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With the drawing together of the world by increased facilities for travel and communication, the number of persons going abroad for purposes of business or of pleasure has steadily increased. Coincidentally, an increasing amount of capital, American as well as European, has been seeking investment in foreign countries, and the growth of international commerce and intercourse has resulted in the creation of vast commercial and other interests abroad. These movements of men, money, and commodities, while of economic advantage to the exploiting and to the exploited country and establishing bonds of mutual dependency between them, also create occasional friction.
The individual abroad finds himself in legal relation to two countries, the country of which he is a citizen, and the country in which he resides or establishes his business. From the point of view of the one, he is a citizen abroad; from the point of view of the other, he is an alien. The common consent of nations has established a certain standard of conduct by which a state must be guided in its treatment of aliens. In the absence of any central authority capable of enforcing this standard, international law has authorized the state of which the individual is a citizen to vindicate his rights by diplomatic and other methods sanctioned by international law. This right of diplomatic protection constitutes, therefore, a limitation upon the territorial jurisdiction of the country in which the alien is settled or is conducting business.
The standard of treatment which an alien is entitled to receive is incapable of exact definition. The common practice of the civilized nations and the adjudication of conflicts between nations, particularly by arbitration, arising out of alleged violations of the rights of citizens abroad, have nevertheless developed certain fundamental principles from which no nation can depart without incurring international responsibility to the national state of the person injured. The right which every state possesses to protect its citizens abroad is correla
tive to its obligation to accord foreigners a measure of treatment satisfying the requirements of international law and applicable treaties, and to its responsibility for failure to accomplish this duty. Practice has demonstrated that the mere fact that aliens have been granted the rights authorized by local law, and equality of treatment with natives, is not necessarily regarded as a final compliance with international obligations, if the local measure of justice and administration in a given case falls below the requirements of the international standard of civilized justice, although it is always a delicate proceeding, in the absence of extraterritoriality, to charge that a rule of municipal law or administration fails to meet the international standard.
Citizens abroad, therefore, have in the vindication of their rights an extraordinary legal remedy not open to natives. However just it may be to confine the alien to the rights granted by local law, predicating state liability merely upon the state's failure to make its grant effective, practice has shown that nations of the Western European type are unwilling unreservedly to concede the application of this principle to some of the weaker countries of the world. While tacitly undertaking to abide by the local law, a rule supported by principle, international practice has given aliens a reserved power, after the vain exhaustion of local remedies, to call upon the diplomatic protection of their own government, if their rights, as measured not necessarily by the local, but by the international, standard have been violated. The citizen abroad has no legal right to require the diplomatic protection of his national government. Resort to this remedy of diplomatic protection is solely a right of the government, the justification and expediency of its employment being a matter for the government's unrestricted discretion. This protection is subject in its grant to such rules of municipal administrative law as the state may adopt, and in its exercise internationally to certain rules which custom has recognized.
The study of the right of diplomatic protection, therefore, involves an examination of three distinct legal relations: that existing, first, between the state and its citizen abroad; secondly, between the alien and the state of residence; and, thirdly, between the two states concerned with respect to their mutual rights and obligations. In
Part I of this work these relations will be discussed somewhat independently. The line of development will involve, first, a study of the relation between the state and its own citizen, particularly in respect to the state's right and obligation to protect him, and secondly, a study of the rights of the alien in the country of his residence under the general principles of international law and in municipal law, comparatively treated. If the rights of an alien are invaded, he must, as a general rule, in first instance, resort to the remedies provided by municipal law. The attempt has, therefore, been made in the third chapter, which deals with the municipal responsibility of the state, to study, in the field of municipal public law, comparatively considered, the incidence of liability between the state and the wrongdoing officer, and the remedies afforded to the injured individual in cases where public responsibility is alleged. If these municipal remedies are exhausted in vain and a denial of justice in the international sense is alleged by the alien's national government, the international responsibility of the state of residence is invoked. In other words, the deviation by a state from the special obligations of treaties, or from that international standard of civilized justice to which the alien, by universal recognition, is entitled, gives rise to its international responsibility toward the alien's national government. The fourth and following chapters, on international responsibility, lead, finally, to a consideration of the relation between the two states concerned, the protecting state and the state of residence.
In Part II, the nature, exercise, and effect of protection are discussed, and particularly the relation between the public claim of the state and the private claim of the injured citizen. Among other matters, the following topics receive consideration: the theory of the protective function and its operation, the true nature of an international claim arising out of an injury to a citizen, the relation between the public and the private demand, in international and in municipal law, the discretionary nature of protection, the control of the government, the extent of protection, the means of protection, and the collection and distribution of indemnities and arbitral awards.
In Part III, the person or national interest receiving protection is considered. This involves a study of citizenship in its international relations and of those persons, entities and objects which are entitled to national protection.
In Part IV, the 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 are considered, including the conditions prescribed by the protecting government, and the limitations arising out of the act or failure to act of the citizen himself, out of the subject matter, and out of the necessity for taking account of the primary interests of the state and the accepted rules of international intercourse.
In the present work, the practice of the United States through the Department of State and of other countries through their Foreign Offices, in the exercise of the right of diplomatic protection, and the awards of arbitral tribunals passing upon international pecuniary claims have been used as principal sources. The practice of the United States in matters of diplomatic protection may well be regarded as a close approach to a just standard of international practice, for the United States has been and is both an exploiting and an exploited country. The views and the principles it has declared in the exercise of its right to protect American citizens abroad have, as a general rule, been tempered by the knowledge that it must recognize as belonging to aliens within this country the same rights that it seeks to establish for its citizens abroad, the measure of its obligations being the measure of its rights. The effort has been made to discount argumentative and controversial positions which have occasionally been assumed, where a course has been adopted without regard either to the real principles involved or to the ultimate interests of the United States.
The decisions and awards of arbitral tribunals passing upon pecuniary claims instituted by aliens, through their national governments, against the foreign governments in which they may reside or do business are a most important guide in determining the reciprocal rights and obligations of states in the protection of individuals. By the submission of a private claim to arbitration the two countries in controversy provide a forum to determine the extent of the legal injury which the state has sustained in the person of its citizen, and the legal right to and amount of reparation payable as indemnity. The two