from the fullness of local jurisdiction in favor of foreigners, foreign consuls and foreign property, such as ships, are traceable not merely to comity but to a mutual recognition that in certain matters the interests of individuals are more satisfactorily protected by giving jurisdiction or other powers to their national sovereign, in other words, the indirect operation of the protective function has resulted in certain derogations from complete territorial jurisdiction. In countries in which extraterritoriality prevails, these derogations assume wide proportions, and are the outgrowth of compulsory concession rather than voluntary grant on a basis of reciprocity.

§ 132. Diplomatic Protection a Limitation on Territorial Jurisdiction. In the mutual relation of states in international intercourse, the home state of a citizen abroad yields the exercise of its personal control or sovereignty over its citizen in favor of the territorial sovereignty of the state of residence, on the condition that the latter's system of law and administration is in its application to aliens within the standards prescribed by international law and recognized custom. If its laws are arbitrarily unreasonable and out of harmony with the standard of civilized states, or if the administration of the laws transgresses the prescriptions of civilized justice, or if in any respect there is an abuse of the rights of territorial jurisdiction as provided by treaties or established custom, the personal sovereignty of the home state reasserts itself and emerges in the form of diplomatic protection. This potential right, which the home state always reserves, acts as a check upon the state of residence and as a corrective against the excessive or abusive application of the territorial jurisdiction. In its operation, it prevents invasions of the rights of citizens abroad or exacts reparation for injuries or unlawful oppression which they may have suffered. In states of the European type there is less occasion for the employment of this protective right than in states of less stable organization. The application of the right of diplomatic protection increases in rigor in direct ratio with the weakness of the local protection accorded by the state of residence. In countries like Turkey and China, this protective right has actually assumed the form of foreign jurisdiction. In the absence of any central authority over states having power to enforce the principles of international law,

the right of diplomatic protection has self-help for its sanction, and as it is most often resorted to by strong against weak states, it is readily apparent how the rights of the weaker states have been liable to abuse; so that the complaints of Calvo, Pradier-Fodéré, Seijas, Lisboa and others, on behalf of the Latin-American states, are undoubtedly, in large degree, justified. The undue enforcement of the right of protection has often served to give aliens who are the subjects of strong states, when resident in weak states, a privileged position, not enjoyed by natives or the nationals of weak countries.

All civilized states admit that in order to live in the society of states, they must yield some share of their absolute liberty of action and that their rights must be reconciled with the reciprocal rights of other states. Various forces thus interact to bring about the existing rules of international intercourse. Among these mutual concessions, the one of present interest is the fact that the territorial sovereignty or jurisdiction of a state has to be reconciled with the right of other states to protect their nationals abroad, an outgrowth of principle and practice, rather than the subject of formal written admission.

PART II

THE EXERCISE OF DIPLOMATIC PROTECTION

CHAPTER I

NATURE, BASIS AND THEORY OF PROTECTION

§ 133. Fundamental Principles.

The study which has been made of the relation between the state and its citizen, of the position of aliens, of the municipal and the international responsibility of the state, and of the relation between the protecting state and the state of residence warrants a reconsideration of these matters in their relation to the nature, the basis and the exercise of the right of diplomatic protection.

Each state in the international community is presumed to extend complete protection to the life, liberty and property of all individuals within its jurisdiction. If it fails in this duty toward its own citizens, it is of no international concern.2 If it fails in this duty toward an alien, responsibility is incurred to the state of which he is a citizen, and international law authorizes the national state to exact reparation for the injury sustained by its citizen. The foreigner in entering a country tacitly undertakes to accept the laws and institutions which the inhabitants of the country find suitable to themselves. By becoming a resident, he undertakes the obligation of obedience to the laws, and assumes a certain relationship to the state of residence which has been popularly characterized as "temporary allegiance." This involves both rights and duties, although with respect to both, there

Morse, Citizenship, Boston, 1881, § 4.

2 Unless the state deviates so grossly from the paths of civilized administration and justice that intervention on the ground of humanity is justified. Supra, p. 14.

is usually a measure of difference between the transient and the domiciled alien. If the alien receives the benefit of the same laws, administration, protection and means of redress for injuries which the state accords to its own subjects, the national government of the alien has no ground to complain or interpose in his behalf, provided that the system of municipal law, administration and protection applied to citizens meets the recognized standards of civilized justice. Foreigners are left to the territorial jurisdiction of the state of residence for the measure of their rights and the redress of their grievances on the assumption that justice will be applied to them, according to a civilized system of law and administration, with integrity and impartiality. An allegation of a denial of justice, the customary ground of an international claim, rests upon an alleged departure from this standard, either in the law itself or in its administration. It is difficult to establish the exact measure of this standard of civilized justice except by the general practice of the more advanced states. International pecuniary claims are so common because, as in the case of political claims, the justice which a state demands for its nationals is not measurable by definite rules. Nevertheless, the general acceptance of certain fundamental principles, a certain minimum of customary requirements incorporated in the law and procedure of the states of European civilization, and a long-extended experience of adjusting international claims, particularly by arbitration, have developed sufficiently definite rules of conduct for the establishment of a satisfactory international standard of justice, to which the rights of aliens may ultimately be referred. Diplomatic interposition in behalf of aliens merely because the local laws and procedure are different from those of the protecting state, without proving that the application of the law in a given case falls below the international standard of civilized justice, is a practice which has resulted on numerous occasions in securing for aliens in some of the weaker states of the world a privileged position as against nationals, a condition against which some of the Latin-American countries and their publicists have, at times, with some justice, protested. The alien in these cases instead of constituting an addition to the national wealth and resources, has become a liability and a detriment to the state.