2

linquencies toward aliens, it may be well to recall certain fundamental principles.1 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.1

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.

3 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.

AUTHORITIES OF THE STATE

§ 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.

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.

1. LEGISLATIVE AUTHORITIES

$75. Acts of Legislation.

The legislature is an organ of the state for whose acts the state is directly responsible.1 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.2 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.

* 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.1 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.

3

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.1 The debasement of the currency by legislative decree, impairing the rights of American citizens, has on one 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.3 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.5 This authority is generally strictly

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

* Moore's Dig. VI, 753–754. Venezuelan bond cases, Aspinwall (U. S.) v. Venezuela, 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, §§ 3-4; 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 xxe 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,