§ 134. Theory of the State's Protection. The interest of the state in protecting its citizen abroad is justified upon the theory formulated by Vattel: "Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is, safety." The indirect injury which the state sustains by an injury to one of its citizens warrants bringing into operation the state's protective machinery.2 1 This principle, however, requires modification and amplification, for it does not fully explain the action of the state. In the first place, reparation is demanded only for such injuries as the state in its discretion deems a justification for diplomatic protection. Factors which enter into consideration in determining the state's interposition are the seriousness of the offense, the indignity to the nation, and the political expediency of regarding the private injury as a public wrong to be repaired by national action-in short, the interests of the people as a whole as against those of the citizen receive first consideration before state action is initiated.3 In the second place, not every injury warrants immediate interposition by the state. It is only when the citizen has suffered flagrant injustice or maltreatment by or at the direction of an authority of the state of residence, that his national government is warranted in taking immediate measures of repression. If the injury is received at the hands of individuals or minor officials, who cannot be regarded as representing the government, the individual must in first instance be remitted to his local judicial remedies, and only in the event of a denial 1 Vattel, Chitty-Ingraham ed., Phila., 1855, Bk. II, ch. VI, § 71. 2 See, e. g. Phillimore, 3rd ed., II, 4; Morse, Citizenship, XII and 60, 61; PradierFodéré, I, § 402; Bello and Liszt cited in For. Rel., 1899, 31-40; Mr. Root, Sec'y of State, to the Persian minister, Nov. 7, 1906, For. Rel., 1907, 942. See also Amer. St. Pap. IV, 718; Annals, 15th Cong., 1st sess., 282; Selwyn (Gt. Brit.) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 322. The idea that the nation will avenge the wrongs done to its citizens goes back to the earliest times. See Morse, op. cit., 110. See, e. g., Fiore, Nouveau dr. int. pub. (Antoine's trans.), § 646, citing Heffter, § 59 and Phillimore, II, ch. 2; Lomonaco, 217, citing Grotius. of justice, as that term is understood in international law, may the state properly interpose in his behalf. In the third place, although the state in prosecuting the offense committed against its citizen is presumed to avenge and seek compensation for the injury to its national welfare and dignity, an injury quite independent of that sustained by its citizen, it nevertheless happens, in practice, that the largest proportion of claims are dropped at the moment the citizen changes his nationality or assigns his claim to the subject of another state. This result has been established by numerous arbitral decisions and by the practice of Foreign Offices.1 If it were merely the injury to the welfare or dignity of the nation for which compensation is sought, the subsequent act of the citizen would hardly lessen the injury, or weaken the right or power of the state to exact reparation. As a matter of fact, Vattel's theory of the indirect injury to the state in the person of its citizen, merely explains the initial action of the state in bringing its protective machinery into operation. The citizen may well relieve the state of further interest in his case by changing the nationality of the claim or of the claimant. While the injury to the state and the injury to the citizens are independent wrongs, the action of the state in demanding compensation is in large degree dependent upon the subsequent conduct of the citizen in supporting the title and right of his government to interpose in his behalf. The circumstance must not, however, be overlooked, that injuries inflicted upon certain officials representative of the government or upon public vessels or other public property, give rise to national offenses only, to the exclusion of private claims, and that certain classes of injuries to individuals, when deemed to involve affronts to the nation, survive any assignment or settlement by the private claimant. 2 § 134a. Diplomatic Protection an Extraordinary Legal Remedy. 1 The theory that the indirect injury to the state in the person of its 1 Infra, § 306. See particularly Stevenson (Gt. Brit.) v. Venezuela, Feb. 17, 1903, 446-447. This principle of arbitral decisions may be explained by the fact that protocols practically always grant jurisdiction over injuries to "subjects" or "citizens' and not to "the dignity of the nation." If a claimant has ceased to be a citizen at the time his claim is presented, jurisdiction is denied. 2 Infra, § 142. citizen justifies diplomatic interposition does not, it is obvious, fully explain the state's action. Diplomatic protection may more properly be considered as an extraordinary legal remedy granted to the citizen, within the discretion of the state, under certain circumstances in harmony with the public interests of the state, its relations with other states, and the rights and equities of the citizen. It is to be noted that the state may be injured in two ways: (1) directly, by violation of the rights affecting the collectivity or people as a whole; and (2) indirectly, by violation of the rights of its citizens. It will be seen hereafter that injuries of the latter class which involve specific affronts to the nation, cannot be extinguished by private settlement, but that they survive restitution or compensation to the individual. On the other hand, if the injury involves no element of national insult, the restoration of the individual to his rights by the institutions or authorities of the defendant state annuls any further interest of his own government. The individual has in fact sustained no "injury" in international law, until the state of residence or its authorities have in some way connected themselves with the original act or have declined to afford him legal means of redress. § 135. Basis of the Public Action of the State. 3 The action of the state in exercising the right of diplomatic protection, being based upon its independent claim against other states to have its nationals treated in accordance with the rules of international law, has been founded by various writers upon its right of self-preservation,2 the right of equality, and the right of intercourse.1 While it may be true that the habitual unredressed violation of the rights of its citizens abroad would weaken the state both materially and in prestige, and to that extent, impair its integrity and its power among nations, the injuries to the subjects of a given state are never so habitual, so numerous or so widespread as actually to endanger the safety of the state. It seems preferable to consider the state's action 1 Infra, § 142. 2 Hall, 6th ed., 273 et seq.; Hall, Foreign powers and jurisdiction, etc., § 2; Rivier, Principes, I, 269; Despagnet, 4th ed., 1910, § 172. Pomeroy, Lectures, Woolsey's ed., Boston, 1886, § 205 et seq. as a sanction for the right of international intercourse between states and individuals, according to the standard of conduct and treatment recognized as proper and lawful by international law and practice. § 136. Protection in Operation. The right of protection is, as already observed, a limitation upon the right of jurisdiction. The former cannot oust the latter except by treaty but has the power to require that as to aliens it shall be exercised in a regular, legal, just and impartial manner.2 The right of protection which every state possesses is correlative to its obligation to accord foreigners a measure of treatment satisfying the requirements of international law and relevant treaties, and to its responsibility for failure to accomplish this duty.3 Diplomatic protection is in its nature an international proceeding, constituting "an appeal by nation to nation for the performance of the obligations of the one to the other, growing out of their mutual rights and duties." This right of the state is, as an international phenomenon, a manifestation of its power over the individuals under its allegiance to prevent or repress on the part of other states any invasion of their rights or any pretension not finding its basis in international law. As no municipal statutes specify the circumstances and limits within which this right of protection shall be exercised, each government determines for itself the justification, expediency and manner of making the international appeal. The merits of its right to exercise diplomatic protection may, however, be referred to an independent, if not altogether certain, standardthe standard of civilized conduct toward aliens recognized as proper by international law. 1 1 I. e., in countries where extraterritorial rights are exercised. 2 Pomeroy, op. cit., §§ 205-206. * Oppenheim, I, § 142; Hall, 6th ed., 273. Hall's statement is concise and thoughtful. 4 Mr. Blaine, Sec'y of State, to Mr. Caamano, Mar. 19, 1890, Moore's Dig. VI, 256. 'Heilborn, System, 64 et seq. CHAPTER II RELATION BETWEEN THE PRIVATE AND THE PUBLIC INJURY § 137. Method of Presenting a Private Claim. It has been noted that governments are to a certain extent subject to suit at the hands of an alien in their own municipal courts. This right of suing the state is more general in most foreign countries than in the United States. When local means of redress have been exhausted in a vain effort to obtain justice and the international responsibility of the state is invoked, the alien's only recourse to obtain satisfaction is through the interposition of his own government. In 1874 Congress adopted the rule that it would not consider the claims of aliens against the United States unless presented through the Department of State. The Department itself has had frequent occasion to inform alien claimants that it "refuses to entertain applications or to receive claims from aliens except through a responsible presentation by the regularly accredited representative of their government." The government must assume responsibility for the presentation of claims.2 1 A mere transmission of the claim by the diplomatic representative at the request of the claimant without an indication of the approval, support and authorization of the foreign government will not satisfy this requirement.3 The representative may, however, without making a claim, call attention unofficially and on his own responsibility, to a past or impending injustice to one of his nationals and his note will receive due consideration. 1 Magoon's Report, 338, 340 quoting Sec'y of State Fish to Mr. Lawrence, Apr. 22, 1874. 2 U. S. v. Diekelman, 92 U. S. 520; Moore's Dig. VI, § 970. Mr. Seward, Sec'y of State, to Count Wydenbruck, Nov. 28, 1866, Dipl. Cor. 1866, I, 691. Mr. Frelinghuysen, Sec'y of State, to Baron de Fava, June 21, 1884, Moore's Dig. VI, 608. |