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America and in the Near and Far East. In such cases, the Department usually, upon request, instructs its diplomatic representative accredited to the country in question to use such influence as he legitimately may to secure consideration for the American interests requesting supportwithout discriminating, however, against other American interests. The Department of State does not attempt to endorse individuals as to their responsibility nor to express any judgment as to business enterprises, beyond bringing them to the attention of the authorities abroad through American diplomatic representatives.1 Applicants for concessions in Cuba and the Dominican Republic, and in other LatinAmerican Republics to which the Platt Amendment might be extended, must necessarily secure the Department's approval of the concession before it may be granted, and it is becoming a practice for American concessionaires in other Latin-American countries to submit the terms of a proposed concession-contract to the Department for approval. By so doing, the legitimacy of the concession may be examined, and eventual protection facilitated.

§ 164. Preventive Measures.

Although it is unusual to extend protection in advance of an actual occurrence rendering interposition proper, the government has not infrequently filed a diplomatic protest against proposed municipal legislation of foreign countries which, if enacted, would impair the rights or interests of American citizens. Sometimes the diplomatic representative is instructed to use his good offices to bring to the attention of the government to which he is accredited the injurious effect upon American trade and commerce of proposed municipal legislation. Thus, objections of this government against a proposed increase of a foreign tariff rate which seemed prohibitive to American commercial interests have been diplomatically presented. In like manner, protests have been filed against proposed monopolies which appeared violative of treaty rights or inimical to American trade. Good offices have been employed and protests filed against the application to American 1See as to applications for financial concessions in Turkey, For. Rel., 1909, 595. 'Protest to Haiti against grant of a soap monopoly to certain French concerns, 1907-1908. See also supra, p. 182.

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'Good offices were used to secure modification of order prohibiting American life

citizens of enacted legislation abroad which, if enforced, would be deemed to violate the rights of an American citizen, whether under municipal law, treaty, or international law.1

What might be called preventive measures of protection are occasionally employed in that subjects going abroad are warned to provide themselves with certain documents calculated to relieve them of the embarrassment of detention, examination or other burdens.2

The most usual method of safeguarding and fostering the rights and interests of citizens is by means of international treaties and conventions. With the growth of international intercourse these treaties have covered a wider and wider range of subjects, until at the present time the measure of the alien's civil and commercial rights is largely to be found in treaties. To some extent, the principal rights of aliensor citizens abroad-have been considered in the chapter on aliens.3 At this point, it is merely necessary to note that the measure of the rights of citizens abroad and therefore the measure of the extent of protection for infringement thereof is to be found largely in treaties.

§ 165. Request for Local Protection in Foreign Country.

Under ordinary circumstances, the first step in the exercise of the protective function is to demand of the local government the full measure of local protection which its laws afford. Assuming that insurance companies from doing business in Prussia. H. Doc. 247, 54th Cong., 1st sess.; For. Rel., 1895, I, 428-453. As to Argentine, see Moore's Dig. VI, 326, and as to Chile, For. Rel., 1896, 43.

1 Objection noted to Guatemalan decree providing for imprisonment, in case of fire, of beneficiary of insurance policy. Mr. Adee, Acting Sec'y of State, to Minister Sands, For. Rel., 1909, 344. Protest against certain interpretation of Honduranean law relating to national vessels. Mr. Adee to Minister Brown, Sept. 7, 1909, For. Rel., 1909, 368. As to protests against prohibitions or restrictions by foreign countries on the importation of cattle, hogs and beef, see For. Rel., 1891, under various countries.

2 E. g., British subjects going to Argentine were instructed to provide themselves with birth certificates and protection papers to escape military service. Notification of August 22, 1898; 90 St. Pap. 1176. Unusual precautions in the matter of passports, such as attaching an unmounted photograph to the passport, have been adopted by the Dept. of State in the case of American citizens going to Europe during the present European war.

3 Supra, § 34 et seq.

'See the discussion of the rights of aliens, supra, § 17 et seq.

the government is properly organized, such a suggestion will often suffice to prevent a flagrant violation of the rights of aliens. The United States, for example, has on many occasions called on Turkey and China to afford protection to American citizens and prevent attacks by brigands and others. Again, when an American citizen is arrested abroad charged with a penal offense, the diplomatic officer's first duty is to see that he receives the benefit of the safeguards against oppressive treatment provided by the local law and that his trial is conducted fairly. While in first instance the protection of aliens is a matter incumbent upon the local government, and foreign governments, in the absence of a flagrant case, usually advise their subjects to resort to the local courts for the redress of their grievances, it is nevertheless beyond dispute that the local government cannot be the final judge of its own conduct. Indeed, foreign governments are conceived to have the right and duty to determine whether their subjects have been accorded the protection due them under public law and the applicable treaties. Diplomatic interposition then, if deemed proper, is the substitution by the protecting state of its own action for that of the local state based upon default in a function originally incumbent upon the latter.

2

In this connection, it is interesting to note that when the attention of the United States is called to the delinquency of local authorities in complying with a treaty or municipal law, to the detriment of a foreigner, the Department of State must address the Governor of the state calling his attention to the complaint and requesting a removal of the cause or appropriate measures of satisfaction. If the Governor, however, does not secure the enforcement of the treaty or municipal law by the local authorities, the federal government has no machinery to compel his action, and in mob violence cases, as has been observed, has often had to pay heavy indemnities for the failure of the states properly to enforce or vindicate the treaty rights of foreigners. When

1 For. Rel., 1895, II, 1237 et seq.; 1318 et seq.; For. Rel., 1907, II, 1071. For a case in Haiti, where local protection was first demanded, see For. Rel., 1904, 397. See also Marquis Salisbury to Mr. Ashburnham, Feb. 16, 1880, 75 St. Pap. 1059 (case in Bulgaria); Lord Granville to Sir C. Wyke, Dec. 24, 1883, 75 St. Pap. 456; Field, Adm., v. U. S., Act of Jan. 20, 1885, 27 Ct. Cl. 224.

2 Infra, § 381 et seq.

new treaties are concluded or a particular provision of a treaty has not been enforced by the states, the Department sometimes informs the governors of the various states of the terms of the treaty provision in question, and requests its enforcement.1

The Instructions to Diplomatic Officers provide that diplomatic representatives of the United States should "protect [American citizens] before the authorities of the country in all cases in which they may be injured or oppressed, but their efforts should not be extended to those who have been willfully guilty of an infraction of the local laws. It is their [diplomatic officers'] duty to endeavor, on all occasions, to maintain and promote all rightful interests and to protect all privileges that are provided for by treaty or are conceded by usage." 2 § 166. Consular Administration of Decedents' Estates.

Specific and detailed instructions are given as to the duties of consuls in caring for the estates of their deceased nationals dying intestate within their jurisdiction. The extent of their right to interfere, however, depends upon the applicable treaties and upon the local law." Foreign consuls in the United States, it seems, have not the right of consular administration as against a public or other administrator appointed under a state law by a probate court.5 This is believed to be the case even under the treaty of 1910 with Sweden, which gives extensive rights to consuls in the care of the estates of deceased nationals. When there is no conflict with local law, consuls have been held, under various treaties, to be entitled to appointment as administrators.7 1 E. g., Request for observance of art. XVI of the consular convention with AustriaHungary, June 11, 1870, For. Rel., 1907, I, 52–55.

2 Instructions to diplomatic officers, 1897, § 173.

3 R. S., § 1709.

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Consular regulations, 1896, parag. 385-416. Instructions to diplomatic officers, 1897, §§ 184-185.

5 Rocca v. Thompson, 223 U. S. 317. See also Matter of D Adamo (1914), 212 N. Y. 214, reversing 144 N. Y. Suppl. 429. See also Ludwig, Ernest, Consular treaty rights and comments on the "most favored nation" clause, Akron, 1913. This book, while crude, presents most of the American decisions in point.

Treaty of June 1, 1910, art. XIV, Malloy's Treaties, III (Charles), 112, 117. Matter of D'Adamo, 212 N. Y. 214; Justice Day's dictum in Rocca v. Thompson considered inapplicable.

7 Austro-Hungarian Consul v. Westphal, 120 Minn. 122, 139; Matter of D'Adamo, 212 N. Y. 214, 225 (dictum); Matter of Holmberg's Estate, 193 Fed. 260.

§ 167. Degree of Assistance in Certain Cases.

Unfair treatment to American concessionaires, whether under the guise of legality or not, will result in a protest from the Department of State. If merely a threatened infringement of American interests, good offices will be employed to prevent actual damage. If the violation of rights has occurred, the diplomatic action will assume more vigorous form, depending upon the flagrancy of the offense and all the circumstances of the case.1

When the responsibility of a foreign government is moral, and not necessarily legal, the United States will nevertheless endeavor by all amicable means to obtain justice for its citizens. Thus, the accidental killing of an American naval officer by stray bullets from a French warship engaged in rifle practice induced the United States to appeal to the sense of justice of the French government to make reparation for the injury to the bereaved family.2

During the European war of 1914, numerous vessels carrying cargo belonging to American citizens were instructed to present their claims before the prize court by private counsel, with proof of ownership and the non-contraband character of the goods. The Department of State does not ordinarily intervene diplomatically to present the claims of individuals to prize, or indeed to any other courts; but it may, if requested, instruct the nearest consular officer to investigate and report upon the case to the Department, and informally to give notice of the claim to the court, or select some attorney to represent the owners before the prize court. It may be said that in all cases where American citizens are engaged in litigation abroad under circumstances rendering them subject to the local law and disentitled to demand diplomatic protection, the Department's assistance is confined to suggesting counsel, or, on request, engaging the services of an attorney. Obviously, however, the government assumes no responsibility for the integrity,

1 See N. Y. and Bermudez Co. claim v. Venezuela; efforts of the Dept. of State to obtain justice for the company during the sequestration proceedings, Sen. Doc. 413, 60th Cong., 1st sess., 139, 140; Guayaquil and Quito Ry. Co. v. Ecuador, For. Rel., 1907, I, 385.

* Mr. Root, Sec'y of State, to Mr. McCormick, Nov. 13, 1906, For. Rel., 1907, I, 398, citing several cases in which the U. S. had voluntarily paid compensation to foreigners for injuries sustained through the carelessness of American officers.

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