International Law. A Treatise Volume I Part 24

RESPONSIBILITY OF STATES

I

ON STATE RESPONSIBILITY IN GENERAL

Grotius, II. c. 21, -- 2--Pufendorf, VIII. c. 6, -- 12--Vattel, II.

---- 63-78--Hall, -- 65--Halleck, I. pp. 440-444--Wharton, I. -- 21--Moore, VI. ---- 979-1039--Wheaton, -- 32--Bluntschli, -- 74--Heffter, ---- 101-104--Holtzendorff in Holtzendorff, II. pp.

70-74--Liszt, -- 24--Ullmann, -- 39--Bonfils, Nos.

324-332--Despagnet, No. 466--Piedelievre, I. pp.

317-322--Pradier-Fodere, I. Nos. 196-210--Rivier, I. pp.

40-44--Calvo, III. ---- 1261-1298--Fiore, I. Nos. 659-679, and Code, Nos. 591-610--Martens, I. -- 118--Clunet, "Offenses et actes hostiles commis par particuliers contre un etat etranger"

(1887)--Triepel, "Volkerrecht und Landesrecht" (1899), pp.

324-381--Anzillotti, "Teoria generale della responsabilita dello stato nel diritto intern.a.z.ionale" (1902)--Wiese, "Le droit international applique aux guerres civiles" (1898), pp.

43-65--Rougier, "Les guerres civiles et le droit des gens" (1903), pp. 448-474--Baty, "International Law" (1908), pp.

91-242--Anzillotti in R.G. XIII. (1906), pp. 5-29 and 285-309--Foster in A.J. I. (1907), pp. 5-10--Bar in R.I. 2nd Ser.

I. (1899), pp. 464-481.

[Sidenote: Nature of State Responsibility.]

-- 148. It is often maintained that a State, as a sovereign person, can have no legal responsibility whatever. This is only correct with reference to certain acts of a State towards its subjects. Since a State can abolish parts of its Munic.i.p.al Law and can make new Munic.i.p.al Law, it can always avoid legal, although not moral, responsibility by a change of Munic.i.p.al Law. Different from this internal autocracy is the external responsibility of a State to fulfil its international legal duties. Responsibility for such duties is, as will be remembered,[245] a quality of every State as an International Person, without which the Family of Nations could not peaceably exist. Although there is no International Court of Justice which could establish such responsibility and p.r.o.nounce a fine or other punishment against a State for neglect of its international duties, State responsibility concerning international duties is nevertheless a _legal_ responsibility. For a State cannot abolish or create new International Law in the same way as it can abolish or create new Munic.i.p.al Law. A State, therefore, cannot renounce its international duties unilaterally[246] at discretion, but is and remains legally bound by them. And although there is not and never will be a central authority above the single States to enforce the fulfilment of these duties, there is the legalised self-help of the single States against one another. For every neglect of an international legal duty const.i.tutes an international delinquency,[247] and the violated State can through reprisals or even war compel the delinquent State to comply with its international duties. It is only theorists who deny the possibility of a legal responsibility of States, the practice of the States themselves recognises it distinctly, although there may in a special case be controversy as to whether a responsibility is to be borne. And State responsibility is now in a general way recognised for the time of war by article 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, which stipulates: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to make compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."

[Footnote 245: See above, -- 113.]

[Footnote 246: See Annex to Protocol I. of Conference of London, 1871, where the Signatory Powers proclaim that "it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrangement."]

[Footnote 247: See below, -- 151.]

[Sidenote: Original and Vicarious State Responsibility.]

-- 149. Now if we examine the various international duties out of which responsibility of a State may rise, we find that there is a necessity for two different kinds of State responsibility to be distinguished.

They may be named "original" in contradistinction to "vicarious"

responsibility. I name as "original" the responsibility borne by a State for its own--that is, its Government's actions, and for such actions of the lower agents or private individuals as are performed at the Government's command or with its authorisation. But States have to bear another responsibility besides that just mentioned. For States are, according to the Law of Nations, in a sense responsible for certain acts other than their own--namely, certain unauthorised injurious acts of their agents, of their subjects, and even of such aliens as are for the time living within their territory. This responsibility of States for acts other than their own I name "vicarious" responsibility. Since the Law of Nations is a law between States only, and since States are the sole exclusive subjects of International Law, individuals are mere objects[248] of International Law, and the latter is unable to confer directly rights and duties upon individuals. And for this reason the Law of Nations must make every State in a sense responsible for certain internationally injurious acts committed by its officials, subjects, and such aliens as are temporarily resident on its territory.[249]

[Footnote 248: See below, -- 290.]

[Footnote 249: The distinction between original and vicarious responsibility was first made, in 1905, in the first edition of this treatise and ought therefore to have been discussed by Anzillotti in his able article in R.G. XIII. (1906), p. 292. The fact that he does not appreciate this distinction is prejudicial to the results of his researches concerning the responsibility of States.]

[Sidenote: Essential Difference between Original and Vicarious Responsibility.]

-- 150. It is, however, obvious that original and vicarious State responsibility are essentially different. Whereas the one is responsibility of a State for a neglect of its own duty, the other is not. A neglect of international legal duties by a State const.i.tutes an international delinquency. The responsibility which a State bears for such delinquency is especially grave, and requires, apart from other especial consequences, a formal expiatory act, such as an apology at least, by the delinquent State to repair the wrong done. On the other hand, the vicarious responsibility which a State bears requires chiefly compulsion to make those officials or other individuals who have committed internationally injurious acts repair as far as possible the wrong done, and punishment, if necessary, of the wrongdoers. In case a State complies with these requirements, no blame falls upon it on account of such injurious acts. But of course, in case a State refuses to comply with these requirements, it commits thereby an international delinquency, and its. .h.i.therto vicarious responsibility turns _ipso facto_ into original responsibility.

II

STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

See the literature quoted above at the commencement of -- 148.

[Sidenote: Conception of International Delinquencies.]

-- 151. International delinquency is every injury to another State committed by the head and the Government of a State through violation of an international legal duty. Equivalent to acts of the head and Government are acts of officials or other individuals commanded or authorised by the head or Government.

An international delinquency is not a crime, because the delinquent State, as a Sovereign, cannot be punished, although compulsion may be exercised to procure a reparation of the wrong done.

International delinquencies in the technical sense of the term must not be confounded either with so-called "Crimes against the Law of Nations"

or with so-called "International Crimes." "Crimes against the Law of Nations" in the wording of many Criminal Codes of the single States are such acts of individuals against foreign States as are rendered criminal by these Codes. Of these acts, the gravest are those for which the State on whose territory they are committed bears a vicarious responsibility according to the Law of Nations. "International Crimes," on the other hand, refer to crimes like piracy on the high seas or slave trade, which either every State can punish on seizure of the criminals, of whatever nationality they may be, or which every State has by the Law of Nations a duty to prevent.

An international delinquency must, further, not be confounded with discourteous and unfriendly acts. Although such acts may be met by retorsion, they are not illegal and therefore not delinquent acts.

[Sidenote: Subjects of International Delinquencies.]

-- 152. An international delinquency may be committed by every member of the Family of Nations, be such member a full-Sovereign, half-Sovereign, or part-Sovereign State. Yet, half- and part-Sovereign States can commit international delinquencies in so far only as they have a footing within the Family of Nations, and therefore international duties of their own.

And even then the circ.u.mstances of each case decide whether the delinquent has to account for its neglect of an international duty directly to the wronged State, or whether it is the full-Sovereign State (suzerain, federal, or protectorate-exercising State) to which the delinquent State is attached that must bear a vicarious responsibility for the delinquency. On the other hand, so-called Colonial States without any footing whatever within the Family of Nations and, further, the member-States of the American Federal States, which likewise lack any footing whatever within the Family of Nations because all their possible international relations are absorbed by the respective Federal States, cannot commit an international delinquency. Thus an injurious act against France committed by the Government of the Commonwealth of Australia or by the Government of the State of California in the United States of America, would not be an international delinquency in the technical sense of the term, but merely an internationally injurious act for which Great Britain or the United States of America must bear a vicarious responsibility. An instance of this is to be found in the conflict[250] which arose in 1906 between j.a.pan and the United States of America on account of the segregation of j.a.panese children by the Board of Education of San Francisco and the demand of j.a.pan that this measure should be withdrawn. The Government of the United States at once took the side of j.a.pan, and endeavoured to induce California to comply with the j.a.panese demands.

[Footnote 250: See Hyde in "The Green Bag," XIX. (1907), pp. 38-49; Root in A.J. I. (1907), pp. 273-286; Barthelemy in R.G. XIV. (1907), pp.

636-685.]

[Sidenote: State Organs able to commit International Delinquencies.]

-- 153. Since States are juristic persons, the question arises, Whose internationally injurious acts are to be considered State acts and therefore international delinquencies? It is obvious that acts of this kind are, first, all such acts as are performed by the heads of States or by the members of Government acting in that capacity, so that their acts appear as State acts. Acts of such kind are, secondly, all acts of officials or other individuals which are either commanded or authorised by Governments. On the other hand, unauthorised acts of corporations, such as Munic.i.p.alities, or of officials, such as magistrates or even amba.s.sadors, or of private individuals, never const.i.tute an international delinquency. And, further, all acts committed by heads of States and members of Government outside their official capacity, simply as individuals who act for themselves and not for the State, are not international delinquencies either.[251] The States concerned must certainly bear a vicarious responsibility for all such acts, but for that very reason these acts do not comprise international delinquencies.

[Footnote 251: See below ---- 157-158.]

[Sidenote: No International Delinquency without Malice or culpable Negligence.]

-- 154. An act of a State injurious to another State is nevertheless not an international delinquency if committed neither wilfully and maliciously nor with culpable negligence. Therefore, an act of a State committed by right or prompted by self-preservation in necessary self-defence does not contain an international delinquency, however injurious it may actually be to another State. And the same is valid in regard to acts of officials or other individuals committed by command or with the authorisation of a Government.

[Sidenote: Objects of International Delinquencies.]

-- 155. International delinquencies may be committed against so many different objects that it is impossible to enumerate them. It suffices to give some striking examples. Thus a State may be injured--in regard to its independence through an unjustified intervention; in regard to its territorial supremacy through a violation of its frontier; in regard to its dignity through disrespectful treatment of its head or its diplomatic envoys; in regard to its personal supremacy through forcible naturalisation of its citizens abroad; in regard to its treaty rights through an act violating a treaty; in regard to its right of protection over citizens abroad through any act that violates the body, the honour, or the property[252] of one of its citizens abroad. A State may also suffer various injuries in time of war by illegitimate acts of warfare, or by a violation of neutrality on the part of a neutral State in favour of the other belligerent. And a neutral may in time of war be injured in various ways through a belligerent violating neutrality by acts of warfare within the neutral State's territory; for instance, through a belligerent man-of-war attacking an enemy vessel in a neutral port or in neutral territorial waters, or through a belligerent violating neutrality by acts of warfare committed on the Open Sea against neutral vessels.

[Footnote 252: That a State which does not pay its public debts due to foreigners and refuses, on the demand of the home State of the foreigners concerned, to make satisfactory arrangements commits international delinquency there is no doubt. On the so-called Drago doctrine and the Hague Convention concerning the Employment of Force for the Recovery of Contract Debts, see above, -- 135, No. 6.]

[Sidenote: Legal consequences of International Delinquencies.]

-- 156. The nature of the Law of Nations as a law between, not above, Sovereign States excludes the possibility of punishing a State for an international delinquency and of considering the latter in the light of a crime. The only legal consequences of an international delinquency that are possible under existing circ.u.mstances are such as create a reparation of the moral and material wrong done. The merits and the conditions of the special cases are, however, so different that it is impossible for the Law of Nations to prescribe once for all what legal consequences an international delinquency should have. The only rule which is unanimously recognised by theory and practice is that out of an international delinquency arises a right for the wronged State to request from the delinquent State the performance of such expiatory acts as are necessary for a reparation of the wrong done. What kind of acts these are depends upon the special case and the discretion of the wronged State. It is obvious that there must be a pecuniary reparation for a material damage. Thus, according to article 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, a belligerent party which violates these laws shall, if the case demands, be liable to make compensation. But at least a formal apology on the part of the delinquent will in every case be necessary. This apology may have to take the form of some ceremonial act, such as a salute to the flag or to the coat of arms of the wronged State, the mission of a special emba.s.sy bearing apologies, and the like. A great difference would naturally be made between acts of reparation for international delinquencies deliberately and maliciously committed, on the one hand, and, on the other, for such as arise merely from culpable negligence.

When the delinquent State refuses reparation of the wrong done, the wronged State can exercise such means as are necessary to enforce an adequate reparation. In case of international delinquencies committed in time of peace, such means are reprisals[253] (including embargo and pacific blockade) and war as the case may require. On the other hand, in case of international delinquencies committed in time of war through illegitimate acts of warfare on the part of a belligerent, such means are reprisals and the taking of hostages.[254]

[Footnote 253: See below, vol. II. -- 34.]

[Footnote 254: See below, vol. II. ---- 248 and 259.]

III

STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS