1

ment of citizens convicted abroad of political offenses. The unofficial assistance of a diplomatic agent is often given to a citizen abroad in the direct settlement of a claim against the local government or authorities. In many cases, the diplomatic agent does not await the authorization of his government to employ his personal good offices in behalf of his fellow-citizen requiring assistance.3 As the desirability and expediency of extending his good offices are matters of personal discretion entirely, the citizen cannot demand his assistance, when unauthorized by the government, as a matter of right. It is always open to the citizen to request the government's interposition by communicating with the Department of State, which will determine, in its discretion, the most appropriate form of action, if any, that it may be expedient to adopt. It has already been observed that the diplomatic agent may not officially present a claim to a foreign government without express instructions from the Department.

Good offices usually involve unofficial representations consisting of requests, recommendations and other personal efforts. One of their principal characteristics may be found in the fact that if unheeded, denied or rejected by the foreign government, they are not further pressed, the matter being dropped. Only on rare occasions has the unsuccessful employment of good offices on behalf of a claimant been followed by the official pressure of his claim, and then only on newly disclosed evidence or in a case where official support would have been justified in the first instance.

§ 189. Diplomatic interposition.

Diplomatic interposition in the technical sense consists in the pressure of a claim by official representations, under the authority and in the name of the government. The term "interposition" is considered preferable to "intervention," inasmuch as the latter term has a long-established meaning of armed interference in the internal

2

'Mr. Webster, Sec'y of State, to Mr. Cushing, Aug. 27, 1842, Moore's Dig. VI, 329. * See claim of American Baptist Church at Nichtheroy, Brazil, For. Rel., 1901, pp. 28, 29; Brown's claim against Governor of the Federal District in Mexico, For. Rel., 1902, 786-789.

It is not possible here to enumerate the many useful ways in which the diplomatic representative may render assistance.

affairs of another state. As soon as the government determines to support a claim officially, its presentation to the defendant government practically always, in first instance, takes the form of diplomatic interposition, consisting of a formal instruction to the diplomatic representative to present a note to the Minister of Foreign Affairs, stating the grounds of complaint and demanding redress. The claim having thus entered the sphere of international controversy, is subject to all the possible vicissitudes and consequences of an international conflict, although the purpose of the interposition is always to provide a sanction for the individual rights of a citizen.

§ 190. Mediation.

The second sense in which the term "good offices" is employed is quite analogous to mediation as an impartial adviser between two opposing parties. While good offices and mediation differ in detail, e. g., in the right of the third person or mediator to offer independent suggestions for a settlement, they both involve a method of reconciling opposing contentions with a view to the adjustment of a controversy. It is less frequently resorted to in cases of claims than in the adjustment of other international differences. The Hague Conventions for the pacific settlement of international disputes adopted at the conferences of 1899 and 1907 embodied various rules concerning the tender and employment of good offices and mediation, and the institution of commissions of inquiry. In a dispute between Salvador and Italy in 1887, arising out of a private claim, the mediation of the United States was requested by Salvador, and on the subsequent tender of the good offices of the American minister, upon request of both parties, the claim was satisfactorily settled. The principal difference between mediation and arbitration, a method of adjustment more frequently employed in cases of pecuniary claims, consists in the fact that the former is an advisory function and recommends, whereas the latter is a judicial function and decides.

§ 191. Arbitration.

2

Aside from diplomatic negotiation, the method most frequently 1 Scott, J. B., The Hague peace conferences, Baltimore, 1909, I, 256 et seq. 2 For. Rel., 1888, I, 77, 107, 120.

used to settle international pecuniary claims is arbitration. In the growth of this system of adjusting international differences, the United States has taken a prominent part. Not only single claims, but large numbers of general claims have been submitted by the United States to the determination of independent arbitral tribunals, with the result that innumerable actual and potential conflicts with other countries have been adjusted by judicial means. Instead of producing a rupture of amicable relations, these claims have contributed to the creation of a permanent system of international law. The efforts of the last twenty years have been devoted largely to stimulating a resort to and perfecting the machinery of arbitration, with the result that international conventions for general arbitration have been drafted at the Hague and the Pan-American Conferences and have been concluded between many individual states.1

2

3

No class of differences is more susceptible of settlement by arbitration than pecuniary claims, and sentiment is growing in favor of the creation of a permanent international tribunal which shall have jurisdiction, not only of contractual claims, but of all pecuniary claims of citizens of one country against the government of another. Every consideration which operates in the case of contractual claims for their removal from the sphere of diplomatic controversy into the channels of judicial adjudication is equally operative in the case of all pecuniary claims involving legal issues.

1 See the Hague convention of 1899 for the pacific settlement of international disputes, 32 Stat. L. 1785, and its revision by the convention of 1907, 36 Stat. L. 2199. See Scott, J. B., The Hague peace conferences, I, ch. VI; Treaty between the U. S. and other powers of America for the arbitration of pecuniary claims (Pan-American convention of January 30, 1902), 34 Stat. L. 2845; renewed by convention signed at Rio Janeiro, Aug. 13, 1906, proclaimed by the U. S., Jan. 28, 1913. Treaty series, No. 574. The Central American states concluded a convention at Washington, Dec. 20, 1907, 2 A. J. I. L. (1908), 219 et seq., by which they are committed to the arbitration of all pecuniary claims, and even give a private citizen of one of them the right to sue one of the other states among them.

2 Supra, § 126.

3

Supra, p. 329, note 1. C. C. Hyde and F. C. Partridge in 1914 Report of the Lake Mohonk Conference on International Arbitration, pp. 125 and 143. See also address before American Society for Judicial Settlement of International Disputes, Dec. 4, 1913, Proceedings, 49-55; see also General Conclusions, infra.

By the submission of a private claim to arbitration the two countries in controversy provide a forum to determine the extent of the injuries inflicted by the one upon the other in the person of a citizen, and the legal right to and amount of reparation properly payable as indemnity. The two states substitute for the diplomatic negotiation between the protecting and the defendant state an independent tribunal to determine the justification for extending protection and the merits of the defense in a given case.1 Hence the great authority of arbitral decisions notwithstanding certain alleged defects of the system— as a source of international law, and the reliance placed by Foreign Offices upon arbitral awards, as precedents, in the presentation of and defense against international claims.

The powers of arbitrators are usually defined and the class of cases over which they shall exercise jurisdiction is in general terms described in the protocol or treaty under which they act.2 Their jurisdiction under the protocol, however, and the question whether any particular case presented comes within the class to be arbitrated or within the terms of submission are matters to be determined by the arbitrators. This was settled in two important arbitrations between the United States and Great Britain, the question having been raised under article VII of the Jay treaty of 1794 and again with regard to the power of the Geneva tribunal to deal with indirect claims.3 When such an arbitral tribunal has been brought into existence by agreement of the parties, it is an independent court of high international jurisdiction, competent, within the limits of the powers conferred upon it, "to bring under judgment the decisions of the local courts of both nations, and beyond the competence of either government to interfere with, direct, or obstruct its deliberations." 4

1 See Rudloff (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 182, 185, citing opinion of Sec'y of State Evarts quoted in Moore's Arb. 2599.

2 Moore's Dig. VII, § 1072; Ralston, International arbitral law, Boston, 1910, pp. 19-21; Tchernoff, op. cit., 375 et seq.

3 Moore's Dig. VII, § 1073; Ralston, op. cit., 21-24.

4 Mr. Evarts, Sec'y of State, to the Spanish minister, Mar. 4, 1880, quoted in Moore's Arb. 2599 and cited with approval in Rudloff (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 185

NON-AMICABLE METHODS

The non-amicable methods of redress include a suspension of diplomatic relations, retorsion, a display of force, the actual use of force, reprisals and war.

§ 192. Withdrawal of Diplomatic Representative.

On several occasions, the unsatisfactory termination of diplomatic negotiations for the settlement of international claims has led to the suspension of diplomatic relations between the countries involved.1 In 1826 the American chargé demanded his passports from Brazil because of the alleged unwarranted capture of certain American vessels, diplomatic relations being subsequently resumed upon the payment of adequate indemnities. The failure of the American minister in Mexico to secure redress for various arbitrary seizures of property and ill-treatment of American citizens led, in 1858, to a suspension of diplomatic relations with that government. Italy temporarily withdrew its Ambassador to the United States because of the unwillingness of the United States, early in the negotiations, to acknowledge any liability for the deaths of Italian subjects in the New Orleans riot of 1891. The Department of State has on several occasions threatened to withdraw the American legation unless the foreign country in question settled or agreed to settle the claims of American citizens. Amicable relations between France and Venezuela, interrupted by the withdrawal of the French minister in 1906, because of Venezuela's refusal to pay certain claims, were restored in 1913 by the conclusion of a treaty submitting the claims to arbitration.2

$193. Retorsion.

Retorsion signifies retaliation in kind. This method of redress has but rarely been used for the non-payment of pecuniary claims.

1 Moore's Dig. VII, § 1089.

* 13 R. G. D. I. P. (1906), 548; Protocol signed Feb. 11, 1913, 20 R. G. D. I. P. (1913), 506.

'Moore's Dig. VII, § 1090; Halleck (Baker's ed., 1908), I, 503; Rapisardi-Mirabella in 16 R. D. I. (n. s.), 1914, pp. 223–244 (first installment); see bibliography, pp. 240