ing, interpreting, and justifying them, if perchance they need justifica- 
tion. The last three resolutions can not in strictness be said to relate 
to international law, and yet, as they are law and deal with legal mat- 
ters, they have been retained. 

The introduction to this portion of the official report states that the 
articles are based upon the resolutions adopted by the Conference of 
American Teachers of International Law, held at Washington, April 
23-25, 1914, upon the invitation of the American Society of Interna- 
tional Law, and it has been thought well to include these resolutions 
in the little volume in order that the relation between them may be 
noted. The Conference of Teachers directed that Mr. Root's article 
on the need of popular understanding of international law, contributed 
to the first number of the American Journal of International Law, 
which appeared in 1907, and his address on opening the Conference as 
its president, should be published with the resolutions. They are there- 
fore prefixed to them and, together with the resolutions of the Con- 
ference, form the introduction to the recommendations of the Pan 
American Scientific Congress. 

The preface to the proceedings of the Conference of American 
Teachers of International Law states the aims and purposes of its 
promoters to be 

To consider what measures, if any, could properly be taken 
to arouse a greater interest in international law where taught in 
American institutions of learning; to secure its introduction in 
American institutions of learning where it is not taught; to call 
attention to its importance to lawyers in the practice of their pro- 
fession ; and to suggest the advisability of a knowledge of its prin- 
ciples for admission to the bar; and to show, finally, the necessity 
of an understanding of the subject by the public at large, which 
in a democracy such as ours determines in the ultimate resort the 
foreign policy of the United States. 

It was felt that none were more competent than the teachers of 
international law to consider these various questions and to reach 
wise conclusions upon them, and that any suggestions concerning 



11 PREFATORY NOTE 

the teaching of international law in American institutions of learn- 
ing should properly come from the teachers themselves rather than 
from those not engaged in the teaching of international law. It 
was believed and the proceedings of the conference show that 
the belief was justified that a conference of teachers of our lead- 
ing colleges and universities, in which these subjects could be 
carefully discussed and considered, would result in fruitful recom- 
mendations, and that the teaching profession generally would be 
able in conference to agree upon recommendations acceptable to 
the teachers, because the recommendations in question were for- 
mulated by the teachers themselves, and acceptable to the public, 
because of the confidence which the public must necessarily have 
in the results reached by experts. 

The statements contained in the above extracts are believed to apply 
to the American republics generally as well as to the particular one 
of them in which the conference was held, and it was thought advis- 
able to include in Section VI of the program of the Pan American 
Scientific Congress, devoted to international law, public law, and juris- 
prudence, topics which necessarily involve a consideration of increased 
efficiency in the teaching of international law and the means whereby 
its principles could be popularized in each of the American countries. 
The following are the most important of these topics : 

The study of international law in American countries and the 
means by which it may be made more effective. 

How can the people of the American countries best be impressed 
with the duties and responsibilities of the state in international 
law? 

Are there specific American problems of international law? 

The proceedings of the Conference of American Teachers of Inter- 
national Law were translated into Spanish and laid before the members 
of the section, with the result that these resolutions, of a general nature 
and applicable to the American republics as a whole, were adopted by 
the Congress with the recommendation that they be carried into effect. 
These recommendations will not, it is believed, fall upon deaf ears, be- 
cause the American Society of International Law approved in their 
entirety the resolutions of the Conference of Teachers, agreed to comply 
with some of them, and recommended others to the Division of Inter- 
national Law of the Carnegie Endowment, in the hope that means 



PREFATORY NOTE 111 

would be found to render the resolutions effective. The action taken 
by the American Society of International Law and by the Executive 
Committee of the Carnegie Endowment to give effect to the resolutions 
are thus stated by the Director of the Division of International Law in 
the report of his Division for 1915: 

The Society called a special meeting of its Executive Committee 
to consider and take action upon the recommendations, and the 
Committee met on November 7, 1914. The recommendations 
were divided by the Executive Committee of the Society into four 
classes: First, those which the Society was able and willing to 
carry out upon its own account. This class included Resolutions 
Nos. 2-c, 8, 9 and 11. Secondly, those which required detailed 
consideration before action could be taken upon them. They in- 
cluded Resolutions Nos. 3, 4, 6, 7, 10, 12, 13, 14 and 15. Thirdly, 
those which the Executive Committee of the Society did not regard 
as coming within its sphere as a purely scientific and professional 
organization. This referred especially to Resolution No. 2-d. 
Lastly, those which the Society approved, but which it was not able, 
on account of the expense and labor involved, to undertake with 
the limited means at its disposal. These included Resolutions Nos. 
2-a, 2-b, 2-e and 5. 

In compliance with the suggestion contained in Resolution No. 
1 of the Conference, the Executive Committee of the Society ap- 
pointed the following members as a Standing Committee on the 
Study and Teaching of International Law and Related Subjects: 

Chairman, Professor George G. Wilson of Harvard University 
Professor Philip Brown of Princeton University 
Professor Amos S. Hershey of Indiana University 
Professor Charles Cheney Hyde of Northwestern University 
Professor Harry Pratt Judson of the University of Chicago 
Honorable Robert Lansing, Counselor for the Department of 

State 

Professor Jesse S. Reeves of the University of Michigan 
Mr. Alpheus H. Snow of Washington, D. C. 
Secretary ex officio, Mr. James Brown Scott, recording secretary 

of the Society 

To this Committee were referred for detailed consideration the 
resolutions and recommendations mentioned in the second class 
above referred to. As to the recommendations contained in the 
first class, which the Society was able and willing to carry out 
on its own account, the following action was taken: Resolution 
No. 2-c to be carried out by printing the documents referred to 
as far as possible in the Supplement to the American Journal of 
International Law. Resolution No. 8 was directed to be carried 



IT PREFATORY NOTE 

out by the recording secretary of the Society, and he has since 
carried out the direction by transmitting the opinion of the Con- 
ference expressed in the resolution referred to every teacher of 
political science, law, history, political economy and sociology in 
the United States, accompanied by the remarks of the Honorable 
Elihu Root on opening the Conference and a reprint of his article 
entitled, "The need of popular understanding of international 
law," which appeared in volume 1 of the American Journal of In- 
ternational Law. As to Resolution No. 9, the recording secre- 
tary of the Society was further directed to transmit a copy of the 
said resolution to all law schools of the United States, and he has 
since carried out the direction. The recording secretary was 
further directed to transmit to the American Bar Association the 
request of the Conference that that Association take appropriate 
action toward including international law among the subjects 
taught in law schools and required for admission to the bar. This 
direction has also been complied with. 

The foregoing action of the executive committee of the Society 
was reported by the Director to the Executive Committee of 
the Endowment at its meeting on January 9, 1915, and the Com- 
mittee, after carefully considering the resolutions of the Confer- 
ence and the recommendations of the Society thereon, took the 
following action: 

As to the recommendations which the Society approved, but 
which it did not feel able, on account of the expense and labor in- 
volved, to undertake itself, the Committee directed that these 
projects be included in the work of the Division of International 
Law of the Endowment and authorized the Director to report to 
the Committee from time to time any sums which might be neces- 
sary to carry out the said projects, which include the publication 
of a bibliography of international law, an index-digest of inter- 
national law, and a law reporter of international cases, referred 
to in Resolution 2, sections a, b, and e. The time which has 
elapsed since this action of the Executive Committee has been 
so limited that it has not been practicable to work out the details 
of these projects, and it is therefore impracticable to submit esti- 
mates for carrying them out. If the sums included in the esti- 
mates are appropriated by the Board, however, the Division will 
have sufficient funds at its disposal at least to start these projects 
during the next fiscal year should such action meet with the ap- 
proval of the Executive Committee. The Director's report for 
last year (Year Book, 1913-14, p. 167) contained a paragraph de- 
voted to the proposition of the publication of a bibliography of 
international law, showing its great usefulness and the care with 
which it must be prepared. The proposition of establishing an in- 
ternational reporter containing decisions of national courts in- 
volving principles of international law was also dealt with in the 



PREFATORY NOTE V 

same report (Year Book, 1913-14, pp. 136-138) and the necessity 
pointed out of devoting very great consideration to the details of 
the project. The action of the Conference of Teachers in making 
an independent recommendation on these two subjects is very 
gratifying, as confirming the Director's previous recommenda- 
tions, and it is hoped that it will be possible in the next report to 
show considerable progress in the realization of the projects. 

As to Resolution No. 5, which the Society also approved, but 
which it was unable to carry out, namely, the recommenda- 
tion for the establishment of fellowships at the Academy of In- 
ternational Law at The Hague, the Committee requested the 
Director of the Division of International Law to present at an 
opportune time a practicable plan for the realization of the project, 
and this will be done when conditions in Europe permit the open- 
ing and operation of the Academy. 

The recommendation of the Conference included in paragraph 
d of Resolution No. 2, for the publication from time to time of 
reliable information upon international questions, which the So- 
ciety thought did not properly come within its sphere as a purely 
scientific and professional organization, the Committee directed 
be referred to the American Association for International Concilia- 
tion, which is more immediately engaged in the work of propa- 
ganda, to be carried out by that Association so far as may be 
practicable. 

The Committee further approved the recommendations con- 
tained in Resolutions Nos. 3, 4, 6, 7, 10, 12, 13, 14 and 15, which 
have been referred to the Standing Committee of the Society on 
the Study and Teaching of International Law and Related Sub- 
jects for detailed consideration, and expressed its willingness 
to cooperate in carrying them into effect. 

The Executive Committee at the same time expressed on behalf 
of the Trustees, its cordial appreciation of and sincere thanks for 
the cooperation of the Society in this matter, and, further, approved 
as a whole the work of the Conference of Teachers and the full 
set of resolutions and recommendations adopted by it. 

The Standing Committee on the Study and Teaching of Interna- 
tional Law and Related Subjects, of which Dr. George G. Wilson, 
professor of international law at Harvard University, is chairman, has 
during the past year carefully considered the steps to be taken to carry 
into effect the resolutions of the Conference of Teachers and will re- 
port its recommendations to the tenth annual meeting of the Ameri- 
can Society of International Law, to be held in Washington in April, 
1916; and it is both hoped and expected that a serious beginning 
will be made during the course of the present year to carry into effect 



VI PREFATORY NOTE 

the resolutions of the Teachers' Conference. It is also believed that 
the recommendations of the Standing Committee will be of value to 
American countries other than the United States, inasmuch as the 
recommendations of the Congress are for the most part identical in 
substance, if slightly differing in form, with the resolutions of the 
Conference of Teachers; and, just as the American Society of Inter- 
national Law, under whose auspices the Conference of Teachers of 
International Law was held, stands ready to cooperate with the Car- 
negie Endowment in such measures as may seem calculated to render 
these resolutions effective, so the American Institute of International 
Law, composed of five publicists of each of the twenty-one American 
republics and the national societies of international law founded and 
already existing in the twenty republics to the south of us, stands 
ready to cooperate and to carry into effect the resolutions of the Con- 
ference of Teachers and the recommendations of the Congress as far 
as it may be possible in their respective countries. 

The need of a knowledge of international law and its application in 
the affairs of nations was never greater than now, and the language 
of a recent report presented to the American Institute of Interna- 
tional Law, although addressed by the new to the old Institute, appeals 
with even greater force, to the Old World. Thus it is said: 

When, at a tragic moment in the history of the world, the 
Institut de Droit International, largely composed of those who are 
at present belligerents, is silent, it is for our Institute, composed of 
neutrals, in the name of neutrals, to make the voice of the Law 
heard, not with that prestige perhaps which will come to it later 
with age and experience, but with all the authority that springs 
from the impartial inspiration of science and of the universal 
juridical conscience. 

The present volume will be issued in Spanish, Portuguese, and 
French, as well as English, and will be widely circulated in the Ameri- 
can republics where these different languages are spoken, so that the rec- 
ommendations relating to international law contained in the Final Act 
of the Second Pan American Scientific Congress will be brought within 
the reach of all who may care to read them and who, having read, 
may, in the interest of our common humanity, be minded to put them 
into effect 

JAMES BROWN SCOTT, 

Director of the Division of International Law. 
WASHINGTON, D. C, 
February 28, 1916. 



CONTENTS 

Page 

Prefatory Note i 

The Need of Popular Understanding of International Law, by 

Elihu Root 1 

Opening Address of the Honorable Elihu Root at the Conference 

of Teachers of International Law and Related Subjects. ... 4 
Resolutions and Recommendations of the Conference of Teachers 

of International Law and Related Subjects 7 

Recommendations on International Law adopted by the Second 

Pan American Scientific Congress 17 

Official Commentary on the Recommendations on International 

Law of the Second Pan American Scientific Congress 22 



THE NEED OF POPULAR UNDERSTANDING OF 
INTERNATIONAL LAW 1 

BY 

ELIHU ROOT 

The increase of popular control over national conduct, which marks 
the political development of our time, makes it constantly more im- 
portant that the great body of the people in each country should have 
a just conception of their international rights and duties. 

Governments do not make war nowadays unless assured of general 
and hearty support among their people; and it sometimes happens 
that governments are driven into war against their will by the pressure 
of strong popular feeling. It is not uncommon to see two governments 
striving in the most conciliatory and patient way to settle some matter 
of difference peaceably, while a large part of the people in both coun- 
tries maintain an uncompromising and belligerent attitude, insisting 
upon the extreme and uttermost view of their own rights in a way 
which, if it were to control national action, would render peaceable 
settlement impossible. 

One of the chief obstacles to the peaceable adjustment of inter- 
national controversies is the fact that the negotiator or arbitrator who 
yields any part of the extreme claims of his own country and concedes 
the reasonableness of any argument of the other side is quite likely 
to be violently condemned by great numbers of his own countrymen 
who have never taken the pains to make themselves familiar with the 
merits of the controversy or have considered only the arguments on 
their own side. Sixty-four years have passed since the northeastern 
boundary between the United States and Canada was settled by the 
Webster-Ashburton treaty of 1842; yet to this day there are many 
people on our side of the line who condemn Mr. Webster for sacrificing 
'Our rights, and many people on the Canadian side of the line who 
blame Lord Ashburton for sacrificing their rights, in that treaty. Both 
sets of objectors can not be right ; it seems a fair inference that neither 
of them is right; yet both Mr. Webster and Lord Ashburton had to 
endure reproach and obloquy as the price of agreeing upon a settle- 
Reprinted from the American Journal of International Law, vol. 1, 1907, 



2 RECOMMENDATIONS ON INTERNATIONAL LAW 

ment which has been worth to the peace and prosperity of each country 
a thousand times as much as the value of all the territory that was 
in dispute. 

In the great business of settling international controversies without 
war, whether it be by negotiation or arbitration, essential conditions 
are reasonableness and good temper, a willingness to recognize facts 
and to weigh arguments which make against one's own country as 
well as those which make for one's own country; and it is very im- 
portant that in every country the people whom negotiators represent 
and to whom arbitrators must return, shall be able to consider the 
controversy and judge the action of their representatives in this in- 
structed and reasonable way. 

One means to bring about this desirable condition is to increase the 
general public knowledge of international rights and duties and to pro- 
mote a popular habit of reading and thinking about international 
affairs. The more clearly the people of a country understand their 
own international rights the less likely they are to take extreme and 
extravagant views of their rights and the less likely they are to be 
ready to fight for something to which they are not really entitled. The 
more clearly and universally the people of a country realize the inter- 
national obligations and duties of their country, the less likely they will 
be to resent the just demands of other countries that those obligations 
and duties be observed. The more familiar the people of a country are 
with the rules and customs of self-restraint and courtesy between 
nations which long experience has shown to be indispensable for pre- 
serving the peace of the world, the greater will be the tendency to re- 
frain from publicly discussing controversies with other countries in 
such a way as to hinder peaceful settlement by wounding sensibilities 
or arousing anger and prejudice on the other side. 

In every civil community it is necessary to have courts to determine 
rights and officers to compel observance of the law ; yet the true basis 
of the peace and order in which we live is not fear of the policeman ; 
it is the self-restraint of the thousands of people who make up the 
community and their willingness to obey the law and regard the rights 
of others. The true basis of business is not the sheriff with a writ of 
execution; it is the voluntary observance of the rules and obligations 
of business life which are universally recognized as essential to business 
success. Just so while it is highly important to have controversies 
between nations settled by arbitration rather than by war, and the 



RECOMMENDATIONS ON INTERNATIONAL LAW 3 

growth of sentiment in favor of that peaceable method of settlement 
is one of the great advances in civilization to the credit of this genera- 
tion ; yet the true basis of peace among men is to be found in a just 
and considerate spirit among the people who rule our modern democra- 
cies, in their regard for the rights of other countries, and in their 
desire to be fair and kindly in the treatment of the subjects which give 
rise to international controversies. 

Of course it can not be expected that the whole body of any people 
will study international law ; but a sufficient number can readily become 
sufficiently familiar with it to lead and form public opinion in every 
community in our country upon all important international questions 
as they arise. 



OPENING ADDRESS OF THE HONORABLE ELIHU ROOT 

AT THE 

CONFERENCE OF TEACHERS OF INTERNATIONAL LAW 
AND RELATED SUBJECTS 1 

Gentlemen : It gives me very great pleasure to welcome you to par- 
ticipation in this, the Conference of Teachers of International Law 
and Related Subjects, held in connection with the Eighth Annual 
Meeting of the American Society of International Law, and to express 
the grateful appreciation of the officers and members of the Society 
to the instructors in international law who have left their customary 
duties, to come here for the purpose of taking part in this conference. 

The invitation which led to this meeting had its origin in a resolu- 
tion which was offered by that honored and admired leader in Ameri- 
can education, Mr. Andrew D. White, at a meeting of the Trustees of 
the Carnegie Endowment for International Peace. One of the divi- 
sions of work established under that trust is the Division of Inter- 
national Law, of which Dr. James Brown Scott is the head; and 
Mr. White, responding to the double impulse of his old enthusiasm 
as a teacher and organizer of education and as a diplomatist, as the 
representative of his country at the court of Germany, and as the 
first delegate of his country to the First Hague Conference, offered 
this resolution: 

Resolved, That the Executive Committee be directed to propose 
and carry out, subject to the approval of this Board, a plan for 
the propagation, development, maintenance and increase of sound, 
progressive and fruitful ideas on the subject of arbitration and in- 
ternational law and history as connected with arbitration, es- 
pecially through addresses or courses of lectures delivered before 
the leading universities, colleges and law schools of the United 
States, and to report on the same at the next regular meeting of 
the Board, or, should the Committee think best, at a special meet- 
ing to be called for that purpose. 

In taking the first steps in compliance with this resolution, the Ex- 
ecutive Committee found it desirable to ascertain, as a basis of action, 



1 The Conference of Teachers was held under the auspices of the American 
Society of International Law, and the above address is reprinted from the 
Proceedings of the Society for 1914, p. 250. 



RECOMMENDATIONS ON INTERNATIONAL LAW 5 

what was already being done in the United States along the lines indi- 
cated by the resolution; and, accordingly, an inquiry was set on foot 
and prosecuted, in which was developed the state of education upon 
this subject in all the leading colleges and universities and law schools 
of the country, and a very full report was made upon that subject. 

The consideration of the facts developed by that report led to the 
conclusion that the program, the method of procedure, the scope of 
enterprise and activity in the spirit of Mr. White's resolution, were 
something that no individual and no committee organized for any other 
purpose, as was the Executive Committee of the Peace Endowment, 
could properly handle, could adequately deal with; and, accordingly, 
the suggestion was made that the American Society of International 
Law, which deals specifically with the subject-matter of the resolution, 
should take it up, and that the men who know best what is needed and 
how that shall be done and can be done, should come together and 
confer upon the subject. So you see that the initial impulse which 
brings you here is a source which must be respected by every Ameri- 
can educator, and has a purpose which is certified to by the highest 
ability and the broadest experience. 

I will detain you from the practical work which lies before you in 
organizing the conference, by only a single suggestion. The putting of 
instruction in international law in American educational institutions on 
a broader basis, giving it a wider scope and greater efficiency, is not a 
mere matter of book learning. It is not a mere matter of science. It 
is a matter of patriotic duty. 

More and more, as the years follow one another with the swiftness 
of our modern life, democracy is coming to its own. More and more 
the people, the men on the farms and in the shops, the men with the 
pick and shovel in their hands, are assuming the direction of the oper- 
ations of government, both internal and external. More and more 
they are directly responsible for the operations of government. Presi- 
dents and Congresses more and more look for immediate response 
from constituencies upon the most difficult and intricate questions in 
the foreign relations of the country, questions the right solution of 
which requires broad knowledge, which can not be solved by the im- 
pressions of the moment, which can not be solved by emotional re- 
sponse to oratory. 

I think no one can study the movement of the times without real- 
izing that the democracy of the world for it is not alone in this 
country is realizing its rights in advance of its realization of its 
duties. And that way lies disaster. That way lies hideous wrong. 



6 RECOMMENDATIONS ON INTERNATIONAL LAW 

That way lies the exercise of the mighty powers of modern democracies 
to destroy themselves, to destroy the vitality of the principles upon 
which they depend. And there is no duty more incumbent to-day upon 
the men whose good fortune has made it possible for them to acquire 
a broader knowledge upon the subjects with which democracy deals, 
than to become themselves leaders of opinion and teachers of their 
people. Unless the popular will responds to the instructed and com- 
petent leadership of opinion upon the vital questions of our foreign 
relations, the worst impulses of democracy will control. At the bottom 
of wise and just action lies an understanding of national rights and 
national duties. Half the wars of history have come because of mis- 
taken opinions as to national rights and national obligations, have come 
from the unthinking assumption that all the right is on the side of one's 
own country, all the duty on the side of some other country. Now I 
say the thing most necessary for the good of our country in the foreign 
relations which are growing every year more and more intricate and 
critical, is that there shall be intelligent leadership of opinion as to 
national rights and national obligations; and nobody can bring that 
about as the educators of America can bring it about. It is in the hope 
that you will be able to organize, to give direction and wise guidance 
to a systematic movement to accomplish this good service for our 
country, that I take the deepest interest in this conference, and bid you 
God-speed in your labors. 



RESOLUTIONS AND RECOMMENDATIONS 

OF THE 

CONFERENCE OF TEACHERS OF INTERNATIONAL LAW 
AND RELATED SUBJECTS 1 

WHEREAS, The American Society of International Law, founded 
for the purpose of fostering the study of international law and of 
promoting the establishment of international relations upon the basis 
of law and justice, desiring the more effectually to further these 
objects, decided to call a Conference of Teachers of International 
Law and Related Subjects, to consider the present position and steps 
for the future development of that study, and, to that end, invited 
leading educational institutions of the United States to send dele- 
gates to take part in such conference; and 

WHEREAS, Forty-one colleges and universities accepted the afore- 
said invitation and sent representatives to take part in the conference 
as follows: 



Boston University: 
Brown University: 
University of California: 
University of Chicago: 
Clark University: 
Cornell University: 

Dartmouth College : 

Dickinson College: 

George Washington University: 

University of Georgia: 
Hamilton College: 

Harvard University: 

University of Illinois: 
John Hopkins University: 
University of Kansas : 
Lafayette College: 
Lehigh University : 



JAMES F. COLBY 

JAMES C. DUNNING 

ORRIN K. MCMURRAY 

ERNST FREUND 

GEORGE H. BLAKESLEE 

SAMUEL P. ORTH 
f JAMES F. COLBY 
1 FRANK A. UPDYKE 

EUGENE A. NOBLE 
J CHARLES NOBLE GREGORY 
(.C. H. STOCKTON 

H. A. Nix 

FRANK H. WOOD 
( EUGENE WAMBAUGH 
j GEORGE G. WILSON 

JAMES W. GARNER 

JAMES BROWN SCOTT 

F. H. HODDER 

E. D. WARFIELD 

JOHN L. STEWART 



1 Reprinted from the Proceedings of the American Society of International 
Law, 1914, pp. 315 et seq. 



8 



RECOMMENDATIONS ON INTERNATIONAL LAW 



Louisiana State University : 
University of Michigan: 
University of Minnesota : 
University of Missouri: 
University of Nebraska: 
College of the City of New York : 
New York University: 
Northwestern University: 
University of Notre Dame: 
Oberlin College: 
University of Pennsylvania: 
University of Pittsburgh: 
Princeton University: 
Swarthmore College: 
Syracuse University : 
University of Texas: 
Tufts College: 
Union College: 
University of Virginia : 
Washington University: 
Western Reserve University : 
University of West Virginia : 
University of Wisconsin: 
Yale Universitv: 



ARTHUR T. PRESCOTT 
JESSE S. REEVES 
WILLIAM A. SCHAPER 
JOHN D. LAWSON 
EDWIN MAXEY 
WALTER E. CLARK 
F. W. AYMAR 
CHARLES CHENEY HYDE 
WILLIAM HOYNES 
KARL F. GEISER 
LEO S. ROWE 
FRANCIS N. THORPE 
PHILIP BROWN 
WILLIAM I. HULL 
EARL E. SPERRY 
WILLIAM R. MANNING 
ARTHUR I. ANDREWS 
CHARLES J. HERRICK 
RALEIGH C. MINOR 
EDWARD C. ELIOT 
FRANCIS W. DICKEY 
JAMES M. CALLAHAN 
STANLEY K. HORNBECK 
GORDON E. SHERMAN ; 



and 



WHEREAS, The said representatives, duly accredited, convened in 
the city of Washington, District of Columbia, and at a series of 
meetings held on Thursday, April 23, 1914, Friday, April 24, 1914, 
and Saturday, April 25, 1914, considered the following questions: 

1. Plans for increasing the facilities for the study of inter- 
national law ; for placing the instruction on a more uniform 
and scientific basis ; and for drawing the line between under- 
graduate and graduate instruction. 

2. The question of requiring a knowledge of the elements of 
international law for candidates for advanced degrees. 

3. The advisability of urging all institutions with graduate 
courses in law to add a course in international law where 
not already given. 

4. The advisability of calling the attention of the State bar 
examiners to the importance of requiring some knowledge 
of the elements of international law in examinations for 
admission to the bar. 

5. The advisability of requesting the American Bar Associ- 
ation, through its appropriate committee, to consider the 



RECOMMENDATIONS ON INTERNATIONAL LAW 9 

question of including the study of international law in its 
recommendations for a deeper and wider training for ad- 
mission to the bar. 

6. The desirability and feasibility of plans for securing the 
services of professors or of lecturers on international law to 
whom can be assigned definite lecture periods in institutions 
where international law is not now taught or is inadequately 
taught the services to rotate between institutions where 
they will be acceptable. 

7. The advisability of requesting universities which now have 
summer schools to include among the subjects offered 
courses on the elements of international law, and, if there 
be occasion for it, to offer advanced courses of interest and 
profit for advanced students and instructors. 

Now THEREFORE, The Conference of Teachers of International 
Law and Related Subjects, after careful consideration and detailed 
examination in committee and thorough discussion in the full sessions 
of the Conference, unanimously adopts the following resolutions, in 
the belief that the recommendations contained therein, if carried into 
effect, will maintain, develop, and increase sound, progressive and 
fruitful ideas on international law and related subjects: 

RESOLUTION No. 1 

Resolved, That the Conference of Teachers of International Law 
and Related Subjects hereby recommends to the American Society 
of International Law the appointment of a Standing Committee of 
the Society on the Study and Teaching of International Law and 
Related Subjects, upon lines suggested by the recommendations of 
the Conference. 

RESOLUTION No. 2 [ARTICLE 23 1 ] 

Resolved, That, in order to increase the facilities for the study of 
international law, the Conference hereby recommends that the follow- 
ing steps be taken to improve and enlarge library and reference 
facilities : 

(a) That a carefully prepared bibliography of international law 
and related subjects be published, with the names of publishers and 
prices so far as these may be obtainable, with especial reference to 
the needs of poorly endowed libraries. 



1 Articles on the same subject adopted by the Second Pan American Scientific 
Congress are indicated in brackets. 



10 RECOMMENDATIONS ON INTERNATIONAL LAW 

(b) That there be published likewise a carefully prepared index 
or digest of the various heads and sub-heads in international law, 
with references to all standard sources of authority upon each head. 

(c) That there be published in a cheap and convenient form all 
documents of state, both foreign and domestic, especially Latin 
American, bearing upon international law, including treaties, docu- 
ments relating to arbitration, announcements of state policy, and 
diplomatic correspondence, and that the aid of the Department of 
State be solicited in securing copies of such documents for publication. 

(d) That at short intervals a bulletin be published, containing 
excerpts from the Congressional Record and other current sources, 
giving reliable information upon international questions arising from 
time to time and the final disposition of such questions. 

(e) That a law reporter of international cases be issued. 

RESOLUTION No. 3 [ARTICLE 24] 

Resolved, That, in order further to increase the facilities for the 
study of international law, the Conference recommends that steps be 
taken to extend the study of that subject by increasing the number 
of schools at which courses in international law are given, by increas- 
ing the number of students in attendance upon the courses, and by 
diffusing a knowledge of its principles in the community at large, and, 
more particularly: 

(a) That, as the idea of direct government by the people grows, 
it becomes increasingly essential to the well-being of the world that 
the leaders of opinion in each community be familiar with the rights 
and obligations of states, with respect to one another, as recognized 
in international law. Hence, it has become a patriotic duty, resting 
upon our educational institutions, to give as thorough and as extensive 
courses as possible in this subject. 

(b) That a course in international law, where possible, should 
consist of systematic instruction extending over at least a full aca- 
demic year, divided between international law and diplomacy. 

(c) That prominent experts in international law be invited from 
time to time to lecture upon the subject at the several institutions. 

RESOLUTION No. 4 [ARTICLE 25] 

Resolved, That, with a view of placing instruction in international 
law upon a more uniform and scientific basis, the Conference makes 
the following recommendations: 



RECOMMENDATIONS ON INTERNATIONAL LAW 11 

(a) In the teaching of international law emphasis should be laid on 
the positive nature of the subject and the definiteness of the rules. 

Whether we regard the teaching of value as a disciplinary subject 
or from the standpoint of its importance in giving to the student a 
grasp of the rules that govern the relations between nations, it is im- 
portant that he have impressed upon his mind the definiteness and 
positive character of the rules of international law. The teaching 
of international law should not be made the occasion for a universal 
peace propaganda. The interest of students and their enthusiasm for 
the subject can best be aroused by impressing upon them the evolu- 
tionary character of the rules of international law. Through such a 
presentation of the subject the student will not fail to see how the 
development of positive rules of law governing the relations between 
states has contributed towards the maintenance of peace. 

(b) In order to emphasize the positive character of international 
law, the widest possible use should be made of cases and concrete facts 
in international experience. 

The interest of students can best be aroused when they are convinced 
that they are dealing with the concrete facts of international experi- 
ence. The marshaling of such facts in such a way as to develop or 
illustrate general principles lends a dignity to the subject which can 
not help but have a stimulating influence. 

Hence, international law should be constantly illustrated from those 
sources which are recognized as ultimate authority, such as: (a) cases, 
both of judicial and arbitral determination; (b) treaties, protocols, 
acts, and declarations of epoch-making congresses, such as Westphalia 
(1648), Vienna (1815), Paris (1856), The Hague (1899 and 1907), 
and London (1909) ; (c) diplomatic incidents ranking as precedents 
for action of an international character; (d) the great classics of 
international law. 

(c) In the teaching of international law care should be exercised 
to distinguish the accepted rules of international law from questions 
of international policy. 

This is particularly true of the teaching of international law in 
American institutions. There is a tendency to treat as rules of inter- 
national law certain principles of American foreign policy. It is im- 
portant that the line of division be clearly appreciated by the student. 
Courses in the foreign policy of the United States should therefore be 



12 RECOMMENDATIONS ON INTERNATIONAL LAW 

distinctly separated from the courses in international law, and the 
principles of American foreign policy, when discussed in courses of 
international law, should always be tested by the rules which have 
received acceptance amongst civilized nations. 

(d) In a general course on international law the experience of no 
one country should be allowed to assume a consequence out of propor- 
tion to the strictly international principles it may illustrate. 

RESOLUTION No. 5 [ARTICLE 26] 

Resolved, That the Conference recommends that a major in inter- 
national law in a university course leading to the degree of doctor 
of philosophy be followed, if possible, by residence at The Hague 
and attendance upon the Academy of International Law which is to 
be established in that city; that it is the sense of the Conference that 
no better means could possibly be devised for affording a just appreci- 
ation of the diverse national views of the system of international 
law or for developing that "international mind" which is so essential 
in a teacher of that subject ; and that therefore as many fellowships 
as possible should be established in the Academy at The Hague, 
especially for the benefit of American teachers and practitioners of 
international law. 

RESOLUTION No. 6 [ARTICLE 27] 

Resolved, That it is the conviction of this Conference that the 
present development of higher education in the United States and the 
place which the United States has now assumed in the affairs of the 
Society of Nations justify and demand that the study of the science 
and historic applications of international law take its place on a plane 
of equality with other subjects in the curriculum of colleges and uni- 
versities and that professorships or departments devoted to its study 
should be established in every institution of higher learning. 

RESOLUTION No. 7 

Resolved, That, in order adequately to draw the line between under- 
graduate and graduate instruction in international law, the Conference 
makes the following recommendations: 

Assuming that the undergraduate curriculum includes a course in 
international law, as recommended in Resolution No. 6, the Confer- 
ence suggests that graduate instruction in international law concerns 
three groups of students : 



RECOMMENDATIONS ON INTERNATIONAL LAW 13 

(a) Graduate students in law; 

(b) Graduate students in international law and political science; 

(c) Graduate students whose major subjects for an advanced 
degree are in other fields, for example, history or economics. 

The first two groups of students have a professional interest in 
international law, many having in view the teaching of the subject, 
its practice, or the public service. Therefore, as to them, the Con- 
ference recommends that the graduate work offered be distinctively 
of original and research character, somewhat as outlined in Resolu- 
tion No. 4, following a preliminary training in the fundamental prin- 
ciples of the subject, as pursued in the undergraduate course or 
courses. 

As to those of the third group, having less professional interest 
in international law, a broad general course in the subject is recom- 
mended. 

RESOLUTION No. 8 

Resolved, That this Conference directs that a letter be sent to 
teachers of political science, law, history, political economy and soci- 
ology throughout the country calling attention to and emphasizing 
the essential and fundamental importance of a knowledge of inter- 
national law on the part of students in those branches, which letter 
shall state the opinion of this Conference that every college of liberal 
arts, every graduate school and every law school, should have or 
make provision for courses in international law and urge that all 
graduate students working in the above mentioned fields be advised 
to include this subject in their courses of study. 

Resolved, That, in accordance with the preceding resolution, there 
be prepared and sent out with this letter reprints of Senator Root's 
article entitled "The need of popular understanding of international 
law," which appeared in vol. 1 of the American Journal of Inter- 
national Law, and of his address delivered at the opening of this 
Conference. 

Resolved, That the Recording Secretary of the American Society 
of International Law attend to the drafting, printing and distribution 
of the above specified letter and reprints and that he is hereby au- 
thorized, if he sees fit, to send out additional literature therewith. 

RESOLUTION No. 9 [ARTICLE 28] 

Resolved, That, in recognition of the growing importance of a 
knowledge of international law to all persons who plan to devote 



14 RECOMMENDATIONS ON INTERNATIONAL LAW 

themselves to the administration of justice, and who, through their 
professional occupation, may contribute largely to the formation of 
public opinion and who often will be vested with the highest offices 
in the State and nation, this Conference earnestly requests all law 
schools which now offer no instruction in international law to add 
to their curriculum a thorough course in that subject. 

Resolved further, That a copy of this resolution be sent to all law 
schools in the United States. 

RESOLUTION No. 10 

Resolved, That the Conference hereby calls the attention of the 
State bar examiners and of the bodies whose duty it is to prescribe 
the subjects of examination, to the importance of requiring some 
knowledge of the elements of international law in examinations for 
admission to the bar, and urges them to make international law one 
of the prescribed subjects. 

RESOLUTION No. 11 

Resolved, That the Conference hereby requests the American Bar 
Association to take appropriate action toward including international 
law among the subjects taught in law schools and required for ad- 
mission to the bar. 

RESOLUTION No. 12 [ARTICLE 29] 

Resolved, That the Conference hereby adopts the following recom- 
mendations : 

(a) That it is desirable, upon the initiative of institutions where 
instruction in international law is lacking, to take steps toward pro- 
viding such instruction by visiting professors or lecturers, this instruc- 
tion to be given in courses, and not in single lectures, upon sub- 
stantive principles, not upon popular questions of momentary interest, 
and in a scientific spirit, not in the interest of any propaganda ; 

(b) That members of the American Society of International Law, 
qualified by professional training, be invited by the Executive Council 
or the Executive Committee of the Society to give such courses, and 
that provision be made, through the establishment of lectureships 
or otherwise, to bear the necessary expenses of the undertaking; 

(c) That the Standing Committee on the Study and Teaching of 
International Law and Related Subjects of the American Society of 



RECOMMENDATIONS ON INTERNATIONAL LAW 15 

International Law, the appointment of which was recommended in 
Resolution No. 1, be requested to ascertain what institutions are in 
need of additional instruction in international law and endeavor to 
find means of affording such assistance as may be necessary to the 
teaching staff of the said institutions or of supplying this additional 
instruction by lecturers chosen by the said Committee and approved by 
the Executive Council or Executive Committee; 

(d) That steps be taken to bring to the attention of every college 
at present not offering instruction in international law the importance 
of this subject and the readiness of the American Society of Inter- 
national Law, through its Standing Committee on the Study and 
Teaching of International Law and Related Subjects, to cooperate 
with such institutions in introducing or stimulating instruction. 

RESOLUTION No. 13 

Resolved, That this Conference hereby requests and recommends 
that universities having summer schools offer summer courses in inter- 
national law. 

Resolved further, That the American Society of International Law, 
through its Standing Committee on the Study and Teaching of Inter- 
national Law and Related Subjects, is hereby requested to endeavor 
to stimulate a demand for courses in international law in summer 
schools. 

RESOLUTION No. 14 [ARTICLE 30] 

Resolved, That the Conference recommends the establishment and 
encouragement in collegiate institutions of specialized courses in prep- 
aration for the diplomatic and consular services. 

RESOLUTION No. 15 [ARTICLE 31] 

Resolved, That the Conference recommends that the study of inter- 
national law be required in specialized courses in preparation for 
business. 

RESOLUTION No. 16 

Resolved, That a Committee of Revision, consisting of ten mem- 
bers, of which Mr. James Brown Scott shall be chairman ex officio, 
be appointed by the Chair for the revision in matters of form of 
the various resolutions and recommendations made to this Conference 
by the different committees and subcommittees and adopted by it. 



16 RECOMMENDATIONS ON INTERNATIONAL LAW 

the said Committee of Revision to send a copy of the said resolutions 
and recommendations to every law school, college and university in the 
United States and to the American Society of International Law, 
through its Executive Council or Executive Committee, for such 
action as will serve to effectuate the recommendations of the Con- 
ference. 



The undersigned, members of the Committee of Revision, duly 
appointed in accordance with Resolution No. 16, having carefully 
considered the resolutions and recommendations referred to them by 
the Conference, have prepared them in the foregoing form, and 
direct that they be transmitted by the Chairman of the Committee 
to the institutions and Society mentioned in Resolution No. 16. 

JAMES BROWN SCOTT, Chairman, 

ROBERT BACON, 

GEORGE H. BLAKESLEE, 

PHILIP BROWN, 

JAMES F. COLBY, 

EDWARD C. ELIOT, 

JOHN W. FOSTER, 

WILLIAM I. HULL, 

JOHN D. LAWSON, 

WILLIAM R. MANNING 

ELIHU ROOT. 

WASHINGTON, D. C., April 25, 1914. 



RECOMMENDATIONS ON INTERNATIONAL LAW 
ADOPTED BY THE SECOND PAN AMERICAN SCIENTIFIC 

CONGRESS 1 

ARTICLE 23 [RESOLUTION No. 2 2 ] 

The Second Pan American Scientific Congress recommends, in order 
to increase the study of international law, to popularize its just prin- 
ciples, and to secure its observance and application in the mutual rela- 
tions of the Americas, that steps be taken to improve and to enlarge 
library and reference facilities: 

(a) By preparing and publishing a bibliography of international law 
and related subjects, furnishing the names of publishers and prices so 
far as these are obtainable, with special reference to the needs of 
poorly endowed libraries ; 

(b) By preparing and publishing a carefully prepared index or 
digest of the various heads and subheads of international law, with 
references to standard sources of authority under each head and sub- 
head thereof; 

(c) By collecting with the aid wherever possible of ministries of 
foreign affairs and publishing from official copies thus secured, in 
cheap and convenient form, all official documents, both foreign and 
domestic, bearing upon international law, including therein treaties, 
information relating to arbitration, announcements of national policy, 
and diplomatic correspondence; 

(d) By issuing in the form of law reports judgments of national 
courts involving questions of international law, the sentences of arbitral 
tribunals and the awards of mixed commissions. 

ARTICLE 24 [RESOLUTION No. 3] 

The Second Pan American Scientific Congress is of the firm con- 
viction that, as the idea of direct government by the people grows, it 
becomes increasingly essential to the well-being of the world that the 
leaders of opinion in each community be familiar with the duties and 
obligations as well as with the rights of states, as recognized in inter- 



at Washington, December 27, 1915-January 8, 1916. 
Resolutions on the same subject adopted by the Conference of Teachers are 
indicated in brackets. 



18 RECOMMENDATIONS ON INTERNATIONAL LAW 

national law, and that it has become a patriotic duty resting upon our 
educational institutions to give as thorough and as extensive courses 
as possible in international law and related subjects. The Congress 
therefore recommends: 

I. That steps be taken to extend the study of the subject: 

(a) By increasing the number of schools and institutions in which 
international law and related subjects are taught; 

(b) By increasing the number of students in attendance upon the 
courses; and 

(c) By diffusing a knowledge of its principles in each American 
republic. 

II. That a course in international law, where possible, should con- 
sist of systematic instruction during at least a full academic year, 
divided between international law and diplomacy; and 

III. That prominent experts in international law and diplomacy be 
invited from time to time to lecture upon these subjects in the insti- 
tutions of learning of the American republics. 

ARTICLE 25 [RESOLUTION No. 4] 

The Second Pan American Scientific Congress, in order to place 
instruction in international law upon a more uniform and scientific 
basis, recommends that: 

(a) In the teaching of international law emphasis be laid upon the 
positive nature of the subject and the definiteness of the rules, for 
whether the teaching of international law be regarded as of value as 
a disciplinary subject or from the standpoint of its importance in giving 
to the student a grasp of the rules that govern the relations of nations, 
it is equally important that he have impressed upon his mind the 
definiteness and positive character of the rules of international law; 
that the teaching of international law be not made the occasion for a 
universal peace propaganda ; that the interests of the students in and 
their enthusiasm for the subject can best be aroused by impressing 
upon them the evolutionary character of the rules of international law, 
for through such a presentation of the subject the student will not 
fail to see that the development of positive rules of law governing the 
relations of states has contributed toward the maintenance of peace. 

(b) In order to emphasize the positive character of international 
law the widest possible use be made of cases and the concrete facts of 
international experience, for the interest of students can best be 



RECOMMENDATIONS ON INTERNATIONAL LAW 19 

aroused when they are convinced that they are dealing with such con- 
crete facts, and that the marshaling of such facts in such a way as to 
develop or illustrate general principles lends dignity to the subject, 
which can not help but have a stimulating influence ; that international 
law should be constantly illustrated from the sources recognized as 
ultimate authority, such as cases both of judicial and arbitral deter- 
mination; treaties, protocols, acts, and declarations of epoch-making 
congresses, such as Westphalia (1648), Vienna (1815), Paris (1856), 
The Hague (1899 and 1907), and London (1909); diplomatic inci- 
dents ranking as precedents for action of an international character; 
and the great classics of international law. 

(c) In the teaching of international law care be exercised to distin- 
guish the accepted rules of international law from questions of inter- 
national policy. 

(d) In a general course on international law the experience of no 
one country be allowed to assume a consequence out of proportion to 
the strictly international principles it may illustrate. 

ARTICLE 26 [RESOLUTION No. 5] 

The Second Pan American Scientific Congress, in order still further 
to advance the cause of international law and the development of 
international justice, recommends that a major in international law in 
a university course, leading to the degree of doctor of philosophy, be 
followed if possible by residence at The Hague in attendance upon the 
Academy of International Law, installed in 1914 in the Peace Palace 
in that city ; and that, as no better means has been devised for afford- 
ing a just appreciation of the diverse and conflicting national views 
concerning international law or for developing that "international 
mind" which is so essential in a teacher of that subject, as many fel- 
lowships as possible should be established in the Academy at The 
Hague and put at the disposition of advanced students of international 
law in the different American republics. 

ARTICLE 27 [RESOLUTION No. 6] 

The Second Pan American Scientific Congress expresses the opinion 
that the present development of higher education in the American 
republics and the place which they have now assumed in the affairs 
of the society of nations justify and demand that the study of the 
science and historic applications of international law be treated on a 



20 RECOMMENDATIONS ON INTERNATIONAL LAW 

plane of equality with other subjects in the curriculum of colleges and 
universities, and that professorships or departments devoted to its 
study be established where they do not exist in every institution of 
higher learning. 

ARTICLE 28 [RESOLUTION No. 9] 

The Second Pan American Scientific Congress, recognizing the 
growing importance of a knowledge of international law to all persons 
who intend to devote themselves to the administration of justice, and 
who, through their professional occupation, may contribute largely 
to the formation of public opinion and who may often be vested with 
the highest offices in the state and nation, earnestly requests all law 
schools which now offer no instruction in international law to add to 
their curriculum a thorough course in that subject. 

ARTICLE 29 [RESOLUTION No. 12] 

The Second Pan American Scientific Congress regards it as highly 
desirable, upon the initiative of institutions where instruction in inter- 
national law is lacking, to take steps toward providing such instruc- 
tion by visiting professors or lecturers, this instruction to be given in 
courses, and not in single lectures, upon substantive principles, not 
upon popular questions of momentary interest, and in a scientific spirit, 
not in the interest of any propaganda. 

ARTICLE 30 [RESOLUTION No. 14] 

The Second Pan American Scientific Congress recommends the 
establishment and encouragement In institutions of specialized courses 
in preparation for the diplomatic and consular services. 

ARTICLE 31 [RESOLUTION No. 15] 

The Second Pan American Scientific Congress advises that the 
study of international law be required in specialized courses in prepa- 
ration for business. 

ARTICLE 32 

The Second Pan American Scientific Congress urges that in the 
study and teaching of international law in American institutions of 
learning special stress be laid upon problems affecting the American 
republics and upon doctrines of American origin. 



RECOMMENDATIONS ON INTERNATIONAL LAW 21 

ARTICLE 33 

The Second Pan American Scientific Congress extends to the Ameri- 
can Institute of International Law a cordial welcome into the circles 
of scientific organizations of Pan America, and records a sincere wish 
for its successful career and the achievement of the highest aims of 
its important labors. 

ARTICLE 34 

The Second Pan American Scientific Congress recommends to all 
educational establishments of America the special study of the con- 
stitutions, laws, and institutions of the republics of this continent. 

ARTICLE 35 

The Second Pan American Scientific Congress recommends to the 
various universities of the American republics that a comparative 
study of judicial institutions be undertaken in order 

(a) To create special interest therein in the several countries of the 
continent ; 

(b) To facilitate the knowledge and solution of problems of private 
international law in the American countries; and 

(c) To bring about as far as possible uniformity in jurisprudence 
and legislation. 

ARTICLE 36 

The Second Pan American Scientific Congress, in order to broaden 
the outlook and to bring into closer contact the members of the legal 
profession, urges that the bar association exchange among themselves : 

(a) Law books and publications affecting the legal professions and 
the practice of law. 

(b) New codes of law and rules of procedure as they are hereafter 
published. 



OFFICIAL COMMENTARY ON THE RECOMMENDATIONS 

ON INTERNATIONAL LAW OF THE SECOND 

PAN AMERICAN SCIENTIFIC CONGRESS 1 

Article 23 [Resolution No. 2?\ 

The Second Pan American Scientific Congress recommends, in 
order to increase the study of international law, to popularize its 
just principles, and to secure its observance and application in the 
mutual relations of the Americas, that steps be taken to improve 
and to enlarge library and reference facilities: 

(a) By preparing and publishing a bibliography of interna- 
tional law and related subjects, furnishing the names of pub- 
lishers and prices so far as these are obtainable, with special ref- 
erence to the needs of poorly endowed libraries; 

(b) By preparing and publishing a carefully prepared index or 
digest of the various heads and subheads of international law, 
with references to standard sources of authority under each head 
and subhead thereof; 

(c) By collecting with the aid wherever possible of ministries 
of foreign affairs and publishing from official copies thus secured, 
in cheap and convenient form, all official documents, both foreign 
and domestic, bearing upon international law, including therein 
treaties, information relating to arbitration, announcements of na- 
tional policy, and diplomatic correspondence; 

(d) By issuing in the form of law reports judgments of na- 
tional courts' involving questions of international law, the sen- 
tences of arbitral tribunals and, the awards of mixed commissions. 

The subject of the study of international law was considered in very 
great detail at a conference of American teachers of international law, 
held at the City of Washington in the month of April, 1914, under the 
auspices of the American Society of International Law. Forty-one 
institutions of learning of the United States accepted the invitation to 
be present and sent accredited representatives to take part in the pro- 
ceedings. 

The result was a series of recommendations, unanimously adopted 
by the conference, which form the basis of the present articles relating 
to the study of the law of nations, with omissions and other modifica- 
tions in order to make the recommendations apply to the republics of 



in Washington, December 27. 1915-January 8, 1916. 
'Resolutions on the same subject adopted by the Conference of Teachers are 
indicated in brackets. 



23 

the American continent instead of applying solely to the republic of 
the North in which the conference of teachers was held. 

In an article written by the Honorable Elihu Root when Secretary 
of State, and published as the introduction to the first number of the 
American Journal of International Law in 1907, he called attention to 
the conditions required for the settlement of international disputes 
without resort to war, stating that the people of the countries involved 
should be able to weigh the controversy and to appreciate the action 
of their representatives in an instructed and reasonable way, stating 
also that one means of bringing about this instructed and reasonable 
way was by means of a wider and broader knowledge of the principles 
of international law and by the creation of an international habit on the 
part of the people of reading and thinking about international matters. 
The language of Mr. Root on this point is, if possible, the more im- 
portant, as when uttering it he was speaking under the responsibility of 
office, shortly after his return from his visit to Latin America. It 
therefore seems advisable to quote two paragraphs from the article as 
a general introduction to this section of the report : 

In the great business of settling international controversies with- 
out war, whether it be by negotiation or arbitration, essential con- 
ditions are reasonableness and good temper, a willingness to recog- 
nize facts and to weigh arguments which make against one's own 
country as well as those which make for one's own country ; and 
it is very important that in every country the people whom negotia- 
tors represent and to whom arbitrators must return, shall be able 
to consider the controversy and judge the action of their repre- 
sentatives in this instructed and reasonable way. 

One means to bring about this desirable condition is to in- 
crease the general public knowledge of international rights and 
duties and to promote a popular habit of reading and thinking 
about international affairs. The more clearly the people of a 
country understand their own international rights the less likely 
they are to take extreme and extravagant views of their rights and 
the less likely they are to be ready to fight for something to which 
they are not really entitled. The more clearly and universally the 
people of a country realize the international obligations and duties 
of their country, the less likely they will be to resent the just de- 
mands of other countries that those obligations and duties be ob- 
served. The more familiar the people of a country are with the 
rules and customs of self-restraint and courtesy between nations 
which long experience has shown to be indispensable for preserv- 
ing the peace of the world, the greater will be the tendency to re- 
frain from publicly discussing controversies with other countries 



24 RECOMMENDATIONS ON INTERNATIONAL LAW 

in such a way as to hinder peaceful settlement by wounding sensi- 
bilities or arousing anger and prejudice on the other side. 

At the Conference of Teachers of International Law, under the 
presidency of Mr. Root, he delivered an address in which, while dwell- 
ing upon the importance of international law, he called attention to the 
fact that more and more democracy was coming to its own and that 
unless democracy were educated in its duties as well as in its rights it 
would not render the services which could properly be expected of it 
and which would justify its existence. On this particular point he said : 

I think no one can study the movement of the times without 
realizing that the democracy of the world for it is not alone in 
this country is realizing its rights in advance of its realization 
of its duties. And that way lies disaster. That way lies hideous 
wrong. That way lies the exercise of the mighty powers of mod- 
ern democracies to destroy themselves, to destroy the vitality 
of the principles upon which they depend. And there is no duty 
more incumbent to-day upon the men whose good fortune has 
made it possible for them to acquire a broader knowledge upon the 
subjects with which democracy deals, than to become themselves 
leaders of opinion and teachers of their people. Unless the 
popular will responds to the instructed and competent leadership 
of opinion upon the vital questions of our foreign relations, the 
worst impulses of democracy will control. At the bottom of 
wise and just action lies an understanding of national rights and 
national duties. Half the wars of history have come because of 
mistaken opinions as to national rights and national obligations, 
have come from the unthinking assumption that all the right is 
on the side of one's own country, all the duty on the side of some 
other country. Now I say the thing most necessary for the good 
of our country in the foreign relations which are growing every 
year more and more intricate and critical, is that there shall be 
intelligent leadership of opinion as to national rights and national 
obligations. 

These quotations have been made, both from the article and the 
address of Mr. Root because they justify of themselves the recom- 
mendations made by the Congress in regard to international law. The 
recommendations are twofold: first, to broaden and deepen instruc- 
tion in international law in American seats of learning; and second, 
to reach the peoples of the American continent, impressing them with 
their duties in matters international and instructing them in their inter- 
national rights. 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 25 

The four headings of Article 23, numbered respectively (a), (b), 
(c), and (d), are meant to furnish teacher and student with necessary 
information concerning the books and treatises dealing with inter- 
national law ; to supply the references to standard sources of authority 
on the different headings of international law ; to secure the official 
documents, both foreign and domestic, issued by the various govern- 
ments bearing upon international law, relating to treaties, arbitrations, 
and the international policy of the different governments ; and to 
place at the disposal of teacher and student decisions of national and 
of international courts involving questions of international law. Ex- 
perience shows that it is difficult to keep abreast of treatises and mono- 
graphs dealing with international law, issued from time to time in 
different countries and in various languages, and that it is no easy 
matter to obtain these books and monographs unless the prospective 
purchaser has relations with the libraries or publishers of the different 
foreign countries in which they appear. The Congress felt that the 
publication of a carefully prepared bibliography of international law 
and related subjects, giving the names of publishers and prices, would 
tend greatly to popularize international law and bring the items con- 
tained in the bibliography not only to the notice of the libraries where 
the books in question were not to be found, but also exert indirect but 
substantial pressure upon these libraries to procure the publications for 
the benefit of their readers. 

It often happens that the reader of a newspaper becomes so inter- 
ested in the subject of which he is reading that he would like to obtain 
additional information if he had at hand a ready-reference manual. 
This is particularly the case at the present day, when questions of in- 
ternational law are uppermost in the minds and thoughts of men and 
when they occupy such a prominent place in the daily press. A manual 
or treatise of international law is not always at hand, and in the chang- 
ing conditions of international life and experience many topics which 
were unknown a decade ago and which are unmentioned in recent 
works of authority are of the utmost importance at the present day. 
An index or digest, brought up-to-date and kept up-to-date of the 
various heads and subheads in international law, with references to 
standard sources of authority upon each head, would be of no little 
service in enabling journalists to create a correct public opinion and in 
enabling the readers to follow up a subject which interested them, and 



26 RECOMMENDATIONS ON INTERNATIONAL LAW 

by so doing to take part in creating the enlightened public opinion 
upon which the administration of justice is so largely founded. 

The importance placed upon public opinion by countries which are 
unfortunately at war is evidenced by the fact that each of them has 
published the telegrams and other documents, either in whole or in 
part, exchanged by them before the outbreak of the great war in the 
summer of 1914, and it is a fact that these documents are issued by the 
belligerent governments not only in their own but in foreign languages, 
which can only mean that the appeal is made not merely to their 
citizens or subjects but also to enlightened and instructed opinion in 
foreign countries in the hope of winning its support. 

The Congress recognized the importance of a knowledge of the dip- 
lomatic correspondence bearing upon international law, of treaties 
and of the authoritative statements of national policy issued by gov- 
ernments, by recommending that copies of such documents be secured 
from ministries of foreign affairs, and that they be published in cheap 
and convenient form, so that they may not only reach the hands of 
professional students but that they may also fall under the eye of the 
general, and indeed of the casual, reader. Knowledge of this kind is 
especially valuable to democracies where in last resort the people pass 
upon the acts of the government and where the issues of war and of 
peace depend upon the enlightenment or ignorance of the public. It is 
not enough that documents of this kind be made public ; they must be 
circulated if the actions of the government are to be weighed with in- 
telligence; and unless they are issued in cheap and convenient form 
they will not be circulated and will be little better than secret docu- 
ments preserved in archives beyond the reach of the public. 

It is common knowledge that international law has a preferred 
position in the jurisprudence of the American republics; that, whether 
by constitution, statute or custom, it is regarded as a part of the law of 
each country and is administered as national law in cases depending 
upon its application. This is believed to be the case in varying de- 
grees in other civilized countries. This being so, it is natural that 
many and important principles of international law are to be found in 
domestic judgments, and as an illustration of this it may be said that 
upon calculation, there are some twenty-eight hundred cases, decided 
by the Supreme Court of the United States since the organization of 
the Supreme Court in 1789, which involve in a larger or lesser degree 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 27 

principles of international law. It is therefore of very great impor- 
tance for the future of international relations to understand clearly 
that international law is thus susceptible of judicial interpretation (be- 
cause it has been interpreted and applied judicially not only in one 
country but in the countries generally) and that there already exists 
a large body of judicial precedent, not merely in prize cases but in all 
justiciable cases involving questions of international law, for the guid- 
ance of that international court which will one day administer justice 
between the nations, as national courts administer justice between man 
and man in every country making a pretense to civilization. 

These judgments, although not gathered together in any one place, 
are nevertheless to be found in the reports of judicial proceedings, 
and it would be a very great service if these decisions were collected 
in appropriate volumes and placed at the disposal of professed students 
of international law. But it is of equal if not of greater importance 
that the sentences of arbitral tribunals and the awards of international 
commissions be collected and published, in addition to the judgments 
of national courts involving questions of international law, in order 
that the students of any one country may have before them the ad- 
judged cases dealing with international law, whether they be decided 
by national courts, arbitral tribunals, or mixed commissions. 

The Congress therefore recommended that a law reporter of in- 
ternational cases be issued. To explain exactly the meaning of this 
recommendation, it should be borne in mind that the judgments of the 
Supreme Court of the United States are issued in official reports and 
that the decisions of the Federal and the State courts are likewise 
published serially in permanent form. It is proposed that an inter- 
national reporter should do for the decisions of international and na- 
tional courts turning upon questions of international law what the 
various reports issued in the United States have done for the decisions 
of Federal and State courts. It is difficult to overestimate the service 
which collections of the older decisions and of the future holdings 
of national and international courts would render to the cause of 
international justice, and the very great impetus which such collections 
would give to the establishment of an international court of justice, by 
showing that international law can be interpreted and applied judicially 
in the future because it has been so interpreted and applied in times 
past as well as in the immediate present. 



28 RECOMMENDATIONS ON INTERNATIONAL LAW 

Article 24 [Resolution No. j] 

The Second Pan American Scientific Congress is of the firm 
conviction that, as the idea of direct government by the people 1 , 
grows, it becomes increasingly essential to the well-being of the 
world that the leaders of opinion in each community be familiar 
with the duties and obligations as well as ivith the rights of states, 
as recognised in international law, and that it has become a 
patriotic duty resting upon our educational institutions to give as 
thorough and as extensive courses as possible in international law 
and related subjects. The Congress therefore recommends: 

I. That steps be taken to extend the study of the subject: 

(a) By increasing the number of schools and institutions in 
which international law and related subjects are taught; 

(b) By increasing the number of students in attendance upon 
the courses; and 

(c) By diffusing a knowledge of its principles in each Ameri- 
can republic. 

II. That a course in international law, where possible, should 
consist of systematic instruction during at least a full academic 
year, divided between international law and diplomacy; and 

III. That prominent experts in international law and diplomacy 
be invited from time to time to lecture upon these subjects in the 
institutions of learning of the American republics. 

The recommendation in Article 24 is general in its nature and is 
aimed to supply not only professional students but the general public 
with information useful to both in forming what Dr. Nicholas Murray 
Butler has aptly termed "the international mind." The recommenda- 
tions under this article are specific in their nature and aim to increase 
instruction in American institutions of learning where courses of in- 
ternational law are given, and to secure the introduction of courses on 
international law and diplomacy in institutions where they unfortu- 
nately are not given at present. The purpose of this section is not so 
much to scatter the principles of international law broadcast among 
the people as to impress students at American institutions of learning 
with the importance of international law and its principles, so that the 
leaders of opinion, who may have studied in American institutions of 
learning, may, while they are still open to conviction, be impressed 
with the necessity of a knowledge of international law and of inter- 
national relations. 

The Congress regarded knowledge of international law as not merely 
useful but as essential, and declared it to have become, by reason of 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 29 

the democratic control everywhere existing in the western continent, 
a patriotic duty. 

In prescribing that systematic instruction which should be offered 
during a full academic year and that the course should include inter- 
national law and diplomacy, the Congress did not mean that only one 
year should be devoted to international law and that the course should 
be devoted only to international law, in the technical sense of the term, 
and to diplomacy. The Congress had in mind the minimum, not the 
maximum, of instruction, and declared its opinion that, to be effective, 
the course of instruction should not be confined merely to the principles 
of international law in the abstract but that instruction should be 
given in diplomacy and in the fundamental principles of foreign policy, 
so that the student might understand the agency by which the prin- 
ciples of international law are applied in the relations between countries 
and the policies which nations pursue among themselves. No maxi- 
mum of instruction is stated, as that must necessarily depend upon the 
universities and upon the students, but it is clear from the recom- 
mendations already cited, and to be referred to later, that the Congress 
fully appreciated the importance of careful and thorough training in 
the principles of international law and of an adequate understanding 
of the workings of diplomacy, both by the public generally and es- 
pecially by those whose good fortune it may be to create and to guide 
public opinion. 

The Congress recognized the fact, familiar to all who have had to 
do with the class room, that students like to hear those who have had 
experience in international law discourse upon its principles and its 
application. The professor without experience in the actual conduct 
of affairs may be more deeply versed in what is called book learning 
than the international lawyer or the professional diplomatist, and yet 
the latter create an interest and an enthusiasm by virtue of their ex- 
perience and the confidence which they create beyond the reach of the 
academician. The Congress therefore recommended that international 
lawyers, termed experts in international law, and that preferred diplo- 
mats to be invited from time to time to lecture upon the subject at the 
several institutions. 

Article 25 [Resolution No. 4] 

The Second Pan American Scientific Congress, in order to 
place instruction in international law upon a more uniform and 
scientific basis, recommends that: 



30 RECOMMENDATIONS ON INTERNATIONAL LAW 

(a) In the teaching of international law emphasis be laid upon 
the positive nature of the subject and the definiteness of the rules, 
for whether the teaching of international law be regarded as of 
value as a disciplinary subject or from the standpoint of its im- 
portance in giving to the student a grasp of the rules that govern 
the relations of nations, it is equally important that he have im- 
pressed upon his mind the definiteness and positive character of 
the rules of international law; that the teaching of international 
law be not made the occasion for a universal peace propaganda; 
that the interests of the students in and their enthusiasm for the 
subject can best be aroused by impressing upon them the evolu- 
tionary character of the rules of international law, for through 
such a presentation of the subject the student will not fail to see 
that the development of positive rules of law governing the rela- 
tions of states has contributed toward the maintenance of peace. 

(b) In order to emphasise the positive character of interna- 
tional law the widest possible use be made of cases and the con- 
crete facts of international experience, for the interest of students 
can best be aroused when they are convinced that they are deal- 
ing with such concrete facts, and that the marshaling of such facts 
in such a way as to develop or illustrate general principles lends 
dignity to the subject, which can not help but have a stimulating 
influence; that international law should be constantly illustrated 
from the sources recognised as ultimate authority, such as cases 
both of judicial and arbitral determination; treaties, protocols, 
acts, and declarations of epoch-making congresses, such as West- 
phalia (1648}, Vienna (1815}, Paris (1856), The Hague (1899 
and 1907}, and London (/pop); diplomatic incidents ranking as 
precedents for action of an international character; and the great 
classics of international law. 

(c) In the teaching of international law care be exercised to 
distinguish the accepted rules of international law from questions 
of international policy. 

(d) In a general course on international law the experience of 
no one country be allowed to assume a consequence out of pro- 
portion to the strictly international principles it may illustrate. 

Just as Article 24 urged an increase of the instruction in interna- 
tional law and diplomacy, so Article 25 urges that the instruction itself 
be more thorough, be more detailed, and be more efficient than here- 
tofore. 

Section (a) recommends that the positive nature of international 
law and the definiteness of its rules be emphasized and wisely, be- 
cause if international law is not law but a system of morality, of 
ethics, of philosophy or of history, it has no place in positive juris- 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 31 

prudence, and it can make no claim to a standard of conduct by which 
the rights and duties of nations are to be measured. If the definiteness 
of the rule be not impressed upon the student, he is left with the erro- 
neous conception that international law is a loose and disjointed sys- 
tem, if system it is to be called, instead of a system of law whose rules 
are definite as far as they go, and whose imperfections are due to the 
fact that it is a growing not a completed system as is the case with 
municipal law. 

In stating that the teaching of international law should not be made 
the occasion for a universal peace propaganda, the Congress meant 
to convey the idea that through the application of the principles of 
justice to the relations of nations, peace necessarily results, just as 
the peace of the community depends upon the existence of principles 
of justice and their application to the disputes that arise among the 
people composing the community. International law should, in the 
opinion of the Congress, be taught as a system of jurisprudence, as 
a means of realizing justice, and not perverted to the advocacy of 
peace as such, although the highway to peace does undoubtedly run 
through justice. 

That the Congress had in mind the services which international law 
could render to the cause of peace is seen in the recommendation that 
the evolutionary character of the rules of international law should be 
impressed upon the student, showing how, with the development of 
rules of law, order and equilibrium have resulted. The Congress, how- 
ever, felt that the influence of rules of law, governing the relations 
of equal but interdependent nations, would best be seen by a study of 
the development of the rules and their consequences; and it therefore 
stated that such a presentation was best calculated to show how "the 
development of positive rules of law governing the relations between 
states has contributed toward the maintenance of peace." In a word, 
the study of international law should be scientific, it should not be 
propagandistic. 

The Congress was exceedingly anxious that international law should 
not be studied as an abstract system of rights and duties, but that it 
should take note of the concrete facts of international experience. It 
therefore recommended in Section (b) that the widest possible use 
be made of actual cases and incidents, in order that the positive charac- 
ter of international law be demonstrated, and that it be held up as the 
measure of international right and of international duty. It appre- 



32 RECOMMENDATIONS ON INTERNATIONAL LAW 

ciated that the enthusiasm of the students should be aroused and that 
their interest could best be sustained if they dealt with actual not with 
hypothetical cases, and if they saw that they were dealing with a prac- 
tical not with a theoretical science. It was felt that such a point of ap- 
proach was calculated to lend dignity to the subject and to stimulate 
and to maintain the interest of the student. 

The Congress, advocating the concrete, dealt in the concrete, and 
specified the sources which should be used in order to create and to 
stimulate interest, and which it ventured to call the ultimate sources of 
authority. In the first place, it called attention to the judgments of 
courts and to sentences of arbitral tribunals, and although judgments 
of courts and arbitral awards are not usually given the first place 
among the sources of international law, it is believed that the Congress 
was right in assigning them this unusual rank, because the judgment 
of a court is decided by professional judges without interest in the 
subject in dispute and according to principles of law which have 
stood the test of time; and in the same way, although perhaps in a 
lesser degree, the award of arbitral tribunals and of mixed commissions 
are the holdings of persons of different countries, and the decision is 
reached at least by a majority of disinterested persons, bringing to the 
performance of their task an international outlook. The same can 
not be said of diplomatic incidents, which figure so prominently among 
the sources and which are often the concessions of the weak to the 
strong, rather than the passionless application of principles of justice. 
They can not, however, be ignored, for, right or wrong, they are mile- 
stones in the evolution of international law. 

In the next place, treaties, protocols, acts and declarations of epoch- 
making congresses are recommended as a source of authority and as a 
means of illustration. Naturally the congresses mentioned are those 
of Westphalia, Vienna and Paris, and it is especially encouraging to 
observe that a Congress composed of American delegates ventured 
to proclaim the Hague Conferences as sources of international law and 
to confess their faith in them at a time when many partisans of inter- 
national organization are discouraged at the present and despondent 
of the future. 

Finally, the classics of international law are recommended, for the 
great writers on international law have not only expounded the law of 
nations but they have also made and enlarged the law which they pro- 
fessed to expound. By a study of their masterly productions, begin- 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 33 

ning with the philosophers and canonists of the Middle Ages, including 
Francisco Victoria, Ayala, Gentilis, and Suarez, the predecessors of 
Grotius, the immortal three books on the right of war and peace by 
the illustrous Grotius himself, and the works of his successors, we see 
how the little stream, fed by many sources, has grown into a mighty 
torrent, colored it may be by the soil over which it flows but reaching 
with irresistible force the ocean. 

The Supreme Court of the United States, declared in the case of the 
Paquete Habana (176 U. S., 677), decided in 1899, that "interna- 
tional law is part of our law, and must be ascertained and administered 
by the courts of justice of appropriate jurisdiction, as often as ques- 
tions of right depending upon it are duly presented for their determi- 
nation." The opinion, delivered by a very learned judge, the late 
Mr. Justice Gray, then proceeded to enumerate the sources of authority 
as follows: 

For this purpose, where there is no treaty, and no controlling 
executive or legislative act or judicial decision, resort must be 
had to the customs and usages of civilized nations; and, as evi- 
dence of these, to the works of jurists and commentators, who 
by years of labor, research and experience, have made themselves 
peculiarly well acquainted with the subjects of which they treat. 
Such works are resorted to by judicial tribunals, not for the 
speculations of their authors concerning what the law ought to 
be, but for trustworthy evidence of what the law really is. 

Supplementing the enumeration of sources of authority which the 
Congress ventured to make by the decision of the learned justice of the 
Supreme Court in deciding the case of the Paquete Habana we have 
a firm and a sure measure of international right and of international 
duty, and of the means of ascertaining it in almost any case. 

The Congress, it will be recalled, recommended that particular stress 
should be laid upon the positive nature of international law and the 
definiteness of its rules. This recommendation appears in a slightly 
different form in Section (c), where the Congress advises that the 
lines be clearly drawn between the accepted rules of international law 
on the one hand and questions of international policy on the other 
hand. 

It is not difficult to illustrate what the Congress had in mind in this 
recommendation, and it is perhaps neither necessary to cite an illustra- 
tration nor to enlarge upon the importance of the recommendation. 



34 RECOMMENDATIONS ON INTERNATIONAL LAW 

The distinction is between law and policy, a distinction which citizens 
of a particular country are apt to forget in their eagerness to justify 
the contentions put forward by their country on any and every occa- 
sion. The test of law is not policy, rather the test of policy is law. 
Much is lost by their confusion; everything is gained by separating 
them and, when separating them, by discussing them in their various 
elements and in all their bearings. 

And finally, in dealing with this phase of instruction, the Congress 
advised that the experience of no one country should be dwelt upon 
to the exclusion of the experience of other countries. For if interna- 
tional law be in reality the law of nations it is universal and it should 
be studied in its universal applications, although it may often be most 
entertainingly if not best illustrated by examples taken from the ex- 
perience of the home country. In so doing, however, great care should 
be exercised, in the present unsatisfactory state of affairs, because, 
while international law is universal, it is interpreted by each nation and 
is not infrequently perverted in the process. In any event, the prece- 
dents of no one country should be studied to the exclusion of prece- 
dents from other countries ; otherwise a belief is likely to grow up in 
the mind of the student that his country is the favorite home of inter- 
national law and the international is likely to yield to the national 
aspect. 

Article 26 [Resolution No. 5] 

The Second Pan American Scientific Congress, in order still 
further to advance the cause of international law and the develop- 
ment of international justice, recommends that a major in inter- 
national law in a university course, leading to the degree of doctor 
of philosophy, be followed if possible by residence at The Hague 
in attendance upon the Academy of International Law, installed 
in 1914 in the Peace Palace in that city; and that, as no better 
means has been devised for affording a just appreciation of the 
diverse and conflicting national views concerning international law 
or for developing that "international mind" which is so essential 
in a teacher of that subject, as many fellowships as possible should 
be established in the Academy at The Hague and put at the dis- 
position of advanced students of international law in the different 
American republics. 

In addition to courses of international law in national institutions 
the Congress recommends the advantage of studying international law 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 35 

in what may be called an international institution, in order that the 
conception of international law may, as it were, be internationalized. 
A distinguished teacher of the law of nations has said: 

It is to be deplored that many writers on the law of war and 
neutrality should take every opportunity of displaying their politi- 
cal sympathies and antipathies, and should confound their own 
ideas of justice, humanity, and morality with the universally recog- 
nized rules of warfare and neutrality. French books often contain 
denunciation of the Germans and the English ; English books 
Hall's classical treatise furnishes at once an illustration and a 
warning frequently condemn the Germans and the Russians; 
and the Germans on many occasions retaliate by reproaching the 
French and the English. 1 

This tendency to defend the policy of one's own country is the more 
insidious because it is often unconscious, and the best way, it is be- 
lieved, to overcome this tendency seems to be to come into contact 
with teachers of reputation of different countries in some international 
institution, where the bias of one, if it exist, may be offset by the views 
of another teacher of equal repute and of a different nationality. 

On the 12th day of January, 1914, the Academy of International 
Law was founded at The Hague, and arrangements had been made for 
its formal opening on the 1st day of October, 1914. It was not opened 
on that date, for reasons which need not be mentioned in this connec- 
tion. It should be said, however, that arrangements had already been 
made for courses of instruction by distinguished teachers and pro- 
fessors of international law drawn from different countries, as it is a 
fundamental rule of the Academy that no two instructors should be 
chosen during one and the same period from the same country. The 
student body was to be drawn from advanced students of different 
foreign countries, and it was believed by the most distinguished pub- 
licists that, by the presence of professors selected from different coun- 
tries and by the intercourse of students, likewise coming from differ- 
ent countries, the horizon of the professors would be broadened and 
their views, as well as the views of the students, internationalized. 
The great experiment remains to be tried, as the Academy is to be 
opened in the Peace Palace at The Hague at no distant date, and the 
students will, it is to be hoped, press in increasing numbers to this- 
Mecca of internationalism. 



1 Oppenheim, International Law, 1st ed., vol. ii, p. vii. 



36 RECOMMENDATIONS ON INTERNATIONAL LAW 

Arrangements were in contemplation and indeed well under way to 
establish one or more fellowships in all countries parties to the Hague 
Conventions, so that young men planning to engage in the practice of 
international law or to devote themselves to diplomacy might perfect 
their studies at this international center. For the time being the 
process is delayed and the doors of the Academy are closed, but it is 
not too much to hope that they will swing open on a happier morrow, 
and that in the Peace Palace at The Hague, where justice is admin- 
istered by the Permanent Court of Arbitration between nation and 
nation, the principles of international law will be taught by accredited 
teachers thereof drawn from the various countries of the world to 
a student body, likewise coming from afar. 

Article 27 [Resolution No. 6] 

The Second Pan American Scientific Congress expresses the 
opinion that the present development of higher education in the 
American republics and the place which they have now assumed in 
the affairs of the society of nations justify and demand that the 
study of the science and historic applications of international law 
be treated on a plane of equality with other subjects in the cur- 
riculum of colleges and universities, and that professorships or 
departments devoted to its study be established where they do not 
exist in every institution of higher learning. 

The Congress calls attention to the development of the higher edu- 
cation in the American republics and to the place which these repub- 
lics assume in the affairs of the society of nations. It squarely states 
its measured judgment that international law is a science; that in its 
historic applications it should stand upon a plane of equality with other 
studies in the curriculum of American institutions of learning, and 
that professorships or departments devoted to the study of interna- 
tional law of international relations should be created in every higher 
institution of learning in the American continent where they do not 
already exist. 

It has long been the habit of a certain type of mind to question the 
existence of such a thing as international law. This type of mind, 
however, does not appear to have been represented in the Congress, 
and it is authoritatively stated in this article by accredited representa- 
tives of the governments of the American republics that international 
law does in fact exist and that it should regulate their mutual inter- 
course; and in the passage previously quoted from the Paquete 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 37 

Habana, the Supreme Court of the United States solemnly declared 
international law to be a part of the law of the United States and 
that it should be applied in the decision of cases properly involving it. 
The judges of this august tribunal are not ordinarily regarded as 
idealists but as men of affairs and leaders of the bar who have achieved 
distinction in their chosen profession. 

For the western continent the law of nations therefore exists. As 
democracy comes to its own the knowledge of international law be- 
comes more essential. The participation of the American republics 
in the Hague Conference is assured, and to render their influence 
effective their delegates must be versed, in the principles of international 
law. The future leaders of opinion, here or elsewhere, should have 
opportunities in their university days of perfecting themselves in the 
knowledge of international law and of international relations which 
are based upon the law of nations, and international law should not be 
lowered in the opinion of the student by being placed upon a lower 
plane than any other branches of law or of political science. Profes- 
sorships of international law should exist in every institution of higher 
learning in the American continent, and departments thereof should, in 
the opinion of the Congress, be created in every such institution. 

Article 28 [Resolution No. p] 

The Second Pan American Scientific Congress, recognizing the 
growing importance of a knowledge of international law to all 
persons who intend to devote themselves to the administration of 
justice, and who, through their professional occupation, may con- 
tribute largely to the formation of public opinion and who may 
often be vested with the highest offices in the state and nation, 
earnestly requests all law schools which now offer no instruction 
in international law to add to their curriculum a thorough course 
in that subject. 

Article 28 specifically considers the advisability of offering courses 
on international law in the law schools of the American countries and 
the necessity of having lawyers thoroughly grounded in the principles 
of international law. Given the fact that lawyers are members of the 
congresses of the different American countries, that they are very 
often members of the cabinets and presidents of the American repub- 
lics ; that in their various public offices they are called upon to interpret 
the principles of international law, and in many instances to apply them 
as interpreted to the foreign relations of their country, it needs no 



38 RECOMMENDATIONS ON INTERNATIONAL LAW 

argument that persons entering congress and the higher service of 
the governments require a knowledge of international law to enable 
them to perform successfully or even acceptably the duties of their 
offices. All members of the diplomatic service must needs be trained 
in international law and in a lesser, but nevertheless to a marked degree, 
journalists, whose business it is to guide and to mould public opinion, 
should be trained in the law of nations. 

As the result of an elaborate investigation it has been ascertained 
that international law is not taught universally in law schools, and 
indeed that it is omitted from the courses of many of them. The Con- 
gress therefore supplements its general recommendations as to the 
value and advisability of an adequate knowledge of international law 
by earnestly recommending that courses of international law be offered 
in law schools which at present do not have thorough courses in that 
subject. 

Article 29 [Resolution No. 12} 

The Second Pan American Scientific Congress regards it as 
highly desirable, upon the initiative of institutions where instruc- 
tion in international law is lacking, to take steps toward providing 
such instruction by visiting professors or lecturers, this instruc- 
tion to be given in courses, and not in single lectures, upon sub- 
stantive principles, not upon popular questions of momentary 
interest, and in a scientific spirit, not in the interest of any propo- 
ganda. 

It is of course one thing to know the defect and another to provide 
the adequate remedy. In previous recommendations the Congress 
has urged that international law be taught in the universities of the 
Americas, and more especially in the law schools thereof, that interna- 
tional law be placed upon a plane of equality with other branches of 
law and of political science and that special departments be created for 
its teaching and study. 

But it may be difficult or embarrassing to provide courses of instruc- 
tion in the way previously recommended. Therefore the Congress, 
looking through the form to the substance, recommended it as par- 
ticularly desirable that instruction should be given in international law 
by visiting professors or lecturers, when for one reason or another it 
should be found inconvenient or impossible to establish professorships 
and departments of international law. The Congress, however, recog- 
nizes the fact, patent to all persons interested in education, that single 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 39 

lectures on isolated subjects upon matters of momentary interest are 
not calculated to impart a knowledge of or to create an interest in the 
law of nations. Therefore, the Congress urges that courses of lec- 
tures, instead of single lectures, be given and that these courses be de- 
voted to the exposition of substantive principles of international law, 
not to the elucidation, however interesting, of popular questions of 
passing interest. Above and beyond all, the Congress urges that the 
courses of instruction be permeated with the scientific spirit and not 
conceived in the interest of any propaganda, which, it is feared, would 
be detrimental to a scientific method and would fail of its purpose to 
incline the minds and the hearts of the students to the propaganda even 
if it were attempted so to do. 

Article 30 [Resolution No. 14] 

The Second Pan American Scientific Congress recommends 
the establishment and encouragement in institutions of specialized 
courses in preparation for the diplomatic and consular services. 

The need of international law for the diplomatic service has already 
been mentioned, although briefly and in passing, but the Congress felt 
that this subject was one of such grave importance that it should not 
be passed over in silence. Therefore, Article 30 deals with prepara- 
tion for the diplomatic and consular services and urges the establish- 
ment and encouragement of specialized courses to render the services 
more valuable, both to those who make of them a career and to the 
countries to which they belong. 

The place which international law occupies in the outfit of a diplo- 
mat and in the daily duties of a consul is evident upon the merest 
consideration of their functions, so evident indeed as not to require 
special mention. And yet, in view of the fact that international law 
is largely a thing of usage and custom, that diplomatic incidents have 
entered into and form such a large part of the system, and that the 
question of peace and of war has so often depended upon the mastery 
of international law by diplomats and ministers of foreign affairs, it 
seems necessary to enlarge upon the importance of the subject, even 
although it be unnecessary to enter into details. And what has been 
said of the diplomatic applies in no less a degree to the consular 
service; for as the diplomatist deals largely with what may be called 
political questions pending between the different countries, the consul 



40 RECOMMENDATIONS ON INTERNATIONAL LAW 

handles the great commercial questions which so intimately concern 
the prosperity of nations. 

The Congress did not feel justified in recommending that training 
in international law should be a prerequisite to admission to the diplo- 
matic and consular services, because this is a political question and 
one which each country must necessarily determine for itself. In 
recommending, however, specialized courses in preparation for the 
services in question, it expressed in no uncertain terms the advisability 
of a thorough knowledge of international law for any and all persons 
in the Americas who might think of making of the diplomatic or con- 
sular service a career. 

Article 31 [Resolution No. 15] 

The Second Pan American Scientific Congress advises that the 
study of international law be required in specialised courses in 
preparation for business. 

Perhaps the Congress stated most unequivocally its appreciation 
and conviction of the advantages of a training in international law in 
the present paragraph, which is the shortest of the articles dealing 
with this topic, and which, looking away from the special uses which 
might be made of international law, declares that "the study of in- 
ternational law be required in specialized courses in preparation for 
business." 

Article 32 

The Second Pan American Scientific Congress urges that in the 
study and teaching of international law in American institutions 
of learning special stress be laid upon problems affecting the 
American republics and upon doctrines of American origin. 

Heretofore the desirability of a training in international law has 
been stated in general and with reference to particular callings in terms 
applicable alike to Europe and Asia as well as to the Americas, but in 
Article 32 the Congress recognizes, without attempting to enter into 
detail or to specify them, that there are problems affecting the Ameri- 
can republics which do not of necessity affect other countries, or 
which do not affect them in the same way or to the same extent. At 
the same time it recognizes, without stating or defining them, that 
there are what may be called doctrines of American origin. 

Regarding these problems and these doctrines the Congress makes 
a very simple, a very specific and a very wise recommendation, namely, 
that, by reason of the effect which these problems have upon American 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 41 

countries and by reason of the American origin of certain doctrines, 
special stress should be laid upon them in all courses of international 
law offered in American institutions. 

The recommendation of the Congress accords with the views of 
American publicists as expressed in the Constitution of the American 
Institute of International Law, which is the object of the next article, 
and in the constitutions of the societies of international law which 
happily exist in every American republic. A single example will suf- 
fice. Thus, Article 2 of the Constitution of the American Institute of 
International Law states the purpose of this body to be "to study 
questions of international law, particularly questions of an American 
character, and to endeavor to solve them, either in conformity with 
generally accepted principles, or by extending and developing them, 
or by creating new principles adapted to the special needs of the Amer- 
ican continent." 

This article has the advantage of stating the point of approach to 
American problems and questions and proposes a method of solving 
them. 

Article 33 

The Second Pan American Scientific Congress extends to the 
American Institute of International Law a cordial welcome into 
the circles of scientific organizations of Pan America, and records 
a sincere wish for its successful career and the achievement of 
the highest aims of its important labors. 

The welcome extended by the Congress to the American Institute of 
International Law was the culmination of a remarkable series of 
resolutions adopted by legal, political, and scientific assemblies offi- 
cially representing all of the American republics, because, as will be 
seen, the Pan American Union tendered a vote of commendation and 
encouragement shortly before the meeting of the Congress to the 
founders and members of the Institute, and the Commission of Ameri- 
can Jurists, assembled at Rio de Janeiro to consider the codification 
of international law, adopted on July 16, 1912, a resolution, "com- 
mending the initiative taken to found an American Institute of Inter- 
national Law, as the Committee considers an institution of this kind 
of great usefulness to assist in the work of codification that the states- 
men of the New World have in view." 

It is difficult to explain the origin and development of the American 
Institute of International Law in briefer and more apt terms than 



42 RECOMMENDATIONS ON INTERNATIONAL LAW 

those employed by His Excellency, the Chilean Ambassador, Sr. Dr. 
Eduardo Suarez Mujica, the President of the Congress, who, at the 
meeting of the Governing Board of the Pan American Union, held on 
December 1, 1915, moved a resolution of encouragement to the foun- 
ders of the Institute, and who, in the remarks upon his motion, unani- 
mously carried by the Governing Board, spoke as follows : 

As my colleagues are undoubtedly aware, in October, 1912, the 
foundations were laid in Washington for an organization of a 
most interesting character. Under the auspices of the prominent 
internationalists of the whole world, under the honorary presi- 
dency and the wise counsel of the ex-Secretary of State and dis- 
tinguished North American statesman, Mr. Elihu Root, and 
through the unremitting and intelligent effort of two men of 
action and scholars, well known to the international world, Messrs. 
James Brown Scott and Alejandro Alvarez, there was born into 
the realm of scientific life the American Institute of Interna- 
tional Law, the object of which is, briefly stated, to combine and 
utilize, through a central organization in Washington and the 
cooperation of affiliated or corresponding associations in all the 
other American nations, the intellectual efforts of jurists and 
thinkers of the continent, for the development of international 
law, the generalization of its principles, and the adoption of a 
common standard to ensure the enforcement of law and justice 
among the countries of the New World. 

The corresponding or affiliated associations have already been 
organized in eighteen out of the twenty-one American republics, 
and steps are being taken to constitute the other three. 

International law is not the patrimony of a single nation. It is 
the law of all nations, and must therefore be formed and assented 
to by all; and thus the cooperation of nations is essential to its 
enactment or amendment. Hence the enormous importance of an 
organization having a brain and a voice in every one of the nations 
of America, whose action must be the fruit of continental thought. 

Such an organization embodies, I believe, one of the most 
powerful auxiliaries for progress and civilization in the Americas, 
and for the permanent maintenance of peace from one end to the 
other of their frontiers. Such an organization deserves, without 
doubt, the good will of the peoples and governments of the conti- 
nent, which we represent here. 

During the month commencing to-day the Second Pan American 
Scientific Congress is to meet in Washington, and one of the 
most important events that are to take place during its sessions 
is the official, solemn inauguration, under the auspices of the 
Congress, of the American Institute of International Law. I 
believe this is a fitting occasion on which to offer a vote of com- 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 43 

mendation and encouragement for this work of common interest 
to our countries a vote which I hope will be accepted by all 
and therefore I have the honor to submit for the approval of the 
board the following resolution : 

Considering that the official inauguration of the American In- 
stitute of International Law, founded in Washington October 12. 
1912, is soon to take place under the auspices of the Second Pan 
American Scientific Congress; and 

Considering that said Institute, consisting of representatives of 
every one of the American republics, recommended by the Inter- 
national Law Associations of their respective countries, will result 
in strengthening, through the active cooperation of jurists and 
thinkers of the whole continent, the bonds of friendship and union 
now existing between these republics, and will contribute to the 
development of a common sentiment of international justice 
among them, the Governing Board of the Pan American Union, 

Resolves, To tender to the founders and members of the Ameri- 
can Institute of International Law a vote of commendation and 
encouragement for the foundation of said organization, which 
represents a step of the highest importance in the moral advance- 
ment of the continent and in the strengthening of the sentiments 
of friendship and harmony among the republics. 

Since the date of His Excellency's address and motion, which was 
warmly seconded by Honorable Robert Lansing, Secretary of State 
of the United States, and unanimously carried, societies of interna- 
tional law have been formed in the three American republics, where 
they were then lacking so that on the opening of the Congress a 
national society of international law existed in the capital of every 
American state. The Institute is composed of five members from each 
of the twenty-one national societies, recommended by the societies for 
membership in the Institute. 

It is proper to say, before leaving this subject, that His Excellency, 
the President of the Congress, is himself a member of the Institute 
and that the members from the United States are: Honorable Robert 
Bacon, formerly Secretary of State of the United States and Ambassa- 
dor to France ; Honorable Robert Lansing, Secretary of State of the 
United States ; Honorable Elihu Root, formerly Secretary of State of 
the United States and always a friend of the Americas; Dr. Leo S. 
Rowe, Professor of Political Science in the University of Pennsyl- 
vania and personally known and appreciated in Latin America through 
his repeated visits to all the American countries; and James Brown 
Scott, Esquire, Secretary of the Carnegie Endowment for Interna- 



44 RECOMMENDATIONS ON INTERNATIONAL LAW 

tional Peace and Chairman of the Joint State and Navy Neutrality 
Board of the United States. 

It is proper also to add, in this connection, that the American Insti- 
tute met in connection with and under the auspices of the Congress, 
that it was formally opened on December 29, 1915, and welcomed by 
the Honorable Robert Lansing, on behalf of the Government of the 
United States, by His Excellency, the Chilean Ambassador, on behalf 
of the Congress, of which he was President, and by the Honorable 
Elihu Root, on behalf of American publicists. It completed its or- 
ganization by admitting the five members from each national society 
and selected the following officers: Honorary President, Elihu Root; 
President, James Brown Scott; Secretary General, Alejandro Alvarez; 
Treasurer, Luis Anderson. 

On the 3d of January, 1916, the Honorable Robert Lansing, Secre- 
tary of State of the United States, addressed a letter to the President 
of the Institute, requesting it to consider the matter of neutrality, 
from which very important letter the following passage is quoted : 

I would, therefore, suggest that a committee be appointed to 
study the problem of neutral rights and neutral duties seeking 
to formulate in terms the principle underlying the relations of 
belligerency to neutrality rather than the express rules governing 
the conduct of a nation at war to a nation at peace. 

I would further suggest that the subject might be advanta- 
geously divided into two parts, namely, the rights of neutrals on 
the high seas, and the duties of neutrals dependent upon terri- 
torial jurisdiction. 

In view of the past year and a half of war the present time 
seems particularly opportune to study this question and this Insti- 
tute being composed of members from neutral nations is especially 
fitted to do this from the proper point of view and with the 
definite purpose of protecting the liberty of neutrals from unjusti- 
fiable restrictions on the high seas and from the imposition of 
needless burdens in preserving their neutrality on land. 

Three days later the Institute adopted a Declaration of the Rights 
and Duties of Nations, based upon the political philosophy of the 
Declaration of Independence of the United States, and the practice 
of the American republics. Inasmuch as the Institute was formally 
welcomed by the President of the Congress, held its sessions in con- 
nection with and under the auspices of the Congress, and that the 
members of the Institute were likewise delegates to the Congress and 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 45 

participated in its labors, it is advisable to include the text of the 
Declaration accompanied by a resume of the elaborate commentary 
which explains it. The text of the Declaration therefore follows: 

Whereas, the municipal law of civilized nations recognizes 
and protects the right to life, the right to liberty, the right to 
the pursuit of happiness, as added by the Declaration of Inde- 
pendence of the United States of America, the right to legal 
equality, the right to property, and the right to the enjoyment of 
the aforesaid rights; and 

Whereas, these fundamental rights, thus universally recognised, 
created a duty on the part of the peoples of all nations to observe 
them; and 

Whereas, according to the political philosophy of the Declara- 
tion of Independence of the United States, and the universal prac- 
tice of the American republics, nations or governments are re- 
garded as created by the people, deriving their just powers from 
the consent of the governed, and are instituted among men to 
promote their safety and happiness and to secure to the people 
the enjoyment of their fundamental rights; and 

Whereas, the rights and duties of nations are, by virtue of 
membership in the society of nations, exercised and performed 
conformably to the requirements of the solidarity uniting the 
members of the society of civilized nations, recognized by the 
First Hague Peace Conference in 1899, and reaffirmed by the 
Second Hague Peace Conference in /po/; and 

Whereas, the nation is a moral or juristic person, the creature 
of law, and subordinated to law as is the natural person in political 
society; and 

Whereas, we deem that these fundamental rights can be stated 
in terms of international law and applied to the relations of the 
members of the society of nations, one with another, just as they 
have been applied in the relations of the citizens or subjects of 
the states forming the society of nations; and 

Whereas, these fundamental rights of national jurisprudence, 
namely, the right to life, the right to liberty, the right to the pur- 
suit of happiness, the right to equality before the law, the right 
to property, and the right to the observance thereof are, when 
stated in terms of international law, the right of the nation to 
exist and to protect and to conserve its existence; the right of 
independence and the freedom to develop itself without interfer- 
ence or control from other nations; the right of equality in law and 
before law; the right to territory within defined boundaries and 
to exclusive jurisdiction therein; and the right to the observance 
of these fundamental rights; and 



46 RECOMMENDATIONS ON INTERNATIONAL LAW 

Whereas, the rights and duties of nations are, by virtue of 
membership in the society thereof, to be exercised and performed 
in accordance with the exigencies of their mutual interdependence 
expressed in the preamble of the Convention for the pacific settle- 
ment of international disputes of the First and Second Hague 
Peace Conferences, recognizing the solidarity which unites the 
members of the society of civilized nations; 

Therefore, The American Institute of International Law, at 
its first session, held in the City of Washington, in the United 
States of America, on the sixth day of January, 1916, adopts the 
following six articles, together with the commentary thereon, to be 
known as its Declaration of the Rights and Duties of Nations: 

I. Every nation has the right to exist, and to protect and to 
conserve its existence ; but this right neither implies the right 
nor justifies the act of the state to protect itself or to conserve 
its existence by the commission of unlawful acts against inno- 
cent and unoffending states. 

II. Every nation has the right to independence in the sense 
that it has a right to the pursuit of happiness and is free to 
develop itself without interference or control from other states, 
provided that in so doing it does not interfere with or violate 
the rights of other states. 

III. Every nation is in law and before law the equal of every 
other nation belonging to the society of nations, and all nations 
have the right to claim and, according to the Declaration of 
Independence of the United States, "to assume, among the 
powers of the earth, the separate and equal station to which 
the laws of nature and of nature's God entitle them." 

IV. Every nation has the right to territory within defined 
boundaries, and to exercise exclusive jurisdiction over its terri- 
tory, and all persons whether native or foreign found therein. 

V. Every nation entitled to a right by the law of nations is 
entitled to have that right respected and protected by all other 
nations, for right and duty are correlative, and the right of one 
is the duty of all to observe. 

VI. International law is at one and the same time both national 
and international; national in the sense that it is the law of 
the land and applicable as such to the decision of all questions 
involving its principles ; international in the sense that it is the 
law of the society of nations and applicable as such to all ques- 
tions between and among the members of the society of nations 
involving its principles. 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 47 

I. Every nation has the right to exist, and to protect and to 
conserve its existence; but this right neither implies the right 
nor justifies the act of the state to protect itself or to conserve 
its existence by the commission of unlawful acts against inno- 
cent and unoffending states. 

The official commentary states that this right and duty is to be 
understood as interpreted (a) by the Chinese Exclusion Case (reported 
in 130 United States Reports, pp. 581, 606), decided by the Supreme 
Court of the United States in 1888, holding that to preserve its inde- 
pendence and give security against foreign aggression and encroach- 
ment is the highest duty of every nation, and to attain these ends 
nearly all other considerations are to be subordinated; (b) by the case 
of Regina v. Dudley (reported in 15 Cox's Criminal Cases, p. 624; 
14 Queen's Bench Division, p. 273), decided by the Queen's Bench 
Division of the High Court of Justice in 1884, to the effect that it was 
unlawful for shipwrecked sailors to take the life of one of their num- 
ber, in order to preserve their own lives, because it was unlawful ac- 
cording to the common law of England for an English subject to 
take human life, unless to defend himself against an unlawful attack 
of the assailant threatening the life of the party unlawfully attacked ; 
(c) by Bello in his Principles de Derecho de Jentes, pt. 1, chap. 1, 7, 
edition of 1832, and by Calvo in his Droit International Theorique et 
Pratique, 5th ed., vol. i, 208. 

II. Every nation has the right to independence in the sense 
that, it has a right to the pursuit of happiness and is free to 
develop itself without interference or control from other states, 
provided that in so doing it does not interfere with or violate 
the rights of other states. 

III. Every nation is in law and before law the equal of every 
other nation belonging to the society of nations, and all nations 
have the right to claim and, according to the Declaration of- 
Independence of the United States, "to assume, among the 
powers of the earth, the separate and equal station to which 
the laws of nature and of nature's God entitle them." 

The rights and duties of independence and of equality stated in 
Articles 2 and 3 are, according to the official commentary, to be under- 
stood as interpreted 

(a) By Sir William Scott in the case of The Louis (reported in 2 
Dodson's Reports, pp. 210, 243-44), decided in 1817, in which he said: 



48 RECOMMENDATIONS ON INTERNATIONAL LAW 

"Two principles of public law are generally recognized as fundamental. 
One is the perfect equality and entire independence of all distinct 
states." 

(b) By Chief Justice Marshall in the case of The Antelope (reported 
in 10 Wheaton's Reports, pp. 66, 122), decided by the Supreme Court 
of the United States in 1825, who said : "No principle of general law 
is more universally acknowledged, than the perfect equality of nations. 
Russia and Geneva have equal rights. It results from this equality, 
that no one can rightfully impose a rule on another. Each legislates 
for itself, but its legislation can operate on itself alone." 

(c) By Honorable Elihu Root, in his address before the Third Pan 
American Conference held at Rio de Janeiro on July 31, 1906; 

(d) By Bello in his Principios de Derecho de Jentes, pt. 1, chap. 1, 
7, and 

(e) By Calvo in his Droit International Theorique et Pratique, 5th 
ed., vol. i, 208. 

IV. Every nation has the right to territory within defined 
boundaries, and to exercise exclusive jurisdiction over its terri- 
tory, and all persons whether native or foreign found therein. 

This right and duty are, according to the official commentary, to be 
understood in the sense in which they were interpreted by Chief 
Justice Marshall in the case of the schooner Exchange (reported in 
7 Cranch's Reports, pp. 116, 136-7), decided by the Supreme Court of 
the United States in 1812, who said: 

The jurisdiction of the nation, within its own territory, is 
necessarily exclusive and absolute; it is susceptible of no limita- 
tion, not imposed by itself. * * * 

A nation would justly be considered as violating its faith, al- 
though that faith might not be expressly plighted, which should 
suddenly and without previous notice, exercise its territorial 
powers in a manner not consonant to the usages and received obli- 
gations of the civilized world. 

V. Every nation entitled to a right by the law of nations is 
entitled to have that right respected and protected by all other 
nations, for right and duty are correlative, and the right of one 
is the duty of all to observe. 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 49 

This right is to be understood in the sense in which it was stated 
and defined by Chief Justice Waite in the case of United States v. 
Arjona (reported in 120 United States Reports, pp. 479, 487), decided 
by the Supreme Court of the United States in 1886, who said: 

But if the United States can require this of another, that other 
may require it of them, because international obligations are of 
necessity reciprocal in their nature. The right, if it exists at all, 
is given by the law of nations, and what is law for one is, under 
the same circumstances, law for the other. A right secured by the 
law of nations to a nation, or its people, is one the United States 
as the representatives of this nation are bound to protect. 

VI. International law is at one and the same time both 
national and international; national in the sense that it is the 
law of the land and applicable as such to the decision of all 
questions involving its principles; international in the sense 
that it is the law of the society of nations and applicable as such 
to all questions between and among the members of the society 
of nations involving its principles. 

The relation of international to national law is to be understood (1) 
in the sense in which the relationship is stated by Mr. Justice Gray in 
the case of the Paquete Habana, quoted on page 33 under Article 25 
of this report; and (2) in the sense of the official commentary, accord- 
ing to which international law is to be regarded as a part of the law 
of the American countries and is to be applied as national law by their 
courts, and to be also applied by the respective republics in their rela- 
tions one with another. 

The spirit which should animate the American republics is, accord- 
ing to the official commentary, the following statement by Daniel 
Webster, written as Secretary of State: 

Every nation, on being received, at her own request, into the 
circle of civilized governments, must understand that she not only 
attains rights of sovereignty and the dignity of national character, 
but that she binds herself to the strict and faithful observance of 
all those principles, laws, and usages which have obtained cur- 
rency among civilized states, and which have for their object the 
mitigation of the miseries of war. 

Before adjournment on the 8th day of January, 1916, the Institute 
was invited to hold its next session in Havana as the guest of the 



50 RECOMMENDATIONS ON INTERNATIONAL LAW 

Cuban Government, an invitation calculated to encourage its members 
to be worthy of the invitation which was so graciously and so unex- 
pectedly tendered it. 

Article 34 

The Second Pan American Scientific Congress recommends to 
all educational establishments of America the special study of the 
constitutions, laws, and institutions of the republics of this con- 
tinent. 

It is difficult to comment upon the simple recommendation of the 
Congress that the constitutions, laws and institutions of the republics 
of this continent be made the subject of special study in all educational 
establishments of America. The importance of it is evident and, in 
the happy expression of a distinguished English judge, it can only be 
obscured by argument. And yet the advantages that would accrue 
from a knowledge of the constitutions, laws and institutions of the 
republics of this continent are so manifold that it would seem to be a 
sign of indifference if they were not dwelt upon. 

The western world was an accidental discovery and the continent 
has been, without exception, the land of experiments. Starting with- 
out the traditions of the old world, it has been the laboratory of mod- 
ern political thought. The experiment of republican, that is to say 
democratic, government has been tried in the western hemisphere upon 
a larger and broader scale than ever before in the world's history, 
and the experience had with democratic government has been such as 
to endear it to the hearts and to commend it to the intelligence, not 
merely of Americans as such but to the enlightened throughout the 
world. The specific advantage that would accrue to American peoples 
by the study of their respective constitutions and of their laws and of 
their institutions is that each would be able to profit by the experiments, 
and by the departures in political life and thought of each of the coun- 
tries, and by appropriating the innovations which have proved success- 
ful and by modifying them to meet special conditions they would be 
able to add to their own happiness and to increase the heritage of their 
offspring. 

Article 35 

The Second Pan American Scientific Congress recommends to 
the various universities of the American republics that a compar- 
ative study of judicial institutions be undertaken in order 

(a) To create special interest therein in the several countries 
of the continent; 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 51 

(b) To facilitate the knowledge and solution of problems of 
private international law in the American countries; and 

(c) To bring about as far as possible uniformity in jurispru- 
dence and legislation. 

Articles 23-33 dealt with international law. Article 34 forsook 
international law and urged the desirability of a knowledge and study 
of the constitutions, laws and institutions of the western world. Arti- 
cle 35, without returning to international law, nevertheless narrows the 
field of its recommendation and commends the study not merely of in- 
stitutions as such and of all institutions of the American countries but 
the comparative study of judicial institutions, in the hope if not in 
the belief that such a comparative study would create special interest 
therein in the several countries of the continent and redound to the bene- 
fits of each one thereof. A question of very great importance and of 
equal difficulty is that of the conflict of laws, very frequently called pri- 
vate international law. The great difficulty in this subject is that coun- 
tries deriving their systems of law from England have adopted the prin- 
ciple of domicile, whereas the countries drawing their inspiration and 
their systems of law from the civil law of Rome are inclined to the 
principle of nationality. The conflict between the two is evident and 
as it is one of principle it is difficult of compromise. Nevertheless, 
the Congress recommends the solution of problems of this nature, and 
ventures a step further in the field of jurisprudence by recommending 
as far as possible uniformity in legislation as well as in jurisprudence. 
Whether it would be possible to reach a working compromise in the 
domain of international private law, and whether it would be possible 
to secure in any considerable degree uniformity of legislation and of 
jurisprudence in the various countries, it can not be gainsaid that it is 
the goal that we of the Americas should have before our eyes. If it 
be solved the triumph is greater, because of the difficulties, and per- 
haps a very desire to solve the problems may, with good will, much 
patience and infinite tact, overcome many if not all of the obstacles 
which stand in the way of the realization of this counsel of perfection 
which the Congress recommends. 

Article 36 

The Second Pan American Scientific Congress, in order to 
broaden the outlook and to bring into closer contact the members 
of the legal profession, urges that the bar association exchange 
among themselves: 



52 RECOMMENDATIONS ON INTERNATIONAL LAW 

(a) Law books and publications affecting the legal profession 
and the practice of law. 

(b) New codes of law and rules of procedure as they are here- 
after published. 

It was natural that the recommendations in Section VI dealing with 
international law, public law and jurisprudence should cover a very 
broad field, and that some of them, going beyond the subject-matter, 
should not merely refer to subjects of international law, of public law, 
or of jurisprudence, but should suggest that the persons following 
these various callings regard themselves as bound by the ties of their 
profession and that, if they were unable to meet personally, there 
should nevertheless be an exchange of ideas, of ideals, and of the 
things of the spirit. Therefore, in order to raise the standard, if pos- 
sible, of the legal profession in all parts of the Americas, the Congress 
urged that the bar associations made up of the votaries of law should 
exchange among themselves law books and publications affecting the 
legal profession and the practice of law ; for it was recognized that, 
without this, they would stand as it were in isolation but that with this 
exchange there would be developed, little by little, a common knowl- 
edge, a common standard, a broader outlook and a feeling of mutual 
dependence and respect. This recommendation, seemingly broad, is 
in reality narrower than that contained in the final paragraphs of the 
article, because in the one lawyers as such are affected whereas in the 
other not only lawyers but men of affairs are included, because it is 
of advantage to men engaged in business extending beyond the con- 
fines of their country to have the codes of law in their hands and to be 
familiar with the rules of procedure, lest through ignorance and neg- 
lect their feet become entangled in the meshes of foreign law. Of 
course, neither codes nor rules of procedure can dispense with the law- 
yer, for we must needs have a professional class devoting itself to the 
interpretation and the application of laws ; and yet the codes and rules 
of procedure would often prevent the commission of a mistake, and 
their very presence and their very difficulty would urge the taking of 
advice of the profession before it is too late. 

The recommendations of Section VI as a whole aim to make inter- 
national law a thing of flesh and blood, a living organism, as necessary 
to nations in their mutual intercourse as is national law to individuals in 
political society ; to impart to the peoples of the Americas a knowledge 



COMMENTARY OF SECOND PAN AMERICAN SCIENTIFIC CONGRESS 53 

of the constitutions, laws and institutions of the republics of our be- 
loved continent ; to strive for uniformity both in the framing and in the 
interpretation of laws, in so far as this may be possible, and by broad- 
ening the legal profession and bringing its members into correspon- 
dence, if not into actual personal touch, to create a community of ideals, 
to raise the standard of the profession in all the Americas and to make 
it worthy of the trust and confidence which it has enjoyed and without 
which its members can not render effective service. 



UNIVERSITY OF CALlrOi^- f . 
SANTA BARBARA COLLEGE LIBRARY 



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/ 



UNIVERSITY OF CALIFORNIA 

Santa Barbara College Library 
Santa Barbara, California 



Return to desk from which borrowed. 
I 1 1 v5 This book is DUE on the last date stamped below. 




LD 21-10m-10,'48 
(Blllls4)476 








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