Imágenes de páginas

jurisdiction over the foreign state. In the Hellfeld case in Germany it was held that even though a foreign state (Russia) sues an individual and submits to a counterclaim, no execution can issue against the foreign state, notwithstanding the fact that it possesses property within the territory. The immunity of the foreign state extends to its sovereign, its ambassadors, and its public property. Attachment and garnishment proceedings against the property of foreign states or sovereigns are almost uniformly dismissed. Exceptions to these rules have been made in some cases by the courts of Belgium and Italy, which seem to have adopted the distinction of administrative law between transactions of the state jure imperii and jure gestionis, and to have exercised jurisdiction in the latter case.

1 These questions are discussed at some length in the chapter on Contractual Claims, infra, $ 118. In addition to the literature there cited, of which the work by Loening and the article by Droop in 26 Gruchot's Beiträge, 289–316, on comparative law, are the most illuminating, see De Paepe, Etude sur la compétence civile à l'égard des Etats étrangers, Bruxelles, 1894 and Féraud-Giraud, Etats et souverains, personnel diplomatique et personnes civiles devant les tribunaux étrangers, Paris, 1895; and articles on the subject by A. Hartmann in 22 R. D. I. (1890), 425– 437; by C. F. Gabba in 15 Clunet (1888), 180–191, 16 Clunet (1889), 538–554 and 17 Clunet (1890), 27–41, and in 51 Giurisprudenza italiana, 65–80; by Cuvelier in 20 R. D. I. (1888), 109–131; and by von Bar in 12 Clunet (1885), 645–657. On the Hellfeld case (translated in 5 A. J. I. L., 1911, 490–519), see besides the work by Brie, Fischer and Fleischmann, the series of articles by Kohler, Laband, Meili and Seuffert in 4 Ztschr. f. Völkerrecht, 309 et seq., summarized by Julius Hirschfield in Journ. of Comp. Leg., March, 1911, 300–303, and the legal opinion of Conrad Bornhak in the case, printed in 5 Jahrbuch d. öff. Rechts (1911), 230-266. A severe criticism of the exceptional line of decisions of the Italian courts on this question is contained in two articles by Dionisio Anzilotti in 5 Ztschr. f. int. Priv. u. Strafrecht (1895), 24–37 and 138–147. Clunet makes it a point to report cases involving suits against foreign states and sovereigns in municipal courts.



$ 73. General Principles.

In preceding chapters we have examined the rights of aliens and the responsibility of the state and its officers, in municipal law, for a violation of the rights of the alien. We are now prepared to examine the final phase of the obligation of the state toward the alien and its responsibility for an infringement of his rights. This phase is the international liability of the delinquent state toward the alien's home state.

In the absence of an international legislature or court of justice the standard of duty of the state toward aliens and its international

i Funck-Brentano and Sorel (Precis du dr. des gens, 1877, p. 224), state that it was at one time asserted by a certain school of international law that reciprocal responsibility of states was incompatible with full sovereignty, and that the state was the judge of its own responsibility. With the growth of international intercourse, that theory has long been abandoned.

The subject of state responsibility in international law has been more or less neglected by writers, notwithstanding its great importance. The best works on the theory of the subject are: Anzilotti, D., Teoria generale della responsabilità dello Stato nel diritto internazionale, Florence, 1902, published in French, considerably paraphrased, in 13 R. G. D. I. P. (1906), 5–29, 285–309, and Marinoni, Mario, La responsabilità degli stati per gli atti dei loro rappresentanti secondi il diritto internazionale, Rome, 1914. See also Benjamin, Fritz, Haftung des Staats aus dem Verschulden seiner Organe nach Völkerrecht, Breslau, 1909 (a Heidelberg dissertation). The following works devote some space to the subject: Leval, G., La protection diplomatique, Bruxelles, 1907, Part II, p. 125 et seq.; Tchernoff, T., Protection des nationaux, Paris, 1899, p. 271 et seq.; Lisboa, H., Les réclamations diplomatiques, Santiago, 1908. The subject is treated of briefly in the following general works: Oppenheim, I, ch. III, 206–225; Hall, 214-220; Halleck, I, ch. XIII; Hershey, ch. X; Pradier-Fodéré, I, 88 196-210; Calvo, § 1261 et seq.; Fiore, &$ 659-679; Liszt, $ 24; Triepel, 350; Gestoso y Acosta, I, 259–269; Olivart, I, 451–462; Seijas, III, 445–461 and in other volumes; Piédelièvre, I, 317–322; Bonfils, pt. I, ch. V; Bry, ch. X (1906 ed.), 454–461; Funck-Brentano and Sorel, 1877 ed., ch. XII, 224-230. Further literature will be cited under special topics.

responsibility for violation of its obligations may be considered the result of a gradual evolution in practice, states having in their mutual intercourse recognized certain duties as incumbent upon them. In the absence of a central authority to enforce this standard of duty upon the state of residence, international law has granted the home state of the alien who has suffered by a delinquency the right to demand and enforce compensation for the injuries sustained. The remedy for a violation of international duty toward aliens lies in a resort to diplomatic measures for the pecuniary reparation of the injury; and these measures may range from the diplomatic presentation of a pecuniary claim to war. Self-help, tempered by the peaceful instrumentalities of modern times, such as arbitration, is the ultimate sanction of international obligations. In this very fact lies the difficulty of the present subject, for powerful states have at times exacted from weak states a greater degree of responsibility than from states of their own strength. Nevertheless, fundamental principles have in the course of time, through a constant growth in the number of cases of protection and of international claims, become more clearly defined, so that a closer study of the subject may be fruitful of practical results.

It has already been remarked that international law imposes upon states the duty of according aliens certain rights and of assuring them of certain administrative and judicial protection. In almost every branch of international law, rules are found which limit the natural liberty of states by imposing upon them duties toward aliens. Any omission in these duties involves the responsibility of the delinquent state not only toward the individual directly (if so provided by municipal law), but also toward his home state, which in international theory is considered as injured in the person of its citizen. A state may limit its municipal responsibility by legislation, but not its international responsibility, which it incurs, under international law, to the national government of the alien. The national state enforces its own right, therefore, in presenting an international claim, although the pecuniary benefits of an indemnity may ultimately be awarded to the injured individual himself.

In considering the international responsibility of the state for de

linquencies toward aliens, it may be well to recall certain fundamental principles. An alien in entering a country submits tacitly to the local law, according to the rules of which his rights and duties are measured. If the local rules of civil and criminal law are applied to him without discrimination in the same degree as to nationals, he has no right to invoke the responsibility of the state for damage which he may sustain. However unqualified this doctrine may be, as a matter of principle, the practice of the stronger nations in their relations with the exploited countries of the world has demonstrated that this axiom is conditioned upon the premise that the local civil and criminal law and its administration do not fall below the standard of civilized justice established by international law. Assuming that the international standard in a given case has not been trangressed by the municipal law of the state,-always a delicate and dangerous allegation—the duty of the alien's home state is confined to securing for him the benefit of the local law or indemnity for failure to extend it to him. In first instance the alien's right is measured by the municipal law of the state of residence.

Nor is the state a guarantor of the safety of aliens. It is simply bound to provide administrative and judicial machinery which would normally protect the alien in his rights. Even a treaty providing for "special protection " has been held not to be an insurance against all injury, but merely places aliens on an equality with citizens in this respect. As a general rule, moreover, the responsibility of the state for a failure to protect an alien is measured by its actual ability to protect."

Again, before the international responsibility of the state may be invoked, the alien must under normal conditions exhaust his local

1 The variations and modalities of and exceptions to these principles have been discussed supra under Aliens or will be treated under the special topics of this chapter.

2 White (Gt. Brit.) v. Peru, July 1863, award April 13, 1864, Moore's Arb. 4967; La Forte (Gt. Brit.) v. Brazil, Jan. 5, 1863, Moore's Arb. 4925; McDonald's case (Gt. Brit.) v. Prussia, Calvo, III, $ 1279. Cushing, Atty. Gen. in 7 Op. Atty. Gen. 229, 234.

: Wadsworth, U. S. commissioner, in Prats (Mex.) v. U. S., July 4, 1868, Moore's Arb. 2889; Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 2859.

* Mr. Sherman, Sec'y of State, to Mr. Dupuy de Lôme, July 6, 1897, For. Rel., 1897, 516. But see Benjamin, op. cit., 27.

remedies and establish a denial or undue delay of justice, which in last analysis is the fundamental basis of an international claim.1

The liability of a state must be predicated on the violation in some respect of its international obligations. For present purposes our inquiry is confined to the duties of the state toward aliens. Some of the topics relating to this subject, such as admission, exclusion and expulsion, extradition, military service, civil rights, jurisdiction, arrest and imprisonment, etc., have been discussed under the head of Aliens. In the present and the following chapters we shall examine the responsibility of the state for injuries sustained by aliens during mob violence, civil war, international war and under other circumstances.


$74. Different Classes of Authorities.

Before examining these questions, however, it will first be necessary to determine the agencies, instruments or persons whose acts may render the state responsible-in other words, who are authorities of the state. This question is one of vital importance, as is apparent from the fact that general claims conventions usually provide that the state shall be held liable only for injuries inflicted upon the persons or property of foreigners by the "authorities” of the state. Our first inquiry therefore, will be directed toward establishing who are authorities or organs of the state, for whose action the state is directly responsible, and in the second place, who are the persons for whose acts towards aliens the state is held to indirect-or, as Oppenheim puts it, vicarious—responsibility, this indirect responsibility being predicated upon a negligent failure to prevent or punish the commission of the injurious act or to open to the injured alien the necessary judicial recourse against the individual wrongdoers.

Under the first head, we shall discuss those agencies of government whose acts may be said to represent the acts of the state, i. e., the legislative, executive and judicial organs of the state. Here also will be considered the extent to which de facto governments, constituent states and minor political subdivisions of the state may be regarded as authorities. Under the second head, we shall discuss the position

1 Infra, & 127 et seq.

« AnteriorContinuar »