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The Nineteenth and Early Twentieth Centuries

It was in the early nineteenth century that the development of a body of law governing the treatment of aliens really began and with it the use of the remedial institution of diplomatic protection. The primary incentive for this was the growth of a variety of means of communication and the introduction of mechanical technology and industrialization which resulted in individuals traveling to all parts of the world in search of raw materials and thereafter to sell manufactured products. There appeared large numbers of foreigners and extensive foreign property interests within the territorial jurisdiction of all States. This gave rise to numerous conflicts of interest, controversies, and disputes over the exercise of jurisdiction in relation to such foreigners.

The opening up of the western hemisphere to international trade was of special importance. There was a large new area both rich in raw materials and other resources needed for the economic life of Europe and opening up vast markets for European goods. The populations of the new States in North and South America which had acquired independence recently were, in general, made up of ruling classes of white émigrés of European extraction and large indigenous groups of Native Americans, where such survived. The forms of government adopted in these States were based on European models, and on the political theory of individualism and representative government. In many ways these forms of government were found to be ill-adapted to the needs of the new States. As a result, in large areas of the western hemisphere political disorder and revolutions were prevalent for a considerable length of time.

The recognized international society of States of the eighteenth century had been wholly European in character. The legal relations which that society had built up were produced by the European culture of the time. In the course of the (p. 14) nineteenth century the society of States expanded beyond the European continent westward. At the same time the European model which had governed the relations between the members of this society continued to prevail. The concept of justice found in the accepted legal norms for European States spilled over into the wider sphere of the international society of the nineteenth century. In the economic sphere, particularly, this concept derived its content from the capitalistic individualism prevalent in Europe at that time. The notions of individual liberty, the sacredness of private property even as against the actions of governments, and the sanctity of contracts had a special place in this sphere. Of course, colonies in Asia and Africa were not included as international persons in the society of States.

The new States in the western hemisphere generally incorporated these concepts in their legal systems (which they had borrowed largely from European sources). Where that was not the case, as in the Far East and in certain States of the Near East, inter-State relations were conducted on the special basis of extraterritoriality. As for conditions of order and stability which were required to make the European system work satisfactorily, these had not yet been established in many States of the new society of States. Thus, there were continual clashes of interest and frequent accusations of unjust treatment of foreigners.

With time and with the building up of a body of precedents, it became customary to frame demands as claims of legal right, flowing from breach of international law, and the practice was encouraged by the inclusion in treaties of provisions requiring the protection of the lives and property of the nationals of each contracting party in the territory of the other. By the middle of the nineteenth century, governments had begun consistently to treat questions of protection of nationals abroad as legal questions which justified interposition by appeal to principles of international law, from whatever source they may be derived. The settlement of disputes of this nature was gradually becoming subject to legal methods and the institution of diplomatic protection for all practical purposes took root. However, there developed a disagreement between the larger and smaller powers as to the justifiable scope of diplomatic protection. The occasions for the exercise of diplomatic protection arose far more often in the newer and more unsettled countries of Latin America than in the old established countries of Europe or elsewhere. It has been observed that:

The continued state of political disorder in many South American countries gave rise to a steady stream of complaints of injuries to foreigners, and to occasional resort to armed intervention to enforce demands for redress. The repeated failure of local governmental institutions to function in the expected manner led to a general loss of confidence in those institutions among foreigners, and to an increasing readiness to resort to diplomatic protection. In any event, the demands and claims filed by other countries against the Latin-American states far exceeded the claims which these countries had against other countries.

The impression soon spread in Latin America that diplomatic protection was a practice which strong countries only resorted to against weaker countries, and never against each (p. 15) other. This seems to infer an inferior position for the states against which demands were regularly made. Furthermore, the nineteenth century was an era of expansionism among the great powers, and there was a constant fear among the smaller powers that complaints regarding the lack of protection of foreign interests would be used as excuses for terrestrial conquest. These things led to the growth of a school of thought in Latin America which was vigorously opposed to the extension of the practice of diplomatic protection and which sought to confine it to the narrowest possible limits. ¹⁷

Calvo, an Argentinean scholar, in 1868 expressed strong opposition to ‘intervention’ on behalf of citizens or of their property interests abroad. From the independence and equality of States he concluded that aliens were entitled to the same kind of treatment as natives and no better, and that, as long as the local institutions of justice were open to them on the same basis as to natives, there could be no basis for an international complaint. He stated that the decisions of the local courts with regard to aliens were final, and could not be called into question by the aliens' own States. He sought to demonstrate that such were the principles observed by European States in their relations with each other, but not in their relations with Latin American States. This view, supported throughout Latin America, became known as the Calvo Doctrine. To a great extent Latin American States subsequently on the general subject of diplomatic protection tended to adopt, whether successfully or unsuccessfully, the Calvo Doctrine in their foreign policy.

Throughout the late nineteenth and early twentieth centuries diplomatic protection had an important place in the relations between States, and especially between the larger powers on the one hand and the smaller and newer States on the other. Claims for pecuniary compensation for injuries to foreigners began constantly accumulating against certain Latin American States. Such claims appear to have been used often to bring pressure to bear on indebted States for the attainment of other ends. They also provided the immediate justification for armed intervention in several instances; for example, the French interventions in Mexico in 1838 and 1861, the intervention of Germany, Great Britain, and Italy in Venezuela in 1902–03, and American interventions in Santo Domingo in 1904 and in Haiti in 1915.

While the Latin American States reacted adversely to the practice of diplomatic protection short of the use of force relatively more than other States, it is very possible that, had the practice of diplomatic protection not developed as an international legal institution, some Latin American States would have had to pay much higher penalties than they did for the injuries and losses sustained by aliens in their territories. The institution did not operate always in the manner in which Latin American writers approved, but, on the other hand, it served to delay or eliminate resort to forceful action by stronger States when their nationals were alleged to have been mistreated in the territories of weaker States. The legal institution of diplomatic protection which could in the last resort lead to a peaceful (p. 16) settlement of disputes by arbitration, if not by negotiation, unquestionably served as a substitute for territorial conquest, while bringing the Latin American States within the pale of international trade and intercourse. While the results obtained were not what these countries might have desired, the probable alternatives would have been far less desirable.

The recourse to international arbitration, even though under pressure, for the settlement of claims for compensation for injuries to aliens, which began with the Jay Treaty in 1794, became increasingly frequent in the nineteenth and early twentieth century. Arbitration produced a large body of judicial precedents which eventually found their way into the legal treatises, though most of the litigation involved Latin American States. Some examples of widespread arbitration of outstanding claims may be given: those of the USA and Mexico under the conventions of 1839, 1848, 1868 and 1923; the Venezuelan arbitrations of 1903, in which the claims of ten countries against Venezuela were settled by arbitration; the arbitrations of the United States with Great Britain under the conventions of 1853, 1871 and 1908, with Spain in 1871, with France in 1880, with Colombia in 1864 and 1874, with Chile in 1892, with Costa Rica in 1860, with Ecuador in 1862, with Peru in 1863 and 1868, and with Venezuela in 1888. These arbitrations were generally conducted as judicial proceedings, the members of the tribunals acting as judges and supporting their decisions by reference to rules and principles of international law. The process of arbitration which gave rise to judicial settlement became a recognized feature of diplomatic protection well into the twentieth century and beyond where negotiations, of course, failed.

The writings of legal scholars based on arbitrations and on other judicial decisions also aided greatly in the development of jurisprudence on diplomatic protection. By the close of the nineteenth century scholars were beginning to interest themselves in the theory and practice relating to the international responsibility of States for injuries to aliens within their borders and diplomatic protection of aliens as such. ¹⁸