The Institute of International Law deprecates the practice of concluding treaties in which states hold themselves irresponsible for injuries inflicted during civil war insurrections or riots. The resolution passed at the session of 1900 reads as follows:

"The Institute of International Law recommends that states should refrain from inserting in treaties clauses of reciprocal irresponsibility. It thinks that such clauses are wrong in excusing states from the performance of their duty to protect their nationals abroad and their duty to protect foreigners within their own territory. It thinks that states. which by reason of extraordinary circumstances do not feel able to assure in a manner sufficiently efficacious the protection of foreigners on their territory can escape the consequences of such a state of things only by temporarily denying to foreigners access to their territory." 1

European nations in supporting claims of their citizens arising out of civil wars and insurrections, regardless of whether insurgents or authorities caused the injury, take the ground that the responsibility of the state is due to a lack of diligence in preventing or suppressing uprisings. This ground, it is believed, could hardly be general, for "the highest interests of the state are too deeply involved in the avoidance of such commotions to allow the supposition to be entertained that they have been caused by carelessness on its part which would affect it with responsibility towards a foreign state." 2 Moreover, if they were negligent in fact, it would be extremely difficult to prove, and if the claims rested upon this basis alone few of them could be prosecuted to payment. As a matter of fact, the ground is advanced for plausibility only, and assuming that the states are so organized that civil commotion is only a fortuitous event and not one invited by lack of proper political and police organization, we must support the Latin-American states in their endeavors to be relieved from the diplomatic pressure of claims resulting from injuries sustained in the operations incident to civil war.

1 Annuaire, 1900, pp. 254-256.

2 Hall, International law, 5th ed., 1904, p. 223. See also, Fiore, Nouveau droit international public, Antoine's translation, § 673 et seq.; Pillet, Les lois de la guerre, p. 29; Wiesse, Le droit international appliqué aux guerres civiles, § 14; Leval, La protection diplomatique, § 103; Pittard, Protection des nationaux, 1896, pp. 281

§ 392. Legislative Limitations to Avoid Claims Based upon Tortious Injuries.

The second, and perhaps the largest, class of claims to forestall which various Latin-American states have enacted legislation limiting the diplomatic protection of foreigners, are those arising out of acts of violence or oppression in times of nominal peace. The limitation consists in denying the lawfulness of diplomatic interposition in these cases, except where there is a denial of justice. In enacting such legislation, these states of Latin-America base themselves squarely upon the Calvo doctrine, namely, that every claim advanced by a foreigner, whether against an individual or against the state, must find its final settlement before the local courts, and only in the event of a denial of justice can diplomatic interposition be entertained. The law of Venezuela, typical of many of these provisions, reads as follows (law of April 16, 1903, Art. 11):

"Neither domiciled aliens nor those in transit have the right to have recourse to diplomatic intervention except when legal means having been exhausted before the competent authorities, it is clear that there has been a denial of justice, or a notorious injustice has been done or that there has been an evident violation of the principles of international law." 1

Article 3 of the Convention adopted by the Second Pan-American Conference 2 on the rights of aliens provides:

"Wherever an alien shall have claims or complaints either civil, criminal or administrative, whether against a state or its citizens, he

196 State Papers, 647, and 8 R. D. I. privé (1912), p. 9; Venezuela, Executive Decree of Nov. 13, 1912, 8 A. J. I. L. (1914), Suppl. 174-175 and criticism by A. de Busschère on the ground of its liberality in 3 Rev. de derecho y leg. (Caracas), Oct. 1913, pp. 3-6; see also Costa Rica, law of December 20, 1886, Moore's Dig. VI, pp. 269–270; Salvador, law of September 27, 1886, Art. 39, Moore's Dig. VI, 267, For. Rel., 1887, p. 69; Salvador, Legislative decree of May 10/30, 1910, arts. 4 and 18, Libro rosado; Ecuador, law of August 26, 1892, Art. 10, 84 State Papers, 645; Mexico, law of May 28, 1886, Art. 35, Legislación mexicana, Vol. 17, p. 474 et seq., For. Rel., 1895, II, 1012; Guatemala, Constitution, Art. 23, Rodriguez, I, 239; Nicaragua, Constitution, Art. 11, Rodriguez, I, 362; Peru, law of April 17, 1846, Pradier-Fodéré, op.cit., III, 234; Honduras, Constitution, Art. 14, Alvarez, op. cit., 120; Bolivia, decree of May, 1871, For. Rel., 1871, p. 39.

2 Sen. Doc. 330, 57th Cong., 1st sess., p. 228.

shall present his claims to a competent court of the country and such claims shall not be made through diplomatic channels except in the cases where there shall have been on the part of the court a manifest denial of justice or unusual delay, or evident violation of the principles of international law."

This convention, which expresses the Latin-American contention, has been incorporated into their constitutions and statutes and has found expression in a number of treaties concluded between European and American states.1 Mexico seems to have had little difficulty in negotiating such treaties. In 1890, the United States declined to conclude a treaty with Ecuador containing such a clause, not because the United States did not recognize the principle, but because difficulty was felt in introducing into "our conventional relations with a single state stipulations which, although not novel in design, are yet so in form, and which might for that reason be open to misconstruction."

In some treaties the exemption from diplomatic interposition, except in cases of manifest denial of justice, has specific reference only to the case of aliens taking part in civil struggles and provides that these shall be treated as nationals without recourse to diplomatic interposition except in cases of denial of justice. As will be noted, these aliens are frequently considered as nationals by local legisla

3

1 Germany and Mexico, Dec. 5, 1882, Art. 18, Martens' Recueil des traités, Vol. 59, p. 474; Sweden and Norway and Mexico, July 29, 1885, Art. 21, ibid., Vol. 63, p. 690; France and Mexico, Nov. 27, 1886, Art. 11, ibid., Vol. 65, p. 843; Holland and Mexico, Sept. 22, 1897, Art. 16, ibid., Vol. 83, p. 188; Germany and Colombia, July 23, 1892, Art. 20, ibid., Vol. 69, p. 842; Italy and Colombia, Oct. 27, 1892, Art. 21, ibid., Vol. 72, p. 313; Spain and Peru, July 16, 1897, Art. 6, Olivart's Colección de tratados de España, Vol. 12, p. 348, 4 R. G. D. I. P. (1897), 795; Spain and Colombia, April 28, 1894, Art. 6, Olivart, op. cit., Vol. 11, p. 63; France and Venezuela, Nov. 26, 1885, Art. 5, Martens' Recueil, Vol. 62, p. 684; United States and Peru, Sept. 6, 1870, Art. 37, Martens' op. cit., Vol. 51, p. 107; Pradier-Fodéré, op. cit., III, 236; For. Rel., 1883, p. 913; Great Britain and Bolivia, August 1, 1911, art. 10, Treaty Series, 1912, 223. See also Tchernoff, La protection des nationaux, pp. 295–296.

2 Mr. Blaine, Secretary of State, to Mr. Caamano, May 19, 1890, Moore's Dig. VI, 270.

'Spain and Ecuador, May 23, 1888, Art. 3, Olivart's Colección de tratados de España, Vol. 9, p. 27; Spain and Honduras, Nov. 17, 1894, Art. 3, Olivart, op. cit., Vol. 11, p. 156; Belgium and Ecuador, March 5, 1887, Art. 3, Martens' Recueil, Vol. 65, p. 741; Italy and Colombia, Oct 27, 1892, Art. 5, ibid., Vol. 72, p. 310.

tion, and most countries limit diplomatic interposition in their case to gross violations of the laws of war as applied against them.

§ 393. Subtle Legislative Measures to Avoid Interposition.

Besides these frank attempts to restrict diplomatic interposition, much ingenuity has been shown by various states of Latin-America in devising more subtle measures to bring about the desired results. The first method is to provide that "foreigners are entitled to enjoy all the civil rights enjoyed by natives," and that "a nation has not, nor does it recognize in favor of foreigners, any other obligations or responsibilities than those established by [its] constitution and laws in favor of [its] citizens." These provisions are a direct result of the resolutions of the Pan-American Conferences of 1889 and 1901, which were subscribed by almost all the states represented except the United States. Articles 1 and 2 of the convention on the rights of aliens adopted at the Second Pan-American Conference at Mexico, 1901-1902, have been reincorporated into the constitutions and laws of the majority of the Latin-American republics. This convention provides:

(1) "Aliens shall enjoy all civil rights pertaining to citizens and may make use thereof in the substance, form or procedure and in the recourses which result therefrom, under exactly the same terms as the said citizens, except as may be otherwise provided by the constitutions of each country."

The reservation embodied in the words "except as may be otherwise provided by the constitution of each country" leaves the effect of the convention in some doubt.

Article 2 provides:

"The states do not owe to, nor recognize in favor of foreigners any obligations or responsibilities other than those established by their constitutions and laws in favor of their citizens." 1

1 Sen. Doc. 330, 57th Cong., 1st sess., p. 228. One American writer, Edgington, in considering the effect of placing foreigners on an equality with citizens, states rather sarcastically that this gives the foreigner the inestimable privilege of being robbed on the same lamentable terms as the citizen. See also Alvarez, op. cit., 234– 235; Calvo, op. cit., VI, § 256, p. 331; For. Rel., 1893, pp. 731–734.

The Third Pan-American Conference at Rio de Janeiro, 1906, did not renew the convention on the rights of aliens adopted at the Mexican Conference in 1901, but

Mr. Trescott, the delegate of the United States at the Conference of 1889, foresaw that such a provision was an attempt to forestall diplomatic intervention by "an internal legislative limitation of liability," a proposition which the United States government has never admitted as having force in determining the responsibility of states to one another.1 This attempted limitation is, of course, merely supplementary to a general provision in every state system in LatinAmerica that foreigners must submit themselves for all purposes to the local law.2

The United States has never receded from its position that a citizen's right to ask the protection of his government does not depend upon the local law, but upon the law of his own country, and that the limits of diplomatic protection are fixed by international law without possibility of restriction by municipal legislation.3

seems to have left the matter to be governed by the principles of international law. Alvarez, op. cit., 235.

The following constitutions, among others, embody this provision:

Colombia, Art. 11, Rodriguez, II, 321; Costa Rica, Art. 12, Rodriguez, I, 328; Ecuador, Art. 37, Rodriguez, II, 283; Honduras, Art. 11, Rodriguez, I, 362; Nicaragua, Arts. 7-8, Rodriguez, I, 301; Panama, Art. 9, Rodriguez, I, 394; Paraguay, Art. 33, Rodriguez, II, 388.

The following laws contain a similar provision:

Guatemala, Law of Feb. 21, 1894, Art. 47, 86 State Papers, 1281 et seq.; Mexico, Law of May 28, 1886, Art. 30, For. Rel., 1895, II, 1012; Legislación mexicana, Vol. 17, p. 474 et seq.; Venezuela, decree of Nov. 13, 1912, 8 A. J. I. L. (1914), Suppl. 174–175. 1 Report on the Uniform Code of International Law at the First International American Conference, Sen. Ex. Doc., 51st Cong., 1st sess., pp. 28, 29; Mr. Fish, Secretary of State, to Mr. Foster, Minister to Mexico, July 15, 1875, Moore's Dig. VI, 310. See Mr. Bayard's statement with reference to the Venezuelan law of February 14, 1873, Moore's Dig. VI, 745; see also For. Rel., 1887, p. 99; 1888, p. 491; 1893, pp. 731-732.

2 Salvador, Constitution, Art. 45, Rodriguez, I, 268; Cuba, Constitution, Art. 10, Rodriguez, II, 115; Salvador, law of September 29, 1886, Art. 38, 77 State Papers, 116; Colombia, law of November 28, 1888, Art. 9, 79 State Papers, 167 et seq.

3 Mr. Bayard to Mr. Hall, Feb. 16, 1887, For. Rel., 1887, p. 99; Mr. Bayard to Mr. King, Oct. 13, 1886, For. Rel., 1887, p. 246; Mr. Partridge to Mr. Gresham, For. Rel., 1893, p. 731; Mr. Frelinghuysen to Mr. Soteldo, April 4, 1884, For. Rel., 1884, p. 599, Moore's Dig. VI, 321; Mr. Olney, Sec'y of State, to Mr. Dupuy de Lôme, Feb. 17, 1896 and Mr. Rockhill, Act'g Sec'y of State, to same, July 25, 1896, For. Rel., 1896, pp. 677 and 680; Miliani (Italy) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 756. See the series of quotations and extracts collected by Plumley, Umpire, in Aroa