GENERAL CONCLUSIONS

The discussion of the present practice of adjusting international claims may warrant a brief exposition of the defects of the existing system and an indication of a possible line of progress.

In discussing the responsibility of the state in the case of claims arising out of contracts, reference was made to the desirability of submitting such eminently legal claims to the determination of an international court, and removing them from the uncertain channels of diplomacy. This resort to an international forum might be immediate, or follow a preliminary attempt and failure to arrive at a diplomatic adjustment. A considerable advance has already been made by many nations in agreeing to submit to arbitration all claims not involving their independence or national honor. By the Pan-American treaty on pecuniary claims of January 30, 1902, practically all the republics on this continent committed themselves to the obligatory adjudication of pecuniary claims which failed of adjustment by diplomatic negotiation. Moreover, the Central-American Court of Justice and the unratified international prize court convention at The Hague, have adopted the principle that nations can be sued before an international forum at the instance of an aggrieved individual. These evidences of progress give some tangible ground to hope that in the not too distant future all pecuniary claims may be submitted to a permanently established international court, an innovation which would foster individual and national justice and constitute a marked advance toward world peace.

A brief account of the defects of the existing system of instituting and collecting international claims will show the desirability of an improvement in procedure.

The claimant, under present conditions, presents his claim to the Foreign Office of his own government and requests diplomatic interposition. It may be assumed that he has exhausted his local remedies

abroad. It has already been observed that if the claim is one arising out of contract, the espousal of his claim depends largely upon the policy of his government in supporting contractual claims, so that in effect the claimant's remedy in these cases depends primarily upon his nationality-an unjust distinction and discrimination in a case purely legal. Again, the Foreign Office may grant or refuse diplomatic action, as it deems advisable, and it has been judicially determined in the United States, Great Britain and France-and the rule is probably the same in other countries-that the Minister for Foreign Affairs or Secretary of State cannot be compelled by the courts to institute or prosecute a diplomatic claim.1 The claimant's remedy, therefore, depends entirely upon the willingness of his government, in its unimpeachable discretion, to espouse his claim. Again, the Foreign Office may approve his claim, and yet the interests of the nation. or its relations with the defendant government may be such that for political reasons it is deemed inexpedient to press the claim. The archives of Foreign Offices are filled with claims which have accumulated for years, awaiting some happy event which may open the diplomatic channels for their admission to arbitral or other adjustment. The unfortunate and uncertain position of claimants under present conditions is readily apparent.

The defendant government, now often too weak to resist the demands of a strong claimant power supporting a claim intrinsically unjust, would profit greatly by the establishment of an international forum for the adjudication of pecuniary claims. While the Porter proposition, in the matter of contractual claims, is intended to postpone the use of armed force until an offer of arbitration has been refused, there are many and oppressive measures of diplomatic coercion not so violent, but nevertheless as burdensome and annoying, and in result

2

1 There is much to be said for the desirability of securing governmental approval of a citizen's claim as a condition precedent to judicial action. The necessity for such approval may be preserved, or else, as an offset, the individual claimant suing a foreign government before an international court may be compelled to deposit a sufficiently heavy security for costs and good faith as to subject himself to heavy pecuniary penalties if his claim is considered grossly exorbitant or founded in bad

2 Supra, § 122.

as effective, as armed force. Although defendant governments usually insist upon the finality of the decisions of their municipal courts, a demand which, in practice, is not unqualifiedly recognized by foreign governments, they would find their condition vastly improved by the submission of claims to the jurisdiction of an international court.

The claimant government and its Foreign Office would also be greatly relieved by the institution of a permanent court for the adjudication of pecuniary claims. These claims are now first passed upon by the law officers of the Foreign Office, who must act on ex parte evidence and who have not at their disposal the judicial machinery necessary to sift uncertain facts and doubtful evidence. Their determination as to the espousal or rejection of the claim is not based upon satisfactory data, and their responsibility in setting the diplomatic machinery in operation is not inconsiderable. To make international action, often of vast financial, and at times political, importance, depend upon an administrative decision based upon ex parte evidence, alone invites injustice to one or other of the interested parties.

Finally, the fact that the prosecution of pecuniary claims depends so largely upon political considerations, and the fact that the accumulation of unsatisfied claims always embodies the germ of international misunderstanding and controversy, present unassailable grounds for compelling the just, speedy and peaceful solution of the rights. of the parties.

The existing conditions give reason to express the hope that international pecuniary claims arising out of injuries to citizens may gradually be removed from the arena of international controversy, with its dangers to the amicable relations of states, and be submitted to an international forum for judicial determination. Such a forward step in the development of international relations would assure the claimant of a fair judicial hearing (which is not now the case), and the determination of his rights and his remedy would not depend upon his nationality or upon the strength, policy, or willingness of his government to entertain the claim, but upon the merits of his case. The defendant government would be relieved from the diplomatic pressure of unjust claims which by its very weakness it now feels itself often unable to resist. The Foreign Office of the claimant government

would be immeasurably relieved by not having to present claims on ex parte evidence and enter into diplomatic correspondence which often disturbs friendly relations. The peace of the world would be advanced by removing from the field of conflict what is now always a germ of international difficulty. The divorce of pecuniary claims from political considerations, a union which now not only results in inexact justice, but often gross injustice, and the submission of such claims to the determination of an independent international tribunal, must make a universal appeal to man's sentiment for justice.

Bernheim, A. C. The history of the law of aliens from the standpoint of comparative jurisprudence. New York, 1885.

Esperson, P. Condizione juridiche dello straniero secondo le legislazioni e le giurisprudenze italiana ed estere. Milano, 1889-1892. 2 v.

Frisch, Hans von. Das Fremdenrecht. Die staatsrechtliche Stellung der Fremden. Berlin, 1910.

Das Fremdenrecht, von Kurt Wolzendorff (based on Frisch's work). (67 Ztschr. f. d. ges. Staatswissenschaft, 1911, 561-569.)

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Burge, Wm. Commentaries on colonial and foreign laws generally. . . . New edition by A. W. Renton and G. G. Phillimore . . . in six volumes. London, 1907-1914. v. 1-4.

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Moore's Dig., IV., ch. 13, pp. 1-238.

The continental works on private international law, particularly:

Weiss, André. Traité théorique et pratique de droit international privé. 2. éd. Vol. 2. Paris, 1908.

Rolin, Albéric. Principes de droit international privé. Pt. 1, titre 2, Paris, 1897.

Pillet, Antoine. Principes de droit international privé. Ch. 6, pp. 166–209. Paris, 1903.

Laurent, François.

Droit civil international. Vol. 1. Bruxelles, 1880.

Report of (British) naturalization commission as to rights and duties of aliens. 1869, appendix, II, pp. 113-136.

Les droits de l'état et les droits de l'immigrant étranger, par Charles Turgeon. (2 Rev. dr. pub., 1894, 391-423.)

Le droit de la nation et le droit de l'étranger, par Charles Turgeon. (2 Rev. d'écon. pol., 1888, 233-277.)

De la loi applicable à l'état, à la capacité et aux meubles des étrangers, par Polydore de Paepe. (32 R. D. I., 1900, 378-434.)

La condition des étrangers et le droit international, by Thomas. 4 R. G. D. I. P. (1897), 620-645.

Pappafava, V. Historische Notizen über die bürgerliche Rechtstellung der Fremden. Vienna, 1892. (Separat-abdruck aus der Juristischen Rundschau, Vol. 5, Nos. 17-20.)

De la condition juridique des juifs, par A. Giron. (31 R. D. I., 1899, 127–144.)