Imágenes de páginas

of minor officials, soldiers and individuals, and the circumstances under which their acts may render the state internationally liable. The order of discussion will deviate somewhat from the above classification.


$ 75. Acts of Legislation.

The legislature is an organ of the state for whose acts the state is directly responsible. It has been noted that in municipal law no action lies against the government for acts of legislation unless the statute itself or the constitutional law of the state so prescribes. But a statute is no defense against a breach of international obligations. When acts of legislation,-among which may be included administrative decrees and ordinances having the force of law-have been deemed violative of the rights of aliens according to local or international law, foreign governments have not acquiesced in the theory of the non-liability of the state and have on numerous occasions successfully enforced claims for the injuries sustained by their subjects. Good offices or remonstrances are often employed to prevent legislation deemed prejudicial to national interests. Where such an act is in direct violation of international law, responsibility is clear. Thus, since the Paris Declaration of 1856 blockades to be internationally recognized as binding must be effective. The attempts of some states, therefore, by legislative act or decree to establish a paper blockade of ports in the hands of insurgents have met with opposition from the home governments of nationals whose rights were thus prejudiced.? The mere closure of a port within its control or a decree of nonintercourse is ordinarily within the police power of the state and not a violation of international law.3

1 Bonfils-Fauchille, 6th ed., § 325; Chrétien, op. cit., § 208; Clunet, Consultation, op. cit., 25; Audinet in 20 R. G. D. I. P. 5, 22.

2 De Caro (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 817; Martini (Italy) v. Venezuela, ibid. 845; Orinoco Asphalt Co. (Germany) v. Venezuela, ibid. 588; Minister Furniss to the Haitian Secretary for Foreign Affairs, Nov. 28, 1908, For. Rel. 1908, 442. An executive decree comes within the same principle. French Co. v. Peru, Tchernoff, op. cit., 299 note. Protest of U. S. against Guatemalan decree of 1909, For. Rel. 1909, p. 344.

3 Award of President of Chile on the claims of British subjects against Argentine

The institution of a governmental industrial monopoly, while not involving any municipal responsibility of the state unless so prescribed by the legislature, has on several occasions afforded ground for an international claim in behalf of aliens who had previously engaged in the industry now monopolized by the state. So, the sulphur monopoly of Sicily established by decree of July 9, 1838 was held on arbitration to be an interference with vested rights and to involve the international responsibility of that government. The protests of Great Britain and France resulted in Uruguay's receding from its position in establishing a state monopoly of life insurance in its law of 1912. Italy in a similar case maintained its right to establish such a monopoly,” notwithstanding the opinion of many jurists that by so doing it incurred international responsibility.

Every state has the right to impose customs duties, which may be changed at the discretion of the government. There is no vested right in importers under the customs law which they may count upon. Nevertheless, it is unusual for governments to make sudden and unexpected changes in these laws or to apply them to previous transactions. Thus, Secretary of State Fish protested against certain Spanish customs laws in Porto Rico which imposed a heavy export tax on sugar and molasses, and were applied to preëxisting contracts of American citizens, concluded when no tax was in force. In the absence of treaty stipulation, there is nothing to prevent a government from legally imposing different import duties in one section of

for losses arising out of a decree of Feb. 14, 1845 prohibiting vessels from Montevideo to enter Argentine ports, Moore's Arb. 4916; Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 870. The case is different where the state is estopped by contract from closing a port. Martini (Italy) v. Venezuela, ibid. 819. The state may legally suspend traffic on a river flowing through it. Faber (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 626, 630.

130 St. Pap. 111-120; La Fontaine, Pasicrisie, 97. See also Savage (U. S.) v. Salvador, Moore's Arb. 1855. Such right may be considered vested by treaty, contract, legislative act or even, it has been contended, by custom.

2 Supra, p. 126.
3 Beckman (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 599.

* Mr. Fish, Sec'y of State, to Mr. Lopez Roberts, Spanish minister, April 3, 1869, Moore's Dig. VI, 752. The U. S. has on several occasions instructed its representatives abroad to use their good offices to prevent proposed increases of tariff duties deemed prejudicial to American interests.

its territory from those charged in another section. The debasement of the currency by legislative decree, impairing the rights of American citizens, has on or two occasions met with the earnest remonstrance of the United States.2

2. EXECUTIVE AND ADMINISTRATIVE AUTHORITIES § 76. Limitations upon their Power. Contractual Relations.

The organs of the state in its executive and administrative branch are determined by municipal constitutional law. In a few cases, the acts of the rulers of the state have been held to be internationally binding upon the state. But as a general rule, the power of the head of the state and of the cabinet ministers and higher officials to involve the state in responsibility is tested in first instance by municipal law. This is especially so in the matter of contractual obligations. The power of officers of the government, superior and inferior, to bind the government is limited by their legal authority to enter into such obligations. This authority is generally strictly

1 Bronner (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2871.

2 Moore's Dig. VI, 753–754. Venezuelan bond cases, Aspinwall (U. S.) v. Vene zuela, Dec. 5, 1885, Moore's Arb. 3641-42. Claims were paid by Venezuela for the operation of the "stay" or "espera” law of 1849, which improperly provided for the extinction or suspension of debts due from Venezuelan debtors to foreign creditors. But the Act of Congress of 1862 making paper money legal tender was held not to involve the Government in liability, although it unfavorably affected preexisting contracts. Adams (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3066.

* Murat's orders to confiscate American vessels rendered the Government of the two Sicilies responsible. The Neapolitan Indemnity, Moore's Arb. 4575. Pres. Zaldivar by his own contract bound Salvador to sell the Salvadorean Government Printing Office to an Italian subject. For. Rel., 1888, I, 77, 120.

• Halleck, I, ch. XIII, 883–4; Oppenheim, I, 211; Attorney-General Cushing in 7 Op. Atty. Gen. 238. Day and Garrison (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3563. De facto authorities, however, although not acting in strict accordance with the Constitution, may by their acts bind the nation. Dreyfus (France) v. Chile, July 23, 1892 (award, July 5, 1901), Descamps & Renault, Rec. int. des traités du xx siècle, 1901, pp. 396–398.

* See supra, p. 170 (municipal responsibility) and infra, p. 299 (contract claims) and cases of Wallace, Beales, Zander, and Trumbull (an exceptional case) there cited. See also Bernadou (U. S.) v. Brazil, Moore's Arb. 4620; Widman (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3467; Kearney (U. S.) v. Mexico, ibid. 3468; Rowland (U. S.) v. Mexico, March 3, 1849, ibid. 3458; Alvarez (U. S.) v. Mexico,

construed. The President of a country cannot legally grant or alter the terms of concessions to foreigners, if the constitutional law of the country requires the approval of Congress for such acts. Those dealing with agents of the state are ordinarily bound by their actual authority, and not, as in private law, by their ostensible authority. But in the Trumbull case, the apparent authority of a diplomatic officer to contract was held sufficient to bind his government, and in the Metzger case,2 Judge Day expressed the opinion that the “limitations upon official authority, undisclosed at the time to the other government,” do not "prevent the enforcement of a diplomatic agreement.”

Again, presumably on the theory of quasi-contract or unjust enrichment, the state is liable for the wrongful acts of its officers from which it derives a benefit. Thus the taking of private property for the public use or benefit has always been an accepted ground of international claim for compensation. Similarly, for wrongful seizures and for excess or unjust collections of customs duties or taxes by revenue officers the government is responsible. 4

April 11, 1839, ibid. 3426; Smith (U. S.) v. Mexico, March 3, 1849, ibid. 3456; Sturm (U.S.) v. Mexico, July 4, 1868, ibid. 2756. This question was argued in the Hemming case before the British-American Claims Commission, Aug. 18, 1910, Great Britain contesting the general rule. No award has yet been made (1914).

1 On equitable considerations, in Trumbull (Chile) v. U. S., Aug. 7, 1892, an award was made on the ground that claimant in Chile had a right to assume that the U. S. minister in engaging his legal services was authorized so to do, and that he was not bound by the limitations of R. S., 8 3732. Neither diplomatic officers nor consuls, in the absence of specific instructions, have authority to employ counsel in extradition or other government cases. Cons. Reg., $8 517, 530.

2 Metzger (U.S.) v. Haiti, Oct. 18, 1899, For. Rel. 262.

3 Ashmore (U. S.) v. China, 1884, Moore's Arb. 1857; Baldwin (U. S.) v. Mexico, April 11, 1839, ibid. 3235; Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 578; De Garmendia (U. S.) v. Venezuela, Feb. 17, 1903, ibid. 10; Putegnat's Heirs (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3720. See also infra, p. 169. Even where the original taking of property is lawful, its unreasonable detention has been held to warrant an award. Baldwin, supra; Shaw (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3265; Bischoff (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 581.

* Monnot (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 171; Smith (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3374; Lewis (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3019; Only Son (U. S.) v. Great Britain, Feb. 8, 1853, ibid. 3404; Mr. Davis to Mr. Foster, June 23, 1883, Wharton, I, 158.



$ 77. Tortious Acts.

It is when we come to deal with the international of the state for the torts of its administrative and exe that more serious difficulties are encountered. Some of the problems that at once present themselves are these: Did the officer act as an agent of the state, or in his personal capacity? Is the state, therefore, or he alone liable? Was he a superior officer whose acts within the scope of his authority directly bind the state, or an inferior or minor official against whom judicial remedies must be pursued and for those acts the state is not liable except in case of failure to afford judicial recourse to the person injured, or itself to punish the delinquent official? An examination of the cases shows the subject to be in the utmost confusion, and the distinctions just mentioned very vaguely drawn. Oppenheim and Hall remark that the wrongful acts of administrative officials (these officers being under the disciplinary control of the executive) are presumably acts sanctioned by the state, until such acts are disavowed, the authors punished, and pecuniary reparation made. Strictly construed, this would make of the state practically a guarantor of the efficiency and correct operation of its administrative agencies. As a matter of fact the state is not responsible either for all its administrative officers or for all their acts. may be said, first of all, that for such of their acts as are personal and outside the scope of their functions, they alone are liable and the duty of the state is limited to affording the injured person judicial recourse against the officer according to local law. As will be seen, this rule has even been extended to the official acts of some minor officials. It must be added, however, that notwithstanding the fact that the local law of most countries grants a private right of action against wrongdoing minor officials, foreign governments, especially in dealing with the weaker countries of Latin-America, have not been willing to confine their injured subjects to the dubious and often futile legal remedy against the officer, but have had recourse to diplomatic

Oppenheim, I, 218; Hall, 214. Quoted with approval in Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 578, and Gage (U. S.) v. Venezuela (by Bainbridge, Amer. commissioner) ibid. 165. Maal (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 914 (government liable, “unless they reprimand, punish or discharge" the officer).


« AnteriorContinuar »