But it may be urged that the admission of such a rule or principle might, in some cases, give to foreigners a protection superior to that enjoyed by its own citizens. This may be true in countries where life and property is insecure from mob violence, but civilized states are supposed to grant at least a fair or average amount of such protection in ordinary times, and it is no adequate reply to a charge of denial of justice to, or an undue discrimination against, foreigners to say that nationals frequently suffer similar injustice. It would of course be different in the case of an ordinary miscarriage of justice, where the spirit as well as the forms of the law had been complied with, or in the case of one accidentally killed or injured in the course of a riot or insurrection.27

In view of the recent protest by Japan against the segregation of Japanese school children in California and the surprising ignorance of the principles governing the rights and privileges of foreigners displayed in some quarters, it seems necessary to point out that a state is under no international obligation to extend to foreigners the enjoyment of civil and private rights or to place them upon an equal footing with its own nationals in these respects. Whatever rights or privileges of this kind foreigners may enjoy, whether of an educational, economic or religious nature, are based on convention or the principle of reciprocity, or are granted as a matter of pure grace and favor.28 All that an alien, who is permitted to set foot or reside on foreign territory (and this permission is purely optional) can demand as a matter of strict right in international law is protection of life and property together with access to the local courts for that purpose.

The same principles may, in general, be said to apply to cases of injuries or losses sustained by foreigners during civil war and insurrection, except that the law of necessity or the physical inability to furnish adequate protection generally absolves governments from responsibility in such cases. The general rule is that

a sovereign is not ordinarily responsible to alien residents for injuries they receive on his territory from belligerent action, or from insurgents whom he could not control.

26 On what constitutes a denial of justice, see especially, Moore vi, §986; Wharton, ii, §230; and Anzilotti, op. cit., pp. 21-23.

27

See, e.g., the case of Bain in Moore, op. cit., §1027.

28 See especially on this head, the recent article by Anzilotti in the R. D. I. P., rited above, pp. 18-20.

They are

not entitled to greater privileges or immunities than the other inhabitants of the insurrectionary district. *** By voluntarily remaining in a country in a state of civil war they must be held to have been willing to accept the risks as well as the advantages of that domicile."o

31

32

These principles have been repeatedly enunciated by our leading statesmen,30o as well as by those of Europe, and they have the almost unanimous sanction of leading authorities on international law.32 They have invariably been applied by European states in their relations with each other, although frequently violated in their dealings with weaker states, more particularly in the cases of China, Turkey and the republics of Latin America.

There are, however, several exceptions which must be made to these general principles. Indemnity would seem to be due to foreigners by way of exception in the following cases: 1. Where the act complained of is directed against foreigners as such, or as subject to the jurisdiction of some particular state. 2. Where the injury results from an act contrary to the laws or treaties of the country in which the act was committed, and for which no redress can otherwise be obtained. 3. When there has been a serious violation of international law, more particularly of the rules of civilized warfare. 4. In cases of evident denial of a palpable violation of justice, or undue discrimination against foreigners on the part of the authorities.

33

"Wharton's Digest, iii, §223. Secretary Seward to Count Wydenbruck in 1865. See Moore's Digest, vi, pp. 885-886. cf. Wharton, pp. 577–578.

30 For numerous opinions of American statesmen, see Moore's Digest, vi, §§10321049. cf. Wharton, iii, §§223–226.

See especially the notes of Prince Schwartzenburg (Austrian) and Count Nesselrode (Russian) in reply to certain claims of the British government which were based upon injuries to British subjects during the revolutions in Tuscany and Naples in 1848. Cited by Pradier-Fodéré, i, §205, pp. 343–345 and Moore, op. cit., pp. 886–887. 32 See, e. g., Calvo, iii, §§1280 ff; Pradier-Fodéré, Traité, i, §§202 ff., 402 ff., iii, §§1363 ff.; Fiore, Droit Int. Pub. (Antoine's trans.), i, §675; Wharton, iii, §223; Hall, Treatise (3d ed.), §65, pp. 218-219; Bluntschli, §380 bis; Funck-Brentano et Sorel, Précis, ch. 12, pp. 227-229; Taylor, §216; Oppenheim, i, p. 213; Bonfils (Fauchille), §§326 ff.; Liszt, $24, pp. 189-190; Pillet, Les Lois de la Guerre, p. 29; Weisse, Le Droit International appliqué aux Guerres Civiles, §14; Bar in R. D. I. for 1899, xxix, pp. 464–482. See Brusa in Annuaire for 1898, t. xvii, pp. 96–138 for arguments in favor of responsibility.

33 See especially the rules adopted by the Institute of International Law in 1900. Annuaire, xviii, pp. 254-256. cf. Moore's Digest, op. cit., Pradier-Fodéré, iii, §1366, p. 237; Bar and Brusa, cited above.

In respect to the third class of claims, viz: those based upon contract, including for the most part those of bondholders and investors whose investments have been guaranteed by the defaulting government, the few authorities who discuss this question appear to be divided in their opinions, with a majority opposed to forcible collection. The right of a state to use coercive measures in the collection of debts of this nature is asserted, e. g., by Hall, Phillimore, and Rivier; but it is denied by Calvo, Pradier-Fodéré, Rolin-Jaequemyns, F. de Martens, Despagnet, Kebedgy, and Nys."

It is argued, on the one hand, that the public faith, the so-called "honor of the prince," is particularly engaged in the case of contracts of this nature, inasmuch as a government cannot be sued without its own consent; that creditors may have no other means of redress than that of appealing to the government of the state to which they owe allegiance; that stock in the public debt held even by an enemy is exempt from seizure and its interest payable even in time of war; and that states, being in legal theory free and independent and having no common superior to control or check them in any way, each state has therefore the legal right of deciding for itself when its rights have been invaded and of determining the conditions under which it may use force for any purpose whatsoever.35

On the other hand, it is urged that hazardous loans and investments should be discouraged as much as possible; that those making them

34 Hall, $86, pp. 277–279; Phillimore, ii, pt. v, ch. 3, pp. 26–30; Rivier, i, liv, iv, ch. 2, $20, pp. 272–273; Calvo, i, §205, p. 350; Pradier-Fodéré, i, §405, pp. 620-623; Rolin-Jaequemyns in R. D. I., t. i (1869), pp. 145 ff.; F. de Martens in R. D. I., t. xix, p. 386 and in a recent pamphlet, entitled Par la Justice vers la Paix; Despagnet, Cours, $258; Kebedgy in R. D. I. P., t. i, p. 261, and Nys, ii, p. 225.

On April 17, 1903, the publicist Calvo, then representing the Argentine Republic at Paris, addressed a circular letter to a number of leading authorities on international law, asking for their views on the question raised by the Drago note. Of the ten opinions published in the Revue de Droit International (see R. D. I. for 1903, pp. 597623), six (those of Passy, Moynier, Campos, Férand-Giraud, Weiss and Olivecrona) were in substantial agreement with the principals of the Drago note. Four (those of Westlake, Holland, Charmes and Fiore) were more reserved. While apparently not in absolute disagreement with the principles of the Drago note, they held either that it needed qualification or that the question was undecided. For a brief analysis of these opinions, see Percy Bardwell in the Green Bag for July, 1906, pp. 378-379.

35 Such is, e. g., the argument of G. W. Scott in the North American Review for October 5, 1906, pp. 603–604.

do so, as a rule, with a full knowledge of the risks incurred and in the hope of exceptionally large returns; that the natural penalty of a failure on the part of a state to fulfill its obligations is a loss of credit; that foreigners cannot expect to be preferred to native creditors; that coercive measures for the collection of bad debts are never employed except against weaker states and are likely to be used as a pretext for aggression or conquest; and that

it is an inherent qualification of all sovereignty that no proceedings for the execution of a judgment may be instituted or carried out against it." The views of British and American statesmen are not in complete harmony on this important subject, although the general policy of Great Britain and the United States has been substantially the same.37 The English view, as stated by Lord Palmerston, in 1848, in a circular addressed to representatives of Great Britain in foreign countries, insists that the question as to whether such claims are to be made a subject of diplomatic negotiation is

for the British government entirely a question of discretion, and by no means a question of international right.

With a view, however, of discouraging the investment of British capital in hazardous loans to foreign governments and of encouraging investment in profitable undertakings at home,

the British government has hitherto thought it the best policy to abstain from taking up as international questions the complaints made by British subjects against foreign governments which have failed to make good their engagements in regard to such pecuniary transactions. But he intimates that such loss might become so great as to make a change of policy on the part of the British government advisable. These views of Lord Palmerston were reaffirmed by Lord Salisbury in January, 1882, and by Premier Balfour in December, 1902.38

30 Señor Drago in note, cited above.

37 Except for the British intervention in Mexico, Egypt and Venezuela. But in all these cases those representing the government of Great Britain denied that they intervened primarily for the sake of the bondholders.

38 For the text of this circular, see Hall, note on pp. 278–279 (3d ed.), and Phillimore ii, t. v, ch. 3, pp. 27-28. In 1861, Lord John Russell, in a communication to Sir C. I. Wyke, stated that "it has not been the custom of Her Majesty's government, although they have always held themselves free to do so, to interfere authoritatively on behalf of those who have chosen to lend their money to foreign governments."

The policy of the United States39 in dealing with claims based on contracts was thus stated by Secretary Fish in 1871:

Our long-settled policy and practice has been to decline the formal intervention of the government except in cases of wrong and in jury to person and property such as the common law denominates torts and regards as inflicted by force, and not the result of voluntary engagements or contracts.

In cases founded upon contract, the practice of this government is to confine itself to allowing its minister to exert his friendly good offices in commending the claim to the equitable consideration of the debtor without committing his own government to any ulterior proceedings."

In 1881, Secretary Blaine laid it down as "a rule of universal acceptance and practice" that a person

voluntarily entering into a contract with the government of a foreign country or with the subjects or citizens of such foreign powers, for any grievance he may have or losses he may suffer resulting from such contract, is remitted to the laws of the country with whose government or citizens the contract is entered into for redress."

The representatives of the United States at the third Pan-American conference, which met at Rio de Janeiro during the months of July and August, 1906, were given the following instructions:

It has long been the established policy of the United States not to use its armed forces for the collection of ordinary contract debts due to its citizens by other governments. We have not considered the use of force for such a purpose consistent with that respect for the independent sovereignty of other members of the family of nations, which is the most important principle of international law and chief protection of weak nations against the oppression of the strong. It seems to us that the practice is injurious in its general effect upon the relations of nations and upon the welfare of weak and disordered states, whose development ought not be encouraged in the interests of civilization; that it offers frequent temptation to bullying and oppression and to unnecessary and unjustifiable warfare. We regret that other powers, whose opinions and

"For the opinions of American statesmen on this head, see Moore's and Wharton's Digest, §§916, 918, 995-998; and §§231-232, respectively.

40 Moore's Digest, vi, §995, p. 710. cf. Wharton, ii, §231, p. 656.

41 Wharton's Digest, ii, pp. 658-659. But exceptions have been made in cases where diplomacy furnished the only means of redress, as in case of non-performance of a government contract, or arbitrary confiscation of vested rights, or of annulment of charters or concessions. For examples, see Moore's Digest, vi, §§918, 996 and 997 and Wharton, ii, §232. "International commissions have frequently allowed claims based on the infraction of rights derived from contracts where the denial of justice was properly established," Moore, p. 718.