CHAPTER V EXTENT OF PROTECTION § 162. Factors Determining Measure of Protection. The discretion possessed by the government in the grant of diplomatic protection and in the prosecution of claims is well illustrated by the different degrees of protection which it exercises on various occasions. These variations in the extent of protection depend primarily upon the nature of the offense or injury to be redressed. Other factors which enter into consideration in determining the extent of protection are the character and reputation of the local government for the proper administration of justice, the political expediency of instituting harsh or mild measures, the conduct and character of the claimant with respect to his title to diplomatic protection, the nature of the claim, tortious or contractual, and the need of the claimant. For these reasons, it is impossible to state with any degree of precision the measure of protection which in a given case will be accorded to American interests abroad, for the action of the government necessarily depends upon all the facts and circumstances of the case, and the principles of international law applicable thereto. Nevertheless, notwithstanding the absence of any definite controlling principle, it may not be without interest to examine certain classes of cases in which an attempt has been made to follow a consistent practice. It frequently happens that an American citizen contemplating investment in a foreign enterprise or departure from the United States for the purpose of engaging in business abroad inquires of the Department of State what governmental protection or assistance he may expect or rely upon. Such an inquirer is usually informed that the Department cannot undertake to answer hypothetical questions, or anticipate its action or forecast the effectiveness of its assistance in a given case, since the questions of international law usually involved in such cases, depending as they do upon individual facts and circum stances, do not readily admit of decision in advance of an actual case. The Department usually adds, however, that it is always solicitous that rights of American citizens abroad should receive from foreign governments the respect due to them under existing treaties and international law, and that the Department is always ready to take up with a foreign government the question of adjusting any wrongs which American citizens may have sustained in their persons or in their just, fair and equitable property rights which have been acquired by proper and legal methods. The inquirer is further advised that the government is represented abroad by consular and diplomatic officers, to whom American citizens may appeal when they deem their rights violated or in imminent danger of violation. In an instruction to consular officers, dated August 25, 1898, consuls were urged to be vigilant in the protection of American citizens in their consular districts. instructions concluded with the following paragraph: The "You are directed to be prompt and active in reporting to the Department all cases of arrest of American citizens or of outrages upon their rights. You will also be ready at all times to do your utmost in behalf of our citizens and for the protection and extension of their interests." 1 § 163. Fostering American Interests Abroad. In the encouragement of American enterprises abroad, the government lends its support to such as are legitimate and nationally beneficial, the degree of support being measured by the national advantages to be expected. In his Annual Message of 1909, President Taft declared that in considering whether American enterprise should be encouraged in a particular country, "the government should give full weight... to the fact whether or not the government of the country in question is in its administration and in its diplomacy faithful to the principles of moderation, equity and justice upon which alone depend international credit, in diplomacy as well as in finance." 2 Such encouragement is most frequently sought in the exploited countries of Latin 1 Thos. W. Cridler, Third Asst. Sec'y to the consular officers in Mexico, Central America and South America, August 25, 1898. 2 For. Rel., 1909, xv. As to cable concessions in South America, considered a national advantage, see Sec'y Bayard quoted in Moore's Dig. VI, 326. America and in the Near and Far East. In such cases, the Department usually, upon request, instructs its diplomatic representative accredited to the country in question to use such influence as he legitimately may to secure consideration for the American interests requesting supportwithout discriminating, however, against other American interests.. The Department of State does not attempt to endorse individuals as to their responsibility nor to express any judgment as to business enterprises, beyond bringing them to the attention of the authorities abroad through American diplomatic representatives.1 Applicants for concessions in Cuba and the Dominican Republic, and in other LatinAmerican Republics to which the Platt Amendment might be extended, must necessarily secure the Department's approval of the concession before it may be granted, and it is becoming a practice for American concessionaires in other Latin-American countries to submit the terms of a proposed concession-contract to the Department for approval. By so doing, the legitimacy of the concession may be examined, and eventual protection facilitated. $164. Preventive Measures. Although it is unusual to extend protection in advance of an actual occurrence rendering interposition proper, the government has not infrequently filed a diplomatic protest against proposed municipal legislation of foreign countries which, if enacted, would impair the rights or interests of American citizens. Sometimes the diplomatic representative is instructed to use his good offices to bring to the attention of the government to which he is accredited the injurious effect upon American trade and commerce of proposed municipal legislation. Thus, objections of this government against a proposed increase of a foreign tariff rate which seemed prohibitive to American commercial interests have been diplomatically presented. In like manner, protests have been filed against proposed monopolies which appeared violative of treaty rights or inimical to American trade. Good offices have been employed 3 and protests filed against the application to American 1 See as to applications for financial concessions in Turkey, For. Rel., 1909, 595. 2 Protest to Haiti against grant of a soap monopoly to certain French concerns, 1907-1908. See also supra, p. 182. * Good offices were used to secure modification of order prohibiting American life citizens of enacted legislation abroad which, if enforced, would be deemed to violate the rights of an American citizen, whether under municipal law, treaty, or international law.1 What might be called preventive measures of protection are occasionally employed in that subjects going abroad are warned to provide themselves with certain documents calculated to relieve them of the embarrassment of detention, examination or other burdens.2 The most usual method of safeguarding and fostering the rights and interests of citizens is by means of international treaties and conventions. With the growth of international intercourse these treaties have covered a wider and wider range of subjects, until at the present time the measure of the alien's civil and commercial rights is largely to be found in treaties. To some extent, the principal rights of aliensor citizens abroad-have been considered in the chapter on aliens.3 At this point, it is merely necessary to note that the measure of the rights of citizens abroad and therefore the measure of the extent of protection for infringement thereof is to be found largely in treaties. § 165. Request for Local Protection in Foreign Country. 4 Under ordinary circumstances, the first step in the exercise of the protective function is to demand of the local government the full measure of local protection which its laws afford. Assuming that insurance companies from doing business in Prussia. H. Doc. 247, 54th Cong., 1st sess.; For. Rel., 1895, I, 428–453. As to Argentine, see Moore's Dig. VI, 326, and as to Chile, For. Rel., 1896, 43. 1 Objection noted to Guatemalan decree providing for imprisonment, in case of fire, of beneficiary of insurance policy. Mr. Adee, Acting Sec'y of State, to Minister Sands, For. Rel., 1909, 344. Protest against certain interpretation of Honduranean law relating to national vessels. Mr. Adee to Minister Brown, Sept. 7, 1909, For. Rel., 1909, 368. As to protests against prohibitions or restrictions by foreign countries on the importation of cattle, hogs and beef, see For. Rel., 1891, under various countries. 2 E. g., British subjects going to Argentine were instructed to provide themselves with birth certificates and protection papers to escape military service. Notification of August 22, 1898; 90 St. Pap. 1176. Unusual precautions in the matter of passports, such as attaching an unmounted photograph to the passport, have been adopted by the Dept. of State in the case of American citizens going to Europe during the present European war. 3 Supra, § 34 et seq. 4 See the discussion of the rights of aliens, supra, § 17 et seq. the government is properly organized, such a suggestion will often suffice to prevent a flagrant violation of the rights of aliens. The United States, for example, has on many occasions called on Turkey and China to afford protection to American citizens and prevent attacks by brigands and others. Again, when an American citizen is arrested abroad charged with a penal offense, the diplomatic officer's first duty is to see that he receives the benefit of the safeguards against oppressive treatment provided by the local law and that his trial is conducted fairly. While in first instance the protection of aliens is a matter incumbent upon the local government, and foreign governments, in the absence of a flagrant case, usually advise their subjects to resort to the local courts for the redress of their grievances, it is nevertheless beyond dispute that the local government cannot be the final judge of its own conduct. Indeed, foreign governments are conceived to have the right and duty to determine whether their subjects have been accorded the protection due them under public law and the applicable treaties. Diplomatic interposition then, if deemed proper, is the substitution by the protecting state of its own action for that of the local state based upon default in a function originally incumbent upon the latter. 2 In this connection, it is interesting to note that when the attention of the United States is called to the delinquency of local authorities in complying with a treaty or municipal law, to the detriment of a foreigner, the Department of State must address the Governor of the state calling his attention to the complaint and requesting a removal of the cause or appropriate measures of satisfaction. If the Governor, however, does not secure the enforcement of the treaty or municipal law by the local authorities, the federal government has no machinery to compel his action, and in mob violence cases, as has been observed, has often had to pay heavy indemnities for the failure of the states properly to enforce or vindicate the treaty rights of foreigners. When 1 For. Rel., 1895, II, 1237 et seq.; 1318 et seq.; For. Rel., 1907, II, 1071. For a case in Haiti, where local protection was first demanded, see For. Rel., 1904, 397. See also Marquis Salisbury to Mr. Ashburnham, Feb. 16, 1880, 75 St. Pap. 1059 (case in Bulgaria); Lord Granville to Sir C. Wyke, Dec. 24, 1883, 75 St. Pap. 456; Field, Adm., v. U. S., Act of Jan. 20, 1885, 27 Ct. Cl. 224. 2 Infra, § 381 et seq. |