By the submission of a private claim to arbitration the two countries in controversy provide a forum to determine the extent of the injuries inflicted by the one upon the other in the person of a citizen, and the legal right to and amount of reparation properly payable as indemnity. The two states substitute for the diplomatic negotiation between the protecting and the defendant state an independent tribunal to determine the justification for extending protection and the merits of the defense in a given case.1 Hence the great authority of arbitral decisions-notwithstanding certain alleged defects of the systemas a source of international law, and the reliance placed by Foreign Offices upon arbitral awards, as precedents, in the presentation of and defense against international claims.

The powers of arbitrators are usually defined and the class of cases over which they shall exercise jurisdiction is in general terms described in the protocol or treaty under which they act.2 Their jurisdiction under the protocol, however, and the question whether any particular case presented comes within the class to be arbitrated or within the terms of submission are matters to be determined by the arbitrators. This was settled in two important arbitrations between the United States and Great Britain, the question having been raised under article VII of the Jay treaty of 1794 and again with regard to the power of the Geneva tribunal to deal with indirect claims. When such an arbitral tribunal has been brought into existence by agreement of the parties, it is an independent court of high international jurisdiction, competent, within the limits of the powers conferred upon it, "to bring under judgment the decisions of the local courts of both nations, and beyond the competence of either government to interfere with, direct, or obstruct its deliberations."

4

1 See Rudloff (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 182, 185, citing opinion of Sec'y of State Evarts quoted in Moore's Arb. 2599.

2 Moore's Dig. VII, § 1072; Ralston, International arbitral law, Boston, 1910, pp. 19-21; Tchernoff, op. cit., 375 et seq.

Moore's Dig. VII, § 1073; Ralston, op. cit., 21-24.

4 Mr. Evarts, Sec'y of State, to the Spanish minister, Mar. 4, 1880, quoted in Moore's Arb. 2599 and cited with approval in Rudloff (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 185

NON-AMICABLE METHODS

The non-amicable methods of redress include a suspension of diplomatic relations, retorsion, a display of force, the actual use of force, reprisals and war.

§ 192. Withdrawal of Diplomatic Representative.

On several occasions, the unsatisfactory termination of diplomatic negotiations for the settlement of international claims has led to the suspension of diplomatic relations between the countries involved.1 In 1826 the American chargé demanded his passports from Brazil because of the alleged unwarranted capture of certain American vessels, diplomatic relations being subsequently resumed upon the payment of adequate indemnities. The failure of the American minister in Mexico to secure redress for various arbitrary seizures of property and ill-treatment of American citizens led, in 1858, to a suspension of diplomatic relations with that government. Italy temporarily withdrew its Ambassador to the United States because of the unwillingness of the United States, early in the negotiations, to acknowledge any liability for the deaths of Italian subjects in the New Orleans riot of 1891. The Department of State has on several occasions threatened to withdraw the American legation unless the foreign country in question settled or agreed to settle the claims of American citizens. Amicable relations between France and Venezuela, interrupted by the withdrawal of the French minister in 1906, because of Venezuela's refusal to pay certain claims, were restored in 1913 by the conclusion of a treaty submitting the claims to arbitration.2

$193. Retorsion.

Retorsion signifies retaliation in kind. This method of redress has but rarely been used for the non-payment of pecuniary claims.

1 Moore's Dig. VII, § 1089.

2 13 R. G. D. I. P. (1906), 548; Protocol signed Feb. 11, 1913, 20 R. G. D. I. P. (1913), 506.

'Moore's Dig. VII, § 1090; Halleck (Baker's ed., 1908), I, 503; Rapisardi-Mirabella in 16 R. D. I. (n. s.), 1914, pp. 223–244 (first installment); see bibliography, pp. 240–

The stoppage by the King of Prussia in 1753 of the interest due to British subjects on the Silesian loan, until he obtained indemnities for the unjust capture of certain Prussian vessels and their condemnation by British prize courts may be considered a form of retorsion. Upon the refusal of China in 1855 to pay a claim for personal injuries to an American citizen, the American Minister was instructed "to resort to the measure of withholding duties" to the amount of the claim.1

Retorsion is more often used in cases where a country has placed the citizens or interests of another country under a general disability, e. g., the exclusion from its ports of the vessels of a certain nation, the exclusion of products of a certain country by differential import duties or the enactment of discriminatory laws against the citizens of one particular country as compared with aliens generally. The state affected may retaliate by the enactment of similar measures. Recent tariff acts of the United States, prior to the Act of 1913, have given the President power to prescribe a differential duty against the products of a country discriminating against American products, and discriminations against American vessels in foreign ports were to be met by retaliatory measures.

§ 194. Display of Force.

The display of force and the threat to use it if reparation for an international offense is not promptly made, have frequently proved an effective means of obtaining redress in the form of an indemnity or a guarantee of security. This display of force usually takes the form of a national war-ship appearing before the port of the foreign country alleged to be in default. The moral influence exerted by the presence of a war-vessel is great, and has served not only to secure demanded reparation in given cases, but in quarters of the world subject to frequent domestic disorder has served to prevent an abuse of aliens' rights, particularly of the nationals of the country to which the vessel belongs. War-vessels have therefore on occasion been stationed for extended periods of time in the waters of the Mediterranean, around Turkey, and in the waters near Haiti and the Dominican Republic.

1 Mr. Marcy, Sec'y of State, to Mr. Parker, Oct. 5, 1855, Moore's Dig. VII, 106.

At a time when revolutions were more frequent in Latin-America than they now are, it was not unusual to have numbers of foreign war-ships in certain harbors for the protection of aliens. The use of war-ships for such a purpose of police, perhaps the most defensible use of armed vessels, was recently illustrated in the harbor of Vera Cruz, Mexico.

Practically all the great powers have at different times resorted to a display of force to give moral support to a request for the protection of nationals in foreign countries or for the redress of injuries inflicted upon nationals. Joint action has often been taken by various powers for this purpose, e. g., in China, in Buenos Aires, in Mexico and in Venezuela.1 The United States resorted to the display of force in Japan in 1852, in Turkey on several occasions, 2 and within recent years in Haiti, the Dominican Republic and Mexico. In 1902, a French war-ship threatened to fire upon a town in Venezuela, unless certain French merchants, arrested for the non-payment of customs dues previously paid to revolutionists, were released. In 1897, the threatened bombardment of Port-au-Prince by German war-ships effected the release of a Mr. Lüders, a German subject, alleged to have been arbitrarily imprisoned by the Haitian authorities. In May 1914, the appearance of a British war-ship in the harbor of Port-au-Prince successfully supported a demand of Great Britain for the prompt settlement of the British portion of the Peters claim, decided in favor of Germany and Great Britain by an arbitral tribunal in Haiti.

There seems little doubt that the great powers in their ready resort to ultimatums and threats of the use of force to exact the payment of pecuniary claims, particularly in Latin-America, have often abused their rights and have inflicted gross injustice upon weak states.5

In response to an inquiry of the Turkish minister at Washington

1 See Instruction of Lord J. Russell to Sir C. Wyke, Mar. 30, 1861 (Mexico), 52 St. Pap. 239.

2 Moore's Dig. VII, §§ 1091, 1093.

* Suchet case, 9 R. G. D. I. P. (1902), 628. The threat achieved its object.

423 Law Mag. and Rev. (1897), 129–131; 5 R. G. D. I. P. (1898), 103; PradierFodéré, Cours de droit diplomatique, 2nd ed., Paris, 1899, pp. 528-531, note. See also Ménos, Solon, L'affaire Lüders, Paris, 1898.

• Pradier-Fodéré, I, § 402.

asking an explanation of the sending of an American war-vessel to Turkish waters, Secretary Olney stated that the visit of the vessel was "in pursuance of a long-established usage of this government to send its vessels, in its discretion, to the ports of any country which may for the time being suffer perturbation of public order and where its countrymen are known to possess interests. This course is very general with all other governments, and the circumstance that a transient occasion for such visits may exist does not detract from their essentially friendly character." 1

It may be said that the United States urges upon consuls and diplomatic officers the use of caution and discretion in summoning the assistance of national war-vessels, in time of disorder, for the protection of citizens.2

195. Use of Armed Force.

The army or navy has frequently been used for the protection of citizens or their property in foreign countries in cases of emergency where the local government has failed, through inability or unwillingness, to afford adequate protection to the persons or property of the foreigners in question. This action has by some writers been denominated as intervention and has given rise to much confusion, due to a failure to distinguish between political intervention and non-political intervention or interposition. The landing of armed forces for the protection of citizens has practically always been free from any attempt to interfere in the internal political affairs or administration of the country entered, and when confined to the purpose of assuring the safety of citizens abroad, or exacting redress for a delinquent failure to afford local protection, the action must be considered, not as a case of intervention, but as non-belligerent interposition. This form of 1 Mr. Olney, Sec'y of State, to Mavroyem Bey, Oct. 15, 1895, For. Rel., 1895, IL 1324.

2 Mr. Bayard, Sec'y of State, to Mr. Neill, Nov. 16, 1887, Moore's Dig. VII, 109. The ablest discussion of the distinction between political and non-political intervention, and the true nature of interposition, with quotations from authorities and a compilation of illustrative cases is to be found in a Memorandum of J. Reuben Clark, Jr., Solicitor for the Department of State on the "Right to protect citizens in foreign countries by landing forces," Washington, August, 1912. Revised edition. 70 folio p.