International Arbitration, from Athens to Locarno

By Jackson H. Ralston | Go to book overview

CHAPTER VI
PARTIES

46. Nation or individual as party. -- In a broad and important sense the parties to a proceeding before an international tribunal are the governments in dispute. This is obvious enough when the dispute relates to some matter directly affecting sovereign jurisdiction or matters which may be regarded as touching the operations of government. Naturally this is the case in all territorial disputes or questions of diplomatic privilege and the like. It exists likewise when the property of the individual is affected. In the view of the sovereign, treating the matter from the international point of view, whatever affects the citizen affects the power over him, as constituting a possible though shadowy infringement upon the sovereign's authority, and thereby lessening the importance of the nation. Hence it is that even without any express authorization from the citizen the nation may, or claims the right to, act through the government sua sponte.

Of course as Stoykovich points out

It is by virtue of a fiction that one considers the injustice done to an individual as in reality an injustice done to the state to which he is subject. The intervention of the state gives to a claim which had in its origin a judicial character, a political shade, introducing in the affair the notion of national interest and honor.1

47. Control of nation over grievance of national. -- Internationally the nation assumes the right to barter away the rights of its subject or enforce them or change the forum of enforcement in any way pleasing to it. Thus the nation may, as in the case of the Alabama claims, agree with another for the establishment of a tribunal determining the primary question of right or wrong and broad questions of damage. It may, as in that case, the first points being settled, create another court determining the share of each individual in the award, and, as in other cases, actually diminishing the amount that in right he should have received.2

Without consulting with the parties really in interest, it is within the power of the government, and it therefore assumes as its right, to

____________________
1
De l'autoritê de la sentence arbitrale, 27
2
The action of the state depends often upon considerations of a political order, and if his government refuses to act, the individual is without any recourse. The clear right of the individual can be thus sacrificed for political reasons and reasons of convenience ( Stoykovitch, De l'autoritê de la sentence arbitrale, 28).

-67-

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