In order to avoid this pressure of claims arising out of civil wars, the Latin-American states have succeeded in concluding numerous treaties with European nations by which the latter admit the nonliability of the government for injuries sustained by their subjects in civil war at the hands of revolutionists or savage tribes, provided the damage is not caused through the fault or negligence of the authorities of the government.' The states of Latin-America have among themselves concluded treaties providing for absolute non-liability, whether the injuries sustained by their respective citizens are due to the acts of insurgents or legitimate authorities.2 The Latin-American states have resorted to other methods to avoid the presentation of claims by foreigners for injuries sustained during civil war. In the resolutions of the Pan-American Congresses, in their constitutions, and in their statutes, they have provided that the alien taking part in a civil struggle shall be treated as a native and shall lose his privileges of alienage. These municipal regulations provide generally that the alien shall have the same civil rights as the national and shall have the right to the diplomatic protection of his own country only in the event of a denial of justice after an exhaustion of local remedies. These

3

4

1 Such treaties have been concluded between France and Mexico, Nov. 27, 1886, art. 11 Martens' Recueil des traités, 65, 843; 77 St. Pap. 1090; France and Colombia, May 30, 1893, For. Rel. 1894, 200; 84 St. Pap. 137; Belgium and Mexico, June 7, 1895, art. 15, Martens, 73, 73; Belgium and Venezuela, March 1, 1884, art. 18, Martens, 61, 620; 75 St. Pap. 39; Germany and Colombia, July 23, 1892, art. 20, Martens, 69, 842; 84 St. Pap. 144; Germany and Mexico, Dec. 5, 1882, art. 18; Martens, 59, 474; Italy and Colombia, Oct. 27, 1892, art. 21, Martens, 72, 313; Italy and Mexico, Apr. 16, 1889, Apr. 16, 1890, art. 12, Martens, 68, 711, 771; Italy and Venezuela, July 19, 1861, art. 4, 54 St. Pap. 330; Spain and Colombia, Apr. 28, 1894, art. 4, Olivart, Tratados de España, 11, 64; Spain and Ecuador, May 23, 1888, art. 3, Olivart, 9, 27; 79 St. Pap. 632; Spain and Honduras, Nov. 17, 1894, art. 4, Olivart, 11, 156; Spain and Peru, July 16, 1897, art. 4, Olivart, 12, 348; 4 R. G. D. I. P. (1897), 725; and art. 4 of treaty of Aug. 14, 1897, ibid. 794–797; Spain and Venezuela, Aug. 11, 1861, 53 St. Pap. 1050; Sweden and Mexico, July 29, 1885, art. 21, Martens, 63, 690. 2 Arias in 7 A. J. I. L. (1913), 756; Podesta Costa in 42 Rev. de derecho hist. y let. (1912), 511, note.

3 This provision has been incorporated in one or two treaties with European countriés-e. g., Spain and Peru, Aug. 14, 1897, art. 3, 2 R. G. D. I. P. (1895), 342; 4 ibid. (1897), 794; Belgium and Venezuela, March 1, 1884, art. 8, Busschere, A. de, Code de traités. interessant la Belgique, Bruxelles, 1897, II, 434.

These municipal provisions as well as the treaties concluded by a few European

provisions of municipal law, as will be more fully noticed hereafter, have been ineffectual in relieving the states of Latin-America from the fulfillment of what have been conceived, by the stronger powers, to constitute their international obligations.

countries with Latin-American states acknowledging the principle of limited diplomatic protection are discussed, infra, § 391. See also article by Arias in 7 A. J. I. L. (1913), 757 et seq. The Institute of International Law has declared itself as opposed to the clauses of reciprocal irresponsibility on the ground that they relieve states from the duty of protecting the foreigner in their territory. It believed that states which, through a series of extraordinary circumstances, do not deem themselves to be in a position to insure in a sufficiently effective manner the protection of foreigners in their territory, cannot withdraw themselves from the consequences of such a state of things except by a temporary interdiction of their territory to foreigners. (18 Annuaire, 253, translated in Ralston's International arbitral law, 234.)

CHAPTER VI

INTERNATIONAL RESPONSIBILITY OF THE STATE-Continued. WAR CLAIMS

§ 98. Belligerent and Private Rights.

Any attempt to discuss the international responsibility of the state for injuries sustained by private individuals in time of war immediately encounters the difficulty of establishing any definite rules in the practice of awarding indemnities or compensation for private losses arising out of war. Nevertheless, an examination of the subject in the light of precedent and principle may not be without some useful results.

In a general way, this responsibility of the state may be measured by the state's obligation as a belligerent or a neutral to observe the rules of international law and of war. As it is obviously, however, beyond present possibilities to undertake a detailed review of these ruleswhich indeed have been ably treated in numerous works on the subject the discussion here will be confined to the more important classes of cases in which pecuniary claims have been or are likely to be brought for injuries sustained by individuals or private property in time of war.

At the outset it may be observed that in the progress of time private rights during war have gained greater and greater recognition, coincident with the narrowing of the sphere of belligerent rights, the imposition of more stringent rules for the conduct of war, and the enlargement (until the outbreak of the present European War) of the rights of neutral commerce. It is in the matter of injuries sustained by private persons during war that Rousseau's somewhat inexact doctrine that war is a relation of state to state and not of man to man has found perhaps its greatest field for application, for both in international and municipal law there has been a marked and growing tendency to relieve individuals and their property from the losses incident to war and to cast the burden upon the state. While this modern principle

of state indemnity is to a large extent a matter of municipal law and national policy and equity only, international law has endeavored in many directions to preserve the immunity of private rights from the destructive effects of war. Nevertheless, although the conduct of warfare has in increasing degree been brought within definite rules, private property rights necessarily cannot be safeguarded so minutely or be affected with the fine distinctions incident to civil affairs. A margin of uncertainty is hardly separable from a sphere of rights in which so much depends on military necessity.

§ 99. Theory of Compensation for War Losses.

Before discussing the particular phases of war claims, it seems desirable to take up briefly the general question of compensation for individual war losses. In former times, no rules existed for pecuniary indemnity to individuals for war damages. In the matter of the state's duty to indemnify its own subjects, Vattel appears to have been the first to draw a distinction between the different kinds of war losses. He distinguished, first, those caused by the enemy, for which no indemnity was due; and, secondly, those caused by the state itself. The latter he subdivided into two classes: first, losses caused by the voluntary and deliberate action of the army by way of precaution or strategy; and, secondly, inevitable accidents of war caused either by stress of circumstances or without premeditation. For losses coming within the last subdivision, the state incurred no strict obligation, although, if its finances allowed, it was equitably proper to compensate individuals. For losses within the first subdivision, it was bound to give indemnities at the close of the war.1 This distinction between acts done voluntarily in preparation for war, and injuries inevitable or inflicted only by imperious military necessity has been followed by France and the French courts 2 from the period beginning with the French Revolution, and

1 Vattel, Chitty-Ingraham ed., § 232, p. 402; Bentwich, N., Private property in war, London, 1907, 41-42; H. Rep. 386, 22nd Cong., 1st sess., pp. 9-10; Lawrence's Report on claims against governments, H. Rep. 134, 43rd Cong., 2nd sess., 126; Nys (1912 ed.), III, ch. XI, 450-462.

2 Brémond in article "Actes de gouvernement," 5 Rev. Dr. Pub. (1896), 69, 227; Meignen, E., La guerre, Pillages, destructions, dommages, 5th ed., Paris, 1914, 36 p. As to Italian law to the same effect see H. Rep. 134, 43rd Cong., 2nd sess., 129, 135– 191; Tchernoff, op. cit., 309 et seq.

the principle of state indemnity has thus found its way into modern practice. Attention will be called hereafter to a number of special occasions on which large voluntary indemnities have been granted by various states to inhabitants sustaining war losses.

The matter of exacting pecuniary indemnity on behalf of injured private individuals from belligerent or neutral states violating the laws of war is of comparatively recent origin. The rule of indemnity was developed by international commissions and domestic boards as the only practical sanction for a violation of those private rights which international and municipal law have expressly sought to safeguard. At the Second Hague Conference, it was for the first time definitely provided (Art. 3 of Convention IV): first, that a belligerent in land warfare who violates the provisions of the Hague Regulations, shall, if the case demand, be liable to make compensation; and secondly, that he shall be responsible for all acts committed by persons forming part of his armed forces. It is probable that the first rule extends to all violations of the laws of war besides those included in the Hague Regulations. Whether the second rule will serve hereafter to make the state liable for the wanton or unauthorized acts of unofficered soldiers, for which, under an almost uniform practice, the state has heretofore been held not to be responsible, is a grave question.

§ 100. A State of War.

The measure of private rights in war and the extent to which they are subject to belligerent rights depends on the existence of a state of war, and not on a declaration of war or a recognition of belligerency. The indicia of a state of war may be said to be an armed contest between two states or parts of the same state conducted by regularly organized military bodies and having an avowed political object in view. War may exist where no battle has been or is being fought,2

1 Oppenheim, 2nd ed., II, 300, 319-321. One of the best discussions of Art. 3 of Convention IV is to be found in a small work by Cuno Hofer, Der Schadenersatz im Landkriegsrecht, Tübingen, 1913, 91 p.

The Institute of International Law at its Oxford meeting of 1913, proposed to extend the principle of indemnity to naval warfare. Additional Article to Rules adopted, 15 R. D. I., n. s. (1913), 677.

2 Ex parte Milligan, 4 Wall. 127, 140. Upon the question whether war exists, the