PART IV

LIMITATIONS ON DIPLOMATIC PROTECTION

It will now be proper to consider the various classes of facts, acts and considerations which operate as conditions, qualifications and limitations upon the right to diplomatic protection and the prosecution and recovery of international claims. These limitations on protection will be discussed under five broad divisions, namely, those arising (1) out of conditions prescribed by the claimant's own government; (2) out of acts of the party claimant; (3) out of the subject-matter of the claim; (4) out of public policy; and (5) out of the municipal legislation of the defendant government.

CHAPTER I

CONDITIONS PRESCRIBED BY THE CLAIMANT'S OWN GOVERNMENT

§ 302. Obligations of the Person Claiming Protection.

Before a person receives the protection of the United States, the Department of State must be satisfied that the individual is properly entitled to American protection, and has complied with the conditions required for its extension. Within the terms of the protocols and treaties under which they operate, international tribunals apply the same rule.

The first condition of protection is, obviously, proof of bona fide citizenship. The substantive elements of citizenship have received consideration in Part III, and attention will therefore be given here to the more formal conditions imposed by the government upon an applicant for protection.

The applicant for a passport, under the rules governing the grant

ing and issuing of passports of January 12, 1915,1 must meet various requirements, e. g., he must make a written application, in the form of an affidavit, to the Secretary of State, duly attested, setting forth the date and place of his birth, his occupation, the place of his permanent residence, and within what length of time he will return to the United States for permanent residence. He must take the oath of allegiance, and give a detailed physical description of his person. The applicant's identity must be established by the certificate of a credible witness. Further particulars are required from naturalized citizens and their children claiming citizenship through the parent's naturalization, from persons born in the United States of Chinese parents, or born abroad of native American fathers, from women, and from residents of an insular possession of the United States. A prescribed fee of one dollar must be paid. As already observed, the applicant for a declarant's passport must show that he has resided in the United States at least three years, that he is not yet eligible for naturalization, that at least six months have elapsed since his declaration of intention, that he has not previously obtained a similar passport, that a special and imperative exigency requires his absence from the United States and that since his declaration of intention he has not applied to any other government for a passport.3

Before a diplomatic claim on behalf of a citizen is presented to any foreign government, the Department of State requires the claimant to make out a prima facie case warranting interposition. In first instance, therefore, the Department, upon receipt of a claim against a foreign government, acts in a quasi-judicial capacity, and it may be said that far more claims are rejected than prosecuted. The Department does not possess the facilities or machinery for a regular judicial inquiry into the merits of a claim, and has therefore prescribed certain rules of procedure for the submission by claimants of memorials invoking the Department's interposition in the prosecution of a claim against a foreign government.

Rules governing the granting and issuing of passports to those who have declared their intention to become citizens of the United States, November 14, 1913. See Moore's Dig. VI, §§ 971-972.

4

For the information of claimants, the Department, on March 5, 1906, published a circular with which claimants are advised to conform as nearly as possible in the submission of memorials. This circular reads:

§303. Instructions for Claimants against Foreign Governments.

"Citizens of the United States having claims against foreign governments, not founded on contract, in the prosecution of which they may desire the assistance of the Department of State, should forward to the Department statements of the same, under oath, accompanied by the proper proof.

The following rules, which are substantially those which have been adopted by commissions organized under conventions between the United States and foreign governments, for the adjustment of claims are published for the information of citizens of the United States having claims against foreign governments of the character indicated in the above notification; and they are advised to conform as nearly as possible to these rules in preparing and forwarding their papers to the Department of State.

Each claimant should file a memorial, in triplicate, properly dated, setting forth minutely and particularly the facts and circumstances from which the right to prefer such claim is derived by the claimant. This memorial should be verified by his or her oath or affirmation.

All subsequent communications to the Department in the nature of statements of fact, arguments, or briefs should likewise be furnished in triplicate.

The memorial and all the accompanying papers should have a margin of at least one inch on each side of the page, so as to admit of their being bound in volumes for preservation and convenient reference; and the pages should succeed each other, like those of a book, and be readable without inverting them.

When any of the papers mentioned in rule II are known to have been already furnished to the Department by other claimants, it will be unnecessary to repeat them in a subsequent memorial. A particular description, with a reference to the date under which they were previously transmitted, is sufficient.

Nor is it necessary, when it is alleged that several vessels have been captured by the same cruiser, to repeat in each memorial the circumstances in respect to the equipment, arming, manning, flag, etc., of such cruiser, which are relied upon as the evidence of the responsibility of a foreign government for its alleged tortious acts. A simple reference to and adoption of one memorial in which such facts have been fully stated will suffice.

It is proper that the interposition of this Government with the foreign government against which the claim is presented should be re

quested in express terms, to avoid a possible objection to the jurisdiction of a future commission on the ground of the generality of the claim. Claims of citizens against the Government of the United States are not generally under the cognizance of this Department. They are usually subjects for the consideration of some other Department, or of the Court of Claims, or for an appeal to Congress.

RULES

In every memorial should be set forth

1. The amount of the claim; the time when and place where it arose; the kind or kinds and amount of property lost or injured; the facts and circumstances attending the loss or injury out of which the claim arises; the principles and causes which lie at the foundation of the claim.

2. For and in behalf of whom the claim is preferred, giving Christian name and surname of each in full.

3. Whether the claimant is now a citizen of the United States, and, if so, whether he is a native or naturalized citizen and where is now his domicil; and if he claims in his own right, then whether he was a citizen when the claim had its origin and where was then his domicil; and if he claims in the right of another, then whether such other was a citizen when the claim had its origin and where was then and where is now his domicil; and if, in either case, the domicil of the claimant at the time the claim had its origin was in any foreign country, then whether such claimant was then a subject of the government of such country or had taken any oath of allegiance thereto.

4. Whether the entire amount of the claim does now, and did at the time when it had its origin, belong solely and absolutely to the claimant; and if any other person is or has been interested therein, or in any part thereof, then who is such other person and what is or was the nature and extent of his interest; and how, when, and by what means and for what considerations the transfer of rights or interests, if any such was made, took place between the parties.

5. Whether the claimant, or any other who may at any time have been entitled to the amount claimed, or any part thereof, has ever received any, and, if any, what, sum of money or other equivalent or indemnification for the whole or any part of the loss or injury upon which the claim is founded; and, if so, when and from whom the same was received.

6. All testimony should be in writing, and upon oath or affirmation, duly administered according to the laws of the place where the same is taken, by a magistrate or other person competent by such laws to take depositions, having no interest in the claim to which the tes timony relates, and not being the agent or attorney of any person having such interest, and it must be certified by him that such is the case. The credibility of the affiant or deponent, if known to such

magistrate or other person authorized to take such testimony, should be certified by him; and, if not known, should be certified on the same paper upon oath by some other person known to such magistrate, having no interest in such claim and not being the agent or attorney of any person having such interest, whose credibility must be certified by such magistrate. The deposition should be reduced to writing by the person taking the same, or by some person in his presence having no interest, and not being the agent or attorney of any person having an interest in the claim, and should be carefully read to the deponent by the magistrate before being signed by him, and this should be certified.

7. Depositions taken in any city, port, or place without the limits of the United States may be taken before any consul or other public civil officer of the United States resident in such city, port, or place, having no interest, and not being agent or attorney of any person having an interest in the claim to which the testimony so taken relates. In all other cases, whether in the United States or in any foreign place, the right of the person taking the deposition to administer oaths by the laws of the place must be verified.

8. Every affiant or deponent should state in his deposition his age, place of birth, residence, and occupation, and where was his residence and what was his occupation at the time the events took place in regard to which he deposes; and must also state if he have any, and, if any, what, interest in the claim to support which his testimony is taken; and, if he have any contingent interest in the same, to what extent, and upon the happening of what event, he will be entitled to receive any part of the sum which may be awarded. He should also state whether he be the agent or attorney of the claimant or of any person having an interest in the claim.

9. Original papers exhibited in proof should be verified as originals by the oath of a witness, whose credibility must be certified as required in the sixth of these rules; but when the fact is within the exclusive knowledge of the claimant it may be verified by his own oath or affirmation. Papers in the handwriting of anyone who is deceased or whose residence is unknown to the claimant may be verified by proof of such handwriting and of the death of the party or his removal to places unknown.

10. All testimony taken in any foreign language and all papers and documents in any foreign language which may be exhibited in proof should be accompanied by a translation of the same into the English language.

11. When the claim arises from the seizure or loss of any ship or vessel, or the cargo of any ship or vessel, a certified copy of the enrollment or registry of such ship or vessel should be produced, together with the original clearance, manifests, and all other papers and documents required by the laws of the United States which she possessed on her last voyage from the United States, when the same are in the