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The Early Beginnings

Vattel was the first of the authorities on international law to give attention to the subject of protection of aliens, their property interests and diplomatic protection. His thinking and statements gave rise more or less to the institution, because he was the first to provide a doctrinal basis for it. When he wrote his work entitled The Law of Nations, or the Principles of Natural Law, about a century and a quarter after Grotius's principal work appeared, international life had expanded considerably. Colonization of other parts of the world outside Europe had been successful and foreign trade had become an important element in the economic systems of a number of States. However, in spite of the frequency of travel and trading relations the impact of industrialization had not yet been felt.

Vattel without hesitation propounded the thesis that an injury to an individual is an injury to his State. He wrote:

Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen. The sovereign of the injured citizen must avenge the deed and, if possible, force the aggressor to give full satisfaction or punish him, since otherwise the citizen will not obtain the chief end of civil society, which is protection. ⁸

This thesis became the substantial basis for the practice of diplomatic protection of citizens abroad. When taken by itself, its terms seem sufficiently broad to cover all types of injuries to foreigners now customarily included under this heading. Vattel was writing for a homogeneous international society of European Christian States possessing a common civilization and a common moral code. (p. 11) He, therefore, probably did not find it necessary to establish the fact that certain kinds of treatment of foreigners should be regarded as wrongful or injurious. He could probably assume with success that there would be fairly general agreement throughout the community on this matter. His concern was, thus, essentially to establish the kind of wrongs that fell within the province of the law of nations. ⁹

Vattel did refer to the relations existing between foreigners and the State of their sojourn and the extent of the responsibility of the latter towards the former, but his concern there was ‘not so much to show what humanity and justice call for in our treatment of foreigners’, but ‘to lay down the rules of the Law of Nations on this subject, rules whose object is to secure the rights of both parties and to prevent the peace of Nations from being disturbed by the disputes of individuals’. ¹⁰ He begins with the proposition, on the other hand, that, because the lord of the territory may forbid entrance into it whenever he thinks proper, he may undoubtedly fix the conditions on which admittance will be allowed, and that, if he grants foreigners access to his dominions, it is presumed that he does so only on the implied condition that they will be subject to the local laws. In that context he referred to disputes between foreigners, or between a foreigner and a citizen, stating that they should be settled by the local courts. ¹¹ There was no reference to disputes between the foreigner and the sovereign as such. But Vattel's approach to the problem did provide a useful basis for those who sought then and later to uphold and extend the practice of diplomatic protection, even though he was dealing specifically and only with denials of justice by the local courts. He said:

Sovereignty following upon ownership gives a Nation jurisdiction over the territory which belongs to it. It is the part of the Nation, or of its sovereign, to enforce justice throughout the territory subject to it, to take cognizance of crimes committed therein, and of the differences arising between the citizens.

Other Nations must respect this right; and as the administration of justice necessarily requires that every sentence, pronounced in due form and by the court of last resort, be regarded as just and executed as such, when once a case in which foreigners are involved has been decided in due form, the sovereign of the litigants may not review the decision. To undertake to inquire in to the justice of a definitive sentence is an attack upon the jurisdiction of the court which passed it. Hence a sovereign should not interfere in the suits of his subjects in foreign countries nor grant them his protection, except in cases where justice has been denied or the decision is clearly and palpably unjust, or the proper procedure has not been observed, or finally, in cases where his subjects, or foreigners in general, have been discriminated against…. The principle may be accepted without any reference to the merits of the particular case which turned on the facts involved. ¹²

Ironically and by the same token, Vattel's views were later used by opponents of a wide concept of injury to an alien to support a narrow view of denial of justice by a State as the only substantive basis for the exercise of diplomatic protection.

(p. 12) Vattel gave expression to the concept of exclusive territorial jurisdiction, yet he also implied that a sovereign had responsibilities towards foreigners whom he allowed to come to his territory. Thus, Vattel stated that a sovereign, in allowing foreigners the right of entry, ‘agrees to protect them as his own subjects and to see that they enjoy, as far as depends on him, perfect security’. ¹³ Vattel did not, however, go into details with regard to this responsibility. Clearly, the responsibilities were substantive for the treatment of foreigners.

In regard to the property interests of foreigners, which again relate to the substantive law and the breach of which would generate a reason for diplomatic protection, Vattel repeated the proposition that an injury to a citizen is an injury to his State. He asserted that the property of an individual does not cease to belong to him because he happens to be in a foreign country and that it still forms part of the aggregate wealth of his nation. ¹⁴

While the above statements of Vattel are frequently cited as authority for the entrenchment of the institution of diplomatic protection, as has been said,

in making them, he was thinking of a different set of problems from those which we face at the present time. He wrote of a world in which foreign property interests offered but few problems in national or international affairs. He viewed the state primarily in terms of personal sovereignty rather than of territorial jurisdiction. His personification of the state as an organic unity made up of the sovereign and his subjects (from which he derived his thesis that an injury to a citizen is an injury to the state) undoubtedly served a useful purpose in the juristic evolution of the modern state, but it is not easy to apply to the modern world of extensive international trade and intercourse, and easy and frequent changes of allegiance. ¹⁵

Whether Vattel's views on the treatment of aliens arose from State practice he had observed or whether they were theories based on factual premises he had observed is not clear. There is no recorded evidence to support the former possibility. Moreover, he did not specifically address the aspects of remedial action resulting from the maltreatment of foreigners which constitute the modern institution of diplomatic protection.

At the close of the eighteenth century, however, there occurred an event which gave considerable impetus to the development of diplomatic protection as remedial action and as a branch of international law. That was the inclusion in the Jay Treaty of 1794, between the USA and Great Britain, of provisions for the establishment of arbitration commissions to settle, among other things, the claims of British subjects for confiscated debts and the reciprocal claims growing out of the alleged illegal seizure of US vessels by British cruisers, and the capture of British vessels by French ships armed in the ports of the USA. ¹⁶ This action (p. 13) not only inaugurated the modern era of international arbitration but introduced a means of settling disputes which came to be resorted to with increasing frequency in the diplomatic protection by States of citizens abroad. It is to be noted that the earliest arbitral decisions involving the exercise of diplomatic protection were intended to settle disputes between the USA and Great Britain, and did not involve the Latin-American States which gained independence in the nineteenth century. Their involvement at the butt-end of diplomatic protection did take place subsequently and was significant both in terms of numerical quantity and importance of disputes. What is more, these first attempts at diplomatic protection resorted to the Claims Commission which gave the alien standing before international tribunals.