If there are no courts in the country of residence, or if access thereto is denied him, the territorial sovereign is believed to fail in its duty.1

When the alien is a complainant, he should be enabled to invoke the aid of a tribunal free to disregard the political importance of his adversaries, even though they are the agents or officers of the State.2 If he is the object of criminal prosecution, the court should be able and disposed to protect him from persecution.

If in anticipation of injury to his person or property the alien invokes the aid of the judicial department, the agencies thereof must be diligently employed according to the means available and commensurate with the circumstances arising, to prevent the perpetration of wrongful or criminal acts; and the requisite force must be set in motion to prosecute criminally wrongdoers who succeed in accomplishing their will. Thus the failure of the local authorities, when duly warned, to invoke judicial aid either to prevent the commission of acts of mob violence, or to ascertain the identity of and institute proceedings against the actors, would indicate a distinct neglect of a duty of jurisdiction.3 Such remissness would be the more reprehensible should the judicial or other authorities of the territorial sovereign connive at the acts of violence, or abet the actors.1

Finally, the courts should be clothed with power not only to denounce the illegality of acts that are proven to be wrongful, but also to decree that a guilty defendant make restitution. It is believed that this is true even when the wrongdoer is an agency of 1 Mr. Fish, Secy. of State, to Mr. Foster, Minister to Mexico, No. 21, Aug. 15, 1873, MS. Inst. Mexico, XIX, 18, Moore, Dig., VI, 678.

Declared Mr. Bayard, Secy. of State, in a communication to Mr. Jackson, Minister to Mexico, Sept. 7, 1886: "In the present case, for instance, it was the duty of the claimant, if possible, to exhaust his remedy in the Mexican courts before he came to this Department for its intervention. But when he was precluded from so doing by the adverse proceedings instituted against him by the Mexican authorities, by which he was prevented from making out his case, we must hold that justice was not only denied him, but denied in violation of settled principles of international law." MS. Inst. Mexico, XXI, 574, Moore, Dig., VI, 680.

See opinion of Dr. Wharton, Solicitor of State Dept., in case of W. A. Davis v. Great Britain, 1885, cited in letter of Mr. Day, Acting Secy. of State, April 6, 1898, 227 MS. Dom. Let. 228, Moore, Dig., VI, 699.

2 Lord Palmerston, in the House of Commons, June 25, 1850, in case of Don Pacifico, Moore, Dig., VI, 681. See, also, Promemoria of the German Embassy at Washington, Dec. 11, 1901, concerning claims against Venezuela, For. Rel. 1901, 192, Moore, Dig., VI, 692.

3 Mr. Blaine, Secy. of State, to Mr. Dougherty, Chargé, No. 430, Jan. 5, 1891, MS. Inst. Mexico, XXIII, 14, 21, Moore, Dig., VI, 802, 803.

4 Mr. Fish, Secy. of State, to Mr. Partridge, Minister to Brazil, No. 141, March 5, 1875, MS. Inst. Brazil, XVI, 455, Moore, Dig., VI, 815, 816.

the State itself. Whether the alien suffers wrong at the hands of a private individual or through the laches of the State, the victim should be given a means of redress by judicial process against the wrongdoer. Whenever such means are lacking the territorial sovereign fails, at least in principle, to fulfill a duty of jurisdiction.1

(2)

§ 269. When the Aid of the Courts Is Invoked against the Alien.

When an alien is the object of criminal prosecution or is made a defendant in a suit instituted by the territorial sovereign, the duty of jurisdiction with reference to him is equally apparent.2 Obviously the judicial system designed for the protection of life and property must not be employed as an instrument of oppression.3 The alien when prosecuted criminally must be given opportunity to summon witnesses in his own behalf and to interrogate them. He must be informed of the nature of the charges preferred against him and be enabled to defend himself with the aid of counsel.5

3

CLAIMS

a

§ 270. In General.

A claim in international law may be defined as a demand for redress made by one State upon another by reason of the alleged

1 "How Far is the Position of Resident Aliens Recognized and Protected by International Law", Proceedings, Am. Soc. Int. Law, V. 32.

2 Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, Sept. 7, 1886, MS. Inst. Mexico, XXI, 574, Moore, Dig., VI, 680. See Rights of Jurisdiction, The Establishment of a Judicial System, supra, § 219.

3 Mr. Evarts, Secy. of State, to Mr. Baker, Minister to Venezuela, Oct. 15, 1880, For. Rel. 1880, 1041, 1043, Moore, Dig., VI, 768; Mr. Marcy, Secy. of State, to Mr. Clay, Minister to Peru, No. 30, May 24, 1855, MS. Inst. Peru, XV, 159, Moore, Dig., VI, 659; Mr. Blaine, Secy. of State, to Mr. Dougherty, Chargé, No. 423, Dec. 29, 1890, MS. Inst. Mexico, XXII, 687, Moore, Dig., VI, 773; Mr. Root, Secy. of State, to Mr. Furniss, Minister to Haiti, Feb. 1, 1907, For. Rel. 1907, II, 744.

4 Mr. Conrad, Acting Secy. of State, to Mr. Peyton, Chargé to Chile, Oct. 12, 1852, MS. Inst. Chile, XV, 93, Moore, Dig., VI, 274.

15 Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, Minister to England, April 25, 1882, For. Rel. 1882, 230–233, Moore, Dig., VI, 275; Mr. Bayard, Secy. of State, to Mr. West, British Minister, June 1, 1885, For. Rel. 1885, 450, 453-454, Moore, Dig., VI, 277–279.

wrongful conduct of that other.' The same term is also commonly used to signify the ground of complaint which is the basis of the

1 “A claim ‘is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty.' [Prigg v. Penna., 16 Pet. 539, U. S. Sup. Ct.]

"In my judgment a claim upon the United States is something in the nature of a demand for damages arising out of some alleged act or omission of the Government not yet provided for or acknowledged. As the term imports, it is something asked for or demanded on the one hand and not admitted or allowed on the other. [Moore's Int. Arb., 3623, citing Dowell v. Cordwell, 4 Saw., U. S. Cir. Ct., 228, and quoting from Deady, J.]

"On a claim against a foreign government for spoliation the demand is founded upon the law of nations and the obligation of the offending government is perfect. [Emerson v. Hall, 13 Pet. 409, U. S. Sup. Ct.]

"Claim: 1. A demand of a right or supposed right; a calling on another for something due or supposed to be due. 'Doth he lay claim to thine inheritance?' Shak. 2. A right to claim or demand; a title to any debt, privilege, or other thing in possession of another. 'A bar to all claims upon land.' — Hallam. 3. The thing claimed or demanded; that to which any one has a right, as a settler's claim [U. S. and Australia]. [Webster.]

"Claim: 1. A demand of anything as due. 2. A title to any privilege or possession in the hands of another. [Johnson.]

"In the Spanish language the word of corresponding meaning is reclamación. "The opposition or contradiction which is made to anything as unjust.' This is reclamatio, oppositio. [Salvá.]

"The demand made for anything by him who has the right of property in it against him who possesses or denies it.' This is reclamatio. [Salvá.]

"Reclamación [claim]: The opposition or contradiction that is made in words or in writing against anything as unjust, or by showing that it contradicts itself; and the claim or demand for anything by him who has the right of property in it against him who possesses it. [Escriche, Dict. of Legis.]" Authorities cited by Plumley, Umpire, in the Aroa Mines Case, BritishVenezuelan Commission, 1903, Ralston's Report, 354–355.

See, also, Paúl, Commissioner, in the Boulton, Bliss & Dallett Case, American-Venezuelan Commission, 1903, Ralston's Report, 26; Bruce, Arbitrator, in the Bond Cases, United States-Colombian Commission, Convention of Feb. 10, 1864, Moore, Arbitrations, IV, 3615. All of the foregoing definitions are contained in J. H. Ralston, Arbitral Law, 153–154.

Concerning Claims generally, see American Society Int. Law, Proceedings, II, 44-67; id., IV, 16-27, 46–193; id., V, 32-43, 192-212; Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad, New York, 1915; David J. Brewer and Charles Henry Butler, in "Cyc.", XXII, 1734-1756; Hershey, Essentials, 161-169, with bibliography; William Lawrence, The Law of Claims against Governments, Washington, 1875; J. H. Ralston, International Arbitral Law and Procedure, 1910; George Winfield Scott, in Annals, Am. Acad. Pol. & Social Science (1903), p. 74.

Cf., also, D. Anzilotti, Teoria generale della responsabilità dello stato nel diritto internazionale, Florence, 1902; same, in Rev. Gén., XIII, 5-29, 285-309; Emilio Brusa, Report to the Institute of International Law, in Behalf of the Ninth Commission, on the Responsibility of States by Reason of Damages Sustained by Foreigners in cases of Riots and Civil Wars, Annuaire, XVII, 96-137; id., XVIII, 47-49; Resolution of the Institute, id., 254-256; Bibliography in Clunet, Tables Générales, I, 468–472, 885; Oppenheim, 2 ed., I, 206– 225; J. Tchernoff, Le droit de protection, exercé par un État à l'égard de ses nationaux, résidant à l'étranger, Paris, 1908; Gaston de Leval, De la protection diplomatique des nationaux à l'étranger, Brussels, 1907; Diplomatic Protection of Citizens Abroad, Internsuonai Law Association, Proceedings, 24th Conference (1907), 196-210; Carlos Wiesse, Le droit international appliqué aux guerres civiles, Lausanne, 1898.

demand. From an international point of view a claim does not arise until the demand for redress has been presented to the State charged with having been at fault. The bare right to demand redress, however much it may justify complaint, is not the equivalent of a claim, and does not always ripen into one. The making of the demand is the significant fact. This act implies that in the judgment of the complainant State, the foreign power to which the demand is addressed has itself, through some agency of its own, violated a duty imposed by international law or by treaty, and that it offers no adequate means of obtaining redress through any domestic channel. It will be found that the adequacy of such means may depend upon the nature of the claim.

The demand for redress may be made by diplomacy; it may also be urged by force. Thus Germany, Great Britain and Italy in 1902 united in blockading certain ports of Venezuela as a means of securing redress for wrongs charged against that State.2

The redress sought may assume a variety of forms. The relinquishment of control over territory, or the payment of an indemnity, or the salute to a national flag may, for example, be demanded.

Claims may be divided into two broad classes: first, those which are based upon private complaints of individuals whose government acts as their representative in espousing their cause; secondly, those which "concern the State itself considered as a whole." Pecuniary claims are usually, although not necessarily, of the former class. It will be found that pecuniary claims of a national character have rarely been sought to be adjusted by arbitration.

The act of demanding reparation from a foreign State in behalf of an individual is commonly known as interposition. In so far as it does not purport to interfere with the political independ1 Little, Commissioner, in the Alexander Scott Case, United States-Venezuelan Commission Convention of Dec. 5, 1885, Moore, Arbitrations, IV, 4393-4394.

2 For. Rel. 1903, 417-439.

3 Lord Salisbury to Sir Julian Pauncefote, No. 65, March 5, 1896, For. Rel. 1896, 222, where Lord Salisbury also declared: "A claim for an indemnity or for damages belongs generally to the first class; a claim to territory or sovereign rights belongs to the second." The proposed general arbitration treaty of Jan. 11, 1897, between the United States and Great Britain (which failed to receive the approval of the Senate) made provision for the adjustment of "pecuniary claims" referred to in Art. II, and "territorial claims" referred to in Art. VI. A sharp distinction was drawn in respect to the means to be employed for the solution of controversies of the latter kind. Furthermore it was also declared that when a pecuniary claim was believed by either party to involve "the decision of a disputed question of principle of grave general importance affecting the national rights of such party as distinguished from the private rights whereof it is merely the international representative", the claim should be dealt with by the procedure to be followed with respect to territorial claims. Id., 238-240.

ence of the country whose conduct is the source of complaint, such action does not resemble intervention. The preferring of a claim by interposition may, however, lead to intervention if the demands of the aggrieved State are ignored or treated with contempt.1

The study of claims involves a fourfold inquiry concerning, first, the relation of the aggrieved individual (if the claim be a private rather than a public one) to the State called upon to espouse his cause; secondly, the relation of the actors whose conduct is the source of complaint to the State against which a demand for redress is contemplated; thirdly, the responsibility of that State for the consequences of the acts committed; and fourthly, the procedure to be followed in order to obtain redress Thus it will be found that a State, such as the United States, may refrain from interposition because the aggrieved individual is not one of its own nationals, or because the acts giving rise to complaint have not been committed by any authority of the territorial sovereign, or because the acts, although committed by an official within the scope of his duty, have not been internationally illegal, or because notwithstanding a denial of justice by the territorial sovereign, the individual claimant has failed to exhaust the local remedies available to him. When the propriety of interposition is questioned, it becomes important to observe upon which of the foregoing reasons reliance is placed.2

b

Mode of Presentation of Private Claims

(1)

§ 271. Claims against the United States.

International claims

through the diplomatic

1 Intervention, supra, § 6 State, Memorandum on Right Landing Forces, October. 1912, 5.0.

he United States must be presented The claim of an chien must be

J. R. Clark, Jr., Solicitor, Dept. of otec Citizens in Foreign Countries by

2 "Claims presented by the Government of the United States against a foreign Government are based fundamentally, among other things, upon loss or injury (1) which was suffered by the United States or by its citizens or those entitled to its protection and (2) for which a foreign Government, including its officials, branches, or agencies, was responsible. If either of these elements is lacking the validity of the aim is doubtful and, as a rule, the Government of the United States is not in a position to be of any assistance in obtaining reparation." Department of State, Circular respecting the application for