PART II THE EXERCISE OF DIPLOMATIC PROTECTION CHAPTER I NATURE, BASIS AND THEORY OF PROTECTION $133. Fundamental Principles. The study which has been made of the relation between the state and its citizen, of the position of aliens, of the municipal and the international responsibility of the state, and of the relation between the protecting state and the state of residence warrants a reconsideration of these matters in their relation to the nature, the basis and the exercise of the right of diplomatic protection. Each state in the international community is presumed to extend complete protection to the life, liberty and property of all individuals within its jurisdiction. If it fails in this duty toward its own citizens, it is of no international concern.2 If it fails in this duty toward an alien, responsibility is incurred to the state of which he is a citizen, and international law authorizes the national state to exact reparation for the injury sustained by its citizen. The foreigner in entering a country tacitly undertakes to accept the laws and institutions which the inhabitants of the country find suitable to themselves. By becoming a resident, he undertakes the obligation of obedience to the laws, and assumes a certain relationship to the state of residence which has been popularly characterized as "temporary allegiance." This involves both rights and duties, although with respect to both, there Morse, Citizenship, Boston, 1881, § 4. ? Unless the state deviates so grossly from the paths of civilized administration and justice that intervention on the ground of humanity is justified. Supra, p. 14. is usually a measure of difference between the transient and the domiciled alien.If the alien receives the benefit of the same laws, administration, protection and means of redress for injuries which the state accords to its own subjects, the national government of the alien has no ground to complain or interpose in his behalf, provided that the system of municipal law, administration and protection applied to citizens meets the recognized standards of civilized justice. Foreigners are left to the territorial jurisdiction of the state of residence for the measure of their rights and the redress of their grievances on the assumption that justice will be applied to them, according to a civilized system of law and administration, with integrity and impartiality. An allegation of a denial of justice, the customary ground of an international claim, rests upon an alleged departure from this standard, either in the law itself or in its administration. It is difficult to establish the exact measure of this standard of civilized justice except by the general practice of the more advanced states. International pecuniary claims are so common because, as in the case of political claims, the justice which a state demands for its nationals is not measurable by definite rules. Nevertheless, the general acceptance of certain fundamental principles, a certain minimum of customary requirements incorporated in the law and procedure of the states of European civilization, and a long-extended experience of adjusting international claims, particularly by arbitration, have developed sufficiently definite rules of conduct for the establishment of a satisfactory international standard of justice, to which the rights of aliens may ultimately be referred. Diplomatic interposition in behalf of aliens merely because the local laws and procedure are different from those of the protecting state, without proving that the application of the law in a given case falls below the international standard of civilized justice, is a practice which has resulted on numerous occasions in securing for aliens in some of the weaker states of the world a privileged position as against nationals, a condition against which some of the Latin-American countries and their publicists have, at times, with some justice, protested. The alien in these cases instead of constituting an addition to the national wealth and resources, has become a liability and a detriment to the state. § 134. Theory of the State's Protection. The interest of the state in protecting its citizen abroad is justified upon the theory formulated by Vattel: "Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is, safety." The indirect injury which the state sustains by an injury to one of its citizens warrants bringing into operation the state's protective machinery.2 This principle, however, requires modification and amplification, for it does not fully explain the action of the state. In the first place,✔ reparation is demanded only for such injuries as the state in its discretion deems a justification for diplomatic protection. Factors which enter into consideration in determining the state's interposition are the seriousness of the offense, the indignity to the nation, and the political expediency of regarding the private injury as a public wrong to be repaired by national action-in short, the interests of the people as a whole as against those of the citizen receive first consideration before state action is initiated.3 In the second place, not every injury warrants immediate interposition by the state. It is only when the citizen has suffered flagrant injustice or maltreatment by or at the direction of an authority of the state of residence, that his national government is warranted in taking immediate measures of repression. If the injury is received at the hands of individuals or minor officials, who cannot be regarded as representing the government, the individual must in first instance be remitted to his local judicial remedies, and only in the event of a denial 1 1 Vattel, Chitty-Ingraham ed., Phila., 1855, Bk. II, ch. VI, § 71. 2 See, e. g. Phillimore, 3rd ed., II, 4; Morse, Citizenship, XII and 60, 61; PradierFodéré, I, § 402; Bello and Liszt cited in For. Rel., 1899, 31–40; Mr. Root, Sec'y of State, to the Persian minister, Nov. 7, 1906, For. Rel., 1907, 942. See also Amer. St. Pap. IV, 718; Annals, 15th Cong., 1st sess., 282; Selwyn (Gt. Brit.) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 322. The idea that the nation will avenge the wrongs done to its citizens goes back to the earliest times. See Morse, op. cit., 110. 3 See, e. g., Fiore, Nouveau dr. int. pub. (Antoine's trans.), § 646, citing Heffter, § 59 and Phillimore, II, ch. 2; Lomonaco, 217, citing Grotius. Hall, 6th ed., 273; Phillimore, 3rd ed., II, 4. 2 of justice, as that term is understood in international law, may the state properly interpose in his behalf. In the third place, although the state in prosecuting the offense committed against its citizen is presumed to avenge and seek compensation for the injury to its national welfare and dignity, an injury quite independent of that sustained by its citizen, it nevertheless happens, in practice, that the largest proportion of claims are dropped at the moment the citizen changes his nationality or assigns his claim to the subject of another state. This result has been established by numerous arbitral decisions and by the practice of Foreign Offices.1 If it were merely the injury to the welfare or dignity of the nation for which compensation is sought, the subsequent act of the citizen would hardly lessen the injury, or weaken the right or power of the state to exact reparation. As a matter of fact, Vattel's theory of the indirect injury to the state in the person of its citizen, merely explains the initial action of the state in bringing its protective machinery into operation. The citizen may well relieve the state of further interest in his case by changing the nationality of the claim or of the claimant. While the injury to the state and the injury to the citizens are independent wrongs, the action of the state in demanding compensation is in large degree dependent upon the subsequent conduct of the citizen in supporting the title and right of his government to interpose in his behalf. The circumstance must not, however, be overlooked, that injuries inflicted upon certain officials representative of the government or upon public vessels or other public property, give rise to national offenses only, to the exclusion of private claims, and that certain classes of injuries to individuals, when deemed to involve affronts to the nation, survive any assignment or settlement by the private claimant. 2 § 134a. Diplomatic Protection an Extraordinary Legal Remedy. The theory that the indirect injury to the state in the person of its 1 Infra, § 306. See particularly Stevenson (Gt. Brit.) v. Venezuela, Feb. 17, 1903, 446-447. This principle of arbitral decisions may be explained by the fact that protocols practically always grant jurisdiction over injuries to "subjects" or "citizens' and not to "the dignity of the nation." If a claimant has ceased to be a citizen at the time his claim is presented, jurisdiction is denied. 2 Infra, § 142. citizen justifies diplomatic interposition does not, it is obvious, fully explain the state's action. Diplomatic protection may more properly be considered as an extraordinary legal remedy granted to the citizen, within the discretion of the state, under certain circumstances in harmony with the public interests of the state, its relations with other states, and the rights and equities of the citizen. It is to be noted that the state may be injured in two ways: (1) directly, by violation of the rights affecting the 'collectivity or people as a whole; and (2) indirectly, by violation of the rights of its citizens. It will be seen hereafter 1 that injuries of the latter class which involve specific affronts to the nation, cannot be extinguished by private settlement, but that they survive restitution or compensation to the individual. On the other hand, if the injury involves no element of national insult, the restoration of the individual to his rights by the institutions or authorities of the defendant state annuls any further interest of his own government. The individual has in fact sustained no "injury" in international law, until the state of residence or its authorities have in some way connected themselves with the original act or have declined to afford him legal means of redress. § 135. Basis of the Public Action of the State. 3 The action of the state in exercising the right of diplomatic protection, being based upon its independent claim against other states to have its nationals treated in accordance with the rules of international law, has been founded by various writers upon its right of self-preservation,2 the right of equality, and the right of intercourse.4 While it may be true that the habitual unredressed violation of the rights of its citizens abroad would weaken the state both materially and in prestige, and to that extent, impair its integrity and its power among nations, the injuries to the subjects of a given state are never so habitual, so numerous or so widespread as actually to endanger the safety of the state. It seems preferable to consider the state's action 1 Infra, § 142. 2 * Hall, 6th ed., 273 et seq.; Hall, Foreign powers and jurisdiction, etc., § 2; Rivier, Principes, I, 269; Despagnet, 4th ed., 1910, § 172. 3 Pomeroy, Lectures, Woolsey's ed., Boston, 1886, § 205 et seq. 4 Oppenheim, I, §§ 142, 319. |