of foreigners for injuries suffered in cases of civil war has not been admitted by any nation of Europe or America."

2. "The governments of powerful nations which exercise or impose this pretended right against states relatively weak, commit an abuse of power and force which nothing can justify and which is as contrary to their own legislation as to international practice and political expediency."

The frequent occasions upon which Latin-American states have been compelled to pay indemnities to foreigners for such injuries 2 has induced a number of them to include clauses in their constitutions, laws, treaties, and conventions of Pan-American Congresses, exempting themselves from all obligation to indemnify aliens for injuries sustained during civil war, not only when these are caused by insurgents, but also when the injury is caused by the authorities in the suppression of the uprising or revolution. The clause usually reads:

"Neither [citizens] nor foreigners shall have in any case the power to claim from the government indemnification for damages arising out of injuries done to their persons or property by revolutionists."

The last word of this clause, "revolutionists," has been extended in meaning to cover insurrectionists or turbulent bodies of men, who

1 In support of these principles, he cites Rutherforth, de Martens, Miraflores, Torres Caicedo, and Vattel; see to the same effect, Pradier-Fodéré, Traité de droit international public, §§ 204-205, 1224.

Calvo extends the principle as well to case of injuries sustained during mob violence (Vol. 3, § 1271, pp. 133–134; Vol. 6, § 256, p. 231).

It may be added that under the term "civil war," the Latin-American states include political commotions, insurrections and tumults having in view a change in administration or political organization by force of arms.

2 After the civil war in Chile in 1891, 1 R. G. D. I. P. (1894), 164 and 171; 3 ibid. (1896), 478; 4 ibid. (1897), 416-418; at the end of the civil war in Venezuela in 1892, 2 R. G. D. I. P. (1895), 344; at the end of the civil war of 1893–4 in Brazil, 4 R. G. D. I. P. (1897), 403 et seq.; Seijas, El derecho international, V, 544–551; and on other occasions, 2 R. G. D. I. P. (1895), 338 and supra, p. 243.

3 Constitution of Guatemala, Art. 14, Rodriguez, American Constitutions, I, 238; Salvador, Art. 46, Rodriguez, I, 268; Venezuela, Arts. 14 and 15, Rodriguez, I, 201, and in arts. 20 and 21 of the Constitution of Aug. 4, 1909; Haiti, Art. 185, Rodrigeuz, I, 85; Honduras, Art. 142, Rodriguez, I, 388; Honduras decree of Feb. 24, 1868, 61 St. Pap. 529. Ecuador, law of August 25, 1892, Art. 12, 84 State Papers, 645; Venezuela, law of April 16, 1903, Art. 17, 96 State Papers, 647; Peru, decree of October 12, 1868, Diplomatic Correspondence (For. Rel.), 1868, Pt. 2, p. 887; Salvador. decree of April 13, 1908, For. Rel., 1908, 706. Legislative limitations are cited by J. Goebel, Jr., in his article in 8 A. J. I. L. (1914), 833 et seq.

in the name of revolution may rob the store of a foreigner, tear up a railroad built and owned by a foreigner, or do other violent damage. There is no reservation or qualification in the clause, even in case of negligence by the authorities in failing to prevent or suppress the uprising. In the case of such a clause included in an earlier constitution of Guatemala, the representatives of the United States, Great Britain, France, Germany, Spain and Italy gave notice of their determination to protect their fellow-citizens in person and property to the extent authorized by the law of nations, irrespective of the local enactments of the laws of Guatemala.1

The convention on the rights of aliens adopted at the Second PanAmerican Conference at Mexico in 1901, to which the United States did not subscribe, reads:

"The states are not responsible for damages sustained by aliens through acts of rebels or individuals and in general for damages originating from fortuitous causes of any kind, considering as such the acts of war whether civil or national, except in the case of failure on the part of the constituted authorities to comply with their duties." 2

The treaties that have been concluded between European and American states providing for exemption from responsibility in cases of civil war do not extend the exemption to cases where state authorities have been negligent.3

1 Mr. Logan to Mr. Evart, January 17, 1881, For. Rel., 1881, p. 98.

2 Second International Conference of American States, Sen. Doc. 330, 57th Cong., 1st sess., p. 228.

3 Alvarez, Le droit international americain, Paris, 1910, p. 122, and the following treaties:

Germany and Mexico, Dec. 5, 1882, Art. 18, Martens' Recueil des traités, Vol. 59, p. 474.

Sweden and Norway and Mexico, July 29, 1885, Art. 21, ibid., Vol. 63, p. 690. France and Mexico, Nov. 27, 1886, Art. 11, ibid., Vol. 65, p. 843.

Italy and Mexico, April 16, 1889, Art. 12, April 16, 1890, Art. 12, ibid., Vol. 68, pp. 711 and 771.

Belgium and Mexico, June 7, 1895, Art. 15, ibid., Vol. 73, p. 73.

Germany and Colombia, July 23, 1892, Art. 20, ibid., Vol. 69, p. 842.

Italy and Colombia, Oct. 27, 1892, Art. 21, ibid., Vol. 72, p. 313.

Spain and Peru, July 16, 1897, Art. 4, Olivart's Colección de tratados de España, Vol. 12, p. 348; 4 R. G. D. I. P. (1897), 795.

Spain and Honduras, Nov. 17, 1894, Art. 4, Olivart, op. cit., Vol. 11, p. 156.
Spain and Colombia, April 28, 1894, Art. 4, Olivart, op. cit., Vol. 11, p. 63.

The Institute of International Law deprecates the practice of concluding treaties in which states hold themselves irresponsible for injuries inflicted during civil war insurrections or riots. The resolution passed at the session of 1900 reads as follows:

"The Institute of International Law recommends that states should refrain from inserting in treaties clauses of reciprocal irresponsibility. It thinks that such clauses are wrong in excusing states from the performance of their duty to protect their nationals abroad and their duty to protect foreigners within their own territory. It thinks that states which by reason of extraordinary circumstances do not feel able to assure in a manner sufficiently efficacious the protection of foreigners on their territory can escape the consequences of such a state of things only by temporarily denying to foreigners access to their territory." 1

European nations in supporting claims of their citizens arising out of civil wars and insurrections, regardless of whether insurgents or authorities caused the injury, take the ground that the responsibility of the state is due to a lack of diligence in preventing or suppressing uprisings. This ground, it is believed, could hardly be general, for "the highest interests of the state are too deeply involved in the avoidance of such commotions to allow the supposition to be entertained that they have been caused by carelessness on its part which would affect it with responsibility towards a foreign state." 2 Moreover, if they were negligent in fact, it would be extremely difficult to prove, and if the claims rested upon this basis alone few of them could be prosecuted to payment. As a matter of fact, the ground is advanced for plausibility only, and assuming that the states are so organized that civil commotion is only a fortuitous event and not one invited by lack of proper political and police organization, we must support the Latin-American states in their endeavors to be relieved from the diplomatic pressure of claims resulting from injuries sustained in the operations incident to civil war.

1 Annuaire, 1900, pp. 254-256.

2 Hall, International law, 5th ed., 1904, p. 223. See also, Fiore, Nouveau droit international public, Antoine's translation, § 673 et seq.; Pillet, Les lois de la guerre, p. 29; Wiesse, Le droit international appliqué aux guerres civiles, § 14; Leval, La protection diplomatique, § 103; Pittard, Protection des nationaux, 1896, pp. 281

§ 392. Legislative Limitations to Avoid Claims Based upon Tortious Injuries.

The second, and perhaps the largest, class of claims to forestall which various Latin-American states have enacted legislation limiting the diplomatic protection of foreigners, are those arising out of acts of violence or oppression in times of nominal peace. The limitation consists in denying the lawfulness of diplomatic interposition in these cases, except where there is a denial of justice. In enacting such legislation, these states of Latin-America base themselves squarely upon the Calvo doctrine, namely, that every claim advanced by a foreigner, whether against an individual or against the state, must find its final settlement before the local courts, and only in the event of a denial of justice can diplomatic interposition be entertained. The law of Venezuela, typical of many of these provisions, reads as follows (law of April 16, 1903, Art. 11):

"Neither domiciled aliens nor those in transit have the right to have recourse to diplomatic intervention except when legal means having been exhausted before the competent authorities, it is clear that there has been a denial of justice, or a notorious injustice has been done or that there has been an evident violation of the principles of international law." 1

Article 3 of the Convention adopted by the Second Pan-American Conference 2 on the rights of aliens provides:

"Wherever an alien shall have claims or complaints either civil, criminal or administrative, whether against a state or its citizens, he

196 State Papers, 647, and 8 R. D. I. privé (1912), p. 9; Venezuela, Executive Decree of Nov. 13, 1912, 8 A. J. I. L. (1914), Suppl. 174-175 and criticism by A. de Busschère on the ground of its liberality in 3 Rev. de derecho y leg. (Caracas), Oct. 1913, pp. 3-6; see also Costa Rica, law of December 20, 1886, Moore's Dig. VI, pp. 269-270; Salvador, law of September 27, 1886, Art. 39, Moore's Dig. VI, 267, For. Rel., 1887, p. 69; Salvador, Legislative decree of May 10/30, 1910, arts. 4 and 18, Libro rosado; Ecuador, law of August 26, 1892, Art. 10, 84 State Papers, 645; Mexico, law of May 28, 1886, Art. 35, Legislación mexicana, Vol. 17, p. 474 et seq., For. Rel., 1895, II, 1012; Guatemala, Constitution, Art. 23, Rodriguez, I, 239; Nicaragua, Constitution, Art. 11, Rodriguez, I, 362; Peru, law of April 17, 1846, Pradier-Fodéré, op.cit., III, 234; Honduras, Constitution, Art. 14, Alvarez, op. cit., 120; Bolivia, decree of May, 1871, For. Rel., 1871, p. 39.

2 Sen. Doc. 330, 57th Cong., 1st sess., p. 228.

shall present his claims to a competent court of the country and such claims shall not be made through diplomatic channels except in the cases where there shall have been on the part of the court a manifest denial of justice or unusual delay, or evident violation of the principles of international law."

This convention, which expresses the Latin-American contention, has been incorporated into their constitutions and statutes and has found expression in a number of treaties concluded between European and American states.1 Mexico seems to have had little difficulty in negotiating such treaties. In 1890, the United States declined to conclude a treaty with Ecuador containing such a clause, not because the United States did not recognize the principle, but because difficulty was felt in introducing into "our conventional relations with a single state stipulations which, although not novel in design, are yet so in form, and which might for that reason be open to misconstruction."

" 2

In some treaties the exemption from diplomatic interposition, except in cases of manifest denial of justice, has specific reference only to the case of aliens taking part in civil struggles and provides that these shall be treated as nationals without recourse to diplomatic interposition except in cases of denial of justice. As will be noted, these aliens are frequently considered as nationals by local legisla

1 Germany and Mexico, Dec. 5, 1882, Art. 18, Martens' Recueil des traités, Vol. 59, p. 474; Sweden and Norway and Mexico, July 29, 1885, Art. 21, ibid., Vol. 63, p. 690; France and Mexico, Nov. 27, 1886, Art. 11, ibid., Vol. 65, p. 843; Holland and Mexico, Sept. 22, 1897, Art. 16, ibid., Vol. 83, p. 188; Germany and Colombia, July 23, 1892, Art. 20, ibid., Vol. 69, p. 842; Italy and Colombia, Oct. 27, 1892, Art. 21, ibid., Vol. 72, p. 313; Spain and Peru, July 16, 1897, Art. 6, Olivart's Colección de tratados de España, Vol. 12, p. 348, 4 R. G. D. I. P. (1897), 795; Spain and Colombia, April 28, 1894, Art. 6, Olivart, op. cit., Vol. 11, p. 63; France and Venezuela, Nov. 26, 1885, Art. 5, Martens' Recueil, Vol. 62, p. 684; United States and Peru, Sept. 6, 1870, Art. 37, Martens' op. cit., Vol. 51, p. 107; Pradier-Fodéré, op. cit., III, 236; For. Rel., 1883, p. 913; Great Britain and Bolivia, August 1, 1911, art. 10, Treaty Series, 1912, 223. See also Tchernoff, La protection des nationaux, pp. 295–296.

2 Mr. Blaine, Secretary of State, to Mr. Caamano, May 19, 1890, Moore's Dig. VI,

270.

Spain and Ecuador, May 23, 1888, Art. 3, Olivart's Colección de tratados de España, Vol. 9, p. 27; Spain and Honduras, Nov. 17, 1894, Art. 3, Olivart, op. cit., Vol. 11, p. 156; Belgium and Ecuador, March 5, 1887, Art. 3, Martens' Recueil, Vol. 65, p. 741; Italy and Colombia, Oct 27, 1892, Art. 5, ibid., Vol. 72, p. 310.