Persia, formal authorization from the minister or consul is required. Ships and their boats are assimilated to houses.1 A certain degree of protection is thus extended to things and places as well as to persons.

This brief study of extraterritorial protection emphasizes the fact that the degree of diplomatic protection exercised in a given country is in inverse ratio to the degree of local security enjoyed by foreigners under the municipal law and institutions of the country of residence.

1 Hall, 143; H. Doc. 326, 59th Cong., 2nd sess., 209; Brook in 30 Law Mag. and Rev. 170.

CHAPTER VI

MEANS OF PROTECTION

§ 183. Agencies of Protection.

International law has created various agencies which serve states to fulfill their function of protecting citizens abroad. The diplomatic and consular service, acting as the instrument of the Foreign Office, is the customary channel through which the rights of nationals are safeguarded and protected. The rights of aliens or citizens abroadare defined in the municipal law of each country, subject to the limitations imposed by the obligations of international law and of treaties. Treaties, therefore, which prescribe the reciprocal rights of nationals of one of the contracting parties in the country of the other, and of consuls of each country acting in special matters on behalf of their nationals, may appropriately be considered as a means of protection. The exercise of consular jurisdiction, with the wide range of powers involved in the protection of citizens as well as non-nationals in countries where extraterritorial privileges are enjoyed, and the exercise of the right of asylum in legations and public vessels a practice universally discouraged by the United States as to non-nationals but still granted occasionally by many countries in backward states and (by inheritance and tradition, rather than justice) in the republics of Latin-America— may be deemed institutions of international law designed to afford adequate protection to citizens and others requiring diplomatic assistance. Delegated protection, by which the consuls and diplomatic officers of one country assume, by request, the protection of the interests of the citizens of another country, and joint protection, are other methods of protecting citizens in certain emergencies.

§ 184. Consular Service.

One of the most important agencies for the protection of citizens

abroad is the consular service.1 While the consul has no diplomatic or representative character, and his political functions are limited, the considerable number of consuls and their location in the more important commercial centers results in a closer relation between a consul and his fellow-citizens abroad than is possible for a diplomatic officer. Treaties and custom, therefore, confide to the consul a wide range of protective functions, short of the presentation of diplomatic claims or the making of representations to the central government.

Consular conventions usually provide that consuls shall have the right to address the local authorities in their districts in remonstrance against infractions of international law or of the treaties existing between the two countries, and against whatever abuse may be complained of by their countrymen. The consul's activity is usually confined to individual cases, the larger questions connected with a general violation of treaties or of international law being handled by the legation with the central government. The local authorities are usually required by treaty to give the consul information concerning his countrymen, to notify him of deaths, to permit him to intervene in the care of a deceased national's estate and, under certain circumstances, to appoint him administrator.2

The Italian government, one of the most watchful of all governments in the protection of its subjects abroad, has within recent years established legal bureaus in connection with its principal consular offices in the United States, with a view to conserving the legal rights of its many subjects in this country, and in case of their death, the rights of their Italian heirs and successors. An excellent system enables consuls to learn quickly of the difficulties of their fellow-citizens in any part of the country, and the legal bureaus enable these persons to obtain, under the supervision of their government, the fullest measure of rights due to them by treaty or municipal law. The principle of such legal protection is followed by consulates of other nations in this and other countries, but the system apparently does not com

1 Tchernoff, 363 et seq.; Moore's Dig. V, § 719. See also Testa, Luigi, Le voci del servizio diplomatico-consolare italiano e straniero, 3rd ed., Rome, 1912. 735 p. 2 Supra, § 166.

* See the long editorial by C. C. Hyde in 5 A. J. I. L. (1911), 1055–1058.

pare in efficiency with the Italian. Its adoption by Italy has resulted in much more certainty that Italian subjects will not be the victims of injustice, private and public.

Nations subject to a large emigration, like Italy, sometimes provide various agencies, under the supervision of the consul or other person, for the care of their emigrant nationals in the principal foreign ports. of immigration. Their main purpose is to prevent the immigrants from being victimized by designing imposters and pseudo-employers.1

The exercise of consular jurisdiction over national merchant vessels and in countries in which his countrymen enjoy extraterritorial privileges may be considered incidental to the consul's protective functions.

2

One of the consul's most usual duties is to address the local authorities on behalf of his fellow-citizens accused of crime or imprisoned, to support these persons in their right to due process of law, to secure all necessary information concerning their welfare, and to visit them, if proper. Being often nearest to the scene of action, the protective function in first instance is frequently exercised by the consul rather than by the diplomatic representative. Only if prevented from fulfilling his duties of protection, in cases where communication with the central government is required, need he address the diplomatic representative accredited to the country, although, as a matter of fact, in every case of more than trifling importance the consular officer either directly informs the legation of the facts or forwards to the legation a copy of dispatches sent to the Department of State.

The printed instructions to diplomatic agents contain the following provision:

"In countries with which the United States have treaty stipulations providing for assistance from the local authorities, consular officers are instructed that it is undesirable to invoke such interposition unless it is. necessary to do so. In cases of arrest and imprisonment, they will see, if possible, that both the place of confinement and the treatment of the prisoners are such as would be regarded in the United States as

1 Tchernoff, 358. Protection of Italian immigrants, For. Rel., 1894, 367–369. Abolition of Italian bureaus at Ellis Island, For Rel., 1898, 406-409. (The order was suspended on the protest of the Italian ambassador.)

Moore's Dig. II, §§ 287–289.

proper and humane. If a request for assistance is refused, the consular officer should claim all the rights conferred upon him by treaty or convention, and communicate at once with the diplomatic representative in the country, if there be one, and with the Department of State. When such requests are made in accordance with long-established usage, he should, when they are refused, make suitable representations to the proper local authority, and likewise advise the legation and the Department." 1

It has not infrequently happened that consuls in their character as guardians of the interests of their fellow-citizens in time of civil commotion have requested the Department of State directly or through the legation to send a warship to the scene of trouble.

Treaties sometimes provide that in the absence of a diplomatic agent consuls may address the central government of the country in which the consulate is located.

Consuls as commercial representatives of their respective countries are instructed to foster the commercial interests of their fellow-citizens, and in commercial matters they are constituted sources of information.

$185. Treaties.

Possibly the most customary instrument for defining the rights of citizens abroad and assuring protection for their interests is a treaty between the respective countries. Such treaties are usually confined to the definition of commercial rights, but often assume a wider range. Municipal legislation, by which rights are extended to aliens upon a basis of reciprocity, is also a customary means for obtaining the grant of reciprocal rights to citizens abroad. Finally, international conventions between several states having in view an enhancement of the rights or an amelioration of the condition of aliens, may well be considered a mode of protection. Thus, the Geneva and some of the Hague conventions, the international treaties dealing with the condition of laborers, workmen's compensation, poor relief, the protection of women and children against overwork and against the white-slave traffic, and similar conventions may be regarded as coöperative measures for the mutual protection of citizens abroad.

1 Printed Personal Instructions to Diplomatic Agents, 1885, § 150, p. 32, reprinted. in Moore's Dig. V, 101.