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plete surrender of local jurisdiction in favor of the foreign state, and in states conforming more closely to the highest type of civilized government, it consists in partial derogations from territorial jurisdiction in special classes of cases, e. g., consular jurisdiction in certain commercial disputes and over national merchant vessels. Fundamentally, these concessions are made to assure individuals the most appropriate regulative agency for their legal relations.
It is the obligation of every state to regard the citizens of other states as the subjects of legal rights, and to furnish the machinery for enforcing the rights granted by municipal law.
When the citizen leaves the national territory he enters the domain of international law. By residence abroad he does not merely carry with him certain rights and duties imposed by the municipal law of his own state, but he enters into a new sphere of mutual rights and obligations between himself as a resident alien and the state of his residence. By receiving the alien upon its territory, the state of residence admits the sovereignty of his national country and recognizes the bond which attaches him to it. A failure on his part to comply with his newly created obligations to the state of residence is met by repression and punishment in the local courts. On the other hand, a failure of the territorial state to fulfill its obligations toward the alien is met by repression on the part of his home state. The extent of these obligations toward the resident alien has been measured by international law and practice, though the very nature of repressive action has permitted the element of physical power and political expediency at times to obscure and even obliterate purely legal rights.
Legally, the measure of the obligation of the state of residence to resident aliens is the measure of the national state's right. The extent of the failure to fulfill the obligation, ordinarily known as the international responsibility of the state, is in exact proportion to the amount of diplomatic pressure or protection which the national state is authorized to interpose.
States are legal persons and the direct subjects of international law. They are admitted into the international community on condition that
Hall, W. E., Foreign powers and jurisdiction, Oxford, 1894, pp. 4-6. 2 Heilborn, op. cit., 75 et seq.
they possess certain essential characteristics, such as a defined territory, independence, etc. In addition, they must manifest their power to exercise jurisdiction effectively and, as will be seen presently, to assure foreigners within it of a minimum of rights. This minimum standard below which a state cannot fall without incurring responsibility to one or more of the other members of the international community has been shaped and established by the advance of civilization and the necessities of modern international intercourse on the part of individuals. The home state of the resident alien is concerned not with the legal legitimacy of a foreign government, but with its actual ability to fulfill the obligations which this international standard imposes upon it. The resident alien does not derive his rights directly from international law, but from the municipal law of the state of residence, though international law imposes upon that state certain obligations which under the sanction of responsibility to the other states of the international community, it is compelled to fulfill. When the local state fails to fulfill these duties, “when it is incapable of ruling, or rules with patent injustice,” the right of diplomatic protection inures to those states whose citizens have been injured by the governmental delinquency.2
International law recognizes on the part of each member of the family of nations certain norms or attributes of government for the purpose of assuring the rights of the individual. The independence of states, with the right of administering law and justice uncontrolled by other states, is one of the norms by which this end is attained. In countries which habitually maintain effective government, the protective function of the national government of a resident alien is usually limited to calling the attention of the local government to the performance of its international duty. The right, however, is always reserved, and in the case of less stable and well-ordered governments frequently exercised, of taking more effective measures to secure to
1 The assassination of the King of Servia by certain nobles and of President Madero by rebels was of no special concern for international law, in view of the immediate establishment of a government having the power to fulfill the international obligations of the state.
2 Hall, W. E., Foreign powers and jurisdiction, 4; Bluntschli, op. cit., 8380.
their citizens abroad a measure of fair treatment conforming to the international standard of justice. While the right of every state to exercise sovereignty and jurisdiction within its territory over all persons within it is recognized, foreign nations retain over their citizens abroad a protective surveillance to see that their rights as individuals and as nationals receive the just measure of recognition established by the principles of municipal and international law." Non-interposition is the rule only so long as states are careful to observe their international duties. Diplomatic protection, therefore, is a complementary or reserved right invoked only when the state of residence fails to conform with this international standard.
States normally avoid the two extremes (1) of leaving their citizens entirely unprotected and (2) of improperly impairing the administration of justice in a foreign country by immediately interposing in their behalf before local remedies have been exhausted. When interposition is immediate, it is justified by the allegation that the local administration of justice was not up to the international standard of civilized justice which requires forbearance of diplomatic action.
The rules of international law in this matter fall with particular severity upon those countries where law and administration frequently deviate from and fall below this standard; for the fact that their own citizens can be compelled to accept such maladministration is not a criterion for the measure of treatment which the alien can demand, and international practice seems to have denied these countries the right to avail themselves of the usual defense that the alien is given the benefit of the same laws, the same administration, and the same protection as the national.
The broad principle of international law that when an individual establishes himself in a foreign state he renders himself subject to the territorial jurisdiction of that state and must normally accept the institutions which the inhabitants of the state find suitable to themselves, must be viewed in its relation to the complementary principle that the individual in question still owes allegiance to his own state
1 Address before the American Society of International Law, April 29, 1910, Proceedings, 46; Heilborn, op. cit., 64 et seq.; Pillet, A., Recherches sur les droits fondamentaux des états, Paris, 1899, p. 19 et seq., particularly at p. 28.
and will be protected by that state when his rights, as measured not necessarily and finally by the local, but by the international, standard are invaded.
$ 15. Right and Duty of Protection.
Many writers consider diplomatic protection a duty of the state, as well as a right. If it is a duty internationally, it is only a moral and not a legal duty, for there is no means of enforcing its fulfillment. Inasmuch as the state may determine in its discretion whether the injury to the citizen is sufficiently serious to warrant or whether political expediency justifies the exercise of the protective forces of the collectivity in his behalf, for the interests of the majority cannot be sacrificed—it is clear that by international law there is no legal duty incumbent upon the state to extend diplomatic protection. Whether such a duty exists toward the citizen is a matter of municipal law of his own country,4 the general rule being that even under municipal law the state is under no legal duty to extend diplomatic protection.5
The state has, however, in international law, a right as against other states to protect its citizen abroad. This international right is universally admitted, and attempts to limit it by the municipal legislation of defendant states have not been successful. The individual is also often said to have a right to the protection of his government." This is, however, a moral rather than a legal right, for it is unenforce
Martens, Traité, 444 and as arbitrator in Costa Rica Packet (Gt. Brit.) v. Netherlands, May 16, 1895, Moore's Arb. 4952. Lomonaco, op. cit., 212, calls it “always a sacred duty.” Grotius, II, ch. XXV, 88 1 and 2; Vattel, I, ch. II, 88 1316; Fiore, Dir. int. codificato, 5th ed., $ 531 note; Pradier-Fodéré, $ 402.
• Infra, $ 143.
• Diena, Dir. int. pubblico, Napoli, 1908, p. 258; Heilborn, System, 70. Mr. Frelinghuysen, Sec'y of State, to Mr. Soteldo, April 4, 1884, For. Rel. 1884, 601.
• Certain German writers, basing their contention upon art. 3, § 6 of the Constitution of the German Empire, which provides: “Against foreign states all Germans equally have the right to demand the protection of the Empire," assert that there is a municipal duty to protect. Seydel, Bayerisches Staatsrecht, I, p. 300, note 43; Grabowsky in 12 Verwaltungsarchiv (1904), 232 et seq.
Infra, $ 390 et seq. * Infra, 138.
able by legal methods. Even under the German constitution, which expressly accords German subjects the right to protection, no legal remedy or means of enforcing the right has been granted.2
THE PROTECTIVE FUNCTION $ 16. Political Philosophy. Function of the State.
In arriving at the basis for the external activity of the state in protecting citizens abroad, we are led into the field of the true function of the state. Being concerned primarily with international law, or the material and external sides of state activity, we can avoid all abstract philosophy, with the attempt to bring the meaning of the term "state" into harmony with a general theory of the universe.3
From the beginning of civilization, the relation between the state and the individual and the proper sphere of the activity of each have been discussed by political philosophers. Under the ancient theory of the state, especially among the Greeks, the state was regarded as the ultimate aim of human life, an end in itself.4 Individuals appeared only as parts of the state; their rights and welfare were recognized only to the extent that it was serviceable to the state. By the time of the Romans, with its absence of political freedom but strong protection for private rights, a more just sense of the relation between state and individual obtained, at least so far as the sphere of law is concerned. The Kantian theory of the Rechtstaat considered the sole duty of the state the maintenance of the legal security of each individual. This attempt to narrow the sphere of governmental activity was adopted by the orthodox political economy which reduced the function of the state to the minimum of maintaining security. A
11. e., the individual has no legal claim to protection. Rivier, Principes, I, 272.
2 Seydel and Grabowsky, op. cit., consider it a subjective right, i. e., that the individual has a legal claim to protection. Jellinek contests this view, asserting that the right to protection is a reflex of an objective right, i. e., the individual has no formal legal claim to it. Jellinek, System, 2nd ed., 1905, pp. 119–120. Laband states, rather equivocally, that protection by the state is not a favor or a gratuity, but that the individual's right is recognized. Deutsches Staatsrecht, I, 139, cited by Jellinek, 119.
: McKechnie, S. W., The state and the individual, Glasgow, 1896, p. 52. * Bluntschli, J. K., The theory of the state, Oxford, 1898, p. 305. • Duguit, L., Etudes de droit public. 1. L'etat, le droit objectif et la loi positive,