(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.