1. The Substantive Rule: An International Standard of Justice
It is a well recognized fact that two mutually antagonistic standards were asserted under the traditional law of State responsibility: the one was an “international standard of justice” advocated by West European countries and the United States of America, and the other was a “national standard” or an “equality of treatment between nationals and foreigners”, which was insisted upon by Latin American, Asian and some of the East European countries in opposition to the former. The former, also called a “minimum standard of civilization”, a “standard of international law” or simply an “international standard”, was typically formulated by Elihu Root as follows:
“There is a standard of justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The condition upon which any country is entitled to measure the justice due from it to an alien by the justice which it accords to its own citizens is that its system of law and administration shall conform to this general standard. If any country’s system of law and administration does not conform to that standard although the people of the country may be content or compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens.”10v
This international standard of justice was asserted in relation to diversified fields of State conduct. For example, the Bases of Discussion drawn up by the Preparatory Committee for the League of Nations Conference for the Codification of International Law seemed to stipulate this standard at least in relation to the following: acts relating to the operation of the tribunals (Bases Nos. 5 and 6); the protection of foreigners by the executive power (Basis No. 10); the protection of foreigners from damage caused by a private individual (Bases Nos. 17 and 18); acts of armed force or authorities in the suppression of insurrection, riot or other disturbance (Basis No. 21 (2)).11
This standard was also supported by almost all scholars in those countries which themselves advocated it. For example, Edwin M. Borchard said that the principle of equality of treatment between nationals and aliens “is conditioned upon the fact that (a state’s) administration of justice satisfies the standard of civilized justice established by international law.”12 Also, according to Clyde Eagleton, “a state may be responsible not merely for the same protection which it offers to its own citizens, but for a protection which measures up to reasonable standard of civilized justice. It may set such standards as it may desire for its own citizens; but where aliens is concerned, international law enters with its own standards.”13
We do not intend here to examine whether the international standard of justice was the established one or not under the traditional law of State responsibility. But, at least two comments may be due to this standard here.
First, in contrast to the fact that the international standard of justice was asserted by West European countries, including the United States of America, against Latin American and Asian countries, the mutual relations of the former countries seemed to be regulated by the national standard. When an anti- Spanish mob damaged the Spanish consulate and residents in New Orleans in 1851, the United States Secretary of State Webster wrote to the Spanish Minister, “(the U.S. Government) supposes that the rights of the Spanish consul … are quite different from those of the Spanish subjects who have come into the country to mingle with our own citizens, and here to pursue their private business and objects. The former may claim special indemnity; the latter are entitled to such protection as is afforded to our own citizens.”14 Also, in 1855, the Secretary of State Marcy, though admitting that the Austrian criminal proceedings had many harsh features and were deficient in many safeguards which the U.S. laws provided for the security of the accused, declared, “it is not within the competence of one independent power to reform the jurisprudence of others, nor has it the right to regard as an injury application of the judicial system and established mode of proceedings in foreign countries to its citizens when fairly brought under their operation.”15
Sometimes, the U.S. Government even relied on its domestic laws as a defense against claims from foreign countries. Thus, the Secretary of State Fish, in reply to the Mexican Minister who demanded punishment of murderers of Mexican citizens in Texas in 1875, said that it was undoubtedly the duty of a government to prosecute such offenders according to law by all the means in its power but that if this duty was honestly and diligently fulfilled, the obligations of the government were discharged, and that “under the system of law which pervades this country, no person can be arrested …except upon the affidavit of a credible witness”, this condition being lacking in this case.16 Commenting on the attitude of the U.S. Government such as this, Amos S. Hershey noted the “double inconsistency-that of theory and practice on the one hand, and that of our attitude at home and abroad on the other--”17
Second, the international standard of justice was so vague and elastic that it could hardly serve as a concrete and definite standard. For example, a famous decision of the Mexico-U.S. General Claims Commission in the Neer Case, in an attempt to formulate “the test of international standards”, said, “the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith to willful 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.”18 This decision is sometimes cited to show that the international standard is rather a low standard, but, as is seen, it fills with subjective expressions and the determination seems to fall solely on a “reasonable and impartial man”.
This indefiniteness of an international standard was recognized even by its advocates.19 Therefore, they recommend that a dispute on this respect should be referred to an arbitration. But, most disputes involving State responsibility had been settled through diplomacy, and even when they were referred to arbitrations, negotiations between Governments concerned were necessary at their initial stages. In these circumstances, an interpretation of international standards by the Government of a developed State usually tended to predominate. As McDougal puts it, “the decision-makers of powerful industrialized states are in a position to exert disproportionate influence upon the outcome of controversies …. Hence the norms of the industrial power tend to affect the result.. .”20
But, at least on one point, the content of the international standard was rather definite, namely on the compensation for expropriation of foreign property. Thus, the U.S. Secretary of State Hull wrote to the Mexican Ambassador in Washington on April 3, 1940; “the Government of the United States readily recognizes the right of a sovereign state to expropriate property for public purposes. However, the right to expropriate property is coupled with and conditioned on the obligation to make adequate, effective and prompt compensation.”21 It was quite natural, however, that Mexico did not concur with this view. It maintained, “there is in international law no rule universally accepted in theory nor carried out in practice, which makes obligatory the payment of immediate compensation nor even of deferred compensation, for expropriation of a general and impersonal character.”22 There seems to be no need for us to dwell on the fact that the controversy between developed and developing countries concerning the compensation for expropriation has not been settled in a definite manner up to now.