Recovering "protection and security": the treaty standard's obscure origins, forgotten meaning, and key current significance.

AuthorFoster, George K.
PositionIII. The Historical Evolution of Protection and Security in Customary International Law and U.S. Treaty Practice through V. Conclusion, with footnotes, p.1116-1156
  1. THE HISTORICAL EVOLUTION OF PROTECTION AND SECURITY IN CUSTOMARY INTERNATIONAL LAW AND U.S. TREATY PRACTICE

    Part II revealed that the ordinary meaning of the phrase protection and security, the object and purpose of investment treaties, and the context of protection and security clauses within treaties all suggest a reading that contemplates at least some form of legal security. Nevertheless, one must also consider relevant rules of international law, including the customary norm of protection that has been referenced--but not fully explored--in cases such as AAPL. One must also consider what light, if any, supplementary means of interpretation shed on the matter.

    Evidence regarding each of the foregoing is therefore developed in the subparts that follow, as part of a broader discussion of the historical evolution of the protection and security standard in customary international law and U.S. treaty practice. This evidence strongly supports an interpretation of the standard that extends beyond physical protection, requiring, among other things, the existence of a legal system that offers such features as access to courts, due process, and compensation for expropriation.

    1. The Eighteenth Century

      A distinct obligation of protection or security owed by a state to foreigners in its territory had coalesced in customary international law at least by the mid-eighteenth century and found detailed expression in the writings of both Christian Wolff and Emmerich de Vattel. This notion was then invoked in U.S. commercial treaties concluded in the final decades of that century: the first protection and security clauses.

      1. Wolff and Vattel

      In 1749, Wolff, a German professor, published The Law of Nations Treated According to a Scientific Method, (97) which discussed at length an obligation of "protection" and "security" owed by a host state to foreigners under international law. In particular, in a section entitled "Of the assurance of security to foreigners in one's territory," Wolff observed that "[f]oreigners, as long as they live in alien territory, ought to be safe from every injury, and the ruler of the state is bound to defend them against it, that is, security is to be assured to foreigners living in alien territory."(98) He added that "[t]he ruler of a state ought not to allow any one of his subjects to cause a loss or do a wrong to the citizen of another nation, and if this has been done, he ought to compel him to repair the loss caused and to punish him." (99) By using general terms such as "injury," "loss," and "wrong," Wolff made clear that the duty required protection against nonphysical as well as physical harms.

      Wolff went on to explain that this duty is based on a tacit agreement between the foreigner in question and the ruler of that state:

      [B]etween the ruler of the territory and the foreigner living in it there exists a tacit agreement, by which the latter promises temporary obedience, the former protection. Therefore, since tacit agreements of that sort are to be observed, the ruler of the territory is bound to protect foreigners, consequently not to allow them to be injured contrary to the right common to all men by nature. But if he does not allow foreigners living in his territory to be injured by others, he assures security to them. Therefore, the ruler of a state is bound to assure security to foreigners living in his territory. (100) Writing shortly after Wolff, in 1758, Vattel likewise acknowledged the existence of this international duty of protection and security in his seminal work The Law of Nations or the Principles of Natural Law:

      A sovereign may not allow the right of entrance into his territory granted to foreigners to prove detrimental to them; in receiving them he agrees to protect them as his own subjects and to see that they enjoy, as far as depends on him, perfect security. Thus we see that every sovereign who has granted asylum to a foreigner considers himself no Vattel made clear, moreover, that the "injuries" against which states must protect foreigners are not limited to physical harms, by noting that the state must guard against any unjust act. (102) He added that host states must protect not only foreigners' persons, but their property as well, (103) and must provide compensation for any expropriation, (104)

      Vattel's treatise on the law of nations achieved wide circulation during the second half of the eighteenth century and was viewed by contemporaries and subsequent generations--particularly in the English-speaking world--as the single most useful and authoritative expression of international law. (105)

      2. Early U.S. Commercial Treaties

      In light of the weight accorded to Vatters writings in the late eighteenth century, it is only natural that when the fledgling United States began concluding commercial treaties for the benefit of its citizens engaged in foreign commerce, those treaties explicitly incorporated the duty of protection and security that he had described.

      The first treaty concluded by the new nation, with Prussia in 1785, included only brief and cryptic references to the protection due to foreign merchants. (106) Yet a treaty concluded with Great Britain a few years later, in 1794, contained more detailed references to protection and security. (107)

      Article II provided that Britain was to withdraw its military posts from U.S. territory but that

      [a]ll settlers and traders, within the precincts or jurisdiction of the said posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their effects; and it shall also be free to them to sell their lands, houses or effects, or to retain the property thereof, at their discretion. (108) This use of the term protected connotes not only physical protection, but also the status of having secure property rights under the law.

      Article XIV set forth a general guarantee of "reciprocal and perfect liberty of commerce and navigation," then specified that "[t]he people and inhabitants of the two countries respectively, shall have liberty freely and securely.... to hire and possess houses and ware- houses for the purposes of their commerce, and generally the merchants and traders on each side, shall enjoy the most complete protection and security for their commerce."(109) This use of protection and security seems to connote at least in part an absence of undue or discriminatory legal restrictions on foreign merchants' activities.

      Article XIX required security for the citizens and vessels of each party against men-of-war and privateers--a usage that connotes physical security.

      Finally, although Article X of the treaty did not use the words protection or security, a defender of the treaty, Alexander Hamilton, contemporaneously described it as reflecting a customary duty of protection and security. The provision in question provides that "[n]either the debts due from individuals of the one nation to individuals of the other, nor shares, nor monies, which they may have in the public funds, or in the public or private banks, shall ever in any event of war or national differences be sequestered or confiscated." (110) After the text of this treaty became public, some people criticized Article X--and other provisions--as being too generous to the British. (111) Hamilton came to the defense of the treaty in a series of letters published under the pseudonym "Camillus." (112) Hamilton explained that Article X was of a nature commonly found in treaties and asserted that those provisions clearly amounted to the following, "that upon the breaking out of a War between the contracting parties in each case, there shall be for a term of six or nine months full protection and security to the persons and property of the subjects of one which are then in the territories of the other." (113) He added that the granting of such protection to alien merchants and their property formed "a part of the law of Nations." (114) Hence, he argued, by including Article X the parties had done nothing extraordinary; they had simply incorporated a preexisting obligation under the law of nations. Significantly, Hamilton cited Vattel in support of the existence of such a customary norm of protection and security. (115)

      In another letter, Hamilton elaborated upon this norm as follows:

      The right of holding or having property in a country always implies a duty on the part of its Government to protect that property and to secure to the owner the full enjoyment of it. Whenever therefore a Government grants permission to foreigners to acquire property within its territories or to bring & deposit it there, it tacitly promises protection and security. (116) Hamilton added that this duty required that "the foreign proprietor ... shall enjoy the rights privileges and immunities of a native proprietor--without any other exceptions than those which the established laws may have previously declared." (117) In other words, the customary duty of protection and security required equal protection before the law, among other things.

      The foregoing evidence makes it clear that the notion of protection and security in the earliest U.S. commercial treaties contemplated shelter from a range of threats, from attacks by men-of-war to governmental confiscations to infringements of legal rights. It also suggests that these treaties used the phrase in essentially the same manner as had Wolff and Vattel.

    2. From 1800 Through World War I

      During the nineteenth century and the first part of the twentieth, the customary notion of protection and security underwent further refinement, and U.S. FCN treaties evolved in commensurate fashion. The evidence is unequivocal, however, that the standard was understood throughout this period as requiring more than mere police protection. Indeed, to the extent the standard evolved, it was in the direction of requiring...

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