§ 186. Methods of Redress of Injuries.

When an injury has been inflicted upon an alien in such manner as to involve the international responsibility of the state, an international case has arisen to be settled by the means recognized as legal for the settlement of any other international difference. The modes of redress may be either amicable or non-amicable, and may range from diplomatic negotiations, the use of good offices, mediation, arbitration, suspension of diplomatic relations, a display of force, retorsion, reprisals, or armed intervention, to war in the full sense of the word.

The object to be attained by resort to these methods of providing a sanction for diplomatic protection is usually a pecuniary indemnity and a guarantee against the recurrence of the international delinquency; in other words, redress for the present and security for the future. Having become a matter for international adjustment, the person injured has no control over the measure of redress to be demanded or the means to be employed, matters entirely within the discretion and control of the government. Thus it happens that the international offense growing out of an injury to a citizen may find its solution in the annexation of territory, as occurred in China in 1897 when Germany secured Kiauchau on lease as a consequence of the assassination of some German missionaries, and as occurred in 1913 in Tripoli, ceded to Italy by Turkey as the outcome of a war begun ostensibly, if not actually, because of the non-payment of claims.

AMICABLE METHODS

§ 187. Diplomacy.

Upon an injury to an alien, in a case where international responsibility is alleged by his national government, diplomatic negotiation is the first method used to secure redress. The complaining state, through its diplomatic representative, brings the claim to the attention of the defendant government, which may interpose defenses or suggest some other method of settlement, such as mediation or arbitration. The complaining government may conduct the negotiations itself or may support the claimant in his endeavor to arrive at a direct settlement with the defendant government. It may fairly be said that the majority of international pecuniary claims arising out of private injuries are

settled by diplomatic negotiation. In this connection, it is to be noted that the methods of diplomacy are in international law as truly legal a form of procedure as any of the forms of judicial procedure known to municipal law. When negotiation fails the parties may resort to the good offices or mediation of a friendly power, or to arbitration.

§ 188. Good Offices.

The term "good offices" in diplomacy is employed in two senses. In the first, it denotes informal representations corresponding to the French officieux, and means "the unofficial advocacy of interests which the agent may properly represent, but which it may not be convenient to present and discuss on a full diplomatic footing." It signifies the unofficial, personal and friendly efforts of a diplomatic agent, as distinguished from the official, formal and governmental support of a diplomatic claim. The line of demarcation between unofficial good offices and official interposition is not always easy to draw, inasmuch as in either case the government may authorize or direct a diplomatic representative to extend his assistance. In both cases, the diplomatic officer proceeds through the medium of the Minister of Foreign Affairs of the country to which he is accredited. The principal differences between the two forms of diplomatic action lie in the fact that in the former case, while the government has an interest in facilitating the protection of its citizen's rights abroad, it is unwilling to make his grievance or difficulty the subject of an international complaint, with the necessary consequences attendant upon its possible rejection by the government complained against, and in the further fact that the diplomatic agent has full discretion as to the best method to pursue to assist his fellow-citizen. Good offices are employed by direction of the government, among other cases, in contractual claims, 2 for the facilitation or acceleration of judicial proceedings in which a citizen may be involved-respecting, however, the independence of the local authorities and, on certain occasions, for the allevation of the punish

1 Mr. Hay, Sec'y of State, to Mr. McNally, Mar. 16, 1900, Moore's Dig. VII, 3; Pradier-Fodéré, P., Cours de droit diplomatique, 2nd ed., Paris, 1899, 524-527. On modes of redress, see also Halleck (Baker's ed., 1908), I, ch. XIV.

2 Supra, § 113.

ment of citizens convicted abroad of political offenses.1 The unofficial assistance of a diplomatic agent is often given to a citizen abroad in the direct settlement of a claim against the local government or authorities. In many cases, the diplomatic agent does not await the authorization of his government to employ his personal good offices in behalf of his fellow-citizen requiring assistance.3 As the desirability and expediency of extending his good offices are matters of personal discretion entirely, the citizen cannot demand his assistance, when unauthorized by the government, as a matter of right. It is always open to the citizen to request the government's interposition by communicating with the Department of State, which will determine, in its discretion, the most appropriate form of action, if any, that it may be expedient to adopt. It has already been observed that the diplomatic agent may not officially present a claim to a foreign government without express instructions from the Department.

Good offices usually involve unofficial representations consisting of requests, recommendations and other personal efforts. One of their principal characteristics may be found in the fact that if unheeded, denied or rejected by the foreign government, they are not further pressed, the matter being dropped. Only on rare occasions has the unsuccessful employment of good offices on behalf of a claimant been followed by the official pressure of his claim, and then only on newly disclosed evidence or in a case where official support would have been justified in the first instance.

§189. Diplomatic interposition.

Diplomatic interposition in the technical sense consists in the pressure of a claim by official representations, under the authority and in the name of the government. The term "interposition" is considered preferable to "intervention," inasmuch as the latter term has a long-established meaning of armed interference in the internal

1

1 Mr. Webster, Sec'y of State, to Mr. Cushing, Aug. 27, 1842, Moore's Dig. VI, 329. 2 See claim of American Baptist Church at Nichtheroy, Brazil, For. Rel., 1901, pp. 28, 29; Brown's claim against Governor of the Federal District in Mexico, For. Rel., 1902, 786-789.

It is not possible here to enumerate the many useful ways in which the diplomatic representative may render assistance.

affairs of another state. As soon as the government determines to support a claim officially, its presentation to the defendant government practically always, in first instance, takes the form of diplomatic interposition, consisting of a formal instruction to the diplomatic representative to present a note to the Minister of Foreign Affairs, stating the grounds of complaint and demanding redress. The claim having thus entered the sphere of international controversy, is subject to all the possible vicissitudes and consequences of an international conflict, although the purpose of the interposition is always to provide a sanction for the individual rights of a citizen.

§ 190. Mediation.

The second sense in which the term "good offices" is employed is quite analogous to mediation as an impartial adviser between two opposing parties. While good offices and mediation differ in detail, e. g., in the right of the third person or mediator to offer independent suggestions for a settlement, they both involve a method of reconciling opposing contentions with a view to the adjustment of a controversy. It is less frequently resorted to in cases of claims than in the adjustment of other international differences. The Hague Conventions for the pacific settlement of international disputes adopted at the conferences of 1899 and 1907 embodied various rules concerning the tender and employment of good offices and mediation, and the institution of commissions of inquiry. In a dispute between Salvador and Italy in 1887, arising out of a private claim, the mediation of the United States was requested by Salvador, and on the subsequent tender of the good offices of the American minister, upon request of both parties, the claim was satisfactorily settled.2 The principal difference between mediation and arbitration, a method of adjustment more frequently employed in cases of pecuniary claims, consists in the fact that the former is an advisory function and recommends, whereas the latter is a judicial function and decides.

§ 191. Arbitration.

Aside from diplomatic negotiation, the method most frequently Scott, J. B., The Hague peace conferences, Baltimore, 1909, I, 256 et seq. 2 For. Rel., 1888, I, 77, 107, 120.

used to settle international pecuniary claims is arbitration. In the growth of this system of adjusting international differences, the United States has taken a prominent part. Not only single claims, but large numbers of general claims have been submitted by the United States to the determination of independent arbitral tribunals, with the result that innumerable actual and potential conflicts with other countries have been adjusted by judicial means. Instead of producing a rupture of amicable relations, these claims have contributed to the creation of a permanent system of international law. The efforts of the last twenty years have been devoted largely to stimulating a resort to and perfecting the machinery of arbitration, with the result that international conventions for general arbitration have been drafted at the Hague and the Pan-American Conferences and have been concluded between many individual states.1

No class of differences is more susceptible of settlement by arbitration than pecuniary claims, and sentiment is growing in favor of the creation of a permanent international tribunal which shall have jurisdiction, not only of contractual claims, but of all pecuniary claims of citizens of one country against the government of another. Every consideration which operates in the case of contractual claims for their removal from the sphere of diplomatic controversy into the channels of judicial adjudication is equally operative in the case of all pecuniary claims involving legal issues.

1 See the Hague convention of 1899 for the pacific settlement of international disputes, 32 Stat. L. 1785, and its revision by the convention of 1907, 36 Stat. L. 2199. See Scott, J. B., The Hague peace conferences, I, ch. VI; Treaty between the U. S. and other powers of America for the arbitration of pecuniary claims (Pan-American convention of January 30, 1902), 34 Stat. L. 2845; renewed by convention signed at Rio Janeiro, Aug. 13, 1906, proclaimed by the U. S., Jan. 28, 1913. Treaty series, No. 574. The Central American states concluded a convention at Washington, Dec. 20, 1907, 2 A. J. I. L. (1908), 219 et seq., by which they are committed to the arbitration of all pecuniary claims, and even give a private citizen of one of them the right to sue one of the other states among them.

* Supra, § 126.

* Supra, p. 329, note 1. C. C. Hyde and F. C. Partridge in 1914 Report of the Lake Mohonk Conference on International Arbitration, pp. 125 and 143. See also address before American Society for Judicial Settlement of International Disputes, Dec. 4, 1913, Proceedings, 49-55; see also General Conclusions, infra.