mit their differences to a designated tribunal for adjudication, the Secretary may and sometimes does issue the certificate to the original claimant, leaving the contesting parties to assert their legal or equitable interests in any portion of the fund in a suit in the ordinary courts against the payee in order to determine the ultimate ownership of the fund or any particular portion of it.1 § 160. Remedies of Rival Claimants or Beneficiaries. Secretary's Determination not Final. Persons who contest a distribution made by the Secretary, or rival claimants, have two remedies open to them: (1) They may sue the person to whom the money has been paid in an action for money had and received, and thus recover from such person such money as may equitably belong to the plaintiff; or (2) the complaining party might, before payment of the money, enjoin the other from receiving any of such fund from the Secretary of the Treasury (formerly the Secretary of State). While there is no provision in the statute of 1896 for an appeal from the Secretary's decision or for a review of his findings as to the persons entitled to share in the award, the money being in fact appropriated to pay "to the ascertained beneficiaries thereof of the certificates" issued by the Secretary of State, it seems clear, notwithstanding the absence of any adjudication by the courts upon the question of the finality of the Secretary's determination, that it is final only in the sense that it cannot be set aside by any court and that no action against the government or any official thereof can be brought by dissatisfied payees or others. In the matter of the ultimate ownership of the fund, however, and the conflicting claims of persons holding derivative rightsquestions, indeed, which the Secretary is not presumed to have determined his decisions and findings are not conclusive, any more than are the awards of claims commissions regarding the ownership of the funds with the distribution of which they are charged by treaty or statute. To regard the Secretary's determination as conclusive upon these secondary claimants, would make it a judgment in rem, a mani1 Municipal courts pass only upon the disposition of the fund, not the merits of the original claim (Comegys v. Vasse, 1 Pet. 193), unless Congress specifically refers the whole claim to the Court of Claims or a domestic tribunal. fest impossibility. Moreover, the absence of all machinery in the Department for conducting judicial inquiries and the fact that the Secretary is not always a trained lawyer and other practical considerations of a political nature,1 all point to the certainty that the Secretary's determination is not final upon the question of ownership of the fund, nor conclusive upon derivative claimants. The courts, therefore, in the manner already indicated, are always open to such claimants against the individuals to whom awards may have been distributed. § 161. Expenses of Arbitration Usually Charged to Claimants. It may be added that the government frequently provides for the payment by the claimants of the expenses of an arbitration, deducting the government's share from the awards distributed to claimants. The deduction of these expenses from awards is occasionally provided for in the treaty establishing the arbitral commission.2 In the case of the Alabama awards under the Act of 1874, the expenses of the arbitration were not deducted from the awards.3 In the submission of single claims to arbitration, various terms may be made, e. g., the claimant and the defendant government may bear the expenses in 1 Solicitor's Opinion In re Distribution of Alsop award, p. 41. 2 Sometimes only the expenses of the Commission are so provided for, each government paying its own arbitrator, secretary and agent or counsel. See, as examples of clauses providing for deduction of expenses from awards, the treaty between U. S. and Chile of Aug. 7, 1892, art. 10, Malloy, I, 188; between U. S. and France, Jan. 15, 1880, art. 10, Malloy, I, 538; between U. S. and Great Britain, Feb. 8, 1853, art. 6, Malloy, I, 667; between U. S. and Great Britain, May 8, 1871, art. 16, Malloy, I, 707; between U. S. and Mexico, July 4, 1868, art. 6, Malloy, I, 1131; between U. S. and Peru, Dec. 4, 1868, art. 6, Malloy, II, 1413. In all these cases the deduction was not to exceed 5 per cent of the awards. In the conventions between Great Britain and Chile, Sept. 26, 1893 (85 St. Pap. 24) and Sept. 29, 1887 (78 St. Pap. 774), between Great Britain and Nicaragua, Nov. 1, 1895 (87 St. Pap. 55), and between Italy and Chile, 1888 (For. Rel., 1888, I, 187), the amount to be deducted was not to exceed 6 per cent. In the recent compromis of Dec. 18, 1913 between France and Turkey (41 Clunet, 1914, 1444), France undertook to retain 10 per cent. of awards for expenses. Article 7 of the protocol of Nov. 25, 1899 between Italy and Peru, left the percentage to be deducted for expenses to the determination of the Abritrator. Descamps and Renault, Rec. int. des traités du xxe siècle, 1901, p. 701. 3 U. S. v. Weld, 127 U. S. 51 (23 Ct. Cl. 126). In the agreement of Feb. 12, 1871 with Spain, it was provided that the expenses of the arbitration were to be defrayed by a percentage to be added to the amount awarded (Malloy, II, 1663). This relieved claimants of the obligation to bear the expenses of arbitration. 1 equal proportions. When the protocol of submission contains no stipulation as to deductions from awards to cover expenses, the prosecuting government may charge its entire expenses upon the claimants.2 The reimbursement of the government's expenses requires no special agreement or understanding with the claimants. The government's complete control over the indemnity received enables it to deduct from any amount to be distributed such expenses as it may deem properly chargeable to the award. A government may even require claimants to deposit in advance a percentage of the sum claimed, to cover expenses and as an earnest of good faith. A demand by Germany for a deposit of 2 per cent of the sums claimed by its subjects from Haiti in the German-Haitian arbitration of 1913 is reported as having resulted in the withdrawal of a considerable number of claims.3 1 Ozama Bridge claim (U. S.) v. Dominican Rep., Mr. Powell to Gen. Heureaux, Mar. 5, 1898, For. Rel., 1898, 276. Such division may be conditioned upon success of claimant in the arbitration. Freraut (France) v. Chile, July 3, 1897, art. 5, For. Rel., 1897, p. 53. 2 This was done in the case of the Pious Fund claim against Mexico submitted to the Hague tribunal, and in the Alsop claim against Chile, submitted to His Britannic Majesty. In the Alsop case, there was an agreement between the parties stipulating for such deduction. Solicitor's Opinion, op. cit., 79. 3 Such a deposit of "security for costs" is most unusual. It may serve to eliminate claimants in bad faith, but may also disable and work an unnecessary hardship upon needy claimants. CHAPTER V EXTENT OF PROTECTION 162. Factors Determining Measure of Protection. The discretion possessed by the government in the grant of diplomatic protection and in the prosecution of claims is well illustrated by the different degrees of protection which it exercises on various occasions. These variations in the extent of protection depend primarily upon the nature of the offense or injury to be redressed. Other factors which enter into consideration in determining the extent of protection are the character and reputation of the local government for the proper administration of justice, the political expediency of instituting harsh or mild measures, the conduct and character of the claimant with respect to his title to diplomatic protection, the nature of the claim, tortious or contractual, and the need of the claimant. For these reasons, it is impossible to state with any degree of precision the measure of protection which in a given case will be accorded to American interests abroad, for the action of the government necessarily depends upon all the facts and circumstances of the case, and the principles of international law applicable thereto. Nevertheless, notwithstanding the absence of any definite controlling principle, it may not be without interest to examine certain classes of cases in which an attempt has been made to follow a consistent practice. It frequently happens that an American citizen contemplating investment in a foreign enterprise or departure from the United States for the purpose of engaging in business abroad inquires of the Department of State what governmental protection or assistance he may expect or rely upon. Such an inquirer is usually informed that the Department cannot undertake to answer hypothetical questions, or anticipate its action or forecast the effectiveness of its assistance in a given case, since the questions of international law usually involved in such cases, depending as they do upon individual facts and circum stances, do not readily admit of decision in advance of an actual case. The Department usually adds, however, that it is always solicitous that rights of American citizens abroad should receive from foreign governments the respect due to them under existing treaties and international law, and that the Department is always ready to take up with a foreign government the question of adjusting any wrongs which American citizens may have sustained in their persons or in their just, fair and equitable property rights which have been acquired by proper and legal methods. The inquirer is further advised that the government is represented abroad by consular and diplomatic officers, to whom American citizens may appeal when they deem their rights violated or in imminent danger of violation. In an instruction to consular officers, dated August 25, 1898, consuls were urged to be vigilant in the protection of American citizens in their consular districts. The instructions concluded with the following paragraph: "You are directed to be prompt and active in reporting to the Department all cases of arrest of American citizens or of outrages upon their rights. You will also be ready at all times to do your utmost in behalf of our citizens and for the protection and extension of their interests." 1 § 163. Fostering American Interests Abroad. In the encouragement of American enterprises abroad, the government lends its support to such as are legitimate and nationally beneficial, the degree of support being measured by the national advantages to be expected. In his Annual Message of 1909, President Taft declared that in considering whether American enterprise should be encouraged in a particular country, "the government should give full weight... to the fact whether or not the government of the country in question is in its administration and in its diplomacy faithful to the principles of moderation, equity and justice upon which alone depend international credit, in diplomacy as well as in finance." 2 Such encouragement is most frequently sought in the exploited countries of Latin 1 Thos. W. Cridler, Third Asst. Sec'y to the consular officers in Mexico, Central America and South America, August 25, 1898. 2 For. Rel., 1909, xv. As to cable concessions in South America, considered a national advantage, see Sec'y Bayard quoted in Moore's Dig. VI, 326. |