Committee of Experts for the Progressive Codification of International Law. · 2015. 7. 8. · Committee of Experts for the Progressive Codification of International Law. QUESTIONNAIRE

[Communicated to the Council, the

Members of the League and

other Governments.]

C. 46. M. 23 .1926. v .

[C. P. D. I. 56]

Geneva, February 9th , 1926.

LEAGUE OF NATIONS

Committee of Experts for the Progressive Codification

of International Law.

QUESTIONNAIRE No. 4

adopted by the Committee at its Second Session, held in January 1 9 2 6 .

RESPONSIBILITY OF STATES FOR DAMAGE DONE IN THEIR TERRITORIES TO THE PERSON OR PROPERTY OF FOREIGNERS.

The Committee is acting under the follow ing term s of reference 1 :

(1) To prepare a provisional list of th e subjects of international law the regulation of which by international agreem ent w ould seem to be m ost desirable and realisable a t the present m om ent;

(2) After com m unication of the list by the Secretariat to the G overnm ents of S tates, whether Members of the League or not, for their opinion, to exam ine the replies received; and

(3) To report to the Council on the questions w hich are sufficiently ripe and on the procedure which m ight be followed w ith a v iew to preparing eventually for conferences for their solution.

The Committee has decided to include in its list the follow ing subject:

"Whether and, if so, in w hat cases a S tate m ay be held responsible for dam age done in its territory to the person or property of foreigners.”

On this subject the C om m ittee has the honour to com m unicate to th e G overnm ents a report presented to it by a Sub-C om m ittee 2, consisting of M. G u e r r e r o , Rapporteur, and M. W a n g Chung-H u i 3.

The nature of the general question and of the particular questions involved in it appears from this report. T he report contains a sta tem en t of one theory as to the principles governing Mate responsibility in the m atters considered and of th e particular solutions derived from these principles. The Com m ittee considers that this sta tem en t indicates the questions to be resolved or the purpose of regulating the m atter b y international agreem ent. A ll these questions are subordinate to the larger question , nam ely :

“Whether and in w hat cases a State is responsible for dam age suffered b y foreigners within the territories under its jurisdiction and to w hat ex ten t the conclusions of the Sub- Committee should be accepted and em bodied in a convention betw een States. ”

, v?ej? e Asse™bly Resolution adopted September 22nd, 1924.1, -*->e Visscher was also appointed on th is Sub-Comm ittee but he was unfortunately prevented from taking any

,m preparation of the report.*Me t t Wang Chung-Hui signed the original text of the Sub-Committee’s report. Having unfortunately not been docum a ttenc . *ke session of the Committee of Experts, he is not responsible for the actual text as annexed to the present CommitteettliS text contamillg certain amendments made by the Rapporteur in consequence of the discussion in the

lA) 850 lF) 2 /26, Kuodi*- Publications of the League of Nations

V. LEGAL 1926. V. 3.

i t is understood th at, in subm itting th e present subject to the Governm ents, the Com mitte does not pronounce either for or against the general principles of responsibility set out in the report or the solutions for particular problem s which are suggested on the basis of these principles; A t the present stage of its work it is not for the Com m ittee to put forward conclusions of th is nature. Its sole, or at least its principal, task at present is to direct attention to certain subjects of international law the regulation of which by international agreem ent m ay be considered to be desirable and realisable;

In doing this, th e C om m ittee should doubtless not confine itself to generalities but ought tb put forward the proposed questions w ith sufficient detail to facilitate a decision as to the desira­b ility and possib ility of their solution. The necessary details are to be found in the conclusions of M. Guerrero’s r e p o r t1.

In the sam e spirit, the Com m ittee begs to refer to M. Guerrero’s report for the details when it subm its to the Governm ents the following question, which is closely related to the main question brought to their attention above.

“W hether and, if so, in w hat term s it would be possible to frame an international con­vention w hereby facts w hich m ight involve the responsibility of States could be established and prohibiting in such cases recourse to m easures of coercion until all possible means' of pacific settlem ent have been exhausted".

In order to be able to continue its work w ithout delay, the Com m ittee will be grateful to be put in possession of the replies o f the G overnm ents before October 15th, 1926.

The Sub-C om m ittee’s report is annexed.

Geneva, January 29th, 1926.

(S ign ed) H j. L. H a m m a r sk jô l d ,

Chairman of the Committee of Experts.

V a n H a m e l ,

Director of the Legal Section of the Secretariat.

1 See page 14.

Annex.

C. P. D. I. 24 (revised).

REPORT OF THE SUB-COMMITTEE;

M. G u e r r e r o , Rapporteur.

M. W a n g C h u n g H u i .1

1. Whether and, if so, in what cases a State may be held responsible for damage clone in its territory to the person or property of foreigners.

2. Whether and, if so, in what terms it would be possible to frame an international convention whereby facts which might involve the responsibility of States could be established, and prohibiting in such cases recourse to measures of coercion until all possible means of pacific settlement have been exhausted.

[Translation.]

Before considering the* question of th e international responsibility of States for dam age done to foreigners, we th ink it will be advisable to exam ine not on ly the genesis of international law but the history of its grow th, which is to ta lly unlike th at of national law.

Our inclination to do so is strengthened b y th e fact th a t-th e question itse lf— in the form in which it is sta ted — m ight be regarded as a contradiction in term s, because it refers in the same breath to international responsibility , w hich can on ly arise out of the vio lation of an inter­national d u ty , and dam age caused to individuals, w hich is exclu sively a question of dom estic law.

In making th is prelim inary survey, w e shall rely on the data provided b y legal researches which have been successfu lly conducted w ith in the la st few years, principally b y the Germanand Italian schools.

I.

For many years the juridical nature of international relations was denied b y a num ber of authorities, but now th e contrary v iew is alm ost universally accepted and is assum ing definite shape as a legal doctrine.

The m odem conception , how ever, is b y no m eans founded on an idea substitu ted for that of jus naturale. I t is th e outcom e of a logical sequence of scientific investigations ; the result of a careful study of th e various stages of the evolu tion of international law.

The absolute need of social intercourse created a need for law , th a t is to say , a set of standards to which the whole com m unity had to conform . Indeed, it is im possible to conceive of any community, how ever sm all, w ithout m eans of com pelling its m em bers to conform to its rules. These rules are determ ined b y the nature of the relations betw een individuals, and b y an equitable adjustment of the services th ey render. T he com pelling force which binds together the various individual interests of a com m unity becom es a rule of law as soon as it engenders rights and duties.

In relations betw een S tates, rules are the result of the w ill to create a social order governed °y laws applicable to all.

So long as every S tate led an isolated existence, there could be no co-ordination of m utual relations. It was not until S tates realised th a t th ey had interests in com m on th a t th ey organised themselves into an international com m unity. In so doing, how ever, th ey did not sacrifice their individuality. T hey m erely com bined their several w ills in one com m on w ill and thus created aw. This law is superior to a ll others, because it is th e sum to ta l of the w ills o f all nations, and

e wiM °f each nation is itse lf superior to the w ill of the individual.. International law, thus established w ith all its juridical standards, dom inates the will ol individual States and governs the relations of th e w hole fam ily of peoples in a m anner so un- oubtedly binding that no S tate can disregard it. The authority of each State is subordinate to the

is f 1 aUthonty °* the international com m unity . The binding character of international law s 0unded on the free consent of States thereto— the consent of a ll S tates and not m erely the o K ^ t °*.some- In other words, th e unilateral w ill o f one S tate or the co llective w ill o f a number

tates is not sufficient to create legal rules binding on the w hole com m unity of States, will f e*n ^es the fundam ental difference betw een national law and international law. The1 the individual S ta te is all-pow erful in the creation of the former, but it cannot create the

, er Only as a m anifestation of th e co llective w ill of all States can international law assum eaugible, positive and objective form.

___ n endeavouring, therefore, to ascertain th e existence of an international responsibility out we shall discuss later— we m ust not look to find th e duties from w hich it derivesStat t le boundaries of th a t international law which has been form ed b y the w ills of separate

es c°alescing in one single will.

See note 3 on preceding page.

The com m on w ill to estab lish som e g iven rule as a legal international norm is expressed by form al or tacit agreem ent betw een the nations. Such agreem ent m ay or m ay not be in writing ; but in either case, if it is carried out in practice, it is none the less th e expression of a w ill which is destined to govern the m utual relations of the States. W hether it be termed a treaty or an international usage, w hether it be founded on a Vereinbarung betw een States—as the German school w ould call i t — or on international custom , the agreem ent is equally positive and binding. It is a m anifestation of a com m on w ill and it em bodies a ll the elements which characterise international legal rules. The force and authority o f this w ill is equally valid, how­ever it m ay be exp iessed : so m uch so, indeed, th a t th e translation of a rule o f custom ary law into w ritten law neither m odifies its nature nor increases its value ; for instance, th e violation of the im m unity of d ip lom atic agents is not rendered one w hit more or less serious b y the fact that such im m unity has or has not been form ally recognised in a treaty.

I t is none th e less obvious th at all treaties and usages m ust be regarded as sources of positive law , but no trea ty or custom betw een tw o States can b e held to be a source of law if it is in opposition to th e w ill of the other States which form part of the com m unity of peoples.

In our report, therefore, we shall constantly make use of th is criterion of a collective will as evidence of the existence or non-existence of international responsibility. We shall thus avoid the old p itfa ll which has so often proved fa ta l to others who, after wandering far from the dom ain of international law, have sought to regain their foothold b y grasping at ideas and notions which belong to quite a different sphere.

As w e have shown, th e b od y of law established b y the w ill of international society is the on ly law w hich can govern the m utual relations of States, in other words, the rights and duties which States have accorded to or im posed upon them selves in their relations inter se. The violation of any of these rights involves the international responsibility of the offending State. C onsequently, th e injured State is alone en titled to com plain. Under th is system , States alone possess international rights and duties.

Individuals do not com e w ithin its scope. T h ey m ove on a lower plane, where their lives are regulated in accordance w ith standards set up b y a single will— th e w ill o f the State. In their ow n sphere individuals possess rights and duties and can accordingly incur responsibility, or, correlatively, invoke th e responsibility of the S tate to w hich th e y belong. This body of rules, w hich governs the rights, duties and responsibilities of a S tate and of the individuals under its jurisdiction, constitu tes dom estic law , which is different in every respect and circumstance from international law.

According to the above definitions, therefore, the individual is not a subject of international law , and the v io lation of a rule of international law does not involve the individual in any responsibility.

Sim ilarly, as international law im poses duties on State , only the ind ividual is incapable of com m itting an offence against that law.

A ny other in terpretation w ould be tan tam ou n t to reverting to universal relations under the jus naturale, w hich is contrary to the system of positive international law.

C onsequently in the present state of international law , as it ought to be defined, we can no longer adm it th e expressions which are still com m only used— of “international rights and duties of ind iv iduals” or "offences com m itted b y individuals against the law of nations”— which are to be found in several treaties and legislations. The S tate is no more capable of violating the international rights of a foreigner— for the foreigner possesses no international rights— than the individual is capable of disregarding international obligations.

The error in question is due to an inexcusable confusion betw een national law and inter­national law ; betw een the law which governs the relations of th e individual to th e State and that which governs the relations of th e State to other States. I t w ould am ount to regarding individuals as subjects whereas th ey are on ly objects.

This erroneous interpretation is often m et w ith in international practice when claims are made for dam age done to foreigners. The State which m akes th e claim , instead of doing so onits own behalf, com es forward as m andatory of the person w ho has suffered the damage.

The true rule should be that the individual m ay invoke the responsibility, under domestic law, of the State in which he resides; but that international responsibility m ay on ly be invoked by States.

II

After thus briefly exam ining the foundations of international law and one of the differences between dom estic responsibility and international responsibility, it w ill be easier for us to deal wi the first part of the question raised in I.

F irst Question.

W h e t h e r a S t a t e m a y b e h e l d r e s p o n s i b l e f o r D a m a g e d o n e i n i t s T e r r i t o r y to the

P e r s o n o r P r o p e r t y o f F o r e i g n e r s .

, ... The responsibility which we have to determ ine is international responsibility, i-e-> resp0 111 y resulting from the violation of international law. W e have seen th at international laW 15

utcome of a collective will. W e shall next seek to ascertain the circum stances in w hich such a 0Collective will has been form ed as regards th e reciprocal rights and duties of S tates in the m atter of the protection of nationals abroad.

This will, which is the creative force of in ternational law, was first m anifested w hen the inter­national com m unity cam e in to being. S ta tes then realised th a t they had com m on interests which could only be harm onised b y th e rational organisation of inter-State relations. The com m unity once formed, new States are adm itted to it b y an act of h igh im portance, and the com m unity, which has already observed the pre-natal grow th of the new State, exam ines its legal capacity, and is only ready to grant recognition if the new S tate can in return offer satisfactory guarantees. For its part, the new member, b y the very fact o f its recognition, is com m itted to the observation of its international duties.

To discover these duties, and their correlative rights, we m ust go back to one of th e tw o sources of international law : treaties, or custom ary law. Doctrine on ly m erits relative considera­tion as a means— som etim es a satisfactory m eans— of throw ing further light on juridical rules and rendering their formation easier. D octrine as a creative source of law has even less force than the unilateral will of States. I t has no power to determ ine w hat is the unanim ous w ill of nations. It may, however, become law b y its incorporation in international practice; but in th at case the source of such law is custom and n ot doctrine.

As regards the protection of foreigners, custom ary law lays dow n certain rules which clearly express the definite w ill o f States regarding th e rights w hich th ey agree to accord to foreigners, the manner in which foreigners are t o be treated, the m ethod of determ ining the State which is responsible for their protection, and the m eans o f ensuring such protection.

It will be of interest to exam ine these rules because w e shall have to revert to them every tim e we seek to establish the con stitu tive e lem ents o f an international responsibility. W e shall summarise the rules, briefly, in order to remain w ith in th e lim its of our task.

1. Rights. — Som e rights are n ot rights created b y States for the benefit o f their nationals oi of foreigners ; nam ely, th e right to life , the right to lib erty and the lig h t to own property. The community has sim ply recognised the ex istence of th ese rights and States have m utually undertaken to ensure the possib ility o f enjoying them .

This undertaking is so nearly universal th a t m any authors have been unable to resist the temptation to regard these rights as international lig h ts of th e individual. B ut in so doing th ey have committed the fundam ental erroi of attributing to the individual a character which he does not possess—th ey have m ade h im a subject of in ternational rights and duties.

In speaking of rights, therefore, we m ean that these individual rights ought to be recognised by all nations. In fact, w herever a m an goes he takes h is rights with him , and wherever he is it is the will of all States th a t these rights should be safeguarded. Before these rights, nationality sinks into the background, because th ey belong to th e m an as a hum an being, and are not, accord­ingly, subordinate t o the w ill o f the State.

This, however, is not equ ivalent to sta tin g th a t th e undertaking to safeguard these rights constitutes an absolute guarantee against an y action to the prejudice of such rights, or that the State is responsible for any infringem ent of such rights. Their recognition sim ply implies the duty of surrounding the individual, w hether he be a n ational oi a foreigner, with adequate m eans for defending them.

2. Treatment. — H ere a lso th e w ill o f the com m u n ity of peoples is clearly defined. It accepts the above-m entioned rights as being th e m inim um which a State should accord to foreigners in its territory, but it does n ot thereby recognise the right to claim for the foreigner more favourable treatment than is accorded to nationals. The m axim um th at m ay be claim ed for a foreigner is civil equality w ith nationals. This does not m ean th a t a S tate is obliged to accord such treatm ent to foreigners unless th at obligation has been em bodied in a treaty. W e thereby infer th at a State goes beyond the d ictates o f its d u ty w hen it offers foreigners a treatm ent sim ilar to th a t accorded to its nationals. In any case, a S tate owes nothing m ore than th at to foreigners, and any preten­sion to the contrary w ould be inadm issible and unjust both m orally and juridically.

3- The Protector State. — N oth ing can be more logical than the desire of States to have it laid down that protection m ust be afforded exclu sively b y the S tate in the territory of which the foreigner happens to be.

This is easy to explain . P io tectio n involves certain positive acts th at can on ly be performed bythe State possessing th e sovereignty. A ny d u a lity o f so v e ie ig n ty w ould be inconceivable, for °ne sovereignty w ould exclude the other. The w ill o f the States, in th is m atter, m a y be adequately ^pressed as follows : N o trespassing on the sovereignty of another, and no renunciation, in however

a degree, of th is essentia l prerogative.Dual protection w ould, moreover, constitute a tw ofold and unjust in equality — first, from

e Point of view of the nationals of the S tate in w hich th e foreigner resides, who are only protected y their own State; and secondly, from the point of view of the foieigner's co-nationals, who <jmam in the home country. A person leaving h is country, and thus depriving it of h is personal

nf0lj ’ wou* possess the privilege of being protected b oth b y the State of origin and the State01 adoption.

, 4- Methods of a f fo rd in g Protection. — A s to m ethods, the w ill of the international com m unitys not been expressed in positive term s. I ts d u ty is to protect foreigneis, b u t not to determ ine e methods to be em ployed.

The n 0t^er wor( s> every S tate is free to select its own w ays and m eans of affording protection, in wV^011 ^°r *s obvious. The affording of protection is an elem ent of national law, a field

lcn the w ill of the S ta te is the suprem e arbiter. I t adm its of no interm ediary.

Nevertheless, the general m eans em ployed are alm ost everyw heie the sam e: the laws and organs of the State. There is no other w ay of ensuring the observance of a d u ty involving a series of acts which are them selves subject to decrees of the State.

The State, however, rem ains free to organise its internal existence as it th inks best. What is required of the State is the fulfilm ent of the international duty : how it does so matters little

B u t, although the State is perfectly free to select w hat m ethods it prefers for the protection of foreigners w ithin its territory, it is not free to restrict its responsibility to cases of violation of the arrangem ents which it has made. R esponsib ility m ay be incurred b y failure to adopt m ethods which should have been adopted or b y the inadequacy of the m ethods actually adopted.

The above considerations w ill help us to form ulate an answer to the first question asked. States are bound to conform to definite rules of conduct in respect of foreign nationals within their territory. If these rules are violated, and if, in certain circum stances, damage is thereby caused to such foreigners, th e S tate in question m ay be held responsible to the State of which the foreigners are nationals.

W e say “ in certain circum stances ", because dam age does not per se im p ly international responsibility. For international responsibility to exist, the dam age m ust be the result of a violation , b y the State itself, of some international rule. Such v io lation m ay be positive or negative. It is positive when the State com m its an unlaw ful act, contrary to international law ; if, for instance, b y a national law, it declares property owned b y foreigners in its territory to be State property, w ithout granting any com pensation. It is negative w hen the State omits to fulfil a positive d u ty : for instance, when it fails to provide a judicial organ before which foreigners m ay defend their rights.

In both cases, the S tate has failed to fulfil an obligation which it voluntarily and freely assum ed as a member of the international com m unity— th e obligation to accord to the individual certain rights, including the m eans of defending these rights. The S ta te of which that individual is a national is wronged, in th e first case b y an act contrary to international law , and in the second case b y an om ission to fulfil an international duty. The responsibility is, therefore, international, because the act, or the om ission, is to be la id at the door of the State itself.

Nevertheless, in order to establish international responsibility beyond doubt, care should be taken to ascertain that an international right does ex ist, and th at it is not merely a case of som e dam age— no m atter w hat— having been suffered b y a foreigner.

The sam e act m ay, according to circum stances, be contrary to international law, or quite unconnected w ith international law. For instance, if a S tate were bound b y treaty to grant to the nationals of another S tate treatm ent as favourable as th at which its dom estic legislation accorded to its own nationals, an y infringem ent of th is rule w ould involve the international responsibility of the former State. An illegal act w ould be im putable to th a t State. But, if no such trea ty obligations had been incurred, no responsibility could be invoked, because the other source of international law— custom ary law — does not im pose th is obligation.

W hen we speak of an illegal act com m itted b y th e State, we m ean an act done by the organs through which the State perform s its functions and which enable it to fu lfil its international duties.

E very one of these organs, whether it be legislative, adm inistrative or judicial, can commit an illegal act, contrary to the rights of another State, im putable to the State to which the organs belong, and consequently involving th at S tate’s responsibility.

Should any act or om ission, in the circum stances m entioned above, cause dam age to foreigners, international responsibility w ould arise, not b y reason of the dam age suffered, but because of an infraction of international obligations w hich the S tate was bound to fulfil. In the case now under consideration the obligation arises from th e fact th a t S tates are bound to afford protection to foreigners under their jurisdiction.

W e say “ under their jurisdiction ”, and b y th is we m ean th at protection m ust be afforded in all territories over which the State exercises its sovereignty, though it cannot be afforded outside these lim its. Consequently, a State is bound to fulfil th is obligation in its colonies and protectorates, but is not bound to do so in an y part of its colonies or territories which may, tem porarily or finally, have ceased to be subject to its sovereignty.

In the latter case, the duty of protection w ould devolve on the S tate occupying such territory'In com posite States, the infraction of an international rule b y one of the component States

of th e federation involves th e responsibility of the central power, w hich represents the State in its international relations. The central power m ay not advance the argum ent that the com­ponent State is autonom ous; it cannot, any more than a centralised State, plead the in d e p e n d e n c e

and autonom y of authorities of a member State in order to avoid responsibility for, say, some legislative act. An argum ent of th is kind, which m ight be admissible in dom estic law, is inadmis­

sible in international law, because, as regards relations betw een States, the com m unity of nations only recognises the authorities which represent a State in external affairs.

As regards com posite States, the question has been satisfactorily settled in Article 4 of the R egulations adopted b y the Institute of International Law at its session of September iot , 1900, where it is laid down th at " the governm ent of a federal State com posed of a c e r t a i n number of sm all States, which it represents from an international point of view , m ay not plead, in order to avoid the responsibility resting upon it, the fact th a t the con stitu tion of the federal Sta e

oes not give it the right to control the mem ber States, nor the right to exact from them discharge of their obligations ”,

— 7

III.

Second P a r t of the F irs t Question.

In what Ca s e s a S t a t e m a y b e h e l d r e s p o n s i b l e f o r D a m a g e d o n e i n i t s T e r r i t o r y to t h e P e r s o n o r P r o p e r t y o f F o r e i g n e r s .

The foregoing considerations w ill be o f great help to us in determ ining the lim its of inter­national responsibility in individual cases, w ith ou t having recourse to obsolete ideas or concep­tions based on analogies derived from dom estic law.

It is particularly im portant, in th e codification of international law, to steer resolutely clear of all conceptions which w ould tend to augm ent th e responsibility of S tates b y incorporating in international law principles drawn from dissim ilar and even contrary sources.

Such tendencies have prejudiced the cause of international law and have increased rather than reduced the num ber of international disputes. W e m ust be careful to avoid all exaggera­tion, as this m ight constitu te a lasting and serious m enace to friendly international relations. We must always consider the inter-State w ill, the on ly force that can create international law, and must refuse to adm it responsibility w henever international opinion is divided or doubtful.

This will certain ly be a prudent attitude to adopt, a ll the more so because States, as at present organised, possess in them selves th e necessary m eans for rendering the protection of foreigners effective.

It is in the light of these observations that we shall now proceed to consider the various circumstances which m ay cause dam age to foreigners and w hich m ay or m ay not involve inter­national responsibility.

Political Crimes committed against Foreigners in the Territory of a State.

Political crime is the m ost serious case w hich can arise, since international law requires a higher form of protection for th e foreigner who represents h is State officially.

This crime, however, w ould not in itself con stitu te a vio lation of international law. Men, whether they are public officials or not, w ill alw ays be exposed to the risk of injury and damage. It was obviously n ot the in tention of the international com m unity th at the representative character of an individual should render h im im m une from ordinary m isadventure.

Nevertheless, States have undertaken to exercise greater vigilance over these persons than th ey do over p rivate individuals. T h ey are also bound to take special steps to forestall any assault against the persons of foreign representatives and to d isplay particular energy in pursuing the criminals and ensuring the proper course of justice.

Only if a State neglects these duties, or fails to act w ith all due diligence and sincerity, w ill its conduct involve an international responsibility.

This question has already been exam ined and skilfully settled b y a special Com m ittee of Jurists appointed by the Council of the League of N ations on Septem ber 28th, 1924.

The question w as defined as follow s :

"In what circum stances and to w hat ex ten t is the responsibility of a State involved b y the commission of a political crim e in its territory ? "

The reply of the C om m ittee of Jurists was:

“The responsibility of a S ta te is on ly in vo lved b y the com m ission in its territory of a political crime against the persons of foreigners if the S tate has neglected to take all reason­able measures for the prevention of the crim e and th e pursuit, arrest and bringing to justice of the criminal.

“The recognised public character of a foreigner and the circum stances in which he is present in its territory entail upon th e S tate a corresponding d u ty of special v ig ilance on h is behalf. ”

This method of defining the international d u ty of a S ta te and determ ining the lim its of its responsibility is entirely in keeping w ith the criterion which we suggested in Part I of this report.. j*35 never been the in tention o f S ta tes them selves to guarantee the invio lab ility of individual

rignts or to assume responsibilities w hich belong to others. T hey have sim ply undertaken to j ,e such dom estic arrangem ents as w ill ensure th at foreigners shall find in their territory the

,e a~ye security afforded b y good internal organisation and the existence of appropriate organs or repression and judgm ent of crime.

wh' ! i ° f the obligation, and of the consequent responsibility, should im pel the Stateten has suffered as a result of the crime to adopt an extrem ely prudent attitude tow ards the v.e lr* which the crime w as com m itted or attem pted . R esponsibility cannot b e established

crim 1 enquiry has been conducted in to the facts of the case. Therefore, as regards political es committed against strangers, w e propose the adoption of the tex t which was given above.

Illegal Acts of Officials.

belon 6 *laVe that officials, to w hatever branch of the national adm inistration th ey m ay g. are organs of the S ta te and their acts are consequently to be regarded as acts of the State.

I t is indeed through its officials that the S tate exercises protection. The obligation to provide officials has not been contracted in so definite a form as we have stated it, since international lâc­has created the d u ty w ithout laying down rules for its application. B ut, since the State is an abstract en tity , it m ust, in order to find expression, provide itself w ith organs wherewith to exercise its powers.

Again, though it is perfectly true that the S tate is not bound to possess any specified organ it is none th e less under an obligation to set up all th e organs which it requires to fulfil its inter­national duties.

T he first question w hich now arises is whether all acts of officials should b e regarded as acts of the State. Our answer is in the negative, and we draw a d istinction betw een acts accomplished b y officials w ith in the lim its of their com petence and acts which go beyond these lim its.

The former are tru ly acts of th e S tate and, if th ey are contrary to international law and adversely affect the rights of another State, th ey m ust certainly in volve the responsibility of the State to w hich th ey can definitely and indisputably b e ascribed. If, in these circumstances, a foreigner suffers dam age, it is for the State to m ake com pensation for such damage.

T he reason for th is is clear. W hen the official acts w ithin the lim its of h is competence, he is obeying a com m and of the State. If such com m and infringes a rule of international law, the State m ust be responsible, since the infringem ent m ust arise from the com m and being wrongful, either as going beyond th e rights of th e S ta te or as failing to satisfy a duty ow ed b y th e State.

In either case, the act of the official, though lawful from the point of v iew of domestic law, is an illegal act on the part of the State.

In order, however, for th e responsibility of a State to be really involved because a foreigner had suffered dam age through the fau lt of an official, and for the S tate of which the foreigner is a national to be entitled to consider itself wronged and to claim reparation, certain conditions must be fulfilled. These conditions are as follows : (i) the act accom plished b y the official within thescope of his official powers m ust be contrary to an international du ty; (2) the duty violated must be a legal and not m erely a m oral du ty; (3) the right invoked b y the injured State the violation of which has involved the dam age m ust be a p ositive right created b y treaty between the two States or b y custom ary law duly recognised as em anating from the collective w ill of States ; and(4) th e dam age m ust n ot be th e result of an act accom plished b y th e official in defending the rights of the State.

W hen these basic conditions have been fulfilled, the international responsibility becomes clearly established and th e State cannot plead the inadequacy of its laws. It has, indeed, incurred responsibility precisely because it has not foreseen the need of adequate legislation to enable it to fulfil its international duties. T hat is the m ain reason for the publication of treaties. By their publication treaties becom e law s w hich officials are bound to know and observe.

I f the act of the official is accomplished outside the scope of his competence, that is to say, if he has exceeded his powers, we are then confronted w ith an act which, juridically speaking, is not an act of the State. It m ay b e illegal, but, from the point of v iew of international law, the offence cannot be im puted to the State.

Those who seek to render States responsible for such acts are obliged to fa ll back on theories which are often ingenious b u t w hich h ave no place in international law . W e m ay quote, for instance, th e theory of culpa in eligendo or in custodiendo. This theory, like all the other faulty theories, is based on a presum ptio ju ris et de jure, which cannot be applied in international law.

Moreover, is any S tate so perfectly organised th at it can be certain of never making an error in choosing its officials or supervising their acts ? Can it even b e stated th at a m an will always conscientiously fulfil his duties and b e incapable of ever com m itting a wrongful act ?

Some persons assert that the existence of this responsibility is supported b y the numerous precedents to be found in the past h istory of international claims. I t w ould b e extrem ely dangerous to attribute any value to these precedents. P ositive international law cannot derive its strength from sources which are so exiguous and so conflicting.

A practice w hich is based on th e use of force cannot be described as international practice in the sense adm itted b y international law. On the contrary, for the sake of the law’s prestige, we should be careful to include in custom ary law only th a t which undeniably represents the definite w ill of all S ta tes com posing the international com m unity.

It wTould be inconceivable that States should, in their anxiety to protect foreigners, go so far as to guarantee these foreigners against a ll abuse of power on the part of the authorities and sub­stitu te international responsibility for individual responsibility.

Just as the act of the official, accom plished w ithin the lim it of h is com petence, is, from the point of view of international law, an act of the State, because it constitutes an application of the nationa law— no m atter whether such law be perfect or fau lty— so an irregularity on the part of an officia is an individual act, which is not w illed b y the State and m ay even be the result of malice on t e part of the official.

Although such cases should not be regarded as com ing w ithin the scope of international law, th e State is nevertheless bound to proceed in such a w ay as to obviate their occurrence as as possible, a n d to enable th e foreigner w ho has been wronged to take action against the offen en

• a- therefore place these cases in a higher category than unlaw ful acts c o m m i t t e d bvm îviduals who are not officials. A cts of private persons and acts of officials who exceed e powers are alike private acts, but we consider th a t the vigilance exercised by th e State shou more strict in the latter case.

Thus, w ith regard to acts of officials, international responsibility arises if a G overnm ent, being in fo rm ed th at an official is about to com m it an unlaw ful act against a national of a foreign State, does not take tim ely steps to prevent it ; 01 if, w hen the act has been com m itted , the G overn­ment does not hasten to v isit th e official in question w ith condign punishm ent under the national legislation ; or, again, if it fa ils to g ive effect to the proceedings which the injured foreigner is en titled to bring in conform ity w ith the S ta te ’s legislation.

Apart from these circum stances, a S tate cannot be held responsible under international law.

A cts of Private Persons.

I t is in this connection, more especially , th at a m ass of theory has been evolved w ith a view to proving that a S tate is internationally responsible for the acts of individuals subject to its jurisdiction. None of these theories w ill bear careful scrutiny.

In the first place, an a ttem p t has been m ade to resuscitate a mediaeval conception under w hich the body politic w as held to be responsible for the acts of its members. This conception, which may have been of som e service w hen a ll power w as concentrated in the hands of sovereigns, w ould be utterly inapt in the present position of the relations between th e S tate and the individuals under its jurisdiction.

Grotius took a step in the right direction by opposing to this theory the Rom an conception of culpa, b u t his view was still far from m eeting th e requirem ents of international law and defining the true function of m odern S ta tes in their international relations.

At the present tim e, th e postu late th at the S tate is not responsible for the acts of others has become a basic legal rule : indeed, if it were n ot so, the very foundations of the com m unity w ould be shaken.

The sovereigns, who were form erly identified w ith th e State, are no longer absolute m asters of everything w ithin their territory. The ind iv idual as w ell as the sovereign has a sphere of action proper to himself. H e has fu ll liberty of action and is responsible for his acts. The relation of one State to other S tates is the sam e as th a t of th e ind ividual to the State in which he resides. If one private person, be he national or foreigner, causes injury or wrong to another private person, be he national or foreigner, his act, being unlaw ful from the point of view o f dom estic law , en titles the injured party to take legal action in conform ity w ith the law of th e country.

We do not th ink it necessary to dw ell at any len gth on th is subject, as its im portance, from the point of view of international law , is slight. Should any doubt arise concerning wrongs due to the acts of private persons, it w ill be sufficient to refer to our definition of the violation of inter­national law and the nature and lim its of th e responsib ility of States in their m utual relations.

A cts performed in the Exercise of Judicia l Functions.

If there is one general principle concerning w hich there can be no discussion, it is respect for the majesty of the law. A s betw een self-respecting S tates, there can be n o greater insult than to question the good faith of m unicipal m agistrates in their adm inistration of justice.

There are certain other principles as unquestioned and as w idely observed as the above. For instance, the principle that all interference or claim to interfere w ith the regular course of justice in another S tate is tan tam ou n t to an a ttack on th a t S tate’s in ternal sovereignty.

Here we have certain legal standards, as categorical as th ey are precise, created b y the w ill of all countries as rules of conduct to be observed in all circum stances of the life o f the international community.

As regards the d u ty of affording judicial protection to foreigners, it is sufficient that th ey should be granted a legal status, w hich they can assert through appropriate law s and independent tribunals to which th ey are allow ed access on the sam e footing as nationals. Neither more norless.

The decisions of these tribunals m ust alw ays be regarded as being in conform ity w ith the law. ^one but a judge of the country is entitled to interpret th at country’s law. E ven if he m akes a mistake his judgm ent m ust be accepted ; the d ign ity of justice and th e character of modern S tatesdemand this.

The opinion that a S tate is not responsible for a judicial error com m itted b y its tribunals is so firmly implanted in the m inds of nations that legal publicists in all countries have criticised —and often very harshly criticised— the arbitral award under which D e Martens declared the

etherlands to be responsible for the judicial error com m itted b y its courts in the case of the ustralian vessel Costa R ica Packet.

This is equivalent to stating th at th e com m unity of nations adm its no appeal against judicial jurors other than that which the lex loci itself m ay afford to foreigners as w ell as nationals, and that,

no provision is m ade for appeal, both parties m ust acquiesce and cannot cla im to invoke any esponsibility at all on the part of the S tate in which th e case was heard.

wifttsf Same Pr*nciple m ust ap p ly to sentences which have been term ed “ unjust" or "manifestly

the could be more dangerous than to adm it the possib ility of rehearing, elsewhere than inthu°KUrt« country, a judicial decision alleged to b e contrary to justice. An opening w ould forS 6 a ,orried for abuses of every kind, for th e m ost serious vio lations of internal sovereignty and

countless international conflicts, anv are at present organised, each being bound to respect the institu tions of the others,inrlir . eaVour *-° create, a t a g iven m om ent, a special court having power to overrule th e national

ature would be unthinkable.We are ready to overset the one true basis o f international law— the co llective w ill of

We will not entertain th e supposition that States, when th ey entered the com m unity ,

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ever contem plated an abridgm ent of the d ign ity and authority of their own courts of law. T hat however, w ould b e the final result of rehearing a case where no provision for appeal existed under the legislation of the State concerned ; and y e t the advocates of the theory of international respon­sib ility , in connection w ith judicial decisions v itia ted b y manifest or flagrant injustice, would inevit­ably be led to provide for som e such re-hearing.

W here w ould they find a super-judge com petent to determ ine the existence of such injustice ? And, supposing th at they could discover such a personality, w hat w ould becom e of the principle of the equality of States, a principle on w hich the international com m unity is based, and which cannot be disregarded w ithout shaking the whole edifice to its foundations ?

Moreover, to adm it the possib ility of international proceedings being brought in another country, in opposition to the original lex loci, w ould be contrary to the international rule under which nationals of a foreign State cannot claim m ore favourable treatm ent than nationals. This would, however, b e the result if foreigners had an international appeal open to them in addition to the rem edies offered b y the national law.

W e should n ot continue this reasoning any further had not a number of m odern legal publicists unfortunately com e forward in favour of this view of international responsibility. We must therefore persist in our argum ent, and w e shall substantiate our contention— that no international recourse is adm issible against m unicipal judgm ents— b y quoting certain cases. These cases dem onstrate the repugnance w ith which requests for intervention on these lines have almost invariably been received.

In 1885, w hen the Governm ent of the U n ited States of Am erica received a request of this kind, the Secretary of S tate, Mr. Bayard, sent a letter to the Am erican Minister in M exico in which he said: "This D epartm ent is not a tribunal for th e rehearing of decisions of foreign courts, and we have alw ays laid down th at errors of law and even of fact, com m itted b y these tribunals, do not afford a m otive for any intervention on our p a rt”.

Another Am erican Secretary of S tate, Mr. Marcy, adopted a similar line in writing to the U nited States Minister in Chile, Mr. Starkéatter: "Irregularities com m itted in the case of anAmerican citizen in Chile, unless th ey am ount to a refusal of justice, afford no grounds for inter­vention b y the U nited S ta te s .”

W hen Great B ritain and Portugal subm itted to arbitration the question of the alleged manifest injustice of a decision given b y the Corte de R elacâo, the arbitration tribunal stated : “While we unhesitatingly adm it th at the decision was erroneous, we cannot agree that it was manifestly unjust. It w ould b e m anifestly unjust to hold the Portuguese G overnm ent to account for faults im putable to the courts of that country. According to the Portuguese constitution, these courts are absolutely independent of the Governm ent and therefore the G overnm ent can exert no influence over their decisions. The British Governm ent cannot disregard th is fact w ithout at the same time disregarding the whole existence of Portugal as a civilised State, and th at is obviously not the in tention of the B ritish Government. ”

As these view s were expressed in cases in which the party concerned happened to be a small State, we can w ell im agine the reception w hich a great Power w ould accord to a claim to hold it responsible for an unjust decision given b y its m agistrates.

In every S tate the independence of the judicature and respect for the law are recognised as such fundam ental principles th at even w hen the courts are called upon to apply the rules of private international law, which, as a result of an international treaty, fall w ithin the scope of the State’s own laws, th ey are n ot m ade subject in doing so to the supervision of their Government (resolution of the Institu te of International Law at its session at The H ague in 1875).

Another theory which is quite as inadm issible is that international responsibility is incurred through abnorm al delay in the adm inistration of justice.

N o State can claim to possess courts so efficient that they never exceed the time-limit laid down in the laws of procedure. The larger the State, the greater the number of cases b ro u g h t before its judges, and consequently the greater the difficulty of avoiding delays, sometimes quite considerable delays.

If we agree th at the S tate is responsible neither for judicial errors nor for the manifest injustice of judicial decisions, nor for abnormal delay in the adm inistration of justice, are we to infer from this that the S tate has no responsibilities in regard to the manner in which it dispenses justice. Certainly not. Its international responsibility m ay becom e seriously involved. .

W e have already shown that the S tate owes protection to the nationals o f foreign States within its territory, and m ust accord such protection b y granting foreigners the necessary means for defending their rights. B u t these m eans can on ly be such as are made available b y the laws an courts of the country and b y the authorities responsible for public order and security.

In the case in question the S tate w ould not be fulfilling its duty towards other States if j did not allow foreigners to have access to its courts on the sam e term s as its own nationals, or 1 these courts refused to proceed w ith an action brought b y a foreigner in defence of the rights whic are granted to him and through the m eans of recourse which are provided under the domes ic laws.

Such responsibility would arise as the result of a denial of justice.In saying "on the same term s as its own nationals ”, we desired to em phasise the necessi

of equality as regards access to the m eans of recourse open to all persons under the same juris 1 tion. Thus, if the nationals of a State are allowed to appeal from the decision of a court of

disput06’ Same Privilege m ust b e accorded to foreigners when their recognised rights are m

The decision of a judicial authority, in accordance w ith the lex loci, that a petition s u b m i t t e d

y a oreigner cannot be entertained should not, however, be regarded as a denial of )US 1

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The State has fulfilled its d u ty b y the very fact th at the local tribunal has been able to g ive a decision regarding th is request.

Denial of justice is therefore a refusal to grant foreigners free access to the courts institu ted in a State for the discharge of its judicial functions, or the failure to grant free access, in a particular case , to a foreigner who seeks to defend his rights, although, in the circumstances, nationals of the State would be entitled to such access.

In conclusion, therefore, we infer that a State , in so far as it is bound to afford judicial protec­tion, incurs international responsibility only if it has been gu ilty of a denial of justice, as defined

above.

Dam age caused to Foreigners in Cases of R iot and Civil War.

This problem h as long been a source of d isputes of every' kind, and discussions which have not yei led to the enunciation of any definite rule. T his is not due to the absence of international juridical standards b y which the problem m ight be solved, but rather to a habit, which certain exponents of international law have acquired, of straying in to fields where no enquiry on the lines of international law can be usefu lly carried out, and then evolving a series of quite unwarrantable conclusions, b y m eans of analogies which are incom patible w ith that law.

Some authorities, in their desire to atta in these results, have not hesitated to delve in to the remote past, and to explore both th e individualist and collective conceptions of law.

When these th eo iies have crum bled aw ay in the light of careful research, other theories have been advanced to replace them — new indeed, but equally futile.

The latest of these were expounded during the discussion of the regulations drawn up at Neuchâtel by the In stitu te of International Law, nam ely, the theoiies of expropriation and State risk (risque étatif).

We will exam ine these theories briefly, but w ill not of course approach the question from the same standpoint as theii authors. Our sole concern is to discover rules of international law capable, of being codified; we cannot therefore allow ourselves to wander deliberately further and further away from international law in the search for som e basis of international responsibility.

Brusa has done so, and has openly avow ed it. In h is report to the Institu te of International Law he sta tes that foreign diplom atic intervention should be lim ited to cases in which justice is not accorded to a foreigner w ho has suffered dam age in tim e of riot or revolution, or in which the Government has vio lated the law of nations, in particular (he observes) by violating a treaty under which foreign residents are exem pted from forced loans and contributions.

" In th is case, ” adds Brusa, " in addition to the correlative duty of affording com pensation for the services rendered and returning the property received, the State has, it would seem, at the same time actually incurred responsibility tow ards the foreign State under the law of nations, and has thus afforded ground for direct diplom atic intervention.”

Unless we are m istaken, the logical outcom e of Brusa’s idea is that:

1. The obligation to com pensate for dam age arises from the fact that the State has receivedservices,

2. The responsibility of the S tate on ly becom es of an international character when the State violates the law of nations b y the denial of justice or the violation of a treaty.

This would prove that the " responsibility ” arising out of Brusa’s argum ents is purelycivil.

In correlation w ith h is theory of com pensation for benefits received b y the State (and as if he purposely desired to break aw ay from international law), he advances sim ultaneously h is other theory of expropriation in civ il m atters.

What would becom e of international law if rules deriving from private law were thus trans­ferred to its sphere on the sole ground of som e sort of analogy ? And is there really any such analogy between the relations of S tates inter se and the relations betw een a State and individuals, between the international com m unity and the national com m unity ? In the first place, there can be no juridical analogy betw een tw o bodies of law which are different as to their source, heir content and theii va lid ity . International law and private law have been created, and are

moved, by tw o separate forces, w hich have absolutely no kinship with one another. For the first, a though it is superior, th e concourse of m an y w ills is required; the latter is subject to no such limitative necessity.

According to th is principle, therefore, international law must keep itself pure from anytration of dom estic law.

I, ^either in the theories of Brusa, nor in the application of the idea of risk ( risque) proposed Y auchille on the same occasion, do we perceive any principles of private law which could be

^inverted in to principles of international law. It is therefore juridically im possible to draw y conclusions therefrom , even o f a provisional nature. . ...

can h*1 f^0rt’ *s ’die *° assert that the elem ents required to establish international responsibi 1 y e found in c iv il law or in th e ideas applicable to c iv il law.

on Part from the fundam ental difficulty w hich we have pointed out, these tw o theories are it n? t0 ° ^ er criticisms. The theory of expropriation, for instance, ceases to be accurate w en loss &feS *oss that a foreigner m ay suffer in the case of revolution on the sam e footing as t e wl - ? PT°perty for reasons of public u tility . In th e latter case we have a rendering of services 'vher COns tutes an undoubted title to com pensation, however the question m ay h ave arisen, sgrvj6'15’ ln other acts which m ay in vo lve loss, we do not perceive a similar rendering of m ateria

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The theory of State risk (risque étatif) tends to introduce into international law economic conceptions w hich are ou t of place in international relations. The argum ents b y which it has been sought to bring these conceptions into the sphere of international law neither enhance their value nor ju stify their adm ission. “ Foreigners ”, said Fauchille, “ who com e to take up their residence in a country constitu te , like nationals, a source of gain for th e State in which they reside : their industry and their sojourn in the territory bring profit to the State. Is it notlogical and just th at, in return, the State should be bound to give com pensation for loss which these persons— be th ey nationals or foreigners — m ay have suffered at the hands of other nationals or other foreigners ? ”

W ould it not be m ore logical to reverse the argum ent and say: Foreigners do not leavetheir hom eland in order to be of profit to the State in which th ey take up their residence. On the contrary, th ey com e to the country w ith the definite in tention of availing them selves of its wealth its h osp ita lity and its institutions, hoping to carve out for them selves a better position than th a t which th e y have left behind them . Their change of residence being voluntary, they must accept all the risks of chance happenings and unforeseen events.

In th is survey w e should also reject a ll theories which base th e responsibility of the State, in case of riot or revolution, on a presum ptio juris et de jure or an obligatio ex delicto.

International law itse lf provides the basis for the so lu tion of th is question.A riot is an act com m itted b y private individuals, and not b y the State. N o loss occasioned

to foreigners b y a riot in vo lves international responsib ility unless the S ta te has neglected to fulfil it s d u ties of exercising vigilance, repressing disorder and providing judicial protection.

D am age caused by revolution m ay be the result of acts com m itted b y either of the opposing parties. If th e acts are com m itted b y the law ful authorities, w'hose concern it is to restore order, th e S tate is n ot responsible for the fact that, in exercising its suprem e right and duty, it has caused dam age to foreigners, since th e interests of the com m unity, of which foreigneis as well as nationals form part, are higher than any private interests. The State, b y taking steps to restore the well-being 01 the com m unity , has sim ply acted as an en tity which is bound, both from a national and an international standpoint, to m aintain order and security. The former d u ty arises under the constitu tion , and the latter under the obligation which the State has contracted to ensure norm al conditions of life for foreigners, and these conditions can only be secured if order and peace prevail. A lthough the claim of absolute irresponsibility m ay just conceivably be open to question w hen a State is exercising a right, it cannot possib ly be questioned when the State is sim ultaneously exercising a right and discharging an international duty.

W e do n ot share the opinion of those who deny that revolution is a case of vis major. In general, neither wars nor revolutions are desired b y the State— the latter, indeed, even less so than the former. T hey alm ost invariab ly occur because som e blind force, against which the public authorities are powerless, has been set in m otion. N o S tate is im m une from the evil. Revolution bursts upon a country w ith all the brutal force of som e convulsion of nature. Foreigners as well as nationals have to partake o f the consequences and share in the good or ev il fortune which these undesired and unforeseen events m ay bring.

If it could be sustained th at the protective rôle of a S tate renders it indisputably liable to grant com pensation for all losses suffered b y foreigners, we could not overlook the question of com pensation for losses caused to foreigners b y strikes. In this case the responsibility of the State w ould b e even more directly involved , since, in alm ost all countries, th e State recognises the right to strike, or at any rate tolerates strikes. I t should n ot be forgotten that in the intensive m odern life of great cities a strike m ay cause greater loss to foreigners and nationals than that occasioned b y m inor revolutions, which have often form ed a pretext for inordinate claims.

Loss occasioned b y the acts of rebels or revolutionaries com es w ithin the category of acts done b y private individuals and therefore not im putable to the State. In this connection we should remember the rule th a t the d u ty of protection is confined to the territory over which the State exercises its sovereignty.

A S tate cannot be held responsible for occurrences in a territory no longer under its authority or control, w hen a case of vis m ajor prevents it from fulfilling its duties as protector.

Let us now refer to custom ary law in order to ascertain whether there is any rule jwhich may be regarded as an expression of in ter-State w ill in th e m atter of losses suffered b y foreigners in civil wars.

Customary law dem onstrates w ith m athem atical exactitude that States, wherever situated, have on all occasions absolutely rejected all international responsibility for such losses.

Powerful S tates have invariably asserted th is rejection of responsibility in term s so clear an precise that no doubt can ex ist as to their very definite v iew s on the subject. W eaker States, when they have not been able to resist external pressure, have indeed paid indem nities, but always subject to the reservation th at th ey were not bound at law to pay them , a n d were simply doing so as an act of grace.

W e will quote a few instances of S tates which, on various occasions, have pleaded the non existence of international responsibility : Belgium , in 1830 and 1834; France, in 1830, 1848 a.n 1871; Russia, in 1850; Austria, in 1865 ; the U nited States of America during the War of Secession and in 1851, when a number of Spaniards were v ictim s of the populace of N ew Orleans ; an^ a so all the States of Latin America.

Treaties concluded betw een certain European States, and betw een several of the Atnenw® States, which contain provisions disclaim ing responsibility in case of dam age o c c a s i o n e d

revolt and civil war, have often been the subject of criticism . W e think that these criticis •> ou£ ,t ,rf t^er to be levelled against the nations which, in defiance of all international rules, soug t to impose on other States a responsibility w hich the latter could never really have incurre

The S ta tes of Latin Am erican have acted w isely in endeavouring to secure protection for théir legitimate rights b y m eans of treaty provisions.

It should be noted, moreover, th a t these treaties are careful n ot to exclude responsib ility arising from a denial of justice.

In short, if international law is to b e codified— as it certainly should be— in accordance with the will of States, as m anifested either b y treaties or b y international practice, w e m ust conclude that the S tate is not responsible for loss suffered b y foreigners in cases of riot or revolution.

We do not, however, include in th is category loss of property sustained b y foreigners through the action of the S tate as a result of requisition, expropriation, confiscation, spoliation or on any other a rb itra ry proceedings. W hether in peace, in war or in tim e of revolution, the State should be foremost in respecting and protecting the property of foreigners.

We have said that property, w ith life and liberty, form s part of the fundam ental rights of the individual and th at these rights m ust b e recognised and protected wherever the individual happens to be. A state of war or revolution w ould in no w ay ju stify the v io lation of an y of these rights, and a S tate failing in the duty, which it has contracted w ith regard to the international com m unity , to afford safety and protection w ould also incur international responsibility.

The State is therefore bound to grant com pensation for the property of foreigners w hich it has appropriated in tim e of revolution.

As regards the property of foreigners seized b y revolutionaries or rebels — an act which, as we have pointed out, falls w ithin th e category of acts com m itted b y private individuals— the State m ust provide such foreigners w ith all facilities for prosecuting the offenders and recovering possession of their property. If, on the contrary, the S tate were to deprive these foreigners of all means of action, b y passing a law of am nesty, its international responsib ility would b e involved and it would be answerable for any dam age which the revolutionaries or rebels m ight have caused to the foreigners in question.

V.

Second Question.

W h e t h e r a n d , i f s o , i n w h a t T e r m s i t w i l l b e p o s s i b l e t o f r a m e a n I n t e r n a t i o n a l C o n ­v e n t i o n w h e r e b y F a c t s w h i c h m i g h t i n v o l v e t h e R e s p o n s i b i l i t y o f S t a t e s c o u l dBE ESTABLISHED, AND PROHIBITING IN SUCH CASES RECOURSE TO MEASURES OF COERCIONu n t il a l l P o s s i b l e M e a n s o f P a c if ic S e t t l e m e n t h a v e b e e n e x h a u s t e d .

We have show n th at international responsibility does n ot arise b y reason of any loss w hich foreigners m ay sustain b u t b y reason of a failure to act, or the com m ission of an act, contrary to in ternational law and im putable to the State. A lthough in som e cases responsibility clearly results from the ex istence or non-existence of a fact, it is o ften -— w e m ight say alm ost alw ays :— necessary to conduct a careful enquiry in to the facts in order to ascertain w hether they really give rise to a question of international law and whether the S tate has incurred responsibility.

At present, the b est international m ethod for conducting such enquiries is th a t of international commissions of enquiry.

Let us sum m arise the advantages of these com m issions:

1. The tim e w hich elapses betw een th e com m itting of the acts and the constitution of the commissions undoubtedly helps to abate the excitem en t and passions aroused ;

2. The nationality of the persons appointed to conduct the enquiry, their standing and the moral responsibility w hich rests upon them afford a guarantee of the im partiality of their in vesti­gations ;

3- Since the conclusions of these com m issions do not take the form of an arbitral award, the conflict m ay b e elim inated b y the mere acceptance of these conclusions, w ithout any judgm ent, which might wound the susceptib ilities of the responsible State, having been pronounced ;

4 - Should the conclusions produce no im m ediate result, the dispute m ay still be settled b yother pacific m ethods.

In most cases the enquiry m ay be expected to end the dispute w ithout creating any abiding bitterness between the tw o S tates concerned. N either party has reason to regard itself as victor or vanquished ; neither has had to b ow to the perem ptory d ictates of a judicial sentence. The commission merely subm its its report and the parties concerned are free to draw their conclusions therefrom and to order their actions accordingly.

We should not forget the im m ense service which w as rendered to th e cause of peace b y this method of conciliation in the Dogger Bank affair betw een R ussia and Great Britain. N ever has a question of dam age caused to foreigners brought tw o great Powers so near to the brink of war as in 1904, when the R ussian fleet on its w ay to the Far E ast bom barded a British fishing fleet on the D°gger Bank.

W ar was only avoided b y having recourse to one of the international com m issions of enquiry provided for in the H ague C onvention of 1899.

The first result of th is procedure w as to a llay the justifiable indignation which had been roused in England and which was gathering volum e as the discussion betw een the R ussian and n ^ Governments continued.

ea h * comm*ssi ° n was com posed of five members, one being chosen b y th e G overnm ent of fifth h ^ ie nati°n s concerned, tw o others b y the French and Am erican G overnm ents, and the

by these four m em bers sitting together. Four m onths later it subm itted a report, stating ,

àmorigst other conclusions, th at the British fishing fleet had not com m itted any hostile act a n d that as there was no torpedo-craft am ong the trawlers or in the v icin ity , the Russian Admirai R ojestvensky had not been justified in opening fire.

In view of th is very conclusive statem ent, the R ussian Governm ent, w ithout further procedure or action, paid the British Governm ent an indem nity for th e v ictim s and th e incident was defi­n ite ly closed.

Treaties, w ith a com pulsory clause, concerning international com m issions of enquiry, have already been concluded betw een several States, in particular betw een France and the United States, betw een th e U nited States and a num ber of Latin-Am erican States, betw een the Central Am erican R epublics and betw een Argentina, Brazil and Chile.

'Consequently, we propose that an international convention should be drawn up under which the signatory States w ould bind them selves to entrust to international com m issions of enquiry th e investigation of the facts which m ay have given rise to an incident, involving international responsibility, where it has been im possible to settle such incident b y ordinary methods.

W henever a dispute should arise the parties concerned w ould be entitled to demand the appointm ent of a com m ission of enquiry.

The Perm anent Court of International Justice m ight be chosen to act as an intermediary organ betw een the States parties to the dispute. On receiving a request, the Court would imite each of the States concerned to appoint a com m issioner and w ould at the sam e tim e request two G overnm ents, selected b y itself, to appoint tw o other com m issioners each. The Court would fix the date and place at which the four mem bers should m eet to elect the fifth commissioner—who would be Chairman of the Commission— and to begin the enquiry.

The procedure to be follow ed and the powers of th e com m ission m ight also be defined in this Convention.

Further, and m ost im portant of all, there w ould be a clause b y which the States would under­take not to com m it any act of violence either before or after the form ation of the commission of enquiry, and to provide the latter b od y w ith all necessary facilities for carrying out its task.

The com m ission should also have the power to order m easures for safeguarding the rights of each of the parties concerned until the com m ission has subm itted its report.

The report and a ll decisions and conclusions of the com m ission w ould have to be agreed to and drawn up b y a m ajority vote.

The report should m erely establish the facts, w ithout tak ing the form of an award, leaving th e parties free to act as th ey th ink best on th e conclusions of th e com m ission of enquiry. As a corollary to the undertaking concerning th e appointm ent of com m issions of enquiry, States should also bind them selves, in the same convention, to subm it to the arbitration of the Permanent Court of International Justice any dispute not defin itely closed b y the report of the com m ission of enquiry.

The convention m ight also— and th is w ould be even more advantageous— la y down that perm anent com m issioners should be appointed for a fixed period from lists of nam es which each contracting State w ould send to the Perm anent Court of International Justice. W hen a case arose an international com m ission of enquiry w ould be im m ediately form ed consisting of five com m issioners, one appointed b y each of the S tates concerned in the dispute, tw o other commis­sioners of other nationalities elected b y the Court, and finally a fifth com m issioner appointed by th e four others.

Should a dispute arise, w hatever the nature or form of that dispute m ight be, States would undertake to abstain from all coercive measures.

This m ethod of acting as judge in one’s ow n cause has indeed becom e incom patible with the organisation of m odern international society. To resort to coercion w ould be tantamount to returning to prim itive tim es when reparation w as exacted b y force.

The shock caused to the conscience of the world w henever coercive m easures are employed in peace-tim e is sufficient to prove th at th e case of violence is no longer adm itted in th e present state of modern civilisation.

The international com m unity as represented at Geneva in 1924 condem ned acts of force and violence and placed them on a level w ith the crime of aggression in the Protocol on Arbitration, Security and D isarm am ent, which it drew up and which, w hen all is said and done, will remain th e finest effort ever m ade in hum an history to ensure world peace. The official comment on Article 10, which determ ines the aggressor, reads as follows: “The tex t refers to resort to war, but it was understood during the discussion that, while m ention was made of the m ost serious and striking instance, it was in accordance w ith the spirit of the Protocol that acts of violence and foice, which possibly m ay not constitute an actual state of war, should nevertheless be taken into consi­deration b y the Council”. This official com m ent was unanim ously approved b y the 1924 Assemoly.

VI

Conclusions 1.

The conclusions we are about to draw are the logical outcom e of the principles by which ' have consistently been guided in preparing th is report— and w hich we hold to be the only possl basis for the elaboration of rules likely to secure the approval of all States.

nit of the1 As reproduced here, the conclusions of the report contain amendments made by M. Guerrero as a resu discussion in the Committee of Experts.

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Were we to depart from these guiding rules, were we to seek to codify principles regarding which the collective w ill is uncertain or actu a lly d ivided, our endeavours w ould be useless; indeed, we should be encouraging the establishm ent of a series of continental system s and codifications o f laW—which already ex ist in outline— th e sole result being to create unending sources of d is ­agreement.

We should n ot lose sight Of the fact th a t the object of our task is to establish rules w hich m ay be embodied in international conventions, and th at these conventions, to be effective, require the consent of all, or nearly all, the countries of th e world.

These are our conclusions:

1. Since international responsibility can on ly arise out of a wrongful act, contrary to inter* national law, com m itted b y one S tate against another State , dam age caused to a foreigner cannot involve international responsibility unless the State in which he resides has itself v io lated a d u ty contracted b y treaty w ith the S tate of w hich th e foreigner is a national, or a d u ty recognised by customary law in a clear and definite form.

2. The responsibility of a S ta te is on ly in vo lved b y the com m ission in its territory of a political crime against the persons of foreigners if the State has neglected to take all reasonable measures for the prevention of the crim e and th e pursuit, arrest and bringing to justice of the criminal.

The recognised public character of a foreigner and the circum stances in which he is present in its territory entail upon the State a corresponding d u ty of special vigilance on his behalf.

3. A State is responsible for dam age incurred b y a foreigner attributable to an act contrary to international law or to the om ission of an act w hich th e S tate was bound under international law to perform and inflicted b y an official w ithin the lim its of h is com petence, subject alw ays to the following conditions:

(a) If the right which has been infringed and which is recognised as belonging to the State of which the injured foreigner is a national is a p ositive right established by a treaty between the tw o States or b y the custom ary law ;

(6) If the injury suffered does n ot arise from an act performed b y the official for the defence of the rights of the State, except in the case of the ex istence of contrary treaty sti­pulations;

The State on w hose behalf the official has acted cannot escape responsibility b y pleading the inadequacy of its law.

4. The State is not responsible for dam age suffered b y a foreigner, as a result of acts contrary to international law , if such dam age is caused b y an official acting outside his com petence as defined by the national laws, except in the follow ing cases:

{a) If the G overnm ent, having been inform ed th at an official is preparing to com m it an illegal act against a foreigner, does not take tim ely steps to prevent such act ;

(b) If, w hen the act has been com m itted , the Governm ent does not w ith all due speed take such disciplinary m easures and inflict such penalties on the said official as the laws of the country provide ;

(c) If there are no m eans of legal recourse available to the foreigner against the offending official, or if the m unicipal courts fail to proceed w ith the action brought b y the injured foreigner under the national laws.

5. Losses occasioned to foreigners by the acts of private individuals, whether th ey be nationals or strangers, do n ot involve the responsibility of the State.

6. The duty o f the S tate as regards legal protection m ust b e held to h ave been fulfilled if it has allowed foreigners access to the national courts and freedom to in stitu te the necessary proceedings whenever they need to defend their rights.

It therefore follows :

(a) T hat a S tate has fulfilled its international duty as soon as the judicial authorities have given their decision, even if those authorities m erely state that the p etition , suit or appeal lodged b y the foreigner is not adm issible;

(b) That a judicial decision, w hatever it m ay be, and even if v itia ted b y error or injustice, does not involve the international responsibility of the State.

7 - On the other hand, how ever, a S tate is responsible for dam age caused to foreigners when 1 15 Suilty of a denial of justice.

Denial of justice consists in refusing to allow foreigners easy access to the courts to defend ose rights which the national law accords them . A refusal of the com petent judge to exercise

jurisdiction also constitutes a denial of justice.

i , Damage suffered b y foreigners in case of riot, revolution or civil war does not in vo lve if tî rna^onal responsibility for the State. In case of riot, however, the State w ould be responsible

e riot was directed against foreigners, as such, and the State failed to perform its duties of surveillance and repression.

belo (J' ^ le cate8 ory ° f dam age referred to in the preceding paragraph does n ot include property ngmg to strangers w hich has been seized or confiscated in tim e of war or revolution, either b y

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the lawful Governm ent or by th e revolutionaries. In the first case the S tate is responsible, and in the second the State m ust place at the disposal of foreigners all necessary legal means to enable them to obtain effective com pensation for the loss suffered and to enable them to take action against the offenders.

The S tate w ould becom e directly responsible for such dam age if, b y a general or individual am nesty, it deprived foreigners of the possib ility of obtaining com pensation.

10. A ll that has been said in regard to centralised States applies equally to federal States C onsequently, any international responsibility which m ay be incurred b y one of the member States of a federation devolves upon the federal Governm ent, w hich represents the federation from the international point of v iew ; th e federal G overnm ent m ay n ot plead that, under the constitution the mem ber States are independent or autonom ous.

11. A n y dispute w hich m ay arise betw een tw o States regarding damage suffered b y foreigners w ithin the territory of one of the States m ust b e subm itted to an international commission of enquiry appointed to exam ine the facts.

If the report of the com m issioners adopted b y a m ajority vote does not result in the incident being closed, the parties concerned m ust subm it the dispute to decision b y arbitration or some other m eans of pacific settlem ent.

12. States m ust form ally undertake not to resort in the future to any m easure of coercion until all the above-m entioned m eans have been exhausted.

(S igned) G ustavo G u e r r e r o ,

Rapporteur.