How Far Must We Protect Our Citizens Abroad?
“The privilege of protecting citizens abroad, and obtaining for them what may be called international due process of law, is indeed a doctrine of international law. It represents one of the most primitive institutions of organized society, the theory that when an individual member of the clan is injured the whole clan is injured and must proceed to defend him and redress the wrong”. By Professor Edwin M. Borchard”.
[Edwin Montefiore Borchard (1884-1951) was a Jurist and was a U.S. Law Professor at Yale University]. In 1910, Edwin M. Borchard was appointed to the agency representing the U.S. during the Hague Tribunal’s North Atlantic fisheries arbitration. From 1911-1916, he was Law Librarian of Congress, except while serving as Assistant Solicitor for the Department of State (1913-1914). Borchard was a professor of law at the Yale Law School from 1917-1950. He was a visiting lecturer at the International Academy of Law at the Hague, 1923; legal advisor to numerous governmental agencies; and author of books and articles on international law.
Edwin Montefiore Borchard was born in New York City on October 17, 1884. Borchard’s father, Michaelis, had emigrated from Prussia in 1859 and settled in New York City where he established an importing business. After completing his preliminary education in. the New York City public school system, Borchard attended the College of the City of New York from 1898 to 1902. He received his LL.B. from New York Law School in 1905 and his B.A. (1908) and Ph.D. (1913) from Columbia.
In 1910 Borchard, an expert in international law, was appointed to the agency representing America during the Hague Tribunal’s North Atlantic fisheries arbitration. While in Europe he traveled extensively for the Library of Congress, investigating and collecting literature on continental law.
From 1911 to 1916, Borchard was employed as the Law Librarian of Congress, except for a period during 1913-1914 when he served as Assistant Solicitor for the Department of State. In 1915 he traveled through South America investigating legal literature for the Library of Congress and studying commercial law for the Department of Commerce.
After a brief period as an attorney for the National City Bank of New York, Borchard was appointed Professor of Law at Yale University Law School in 1917. In 1927 he was appointed to the Justus H. Hotchkiss Chair of Law at Yale, a position he held until his retirement in 1950. While on leave from Yale, Professor Borchard served as a member and lecturer at the International Academy of Law at The Hague in 1923, and in 1925 he became the first American professor to lecture at the University of Berlin since the beginning of World War I.
Throughout his academic career Professor Borchard served as a legal adviser to a number of government agencies, including the State and Treasury Departments, the Office of Civilian Defense, and the Maritime Commission. In 1929 he was appointed chief consul for Peru when the United States arbitrated the Tacna-Arica boundry dispute between Peru and Chile. During 1930 he was a technical adviser to the Conference on the Codification of International Law at The Hague. He was also a member of the Committee of Experts for American Codification of International Law.
One of the most important aspects of Professor Borchard’s career was his effort on behalf of legal reform. Two of his major studies, The Declaratory Judgment and Convicting the Innocent, were concerned with this phase of his work.
In a series of articles and studies, beginning with “Declaratory Judgments” in 1918 and ending with The Declaratory Judgment in 1934, Borchard persuasively argued for the utilization of declaratory judgments in state and federal courts. Essentially, a declaratory judgment is a declaration by a court of the rights, duties, or legal status of any interested party to a case before that court; it may or may not be accompanied by a grant of further relief by the court, e.g., an injunction, damages, etc. The device has its roots in the law of the Middle Ages and by the end of the nineteenth century was frequently used in the court systems of Western and Central Europe. Borchard’s campaign for the use of this device in American courts resulted in its widespread acceptance in state court systems by the early 1930s. In 1934 the Seventy-Third Congress passed the Federal Declaratory Judgment Act, co-drafted by Borchard, allowing the use of the device in federal courts. In the opinion of Charles E. Clark, Borchard’s campaign for the acceptance of the declaratory judgment was “…the greatest one-man job of legal reform to occur in this country.”
Convicting the Innocent, published in 1932, was a study of miscarriages of justice in which innocent persons had been wrongly convicted of crimes. As a result of the revelations set forth in this work, Congress, in 1938, passed an act granting relief to individuals who had been erroneously convicted in United States courts.
Professor Borchard’s interests were not confined solely to the law. He was the author of a number of popular articles publicizing political issues and was well known in the national press as an exponent of American neutrality who opposed the United States’ entry into both World Wars I and II. He also acted as an adviser on foreign affairs to a number of eminent statesmen, including Senators William E. Borah, John A. Danaher, and Hiram W. Johnson, as well as Congressmen James A. Shanley (3rd district, Connecticut) and George Holden Tinkham (11th district, Massachusetts).
Professor Borchard died on July 22, 1951.
Manuscripts and Archives Yale University
‘Indo – Gulf Reparation Mechanisms’ Updates
Developed countries like the US, UK etc., assign the highest priority to protect their citizens who are in crisis of any kind while they work or travel abroad. “The protection of U.S.citizens abroad ranks among the Secretary’s and the Department’s absolute highest priorities” – says Patrick F. Kennedy, US Under Secretary for Management. The EU citizen has a fundamental right to consular and diplomatic protection in non-EU countries is a unique model of protection of individuals abroad.
In this background, it is a tragic situation that India has not yet thought of or developed an effective system to protect the Overseas Indians (especially in the GCC countries) whenever they are exposed to fabricated cases, imprisonment, torture … More Details: Strategy Formulation and Implementation of a Mutual Human Rights Law and Reparation Mechanisms Between the Government of India and the GCC countries
Guide to the Edwin Montefiore Borchard Papers