"It is not within the power of a citizen to make a contract limiting in any manner the exercise by his own government of its rights or the performance of its duties" (the right and duty of protecting its citizens abroad). "The individual citizen is not competent by any agreement he may make to bind the state to overlook any injury to itself arising through him, nor can he by his own act alienate the obligation of the state toward himself, except by a transfer of his allegiance."

In the Selwyn case the question under dispute was still pending in the local courts. Plumley, Umpire, stated that

"within the limits prescribed by the convention constituting it the parties have created a tribunal superior to the local courts,"

and it is not affected jurisdictionally by the fact that the question submitted for its decision is pending in the courts of one of the nations.2 The second class of cases embraces those in which the government has annulled the contract or some important term of it and then sought to estop the claimant by alleging the binding character of the renunciatory clause as a bar to the international claim. In such cases international courts have been apparently very willing to construe the breach by the government as relieving the claimant from his stipulation to be bound by the decision of the local courts and not to make the contract the subject of an international claim. They begin with the premise that the obligations of the clause bear equally and reciprocally upon both parties to the contract-the government and the claimant and that when the government, without resort to the local tribunals, declares the contract null, the claimant is absolved from all obligations limiting his remedial rights.3 The basis for this decision, which finds ample support, bears an analogy to the rule of the Departwhich was rendered by the umpire, Barge. Bainbridge's opinion, however, appears not to have been contradicted by the umpire.

1 Selwyn (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 322, 323.

2 Barge, Umpire in the Rudloff case, in which a suit was likewise pending before the local courts also considered that the commission had jurisdiction, notwithstanding the pendency of the case in the local courts.

3 Rudloff (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 182, 183. See also opinion of Commissioner Little in the case of Day and Garrison v. Venezuela, Dec. 5, 1885, Moore's Dig. VI, 301-2. Commissioner Findlay, however, declined to give the annulment by the Government this effect in the Flannagan case before the 1885 Commission. Barge likewise refused to give it such effect in several cases before the 1903 U. S.-Venezuelan commission.

ment of State and international tribunals, to relieve the claimant, where there has been a confiscatory breach of contract, from the usual practice of a denial of interposition or jurisdiction in contract claims. Mr. Blaine, Secretary of State, in the case of McMurdo 1 stated that it is

"not within the power of one of the parties to an agreement first to annul it, and then to hold the other party to the observance of the conditions as if it were a subsisting agreement."

The same rule was applied by the international commission which subsequently passed upon the claim.

2

In the North and South American Construction Co. case against Chile, the fact that the government had failed to comply with the stipulation referring the claim to private arbitrators was held to relieve the claimant from his obligation not to invoke the protection of his own government in the enforcement of his rights. The American. Commissioner, Vidal, in the Milligan case against Peru, likewise stated that through the annulment of the contract by the government of Peru, the claimant recovered the right which he had renounced to invoke the protection of his government. While Pino, the Peruvian commissioner, did not support Vidal in this decision, but considered the clause as a complete bar to the claim, Vidal's opinion seems to have prevailed, inasmuch as by subsequent agreement between the commissioners an award was made in favor of the claimant.

In the third class of cases, the international tribunal circumvented 1 McMurdo (U. S.) v. Portugal, June 13, 1891, Moore's Arb. 1865 et seq.; Mr. Blaine, Sec'y of State, to Mr. Loring, Minister to Portugal, Nov. 30, 1889, Moore's Dig. VI, 297, Moore's Arb. 1870.

2 North and South American Construction Co. (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2318-2322.

3 Milligan (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1643. In the case of La Guaira Electric Light and Power Co. (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 178–182, Mr. Ralston, in his work on International arbitral law makes the statement that Commissioner Bainbridge, speaking for the commission, said that as to a part of the claim, it was not one "in which the government itself had violated a contract to which it was a party. In such a case, the jurisdiction of the commission under the terms of the protocol is beyond question." In the La Guaira Electric case, however, the contract was not with the government at all, but with a municipality, for which reason the claim was dismissed. Moreover, there is no evidence from the case, as reported, that the contract contained the renunciatory clause.

the inhibitory effect of the renunciatory clause by holding that the subject of the claim arose not out of a "doubt or controversy" under the contract, but out of a deprivation of property rights or breach of contract or some other element which relieved the commission from directly construing the effect of the renunciatory clause.

So in the Selwyn case, Umpire Plumley based his decision upon the ground that

"the claim before him has in no particular to deal with any doubts and controversies . . . regarding the spirit or execution of the contract in which such terms appear. The fundamental ground of this claim as presented is that the claimant was deprived of valuable rights, of moneys, properties . . . and rights of property, by an act of the Government which he was powerless to prevent and for which he claims reimbursement. . . The fundamental feature of this claim . . . is not a matter of contract." 1

A somewhat similar conclusion was reached in the Rudloff, the Martini, and other cases before the Venezuelan mixed commissions sitting at Caracas in 1903.2

§ 378. Conclusions.

What conclusion may be drawn as to the effect of the renunciatory 1 Selwyn (Gt. Brit.) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 322.

2 Rudloff (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 188. Umpire Ralston in the Martini case (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 843 held that the closing of a certain port was a violation of the contract and not a doubt and controversy as to its interpretation and execution.

A similar conclusion was reached by Paúl, Venezuelan commissioner in the case of Del Genovese (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 174–178, in which the breach of the contract was apparently not held to be a "dispute and controversy." So in the case of the American Electric and Manufacturing Co. (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 246-250, Barge, umpire, held that the breach of a collateral promise (to annul a previous concession granted to another) was not a "doubt and controversy" under the contract on which claim was brought. He then held, however, that as the promise to annul a previous concession, which also contained the Calvo clause, was in itself a promise to do an illegal act, the breach of such promise could not be made the basis of a claim. No two of Umpire Barge's decisions construing the renunciatory clause seem to be consistent with each other. See also the cases of the Antofagasta and Bolivia Railway Co. (Gt. Brit.) v. Chile, Sept. 26, 1893, Reclamaciones presentados al Tribunal Anglo-Chileno, III, p. 699 at p. 788 et seq.; and Robert Stirling (Gt. Brit.) v. Chile, ibid. I, p. 128 at p. 152 et seq, cited by Ralston in his International artibral law, 42-43. See also Cora and La Vela Ry. & Impr. Co. (U. S.) v. Venezuela, Feb. 17, 1903, Morris' Rep. 69, 70.

clause? Great Britain, Germany, and the United States appear to have considered themselves not bound by its terms. Mr. Bayard expressly stated:

"The United States has uniformly refused to regard such provisions as annulling the relations existing between itself and its citizen or as extinguishing its obligations to exert its good offices in their behalf in the event of the invasion of their rights."

1

Furthermore, said Mr. Bayard in another connection:

"No agreement by a citizen to surrender the right to call on his government for protection is valid either in international or municipal law." 2

A close analogy is found in the settled principle of municipal law by which stipulations in private contracts agreeing to resort to arbitration and renouncing judicial remedies are held invalid, on the ground that it is against public policy "to sanction contracts by which the protection which the law affords the individual citizen is renounced." 3 The weight of authority supports the view that the mere stipulation to submit disputes to local courts is confirmatory of the general rule of international law and will be so construed by the national government of concessionaries. If, however, the renunciation goes so far as to preclude recourse to diplomatic protection, even in cases of denial of justice, the renunciation of protection will not be considered as binding upon the claimant's government; for, as in municipal law the private agreement cannot oust the jurisdiction of municipal courts, so in international law the private agreement cannot oust the interposition of international remedies. Again, if there has been a confiscatory breach of the contract by the government, the claimant will

1 Mr. Bayard, Sec'y of State, to Mr. Hall, Minister to Central America, Mar. 22, 1888, For. Rel., 1888, I, 134, 137, with respect to the claim of the Champerico and Northern Transportation Co. v. Guatemala, growing out of an alleged violation by that government of its contract with the company. Moore's Dig. VI, 295. See also Mr. Wilson, Act'g Sec'y of State, to Mr. Hibben, Chargé, May 19, 1909, For. Rel., 1909, p. 222.

2 Mr. Bayard, Sec'y of State, to Mr. Hill, Feb. 16, 1887, For. Rel., 1887, p. 100. 3 Delaware & Hudson Canal Co. v. Pa. Coal Co., 50 N. Y. 250, 258; National Contracting Co. v. Hudson River Water Power Co., 170 N. Y. 439, 442; Hamilton v. Liverpool, L. & G. Ins. Co., 136 U. S., 242, 254 (dictum). See R. Floyd Clarke in 1 A. J. I. L. (1907), 378 et seq., and L. von Bar in his opinion in the case of Salvador Commercial Co. v. Salvador, 45 Jhering's Jahrbücher, 193.

be relieved from the stipulation barring his right to make the contract the subject of an international claim. While some arbitrators, notably Umpire Barge, have evolved the rule that the clause is binding upon the claimant, but not on his government, it is difficult to see how such an inconsistent rule can be applied,' and in fact these arbitrators have taken jurisdiction of claims in such circumstances and made awards. Finally, the right of the government to submit the claims of its citizens to an international tribunal, is, it may be concluded, superior to the right or competency of the individual to contract it away, for whatever the individual's power to renounce a personal right or privilege, he does not represent the government and is, therefore, incompetent to renounce a right, duty, or privilege of the government. In sum total, therefore, the better opinion seems to be that the renunciatory clause is without any effect so far as any changes or modifications in the ordinary rules of international law are concerned.

IMPLIED RENUNCIATION OF PROTECTION

§ 379. Various Acts from which Renunciation is Implied.

It will have been observed in the discussion of expatriation, express and implied, and of censurable conduct as a method of forfeiting protection,3 that there are numerous ways in which protection may be renounced by implication. During the latter half of the nineteenth century, the long-continued residence of native citizens abroad was regarded as a voluntary renunciation of protection. Even when it was admitted that such foreign residence did not effect expatriation, the Department of State was guided largely by Secretary Fish's theory, that "citizenship involves duties and obligations, as well as rights. The correlative right of protection by the Government may be waived or lost by long-continued avoidance and silent withdrawal from the performance of the duties of citizenship, as well as by open renunciation."

Since the improvement in the facilities for communication and 1 Mr. Bayard correctly stated that "to deny to a foreigner recourse to his Government by necessary implication questions and denies the right of that Government to intervene." Mr. Bayard to Mr. Hall, Nov. 29, 1886, For. Rel., 1887, p. 80. 2 Supra, §§ 319, 325 et seq.

3 Supra, §§ 337 et seq.

'Moore's Dig. III, § 474.

"Mr. Fish, Sec'y of State, to Mr. Niles, Oct. 30, 1871, Moore's Dig. III, 762.