governments as de facto, has been held binding upon its own citizens and to estop them from asserting rights based upon the de facto character of the government in question. It will be noticed hereafter (infra, p. 235) that the recognition of the belligerent character of a revolutionary movement releases the legitimate government from liability to the subjects of the recognizing power for the acts of the revolutionists.

While international commissions have held almost uniformly that only a general de facto government can involve the responsibility of the state, it was held in one case, which has been sharply criticized 4

3

1 Jarvis (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 150 (the Paez Government in Venezuela); Janson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2902 (the Maximilian government in Mexico); Schultz (U. S.) v. Mexico, July 4, 1868, ibid. 2973 (recognition of Juarez government by U. S. estopped claimant from asserting Miramon government as the de facto government of Mexico.

A question has been raised whether the acts of the Huerta government in Mexico are binding on Mexico, and hence upon the Carranza or other government which may ultimately be established. Huerta's government having been at least a general de facto government-it was indeed recognized as the de jure government by various European powers-its acts normally bind the nation. But the further question arises whether a declaration of the President of the United States to the effect that "he will not recognize as legal or binding anything done by Huerta since he became Dictator," i. e., subsequent to Huerta's dissolution of the Mexican Congress and the arrest of certain deputies, October 10, 1913, has any effect upon the international obligations of Mexico, or operates as an estoppel upon citizens of the U. S. to whom Huerta's government incurred obligations subsequent to October 10, 1913. As against foreign governments, it would seem that the alleged statement of the President does not alter the obligations of the Mexican nation under general principles of international law. As regards citizens of the U. S., it is very doubtful whether Mexico can avail itself of any such declaration to escape obligations properly incurred and due by the nation or its authorities under recognized principles. On Mexican loans, see note by Thomas Baty in 39 Law Mag. & Rev. (1914), 470.

2 Day and Garrison (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3548, 3553 (dictum); Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 889.

The acts of local de facto government were held not to bind the state in Georgiana and Lizzie Thompson (U. S.) v. Peru (supra), and in the Don Miguel loan.

Again, e. g., Mexico was held not responsible for the acts of the Maximilian government: Janson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2902; Stückle, ibid. 2935; Baxter, ibid. 2934. Nor for those of the Zuloaga and Miramon governments: Cucullu, ibid. 2873; McKenny, ibid. 2881 and cases cited p. 2885. Nor U. S. for acts of the Confederate states, Prats (Mexico) v. U. S., ibid. 2886.

'Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 2859-2866, where the 'Lapradelle and Politis, Recueil des arbitrages, I, 466–467.

that the state was responsible for the wrongful acts of a local de facto government.

wrongful acts of a "junta" established for six months in a state of Mexico were held to render Mexico responsible.

See also Central and South American Telegraph Co. (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2938, 2942 (where a local de facto government was held entitled to take advantage of a concession permitting the "government" to suspend a cable service).

CHAPTER V

INTERNATIONAL RESPONSIBILITY OF THE STATE-Continued. ACTS OF INDIVIDUALS

§ 86. Obligations of the Government.

For

Private individuals are in no sense authorities of the state. this reason, their acts do not involve the international responsibility of the state unless the latter by some independent delinquency of its own may be charged with a violation of its international obligations. The first of these obligations in so far as it affects the present subject is to furnish legislative, administrative and judicial machinery which normally would protect the alien against injuries to his person or property by private individuals.1 This does not mean that the governmental machinery of the state must be so efficient as to prevent all injury to aliens for this would make of the state a guarantor of the security of aliens but simply that its legislation, its police, and its courts, whatever the form of government, must be so organized that a violent act by one private individual upon another is only a fortuitous event and that the judicial channels for legal recourse against the wrongdoer are freely open. A second and subsidiary duty, a default in which has often served to fasten responsibility upon the state, is the use of due diligence to prevent the injury, and in a criminal case the exertion of all reasonable efforts to bring the offenders to justice.2

1 Grotius, II, ch. 21, § 2; Vattel, liv. II, ch. VI, §§ 71-73; Hall, 215-218; Oppenheim, I, 221; Phillimore, I, 218; Halleck, ch. XIII, § 6; Moore's Dig. VI, §§ 10191021; Calvo, § 1271; Pradier-Fodéré, § 202; Fiore, §§ 669-673; Anzilotti in 13 R. G. D. I. P. (1906), 14, 298; 27 Law Mag. and Rev. (1901), 337; Pradier-Fodéré's statement (I, 336) that the state is responsible "if it refuses to repair the damage caused by one of its subjects" is inaccurate. A useful contribution to the subject is made by Georg Muszack, Ueber die Haftung einer Regierung für Schäden, welche Ausländer. . . gelitten haben, Strassburg, 1905, p. 37 et seq, and by R. E. Curtis, The law of hostile military expeditions, reprinted from 8 A. J. I. L. (1914), 1-37, 224-255.

2 The apprehension and punishment of the offender has been held to release the government from liability on several occasions: Duvall claim v. Mexico, Mr. Gresham,

It is a fundamental principle that the legislation of a state must be such as to enable it to fulfill its international duties. Its law must impose penalties upon the violation by individuals—natives, residents or aliens of the international obligations of the state. Thus Great Britain in the "Alabama" case could not plead the insufficiency of its legislation on neutrality to escape liability to the United States for the violation by private individuals of British neutrality.1

More uncertain questions are the measure of local protection which must be afforded and the tests of state negligence in preventing a private injury. In normally well-ordered states government liability is measured by the ability to protect the injured person in a given case.2 The nature of the case is all important. Thus, if the moving cause of the injury is notorious, e. g., bandits in a certain locality,3 a greater degree of protection is incumbent upon the government than in cases of sudden violence which the best organized government could not foresee. Commissioner Wadsworth in the Mills case before the United States-Mexican commission of 1868 expressed the opinion that the test of a nation's responsibility for injuries committed upon aliens in its territory by private persons is the enforcement of the laws "with reasonable vigor and promptness to prevent violence when practicable, or failing in that to punish the offenders criminally, and to indemnify

Sec'y of State, to Mrs. Robinson, Sept. 20, 1894, Moore's Dig. VI, 806; Harwood claim (Gt. Brit.) v. Austria, 1852, 44 St. Pap. 236; Assassination of Servian ViceConsul at Pristina, Turkey, 1890, Baty, 224.

A notice to aliens of special circumstances rendering it dangerous to visit certain portions of its territory, would seem to release the state from liability for the happening of the events against which they were warned. Comments on Miss Stone's capture by brigands in Turkey, 1901; 27 Law Mag. and Rev. (1901), 337.

1 Nor could the United States in the New Orleans riot case of 1891 escape liability because the Constitution gave the federal government no means to compel states to prosecute offenders against aliens. See also Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 2863, and infra, p. 226.

2 Bowley (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 3032; Calvo, § 1274, makes the "facilities at hand" the test of responsibility. Mr. Hay, Sec'y of State, to Mr. Dudley, min. to Peru, Sept. 5, 1899, Moore's Dig. VI, 806. But the apprehension and punishment of the guilty will be demanded.

In weaker states like China and Morocco, the rule of ability to protect as a test of liability has often been held, by strong claimant governments, not to prevail. Baldwin claim v. Mexico, 1887, Moore's Dig. VI, 802.

" 1

the injured party by [its] remedial civil justice.' A preliminary demand for adequate police protection, therefore, is considered as laying the foundation for a claim for redress of injuries in case it is not afforded.2

The general rule that in the absence of governmental complicity (the particular manifestations of which will be examined presently), the government is not responsible for the wrongful acts of private individuals which it could not prevent, has been reiterated on numerous occasions by international tribunals and by the Department of State.3

In a number of cases occurring in the more poorly organized countries like China, Turkey, Morocco and formerly Greece and a few other states, the government has been held liable for the acts of private persons even in the absence of governmental complicity, apparently regardless of principle, but presumably on the ground that an indifferent police protection and enforcement of the laws invited disorder and constituted in itself an international delinquency. In other words, liability is predicated on the failure to prevent the injury, regardless of ability to prevent it. This practice overlooks the principle that an alien visiting unstable countries assumes a certain measure of risk, and compels the weaker nations, like China and Morocco, to assume a certain degree of guaranty for the safety of aliens. By treaty, some of

1 Mills (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3034. 2 Mr. Bacon, Act'g Sec'y of State, to Mr. Leishman, July 2, II, 1072-1073.

See also Fiore, § 670. 1907, For. Rel., 1907,

Thus the government has been held not liable for acts of private persons in the following cases: Wipperman (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3041 (pillage by savages); Dickens (U. S.) v. Mexico, July 4, 1868, ibid. 3037 and Garza, ibid. 3038 (raiding bands); Mills (U. S.) v. Mexico, ibid. 3034 (private assault); Poston, ibid. 2998 and Sagardia claim, Magoon's Reports, 471 (thieves); Lovett (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2990 (revolted convicts); Molière (U. S.) v. Spain, Feb. 12, 1871, ibid. 3252 (private quarrel); Sumpter (U. S.) v. Mexico, July 4, 1868, ibid. 3038 (marauding Indians); Dorris (U. S.) v. Mexico, ibid. 3003 (private scuffle between enraged soldiers); Johnson (U. S.) v. Mexico, March 3, 1849, ibid. 3031 and Duvall claim v. Mexico, Mr. Gresham to Mrs. Robinson, Sept. 20, 1894 (robbery by highwaymen); 1 Op. Atty. Gen., March 11, 1802 (unlawful captures by individuals). Mr. Hay, Sec'y of State, to Mr. Fowler, April 15, 1899, Moore's Dig. VI, 792 (piratical acts of Haitian citizens).

Numerous cases of private murder of aliens in China, reported in For. Rel. 1880 èt seq. Japanese subjects murdered in China, 1874, Moore's Arb. 4857; Dreyfus,