alien obligee or by his State, justiciable solely before an international court.1 Under such circumstances interposition does not lack justification, because the alien obligee, or his State in his behalf, has the right to demand an adjudication of the controversy before a competent tribunal, and hence the right also to challenge the propriety of any act whereby the obligor attempts to place itself beyond the reach of any court.2 This must be true irrespective of the contention that the commission of the act of sovereignty is not in bad faith. However influential may be the honesty of the obligor with respect to the policy of the State of the obligee, it has no bearing upon the existence or scope of the right of interposition possessed by the latter.3

The treatment accorded the obligee by the obligor may amount to a denial of justice. It is doubtless of such a kind when, by any process, the debtor State injures or destroys or appropriates property sought to be mortgaged as security for the payment of the debt. Such impairment of the value of the right acquired

by the exercise of sovereign power removes from the State of the obligee the right to take steps that it might reasonably take if the obligor had not seen fit to make use of its sovereign power. It ought to be clear that the rights of the obligee and of his State depend upon the consequences of the conduct of the obligor, rather than upon the method which it employs to rid itself of the burdens of its undertaking, and that the very exercise of sovereign power, by reason of the consequences which it entails, necessarily produces an international issue, the solution of which the State of the obligee is entitled to demand.

1 The following were bond claims against Venezuela which were submitted to mixed commissions under conventions of 1902 and 1903: Compagnie Générale des Eaux de Caracas (where jurisdiction accepted), Belgian-Venezuelan Commission, 1903, Ralston's Report, 271; Ballistini Case (where claim disallowed for want of proof of ownership of bonds), French-Venezuelan Commission, 1902, id., 503; Jarvis Case (where claim disallowed, because the bonds were issued in compensation of services in support of an unsuccessful revolution against the constituted government with which the United States was at peace), American-Venezuelan Commission, 1903, id., 145. In a note attached to the Ballistini Case, id., 505, the compiler says: "In the Italian Commission [Boccardo Case, not reported] judgment was given on internal bonds on authority of Aspinwall Case, Moore, p. 3610." Concerning the foregoing cases, see G. W. Scott, in Am. J., II, 83-84.

2 In this connection see address of Mr. Ruy Barbosa, a Delegate of Brazil, before the First Sub-Commission of the First Commission at the Second Hague Peace Conference, July 23, 1907, La Deuxième Conférence Internationale de la Paix, II, 276-285. An abstract is contained in J. B. Scott, Hague Peace Conferences, I, 411-412.

Mr. Sherman, Secy. of State, to Mr. Powell, Minister to Haiti, No. 43, Oct. 26, 1897, MS. Inst. Haiti, III, 582, Moore, Dig., VI, 729.

3 As the defaulting State is generally ready to aver that, for reasons beyond its control, it has become insolvent, or at least unable to pay its indebtedness, any yielding to the plea that even the policy of the State of the obligee should depend upon the good faith of the obligor, offers opportunity and temptation to the dishonest debtor to escape the reasonable burden of its contract through false representations, the true nature of which it may become impossible to establish.

PUBLIC DEBTS COLLECTED BY FORCE [$ 309

by the obligee in the thing hypothecated for his benefit is essentially wrongful and may be justly regarded as internationally illegal. Where the security for payment is the mere agreement or pledge of the obligor that revenues to be thereafter derived from certain specified sources shall be employed for that purpose, it may be doubted whether the diversion of those revenues in violation of the agreement should be regarded as other than a further contractual delinquency, as such conduct would not affect any vested right of the obligee in any asset sought to be placed beyond the control of the obligor for the benefit of the former. The breach of the agreement would not differ essentially from any other, and hence could not itself with reason be regarded as a denial of justice. If, however, the diversion of revenues were effected by an act of sovereignty serving also as a repudiation of the contract, grounds of interposition would be as apparent as in any other situation where the obligor by similar conduct produced an issue solely justiciable before an international court.

(6)

The Collection of Public Debts by Force

§ 309. The Hague Convention of 1907 Respecting the Limitation of the Employment of Force.

The propriety of the use of force for the purpose of collecting contractual claims has of late years been widely discussed.

In December, 1902, Great Britain, Germany and Italy resorted to force against Venezuela by blockading certain ports of that country in order to secure recognition and the means of payment. of pending claims, contractual as well as tortious.3 By protocols signed in May, 1903, there was submitted to the Hague Tribunal the issue whether the blockading Powers were entitled to preferential treatment in the payment of their claims against Venezuela, over the so-called non-blockading claimant Powers, among which was the United States. The Tribunal decided the issue

Marquis of Salisbury, British Foreign Secretary, to Señor Pividal, Peruvian Minister, Nov. 26, 1879, Parl. Pap. Peru, No. 1 (1882), 16-17, Moore, Dig., VI, 724; Opinion of Cushing, Atty.-Gen., 6 Ops. Attys.-Gen., 130.

2 Memorandum of American Peace Commission, Paris, Nov. 21, 1898, respecting the Cuban Debt, S. Doc. 62, 55 Cong., 3 Sess., II, 198-201, Moore, Dig., I, 381, 384.

3 Concerning the claims of Germany, see Promemoria of the Imperial German Embassy, Dec. 11, 1901, For. Rel. 1901, 192, Moore, Dig., VI, 586; also For. Rel. 1903, 429-431, Moore, Dig., VI, 589. Relative to the blockade, see id., 424, 457-458, 801.

in favor of the blockading Powers. On December 29, 1902, shortly after the employment of force, Dr. Drago, Minister of Foreign Affairs of the Argentine Republic, in a note to Mr. Mérou, the Argentine Minister at Washington, for transmission to the Department of State, declared that

the principle which she [the Argentine Republic] would like to see recognized is: that the public debt can not occasion armed intervention nor even the actual occupation of the territory of American nations by a European power.2

Later, as has been observed, Dr. Drago sought to point out a distinction between the public loans of a State and other forms of its contractual obligations, for the purpose of securing approval of the idea that force should never be employed in behalf of foreign obligees against an obligor State."

At the Second Hague Peace Conference, in 1907, General Horace Porter, a delegate of the United States, offered a proposition which became known as the Porter plan and which was, after amendment, accepted by the Conference and embodied in the Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, in the following form:

1 For the text of the Award, see For. Rel. 1904, 506; J. B. Scott, Hague Court Reports, 56. See, also, Final Report of W. L. Penfield, Agent of the United States, For. Rel. 1904, 509.

2 For. Rel. 1903, 1-5. See, also, Memorandum by way of response accompanying a note from Mr. Hay, Secy. of State, to Mr. Mérou, the Argentine Minister at Washington, Feb. 17, 1903, id., 5.

Concerning the Drago Doctrine, see Luis M. Drago, "State Loans in Their Relation to International Policy", Am. J., I, 692; Amos S. Hershey, "The Calvo and Drago Doctrines", id., I, 26; G. W. Scott, "International Law and the Drago Doctrine", North Am. Rev., CLXXXVIII, 602 (1906); "The Hague Convention Restricting the Use of Force to Recover on Contract Claims", Am. J., II, 78; Edwin M. Borchard, Diplomatic Protection, § 119; H. A. Moulin, La Doctrine de Drago, Paris (1908); S. Pérez Triana, La Doctrina Drago, Colección de Documentos, London, 1908; Alfredo N. Vivot, La Doctrina Drago, Buenos Aires, 1911; Bibliography in Oppenheim, 2 ed., I, 192; J. B. Scott, Hague Peace Conferences, I, 386, 392-400; A. Pearce Higgins, The Hague Peace Conferences (1909), 184-188, and bibliography.

"It may be noted that Drago protests only against the use of armed force on the collection of public debts and not directly against diplomatic interposition. Most of the writers who have discussed the question have failed to note this distinction, possibly because a denial of forcible measures deprives interposition of its most effective sanction." Edwin M. Borchard, Diplomatic Protection, p. 309.

3 Luis M. Drago, "State Loans in Their Relation to International Policy", Am. J., I, 692; also address of Dr. Drago before the First Sub-Commission of the First Commission of the Second Hague_Peace Conference, July 18, 1907, Deuxième Conférence Internationale de la Paix, Actes et Documents, II, 246-251, an abstract of which is contained in J. B. Scott, Hague Peace Conferences, I, 405-411.

THE HAGUE CONVENTION OF 1907

[§ 309

The Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals.

This undertaking is, however, not applicable when the debtor State refuses or neglects to reply to an offer of arbitration, or after accepting the offer, prevents any "Compromis" from being agreed on, or, after the arbitration, fails to submit to the award.1

While this language restricts the use of armed force to the occasions specified, it is significant as a declaration that the employment of such means of obtaining justice may not be improper when the obligor State refuses to arbitrate, or prevents recourse to arbitration, or fails to submit to an award. The provision, on the other hand, that an offer of arbitration must precede such action on the part of the obligee State is token of the general recognition of the principle that an international judicial remedy which is always available should be exhausted before an appeal to armed force becomes justifiable. The convention simply takes into account the remediless condition of the obligee, and by faciliating if not pressing arbitration, attempts to substitute amicable adjustment by judicial means for non-amicable adjustment based upon the use of force. Moreover, "A debtor State is protected by the law until it puts itself outside the law - that is, outside of the three reasonable reservations." 2

Thus it would appear that in the event of a controversy, a debtor State would, under the convention, have the right to demand that the State of the obligee enter into a reasonable agreement to arbitrate, before the latter could justly resort to force, and having so agreed, to follow the procedure (as Art. II provides) expressed

3

1 Malloy's Treaties. II, 2254, J. B. Scott, Hague Peace Conferences, II, 357. See, also, address of General Porter, before the First Sub-Commission of the First Commission of the Second Hague Peace Conference, July 16, 1907, Deuxième Conférence Internationale de la Paix, Actes et Documents, II, 229. For the text of the Porter plan as first presented, id., II, 916, J. B. Scott, Hague Peace Conferences, II, 400. See, also, Instructions to the American Delegates to the Second Hague Conference of 1907, May 31, 1907, For. Rel. 1907, II. 1128, 1133.

2 G. W. Scott, "The Hague Convention Restricting the Use of Force to Recover on Contract Claims", Am. J., II, 78, 80.

Resolution by the Senate declaring "that the United States approves this Convention with the understanding that recourse to the permanent court for the settlement of the differences referred to in said Convention can be had only by agreement thereto through general or special treaties of Arbitration heretofore or hereafter concluded between the parties in dispute." Malloy's Treaties, II, 2259.

in Part IV, Chapter III of the Hague Convention of 1907, for the Pacific Settlement of International Disputes, especially in the matter of arranging the compromis.1

In making provision for the treatment of "contractual debts" it is believed that the convention gave expression to an agreement applicable to all forms of indebtedness of a State to an alien, embracing without distinction public loans evidenced by bonds; and that there was contemplated the adjustment of any issue arising from non-payment, whether or not resulting from a repudiation of its contract by an obligor State through the exercise of sovereign power.2

4

EXTRADITION

a

§ 310. Preliminary.

Extradition was defined by Chief Justice Fuller in the case of Terlinden v. Ames to be:

The surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and punish him demands the surrender.3

1 See, especially, Art. LIII of this convention, Malloy's Treaties, II, 2238. Also J. B. Scott, Hague Peace Conferences, I, 418-420.

2 G. W. Scott, "The Hague Convention Restricting the Use of Force to Recover on Contract Claims", Am. J., II, 78, 90–94; J. B. Scott, The Hague Peace Conferences, I, 416-418; A. Pearce Higgins, The Hague Conferences, 194-196; Edwin M. Borchard, International Contractual Claims and Their Settlement, Baltimore, 1913, 52-53. See, also, Deuxième Conférence Internationale de la Paix, Actes et Documents, I, 553-561, especially the views expressed by General Porter, 558.

3 184 U. S. 270, 289; also, Moore, Extradition, I, § 1, citing Billot, Traité de l'Extradition, 1.

See, generally, John Bassett Moore, Third Assistant Secretary of State, Report on Extradition, with returns of all cases from August 9, 1842, to January 1, 1890, Washington, 1890; same author, Extradition and Interstate Rendition, 2 vols., Boston, 1891; Moore, Dig., IV, 239–424; same author, The Difficulties of Extradition (reprinted from publications of Academy of Political Science, I, No. 4), New York, 1911; Samuel Thayer Spear, Law of Extradition, International and Interstate, 2 ed., Albany, 1884; John G. Hawley, Law and Practice of International Extradition, Chicago, 1893; Extradition of Fugitives from the United States in Foreign Jurisdiction (Extract from book of instructions to court officials), issued by the Attorney-General, June 1, 1916.

See, also, Biron and Chalmers, Law and Practice of Extradition, London, 1903; A. Billot, Traité de l'Extradition, Paris, 1874; Ludovic Beauchet, Traité de l'Extradition, Paris, 1899; Paul Bernard, Traité Théorique et Pratique de l'Extradition, 2 vols., Paris, 1890; Sir Edward Clarke, Law of Extradition,