Responsibility varies with Organs con cerned. Inter injurious Acts of Heads of III STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS See the literature quoted above at the commencement of § 148. § 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 organs 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. § 158. Such international injurious acts as are nationally committed by heads of States in the exercise of their official functions are here not our concern, because they constitute 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. Members of Govern ment. § 159. As regards internationally injurious acts of Internationally members of a Government, a distinction must be injurious made between such acts as are committed by the Acts of offenders in their official capacity and other acts. Acts of the first kind constitute 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. injurious Diplo § 160. The position of diplomatic envoys who, Interas representatives of their home State, enjoy the nationally privileges of exterritoriality, gives, on the one Acts of hand, a very great importance to internationally matic injurious acts committed by them on the territory of Envoys. the receiving State, and, on the other hand, excludes the jurisdiction of the receiving State over such acts. The Law of Nations makes therefore 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 circumstances 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, constitute international delinquencies for which the home State bears original responsibility and for which the envoy cannot personally be blamed. Inter- § 161. As regards internationally injurious atnationally titudes of parliaments, it must be kept in mind that, injurious of Parliaments. Internationally Judicial aries. most important as may be the part parliaments play in the political life of a nation, they do not belong to the organs which represent the States in their international relations with other States. Therefore, however injurious to a foreign State an attitude of a parliament may be, it can never constitute an international delinquency. That, on the other hand, all States must bear vicarious responsibility for such attitudes 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. 162. Internationally injurious acts committed by injurious judicial functionaries in their private life are in no Acts of way different from such acts committed by other Function 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.1 Undoubtedly, 1 Wharton, II. §§ 230, comprises abundant and instructive material on this question. 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 pronounces a materially unjust judgment, matters become so complicated that there is hardly a peaceable way in which the injured State can successfully obtain reparation for the wrong done, and eventually war may break out between the respective States. Acts of adminis Officials Naval § 163. Internationally injurious acts committed in Internationally the exercise of their official functions by adminis- injurious trative officials and military and naval forces of a State without that State's command or authorisation, trative are not international delinquencies because they are and Milinot State acts. But a State bears a wide, unli- tary and mited, and unrestricted vicarious responsibility for Forces. 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. 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. 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 VOL. I. P subjects are internationally injurious as would constitute international delinquencies when committed by the State itself or with its authorisation. A very instructive case may be quoted as an illustrative example. 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.1 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. Therefore, since the Law of Nations does not prevent a State from expelling foreigners, the home State of an expelled foreigner 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 a foreigner through legitimate measures taken by administrative officials and military forces in time of war, insurrection,2 riot, or public calamity 1 A recent example occurred in fired upon the Hull Fishing Fleet 1904, when the Russian Baltic off the Dogger Bank. (See below, Fleet, on its way to the Far East vol. II. § 5.) during the Russo-Japanese war, 2 See below, § 167. |