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II.2.270 (THE BUSTAMANTE CODE) CONVENTION ON PRIVATE INTERNATIONAL LAW, 1928

The Ratification of Maritime Conventions

Chapter I.2.270

CONVENTION ON PRIVATE INTERNATIONAL LAW (BUSTAMANTE CODE), 1928

ADOPTED: Done at Havana, 20 February 1928
REFERENCE: 86 LNTS 111
ENTERED INTO FORCE: 25 November 1928
DEPOSITARY: Ministry of State of Cuba
SECRETARY: OAS General Secretariat

IMPLEMENTATION

SIGNATURE, RATIFICATION AND ACCESSION

Article V

The ratification shall be deposited in the office of the Pan American Union, which shall transmit a copy thereof to each of the contracting Republics.

Article VI

Non-contracting States or international juristic persons desiring to adhere to this convention, and in whole or in part to the annexed Code, shall notify the office of the Pan American Union, which in its turn shall inform all the existing contracting or adhering States. Six months thereafter the State or international juristic person interested may deposit in the office of the Pan American Union the instrument of adherence, and shall be reciprocally bound by this Convention thirty days after the adherence with regard to all those governed thereby who have not made within that period any reservation concerning the requested adherence.

ENTRY INTO FORCE

Article IV

The Code shall go into force, for the Republics which ratify it, thirty days after the deposit of the respective ratification, provided it has been ratified by at least two of them.

DENUNCIATION

Article VIII

If any of the contracting or adhering international juristic persons should wish to denounce the present convention, it shall notify the denunciation in writing to the office of the Pan American Union, which shall immediately transmit a certified literal copy of the notification to the others, informing them of the date on which it was received.

The denunciation shall take effect only in respect to the contracting party which has notified it, and a year after it has been received in the office of the Pan American Union.

RESERVATIONS

Article III

Each one of the contracting Republics, when ratifying the present convention, may declare that it reserves acceptance of one or more articles of the annexed Code, and the provisions to which the reservation refers shall not be binding upon it.

AMENDMENT

Article VII

Any American Republic bound by this convention which desires to modify in whole or in part the annexed Code shall present the corresponding proposal to the International Conference of American States for the proper resolution.

DECLARATIONS AND RESERVATIONS

Argentina

Reservation made at the time of signature:

The Argentine Delegation places on record the following reservations which it formulates to the project of Convention of Private International Law, submitted to the consideration of the Sixth International Conference of American States:

1. It understands that the codification of Private International Law should be “gradual and progressive”, especially as regards institutions which present in the American Republics identical or analogous fundamental features.

2. It ratifies the force of the Treaties of International Civil Law, of International Penal Law, of International Commercial Law and of International Procedural Law, approved at Montevideo in the year 1889, with their respective Conventions and Protocols.

3. It does not accept principles which modify the “law of domicile”, especially as regards everything which opposes the text and spirit of Argentine civil legislation.

4. It does not approve provisions affecting directly or indirectly the principle upheld by the civil and commercial legislation of the Argentine Republic to the effect that “juristic persons owe their existence exclusively to the law of the State which authorizes them and are therefore neither national nor foreign; their functions are determined by said law, in acccordance with the precepts derived from the ‘domicile’ which that law acknowledges to such persons.”

5. It does not accept principles which admit or tend to approve divorces ad vinculum.

6. It accepts the system of the “unity of successions” with the limitation derived from the lex rei sitae as regards immovable property.

7. It accepts all principles tending to acknowledge in favor of women the same civil rights granted to adult males.

8. It does not approve those principles modifying the doctrine of jus soli as a means of acquiring nationality.

9. It does not accept precepts solving conflicts of “dual nationality” in a manner prejudicial to the exclusive application of jus soli.

10. It does not accept rules authorizing the intervention of diplomatic or consular agents in inheritance proceedings concerning foreigners, except such principles as have already been established in the Argentine Republic regulating such intervention.

11. As regards the regulation of bills of exchange and checks in general, it accepts no provisions which may modify the criteria accepted in previous world conferences, such as those of The Hague of 1919 and 1912.

12. It makes specific reservation of the application of the “law of the flag” to questions relating to maritime law, especially as regards the charter party and its legal effect, as it considers that these should be subject to the law and jurisdiction of the country of the port of destination.

This principle was successfully upheld by the Argentine branch of the International Law Association, at its 31st Session and is now one of the “Buenos Aires rules”.

13. It reaffirms the principle that offenses committed on air-ships within the national aerial domain or on foreign merchant ships should be tried and punished by the authorities and the laws of the States where such ships may be found.

14. It ratifies the thesis, approved by the American Institute of International Law at its session of 1927 in Montevideo, to the effect that “the nationality of the accused cannot be invoked as a ground for refusing his extradition.”

15. It does not accept the principles regulating international labour questions on the juridical status of labourers, for the reasons it submitted at the sessions of the International Commission of Jurists of Rio de Janeiro in 1927, when Article CXCVII of the Project of Convention of International Civil Law was being discussed.

The Argentine Delegation reiterates what it has heretofore declared at the meetings of Committee No. 3 that it ratifies in the Sixth International Conference of American States the votes cast and the attitude assumed by the Argentine Delegation at the sessions of the International Commission of Jurists held in Rio de Janeiro during the months of April and May, 1927.

Bolivia

Reservations made at the time of ratification:

With the reservations formulated by the Bolivian Delegation, with respect to articles not in accord with the legislation of the country and international treaties signed by Bolivia.

Brazil

Reservation made at the time of signature:

The substitute amendment it proposed to Article LIII having been rejected, the Delegation of Brazil withholds its approval of Article LII, which gives jurisdiction to the law of the matrimonial domicile for regulating separation and divorce; and likewise to Article LIV.

Reservations made at the time of ratification:

With the reservations made at the time of signature.

Chile

Declaration made at the time of signature:

The Delegation of Chile is pleased to offer its warmest congratulations to the eminent and learned jurist of America, Dr. Antonio Sanchez de Bustamante, for the great work he has done in drafting a project of Code of Private International Law, destined to regulate the relations among the Republics of America. This work is a precious contribution to the furthering of juridical Pan Americanism, which all countries of the New World desire to see strengthened and developed. Although this great task of codification cannot be accomplished in a brief span of time, because it needs mature thought on the part of the States which are to participate in it, the Delegation of Chile will not be an obstacle to the approval of a Code of Private International Law by this Pan American Conference; but it will reserve its vote on such matters and questions as it may deem advisable, especially those points relating to the traditional policy or legislation of Chile.

Reservation made at the time of ratification:

With the reservation formulated by the Delegates of Chile, and also that, in Chilean law and with relation to conflicts that may appear between Chilean legislation and any foreign legislation, the provisions of the present or future legislation of Chile shall prevail over said Code, in case of disagreement.

Colombia, Costa Rica

Declarations made at the time of signature:

The Delegations of Colombia and of Costa Rica subscribe to the Code of Private International Law as a whole with the express reservation as to everything which may be in contradiction with the Colombian or Costa Rican legislations.

With respect to juristic persons, our view is that they should be subject to the local law as regards everything relating to their “concept and recognition”, as wisely provided by Article XXXII of the Code, in contradiction, — at least apparently — with other provisions thereof, such as Articles XVI to XXI.

For the undersigned Delegations, juristic persons cannot have any nationality either under scientific principles or in the view of the highest and most permanent interests of America. It would have been preferable that in this Code which we are going to enact, there should have been omitted everything which might serve to assert that juristic persons, particularly those with capital stock, have nationality.

The undersigned Delegations, upon accepting the compromise set forth in Article VII between the European doctrine of the personality of the law and the genuinely American doctrine of domicile for regulating the civil status and capacity of persons in private international law, declare that they accept this compromise in order not to delay the issuance of this Code, to which all the nations of America are looking forward as one of the most transcendental accomplishments of this Conference; but the subscribing Delegations emphatically assert that such a compromise should be transitory because juridical unity must be accomplished in the continent around the law of the domicile, the only one which effectively safeguards the sovereignty and independence of the peoples of America. Immigration countries, as these Republics are or will be, cannot but regard with the greatest concern that European immigrants should bring with them the pretension of invoking in America their own laws of origin, to determine here their civil status as to contractual capacity. To accept this possibility (which is sanctioned by the principle of national law, partially acknowledged in the Code), amounts to creating in America a State within a State and to placing ourselves almost under the capitulation regime which Europe imposed during centuries on the nations of Asia, which she considered as inferior in their international relations. The undersigned Delegations earnestly hope that very soon there will disappear from the American legislations all traces of theories (more political than legal) favoured by Europe in order to preserve her jurisdiction over her nationals, who have established themselves in these free lands of America, and they hope that the legislation of the Continent will be unified in accordance with the principles that subject alien immigrants to the unrestricted force of the local laws.

With the hope, therefore, that very soon the doctrine of the domicile will be the one to regulate in America the civil status and capacity of persons, and feeling assured that it will constitute one of the most characteristic aspects of juridical Pan Americanism, which we are all anxious to create, the undersigned Delegations vote in favor of the Code of Private International Law and accept the doctrinary compromise on which it is inspired.

As regards the provisions relative to divorce, the Delegation of Colombia formulates its unqualified reservation to the regulation of divorce by the law of the matrimonial domicile, because it considers that for such purpose and in view of the exceptionally transcendental and sacred character of marriage (basis of society and of the State itself) Colombia cannot accept the application within her territory of alien laws.

The subscribing Delegations also desire to record their enthusiastic admiration for the fruitful efforts of Dr. Sanchez de Bustamante which this Code embodies in its five hundred articles, formulated in clear-cut phrases, which can well serve as models for the legislators of all countries. From this day on Dr. Sanchez de Bustamante will not only be one of the most eminent sons of Cuba, but also one of the foremost citizens of the great American fatherland which can justly feel proud of raising egregious scientists and statesmen like the author of the Code of Private International Law which we have considered, and which the Sixth International Conference of American States is about to sanction on behalf of all the Americas.

Costa Rica (For reservation made at the time of signature see Colombia)

Reservations made at the time of ratification:

With the reservations made by the Delegation of Costa Rica, it being understood that such reservations refer not only to our present legislation but also to any future legislation.

Dominican Republic

Reservations made at the time of signature:

1. The Delegation of the Dominican Republic desires to maintain the supremacy of its national law in all questions relating to the status and capacity of the Dominicans wherever they may be, and for this reason it cannot accept, except with reservations, those provisions of the project of Code which accord supremacy to the “law of the domicile” or to the local law: all this not withstanding the conciliatory principle set forth in Article VII of the project and of which Article LIII of the same is an application.

2. As regards nationality, Title I, Book I, Article IX et sequa, we formulate a reservation with respect, first, to the nationality of juristic persons, and second, in a special manner, regarding the general principle of our political Constitution in accordance with which no other nationality shall be acknowledged to any Dominican citizen except that of the Dominican Republic as long as he resides in its territory.

3. With reference to the domicile of foreign juristic persons, whichever may be their charters and whatever the place where they may have established their domicile, wherever their principal office may be located, et cetera, we make reservation of the following principle of public order in the Dominican Republic: any physical or moral person conducting activities of a juridical nature within its territory shall have for its domicile the place where it keeps an establishment, an agency, or any representative whatsoever. This domicile attributes jurisdiction to the national tribunals in those juridical relations concerning acts which have taken place in the country, whatever their nature may be.

Reservation made at the time of ratification:

With the reservation made at the time of signature.

Ecuador

Declaration made at the time of signature:

The Delegation of Ecuador has the honor to subscribe in its entirety the Convention of the Code of Private International Law, in homage to Dr. Bustamante. It does not deem it necessary to set forth any reservation, preserving only the general power, provided in the Convention itself, which leaves the Governments at liberty to ratify it.

Reservation made at the time of ratification:

Insofar as it is not opposed to the Constitution and Laws of the Republic.

El Salvador

Reservations made at the time of signature:

First Reservation: Especially applicable to Articles XLIV, CXLVI, CLXXVI, CCXXXII, and CCXXXIII.

With respect to the incapacities to which aliens may be subjected in accordance with their personal law for disposing by will, for entering into contracts, for appearing in court, and for engaging in commerce or participating in commercial transactions or contracts, the reservation is made that said incapacities will not be acknowledged in El Salvador in cases where the transactions or contracts in question have been executed in Salvador without contravention of the Salvadorean law and to take effect within its national territory.

Second Reservation: Applicable to Article CLXXXVII, last paragraph.

As to community of property imposed upon spouses by their personal law under the legislation of a foreign state, it will be recognized in Salvador only if confirmed by contract between the interested parties and all requirements which the Salvadorean law now provides or may hereafter provide with respect to property located in El Salvador are complied with.

Third Reservation: Especially applicable to Articles CCCXXVII, CCCXXVIII, and CCCXXIX.

The Delegation of Salvador makes the reservation that in so far as Salvador is concerned the jurisdiction of foreign judges or tribunals in inheritance hearings and proceedings and in creditors’ suits and bankruptcy cases affecting immovables located in Salvador, will be unacceptable.

Reservations made at the time of ratification:

First Reservation: Especially applicable to Articles XLIV, CXLVI, CLXXVI, CCXXXII, and CCXXXIII.

With respect to the incapacities to which aliens may be subjected in accordance with their personal law for disposing by will, for entering into contracts, for appearing in court, and for engaging in commerce or participating in commercial transactions or contracts, the reservation is made that said incapacities will not be acknowledged in El Salvador in cases where the transactions or contracts in question have been executed in Salvador without contravention of the Salvadorean law and to take effect within its national territory.

Second Reservation: Applicable to Article CLXXXVII, last paragraph.

As to community of property imposed upon spouses by their personal law under the legislation of a foreign state, it will be recognized in Salvador only if confirmed by contract between the interested parties and all requirements which the Salvadorean law now provides or may hereafter provide with respect to property located in El Salvador are complied with.

Third Reservation: Especially applicable to Articles CCCXXVII, CCCXXVIII, and CCCXXIX.

The Delegation of Salvador makes the reservation that in so far as Salvador is concerned the jurisdiction of foreign judges or tribunals in inheritance hearings and proceedings and in creditors’ suits and bankruptcy cases affecting immovables located in Salvador, will be unacceptable.

Fourth Reservation: The Republic of El Salvador does not renounce its legislative power to prescribe in the future the laws or provisions that it believes convenient on the subjects of private international law contained in the Bustamante Code; and

Fifth Reservation: It considers the Convention on Private International Law as a body of juridical doctrine of great value in jurisprudence, but deems it to be as yet of insufficient force to prevail over the express provisions of the Salvadorean law in every matter in which that body of doctrine contradicts or modifies them.

This approval does not restrict the legislative power of El Salvador to prescribe in the future the laws or provisions that it believes convenient on the subjects of private international law contained in the Bustamante Code; and

In the event that the juridical doctrines contained in the said Convention are at variance with or modify in any way the laws of El Salvador, they shall not prevail over said laws.

Guatemala

Declaration made at the time of signature:

Guatemala has incorporated into its civil legislation the doctrine of domicile, but even if such were not the case, the conciliatory articles of the Code harmonize perfectly any conflict which might arise between different States due to their affiliation with diverse schools.

In consequence, therefore, the Delegation of Guatemala is in perfect accord with the method which, with so much wisdom, caution, ingenuity, and scientific judgment, is set forth in the Project of Code of Private International Law, and it desires to leave express record of its absolute acceptance of the latter without reservations of any kind.

Haiti

Reservations made at the time of ratification:

With reservations as to Articles CCCLXXXIII, CCCLXXXV, CCCLXXXVI, and CCCLXXXVII of said code.

Nicaragua

Declaration made at the time of signature:

The Republic of Nicaragua will be unable to apply the provisions of the Code of Private International Law which may be in conflict with the Canon Law in matters which now or in the future Nicaragua may consider to be subject to such Canon Law.

The Nicaraguan Delegation declares, as it has previously done several times verbally throughout the discussions, that some of the provisions of the approved Code are in disagreement with express provisions of the legislation of Nicaragua or with principles which form the basis of such legislation; but, as deserved homage to the notable work of the illustrious author of this Code, it chooses, instead of formulating the corresponding reservations, to make these declarations and to leave to the public authorities of Nicaragua the formulation of such reservations or the modification, as far as possible, of the national legislation, in cases of conflict.

Panama

Declaration made at the time of signature:

When casting its vote in favour of the Project or Code of Private International Law at the meeting of the Committee held on January 27th ultimo, the Delegation of the Republic of Panama stated that at an opportune time it would present such reservations as it might deem necessary, should the need arise.

This attitude of the Delegation of Panama was due to certain doubts it entertained with reference to the meaning and scope of some of the provisions contained in the Project, particularly as regards the application of the national law to foreigners residing in the country, as this would have given rise to a real conflict, because in the Republic of Panama ever since its establishment as an independent nation, the system of the territorial law has been in force. However, the Delegation of Panama considers that all the difficulties which could possibly arise in this delicate matter have been foreseen and wisely obviated by Article VII of the Project, in accordance with which “each contracting State shall apply as personal law that of the domicile or that of the nationality, or that which its domestic legislation may have prescribed or may hereafter prescribe”. As in the case of all other States subscribing and ratifying the Convention, Panama, therefore, will be at full liberty to apply its own law, which is the territorial law.

With matters so understood, it is highly gratifying for the Delegation of Panama to declare, as it does, that it extends its approval without reservations of any kind to the Project or Code of Private International Law, or Bustamante Code as it should be called in honor of its author.

Paraguay

Reservations made at the time of signature:

1. The Delegation declares that Paraguay maintains its adhesion to the Treaties of International Civil Law, International Commercial Law, International Penal Law, and International Procedural Law which were approved at Montevideo in 1888 and 1889, together with the Convention and Protocols attached thereto.

2. It does not agree to modify the system of the “law of the domicile”, sanctioned by the civil legislation of the Republic.

3. It maintains adhesion to the principle of its internal legislation that juristic persons owe their existence exclusively to the law of the State, which authorizes them and are, therefore, neither national nor foreign; their functions are determined by special law, pursuant to the principles arising from the domicile.

4. It accepts the system of the “unity of successions” with the limitation derived from the lex rei sitae as regards immovable property.

5. It is in accord with every principle tending to recognize in favor of women, the same civil rights conferred upon adult males.

6. It does not accept principles which may modify the system of jus soli as a means of acquiring nationality.

7. It does not agree to precepts which solve the problem of “dual nationality”, with prejudice to an exclusive application of the jus soli.

8. It adheres to the criteria, accepted in world conferences, relative to the regulation of bills of exchange and checks.

9. It makes a reservation as to the application of the “law of the flag” on matters relative to maritime law.

10. It agrees that crimes committed on airships within the aerial national domain, or on foreign merchant ships, should be tried by the courts of the State where such ships may happen to be.

Uruguay

Reservations made at the time of signature:

The Delegation of Uruguay formulates reservations to the end that its position be consistent with that held in the International Commission of Jurists at Rio de Janeiro by Doctor Pedro Varela, professor in the Faculty of Law at the University of Uruguay. At the same time the Delegation declares that Uruguay gives its approval to the Code as a whole.

United States

Reservation made upon approval of the Convention:

The Delegation of the United States of America regrets very much that it is unable at the present time to approve the Code of Dr. Bustamante, as in view of the Constitution of the United States of America, the relations among the States members of the Union and the powers and functions of the Federal Government, it finds it very difficult to do so. The Government of the United States of America firmly maintains its intention not to dissociate itself from Latin America, and therefore, in accordance with Article Six of the Convention which permits any Government to adhere later thereto, it will make use of the privilege extended by this article in order that, after carefully studying the Code in all its provisions, it may be enabled to adhere to at least a large portion thereof. For these reasons, the Delegation of the United States of America reserves its vote in the hope, as has been stated, of adhering partly or to a considerable number of the Code’s provisions.

Venezuela

Reservations made at the time of ratification:

Venezuela reserves acceptance of Articles XVI, XVII, XVIII, XXIV, XXXV, XXXIX, XLIII, XLIV, XLIX, L, LVII, LVIII, LXII, LXIV, LXV, LXVII, LXX, LXXIV, LXXXVII, LXXXVIII, CXXXIX, CXLIV, CLVII, CLXXIV, CCXLVII, CCXLVIII, CCCI, CCCXXIV, CCCXLVIII, CCCLX, CCCLXXVIII, and from CDXXIII to CDXXXV.

Since in Venezuela there is no life imprisonment, exception is taken concerning this point.

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