UC-NRLF jx i! Illll,; 4231 * B SD SDb •P8B7 30 :> 0& PET THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD BY EDWIN M. BORCHARD SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE Faculty of Political Science Columbia University NEW YORK 1914 THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD BY EDWIN M. BORCHARD SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN THE Faculty of Political Science Columbia University Reprinted from American Journal of International Law, v. 7, No. 3, pp. 497-520, and the August, 1913, Quarterly of the Society for Judicial Settlement of International Disputes NEW YORK 1914 3 # PREFACE This monograph consists of two studies which will be used as chap- ters of a larger work, The Diplomatic Protection of Citizens Abroad, now in preparation. The first study is a theoretical consideration of .the legal principles involved in the protection, under public interna- tional law and through diplomatic agencies, of citizens in foreign countries. It is intended to serve as the introductory chapter of the larger work. This work will deal with the practical problems of in- ternational law growing out of the residence of citizens abroad, the defense of their rights and the reparation of injuries they may sus- tain while so resident. These questions are among the most important which present themselves for solution to the Department of State of the United States and to the foreign offices of other governments. The second study is a practical consideration of one class of cases in which the diplomatic protection of the government is frequently invoked, namely, international claims based upon contract. The practice and the science of international law owe to Professor John Bassett Moore an immeasurable debt. Apart from his invalu- able personal services to various administrations, he has, by the pub- lication of his monumental works, the Digest of International Law and the Digest of International Arbitrations, furnished to the officials of the Department of State constant and trustworthy guidance in the conduct of the country's foreign relations. The writer's personal in- debtedness 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 Pro- fessor Moore unconsciously inspires. In the preparation of this dissertation for publication the writer has received useful practical suggestions from Professors Munroe Smith and Thomas Reed Powell of Columbia University, whose kind as- sistance is herewith acknowledged. April 1st. 1914. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD * The diplomatic protection of citizens abroad is a comparatively modern phenomenon in the evolution of the state, in constitutional and in international law. Not until the legal position of the state toward individuals, both its own citizens and aliens, and of states between themselves, had become clearly defined in modern public law, did dip- lomatic protection become a factor in international intercourse. A dis- cussion of the subject therefore involves a preliminary study of three distinct legal relations, first, between the state and its own citizen; secondly, between the state and aliens resident within it; and, lastly, the relations of states among themselves with respect to their rights over and their international responsibility for delinquencies toward aliens. The history of the legal relation between the state and individuals, its own citizens and aliens, is largely a history of the transition from the system of personal laws to the territoriality of law, accompanied both by a growing control of a central power over the individuals within its jurisdiction and by the appearance of certain characteristics, territorial independence and sovereignty, as essential qualifications for admis- sion of a state into the society of states. 1 GROWTH OF TERRITORIALITY OF LAW The territoriality of law, an accepted phenomenon of modern times, was a matter of slow development. The Roman law was not applicable to foreigners. Strictly speaking, the foreigner was an outlaw. Com- * Published with permission of the Banks Law Publishing Company. 1 The growth of the state and of modern political society can not be here discussed. The subject is ably treated by Professor Edward Jenks in his History of Politics, London, New York, 1900, and in his Law and Politics in the Middle Ages, London, 1898. 497 Reprinted from The American Journal of International Law for July, 1913 ■ - . 498 THE AMERICAL JOURNAL OF INTERNATIONAL LAW merce, custom and religion brought about an amelioration of his harsh condition to the extent of permitting the application of the foreigner's own law in legal relations among themselves and in certain commercial relations with Roman citizens. Even this privilege, however, was ex- tended only to friendly peoples. The German tribes were more hos- pitable to the foreigner, although strictly he was a person without rights. By permitting the foreigner to reside among them if unchallenged by a member of the tribe, the foreigner acquired a precarious measure of protection, usually assumed by the king or leader of the tribe. 2 In the commingling of tribes in the Frankish Empire and in the ab- sence of any centralized or stable legal system or judicial organization previous to the time of Charlemagne, each tribe lived under its own law and the personal rights and acts of the individual and his legal status were regulated and judged according to the code of the tribe or nation to which he belonged. This system of the application of the personal laws, as they were called, was by no means analogous to the privilege of living under their own law which Rome had extended to certain classes of friendly aliens. In the Frankish Empire, there was an equality between all the personal systems. In Rome, only the Roman law was universal, and its enjoy- ment was limited to Roman citizens alone. The use of foreign systems was a special concession due to the unwillingness of Rome to permit foreigners to share in the benefits of the Roman civil law. In the Frank- ish Empire, the various tribes and their members were equal; in Rome the position of the non-Roman was one of legal inferiority and such advantages as he came to enjoy consisted in the removal of restrictions imposed by the Roman law. The Germanic peoples, before their in- vasion of Rome, knew no system of personal laws, for it was their uni- 2 Bar, L. von, Theory and practice of private international law (Gillespie's transla- tion), Edinburgh, 1892, p. 12; Bernheim, A. C, History of the law of aliens, New York, 1885, p. 7, et seq., p. 18; Frisch, Hans von, Das Fremdenrecht, Berlin, 1910, pp. 5-22. For the legal position of aliens in early law see the following works: Demangeat, Charles, Histoire de la condition civile des etrangers en France dans Vancien et dans le nouveau droit, Paris, 1844; Sapey, C. A., Les etrangers en France .sows Vancien et le nouveau droit, Paris, 1843; Catellani, E., II diritto internazionale privato e sui recenti progressi, Torino, 1895, 2nd ed., v. 1, p. 13 et seq.; Weiss, A., Traite" de droit international prive, 2nd ed., Paris, 1908, v. 2, chap. 1. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 499 versal custom that the law of the conquering tribe replaced that of the conquered. The master abolished the law of his slave, and substituted his own. 3 The conditions arising out of the conquest of such a cultured people as the Romans changed this custom, and in the coordinate exist- ence of the Roman system and the body of tribal systems the germ was laid for the recognition of the personality of laws. 4 The Roman law existed side by side with that of the dominant conquering tribe. 5 The two great exceptions to the rule of the personality of laws were in cases where the person's individual law could not be recognized and those where such recognition was contrary to public interest. The first exception applied to aliens and non-Christians, aliens being those whose nations were not included under the Empire. As we have said, aliens had no rights and were under public protection and governed by the law of their protector. An individual personal law, moreover, could not interfere with public law; so, for example, the criminal law soon became local and territorial. In the later Middle Ages, various influences led to a transition from the principle of the personality of law to that of territoriality of law. With the development of agriculture, came a greater permanency of habita- tion on the part of the Germanic nations. The fixed attachment to a city or community, and intermarriage between members of the different Germanic nations, made it difficult, after a generation or two, to keep in mind individual personal laws; so that courts began to apply their own law, derived largely from the capitularies of the Emperor which applied to all within the empire without discrimination of race or na- 3 Bar, L. von., op. cit., p. 18. 4 Continental Legal History Series, v. 1, General survey of events, sources, persons, and movements in continental legal history, Boston, 1912, pp. 60 et seq. 6 At the present day we may note the survival of the system of personal laws in the fact that Europeans live in various parts of the world (Turkey, India, the Malay peninsula, the Barbary States) under their own law, as do the Indians while on their reservations in this country. See also Asser-Rivier, Elements de droit international prive, Paris, 1884, p. 7, footnote. In the conflict of laws there are numerous cases in which a legal relation is judged by the so-called "personal statute," either the law of the domicil or of nationality of the individual in question, though this is rather an outgrowth of the jus gentium of the Romans than an illustration of the modern survival of the personality of laws. See also Savigny, F. C, A treatise on the conflict of laws, translation of v. 8 of his System des heutigen romischen Rechts (1849) by William Guthrie, Edinburgh, 1880, p. 58, pp. 60-62. 500 THE AMERICAN JOURNAL OF INTERNATIONAL LAW tion. Although local customs continued to prevail, they applied, in- stead of to distinct individuals, to all those within a certain locality. The church, by its dominance in certain spheres of law, particularly the family relations, helped to substitute legal uniformity, for the di- versity of personal laws. Feudalism, however, was the most vital fac- tor in breaking down the principle of personality. With the intermin- gling of the races under a fixed home life, with the final acceptance of one religion to replace paganism, with the centralization of legal rela- tions around the idea of land ownership, personal systems lost their utility. In most private legal relations one rule had become dominant over the many conflicting rules previously applied. In the field of pub- lic law the feudal fief became the unit of administration, and within it all classes of persons having identical rights in land, had identical rights and duties with respect to their lord. Within the various classes of liegemen rights were equal. These influences ultimately brought about the disappearance of per- sonality as the criterion of the application of law and substituted terri- toriality and local uniformity, notwithstanding the fact that certain groups such as the citizens of certain towns, members of certain guilds, and churchmen were accorded special privileges within the territorial limits. 6 In the ieudal system we find some of the primary elements of the relation between the state and its citizen and the protective functions of the state. Feudalism embodied the notion of the territoriality of rights with the personal relation between lord and liegeman now known under modern transformations as sovereignty. Although land owner- ship became an index of rights and duties, thus strengthening the terri- torial principle, and the oath of personal allegiance established the reciprocal obligations of protection and service between the feudal lord and his liegeman, it is to be noted that the lord's jurisdiction and control over his man did not transcend the boundaries of his fief. NATIONALITY The Thirty Years' War was an epoch-making event in the history of international law. It was not merely a great struggle between Protes- 6 General survey of continental legal history, pp. 80-83; Savigny, op. cit. pp. 63-64. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 501 tantism and Roman Catholicism, but from it emerged the principle of territorial independence as opposed to imperialism. 7 The international system of the present day was definitely marked out and the character- istics of the modern state denned. While unequal in power, the states in the system were recognized each as independent, as legally equal, and as exercising exclusive jurisdiction within certain definite territorial limits. The removal of the common superior fostered what had in fact for years been a sense of national independence and national conscious- ness. Overshadowed for a time by the religious attributes of the Ref- ormation, and obscured by feudal particularism, 8 nationality emerged at the Peace of Westphalia as a phenomenon distinct from religion. The relation between the state and individuals, both its own subjects and aliens, brings up the important questions of the legal and political nature of the state and the reciprocal rights and obligations existing between it and individuals. Citizenship (or nationality) is the status of an individual as subject or citizen in relation to a particular sovereign or state, and signifies membership in a political community. It traces its origin to the time when the city was the largest autonomous unit to which the individual was attached and its meaning has expanded with the growth of that unit into the modern state. It involves a legal and political relationship between the state and the citizen, by virtue of which he is endowed with certain qualities distinguishing him from other individuals. 9 The con- ditions on which citizenship shall be acquired and granted, the individuals to whom this status shall be extended, and the rights and obligations incurred by the relationship are fixed by the municipal public law of each state. Allegiance, the tie which binds the citizen to the political group to which he belongs, is due to the state, the juristic personality of the nation. "The machinery through which [the state] operates is its government. The persons who operate this machinery constitute its magistracy. The rules of conduct which the state utters or enforces 7 Walker, T. A., A history of the law of nations, v. 1, Cambridge, 1899, p. 148 et seq. 8 Brissaud, J., A history of French private law, Boston, 1912, p. 874. 9 Gerber, C. F., Grundzuge des deutschen Staatsrechts, Leipzig, 1880, 3rd ed., p. 229; Morse, A. P., A treatise on citizenship, Boston, 1881, p. x, p. 4, p. 36; Foote, J. A., Foreign and domestic law, Private international jurisprudence, London, 1904, 3rd ed., p. 1. 502 THE AMERICAN JOURNAL OF INTERNATIONAL LAW are its law, and manifest its will. This will, viewed as legally supreme, is its sovereignty." 10 Citizenship is essentially a personal relationship, as is sovereignty or the supreme legal authority of the state over those whom it controls. The subjects of the state are all those persons over whom it exercises sovereignty, which in constitutional law include not merely citizens, but aliens residing within its territory or otherwise subject to its con- trol. A territory is not in fact an essential element of sovereignty, although international law has arbitrarily conditioned the enjoyment of membership in the international community on the possession of a territory. 11 It is by virtue of the personal relationship involved in sovereignty and citizenship that the state may declare its laws binding on its citizens even when abroad and by virtue of which its obligations to those non-resident citizens continue to exist. 12 Jurisdiction, or the right of physical control over persons, has, how- ever, become territorial, and thus it occurs that the laws of the state, while theoretically binding on the subject so far as made applicable to him, are unenforceable beyond the territorial limits of the state, unless accompanied by jurisdiction or enforced by the foreign sovereign by international arrangement. 13 In exterritorial countries both sovereignty and jurisdiction may be exercised beyond the territorial limits, as is il- 10 Willoughby, W. W., Citizenship and allegiance in constitutional and international law, Amer. Journ. Int. Law, v. 1 (1907), pp. 914, 915. 11 Crane, Robert T., The state in constitutional and international law, Baltimore, 1907, p. 69; Hall, International law, 6th ed., Oxford, 1909, pp. 17, 19. 12 Congress exercises the right to regulate certain acts of United States citizens abroad and attach prescribed consequences to those acts. E. P. Wheeler, The re- lation of a citizen in a foreign country, in Amer. Journ. Int. Law, v. 3 (Oct. 1909), p. 871 and cases cited. In England this right rests on Crown prerogative, acts of Parliament and common law. See Hall, W. E., Foreign powers and jurisdiction of the British Crown, Oxford, 1894, pp. 8-13. See also Fiore, P., Nouveau droit inter- national public (Antoine's trans.), Paris, 1885, v. 1, sec. 644; Lomonaco, G., Trat- tato di diritto intemazionale pubblico, Napoli, 1905, p. 166; Martens, F. de, Traite de droit international, Paris, 1883, v. 1, p. 442; Despagnet, Frantz, Cours de droit international public, 4th ed., Paris, 1910, p. 467. 13 The notion that citizens, resident abroad, by virtue of their allegiance, still fall under the operation of the laws of their national state, is a fallacy often encoun- tered in the writings of publicists. They are subject only to such national laws as the legislature expressly makes binding upon them. See Piggott, Nationality, Lon- don, 1906, v. 1, p. 3. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 503 lustrated by the consular courts of various Powers of the first class in countries like China and Turkey. The will of the state, therefore, is not merely limited in its expression by its constitution and laws, but its enforcement is limited internally by the character of its people and government and externally by the territorial boundaries of the state. 14 In pure constitutional theory, citizenship is imposed by the state by virtue of its sovereignty, on whomsoever it will, and independently of the will of the person. It is not created by or at the consent of the in- dividual. 15 The theory is limited in its application by the international rule that states permit their subjects to acquire a new citizenship or rather predicate their recognition of such a change on the condition that it was a voluntary act of the subject accompanied by an actual change of domicil and political affiliation. Andre Weiss, the eminent jurist of Paris, has presented an ingenious and plausible argument to show that citizenship or nationality is con- tractual in its nature. 16 "It is to-day generally recognized," says Weiss, "that the bond of nationality is a contractual one; and that the bond which unites to the state each of its citizens is formed by an agree- ment of their wills, express or implied." This theory has been severely criticized, among others by Stoerk 17 and by Piggott, 18 and it is now con- sidered fallacious. Some authors to-day, however, find in the grant of nationality, i. e., naturalization, a public legal act of a bilateral charac- ter, 19 but even these publicists admit that the relation is not analogous to a private contractual obligation but rather to the contract of adop- tion in family law. 14 Willoughby in Amer. Joiirn. Int. Law, 1907, p. 925; Heilborn, P., System des Volkerrechts, Berlin, 1896, p. 75 et seq., and opinions of Gierke, Oertmann, Gerber and Laband there cited. 16 Willoughby in Amer. Journ. Int. Law, 1907, p. 924. 16 Annuaire de VInstitut de Droit International, v. 13 (1894), p. 162 et seq. 17 Stoerk, F., Les changements de nationalite et le droit des gens in Revue Gen. D. I. P., v. 2 (1895), p. 273 et seq. See also Nys, E., Le droit international, 2nd ed., Brux- elles, 1912, p. 257. 18 Piggott, F. T., Nationality, London, 1906, v. 1, pp. 5-10. 19 Laband, Paul, Das Staatsreeht des deutschen Reichs, 5th ed., Leipzig, 1911, p. 177; Jellinek, Georg, System der subjectiven offentlichen Rechte, 2nd ed., Tubingen, 1905, p. 198. The majority of publicists deny that the conceptions of private law furnish any analogy to the peculiar relations created by public law. See Stoerk, Felix, Zur Methodik des offentlichen Rechts, Wien, 1885, and authorities there cited. 504 THE AMERICAN JOURNAL OF INTERNATIONAL LAW The relation between the citizen and his state is in fact a relation sui generis. Admission into membership in the state and to the status of citizenship is an act of sovereignty. It being neither a contract nor an act of grace, Stoerk has denominated it a sociological fact, a dis- tinguishing mark of the state itself. 20 In discussing expatriation, the United States Supreme Court has on several occasions, prior to the expatriation act of July 27, 1868 (R. S. 1999), expressed the opinion that "the doctrine of allegiance * * * rests on the ground of a mutual compact between the government and the citizen or subject, which it is said, cannot be dissolved by either party without the con- currence of the other.' ' 21 The theory of a compact in the relations between the state and its citizens has engaged the attention of political philosophers for centuries. It became important in the eighteenth century when some writers in the American colonies, appealing to the Englishman Locke, advanced forcibly the theory that the individual enters the state by voluntary agreement, and may establish the conditions of his membership and the limitations of the power of the state. In France, Montesquieu and Rousseau were its most prominent champions. In arriving at the true legal relation of the state and the individual we are not concerned with either of the political theories (1) that the entire sphere of right of the individual is the product of state concession and permission, or (2) that the state not only creates rights but leaves the individual that measure of liberty which it does not itself require in the interest of the whole. 22 Foreigners within the state owe it a considerable measure of obedience in return for the local protection they receive while residents. This obedience has often been termed temporary and qualified allegiance in contradistinction to the permanent and absolute allegiance owed by 20 Stoerk in Rev. Gen. D. I. P., v. 2 (1895), p. 288. 21 Inglis v. Sailor's Snug Harbor, 3 Peters (1830), p. 124; Talbot v. Janson, 3 Dallas (1795), 162. See also cases cited by Wise, J. S., American citizenship, Northport, 1906, pp. 263-264. While not a mutual compact, it is true that as a status im- posed by the state, citizenship and allegiance could only be renounced when per- mitted by the state. In most modern states, except Russia and Turkey, municipal legislation has granted the individual this power. 12 On this entire subject see Jellinek, G., The declaration of the rights of man and of citizens, New York, 1901 (Max Farrand's translation), pp. 80, 90 and 95. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 505 the citizen. 23 In truth, it is a misnomer to speak of "temporary alle- giance" due by a foreigner. The nature of the foreigner's subjection to the state of his residence was described by Secretary of State Webster in 1851 in his report on Thrasher's case as follows: 24 Independently of a residence with intention to continue such resi- dence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign govern- ment, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native born subject might be, unless his case is varied by some treaty stipulation. The migration of the citizen of one state to another and his residence in the latter brings about in constitutional theory a double citizenship, of primary and organic nature with respect to his home state and of a temporary and qualified nature with respect to the state of residence. It subjects the individual for different purposes and in different degrees to the sovereignty of two states. The conflicting claims of two or more states to the citizenship and obedience of the same individual have been to a great extent settled by mutual forbearances, although differences in municipal legislation in some instances still give rise to cases of double nationality and even of no nationality (Heimatloseri) . Nationality (which term is less ambiguous than its synonym citizen- ship) is the most important of the three relations in which a person may be subject to the control of a particular state. These three in the order of the closeness of the bond are actual residence, domicil, and nationality or citizenship (Staatsangehdrigkeit, nationalite) . Used in the ethnographic sense, a nation is a collection of human beings held together by certain common physical or racial characteristics; used in the legal sense, it means a politically united people, and its derivative " nationality" is used to represent the bond which attaches the citizen 23 Mr. Justice Field in Carlisle v. United States, 16 Wallace, p. 147, at p. 154,- adopted by Willoughby in Amer. Journ. Int. Law, 1907, p. 924. 24 The works of Daniel Webster, Boston, 1851, v. VI, p. 518, at p. 526, cited also in Carlisle v. United States, 16 Wall. p. 155; see also Mr. Justice Gray in United States v. Wong Kim Ark, 169 U. S. 649. 506 THE AMERICAN JOURNAL OF INTERNATIONAL LAW by certain qualities to the state. 25 We have already noted that by virtue of the bond, the citizen is provided with certain rights, in par- ticular, political rights, and is charged with the performance of certain duties to his state in return for the benefits of citizenship. 26 Stoerk and Oppenheim believe that nationality is a condition precedent to the enjoyment of international rights, which statement von Bar refutes by showiog that heimatlosen or those without nationality are entitled to these rights. 27 International rights are commonly considered to be those which are universally accorded by the national law of all civilized states to individuals within its jurisdiction. Confusion arises because in the present state of our civilization, the individual, as a human being, is accorded certain fundamental rights by all states professing membership in the international community. In constitutional governments, they have often received the name "rights of man." These rights, uncertain as they are in content, were denominated by Blackstone as the absolute rights of all mankind, — the right to personal security, to liberty and to private property. At one period in the history of law they were known as "natural rights/ ' and this conception played a prominent part in justifying the political philosophy of the eighteenth century which culminated in the French Revolution. 28 These rights, as incidental to natural law, the adherents of which school of legal philosophy were the founders of international law, were logically denominated international rights and sometimes human rights. Whether the recognition of these rights is the result of history and the unconscious growth of law or whether it is the result of conscious legislation, 29 it is certain that by legislative and judicial 25 Bar, op. cit, p. Ill; Stoerk in HoltzendorfPs Handbuch des Volkerrechts, Berlin, 1885, II, pp. 589-591. 26 Stoerk in HoltzendorfFs Handbuch, II, pp. 630-636; Heilborn, op. cit., p. 75 et seq.; Oppenheim, International Law, London, 1912, sec. 291; Gareis, K., Institutionen des Volkerrechts, Giessen, 1901, sec. 53; Cockburn, Alexander, Nationality, London, 1869, p. 186; Nys, E., op, cit., p. 257. 27 Stoerk in HoltzendorfFs Handbuch, II, sec. 114, p. 589; Oppenheim, op. cit., I, sec. 291; Bar, op. cit., p. 111. 28 For the history of natural rights and the modern theories see Ritchie, D. G., Natural rights, London, 1895, ch. 1 and 2. An analysis of the so-called rights is un- dertaken by Ritchie, ch. 6 et seq. 29 For a summary account of the history of legal theory and the various schools of BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 507 declaration certain fundamental rights of the individual in a civilized state have been positivised in the same way that the Roman juriscon- sults by their jus respondendi positivised the principles of the jus na- turale. 30 These rights, like all rights, are really creations of public senti- ment, legally protected interests, which may be expressed either by custom or legislation. If these rights of a resident alien are violated without proper redress in the state of residence, his home state is warranted by international law in coming to his assistance and interposing diplomatically in his behalf. Reasoning from this fact, many publicists assert that whatever rights the individual has in a state not his own are derived from inter- national law, and are due him by virtue of his nationality. As a matter of fact, the alien derives his rights, — fundamental or human rights and others, — by grant from the territorial legislature, international law fixing a minimum which cannot be transcended and authorizing certain agencies, usually the national state, to remedy and punisji a breach. Whether these " rights of humanity" have their origin in inter- national law, or are merely concomitants of existence in a civilized state, the recognition of which rights a state must show as a condition of membership in the international community, international law, nevertheless, provides them with a definite sanction. This view, it would seem, is confirmed by the fact that where a state disregards cer- tain rights of its own citizens, over whom presumably it has absolute sovereignty, the other states of the family of nations are authorized by international law to intervene on the grounds of humanity. Where these " human" rights are habitually violated, one or more states may intervene in the name of the society of nations and may take such meas- ures as to substitute at least temporarily, if not permanently, its own sovereignty for that of the state thus controlled. 31 Whatever the origin, legal thought see Borchard, E. M., Guide to the law and legal literature of Germany, Washington, 1912, p. 25 et seq. 30 See Muirhead, James, Historical introduction to the private law of Rome, London, 1899, 2nd ed., p. 283. See also Annuaire of the Institute of Int. Law, v. 1, p. 124. 31 Rougier, La theorie de V intervention d'humanite in Rev. Gen. D. I. P., 1910, p. 472. Thus intervention on behalf of co-religionists in the Orient and elsewhere has on numerous occasions been undertaken. Pillet, A., Principes de droit international prive, Paris, 1903, p. 171. 508 THE AMERICAN JOURNAL OF INTERNATIONAL LAW therefore, of the rights of the individual, it seems assured that these essential rights rest upon the ultimate sanction of international law, and will be protected, in last resort, by the most appropriate organ of the international community — the national state of the individual or those states whose interests are most directly affected. + The rights of man as proclaimed by the political philosophers of the American and the French revolution were given positive constitutional expression in France and the United States in 1789, 32 and since then have in some form been incorporated in most modern constitutions. The municipal law of each state prescribes the manner in which these rights shall be exercised. Among the rights which we now consider the rights of man, are those to which international lawyers have applied the phrase " international rights," those general rights which the individual enjoys in every part of the globe and which are normally protected by every state of the in- ternational family. Martens 33 enumerates these rights as (1) the right to live and procure the necessary means to live; (2) the right to de- velop his intellectual faculties; (3) the right to come and go freely among the states of the international community. Among the imprescriptible rights of man, which flow from these rights, Martens considers freedom of emigration, the right to be respected in person, life, honor and health, and the right of property. The incidental rights of entering into con- tracts, marriage, etc., are equally protected, though regulated, when affected by foreign interests, by that branch of municipal law known as private international law. With this universality of rights of the in- 32 There had been a definite declaration of rights in Virginia in 1776, and the pre- amble and first paragraph of the Declaration of Independence of July 4, 1776 was in the nature of a declaration of rights. These documents with the French Declara- tion des droits de Vhomme et du citoyen of 1789, as prefixed, with amendments, to sev- eral French constitutions, are to be found in the appendix to Ritchie, op. cit. See also the first ten amendments to the United States Constitution. These rights of man had been the subject of discussion by political philosophers of France and England for many years before 1789. They received most forceful expression in the American colonies in numerous pamphlets and tracts, notably those of James Otis and Samuel Adams. See Jellinek, G., The declaration of the rights of man and of citizens (translated by M. Farrand), New York, 1901, pp. 80-84. 33 Martens, F. de, Traiti de droit international, Paris, 1883, v. 1, p. 440. See also Gareis, op. cit., p. 150. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 509 dividual in view, Stoerk and others have coined the term "Volker- rechtsindigenat," 3i or, as Bentham has expressed it, " citizen of the world." 35 Four principles dominate the bond of nationality. The first embodies the idea of legal attachment, expressed in former times by membership in a clan or tribe, advancing later into the broader bond of membership in a city, state and nation. This quality Stoerk calls the civitas or the quality of belonging to some nation, as every vessel at sea is recognized as belonging to some organized community. 36 The second principle is the exclusiveness of nationality. In theory and in aim public law as- cribes only one nationality to an individual, though differences in the municipal law of different states have occasionally endowed an in- dividual with plural nationality. The third is the principle of muta- bility, which permits the individual at the present day to change his nationality; and the fourth, the principle of continuity, by which the nationality of origin is retained until a new one is acquired. Emigra- tion without naturalization in another state does not break the bond of nationality. Such emigration may by municipal law under certain conditions involve a loss of diplomatic protection, but this is only one of the rights incidental to citizenship. The same individual, as we have seen, is sometimes claimed as a citizen by two or more states, due to differences in their municipal legis- lation as to when citizenship begins and ends. The concurrent claims of the jus soli and the jus sanguinis, the absolute or conditional refusal of some states, as Russia and Turkey, to permit expatriation, followed nevertheless by the naturalization of their emigrating subjects by other states, or any new naturalization before the bond of allegiance to the original state has been severed, create cases of double nationality which have given rise to serious conflicts. Again, the imposition by some states of a deprivation of nationality as a penalty for certain acts, or a predica- tion of loss of nationality upon mere residence abroad for a certain period, brings about the equally anomalous situation of an individual 34 Stoerk in Holtzendorff's Handbuch, v. 2, sec. 113-114; Gareis, op. cit., sec. 53. 35 Extracts printed in Wheaton's History of the law of nations, New York, 1845, pp. 329-331. 36 Stoerk in Rev. Gen. D. I. P., supra, v. 2 (1895), p. 277 et seq. 510 THE AMERICAN JOURNAL OF INTERNATIONAL LAW without nationality or the heimatlos.* 7 By international agreements and municipal law, states have within the past forty years endeavored to remove these sources of conflict, or at least by mutual concessions to agree on the circumstances under which protection shall be accorded and permitted. In the international sense the citizens of a state are those individuals over whom the state is admitted by the international community to have primary authority. There is, however, a difference between the citizens of international law and those of constitutional law. Leaving aside the broad constitutional principle that the state may impose its citizenship on all those within its sovereignty, there are classes of per- sons who, while not citizens in constitutional law, are nevertheless sub- jects of the state or nationals in international law. So, for example, the negroes before the Civil War, the American Indians, and natives of the unincorporated insular possessions, are citizens of the United States in international law, though not constitutionally citizens. 38 Nor are constitutional disabilities attached to age or sex of any international concern. Again, a person may be a citizen in constitutional law without being a citizen in international law. This case occurs in federal nations like the United States for example. A person may be a citizen of a State without being a citizen of the United States. Confusion arises because, whereas the status of citizenship is a national grant, the enjoyment of many of its rights is within the jurisdiction of the States, and from the possession of these rights the term " State citizenship" has arisen. To be a citizen of the United States, birth or naturalization in the United States is necessary; to be a citizen of a State, usually only residence is required. Nor is the right to vote a criterion. This right is not granted 37 Weiss in Annuaire de VInstitut, v. 13, p. 174-176, has mentioned eight cases in which conflicts in municipal law have most frequently caused cases of double na- tionality. See also Cockburn, op. cit. pp. 108, 186, 187. Many publicists consider municipal penalties of loss of nationality as wrong in principle, as they increase the number of persons without nationality. 38 Wolf man, Nathan, Status of a foreigner who has declared his intention of becoming a citizen of the United States, in American Law Review, v. 41 (1907), p. 499; Coudert, Frederic R., Jr., Our new peoples: citizens, subjects, nationals or aliens, Columbia Law Review, v. 3 (1903), pp. 13-32. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 511 or guaranteed by the federal Constitution, but is conferred and regulated by the States. This right is in some States even granted to persons not citizens either of the State or of the United States. 39 In the British Empire, with its scattered dominions, the term " British citizenship" has received a peculiarly local meaning, not extended for example to the natives of India. 40 In our international use of the term citizenship or nationality we are not concerned with variations in the municipal tests or degrees of citizenship, nor need we be detained by any supposed difference between the terms "subject" and "citizen," the former ap- plying generally to nationals of a state whose government is a monarchy, the latter to those where there is no kingship. The term "nationals" is perhaps the most appropriate, inasmuch as it disregards differences in constitution and form of government. As we have seen, the mere separation of the individual from his home soil leaves him still subject to the law of his own state in so far as this has been made applicable to him. This remains so until physically and legally he has become incorporated as a citizen of another state. The continuity of the bond is evidence of the continuation of the reciprocal relations between the state and the citizen. We may now briefly enumer- ate the most important of the rights and duties which exist between the state and its citizen abroad. First, self-preservation gives the state the necessary right of calling upon its citizen for military duty, for which purpose the state may re- call its absent citizen. 41 The state of residence is not, however, obliged to facilitate his return to fulfill the obligations imposed by his national law, though it is bound not to prevent his performance of these duties. The machinery provided for retaining control of the citizen abroad and for assuring him the enjoyment of certain international rights is the consular and diplomatic office, which is governed by such rules of na- tional municipal law as the territorial state, by comity and the force 39 Van Dyne, F., Citizenship of the United States, Rochester, 1904, p. 111. 40 Sargant, E. B., British citizenship in United Empire, v. 3 (May, 1912), p. 366, 373. 41 Stoerk in Holtzendorff's Handbuch, v. 2, pp. 630 et seq.; Bluntschli, Droit inter- national codifie (Lardy's ed.) 5th ed., Paris, 1895, sec. 375; Martens, F. de, op. cit., p. 442; Bonfils, H., Manuel de droit international public, 6th ed. (by Fauchille), Paris, 1912, sec. 433. 512 THE AMERICAN JOURNAL OF INTERNATIONAL LAW of the principle of protective surveillance of the national state over its citizens, has permitted it to apply. Again, the state may impose certain taxes upon the citizen abroad, though international practice, except in cases of great national necessity, ascribes the collection of personal taxes to the state of residence. 42 Questions of double taxation are still an important source of interna- tional difficulty. 43 These requirements and injunctions of national law are binding be- tween the state and its citizen, and impose duties upon him. The ex- tent to which they are enforceable and their effect is measured by the application of the territorial principle, according to which, except for such concessions as are made by other states, national law loses its coercive force at the frontiers of its territorial dominions. If effect is given by other states to these provisions of national law it is the result of concession in derogation of local territorial jurisdiction, which con- cessions by custom and comity have become a definite and important part of international law. Nevertheless, the failure to obey national law by a citizen abroad is not without its consequences in the home state. It may be met either immediately by a loss of national protec- tion and sometimes denationalization, or else with penalties inflicted either on property of the individual in the national state or upon rights which he may have retained there, or on his person when he returns. 44 Similarly, many states punish their citizens on return for crimes com- mitted abroad. In a general way, the exercise of this right of the state to punish its delinquent citizen depends, (1) upon the intrinsic impor- tance of the offense, — thus some states, as for example, Great Britain and the United States, limit to such punishment the important crimes such as treason, counterfeiting the national coinage, etc.; (2) on its 42 Stoerk in Holtzendorff's Handbuch, v. 2, p. 631; Bluntschli, op. cit., sec. 376. 43 Wittmann, Erno, Double imposts, in 24th Report of the International Law As- sociation (at Portland), London, 1908, pp. 214-229; Bar, op. cit., p. 245 et seq. 44 Germany, by the law of July 1, 1870, Art. 20, reserves the right to punish with denationalization the failure to heed the summons to return. Art. 22 provides the same penalty for those who, having entered the service of a foreign state do not, on demand, resign their office. The Hungarian law of Dec. 20, 1879 (Art. 50, An- nuaire de legislation etrangere, 1880, p. 351) makes a similar provision. See also French civil code, Art. 17, sec. 4, as amended by law of June 26, 1889 and Art. 17, sec. 3. See also Chretien, Principes de droit international public, Paris, 1893, p. 218. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 513 effect upon his own state and its citizens; and (3) on its punishability by national law and by the lex loci actus. If the penalty has already been paid in the place where the crime was committed, the home state will not usually enforce its own penalty, and this is always the case where the crime is against local law alone. 45 As in most cases where the individual is thus subject to the laws of two states, it is by mutual agreement and concession of the respective states that the rights and obligations of the individual are controlled and regulated, the object being to permit him neither to escape obligations nor twice to be sub- ject to them. The control of the national state is again evidenced in the fact that by the legislation of many countries the acceptance of foreign titles is conditioned upon the consent of the national sovereign. 46 So com- pliance with national law is occasionally necessary to the marriage of citizens abroad. National consent is sometimes a prerequisite to the marriage of military officers, as in Austria, Germany and France. 47 Those countries which do not admit of divorce, as for example, Italy and Brazil, decline to give legal effect to a divorce of their nationals in a state where such divorce is legal. 48 There is a large field of private international law in which the in- dividual's national law controls his legal relations abroad. Thus his personal status, and his capacity to enter into certain contracts, as, for example, marriage, his right to succession, questions of guardianship and similar matters are now largely controlled by his national law. 49 This personal law of the individual, which the principle of territoriality 45 An exhaustive comparative study of the subject of extraterritorial crime with extracts from the statutes of the more important countries and quotations from the writings of publicists is to be found in John Bassett Moore's Report on extraterri- torial crime and the Cutting case, Washington, 1887, 129 p. See also Chretien, op. cit., p. 221. 46 Stoerk in Holtzendorff's Handbuch, v. 2, p. 631; Chretien, op. cit., p. 218; Law of Costa Rica, Dec. 20, 1886, Art. 4, Annuaire de legislation etrangere, 1887, p. 869. 47 Renton, A. W. & Phillimore, G. G., The Comparative law of marriage and divorce, London, 1910, pp. 253-254. 48 Buzzati, G. C, he droit international prive d'apres les conventions de la Haye, French translation by Francis Rey, Paris, Larose & Tenin, 1911. 49 Bluntschli, op. cit., sec. 379; Rolin, A., Principes de droit international prive, Paris, 1897, v. 1, p. 114. 514 THE AMERICAN JOURNAL OF INTERNATIONAL LAW has recognized, is directly connected with the period of the early Middle Ages when the personal law or personal statute controlled the entire legal status of the individual. Before jurisdiction became national within a politically and geo- graphically denned territory, this personal law was usually the law of the domicil, an inheritance from the Roman law. 50 The legislation following the French Revolution (for example, Article 3 of the French Code Napoleon) first gave expression to the principle of nationality as controlling the status and capacity of persons. This principle was fol- lowed in the Austrian Allgemeines burgerliches Gesetzbuch of 1811 (Arti- cle 4), though the capacity of foreigners was still left to the old rule of domicil. The principle of nationality, however, as governing status, capacity and the family relations received its greatest impetus from the Italian school, of which Mancani was the principal apostle, and after adoption in the civil code of Italy, Spain, Germany and to some extent by Switzerland, it has been recognized by almost all the countries of Europe in the Hague Conventions on private international law, re- sulting from the conferences of 1893, 1894, 1900 and 1904. 51 Certain federal states like Switzerland still lend great emphasis to the principle of domicil as the criterion of status and capacity, as do the United States and Great Britain. Where political nationality is distributed throughout the world among various systems of private law, as for ex- ample, British nationality, which exists in Quebec, Scotland and South Africa, this personal law must refer to domicil within the political nationality. The state in turn undertakes toward its citizens certain duties which are an outgrowth of the relation itself, but which in their exercise are the result of international agreement and concession. The most im- portant of these duties of the state is the obligation to receive its own 60 Bar, op. cit., p. 112; see also Savigny, op. tit., p. 88 et seq. 51 These conventions established rules concerning the adjustment of conflicts of law in matters of marriage, divorce and guardianship. With but slight qualifications, the law of the nationality was adopted as the law governing these legal relations. See Meili, F. und Mamelok, A., Das Internationale Privat-und Zivilprozessrecht auf Grund der Haager Konventionen, Zurich, 1911. See also Westlake, J., A treatise on private international law, 4th ed., London, 1905, p. 27 et seq. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 515 citizens expelled by other states, or repatriation. 52 This obligation von Bar considers the true kernel of nationality. 53 Banishment is now practically abandoned as a penalty against citizens. No state can legally require other states to receive its banished citizen, and if they were to refuse him admission, it would be obliged to accept him again as a resident member of the national community. The second duty which is imposed upon the state by virtue of the relationship is the protection of its citizen abroad. The security of international intercourse depends upon the fact, recognized by the practice of nations, that states assume toward their citizens the obliga- tion, and possess as against other states the right, of assuring their citizen abroad the exercise and enjoyment of certain legal rights. PROTECTION ABROAD The bond of citizenship implies that the state must watch over its citizens abroad. Too severe an assertion of territorial control over them by the state of residence will be met by the emergence of the pro- tective right of the national state and the potential force of this phenom- enon has largely shaped the rights assumed by states over resident aliens. The principles of territorial jurisdiction and personal sovereignty are mutually corrective forces. An excessive application of the terri- torial principle is limited by the custom which grants foreign states certain rights over their citizens abroad, sometimes merely the applica- tion of foreign law by the local courts, sometimes, in acknowledgment of the principle of protection, a certain amount of jurisdiction. In the Orient and in semi-civilized states this often involves a complete sur- render of local jurisdiction in favor of the foreign state, and in states conforming more closely to the highest type of civilized government, it consists in partial derogations from territorial jurisdiction in special classes of cases, e. g., consular jurisdiction in certain commercial dis- putes and over national merchant vessels. 54 These concessions are 52 Martitz, F. von, Das Recht der Staatsangehorigkeit im internationalen Verkehr in Hirth's Annualen des deutschen Reichs, 1875, p. 794, Stoerk in Rev. Gen. D. I. P., 1895, p. 288; also in Holtzendorff's Handbuch, II, sec. 119; Gareis, op. tit., p. 163. 63 Bar, op. tit., p. 139. 54 Hall, W. E., Foreign powers and jurisdiction, Oxford, 1894, pp. 4-6. 516 THE AMERICAN JOURNAL OF INTERNATIONAL LAW made to assure individuals the most appropriate regulative agency for their legal relations. It is the obligation of every state to regard the citizens of other states as the subjects of legal rights. 55 Whether such recognition is compelled by international law, or by municipal law in fulfillment of obligations imposed by international law is of some theoretical interest and will be discussed briefly hereafter. When the citizen leaves the national territory he enters the domain of international law. By residence abroad he not merely carries with him certain rights and duties imposed by the municipal law of his own state, but he enters into a new sphere of mutual rights and obligations between himself as a resident alien and the state of his residence. A failure on his part to comply with these newly created obligations is met by repression and punishment in the local courts. A failure of the state to fulfill its obligations toward the alien is met by repression on the part of his home estate. The extent of this obligation toward the resident alien has been measured by international law and practice, though the very nature of repressive action has permitted the element of physical power and political expediency at times to obscure and even obliterate purely legal rights. Legally, the measure of the obligation of the state of residence to resident aliens is the measure of the national state's right. The extent of the failure to fulfill the obligation, ordinarily known as the interna- tional responsibility of the state, is in exact proportion to the amount of diplomatic pressure or protection which the national state is authorized to interpose. States are legal persons and the direct subjects of international law. They are admitted into the international community on condition that they possess certain essential characteristics, such as a defined territory, independence, etc. In addition, they must manifest their power to exercise jurisdiction effectively and, as we shall see, to assure foreigners within it of a minimum of rights. This minimum standard below which a state can not fall without incurring responsibility to the other mem- bers of the international community has been shaped and established by the advance of civilization and the necessities of modern international 65 Heilborn, op. cit., p. 75 et seq. BASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 517 intercourse on the part of individuals. The nome state of the resident alien is concerned not with the legal legitimacy of a foreign govern- ment, 56 but with its actual ability to fulfill the obligations which this in- ternational standard imposes upon it. The resident alien does not derive his rights directly from international law, but from the municipal law of the state of residence, though international law imposes upon that state certain obligations which under the sanction of responsibility to the other states of the international community, it is compelled to ful- fill. When the local state fails to fulfill these duties, "when it is incap- able of ruling, or rules with patent injustice," the right of diplomatic protection inures to those states whose citizens have been injured by the governmental delinquency. 57 International law recognizes on the part of each member of the family of nations certain norms or attributes of government for the purpose of assuring the rights of the individual. The independence of states, with the right of administering law and justice uncontrolled by other states, is one of the norms by which this end is attained. In countries which ^ habitually maintain effective government, the protection of the na- tional government of a resident alien is usually limited to calling the attention of the local government to the performance of its international duty. The right, however, is always reserved, and in the case of less^ stable and well-ordered governments frequently exercised, of taking more effective measures to secure to their citizens abroad a measure of fair treatment conforming to the international standard of justice. While the right of every state to exercise sovereignty and jurisdiction within its \ territory over all persons within it is recognized, foreign nations retain • over their citizens abroad a protective surveillance to see that their rights as individuals receive the just measure of recognition established by I the principles of international law. 58 Diplomatic protection, therefore, \ 66 The assassination of the King of Servia by certain nobles and of President Ma- dero by rebels was of no special international concern, in view of the immediate establishment of a government having the power to fulfill the international obliga- tions of the state. 57 Hall, W. E., Foreign powers and jurisdiction, p. 4; Bluntschli, op. cit., sec. 380. 58 Address before the American Society of International Law, April 29, 1910, Pro- ceedings of the Fourth Annual Meeting, p. 46; Heilborn, op. cit., p. 64 et seq; Pillet, A., 518 THE AMERICAN JOURNAL OF INTERNATIONAL LAW is a complementary or reserved right invoked only when the state of residence fails to conform with this international standard. The rules of international law in this matter fall with particular severity upon those countries where law and administration frequently deviate from and fall below this standard; for, the fact that their own citizens can be compelled to accept such maladministration is not a criterion for the measure of treatment which the alien can demand, and international practice seems to have denied these countries the right to avail themselves of the usual defense that the alien is given the benefit of the same laws, the same administration, and the same protection as the national. The broad principle of international law that when an individual establishes himself in a foreign state he renders himself subject to the territorial jurisdiction of that state and must normally accept the in- stitutions which the inhabitants of the state find suitable to themselves, must be viewed in its relation to the complementary principle that the individual in question still owes allegiance to his own state and will )e protected by that state when his rights, as measured not by the local, )ut by the international standard, are invaded. THE PROTECTIVE FUNCTION In arriving at the basis for the external activity of the state in pro- tecting citizens abroad, we are led into the field of the true function of the state. Being concerned primarily with international law, or the material and external sides of state activity, we can avoid all abstract philosophy, with the attempt to bring the meaning of the term "state" into harmony with a general theory of the universe. 59 From the beginning of civilization, the relation between the state and the individual and the proper sphere of the activity of each have been discussed by political philosophers. Under the ancient theory of the state, especially among the Greeks, the state was regarded as the ulti- mate aim of human life, an end in itself. 60 Individuals appeared only Recherches sur les droits fondamentaux des etats, Paris, 1899, p. 19 et seq., particularly at p. 28. 69 McKechmie, S. W., The state and the individual, Glasgow, 1896, p. 52. 60 Bluntschli, J. K., The theory of the state, Oxford, 1898, p. 305. EASIC ELEMENTS OF DIPLOMATIC PROTECTION OF CITIZENS ABROAD 519 as parts of the state; their rights and welfare were recognized only to the extent that it was serviceable to the state. By the time of the Romans, with its absence of political freedom but strong protection for private rights, a more just sense of the relations between state and individual obtained, at least so far as the sphere of law is concerned. The Kantian theory of the Rechtstaat considered the sole duty of the state the maintenance of the legal security of each individual. This attempt to narrow the sphere of governmental activity was adopted by the orthodox political economy which reduced the function of the state to the minimum of maintaining security. 61 A more modern theory, entirely individualistic and utilitarian, i ipported strongly by Macaulay, Eentham and John Stuart Mill, regarded the state as a means only to insure and increase the sum of private happiness. 62 The one-sidedness of each of these views has become more evident with the growth of social legislation during the past generation. The state is not merely an end in itself, nor only a means to secure individual welfare. Just as the nation is something more than a sum of the in- dividuals belonging to it, so the national welfare is more than the sum of individual welfare. National welfare and individual welfare are in- deed intimately bound together. v In an impairment of individual rights, the state, the social solidarity, is affected; 63 yet where, in a particular case, the redress of the individual wrong would involve too great a social cost, it may be overlooked, and the measurement of the balance of advantages is in the discretion of the government. The assurance of the welfare of individuals, therefore, is a primary! function of the state, accomplished internally by the agency of muni- cipal public law, and externally through the instrumentalities of inter- national law and diplomacy. The establishment of the machinery to insure this object constitutes an essential function of state activity — within, protecting every member of society from injustice or oppression by every other member; without, protecting its citizens from violence 61 Duguit, L., Etudes de droit public. 1. L'etat, le droit objectif et la hi positive, Paris, 1901, p. 288. See the theories of Kant and Humboldt as discussed in Blunt- schli, op. cit., p. 68. 62 McKechmie, op. cit., p. 77; Ritchie, op. cit., p. 87. 63 Duguit, op. cit., p. 290. 520 THE AMERICAN JOURNAL OF INTERNATIONAL LAW and oppression by other states. Authorities differ in giving expression to this function of the state, but modern publicists agree that it finds its basis in the nature of the state and in the doctrine of Locke that "the end of government is the good of mankind." 64 International lawyers, unwilling to indulge in philosophical specula- tion as to the relation between the state and the individual, assert that the final mission of the state and the aim of international organization culminates in the guaranty of the collective security of the nation and 'the personal security of the individual and of his rights, and the pro- motion of social and individual welfare. 65 Diplomatic protection, there- fore, as a governmental function to achieve security and justice, results from the very nature of the state. 66 It is entirely consistent with the principle of independence, when it is recalled that the latter, as an attri- bute of states, is only recognized by international law on the theory that it is the best means of accomplishing state functions. Its basis being practical, international law permits it to be set aside when it is misapplied, by the diplomatic interposition of those states whose in- terests, through their citizens, have been prejudiced by the delinquency. It thus conforms with the aim of international organization — the advancement and perfection of those rights which the modern develop- ment of international law, by custom and treaty, has recognized as inherent in the individual. Edwin M. Borchard. 64 McKechmie, op. cit., p. 74; Bluntschli, op. cit., p. 319 et seq. For an account of the contributions of a long line of publicists to political theory and philosophy, es- pecially as involved in the relation of the state to the individual, and the struggle between authority and liberty, see the works of McKechmie, Bluntschli, and Duguit cited above, and Yeaman, G. H., The study of government, Boston, 1871, and Leroy- Beaulieu, P., The modern state in relation to society and the individual, London, 1891. 65 See e. g., Martens, op. cit., sec. 75; Holtzendorff's Handbuch, I, sec. 15; and Huber, Beitrage zur Kenntnis der soziologischen Grundlagen des Volkerrechts u. Staatengesell- schaft in Jahrbuch des Offentlichen Rechts, v. 4 (1910), pp. 56-134; Hobhouse, Leonard T., Social evolution and political theory, New York, 1911, Chap. IX; Wilson, Roland K., The province of the state, London, 1911, Chap. I and II. 66 Pillet, A., he droit international public, ses elements constitutifs, domaine et objet, Rev. Gen. D. I. P., v. 1 (1894), p. 5. Judicial Settlement OF INTERNATIONAL DISPUTES No. 13 International Contractual Claims and Their Settlement By EDWIN M. BORCHARD Assistant Solicitor, Department of State AUGUST, 1 91 3 Published (Quarterly by American Society for Judicial Settlement of International Disputes BALTIMORE, U. S. A. Entered as second-class matter March ax, 19 10, at the Post- office at Baltimore, Md., under the Act of July 16, 1894. Ararrtratt £ort*ig for SuMrtal 8tttltmtnt of 3nt*rttaitottal BiBputta Honorary President, William Howard Taft. President, Joseph H. Choate, New York Citv. Vice-President, Charles W. Eliot, Cambridge, Mass. Secretary, James Brown Scott, 2 Jackson Place, Washington, D. C. Treasurer, J. G. Schmidlapp, Cincinnati, Ohio. £x*rutin* Commit!** Joseph H. Choate, Charles W. Eliot, James Brown Scott, J. G. Schmidlapp, Theodore Marburg, W. W. WlLLOUGHBY, Henry B. F. Macfarland, John Hays Hammond, ex-President, Simeon E. Baldwin, ex-President. Life membership, $100; Sustaining membership, $10 a year; Annual membership, $i a year. Remit to Treasurer, J. G. Schmidlapp, Cincinnati, U. S. A. Additional copies of this or other issues of the Judicial Settle- ment Quarterly may be obtained without charge from the Assistant Secretary. The Volume of Proceedings of the Third National Conference of the Society, Washington, D. C, December 20-21, 19 12, is now ready and has been sent to members. Non-members may obtain it from the publishers, Williams & Wilkins Co., 2427 York Road, Baltimore; price, in paper, 75c; cloth, $1.00, post- paid. Or of Williams & Norgate, 15 Henrietta Street, Covent Garden, London, W. C. ; price, in paper, 3s.; cloth, 4s. The program of this Conference was arranged in such a way as to call forth a discussion of the law to be administered by a Permanent International Court. It is believed that the experience in arbitration and judicial settlement which some of the speakers have had will make their papers as valuable as they were timely, and that the proceedings as a whole will be no mean contribution to the cause of judicial settlement. Tuvstall Smith, Assistant Secretary, The Preston, Baltimore, U. S. A. International Contractual Claims and Their Settlement* By Edwin M. Borchard. Diplomatic protection is often invoked by citizens of one country in cases arising out of contracts entered into with citizens of another, or with a foreign government. With the constant growth in international intercourse and the ex- ploitation of backward countries by foreign capital, this class of cases has assumed large proportions and has given rise to many perplexing and delicate diplomatic situations. The foreign offices of some of the more important govern- ments have differentiated these claims from tortious claims arising out of direct injuries committed by an authority of the state against the person or property of their citizens, either by declining to interpose in behalf of their contracting citizens or else by exercising more than ordinary scrutiny over a cause of action having its origin in contract. Funda- mentally it is the denial of justice which is the necessary condition for the interposition of a government on behalf of ♦This monograph is in substance a chapter of a forthcoming book by the author, "The Diplomatic Protection of Citizens Abroad," to be pub- lished early in 1914 by the Banks Law Publishing Co., New York. It is issued with the publishers' permission. 4 JUDICIAL SETTLEMENT its citizen prejudiced by breach of contract. As a general rule, before a claim originating in a contract can come within the category of a denial of justice it must have been sub- mitted to the courts for such judicial determination as is provided by the local law or in the contract. Until such submission, the government's right of interposition has not yet accrued. The qualifications of this principle we shall consider hereafter. There are three important classes of contract claims: first, those arising out of contracts concluded between in- dividuals who are citizens of different countries; second, those arising out of contracts between the citizen and a for- eign government ; and third, claims arising out of the unpaid bonds of a government held by the citizen of another. The failure of some publicists to distinguish these classes clearly in their discussion of the subject, especially the failure to distinguish the second from the third class, has brought about some confusion. When they state, as many of them do, that on principle there can be no intervention in claims arising out of contract, they really mean to confine their assertion to the case of claims arising out of unpaid bonds and not contracts in general. urlrtu for 3uMrial &fttlrtnrnt of Jntmtaltanal DiBjmira A&utaury Ctountil Lyman Abbott, New York. Edwin A. Alderman, Virginia. James B. Angell, Michigan. Simeon E. Baldwin, Connecticut. Richard Bartholdt, Missouri. Alexander Graham Bell, Washington, D. C. R. L. Borden, Ottawa, Ontario. Theodore E. Burton, Ohio. • Joaquin D. Casasus, Mexico City, Mexico. George E. Chamberlain, Oregon. Winston Churchill, New Hampshire. George B. Cutten, Wolfville, N. S. William R. Day, Ohio. Jacob M. Dickinson, Washington, D. C. Andrew S. Draper, New York. Charles W. Eliot, Massachusetts. William Dudley Foulke, Indiana. James Cardinal Gibbons, Maryland. George Gray, Delaware. Charles Noble Gregory, Washington, D. C. Peter S. Grosscup, Illinois. Bayard Henry, Pennsylvania. Joseph F. Johnston, Alabama. David Starr Jordan, California. Harry Pratt Judson, Illinois. William H. King, Utah. George W. Kirchwey. New York. Philander C. Knox, Washington, D. C. Charles F. Libby, Maine. Francis B. Loomis, Washington, D. C. Horace H. Lurton, Tennessee. R. McBride, Victoria, B. C. Pablo Macedo, Mexico City, Mexico. Charles Marcil, Ottawa, Ontario. Sidney E. Mezes, Texas. S. C. Mitchell, South Carolina. Don Romulo S. NaOn, Argentine Republic. Francis G. Newlands, Nevada. L. Oppenheimer, Cambridge, England. Thomas Nelson Page, Washington, D. C. Walter H. Page, New York. W. Peterson, Montreal. Sir Thomas Raleigh, London, England. William Renwick Riddell, Toronto, Ontario. Uriah M. Rose, Arkansas. A. C. Rutherford, Edmonton, Alberta. Walter Scott, Regina, Saskatchewan. Albert Shaw, New York. Hoke Smith, Georgia. Bishop Robert Strange, North Carolina. Sir Charles Hibbert Tupper, Vancouver, B. C. George Turner, Washington. Charles R. Van Hise, Wisconsin. Benjamin Ide Wheeler, California. William Allen White, Kansas. George G. Wilson, Massachusetts. Prince de Cassano, Italy. Publications of the American Society for Judicial Settle- ment of International Disputes — 1. The New Era of International Courts, by Simeon E. Baldwin. August, 1910. 2. The Necessity of a Permanent Tribunal, by Ernest Nys. November, 1910. Supplement — The American Society for Judicial Settlement of International Disputes, by James Brown Scott. November, 1910. 3. The Importance of Judicial Settlement, by Elihu Root. February, 1911. 4. The Development of the American Doctrine of Jurisdic- tion of Courts Over States, by Alpheus H. Snow. May, 1911. 5. An International Court of Justice the Next Step, by George Grafton Wilson. Salient Thoughts, by Theodore Mar- burg. August, 1911. 6. The Work of the Hague Court, by N. Politis. Novem- ber, 1911. 7. The Proposed Arbitration Treaties with Great Britain and France, by William Howard Taft. February, 1912. 8. Non-Justiciable Disputes and the Peace Treaties, by Omer F. Hershey. May, 1912. 9. The International Grand Jury, by William I. Hull. August, 1912. 10. The Court of Arbitral Justice, by James Brown Scott. November, 1912. 11. Legal Problems Capable of Settlement by Arbitration, by Charles Cheney Hyde. February, 1913. 12. Precedent and Codification in International Law, by Paul S. Reinsch. May, 1913. 13. International Contractual Claims and Their Settlement, by Edwin M. Borchard. August, 19 13. VITA Edwin M. Borchard was born in the city of New York October 17, 1884. After attending the public schools of the city he entered the College of the City of New York, which he left in 1902 in the Junior year. From 1902 to 1905 he attended the New York Law School, where he received the degree of LL. B cum laude. In 1906 he entered Columbia. While completing the necessary studies for the B. S. de- gree (which was conferred in 1908, with election to Phi Beta Kappa) he attended lectures on private law in the Columbia law school. In 1907 he spent several months in Berlin, during which he heard the lectures of Professors Kohler, Kahl and von Martitz at the Uni- versity of Berlin. In that year he was admitted to the bar. In 1908 and 1909 he pursued his graduate studies in public law at Columbia University, specializing in international law and comparative law and jurisprudence. This work was carried on under Professors Moore, Munroe Smith, Goodnow, Scott and Seligman. In 1909 he was ap- pointed Assistant to the Law Librarian in the Library of Congress and was placed in charge of the work on foreign law and international law. In the development of the collections of the Library further studies were pursued privately and in the George Washington Uni- versity Law School in Roman law, the conflict of laws and compara- tive civil law. In 1910 he was appointed by the Secretary of State as "Expert on International Law" to the American counsel in the North Atlantic Coast Fisheries Arbitration at the Hague and was associated with counsel in the preparation and presentation of that case before the Court of Arbitration at the Hague. In connection with the Arbi- tration, he edited the work Coastal Waters (Washington, G. P. O., 1910, 362 p.). At the conclusion of the Fisheries Arbitration he was commissioned by the Librarian of Congress to undertake a journey (Studienreise) through the countries of western Europe to study continental systems of law and continental legal literature. He there- upon spent several months visiting European law schools, courts and law libraries, and consulting many professors, judges and lawyers. Shortly after his return to the United States he was appointed (Janu- ary, 1911) Law Librarian of Congress and the Supreme Court. In order to make the foreign law collections of the Library of Congress generally available the enterprise was begun of publishing guides to foreign law. Two volumes have already been published as a part of this undertaking: Guide to the Law and Legal Literature of Ger- many (Washington, G. P. O., 1912) and The Bibliography of Inter- national Law and Continental Law (Washington, G. P. O., 1913). A Guide to the Law and Legal Literature of Spain and Spanish America is now in preparation in collaboration with Mr. T. W. Pal- mer, Jr., of Harvard University. A Guide to the Law of France is contemplated for publication in 1915. In September, 1913, Mr. Borchard was appointed Assistant Solic- itor of the Department of State, which position he now holds. Mr. Borchard is American Editor of the Bibliography of Legal Science (published in Berlin) and an Associate Editor of the Comparative Law Bulletin of the American Bar Association. Besides the works mentioned above, he has published a monograph on State Indemnity for Errors of Criminal Justice (Sen. Doc. 974, 62d Cong., 3d Sess.) and has contributed articles on topics in international law and com- parative law to the Columbia Law Review, American Law Review, Journal of Criminal Law and Criminology, Annals of the American Academy of Political and Social Science, American Journal of Inter- national Law, Comparative Law Bulletin, American Political Science Reviezv, Zeitschrift fur Volkerrecht und Bundesstaatsrecht, and Re- vue de Droit International (Brussels). He has also contributed to other publications, including the reports of the proceedings of various learned societies. He has in preparation a work, The Diplomatic Protection of Citizens Abroad (of which this dissertation comprises, in substance, two chapters) which is to be published during 1914 by the Banks Law Publishing Company. He is under contract to the Carnegie Endowment for International Peace to translate and write an introduction to Fiore's 77 Diritto Internationale Codiiicato. ■ - DAY AND TO »!•" _== OVERDUE. KC ~'D ^ &lan' 54' ^ Ul-fiSL ISE^: >*7t?V .' >9^ mc jul 1135 LD21 -100,»-12'«(8W 6S > U. C. BERKELEY LIBRARIES C0L477A7AML sos-Q/L 4XSI THE UNIVERSITY OF CALIFORNIA LIBRARY