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: