the State itself. Whether the alien suffers wrong at the hands of a private individual or through the laches of the State, the victim should be given a means of redress by judicial process against the wrongdoer. Whenever such means are lacking the territorial sovereign fails, at least in principle, to fulfill a duty of jurisdiction.1

(2)

§ 269. When the Aid of the Courts Is Invoked against the Alien.

When an alien is the object of criminal prosecution or is made a defendant in a suit instituted by the territorial sovereign, the duty of jurisdiction with reference to him is equally apparent. Obviously the judicial system designed for the protection of life and property must not be employed as an instrument of oppression.3 The alien when prosecuted criminally must be given opportunity to summon witnesses in his own behalf and to interrogate them. He must be informed of the nature of the charges preferred against him and be enabled to defend himself with the aid of counsel.5

3

CLAIMS

a

$270. In General.

A claim in international law may be defined as a demand for redress made by one State upon another by reason of the alleged

1 "How Far is the Position of Resident Aliens Recognized and Protected by International Law", Proceedings, Am. Soc. Int. Law, V. 32.

2 Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, Sept. 7, 1886, MS. Inst. Mexico, XXI, 574, Moore, Dig., VI, 680. See Rights of Jurisdiction, The Establishment of a Judicial System, supra, § 219.

3 Mr. Evarts, Secy. of State, to Mr. Baker, Minister to Venezuela, Oct. 15, 1880, For. Rel. 1880, 1041, 1043, Moore, Dig., VI, 768; Mr. Marcy, Secy. of State, to Mr. Clay, Minister to Peru, No. 30, May 24, 1855, MS. Inst. Peru, XV, 159, Moore, Dig., VI, 659; Mr. Blaine, Secy. of State, to Mr. Dougherty, Chargé, No. 423, Dec. 29, 1890, MS. Inst. Mexico, XXII, 687, Moore, Dig., VI, 773; Mr. Root, Secy. of State, to Mr. Furniss, Minister to Haiti, Feb. 1, 1907, For. Rel. 1907, II, 744.

4 Mr. Conrad, Acting Secy. of State, to Mr. Peyton, Chargé to Chile, Oct. 12, 1852, MS. Inst. Chile, XV, 93, Moore, Dig., VI, 274.

5 Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, Minister to England, April 25, 1882, For. Rel. 1882, 230-233, Moore, Dig., VI, 275; Mr. Bayard, Secy. of State, to Mr. West, British Minister, June 1, 1885, For. Rel. 1885, 450, 453-454, Moore, Dig., VI, 277-279.

CLAIMS IN GENERAL

[§ 270

wrongful conduct of that other.1 The same term is also commonly used to signify the ground of complaint which is the basis of the

1 "A claim 'is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty.' [Prigg v. Penna., 16 Pet. 539, U. S. Sup. Ct.]

"In my judgment a claim upon the United States is something in the nature of a demand for damages arising out of some alleged act or omission of the Government not yet provided for or acknowledged. As the term imports, it is something asked for or demanded on the one hand and not admitted or allowed on the other. [Moore's Int. Arb., 3623, citing Dowell v. Cordwell, 4 Saw., U. S. Cir. Ct., 228, and quoting from Deady, J.]

"On a claim against a foreign government for spoliation the demand is founded upon the law of nations and the obligation of the offending government is perfect. [Emerson v. Hall, 13 Pet. 409, U. S. Sup. Ct.]

"Claim: 1. A demand of a right or supposed right; a calling on another for something due or supposed to be due. 'Doth he lay claim to thine inheritance?' Shak. 2. A right to claim or demand; a title to any debt, privilege, or other thing in possession of another. A bar to all claims upon land.' Hallam. 3. The thing claimed or demanded; that to which any one has a right, as a settler's claim [U. S. and Australia]. [Webster.]

"Claim: 1. A demand of anything as due. 2. A title to any privilege or possession in the hands of another. [Johnson.]

In the Spanish language the word of corresponding meaning is reclamación. "The opposition or contradiction which is made to anything as unjust.' This is reclamatio, oppositio. [Salvá.]

"The demand made for anything by him who has the right of property in it against him who possesses or denies it.' This is reclamatio. [Salvá.]

Reclamación [claim]: The opposition or contradiction that is made in words or in writing against anything as unjust, or by showing that it contradicts itself; and the claim or demand for anything by him who has the right of property in it against him who possesses it. [Escriche, Dict. of Legis.]" Authorities cited by Plumley, Umpire, in the Aroa Mines Case, BritishVenezuelan Commission, 1903, Ralston's Report, 354–355.

See, also, Paúl, Commissioner, in the Boulton, Bliss & Dallett Case, American-Venezuelan Commission, 1903, Ralston's Report, 26; Bruce, Arbitrator, in the Bond Cases, United States-Colombian Commission, Convention of Feb. 10, 1864, Moore, Arbitrations, IV, 3615. All of the foregoing definitions are contained in J. H. Ralston, Arbitral Law, 153–154.

Concerning Claims generally, see American Society Int. Law, Proceedings, II, 44-67; id., IV, 16-27, 46-193; id., V, 32-43, 192-212; Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad, New York, 1915; David J. Brewer and Charles Henry Butler, in "Cyc.", XXII, 1734-1756; Hershey, Essentials, 161-169, with bibliography; William Lawrence, The Law of Claims against Governments, Washington, 1875; J. H. Ralston, International Arbitral Law and Procedure, 1910; George Winfield Scott, in Annals, Am. Acad. Pol. & Social Science (1903), p. 74.

Cf., also, D. Anzilotti, Teoria generale della responsabilità dello stato nel diritto internazionale, Florence, 1902; same, in Rev. Gén., XIII, 5-29, 285-309; Emilio Brusa, Report to the Institute of International Law, in Behalf of the Ninth Commission, on the Responsibility of States by Reason of Damages Sustained by Foreigners in cases of Riots and Civil Wars, Annuaire, XVII, 96-137; id., XVIII, 47-49; Resolution of the Institute, id., 254-256; Bibliography in Clunet, Tables Générales, I, 468–472, 885; Oppenheim, 2 ed., I, 206– 225; J. Tchernoff, Le droit de protection, exercé par un Etat à l'égard de ses nationaux, résidant à l'étranger, Paris, 1908; Gaston de Leval, De la protection diplomatique des nationaux à l'étranger, Brussels, 1907; Diplomatic Protection of Citizens Abroad, International Law Association, Proceedings, 24th Conference (1907), 196-210; Carlos Wiesse, Le droit international appliqué aux guerres civiles, Lausanne, 1898.

demand. From an international point of view a claim does not arise until the demand for redress has been presented to the State charged with having been at fault. The bare right to demand redress, however much it may justify complaint, is not the equivalent of a claim, and does not always ripen into one. The making of the demand is the significant fact. This act implies that in the judgment of the complainant State, the foreign power to which the demand is addressed has itself, through some agency of its own, violated a duty imposed by international law or by treaty, and that it offers no adequate means of obtaining redress through any domestic channel. It will be found that the adequacy of such means may depend upon the nature of the claim.

The demand for redress may be made by diplomacy; it may also be urged by force. Thus Germany, Great Britain and Italy in 1902 united in blockading certain ports of Venezuela as a means of securing redress for wrongs charged against that State.2

The redress sought may assume a variety of forms. The relinquishment of control over territory, or the payment of an indemnity, or the salute to a national flag may, for example, be demanded.

Claims may be divided into two broad classes: first, those which are based upon private complaints of individuals whose government acts as their representative in espousing their cause; secondly, those which "concern the State itself considered as a whole."3 Pecuniary claims are usually, although not necessarily, of the former class. It will be found that pecuniary claims of a national character have rarely been sought to be adjusted by arbitration.

The act of demanding reparation from a foreign State in behalf of an individual is commonly known as interposition. In so far as it does not purport to interfere with the political independ1 Little, Commissioner, in the Alexander Scott Case, United States-Venezuelan Commission Convention of Dec. 5, 1885, Moore, Arbitrations, IV, 4393-4394.

2 For. Rel. 1903, 417-439.

66

3 Lord Salisbury to Sir Julian Pauncefote, No. 65, March 5, 1896, For. Rel. 1896, 222, where Lord Salisbury also declared: 'A claim for an indemnity or for damages belongs generally to the first class; a claim to territory or sovereign rights belongs to the second." The proposed general arbitration treaty of Jan. 11, 1897, between the United States and Great Britain (which failed to receive the approval of the Senate) made provision for the adjustment of "pecuniary claims" referred to in Art. II, and "territorial claims" referred to in Art. VI. A sharp distinction was drawn in respect to the means to be employed for the solution of controversies of the latter kind. Furthermore it was also declared that when a pecuniary claim was believed by either party to involve "the decision of a disputed question of principle of grave general importance affecting the national rights of such party as distinguished from the private rights whereof it is merely the international representative", the claim should be dealt with by the procedure to be followed with respect to territorial claims. Id., 238-240.

CLAIMS - IN GENERAL

[§ 271 ence of the country whose conduct is the source of complaint, such action does not resemble intervention. The preferring of a claim by interposition may, however, lead to intervention if the demands of the aggrieved State are ignored or treated with contempt.1

The study of claims involves a fourfold inquiry concerning, first, the relation of the aggrieved individual (if the claim be a private rather than a public one) to the State called upon to espouse his cause; secondly, the relation of the actors whose conduct is the source of complaint to the State against which a demand for redress is contemplated; thirdly, the responsibility of that State for the consequences of the acts committed; and fourthly, the procedure to be followed in order to obtain redress. Thus it will be found that a State, such as the United States, may refrain from interposition because the aggrieved individual is not one of its own nationals, or because the acts giving rise to complaint have not been committed by any authority of the territorial sovereign, or because the acts, although committed by an official within the scope of his duty, have not been internationally illegal, or because notwithstanding a denial of justice by the territorial sovereign, the individual claimant has failed to exhaust the local remedies available to him. When the propriety of interposition is questioned, it becomes important to observe upon which of the foregoing reasons reliance is placed.2

b

Mode of Presentation of Private Claims

(1)

§ 271. Claims against the United States.

International claims against the United States must be presented through the diplomatic channel. The claim of an alien must be

1 Intervention, supra, § 69. See J. R. Clark, Jr., Solicitor, Dept. of State, Memorandum on Right to Protect Citizens in Foreign Countries by Landing Forces, October, 1912, p. 30.

2 "Claims presented by the Government of the United States against a foreign Government are based fundamentally, among other things, upon loss or injury (1) which was suffered by the United States or by its citizens or those entitled to its protection, and (2) for which a foreign Government, including its officials, branches, or agencies, was responsible. If either of these elements is lacking the validity of the claim is doubtful and, as a rule, the Government of the United States is not in a position to be of any assistance in obtaining reparation." Department of State, Circular respecting the application for

preferred by the regular accredited representative of his government.1

(2)

§ 272. Claims against Foreign Governments.

The presentation of claims against a foreign State in behalf of the United States or citizens thereof must be made through the Department of State.2

If the claim is founded upon the complaint of an individual, and based upon contract, a diplomatic representative of the United States is not permitted to interfere without specific instructions. Where it is founded in tort, he is required likewise to await instructions, unless the person of the claimant be assailed or there be pressing necessity for action before the Department of State can be consulted; in which event he "will communicate in full the reasons for his interference." 3

the support of claims against foreign governments, 1919, Senate Doc. No. 67, 66 Cong., 1 Sess., p. 7, and contained in revision of Jan. 30, 1920.

It should be noted that the Claims Circular of 1919 superseded Circular issued by the Department of State March 5, 1906, and was issued in revised form Jan. 30, 1920.

1 Mr. Fish, Secy. of State to Mr. Lawrence, M. C., April 22, 1874, Magoon's Reports, 338, Moore, Dig., VI, 607; Mr. Frelinghuysen, Secy. of State, to Baron de Fava, June 21, 1884, MS. Notes to Italy, VIII, 83, Moore, Dig., VI, 608.

Declared Chief Justice Waite, in United States v. Diekelman: "A citizen of one nation wronged by the conduct of another nation, must seek redress through his own government. His sovereign must assume the responsibility of presenting his claim, or it need not be considered. If this responsibility is assumed, the claim may be prosecuted as one nation proceeds against another, not by suit in the courts, as of right, but by diplomacy, or, if need be, by war. It rests with the sovereign against whom the demand is made to determine for himself what he will do in respect to it. He may pay or reject it; he may submit to arbitration, open his own courts to suit, or consent to be tried in the courts of another nation. All depends upon himself." 92 U. S. 520, 524.

According to Rev. Stat. § 1068, Act of March 3, 1911, Chap. 231 (Judicial Code, § 155), 36 Stat. 1139, U. S. Comp. Stat. 1918, § 1146: "Aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject matter and character, might take jurisdiction."

2 Mr. Marcy, Secy. of State, to Mr. Crain, Feb. 24, 1854, 42 MS. Dom. Let. 244, Moore, Dig., VI, 609.

3 Instructions to Diplomatic Officers (1897), § 174, p. 68, Moore, Dig., VI, 609; see, also, Mr. Olney, Secy. of State, to Mr. Smythe, Minister to Haiti, No. 136, March 20, 1896, MS. Inst. Haiti, III, 479, Moore, Dig., VI, 609; also other documents cited in Moore, Dig., VI, 609–610; Mr. Bayard, Secy. of State, to Mr. Denby, Feb. 5, 1886, MS. Inst. China, IV, 118, Moore, Dig., VI, 614, where it was declared that the Department of State requires as a condition precedent to the presentation of a claim to a foreign government" simply a prima facie case such as would authorize a chancellor to issue ex parte pro