International Law. A Treatise
Chapter 25 : See the literature quoted above at the commencement of -- 148, and especially Moore, VI

See the literature quoted above at the commencement of -- 148, and especially Moore, VI. ---- 998-1018.

[Sidenote: 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.

[Sidenote: 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 const.i.tute 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.

[Sidenote: 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 const.i.tute 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.

[Sidenote: 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 circ.u.mstances 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, const.i.tute international delinquencies for which the home State bears original responsibility and for which the envoy cannot personally be blamed.

[Sidenote: Internationally injurious Att.i.tudes of Parliaments.]

-- 161. As regards internationally injurious att.i.tudes 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 att.i.tude of a parliament may be, it can never const.i.tute an international delinquency.

That, on the other hand, all States must bear vicarious responsibility for such att.i.tudes 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.

[Sidenote: 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 p.r.o.nounces 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.

[Footnote 255: Wharton, II. -- 230, comprises abundant and instructive material on this question.]

An ill.u.s.trative case is that of the _Costa Rica Packet_,[256] which happened in 1891. Carpenter, the master of this Australian whaling-s.h.i.+p, 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]

[Footnote 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 responsabilite de l'etat en matiere judiciaire" (1911).]

[Footnote 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.]

[Sidenote: 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.

[Footnote 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 const.i.tute international delinquencies when committed by the State itself or with its authorisation. Three very instructive cases may be quoted as ill.u.s.trative 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 s.h.i.+p. 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 sh.o.r.e 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 a.s.sist 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]

[Footnote 259: See R.G. XIII. (1906), pp. 200-206.]

[Footnote 260: Another example occurred in 1904, when the Russian Baltic Fleet, on its way to the Far East during the Russo-j.a.panese war, fired upon the Hull Fis.h.i.+ng 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, j.a.pan 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.

[Footnote 261: Provided, however, such law does not violate essential principles of justice. See below, -- 320.]

[Footnote 262: See below, -- 167.]

IV

STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS

See the literature quoted above at the commencement of -- 148, and especially Moore, VI. ---- 1019-1031.

[Sidenote: 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.

[Sidenote: 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 punis.h.i.+ng 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.

[Sidenote: Munic.i.p.al 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 amba.s.sadors' 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.

[Footnote 263: As regards the Criminal Law of England concerning such acts, see Stephen's Digest, articles 96-103.]

[Sidenote: 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] a.s.sert 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 Munic.i.p.al 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.

[Footnote 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.

[Footnote 265: See the cases in Calvo, III. ---- 1283-1290.]

[Footnote 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 Inst.i.tute of International Law has studied the matter and has proposed[267] the following _Reglement_ concerning it:--

(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: