CHAPTER III RESPONSIBILITY OF STATES
I ON STATE RESPONSIBILITY IN GENERAL
Grotius, II. c. 21, § 2—Pufendorf, VIII. c. 6, § 12—Vattel, II. §§ 63-78—Hall, § 65—Halleck, I. pp. 440-444—Wharton, I. § 21—Moore, VI. §§ 979-1039—Wheaton, § 32—Bluntschli, § 74—Heffter, §§ 101-104—Holtzendorff in Holtzendorff, II. pp. 70-74—Liszt, § 24—Ullmann, § 39—Bonfils, Nos. 324-332—Despagnet, No. 466—Piedelièvre, I. pp. 317-322—Pradier-Fodéré, I. Nos. 196-210—Rivier, I. pp. 40-44—Calvo, III. §§ 1261-1298—Fiore, I. Nos. 659-679, and Code, Nos. 591-610—Martens, I. § 118—Clunet, "Offenses et actes hostiles commis par particuliers contre un état étranger" (1887)—Triepel, "Völkerrecht und Landesrecht" (1899), pp. 324-381—Anzillotti, "Teoria generale della responsabilità dello stato nel diritto internazionale" (1902)—Wiese, "Le droit international appliqué aux guerres civiles" (1898), pp. 43-65—Rougier, "Les guerres civiles et le droit des gens" (1903), pp. 448-474—Baty, "International Law" (1908), pp. 91-242—Anzillotti in R.G. XIII. (1906), pp. 5-29 and 285-309—Foster in A.J. I. (1907), pp. 5-10—Bar in R.I. 2nd Ser. I. (1899), pp. 464-481.
Nature of State Responsibility.
§ 148. It is often maintained that a State, as a sovereign person, can have no legal responsibility whatever. This is only correct with reference to certain acts of a State towards its subjects. Since a State can abolish parts of its Municipal Law and can make new Municipal Law, it can always avoid legal, although not moral, responsibility by a change of Municipal Law. Different from this internal autocracy is the external responsibility of a State to fulfil its international legal duties. Responsibility for such duties is, as will be remembered,[245] a quality of every State as an International Person, without which the Family of Nations could not peaceably exist. Although there is no International Court of Justice which could establish such responsibility and pronounce a fine or other punishment against a State for neglect of its international duties, State responsibility concerning international duties is nevertheless a legal responsibility. For a State cannot abolish or create new International Law in the same way as it can abolish or create new Municipal Law. A State, therefore, cannot renounce its international duties unilaterally[246] at discretion, but is and remains legally bound by them. And although there is not and never will be a central authority above the single States to enforce the fulfilment of these duties, there is the legalised self-help of the single States against one another. For every neglect of an international legal duty constitutes an international delinquency,[247] and the violated State can through reprisals or even war compel the delinquent State to comply with its international duties. It is only theorists who deny the possibility of a legal responsibility of States, the practice of the States themselves recognises it distinctly, although there may in a special case be controversy as to whether a responsibility is to be borne. And State responsibility is now in a general way recognised for the time of war by article 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, which stipulates: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to make compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."
[246] See Annex to Protocol I. of Conference of London, 1871, where the Signatory Powers proclaim that "it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrangement."
Original and Vicarious State Responsibility.
§ 149. Now if we examine the various international duties out of which responsibility of a State may rise, we find that there is a necessity for two different kinds of State responsibility to be distinguished. They may be named "original" in contradistinction to "vicarious" responsibility. I name as "original" the responsibility borne by a State for its own—that is, its Government's actions, and for such actions of the lower agents or private individuals as are performed at the Government's command or with its authorisation. But States have to bear another responsibility besides that just mentioned. For States are, according to the Law of Nations, in a sense responsible for certain acts other than their own—namely, certain unauthorised injurious acts of their agents, of their subjects, and even of such aliens as are for the time living within their territory. This responsibility of States for acts other than their own I name "vicarious" responsibility. Since the Law of Nations is a law between States only, and since States are the sole exclusive subjects of International Law, individuals are mere objects[248] of International Law, and the latter is unable to confer directly rights and duties upon individuals. And for this reason the Law of Nations must make every State in a sense responsible for certain internationally injurious acts committed by its officials, subjects, and such aliens as are temporarily resident on its territory.[249]
[249] The distinction between original and vicarious responsibility was first made, in 1905, in the first edition of this treatise and ought therefore to have been discussed by Anzillotti in his able article in R.G. XIII. (1906), p. 292. The fact that he does not appreciate this distinction is prejudicial to the results of his researches concerning the responsibility of States.
Essential Difference between Original and Vicarious Responsibility.
§ 150. It is, however, obvious that original and vicarious State responsibility are essentially different. Whereas the one is responsibility of a State for a neglect of its own duty, the other is not. A neglect of international legal duties by a State constitutes an international delinquency. The responsibility which a State bears for such delinquency is especially grave, and requires, apart from other especial consequences, a formal expiatory act, such as an apology at least, by the delinquent State to repair the wrong done. On the other hand, the vicarious responsibility which a State bears requires chiefly compulsion to make those officials or other individuals who have committed internationally injurious acts repair as far as possible the wrong done, and punishment, if necessary, of the wrongdoers. In case a State complies with these requirements, no blame falls upon it on account of such injurious acts. But of course, in case a State refuses to comply with these requirements, it commits thereby an international delinquency, and its hitherto vicarious responsibility turns ipso facto into original responsibility.
II STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES
See the literature quoted above at the commencement of § [148].
Conception of International Delinquencies.
§ 151. International delinquency is every injury to another State committed by the head and the Government of a State through violation of an international legal duty. Equivalent to acts of the head and Government are acts of officials or other individuals commanded or authorised by the head or Government.
An international delinquency is not a crime, because the delinquent State, as a Sovereign, cannot be punished, although compulsion may be exercised to procure a reparation of the wrong done.
International delinquencies in the technical sense of the term must not be confounded either with so-called "Crimes against the Law of Nations" or with so-called "International Crimes." "Crimes against the Law of Nations" in the wording of many Criminal Codes of the single States are such acts of individuals against foreign States as are rendered criminal by these Codes. Of these acts, the gravest are those for which the State on whose territory they are committed bears a vicarious responsibility according to the Law of Nations. "International Crimes," on the other hand, refer to crimes like piracy on the high seas or slave trade, which either every State can punish on seizure of the criminals, of whatever nationality they may be, or which every State has by the Law of Nations a duty to prevent.
An international delinquency must, further, not be confounded with discourteous and unfriendly acts. Although such acts may be met by retorsion, they are not illegal and therefore not delinquent acts.
Subjects of International Delinquencies.
§ 152. An international delinquency may be committed by every member of the Family of Nations, be such member a full-Sovereign, half-Sovereign, or part-Sovereign State. Yet, half- and part-Sovereign States can commit international delinquencies in so far only as they have a footing within the Family of Nations, and therefore international duties of their own. And even then the circumstances of each case decide whether the delinquent has to account for its neglect of an international duty directly to the wronged State, or whether it is the full-Sovereign State (suzerain, federal, or protectorate-exercising State) to which the delinquent State is attached that must bear a vicarious responsibility for the delinquency. On the other hand, so-called Colonial States without any footing whatever within the Family of Nations and, further, the member-States of the American Federal States, which likewise lack any footing whatever within the Family of Nations because all their possible international relations are absorbed by the respective Federal States, cannot commit an international delinquency. Thus an injurious act against France committed by the Government of the Commonwealth of Australia or by the Government of the State of California in the United States of America, would not be an international delinquency in the technical sense of the term, but merely an internationally injurious act for which Great Britain or the United States of America must bear a vicarious responsibility. An instance of this is to be found in the conflict[250] which arose in 1906 between Japan and the United States of America on account of the segregation of Japanese children by the Board of Education of San Francisco and the demand of Japan that this measure should be withdrawn. The Government of the United States at once took the side of Japan, and endeavoured to induce California to comply with the Japanese demands.
[250] See Hyde in "The Green Bag," XIX. (1907), pp. 38-49; Root in A.J. I. (1907), pp. 273-286; Barthélemy in R.G. XIV. (1907), pp. 636-685.
State Organs able to commit International Delinquencies.
§ 153. Since States are juristic persons, the question arises, Whose internationally injurious acts are to be considered State acts and therefore international delinquencies? It is obvious that acts of this kind are, first, all such acts as are performed by the heads of States or by the members of Government acting in that capacity, so that their acts appear as State acts. Acts of such kind are, secondly, all acts of officials or other individuals which are either commanded or authorised by Governments. On the other hand, unauthorised acts of corporations, such as Municipalities, or of officials, such as magistrates or even ambassadors, or of private individuals, never constitute an international delinquency. And, further, all acts committed by heads of States and members of Government outside their official capacity, simply as individuals who act for themselves and not for the State, are not international delinquencies either.[251] The States concerned must certainly bear a vicarious responsibility for all such acts, but for that very reason these acts do not comprise international delinquencies.
[251] See below, §§ [157]-158.
No International Delinquency without Malice or culpable Negligence.
§ 154. An act of a State injurious to another State is nevertheless not an international delinquency if committed neither wilfully and maliciously nor with culpable negligence. Therefore, an act of a State committed by right or prompted by self-preservation in necessary self-defence does not contain an international delinquency, however injurious it may actually be to another State. And the same is valid in regard to acts of officials or other individuals committed by command or with the authorisation of a Government.
Objects of International Delinquencies.
§ 155. International delinquencies may be committed against so many different objects that it is impossible to enumerate them. It suffices to give some striking examples. Thus a State may be injured—in regard to its independence through an unjustified intervention; in regard to its territorial supremacy through a violation of its frontier; in regard to its dignity through disrespectful treatment of its head or its diplomatic envoys; in regard to its personal supremacy through forcible naturalisation of its citizens abroad; in regard to its treaty rights through an act violating a treaty; in regard to its right of protection over citizens abroad through any act that violates the body, the honour, or the property[252] of one of its citizens abroad. A State may also suffer various injuries in time of war by illegitimate acts of warfare, or by a violation of neutrality on the part of a neutral State in favour of the other belligerent. And a neutral may in time of war be injured in various ways through a belligerent violating neutrality by acts of warfare within the neutral State's territory; for instance, through a belligerent man-of-war attacking an enemy vessel in a neutral port or in neutral territorial waters, or through a belligerent violating neutrality by acts of warfare committed on the Open Sea against neutral vessels.
[252] That a State which does not pay its public debts due to foreigners and refuses, on the demand of the home State of the foreigners concerned, to make satisfactory arrangements commits international delinquency there is no doubt. On the so-called Drago doctrine and the Hague Convention concerning the Employment of Force for the Recovery of Contract Debts, see above, § [135, No. 6].
Legal consequences of International Delinquencies.
§ 156. The nature of the Law of Nations as a law between, not above, Sovereign States excludes the possibility of punishing a State for an international delinquency and of considering the latter in the light of a crime. The only legal consequences of an international delinquency that are possible under existing circumstances are such as create a reparation of the moral and material wrong done. The merits and the conditions of the special cases are, however, so different that it is impossible for the Law of Nations to prescribe once for all what legal consequences an international delinquency should have. The only rule which is unanimously recognised by theory and practice is that out of an international delinquency arises a right for the wronged State to request from the delinquent State the performance of such expiatory acts as are necessary for a reparation of the wrong done. What kind of acts these are depends upon the special case and the discretion of the wronged State. It is obvious that there must be a pecuniary reparation for a material damage. Thus, according to article 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, a belligerent party which violates these laws shall, if the case demands, be liable to make compensation. But at least a formal apology on the part of the delinquent will in every case be necessary. This apology may have to take the form of some ceremonial act, such as a salute to the flag or to the coat of arms of the wronged State, the mission of a special embassy bearing apologies, and the like. A great difference would naturally be made between acts of reparation for international delinquencies deliberately and maliciously committed, on the one hand, and, on the other, for such as arise merely from culpable negligence.
When the delinquent State refuses reparation of the wrong done, the wronged State can exercise such means as are necessary to enforce an adequate reparation. In case of international delinquencies committed in time of peace, such means are reprisals[253] (including embargo and pacific blockade) and war as the case may require. On the other hand, in case of international delinquencies committed in time of war through illegitimate acts of warfare on the part of a belligerent, such means are reprisals and the taking of hostages.[254]
[253] See below, [vol. II. § 34].
[254] See below, [vol. II. §§ 248] and [259].
III STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS
See the literature quoted above at the commencement of § [148], and especially Moore, VI. §§ 998-1018.
Responsibility varies with Organs concerned.
§ 157. States must bear vicarious responsibility for all internationally injurious acts of their organs. As, however, these organs are of different kinds and of different position, the actual responsibility of a State for acts of its organs varies with the agents concerned. It is therefore necessary to distinguish between internationally injurious acts of heads of States, members of Government, diplomatic envoys, parliaments, judicial functionaries, administrative officials, and military and naval forces.
Internationally injurious Acts of Heads of States.
§ 158. Such international injurious acts as are committed by heads of States in the exercise of their official functions are not our concern here, because they constitute international delinquencies which have been discussed above (§§ [151]-156). But a monarch can, just as any other individual, in his private life commit many internationally injurious acts, and the question is, whether and in what degree a State must bear responsibility for such acts of its head. The position of a head of a State, who is within and without his State neither under the jurisdiction of a Court of Justice nor under any kind of disciplinary control, makes it a necessity for the Law of Nations to claim a certain vicarious responsibility from States for internationally injurious acts committed by their heads in private life. Thus, for instance, when a monarch during his stay abroad commits an act injurious to the property of a foreign subject and refuses adequate reparation, his State may be requested to pay damages on his behalf.
Internationally injurious Acts of Members of Government.
§ 159. As regards internationally injurious acts of members of a Government, a distinction must be made between such acts as are committed by the offenders in their official capacity, and other acts. Acts of the first kind constitute international delinquencies, as stated above (§ 153). But members of a Government can in their private life perform as many internationally injurious acts as private individuals, and we must ascertain therefore what kind of responsibility their State must bear for such acts. Now, as members of a Government have not the exceptional position of heads of States, and are, therefore, under the jurisdiction of the ordinary Courts of Justice, there is no reason why their State should bear for internationally injurious acts committed by them in their private life a vicarious responsibility different from that which it has to bear for acts of private persons.
Internationally injurious Acts of Diplomatic Envoys.
§ 160. The position of diplomatic envoys who, as representatives of their home State, enjoy the privileges of exterritoriality, gives, on the one hand, a very great importance to internationally injurious acts committed by them on the territory of the receiving State, and, on the other hand, excludes the jurisdiction of the receiving State over such acts. The Law of Nations therefore makes the home State in a sense responsible for all acts of an envoy injurious to the State or its subjects in whose territory he resides. But it depends upon the merits of the special case what measures beyond simple recall must be taken to satisfy the wronged State. Thus, for instance, a crime committed by the envoy on the territory of the receiving State must be punished by his home State, and according to special circumstances and conditions the home State may be obliged to disown an act of its envoy, to apologise or express its regret for his behaviour, or to pay damages. It must, however, be remembered that such injurious acts as an envoy performs at the command or with the authorisation of the home State, constitute international delinquencies for which the home State bears original responsibility and for which the envoy cannot personally be blamed.
Internationally injurious Attitudes of Parliaments.
§ 161. As regards internationally injurious attitudes of parliaments, it must be kept in mind that, most important as may be the part parliaments play in the political life of a nation, they do not belong to the agents which represent the States in their international relations with other States. Therefore, however injurious to a foreign State an attitude of a parliament may be, it can never constitute an international delinquency. That, on the other hand, all States must bear vicarious responsibility for such attitudes of their parliaments, there can be no doubt. But, although the position of a Government is difficult in such cases, especially in States that have a representative Government, this does not concern the wronged State, which has a right to demand satisfaction and reparation for the wrong done.
Internationally injurious Acts of Judicial Functionaries.
§ 162. Internationally injurious acts committed by judicial functionaries in their private life are in no way different from such acts committed by other individuals. But these functionaries may in their official capacity commit such acts, and the question is how far a State's vicarious responsibility for acts of its judicial functionaries can reasonably be extended in face of the fact that in modern civilised States these functionaries are to a great extent independent of their Government.[255] Undoubtedly, in case of such denial or undue delay of justice by the Courts as is internationally injurious, a State must find means to exercise compulsion against such Courts. And the same is valid with regard to an obvious and malicious act of misapplication of the law by the Courts which is injurious to another State. But if a Court observes its own proper forms of justice and nevertheless makes a materially unjust order or pronounces a materially unjust judgment, matters become so complicated that there is hardly a peaceable way in which the injured State can successfully obtain reparation for the wrong done, unless the other party consents to bring the case before a Court of Arbitration.
[255] Wharton, II. § 230, comprises abundant and instructive material on this question.
An illustrative case is that of the Costa Rica Packet,[256] which happened in 1891. Carpenter, the master of this Australian whaling-ship, was, by order of a Court of Justice, arrested on November 2, 1891, in the port of Ternate, in the Dutch East Indies, for having committed three years previously a theft on the sea within Dutch territorial waters. He was, however, released on November 28, because the Court found that the alleged crime was not committed within Dutch territorial waters, but on the High Seas. Great Britain demanded damages for the arrest of the master of the Costa Rica Packet, but Holland maintained that, since the judicial authorities concerned had ordered the arrest of Carpenter in strict conformity with the Dutch laws, the British claim was unjustified. After some correspondence, extending over several years, Great Britain and Holland agreed, in 1895, upon having the conflict settled by arbitration and upon appointing the late Professor de Martens of St. Petersburg as arbitrator. The award, given in 1899, was in favour of Great Britain, and Holland was condemned to pay damages to the master, the proprietors, and the crew of the Costa Rica Packet.[257]
[256] See Bles in R.I. XXVIII. (1896), pp. 452-468; Regelsperger in R.G. IV. (1897), pp. 735-745; Valery in R.G. V. (1898), pp. 57-66; Moore, I. § 148. See also Ullmann, "De la responsabilité de l'état en matière judiciaire" (1911).
[257] The whole correspondence on the subject and the award are printed in Martens, N.R.G. 2nd Ser. XXIII. (1898), pp. 48, 715, and 808.
Internationally injurious Acts of administrative Officials and Military and Naval Forces.
§ 163. Internationally injurious acts committed in the exercise of their official functions by administrative officials and military and naval forces of a State without that State's command or authorisation, are not international delinquencies because they are not State acts. But a State bears a wide, unlimited, and unrestricted vicarious responsibility for such acts because its administrative officials and military and naval forces are under its disciplinary control, and because all acts of such officials and forces in the exercise of their official functions are prima facie acts of the respective State.[258] Therefore, a State has, first of all, to disown and disapprove of such acts by expressing its regret or even apologising to the Government of the injured State; secondly, damages must be paid where required; and, lastly, the offenders must be punished according to the merits of the special case.
[258] It is of importance to quote again here art. 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, which stipulates that a State is responsible for all acts committed by its armed forces.
As regards the question what kind of acts of administrative officials and military and naval forces are of an internationally injurious character, the rule may safely be laid down that such acts of these subjects are internationally injurious as would constitute international delinquencies when committed by the State itself or with its authorisation. Three very instructive cases may be quoted as illustrative examples:
(1) On September 26, 1887, a German soldier on sentry duty at the frontier near Vexaincourt shot from the German side and killed an individual who was on French territory. As this act of the sentry violated French territorial supremacy, Germany disowned and apologised for it and paid a sum of 50,000 francs to the widow of the deceased as damages. The sentry, however, escaped punishment because he proved that he had acted in obedience to orders which he had misunderstood.
(2) On November 26, 1906, Hasmann, a member of the crew of the German gunboat Panther,[259] at that time in the port of Itajahi in Brazil, failed to return on board his ship. The commander of the Panther sent a searching party, comprising three officers in plain clothes and a dozen non-commissioned officers and soldiers in uniform, on shore for the purpose of finding the whereabouts of Hasmann. This party, during the following night, penetrated into several houses, and compelled some of the residents to assist them in their search for the missing Hasmann, who, however, could not be found. He voluntarily returned on board the following morning. As this act violated Brazilian territorial supremacy, Brazil lodged a complaint with Germany, which, after an inquiry, disowned the act of the commander of the Panther, formally apologised for it, and punished the commander of the Panther by relieving him of his command.[260]
[259] See R.G. XIII. (1906), pp. 200-206.
[260] Another example occurred in 1904, when the Russian Baltic Fleet, on its way to the Far East during the Russo-Japanese war, fired upon the Hull Fishing Fleet off the Dogger Bank; see below, [vol. II. § 5].
(3) On July 15, 1911, while the Spanish were in occupation of Alcazar in Morocco, M. Boisset, the French Consular Agent, who was riding back to Alcazar from Suk el Arba with his native servants, was stopped at the gate of the town by a Spanish sentinel. The sentinel refused to allow him to enter unless he and his servants first delivered up their arms. As M. Boisset refused, the sentinel barred the way with his fixed bayonet and called out the guard. M. Boisset's horse reared, and the sentinel thereupon covered him with his rifle. After parleying to no purpose with the guard, to whom he explained who he was, the French Consular Agent was conducted by an armed escort of Spanish soldiers to the Spanish barracks. A native rabble followed upon the heels of the procession and cried out: "The French Consular Agent is being arrested by the Spaniards." Upon arriving at the barracks M. Boisset had an interview with a Spanish officer, who, without in any way expressing regret, merely observed that there had been a misunderstanding (equivocacione), and allowed the French Consular Agent to go his way. It is obvious that, as Consuls in Eastern non-Christian countries, Japan now excepted, are exterritorial and inviolable, the arrest of M. Boisset was a great injury to France, which lodged a complaint with Spain. As promptly as July 19 the Spanish Government tendered a formal apology to France, and instructed the Spanish Commander at Alcazar to tender a formal apology to M. Boisset.
But it must be specially emphasised that a State never bears any responsibility for losses sustained by foreign subjects through legitimate acts of administrative officials and military and naval forces. Individuals who enter foreign territory submit themselves to the law of the land, and their home State has no right to request that they should be otherwise treated than as the law of the land authorises a State to treat its own subjects.[261] Therefore, since the Law of Nations does not prevent a State from expelling aliens, the home State of an expelled alien cannot request the expelling State to pay damages for the losses sustained by the expelled through his having to leave the country. Therefore, further, a State need not make any reparation for losses sustained by an alien through legitimate measures taken by administrative officials and military forces in time of war, insurrection,[262] riot, or public calamity, such as a fire, an epidemic outbreak of dangerous disease, and the like.
[261] Provided, however, such law does not violate essential principles of justice. See below, § [320].
IV STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS
See the literature quoted above at the commencement of § [148], and especially Moore, VI. §§ 1019-1031.
Vicarious in contradistinction to original State Responsibility for Acts of Private Persons.
§ 164. As regards State responsibility for acts of private persons, it is first of all necessary not to confound the original with the vicarious responsibility of States for internationally injurious acts of private persons. International Law imposes the duty upon every State to prevent as far as possible its own subjects, and such foreign subjects as live within its territory, from committing injurious acts against other States. A State which either intentionally and maliciously or through culpable negligence does not comply with this duty commits an international delinquency for which it has to bear original responsibility. But it is practically impossible for a State to prevent all injurious acts which a private person might commit against a foreign State. It is for that reason that a State must, according to International Law, bear vicarious responsibility for such injurious acts of private individuals as are incapable of prevention.
Vicarious responsibility for Acts of Private Persons relative only.
§ 165. Now, whereas the vicarious responsibility of States for official acts of administrative officials and military and naval forces is unlimited and unrestricted, their vicarious responsibility for acts of private persons is only relative. For their sole duty is to procure satisfaction and reparation for the wronged State as far as possible by punishing the offenders and compelling them to pay damages where required. Beyond this limit a State is not responsible for acts of private persons; there is in especial no duty of a State itself to pay damages for such acts if the offenders are not able to do it.
Municipal Law for Offences against Foreign States.
§ 166. It is a consequence of the vicarious responsibility of States for acts of private persons that by the Criminal Law of every civilised State punishment is severe for certain offences of private persons against foreign States, such as violation of ambassadors' privileges, libel on heads of foreign States and on foreign envoys, and other injurious acts.[263] In every case that arises the offender must be prosecuted and the law enforced by the Courts of Justice. And it is further a consequence of the vicarious responsibility of States for acts of private persons that criminal offences of private persons against foreign subjects—such offences are indirectly offences against the respective foreign States because the latter exercise protection over their subjects abroad—must be punished according to the ordinary law of the land, and that the Civil Courts of Justice of the land must be accessible for claims of foreign subjects against individuals living under the territorial supremacy of such land.
[263] As regards the Criminal Law of England concerning such acts, see Stephen's Digest, articles 96-103.
Responsibility for Acts of Insurgents and Rioters.
§ 167. The vicarious responsibility of States for acts of insurgents and rioters is the same as for acts of other private individuals. As soon as peace and order are re-established, such insurgents and rioters as have committed criminal injuries against foreign States must be punished according to the law of the land. The point need not be mentioned at all were it not for the fact that, in several cases of insurrection and riots, claims have been made by foreign States against the local State for damages for losses sustained by their subjects through acts of the insurgents or rioters respectively, and that some writers[264] assert that such claims are justified by the Law of Nations. The majority of writers maintain, correctly, I think, that the responsibility of States does not involve the duty to repair the losses which foreign subjects have sustained through acts of insurgents and rioters. Individuals who enter foreign territory must take the risk of an outbreak of insurrections or riots just as the risk of the outbreak of other calamities. When they sustain a loss from acts of insurgents or rioters, they may, if they can, trace their losses to the acts of certain individuals, and claim damages from the latter before the Courts of Justice. The responsibility of a State for acts of private persons injurious to foreign subjects reaches only so far that its Courts must be accessible to the latter for the purpose of claiming damages from the offenders, and must punish such of those acts as are criminal. And in States which, as France for instance, have such Municipal Laws as make the town or the county where an insurrection or riot has taken place responsible for the pecuniary loss sustained by individuals during those events, foreign subjects must be allowed to claim damages from the local authorities for losses of such kind. But the State itself never has by International Law a duty to pay such damages.
[264] See, for instance, Rivier, II. p. 43; Brusa in Annuaire XVII. pp. 96-137; Bar in R.I. 2nd Ser. I. (1899), pp. 464-481.
The practice of the States agrees with this rule laid down by the majority of writers. Although in some cases several States have paid damages for losses of such kind, they have done it, not through compulsion of law, but for political reasons. In most cases in which the damages have been claimed for such losses, the respective States have refused to comply with the request.[265] As such claims have during the second half of the nineteenth century frequently been tendered against American States which have repeatedly been the scene of insurrections, several of these States have in commercial and similar treaties which they concluded with other States expressly stipulated[266] that they are not responsible for losses sustained by foreign subjects on their territory through acts of insurgents and rioters.
[265] See the cases in Calvo, III. §§ 1283-1290.
[266] See Martens, N.R.G. IX. p. 474 (Germany and Mexico); XV. p. 840 (France and Mexico); XIX. p. 831 (Germany and Colombia); XXII. p. 308 (Italy and Colombia); and p. 507 (Italy and Paraguay).
The Institute of International Law has studied the matter and has proposed[267] the following Règlement concerning it:—
[267] At its meeting at Neuchâtel in 1900; see Annuaire, XVIII. p. 254.
(1) Independently of the case in which indemnities are due to foreigners by virtue of the general laws of the country, foreigners have a right to compensation when they are injured as to their person or as to their property in the course of a riot, of an insurrection, or of a civil war:
(a) When the act from which they have suffered is directed against foreigners as such in general, or against them as under the jurisdiction of a certain State, or
(b) When the act from which they have suffered consists in closing a port without due and proper previous notification, or in retaining foreign ships in a port, or
(c) When the injury is the result of an act contrary to the laws committed by a government official, or
(d) When the obligation to compensate is established by virtue of the general principles of the law of war.
(2) The obligation is equally well established when the injury has been committed (No. 1, a and d) on the territory of an insurrectionary government, whether by this government itself, or by one of its functionaries.
On the other hand, certain demands for indemnity may be set aside when they concern facts which occur after the government of the State to which the injured person belongs has recognised the insurrectionary government as a belligerent Power, and when the injured person has continued to keep his domicile or his habitation on the territory of the insurrectionary government.
As long as the latter is considered by the government of the person alleged to be injured as a belligerent Power, the demand may only be addressed, in the case of paragraph 1 of article 2, to the insurrectionary government and not to the legitimate government.
(3) The obligation to compensate disappears when the injured persons are themselves a cause of the event which has brought the injury.[268] Notably no obligation exists to indemnify those who have returned to the country or who wish to give themselves up to commerce or industry there, when they know, or ought to know, that troubles have broken out, nor to indemnify those who establish themselves or sojourn in a country which offers no security on account of the presence of savage tribes, unless the government of the country has given express assurance to immigrants.
[268] For example, in the case of conduct which is particularly provocative to a crowd.
(4) The government of a Federal State composed of a certain number of smaller States, which it represents from an international point of view, may not plead, in order to avoid the responsibility which falls upon it, the fact that the constitution of the Federal State does not give it the right to control the member-States, nor the right to exact from them the discharge of their obligations.
(5) The stipulations mutually exempting States from the duty of giving their diplomatic protection ought not to comprise the cases of refusal of justice, or of evident violation of justice or of International Law.[269]
[269] The Institute of International Law has likewise—see Annuaire, XVIII. pp. 253 and 256—expressed the two following vœux:—
(a) The Institute of International Law expresses the wish that the States should avoid inserting in treaties clauses of reciprocal irresponsibility. It considers that these clauses are wrong in exempting States from the fulfilment of their duty of protecting their nationals abroad and of their duty of protecting foreigners on their territory. It considers that the States which, on account of extraordinary circumstances, do not feel themselves at all in a position to assure protection in a sufficiently efficacious manner to foreigners on their territory, can only avoid the consequences of this condition of things by temporarily prohibiting foreigners to enter their territory.
(b) Recourse to international commissions of inquiry and to international tribunals is in general recommended for all differences which may arise on account of injury to foreigners in the course of a riot, an insurrection, or of civil war.