¹ Correspondence printed in American Journal of International Law, Supplement, Vol. 32 (1938), pp. 181–207 Google Scholar.

² The United States made a long reservation to this convention, reserving its rights under international law. U. S. Treaty Ser., No. 881. The reservation was not referred to by Mr. Hull in his reply of Aug. 22, 1938.

³ American Journal of International Law, Vol. 33 (1939), pp. 275–278 Google Scholar. See the argument for equality in J. M., Yepes, Le Panaméricanisme (Paris, 1936), pp. 121–127 Google Scholar.

⁴ See Oppenheim, 5th ed. by Lauterpacht, 1937,1, Sec. 115d, p. 283: “It is a well-established principle that a State cannot invoke its municipal legislation as a reason for avoiding its international obligations. For essentially the same reason a State, when charged with a breach of its international obligations with regard to the treatment of aliens, cannot validly plead that according to its Municipal Law and practice the act complained of does not involve discrimination against aliens as compared with nationals. This applies in particular to the question of the treatment of the persons of aliens. It has been repeatedly laid down that there exists in this matter a minimum standard of civilization, and that a State which fails to measure up to that standard incurs international liability.” (Footnotes omitted.)

⁵ See Guerrero, in Report of Subcommittee of Experts, League of Nations Document C.196.M.70.1927.V.100. The report is discussed in Zeitsehrift für ausländisches öffentliches Recht und Völkerrecht, 1929, pp. 223, 228, et seq.

⁶ Oppenheim, 5th ed. by Lauterpacht, 1937, I, 508–509. See also Monnot (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 171; Smith (U. S.) v. Mexico, April 11, 1839, Moore’s Arbitrations, 3374; Lewis (Gt. Brit.) v. United States, May 8, 1871, ibid., 3019; Only Son (U. S.) v. Great Britain, Feb. 8, 1853, ibid., 3404. See also Peter A., Steinbach, Untersuchungen zum internationalen Fremdenrecht (Bonn, 1931), p. 90 Google Scholar, note.

⁷ See Declaration of the Rights of Man, adopted by the Institute of International Law at its Briarcliff meeting, 1929, American Journal of International Law, Vol. 24 (1930), p. 560. Cf. Kaufmann, in 54 Recueil des Cours, Acad, de Droit Int. (1935), IV, p. 427, where they are called the fundamental rights of aliens. Bibliography in Oppenheim, op. cit., I, 510, note.

⁸ If there were no force in international law to insure respect for the rights of aliens, and if it had no substantive content, the Permanent Court of International Justice would have been wrong in asserting the existence of a common or generally accepted international lawrespecting the treatment of aliens, applicable to them despite municipal legislation (Judgment No. 7, pp. 22, 33). The Treaty of Lausanne of 1923 provides that citizens of the Allied Powers shall be treated in accordance with “modern” or “ordinary” international law. American Journal of International Law, Supp., Vol. 18 (1924), p. 68. The treaty between the United States and Germany, 1923, provides that nationals of each country shall be treated by the other with “that degree of protection that is required by international law” (ibid., Supp., Vol. 20 (1926), p. 5). See Freeman, Denial of Justice, p. 502 et seq., an excellent summary of the evidence on the minimum standard.

⁹ “The Government of the United States is firmly of the opinion that the great weight of international law and practice supports the view that every nation has certain minimum duties to perform with regard to the treatment of foreigners, irrespective of its duties to its own citizens, and that in default of such performance, it is the right of the foreign government concerned to enter protest.… While the Mexican Government may see fit to confiscate vested property rights of its own citizens, such action is in equity no justification for the confiscation of such rights of American citizens and does not estop the Government of the United States from protesting on behalf of its citizens against confiscation of their property.” (Mr. Polk, Acting Secretary to Ambassador Henry P. Fletcher, Dec. 13, 1918, For. Rel. 1918, pp. 786–787.) See also Mr. Root, in Proceedings of the American Society of International Law, 1910, p. 21, also in Hyde, International Law, I, 466; note of Secretary Hull to Mexico, Aug. 22, 1938, American Journal of International Law, Supp., Vol. 32 (1938), p. 191 Google Scholar.

¹⁰ “If it be urged that under the provisions of the Treaty of 1923 as construed by this Commission the claimant Hopkins enjoys both rights and remedies against Mexico which it withholds from its own citizens under its municipal laws, the answer is that it not infrequently happens that under the rules of international law applied to controversies of an international aspect a nation is required to accord to aliens broader and more liberal treatment than it accords to its own citizens under its municipal laws. The reports of decisions made by arbitral tribunals long prior to the Treaty of 1923 contain many such instances. There is no ground to object that this amounts to a discrimination by a nation against its own citizens in favor of aliens. It is not a question of discrimination, but a question of difference in their respective rights and remedies. The citizens of a nation may enjoy many rights which are withheld from aliens, and, conversely, under international law aliens may enjoy rights and remedies which the nation does not accord to its own citizens.” (Opinions of Commissioners, pp. 50–51.)

See also Neer (U. S.) v. Mexico, ibid., p. 71; Faulkner (U. S.) v. Mexico, ibid., p. 86.

¹¹ Ibid., p. 105. In its case against Belgium before the Permanent Court of International Justice, known as the Oscar Chinn case (Series C, No. 75, p. 41 et seq.), the British Government adduced the Sicilian sulphur monopoly case, the Uruguayan and Italian insurance monopolies of 1911, and the well-known collection of opinions solicited by Edouard Clunet on the propriety of the Italian monopoly, practically all of which support the principle that the mere equality of treatment of national and alien will not be sufficient to satisfy the international standard.

¹² See Mr. Root, Proceedings of the American Society of International Law, 1910, p. 16 (quoted also in Hyde, I, 466): “In many countries, the courts are not independent; the judges are removable at will; they are not superior, as they ought to be, to local prejudices and passions, and their organization does not afford to the foreigner the same degree of impartiality which is accorded to citizens of the country, or which is required by the common standard of justice obtaining throughout the civilized world.” Root, ibid., 26.

Dunn, , The Protection of Nationals (Balto., 1932), p. 119 Google Scholar; Kuhn, , in American Journal of International Law, Vol. 31 (1937), p. 96 Google Scholar; Brierly, , Law of Nations (2d ed. 1936), p. 173 Google Scholar. See also Chattin (U. S.) v. Mexico, 1923, Opinions of Commissioners, 441 (Nielsen’s opinion); Roberts (U. S.) v. Mexico, supra, ibid., p. 105.

¹³ Neer (U. S.) v. Mexico, ibid., 73, 77. “The propriety of governmental acts should be put to the test of international standards.” The tribunal added: “The treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.” See also Garcia (Mexico) v. United States, ibid., 163,169; Roberts (U. S.) v. Mexico, ibid., 105; Fabiani (France) v. Venezuela, Feb. 24,1891, Moore’s Arb. 4878, 4893. See cases discussed in Freeman, op. cit., p. 543 et seq.

Judge Max Huber in his Rapports on the British Reclamations in the Spanish Zone of Morocco, after denying liability for the acts of individuals, added that “… restriction thus attached to the right of States to intervene for the protection of their citizens assumes that the general security in the country of residence does not fall below a certain level and that at least their protection by the courts does not become purely illusory.” Rapports, p. 54.

In several cases before the General Claims Commission, United States and Mexico, the facts disclosed a maladministration of justice “below the standard prescribed by international law.” Galvan (Mexico) v. United States, Opinions of Commissioners, 410; Swinney (U. S.) v. Mexico, ibid., p. 131. See numerous quotations in Freeman, op. cit., pp. 560–562, from the decisions of other tribunals.

¹⁴ American Journal of International Law, Spl. Supp., Vol. 23 (1929), pp. 175,219 Google Scholar; Annex to Questionnaire No. 4, Report of Subcommittee, League of Nations, Doc. C.196. M.70.1927.V, p. 100; Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, American Journal of International Law, Vol. 20 (1926), pp. 738–747 Google Scholar.

¹⁵ Beside the cases referred to, see the report of the international conference at Paris on the treatment of aliens, 25 Rev. de droit int. privé (1930), 218: “Without doubt it is recognized today in all civilized states that the treatment of aliens is subject to a certain standard of international law whose violation may give rise to diplomatic action of governments”; and the following publicists: Scelle, in LaPradelle’s Revue de Droit International, 1927, p. 1116: “The Permanent Court of International Justice has held that aliens have the right to a treatment better than nationals whenever nationals are treated contrary to (international) common law”; Kaufmann, , in Zeitschrift für Ostrecht, 1927, p. 1260 Google Scholar, and in his brief before the Permanent Court, Ser. C. 11, p. 412: “Whenever internal law with respect to aliens is found below the requirements of the international standard, notably if there is a denial of justice, the alien has even a right to treatment superior to that which internal law accords nationals.”

As Steinbach puts it, Untersuchungen zum internationalen Fremdenrecht (1931), p. 80, the state only then meets the requirements of international law in granting equality to nationals and aliens when the treatment of nationals corresponds to the measures which international law requires. In support of this view, he cites Barthelemy, in Causes Célèbres, II, 1929, p. 314, Anzilotti, Richter and Schmid. Other authors who sustain these views are: Hyde, , International Law (Boston, 1922), I, sees. 266–267 Google Scholar; Dunn, , International Law and Private Property Rights, 28 Col. L. Rev. 166, 175 (1928)Google Scholar; Accioly, , Tratado de direito international publico (Rio de Janeiro, 1933), I, 335–336 Google Scholar; Basdevant, “Étrangers,” in LaPradelle’s Répertoire de Droit International, Nos. 7–19 and 303 et seq.; Möller, International Law in Peace and War, translated from Danish by H. M. Pratt (London, 1931), I, 133,148; Witenberg, J. C, “La protection de la propriété immobilibre des étrangers,” 55 Clunet (1928), 566; Hall, International Law, 8th ed. by Higgins (London, 1924), pp. 59-60; Leibholz, “Das Verbot der Willkür,” 1 Zeitschr.f. ausl. öffentl. Recht, I, 77, 97–99 (1929). See also Hatschek, Wörterbuch des Völkerreckts, I, p. 221; Strupp, Das Völkerrechtliche Delikt, p. 118; Triepel, Völkerrecht und Landesrechi, 330; Cavaglieri, Lezioni, 267; Fauchille, I, 1, p. 928; Décencière Ferrandière, La responsabilitè int. des États (Paris, 1925), p. 57; Brierly, J. L., Law of Nations, 2d ed. (1936), p. 172.

¹⁶ Alvarez, A., Exposé de motifs et déclaration des grands principes du droit international moderne (Paris, 1936)Google Scholar: “In no case, may aliens claim more rights than nationals, unless the country in which they reside does not assure to its inhabitants, in permanent fashion, the minimum of rights to which Article 25(b) and Articles 28 and 29 refer (Article 30). Article 25(b) provides that states must ‘maintain a political and legal organization which permits all persons residing on their territory to exercise their rights and enjoy advantages which the sentiment of international justice today imposes on all civilized people.’ Article 28 provides that ‘every state must assure to every individual on its territory the full and entire protection of the right to life, liberty, and property, without distinction of nationality, race, language, or religion.’ Article 29 provides for the free exercise of all faiths, etc.”

While these provisions may to some extent be deemed aspirations, they indicate that the author approves the minimum standard. See also the Projects of the American Institute of International Law, 1925, Nos. 15 and 16, which establish that each government is obliged to maintain “internal order and governmental stability indispensable to compliance with its international obligations,” probably an excessive requirement, and that they only are responsible when they have not “maintained order in the interior” or have been “negligent in the suppression of acts which disturb that order,” or have omitted to take “reasonable precautions to avoid” injuries to aliens.

Diplomatic Protection (No. 16), the American Institute Project, established that aliens cannot claim more “obligations and responsibility” than are conceded to nationals in “the constitution, laws and treaties in force.” But diplomatic protection is permitted when there has been a “denial of justice by those authorities, undue delay or violation of the principles of international law.”

In 1933, the American Institute submitted to the Montevideo Conference the following article: “The jurisdiction of States, within limits of the national territory, extends to all the inhabitants. The inhabitants, nationals and aliens, enjoy a single protection as the national laws and authorities provide. Aliens cannot demand rights different or more extended than the rights of nationals. (This) equal protection must assure nationals and aliens the minimum (of rights) exacted by international law.”

Moreno, Ruiz, I., Lecciones de Derecho Int. Publico (Buenos Aires, 1934), I, pp. 238, 260 Google Scholar; H, Accioly. Tratado de direito int. publico (Rio de Janeiro, 1933), I, p. 268 Google Scholar; Victor M., Maúrtua, and J. B., Scott, Responsibility of States, etc. (Oxford, 1930), p. 45 Google Scholar: “There is a minimum juridical standard imposed by human civilization, without which neither the existence of the State as a sovereign entity nor that of the international community could be conceived”; Ulloa, , Derecho Int. Publico (2d ed., 1938, Lima), I, pp. 224, 243 Google Scholar.

¹⁷ Cf. Baty, , Canons of International Law (London, 1930), p. 133 Google Scholar.

¹⁸ Proceedings of American Society of International Law, 1910, p. 21 Google Scholar.

¹⁹ In 1929 a conference was held in Paris under the auspices of the League of Nations to endeavor to work out a convention on the treatment of foreigners. Preparatory Documents C.I.T.E. 1.C.36.M.21.1929.II; Draft Convention, Geneva, 1928, C.174.M.53.1928.II. The Convention broke down largely because many states declined to commit themselves to concede equality to foreigners. J. W., Cutler, “The Treatment of Foreigners,” American Journal of International Law, Vol. 27 (1933), p. 225 Google Scholar; Kuhn, A., in ibid., Vol. 24 (1930), p. 570. Interestingly, the Hague Codification Conference of 1930 on responsibility of states broke down largely because the majority of states refused to admit that equality of treatment satisfied in all cases the international standard.

²⁰ See The Mexican Expropriations in International Law, Memorandum, Oct. 11, 1938, pp. 103–130.

²¹ Williams, , in British Yearbook of International Law, 1928, p. 1 Google Scholar; Marburg, Der rumänischungarische Optantenstreit, also in Wörterbuch des Völkerrechts, III, 820. Cf. Oppenheim, 5th ed., I, 283–285 (partial compensation necessary).

²² Chorzow case, Judgment No. 7, pp. 21–22, immunity from confiscation deemed a part of the “accepted principles of international law”; Peter Pazmany University (Hungary) v. Czechoslovakia, Dec. 15,1933, Judgment No. 61, Ser. A/B. Judge Robert Fazy (Switzerland), in case between Germany and Rumania, Sept. 27, 1928, held that the “respect of private property and vested rights of aliens is uncontestably a part of the general principles admitted by the law of nations” (3 Rev. de Dr. Int., April–June, 1929, p. 558). See British observations in Portuguese expropriations of religious properties, quoted in Fachiri, 1925 British Yearbook of International Law, pp. 159,168; also 1929 British Yearbook, pp. 32, 38; Shufeldt (U. S.) v. Guatemala, 1931, Arbitration Ser. No. 3; Steinbach, Untersuchungen, supra, p. 90, note; 34th Report, Int. Law Assn., p. 248; Verdross, in Recueil des Cours, Acad, de Droit Int., 1929, V, p. 442; 1931, III, pp. 327, 330, 359; Kaeckenbeeck, in 1936 British Yearbook of International Law, p. 16.

²³ See the excellent article of Dunn, Frederick, “International Law and Private Property Eights,” 28 Col. L. Rev. 116 (1928)Google Scholar.