There has been much difference of opinion upon the effect of war upon the claims of the citizens of one of the belligerents upon the government of the other. The answer to the question as to whether such claims are extinguished by the war or survive it depends upon the relation of the claims to the causes of the war. Thus, the treaty of Ghent between the United States and Great Britain has been held to have extinguished the previous claims against Great Britain arising out of spoliations on American commerce under the orders in council during the Napoleonic Wars, the treaty having made no mention of compensation. By the preponderating weight of authority, claims based upon transactions disconnected with the causes of war survive the war and the treaty of peace, even if not specifically mentioned in the treaty.1

In earlier chapters of this Part, it has been observed that claims founded upon transactions against public policy, or which shock the moral sense, or which are unneutral in character, are barred from consideration by the claimant government.2

Claims involving the determination of title to real estate are always left to the lex rei sitæ, and are not made a ground of diplomatic interposition except in cases of denial of justice, after a vain exhaustion of local remedies.3 Such matters include questions relating to succession and other methods of acquiring title. Similarly, it is not within the scope of the duties of a diplomatic officer to assist American citizens in the conduct of their private law suits unless discrimination or a denial of justice is practiced against them.*

$389. Political Considerations.

Political considerations operate in many instances to prevent or limit the prosecution of claims against foreign governments. For Commissioner Maury, p. 4. See criticism of decision in 38 American L. Rev. (1904), 790-792, from Legal Observer.

1 See the extracts printed in Moore's Dig. VI, § 1053. White (U. S.) v. Mexico, Act of March 3, 1849, Opin. 287 (not in Moore).

2 See, e. g., Moore's Dig. VI, § 974.

3 Moore's Dig. VI, § 993; Mr. Hale, Ass't Sec'y of State, to Mr. Kulussowski, May 8, 1872, Moore's Dig. VI, 324.

4 Mr. Rives, Ass't Sec'y of State, to Mr. Coakley, April 11, 1888, Moore's Dig. VI, 325.

example, the obligations imposed by the necessity to maintain friendly relations with foreign states may often serve to prevent the institution of a claim which is apt to disturb amicable relations. The unsettled condition of a foreign government often makes it inopportune to press pecuniary claims, because of the improbability of payment, and because of the tendency to embarrass the foreign government and disturb international amity. In like manner, the impoverishment of the defendant government has been regarded as an obstacle, by reason of futility, to the presentation of a claim.2 Again, the relations of the claimant and defendant country in the matter of reciprocal claims may be such that the presentation of a claim would be futile, e. g., if the claimant state has declined to consider pecuniary claims instituted against it by the defendant state, as is the case, e. g., in the refusal of the United States to entertain the East Florida interest claims of Spain.3 Strained relations from any cause would naturally constitute a bar to the prosecution of pecuniary claims. The political inexpediency of presenting a claim, a matter entirely within the discretion of the claimant government, is, therefore, a most potent factor in limiting diplomatic protection, and may, under present conditions, serve to bar many a well-founded and just claim.

The respect due to the independence and territorial jurisdiction of states is the reason for the limitations which claimant states impose upon themselves in requiring their citizens to resort to their local remedies, in not demanding, in the case of states normally well organized, any more effective guaranties for the protection of aliens than are accorded to citizens, and in invoking the local administrative machinery and all amicable methods for the redress of grievances before resorting to more vigorous measures to exact reparation.

1 Mr. Seward, Sec'y of State, to Mr. Otterbourg, August 8, 1867, Dipl. Cor., 1867, II, 445.

2 Mr. Bayard, Sec'y of State, to Mr. O'Connor, Oct. 29, 1885, Sen. Doc., 287, 57th Cong., 1st sess., p. 10.

Moore's Arb. 4519-4531.

CHAPTER VII

LIMITATIONS ARISING OUT OF MUNICIPAL LEGISLATION OF THE DEFENDANT STATE

§ 390. Originating Conditions.

It would hardly be proper to leave the discussion of limitations upon diplomatic protection without some consideration of the various attempts of some of the weaker states of the world, where diplomatic interposition is most frequent, to avoid, by legislative enactment, the exercise of coercive measures by foreign nations in behalf of their nationals. The exploited countries of the world, particularly some of the states of Latin-America, furnish the conditions for the institution of large numbers of foreign claims, namely, the presence of a great many foreigners, large investments of foreign capital, and weak judicial and administrative organization. The exploiting countries, often taking advantage of their superior power, have compelled these weaker countries to pay innumerable foreign claims, not always founded upon strict justice; and notwithstanding a constant improvement in political organization and the comparative rarity of revolutionary disturbances, diplomatic claims have not ceased to be pressed. Many of the exploiting countries have apparently been unwilling to entrust the rights of their nationals unreservedly to the administrative and judicial machinery of the exploited states. This condition has naturally led some of the weaker states, particularly in Latin-America, to invoke various rights and principles, their rights of equality, independence, and territorial jurisdiction, the principle of equality between national and alien, the rule that the alien must accept the local law as he finds it, and the necessity of exhausting local remedies and establishing a technical denial of justice as conditions precedent to a well-founded international claim-in the effort to relieve themselves of the onerous and unjust pressure of foreign claims. It is not with

out a considerable degree of truth that the governments and publicists of various states of Latin-America allege that the European powers too readily accede to the demands of their nationals for diplomatic interposition, however exaggerated and doubtful their claims may be; that in answer to their contention that the foreigner should submit his claim to the local courts, the European powers send a threat, often followed by a warship; that confronted with this show of force legal rights are cast to the winds and that the heel of the oppressor, in the form of diplomatic intervention for the exaction of payment of doubtful claims, saps their vitality and stunts their growth and development into healthy members of the international family, which position international law legally assigns to them.

The attitude of the exploiting countries in the matter embodies the view that the political organization of many Latin-American countries is so weak, that judges depend so thoroughly upon executive favor, that, in the light of their experience, they must conclude that their citizens cannot secure from the courts that impartiality to which they are entitled, and that they cannot leave the rights of their citizens unreservedly to the determination of the local courts. Even where the South American states have succeeded by treaty and diplomacy in securing a recognition of the principle that claims of foreigners can only be diplomatically pressed where, after an exhaustion of local remedies, there has been a denial of justice, the exploiting countries undertake to judge for themselves what they will consider a denial of justice, so that the principle, while in conformity with the international law applied among the European states themselves, is, in its application to Latin-America, extremely flexible. A judgment, they say, may in spite of the observance of forms be nevertheless prejudicial to the interests of their citizens and they reserve the right to determine whether in each particular case justice has been in any degree denied.

In view of these conditions, the Latin-American states, relying upon the doctrines of Calvo and other publicists-that pecuniary claims against the state must be submitted to local courts, and only in the event of a denial of justice become the subject of diplomatic interposition and upon the principles of international law, equally

supported by publicists and the practice of European nations among themselves—namely, the right of a sovereign state to independence, to complete territorial jurisdiction, to establish the conditions under which foreigners may enter and reside in the country-have in their constitutions, laws, and treaties embodied certain principles whose object has been to restrict the diplomatic interposition of foreign. countries to its narrowest limits and thus relieve themselves of one of their most onerous burdens.

These principles and provisions of law may be considered in connection with the different categories of claims, the pressure of which they have sought to prevent or overcome: first, claims arising out of injuries to person and property suffered in civil wars, inflicted both by state authorities and revolutionists; secondly, claims based upon acts of violence and oppression of various kinds, such as false arrest, imprisonment and expulsion; and, finally, claims arising out of contracts concluded with aliens. The question of public debts and the Drago doctrine have been considered in our discussion of contractual claims. in general.

§ 391. Legislative Limitations upon Diplomatic Protection. Civil War Injuries.

The responsibility of the state considered (supra, § 93). The

First, then, as to civil war injuries. for such injuries has already been Latin-American states assert that an injury received by an alien in civil war constitutes no better ground of claim than an injury received in an international war. They assert that states do not recognize in such cases any right to indemnity in favor of their own citizens and that aliens cannot enjoy any such privilege, in view of the fact that when they enter a state they submit themselves to the local law. Calvo, whose doctrine that pecuniary claims cannot ordinarily justify diplomatic interposition we have already to some extent discussed, states his principles in the matter of claims arising out of injuries received in civil war in the following terms: 1

1. "The principle of indemnity and diplomatic intervention in behalf 1 Calvo, Le droit international, §§ 1280–1297, the principle being stated in v. III, § 1297, pp. 155–156.