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Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?

Published online by Cambridge University Press:  28 March 2017

S. N. Guha Roy
S. N. Guha Roy*
Affiliation:
High Court of Calcutta
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Extract

That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable. The most primitive form of redress which insisted on an eye for an eye and a tooth for a tooth was not really reparation at all, but retaliation pure and simple, treated as a substitute for reparation. Measures of individual retaliation are no longer permissible in municipal law and impartial tribunals are entrusted with the duty of determining the nature and the extent of the reparation for a given wrong according to the law of the land.

International law has tried to follow parallel lines of development in this respect but has failed to keep pace with municipal law, largely because of its inherent difficulties. Reprisals, which are no better than individual retaliation, continued till even the other day to be acknowledged as a legitimate mode of reparation. The Covenant of the League of Nations, while imposing restrictions on resort to war, left uncertain the right of nations to make use of force short of war, suggesting thereby that the legality of reprisals might remain untouched. The Charter of the United Nations forbids the use of force except in certain contingencies and the implication of the relevant provision may well be that reprisals are still legal as long as they do not involve the use of force.

Type
Research Article
Information
American Journal of International Law , Volume 55 , Issue 4 , October 1961 , pp. 863 - 891
Copyright
Copyright © American Society of International Law 1961

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References

1 Fifth Report of the Special Rapporteur of the International Law Commission on International Besponsibility, U.N. Doc. A/CN.4/125 (1960).

2 Philip C. Jessup, A Modern Law of Nations 96 (1949).

3 1 Oppenheim, International Law 262 (H. Lauterpacht, ed., 1958).

4 Ibid. 321.

5 Frederick S. Dunn, The Protection of Nationals 1 (1932).

6 Dunn, op. cit. 133.

7 1 Oppenheim, International Law 51 (H. Lauterpacht, ed., 1958).

8 The speech of Dr. Pal of India at the 9th Session of the International Law Commission. 1957 I.L.C. Yearbook 157-158.

9 G. D. H. and Margaret Cole, The Intelligent Man’s Eeview of Europe Today 663 (1933).

10 U.N. Docs. A/CN.4/96, 106, 111, 119, 125, 134 (1956-1961).

11 Harvard Law School, June 1, 1960.

12 1 Oppenheim, International Law 681-682 (H. Lauterpacht, ed., 1958).

13 Op. oit. 288.

14 Panevezys-Saldutiskis Railway Case, P.C.I.J., Series A/B, No. 76, p. 16.

15 American Commissioner Nielsen’s Opinion in L. M. B. Janes’ Case, Annual Digest, 1925-26, Case No. 158.

16 Diplomatic Protection of Citizens Abroad (1915).

17 “The Theory of Implied State Complicity,” reprinted from Brit. Yr. Bk. of Int. Law (1928), in The Basis of Obligation and Other Papers of Brierly, selected and edited by Sir H. Lauterpacht and Prof. C. H. M. “Waldoek 152-160 (1958).

18 Two of the three Commissioners in L. M. B. Janes’ Case. See note 15 above.

19 “The Theory of Implied State Complicity.” See note 17 above.

20 See note 15.

21 21 A.J.I.L. 518 (1927).

22 The Basis of Obligation in International Law and Other Papers of Prof. J. L. Brierly 52 (The Clarendon Press, 1958).

23 The Law of Nations. An Introduction to the Law of Peace 218 (5th ed., 1955).

24 Philip C. Jessup, A Modern Law of Nations 116 (1949).

25 Jessup, A Modern Law of Nations 101.

26 Ibid.

27 Ibid. 116.

28 Lauterpacht, An International Bill of the Rights of Man 48 (1945), quoted in A Modern Law of Nations 101 (1949).

29 Jessup, op. cit. 101.

30 Ibid. 116.

31 Ibid. 117.

32 Brierly, The Basis of Obligation in International Law, op. cit. note 22 above.

33 Jessup, op. cit. 117.

34 Ibid.

35 H. Lauterpacht, The Function of Law in the International Community 437-438 (1933).