Edwin Montefiore Borchard.

The diplomatic protection of citizens abroad; or, The law of international claims online

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UNIVERSITY OF CALIFORNIA
AT LOS ANGELES




UNIVERSITY of CALIFOKNlr

LOS Ais'GELES



THE

DIPLOMATIC PROTECTION OF

CITIZENS ABROAD .

OR ^

THE LAW OF INTERNATIONAL CLAIMS



BY

EDWIN M. BORCHARD, LL.B., Ph.D.

SOMETIME EXPERT ON INTERNATIONAL LAW. NORTH ATLANTIC COAST

FISHERIES ARBITRATION AT THE HAGUE. AND ASSISTANT

SOLICITOR. DEPARTMENT OF STATE



THE BANKS LAW PUBLISHING CO.
NEW YORK

1925



^7 '1 i -i ■'



COFTBIOBT. 1915, BT

THE BANKS LAW PaiJLISHING COMPANY









To

JOHN BASSETT MOORE






^ PREFACE



J^'



With the drawing together of the world by increased faeiUties for
travel and communication, the number of persons going abroad for
purposes of business or of pleasure has steadily increased. Coincident-
ally, an increasing amount of capital, American as well as European,
has been seeking investment in foreign countries, and the growth of
international commerce and intercourse has resulted in the creation
of vast commercial and other interests abroad. These movements of
^ men, money, and commodities, while of economic advantage to the
t" exploiting and to the exploited country and establishing bonds of
■^ mutual dependency between them, also create occasional friction.

The individual abroad finds himself in legal relation to two countries,
the country of which he is a citizen, and the country in which he
§1. resides or establishes his business. From the point of view of the one,
^ he is a citizen abroad; from the point of view of the other, he is an alien.
The common consent of nations has established a certain standard of
conduct by which a state must be guided in its treatment of aliens. In
^i the absence of any central authority capable of enforcing this standard,
*^ international law has authorized the state of which the individual
is a citizen to vindicate his rights by diplomatic and other methods
^ sanctioned by international law. This right of diplomatic protection
« constitutes, therefore, a limitation upon the territorial jurisdiction of
^ the country in which the alien is settled or is conducting business.
o The standard of treatment which an alien is entitled to receive

is incapable of exact definition. The common practice of the civilized
nations and the adjudication of conflicts between nations, particularly
by arbitration, arising out of alleged violations of the rights of citi-
zens abroad, have nevertheless developed certain fundamental prin-
ciples from which no nation can depart without incurring international
responsibility to the national state of the person injured. The right
which every state possesses to protect its citizens abroad is correla-




VI PREFACB

tive to its obligation to accord foreigners a measure of treatment
satisfying the requirements of international law and applicable treaties,
and to its responsibility for failure to accomplish this duty. Practice
has demonstrated that the mere fact that aliens have been granted
the rights authorized by local law, and equality of treatment with
natives, is not necessarily regarded as a final compliance with inter-
national obligations, if the local measure of justice and administra-
tion in a given case falls below the requirements of the international
standard of civilized justice, although it is always a delicate proceed-
ing, in the absence of extraterritoriality, to charge that a rule of
municipal law or administration fails to meet the international standard.

Citizens abroad, therefore, have in the vindication of their rights
an extraordinary legal remedy not open to natives. However just
it may be to confine the aUen to the rights granted by local law, pred-
icating state liability merely upon the state's failure to make its grant
effective, practice has shown that nations of the Western European
type are unwilling unreservedly to concede the application of this
principle to some of the weaker countries of the world. While tacitly
undertaking to abide by the local law, a rule supported by principle,
international practice has given aliens a reserved power, after the vain
exhaustion of local remedies, to call upon the diplomatic protection
of their own government, if their rights, as measured not necessarily
by the local, but by the international, standard have been violated.
The citizen abroad has no legal right to require the diplomatic pro-
tection of his national government. Resort to this remedy of diplo-
matic protection is solely a right of the government, the justification
and expediency of its employment being a matter for the government's
unrestricted discretion. This protection is subject in its grant to such
rules of municipal administrative law as the state may adopt, and
in its exercise internationally to certain rules which custom has recog-
nized.

The study of the right of diplomatic protection, therefore, involves
an examination of three distinct legal relations: that existing, first,
between the state and its citizen abroad; secondly, between the
alien and the state of residence; and, thirdly, between the two states
concerned with respect to their mutual rights and obligations. In



PREFACE Vll

Part I of this work these relations will be discussed somewhat inde-
pendently. The line of development will involve, first, a study of the
relation between the state and its own citizen, particularly in respect
to the state's right and obligation to protect him, and secondly, a study
of the rights of the alien in the country of his residence under the gen-
eral principles of international law and in municipal law, compara-
tively treated. If the rights of an alien are invaded, he must, as a
general rule, in first instance, resort to the remedies provided by mu-
nicipal law. The attempt has, therefore, been made in the third
chapter, which deals with the municipal responsibiUty of the state,
to study, in the field of municipal public law, comparatively considered,
the incidence of liability between the state and the wrongdoing officer,
and the remedies afforded to the injured individual in cases where
public responsibiUty is alleged. If these municipal remedies are ex-
hausted in vain and a denial of justice in the international sense is
alleged by the alien's national government, the international re-
sponsibility of the state of residence is invoked. In other words, the
deviation by a state from the special obligations of treaties, or from
that international standard of civiUzed justice to which the alien, by
universal recognition, is entitled, gives rise to its international re-
sponsibility toward the alien's national government. The fourth
and following chapters, on international responsibiUty, lead, finally,
to a consideration of the relation between the two states concerned,
the protecting state and the state of residence.

In Part II, the nature, exercise, and effect of protection are discussed,
and particularly the relation between the public claim of the state and
the private claim of the injured citizen. Among other matters, the
following topics receive consideration: the theory of the protective
function and its operation, the true nature of an international claim
arising out of an injury to a citizen, the relation between the public
and the private demand, in international and in municipal law, the
discretionary nature of protection, the control of the government, the
extent of protection, the means of protection, and the collection and
distribution of indemnities and arbitral awards.

In Part III, the person or national interest receiving protection
is considered. This involves a study of citizenship in its international



via PREFACE

relations and of those persons, entities and objects which are entitled
to national protection.

In Part IV, the facts, acts and considerations which operate as con-
ditions, qualifications and limitations upon the right to diplomatic
protection and the prosecution and recovery of international claims
are considered, including the conditions prescribed by the protecting
government, and the limitations arising out of the act or failure to act
of the citizen himself, out of the subject-matter, and out of the neces-
sity for taking account of the primary interests of the state and the
accepted rules of international intercourse.

In the present work, the practice of the United States through the De-
partment of State and of other countries through their Foreign Offices,
in the exercise of the right of diplomatic protection, and the awards
of arbitral tribunals passing upon international pecuniary claims have
been used as principal sources. The practice of the United States
in matters of diplomatic protection may well be regarded as a close
approach to a just standard of international practice, for the United
States has been and is both an exploiting and an exploited country.
The views and the principles it has declared in the exercise of its
right to protect American citizens abroad have, as a general rule,
been tempered by the knowledge that it must recognize as belonging
to aliens within this country the same rights that it seeks to establish
for its citizens abroad, the measure of its obligations being the measure
of its rights. The effort has been made to discount argumentative
and controversial positions which have occasionally been assumed,
where a course has been adopted without regard either to the real
principles involved or to the ultimate interests of the United States.

The decisions and awards of arbitral tribunals passing upon pecun-
iary claims instituted by aliens, through their national governments,
against the foreign governments in which they may reside or do busi-
ness are a most important guide in determining the reciprocal rights
and obligations of states in the protection of individuals. By the
submission of a private claim to arbitration the two countries in con-
troversy provide a forum to determine the extent of the legal injury
which the state has sustained in the person of its citizen, and the legal
right to and amount of reparation payable as indemnity. The two



PREFACE IX

states substitute for diplomatic negotiation and resort to self-help
an independent tribunal with jurisdiction to pass upon the justification
for extending protection and the merits of the defense in a given case.
Hence the great authority of arbitral decisions as a criterion for the
mutual rights and obligations of states with respect to individuals,
and the reliance placed by Foreign Ofl&ces upon arbitral awards, as
precedents, in the presentation of and defense against international
claims arising out of alleged violations of the rights of individuals.

The practice and the science of international law owe to Professor John
Bassett Moore an immeasurable debt. Apart from his invaluable per-
sonal services to various administrations, he has, by the publication
of his monumental works, the Digest of International Law and the
History and Digest of International Arbitrations, furnished to the offi-
cials of the Department of State constant and trustworthy guidance
in the conduct of the country's foreign relations. The writer's personal
indebtedness to Professor Moore is but feebly expressed in owning
the gratitude which he feels for friendly counsel always generously
placed at his disposal and for the stimulus to sound scholarship which
Professor Moore unconsciously inspires.

This occasion is taken to express the author's sense of obligation
to Dr. George W. Scott for awakening in him an interest m and appre-
ciation of the importance of the present subject, and to Mr. J. Reuben
Clark, Jr., formerly Solicitor of the Department of State, Mr. Richard
W. Floumoy, Jr., Chief of the Bureau of Citizenship, and Professor W.
F. Dodd of the University of Chicago, for their kindness in reading
various sections of the manuscript and for their valuable suggestions.

Edwin M. Borchard.
March 1, 1915.



TABLE OF CONTENTS

PART I

RELATION BETWEEN STATE AND CITIZEN, STATE AND ALIEN, AND
BETWEEN STATE AND STATE

Chapter I

INTRODUCTION

PAQB

Relation Between State and Individual — General Principles 3

§ 1. State and Individual 3

§ 2. Growth of Territoriality of Law 3

Nationality 7

§ 3. Development of Nationality 7

§ 4. Nature of Citizenship 7

§ 5. Nature of the Bond 9

§ 6. "Temporary Allegiance" of Aliens 11

§ 7. Source of Rights of Individual 11

§ 8. Nationality as Title to International Redress for Violation of

Rights 15

§ 9. Position of the Individual in International Law 16

§ 10. Characteristics of Bond of Nationality 19

§ 11. Dual and No Nationality 19

§ 12. Citizens in International and in Constitutional Law 20

§ 13. Rights and Duties of State and Citizen Abroad 21

Protection Abroad 25

§ 14. Diplomatic Protection a Limitation on Territorial Jurisdiction .... 25

§ 15. Right and Duty of Protection 29

The Protective Function 30

§ 16. PoUtical Philosophy. Function of the State 30

Chapter II

THE ALIEN

§ 17. Historical Development of Legal Position of Alien 33

§ 18. Relation of Law of AUena to Different Branches of Law 36

§ 19. Position of Alien in Municipal Law 36

§ 20. Sources of the Law of Aliens 38

n



XU TABLE OF CONTENTS

PAQE

Minimum of Rights Due to Aliens 39

§ 21. Method of Establishing Minimum 39

§ 22. Recognition of Legal Personality 40

§ 23. Status of Foreign Corporations 41

§ 24. Other Rights of the Alien 42

Maximum Power of State over Aliens 43

§ 24a. Matters of Public Law 43

§ 25. Matters of Private Law 44

Admission and Exclusion 44

§ 26. State's Right of Exclusion 44

Expulsion 48

§ 27. State's Power to Expel 48

§ 28. Grounds of Expulsion 51

§ 29. Method of Exercising Right of Expulsion 54

§ 30. International Phases of Expulsion 55

§ 31. Grounds of International Claims 57

§ 32. In Time of War 61

§ 33. Extradition 62

Political Rights and Duties 63

§ 34. These not Usually Ascribed to Aliens 63

§ 35. Military Service 64

Civil Rights 69

§ 36. Meaning of the Term 69

§ 37. Types of Legislative Systems 71

§ 38. Public Rights 73

§ 39. Private Rights 86

§ 40. Transient and Domiciled Aliens 91

§ 41. Subjection to Territorial Law 94

§ 42. Criminal Proceedings 96

§ 43. Limitations upon Territorial Jurisdiction — Extraterritoriality 102

§ 44. Equality of Alien and National not always Internationally Suffi-
cient 104

§ 45. Treaty Rights of Aliens in the United States 107

Position in War 109

§ 46. Aliens in War 109

Chapter III

MUNICIPAL RESPONSIBILITY OF THE STATE

§ 47. Outline of the Subject 116

§ 48. Distinction between Governmental and Corporate Functions 117

§ 49. Judicial Control over Acts of Administration 118

§ 50. When State is Responsible, and Incidence of Liability 120

The State as a Public Power 125

5 51. Acts of Legislation — No Responsibility the Rule 126



TABLE OF CONTENTS xiii

PAQB

S 52. Judicial Acts 129

Executive and Administrative Acts 131

§ 53. Judicial Control 131

The French System 134

§ 54. Different Classes of Administrative Acts. Recourse of Individual

and State Responsibility 134

§ 55. Respective Liability of State and Officer 138

§ 56. Limitations on State Liability for Administrative Acts 139

§ 57. Liability of Municipalities 140

§ 58. Resume 142

The German System 142

§ 59. Judicial Control over Acts of Administration 142

§ 60. Pecuniary Liability of the State 143

Systems of Other European Countries 147

§ 61. Spain 147

§ 62. Italy 148

§ 62a. Austria-Hungary 150

§ 63. Switzerland 152

§ 64. Belgium and Other Countries 153

§ 65. Roumania 154

§ 66. Comparison of Continental Systems 155

Anglo-American System 156

§ 67. Judicial Control over Acts of Administration 156

§ 68. Suit for Pecuniary Damages — Liability of Municipal Corporations . 157

§ 69. Principle of State Immunity from Pecuniary Liability 159

§ 70. Limited Right of Action Granted by Statute 162

Liability of Officers — Comparative Law 171

§ 71. Right to Sue Officer. The Method of Protecting Officer 171

§ 72. Foreign States before Municipal Courts 175



Chapter IV

INTERNATIONAL RESPONSIBILITY OF THE STATE

§ 73. General Principles 177

Authorities of the State 180

§ 74. Different Classes of Authorities 180

Legislative Authorities 181

§ 75. Acts of Legislation 181

Executive and Administrative Authorities 183

§ 76. Limitatioiid upon their Power. Contractual Relations 183

§ 77. Tortious Acts 185

§ '78. Diplomatic, Naval and Military Officers 187

§ 79. Minor Officials 189

S 80. Soldiers 193



XIV TABLE OF CONTENTS

PAQB

Judicial Acthorities 195

i 81. Position of Courts and Judges 195

PouTicAL Subdivisions of the State 199

§ 82. Responsibility of Central Government for its Constituent Parts . . . 199

i 83. Succession of States and Apportionment of Debts 202

D« Facto Governments 205

§ 84. Different Kinds. Transmission of Obligations 205

} 85. Criteria of De Facto Government. Effect of Recognition 210

Chapter V

INTERNATIONAL RESPONSIBILITY OF THE STATE — Continued

ACTS OF INDIVIDUALS

{ 86. Obligations of the Government 213

I 87. Factors Imposing Liability upon the Government 217

§ 88. Brigandage 219

Mob Violence 220

§ 89. Obligations of the Government 220

§ 90. Special Protection Due in Certain Cases 222

§ 91. Factors Imposing Liability upon the Government 223

§ 92. Statutory Compensation by Municipalities 226

Civil War Injuries 228

§ 93. General Principles and Theory 228

{ 94. Limitations on General Rules. Effect of Recognition, Continued

Residence, Participation and Amnesty 235

I 95. Insurgents in Temporary Control of Limited Areas 239

{ 96. Successful Revolution 241

{ 96. Experience of Latin-America 242

Chapter VI

INTERNATIONAL RESPONSIBILITY OF THE STATE — Continued
WAR CLAIMS

S 98. Belligerent and Private Rights 246

5 99. Theory of Compensation for War Losses 247

§ 100. A State of War 248

§ 101. Position of Aliens in Hostile Territory 250

§ 102. Enemy Character 253

I 103. War on Land 2.55

§ 104. Appropriation of Private Property 262

J 105. Requisit ions and Contributions 267

i 106. War at Sea 270



TABLE OF CONTENTS XV

TAOS

1 107. Neutral Obligations 277

S 108. State Indemnity 279

Chapter VII

INTERNATIONAL RESPONSIBILITY OF THE STATE — Continued

CONTRACTUAL CLAIMS

§ 109. Exceptional Position of Claims Arising out of Contracts 281

§ 110. Three Classes of Contractual Claims. Distinctions 281

Contracts Between Individuals 283

§ 111. Absence of Governmental Inteiest 283

Contracts between Citizen and Foreign Government 284

§ 112. Formal Interposition Not Customary 284

§ 113. Use of Good Offices Authorized 288

§ 114. Qualifications of General Rule of Non-Interposition 291

§ 115. Arbitration 296

Bonds of Pdbmc Debt .302

§ 116. Claims Arising out of Unpaid Bonds 302

§ 117. Nature of Public Loan and Law Governing 302

§ 118, Remedy in Municipal Courts 305

§ 119. International Remedies. The Drago Doctrine 308

§120. Diplomatic Interposition and Intervention. Opinions of Publicists . 310

§ 121. Practice of Nations 313

§ 122. The Porter Proposition at The Hague 318

§ 123. Relation between Porter Proposition and Drago Doctrine 321

§ 124. Public Bonds before Tribunals of Arbitration 322

§ 125. The United States and Central- American Loans 325

§ 126. Conclusion 327

Chapter VIII

INTERNATIONAL RESPONSIBILITY OF THE STATE Continued

DENIAL OF JUSTICE

§ 127. Meaning of the Term 330

i 128. Conditions Incident and Precedent to Diplomatic Interposition. . . . 331

§ 129. "Denial of Justice" in International Practice 335

5 130. Extent to which Unjust Judgment of Municipal Court is Inter-
nationally Binding 340

Chapter IX

RELATION between STATES

§ 131. Mutual Concessions by States 344

§ 132. Diplomatic Protection a Limitation on Territorial Jurisdiction .... 346



XVI TABLE OF CONTENTS

PART II

THE EXERCISE OF DIPLOMATIC PROTECTION

Chapter I

NATURE, BASIS AND THEORY OF PROTECTION

PAGE

§ 133. Fundamental Principles 349

§ 134. Theory of the State's Protection 351

§ 134a. Diplomatic Protection an Extraordinary Legal Remedy 352

§ 135. Basis of the Public Action of the State 353

§ 136. Protection in Operation 354

Chapter II

RELATION between THE PRIVATE AND THE PUBLIC INJURY

§ 137. Method of Presenting a Private Claim 355

§ 138. Citizen's Title to Protection Not a Legal Right; An Extraordinary

Legal Remedy 356

§ 139. Merger of the Private Claim into the National Claim of the State . 356

§ 140. Effect of National Character of the Claim 359

§ 141. Varying Effects of Merger of Different Classes of Claims 360

§ 142. National Claims which Survive Private Settlement 362

Protection Discretionaky with the Executive 363

§ 143. Discretion Uncontrollable by Courts 363

Chapter III

GOVERNMENT CONTROL OVER CLAIMS

§ 144. Power to Settle, Compromise, Release or Abandon Claim 366

§ 145. No Obligation to Consult Claimant 371

§ 146. Power to Determine Opportunity for Pressing Claim 372

§ 147. Government's Power to Renounce Indemnity 373

§ 148. Government not Liable for Mismanagement 376

§ 149. Circumstances under which Government is Liable 378

Chapter IV

DISTRIBUTION OF AWARDS AND INDEMNITIES

S 150. Two Stages of the Proceedings; The International and the Mu-
nicipal 381

S 161. Finality of Awards 382



TABLE OF CONTENTS XVll

PAQB

§ 152. Award or Indemnity a National Fund, Free from Individual Lien . . 383

§ 153. Nature of Individual Claimant's Title to Fund 384

§ 154. Its Distribution a Matter of Executive or Congressional Discretion,

Free from Judicial Control 385

§ 155. Practice of Department of State under Act of February 27, 1896 . . 388

§ 156. Who are "Claimants" Entitled to Distribution of Funds 391

§ 157. Conflicting Claims of Secondary Beneficiaries Usually Referred to

Courts 392

§ 158. Method of Proving Title as Claimant or Beneficiary 393

§ 159. Method of Making Payment 395

§ 160. Remedies of Rival Claimants or Beneficiaries. Secretary's Deter-
mination not Final 396

§ 161. Expenses of Arbitration Usually Charged to Claimants 397

Chapter V

EXTENT OF PROTECTION

§ 162. Factors Determining Measure of Protection 399

§ 163. Fostering American Interests Abroad 400

§ 164. Preventive Measures 401

§ 165. Request for Local Protection in Foreign Country 402

§ 166. Consular Administration of Decedents' Estates 404

§ 167. Degree of Assistance in Certain Cases 405

§ 168. The Backward Countries of Near and Far East 406

§ 169. Miscellaneous Cases 407

§ 170. Criminal Proceedings Abroad 407

§ 171. Financial Relief 409

Measures of Damages 413

§ 172. Direct and Indirect Damage 413

§ 173. Circumstances under which Claims for Indirect Damages Allowed . 416

§ 174. Punitive or Exemplary Damages 419

§ 175. Maritime Torts 419

§ 176. Ordinary Contract and Tort Claims 422

§ 177. Personal Injuries 423

§ 178. Measure of Damages in Claims arising out of Chinese Revolution

of 1911 .' 426

Interest 428

§ 179. Absence of any Settled Rule of Allowance 428

Extraterritorial Protection 430

§ 180. Protection Amounting to Jurisdiction 430

§ 181. Sources of Extraterritorial Rights 431

§ 182. Origin and Development of the System 432



XVUl TABLE OF CONTENTS

Chapter VI

MEANS OF PROTECTION

PAGE

§ 183. Agencies of Protection 435

§ 184. Consular Service 435

§ 185. Treaties 438

§ 186. Methods of Redress of Injuries 439

Amicable Methods 439

§ 187. Diplomacy 439

§ 188. Good Offices 440

§ 189. Diplomatic Interposition 441

§ 190. Mediation 442

§ 191. Arbitration 442

NoN- Amicable Methods 445

§ 192. Withdrawal of Diplomatic Representative 445

§ 193. Retorsion 445

§ 194. Display of Force 446

§ 195. Use of Armed Force 448

§ 196. Reprisals 453

§ 197. War 455

PART III

THE OBJECT OF PROTECTION— THE PERSON AND PROPERTY OF

CITIZENS

Chapter I

CITIZENSHIP THE PRIMARY TITLE TO PROTECTION

§ 198. American Citizenship 457

§ 199. Naturalized Citizens Abroad 460

§ 200. Citizenship Usually Essential to Protection 462

§ 201. Occasional Protection of Foreigners 463

Protection of Foreigners in "Extraterritorial" Countries 467

§ 202. Extraterritorial Protection and Jurisdiction 467

§ 203. Prot6g6 System 468

Delegated Protection 47 1

§ 204. Accompanying Conditions 471

§ 205. Occasions of Exercise 472

Seamen 475

§ 206. American Seamen. Meaning of the Term 475

Vessels 47S

§ 207. Evidence of Nationality 478



Online LibraryEdwin Montefiore BorchardThe diplomatic protection of citizens abroad; or, The law of international claims → online text (page 1 of 103)