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“Responsibility of States,” at the Hague Codification Conference

Published online by Cambridge University Press:  04 May 2017

Edwin M. Borchard
Edwin M. Borchard*
Affiliation:
Yale University
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Extract

Among the three subjects which the Committee of Experts for the Progressive Codification of International Law considered ripe for codification was the subject of “Responsibility of States for Damage Caused in Their Territory to the Person or Property of Foreigners.” Acting on that assumption, the Committee sent out to the Governments at least three separate documents between 1925 and 1929: first, a Report of its Sub-committee, consisting of Messrs. Guerrero of Salvador, and Wang Chung Hui of China second, a Schedule of Points drawn up by the so-called Preparatory Committee of Experts, a smaller body, and designed to elicit replies from the different governments, presenting their views on different aspects of the general subject; and finally, the Bases of Discussion, consisting of the replies to the Schedule of Points made by some thirty governments, the substance of these replies being then crystallized into propositions called Bases of Discussion, on which The Hague Conference of the governments, called for March 13, 1930, was to conduct its deliberations. Perhaps that Conference was handicapped from the start by the fact that the Guerrero report, which had been circulated, departed materially, in some of its fundamental postulates and premises (representing minority views) from the subsequent Bases of Discussion, which reflected the views of the majority of the replying governments. Of the Latin-American nations, Chile was practically the only country to respond to the Schedule of Points on the Responsibility of States, and then only within the narrowest limits.

Type
Research Article
Information
American Journal of International Law , Volume 24 , Issue 3 , July 1930 , pp. 517 - 540
Copyright
Copyright © American Society of International Law 1930

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References

1 Printed in Special Supplement to this Jouknal, Vol. X X (1926), pp. 177-203; see editorial comment on the report in this Joubnal, Vol. X X (1926), pp. 738-747.

2 League of Nations, C. 76. M. 69.1929. V, 253 pp., double folio pages (French and English),with a supplement containing late replies from the United States and Canada.

3 Article 1384 covers the principal's responsibility for the wrongful acts of various types of agents, e.g., parents for children, masters for servants, schoolmasters (now the state) for pupils, artisans for apprentices, etc. But an amendment of 1899 gives parents, artisans, and schoolmasters an opportunity to escape liability by proving that they could not prevent the wrongful act. Section 831 of the German Civil Code also limits the principal's liability by enabling him to disprove any implication of fault on his part. On private law theories of governmental responsibility in tort, see Borchard, Theories of Governmental Responsibility in Tort, 28 Columbia Law Review (1928) 577, 597 et seq., 607, note 82.

4 Gierke, ,Genossenschaftstheorie (1887),743, 750 et seq. Google Scholar; Hafter, ,Die Delikts- und Straffähigkeit der Personenverbände (Berlin, 1903),25 et seq. Google Scholar; Michoud, , “ De la responsabilité de l'Etat à raison des fautes de ses agents," 3 Rev. de Droit Pub. (1895) 401 Google Scholar

5 28 Columbia Law Review (1928) 734, 748 et seq.

6 For further elaboration of these ideas, see Borchard, “ Theoretical aspects of the international responsibility of states” in Bruns' Zeitschrift für ausländisches üffentliches Recht und Vülkerrecht (1929), 223, 224 et seq.

7 “ The extent of the state's responsibility depends upon all the circumstances and, in particular, upon whether the actof the private individual was directed against a foreigner as such and upon whether the injured person had adopted a provocative attitude.” (Basis 19.)

“ Responsibility involves for the state concerned an obligation to make good the damage suffered in so far as it results from failure to comply with the internationalobligation. It may also, according to the circumstances, and when this consequence follows from the general principles of international law, involve the obligation to afford satisfaction to the state which has been injured in the person of its national, in the shape of an apology (given with the appropriate solemnity) and (in proper cases) the punishment of the guilty persons.

“Reparation may, if there is occasion, include an indemnity to the injured persons in respect of moral suffering caused to them.

“Where the state's responsibility arises solely from failure to take proper measures after the act causing the damage has occurred, it is only bound to make good the damage due to its having failed, totally or partially, to take such measures.

“A state which is responsible for the action of other states is bound to see that they execute the measures which responsibility entails, so far as it rests with them to do so; if it is unable to do so, it is bound to furnish an equivalent compensation.

“In principle, any indemnity to be accorded is to be put at the disposal of the injured state.”(Basis 29.)

The sub-committee, whose report was approved by the Commission, recommended the suppression of Basis 19, partly because it was considered merely supplementary to Basis 18, partly because it dealt with the measure of damages, which it was deemed best to omit from the convention, partly because it suggested too vague a measure in that it “ depends upon all the circumstances,” partly because the subjective attitude of the wrongdoer with respect to the foreigner or the foreigner's “ provocative attitude ” presented questions of fact, the effect of which had better be left to the court to determine rather than to a code.

8 See infra, note 21.

9 Janes (U. S.) v. Mexico, Opinions of Commissioners, General Claims Commission, United States and Mexico, p. 108, printed in this Jotjbnai,, Vol. 21, p. 362, discussed in this Journal, Vol. 21, p. 616; Vol. 22, p. 140.

10 “Where a state is entrusted with theconduct of the foreign relations of another political unit, the responsibility for damage suffered by foreigners on the territory of the latter belongs to such state.

“ Where one government is entrusted with the conduct of the foreign relations of several states, the responsibility for damage suffered by foreigners on the territories of such states belongs to such common or central government.” (Basis 23.)

11 Twelfth Meeting, April 1, 1930.

12 “Where the foreigner has a legal remedy open to him in the courts of the state (which term includes administrative courts), the state may require that any question of international responsibility shall remain in suspense until its courts have given their final decision.This rule does not exclude application of the provisions set out in Bases of Discussion Nos.6 and 6.”(Basis 27.)

13 The Dutch delegate also spoke of “ distinguished” citizens being injured, but the Mexican delegate answered that he could find no distinction between “ distinguished” and other citizens, both having to exhaust local remedies, if available. Sixth Meeting, March 22,1930.

14 The Commission thus avoided the awkward conclusion, which the Swiss and Dutch view entailed, that international responsibility might arise before it could be invoked. The suggestion that rights can exist without remedies is not a particularly happy one, from a legal point of view. It is sterile. That is why it seemed best to many delegations to combine in one article the substantive existence of international responribility and the duty to make reparation, both concepts being essential to and inherent in responsibility. Beforethere was a duty to make international reparation there could be no international responsibility; and ordinarily before there was an exhaustion of available local remedies, there could be no duty to make such international reparation, i.e., international responsibility. That, by defnition, was the view of the Harvard Research, Art. 6, “ A state is not ordinarily responsible(\mder a duty to make reparation to another state) until the local remedies available to the injured alien have been exhausted.”Dr. Maurtua, the distinguished Peruvian scholar, in suggesting that international responsibility can arise before it can be invoked (Victor M. Maurtua and James Brown Scott, Responsibility of states for damage caused in their territory to the person or property of foreigners, New York, Oxford Press, 1930,p. 53) and in criticizing the Harvard Research “ formula,”Art. 6, apparently overlooks the precise definition of international responsibility adopted in Article 6 just mentioned and differs from all the Latin-American and the overwhelming majority of all other delegates at the Conference. See further on this question the article in Bruns' ZeitsChrift, supra, note 6,pp. 233-242. After the impasse of April 4, the seventeen minority delegates again suggestedthe restoration of the word “ arise”instead of “ be invoked.”

15 The subject-matter of Article 6 was entirely omitted from the proposals submitted by the minority of seventeen delegates after the impasse of April 4.

16 “ A state is responsible for damage suffered by a foreigner as the result of acts or omissions of its oflBcials, acting within the limits of their authority, when such acts or omissions contravene the international obligations of the state.” (Basis 12.)

“ A state is responsible for damage suffered by a foreigner as the result of acts of its officials, even if they were not authorised to perform them, if the officials purported to act within the scope of their authority and their acts contravened the international obligations of the state.” (Basis 13.)

17 See e.g., Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, Venezuelan Arbitrations,p. 678; The Jessie et al. (Gt. Brit.) v. United States, Aug. 18,1910, Nielsen's Report, 479, 480; Panther case (Brazil) v. Germany, 1906,13 Rev. Gen. D. 1. P. (1906) 200; Panama Star and Herald (U. S.) v. Colombia, 1886, Moore's Digest, VI, 642, 775.

18 See this Journal, Vol. 20, p. 743; Bruns' Zeitschrift, supra, 228 et seq.

19 A state is responsible for damage suffered by a foreigner as the result of the fact that:

(1) He is refused access to the courts to defend his rights;

(2) A judicial decision which is final and without appeal is incompatible with the treaty obligations or other international obligations of the state;

(3) There has been unconscionable delay on the part of the courts;

(4) The substance of a judicial decision has manifestly been prompted by Ul-will toward foreigners as such or as subjects of a particular state.”(Basis 5.)

“ A state is responsible for damage suffered by a foreigner as the result of the courts following a procedure and rendering a judgment vitiated by faults so gross as to indicate that they did not offer the guarantees indispensable for the proper administration of justice.” (Basis 6.)

“ A state is responsible for damage suffered by a foreigner as the result of the courts following a procedure and rendering a judgment vitiated by faults so gross as to indicate that they did not offer the guarantees indispensable for the proper administration of justice.” (Basis 6.)

20 “ A state is responsible for damage caused by a private person to the person or property of a foreigner if it has failed to take such preventive or punitive measures as in the circumstances might properly be expected of it.”

“ Commentary of the sub-committee:

“ It was recognised that a state is in principle not internationally responsible for damage caused by a private person to the person or property of a foreigner. In such a case the state can only become responsible through its own act. “ This is the case where the State has failed to take such preventive or punitive measures as in the circumstances might properly be expected of it.

“ The text submitted to the Committee is the resiilt o f reciprocal concessions between different points of view. It has been intentionally drafted in very wide termsso as to leave to international tribunals the full freedom of judgment which they must have in order to take account of the varjdng circumstances of particular cases.”

21 “ A state is responsible for damage suffered by a foreigner as the result of failure on the part of the executive power to show such diligence in the protection of foreigners as, having regard to the circumstances and to the status of the persons concerned, could be expected from a civilised state. The fact that a foreigner is invested with a recognised public status imposes upon the state a special duty of vigilance.” (Basis 10.)

“ A state is responsible for damage caused by a private individual to the person or property of a foreigner if it has failed to show in the protection of such foreigner's person or property such diligence as, having regard to the circumstances and to any special status possessed by him, could be expected from a civilised state.” (Basis 17.)

“ A state is responsible for damage caused by a private individual to the person or property of a foreigner if it has failed to show such diligence in detecting and punishing the author of the damage as, having regard to the circumstances, could be expected from a civilised state.” (Basis 18.)

22 SeeBorohard, ,Diplomatic Protection of Citizens Abroad (1915), §44 and authorities there cited.Google Scholar

23 “ A state is, in principle, not responsible for damage caused to the person or property of a foreigner by persons taking part in an insurrection or riot or by mob violence.” (Basis 22.)

“ Nevertheless, a state is responsible for damage caused to the person or property of a foreigner by persons taking part in an insurrection or riot or by mob violence if it failed to use such diligence as was due in the circumstances inpreventing the damage and punishing its authors.” (Basis 22 (a).)

“ A state must accord to foreigners to whom damage has been caused by persons taking part in an insurrection or riot or by mob violence the same indemnities as it accords to its own nationals in similar circumstances.” (Basis 22 (b).)

“ A state is responsible for damage caused to foreigners by an insurrectionist party which has been successful and has become the government to the same degree as it is responsible for damage caused by acts of the government de jure or its officials or troops.” (Basis 22(c).)

“ A state is responsible for damage caused to the person or property of a foreigner by persons taking part in a riot or by mob violence if the movement was directed against foreigners as such, or against persons of a particular nationality, unless the government proves that there was no negligence on its part or on the part of its officials.” (Basis 22 (d)).

24 ” A state is not responsible for damage caused to a foreigner if it proves that its act was occasioned by the immediate necessity of self-defense against a danger with which the foreigner threatened the state or other persons.

” Should the circumstances not fully justify the acts which caused the damage, the state may be responsible to an extent to be determined.” (Basis 24.)

25 “ The international responsibility of a state, for a political crime committed against the person of a foreigner that assumes a public character, is not involved imless the state has neglected its duty of special vigilance in regard to the appropriate measures with a view to preventing the crime or with a view to the pursuit, arrest and trial of the guilty person.”

26 “ A state cannot claim pecuniary indemnity, by reason of damages suffered by a private person on the territory of a foreign state, imless the injured person was, at the moment when the damages were caused, and remained up to the decision to intervene, a national of the claimant state.