a State refuses to comply with these requirements, it commits thereby an international delinquency, and its hitherto vicarious responsibility turns ipso facto into original responsibility. II STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES See the literature quoted above at the commencement of § 148. tion of Delin § 151. International delinquency is every injury to Concepanother State committed by the head and the Govern- Interment of a State through neglect of an international national legal duty. Equivalent to acts of the head and quencies. Government are acts of officials or other individuals commanded or authorised by the head or Govern ment. An international delinquency is not a crime, because the delinquent State, as a Sovereign, cannot be punished, although compulsion may be exercised to procure a reparation of the wrong done. International delinquencies in the technical sense of the term must not be confounded either with socalled "Crimes against the Law of Nations" or with so-called "International Crimes." "Crimes against the Law of Nations" in the wording of many Criminal Codes of the single States are such acts of individuals against foreign States as are rendered criminal by these Codes. Of these acts, the gravest are those for which the State on whose territory they are committed bears a vicarious responsibility according to the Law of Nations. "International Crimes," on the other hand, refer to crimes like piracy on the high Subjects national Delinquencies. seas or slave trade, which either every State can punish on seizure of the criminals, of whatever nationality they may be, or which every State has by the Law of Nations a duty to prevent. An international delinquency must, further, not be confounded with discourteous and unfriendly acts. Although such acts may be met by retorsion, they are not illegal and therefore not delinquent acts. § 152. An international delinquency may be committed by every member of the Family of Nations, be such member a full-Sovereign, half-Sovereign, or part-Sovereign State. Yet, half- and part-Sovereign States can commit international delinquencies in so far only as they have a footing within the Family of Nations, and therefore international duties of their own. And even then the circumstances of each case decide whether the delinquent has to account for its neglect of an international duty directly to the wronged State, or whether it is the full-Sovereign State (suzerain, federal, or protectorate-exercising State) to which the delinquent State is attached that must bear a vicarious responsibility for the delinquency. On the other hand, so-called Colonial States without any footing whatever within the Family of Nations and, further, the member-States of the American Federal States, which likewise lack any footing whatever within the Family of Nations because all their possible international relations are absorbed by the respective Federal States, cannot commit an international delinquency. Thus an injurious act against France committed by the Government of the Commonwealth of Australia or by the Government of the State of California in the United States of America, would not be an international delinquency in the technical sense of the term, but merely an internationally injurious act for which Great Britain or the United States of America must bear a vicarious responsibility. Organs Inter Delin § 153. Since States are juristic persons, the ques- State tion arises, Whose internationally injurious acts are able to to be considered State acts and therefore inter- commit national delinquencies? It is obvious that acts of national this kind are, first, all such acts as are performed by quencies. the heads of States or by the members of Government acting in that capacity, so that their acts appear as State acts. Acts of such kind are, secondly, all acts of officials or other individuals which are either commanded or authorised by Governments. On the other hand, unauthorised acts of corporations, such as Municipalities, or of officials, such as magistrates or even ambassadors, or of private individuals, never constitute an international delinquency. And, further, all acts committed by heads of States and members of Government outside their official capacity, simply as individuals who act for themselves and not for the State, are not international delinquencies either. The States concerned must certainly bear a vicarious responsibility for all such acts, but for that very reason these acts comprise not international delinquencies. national without culpable § 154. An act of a State injurious to another State No Interis nevertheless not an international delinquency if Delincommitted neither wilfully and maliciously nor with quot culpable negligence. Therefore, an act of a State Malice or committed by right or prompted by self-preservation Negliin necessary self-defence does not contain an inter- gence. national delinquency, however injurious it may actually be to another State. And the same is valid in regard to acts of officials or other individuals 1 See below, §§ 157-158. Objects of International Delinquencies. Legal consequences of International committed by command or with the authorisation of a Government. § 155. International delinquencies may be committed against so many different objects that it is impossible to enumerate them. It suffices to give some striking examples. Thus a State may be injured-in regard to its independence through an unjustified intervention; in regard to its territorial supremacy through a violation of its frontier; in regard to its dignity through disrespectful treatment of its head or its diplomatic envoys; in regard to its personal supremacy through forcible naturalisation of its citizens abroad; in regard to its treaty rights through an act violating a treaty. A State may also suffer various injuries in time of war by illegitimate acts of warfare, or by a violation of neutrality on the part of a neutral State in favour of the other belligerent. And a neutral may in time of war be injured in various ways through a belligerent violating neutrality by acts of warfare within the neutral State's territory; for instance, through a belligerent man-of-war attacking an enemy vessel in a neutral port or in neutral territorial waters, or through a belligerent violating neutrality by acts of warfare committed on the Open Sea against neutral vessels. 156. The nature of the Law of Nations as a law between, not above, Sovereign States excludes the possibility of punishing a State for an international quencies. delinquency and of considering the latter in the light Delin of a crime. The only legal consequences of an international delinquency that are possible under existing circumstances are such as create a reparation of the moral and material wrong done. The merits and the conditions of the special cases are, however, so different that it is impossible for the Law of Nations to prescribe once for all what legal consequences an international delinquency should have. The only rule which is unanimously recognised by theory and practice is that out of an international delinquency arises a right for the wronged State to request from the delinquent State the performance of such expiatory acts as are necessary for a reparation of the wrong done. What kind of acts these are, depends upon the special case and the discretion of the wronged State. At least a formal apology on the part of the delinquent State will be necessary, and it is obvious that there must be a pecuniary reparation for a material damage. The apology may have to take the form of some ceremonial act, such as a salute to the flag or to the coat of arms of the wronged State, the mission of a special embassy bearing apologies, and the like. A great difference would naturally be made between acts of reparation for international delinquencies deliberately and maliciously committed, on the one hand, and on the other, for such as arise merely from culpable negligence. When the delinquent State refuses reparation of the wrong done, the wronged State can exercise such means as are necessary to enforce an adequate reparation. In case of international delinquencies committed in time of peace, such means are reprisals 1 (including embargo and pacific blockade) and war as the case may require. On the other hand, in case of international delinquencies committed in time of war through illegitimate acts of warfare on the part of a belligerent, such means are reprisals and the taking of hostages.2 See below, vol. II. § 34. See below, vol. II. §§ 248 and 259. |