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State Responsibility for Failure to Vindicate the Public Peace

  • William Gorham Rice (a1)


There is confusion in the doctrine of the responsibility of states for denial of justice, particularly where the “denial” consists in failure to operate the machinery of criminal justice.



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1 See, for instance, Borchard, “'Responsibility of States’ at the Hague Conference,” this Journal, Vol. 24 (1930), 517, 524. Denial of justice is variously defined. Fitzmaurice, “The Meaning of the Term ‘Denial of Justice,'” British Year Book of Int. Law, 1932, 93. “A book could be written on various meanings that have been given to the term.” Dunn, The Protection of Nationals (1932), 147.

2 A state's unreasonable failure to mete out criminal justice to a person who has committed a crime in the state's territory against an alien is well recognized as entailing the state's international responsibility. (But the term denial of justice is overstretched when applied to this failure. Dunn, op. cit., 150.) The draft of the Convention on Responsibility of States that was favored by a majority of the Third Committee of the Hague Conference for Codification of 1930 contained in Art. 10 a recognition of responsibility (though not under the name “denial of justice“) if “the state has failed to take the measures that may be reasonably expected of it in the circumstances in order to prevent, remedy or inflict punishment for the danger“; and the minority proposal also recognized responsibility for failure to take certain “preventive or punitive measures” (italics inserted). Hackworth, “Responsibility of States,” this Journal, Vol. 24 (1930), 500, 513. “One need only examine the series of cases involving failure to prosecute as decided by the General Claims Commission under the convention of September 8,1923, between the United States and Mexico, to be convinced of the high state of confusion and uncertainty that reigns at present in this branch of the law of diplomatic protection.” Dunn, op. cit., 152. In the present article the discussion is not of standards of responsibility, but only of the nature of the particular responsibility named in the title.

3 Eagleton, Responsibility of States, 87-92. The recovery is usually masked as reparation to the victim or his relatives, but the object is principally vindication of the general interest in maintaining the safety of the state's nationals abroad. Dunn, op. cit., 185, but compare id., 37-40.

4 If international law remedies are not always obtainable—because the organs of adjudication and execution are rudimentary, this is a defect of politics, not of law.

5 The claim is often asserted in terms of “national honor,” but this is using the language of the duel. The legal core of the claim is the danger of recurrence. Distinction between “remedial reparation” to the victim's widow and “exemplary redress due to the Government of the United States” was made by the United States in the Labaree claim against Persia, the money demanded as exemplary redress being for failure to punish the culprit, and to be remitted if the punishment was inflicted. 1 Hyde, Int. Law, 512, note. See also Fauchille, Droit International Public, 535, distinguishing “reparation” and “satisfaction.“

6 American courts struggled with this problem in the Buenos Aires (1924), 5 F. (2d) 425, the Presidente Wilson (1929), 30 F. (2d) 466, and the Vestris (1931), 53 F. (2d) 847, 855 in adjudicating claims arising from wrongful deaths on the high seas, where the lack of a local law made it necessary to invent one. Anglo-American law itself has only recently recognized a civil claim for wrongful death. Compare note 11, par. 3, infra. Sometimes national courts are authorized by national law to apply international law (not merely because it is a part of the common law, as Anglo-American juridical theory admits, but even when conflicting with statutes), as in the recent American case mentioned in note 17, infra. On the other hand international courts constantly recognize the finality of national law (just as the courts of one state, pursuant to rules of conflict of laws, recognize the effectiveness of the national law of another state), for example, wherever a legal question is “by international law solely within the domestic jurisdiction,” to use the words of Art. 15 of the Covenant of the League of Nations. A discussion of this matter here would lead too far afield. Suffice it to recognize that American courts (like national courts generally) commonly act on the theory that national law (i.e., a new act of Congress) prevails over international law; while in the jurisprudence of international tribunals international law prevails over national law wherever there is a conflict which cannot be avoided by interpretation. See also note 19 infra. No conflict exists when the victim sues the culprit, for international law provides at present no standard of civil liability between individuals. Some maintain that international law governs only relations between states; others that it creates rights and duties in individuals; but there appears to be scant basis at present for a view that these rights and duties of individuals are other than rights against states (in the broadest sense and including the community of states) and duties to states. In other words, international law (unless the common law of the high seas is part of international law) does not yet include rules of private legal relations; in this direction (under the name of conflict of laws or private international law) it has gone only so far as to establish rules as to what (national) private law system governs particular acts. But there is no reason to think that international law will not in due time govern also the substantive law of these private relations. In the present article no emphasis is laid on the distinction between remedies provided by international law and those provided by national law, because the rights and remedies provided by the legal order as a whole is the significant problem.

7 See note 12 infra.

8 E.g., the Turkish Penal Code under which Officer Demons of the Lotus was convicted; see Judgment No. 9, P. C. I. J., Series A, No. 10 (1927). Such provisions have small practical effect because extradition treaties customarily do not cover crimes committed against nationals abroad; punishment is therefore contingent on the wrongdoer's coming within State A.

9 Attack on a foreigner is often punishable by municipal statute more severely than attack on a national. Cutler, “Treatment of Foreigners,” this Journal, Vol. 27 (1933), 225, 230. This may be deemed a recognition that B in punishing the criminal is redressing the wrong done to A as well as to B. Compare statutes punishing attacks on envoys of foreign states; here the injury to State A is more clearly a factor.

10 Magee Case, 65 Br. & For. State Papers (1874), 875 (indemnity exacted from Guatemala in addition to punishment and salute of British flag, despite victim's refusal to assert claim).

11 Liability for failure to provide proper police protection is to some extent recognized by municipal law. City of Chicago v. Sturges (1911), 222 U. S. 313; Borchard, Diplomatic Protection of Citizens Abroad, §66, §68. Recovery is well established in international law, but whether the recovery is based on the individual's right is contested. Those who take the orthodox or older view that international law is solely a law between states, such as (to mention two recent studies on responsibility) Decenciére-Ferrandiére, La responsabilit éInternationale des États (1925), or Strupp, Die völkerrechtliche Haftung des Staates (1927), recognize no legal right in the individual (except as it may arise under the national law of State B). If the individual claimant recovers through an international tribunal, in their view it is not because he has a right, but because: (1) State A has a right under international law in an amount measured by his loss; and (2) State A by its own law bestows on him the fruits of this right. But though it is clear that the international tribunal is created only through state action and that a state usually controls the presentation of claims of its nationals, it seems a valueless fiction to insist that it is not the rights of individuals that claims commissioners adjudicate. See Politis, New Aspects of International Law (Nouvelles Tendances), c. II (1926). Nor do these claims arise under the national law of State B; whatever their nature, they are certainly ruled by international law. A striking example of this is afforded by a decision of the American and British Claims Commission under the treaty of May 8, 1871. In the Brain Case, Moore, Int. Arb. 3278, a demurrer to a claim by dependents of a person for whose death State B was alleged to be responsible was overruled, though at that time the law of neither American states nor England allowed, even as against an individual, recovery for wrongful death or survival of an action for personal injury. (But where there were only nondependent relatives a like demurrer was sustained. Case of McHugh, ibid. Such is the length of the international chancellor's foot!)

12 Nor is prosecution by the state a legal condition precedent to private suit. (If it were, a failure by the state to prosecute could properly be said to constitute a denial of justice in the sense of an impediment to obtention of civil redress in the national courts.) The civil law maxim, le criminel tient le civil en itat, does not reach so far. Roux, Précis éleméntaire ie droit pénal, §264 (1925). (But see Espino v. Martinez, 2 P. R. Fed. (1907), 59, 61 where the Spanish Code of Criminal Procedure was construed to do so.) The old common law doctrine of merger, or suspension, of the tort, when an act was both a tort and a felony, has almost disappeared from Anglo-American law. 1 Corpus Juris, Actions §50. Nor is it a practical condition precedent to private suit, for suit against the culprit and seizure of his property is about as likely to succeed whether or not he can be found. Where the crime is robbery and the goods would be likely to be discovered if the robbers were caught there is a stronger case for the view that the laxity of the state in apprehending (though not in punishing) the culprits causes a distinct loss (a failure to regain the goods). This reasoning was the basis of the partial recovery in Mecham v. Mexico, 2 Opinions U. S.-Mexico Claims Commission (1929), 168. But see comment of Dunn. op. cit., 181.

13 In the Harvard Research Draft Convention on Responsibility of States, this JOTONAL, Vol. 23 (1929) Sp. Supp., 131, 157, this private interest in vengeance again appears to be recognized in Art. 9, which says there is state responsibility when “without having given adequate redress to the injured alien, the state has failed to discipline” a subordinate officer or employee whose wrongful act or omission caused the injury to the alien. In other words, the alien's state is entitled to see either that he has “redress” or that the employee is “disciplined“— as if reparation and discipline were equivalents to the victim (or his relatives). “Redress” as here used clearly refers to reparation due the victim, not the “exemplary redress” demanded of Persia by Secy. Root in the Labaree claim, supra, note 5. Eagleton suggests that “the real basis for such damages is to be found in the responsibility of the state for all injuries suffered by aliens within its jurisdiction,” which responsibility is discharged by the “efficient operation of its local agencies of redress, diplomatic interposition or a pecuniary claim being permissible … only when these remedies are lacking.” Eagleton, op. cit., 196-197. This of course produces the same result as the theory of condonation (assumption of liability by the state by its failure to punish) rejected by the majority in the Janes Case, infra, note 14.

14 The most elaborate justification of the doctrine is presented in the opinion of the majority in one of the first decisions, Janes v. Mexico (1926), this Journal, Vol. 21 (1927), 362, 369, which said: “The indignity done the relatives of Janes by non-punishment … is … a damage directly caused to an individual by a government. If this damage is different from the damage caused by the killing [as the majority held, though all three commissioners, despite their disagreement as to the basis of recovery, united in the award of $12,000], it is quite as different from the wounding of the national honor and national feeling of the state of which the victim was a national.” This is a most explicit recognition of a private right of vengeance, for here we find it distinguished both from the private right against the criminal for redress of the original wrong and from the right of State A against State B, with one or the other of which it is by other writers often entangled. But, it must be admitted, in no case did the commission try to discover how much the claimants actually suffered from their “indignity,” and in several it appears to have measured its amount by the degree of laxity of State B. And as further impugning this basis of damages, it should be noted that in no case where there was recovery on other grounds were damages for non-punishment added. The cases are reviewed by Dunn, op. (At., 172 ff.

15 The kin of a victim of homicide, especially if not present in State B, can make no such showing. Even if the victim of an attack himself is the claimant and shows that this attack creates a special danger of a new attack on him, whether by the same individuals or by other persons, the damages for the possible new attack are too uncertain to be recoverable. But if he actually is attacked again, he can recover for the second attack because of State B's failure to protect one peculiarly exposed to danger.

16 Chorzów Factory (Merits), Judgment No. 13, P. C. I. J., Ser. A., No. 17, p. 28 (1928).

17 Or domestic courts, as in Royal Holland Lloyd v. U. S. (1931), 73 U. S. Ct. Cls. 722; this Journal, Vol. 26 (1932), 399 (the claim had had the diplomatic support of the Netherlands Government which had agreed to its trial by the U. S. Court of Claims).

18 See 111. Cent. R. R. v. Mexico, this Journal, Vol. 20 (1926), 794, 797 (1f6b). That the amounts owing by each state to claimants of the other were to be balanced and only the difference paid over, was a mere convenience of international transfer in view of the procedure by which satisfaction of the individual judgments was to be provided (i.e., payment by the treasury of each state to its own nationals). For text of the convention, see this Journal, Supplement Vol. 18 (1924), 143.

19 See Dunn, op. cit., 120-121. One familiar with the older English law will see in the relation of national law to international law a resemblance to the relation of common law to equity, national courts, like common law courts, administering only the more traditional and definite law, and international arbitrators and judges, like chancellors, administering law that in part corrects defects in this more narrow-minded system.

20 Davies, an American, was killed in Mexico by Corona, who, when tried for the crime, was adjudged insane at all times. He was ordered to be confined, but actually was released. The claim of the American mother and brother of the deceased was rejected by the United States-Mexico General Claims Commission (1930), this Journal, Vol. 26 (1932), 630. Under Mexican municipal law the claimants could probably not have recovered in a civil suit against Corona, because insanity entails legal irresponsibility, civil as well as criminal. (There is, however, some authority for civil recovery under the Anglo-American law. Cook, Insanity and Mental Deficiency in Relation to Legal Responsibility, 20.) This lack of private redress might be thought to justify requirement of a higher degree of vigilance by the state to protect persons against the depredations of insane men than against those of sane men. But the claim in the Davies Case is rested, not on failure to prevent, but solely on failure to incarcerate.

21 The fact that the failure was in the carrying out of the judgment, rather than in the bringing to trial, cannot differentiate this case from the Janes Case, supra, note 14. Cf. Lenz and Renton claims, Moore's Dig. VI, 792-799, and F. R. West v. Mexico, U. S.Mexico Claims Commission (1927), this Journal, Vol. 22 (1928), 452 (“amnesty for a crime has the same effect, under international law, as not punishing such a crime, not executing the penalty or pardoning the offense“).

22 “The underlying purpose of the award in the Janes Case was clearly not to make good some fancied loss sustained by the relatives as a result of the failure to prosecute … It was in the nature of a penalty imposed on the government for being derelict in its duties.” Dunn, op. cit., 177-178. “One might of course do this openly by instituting a system of fines, the amount in each case to be determined by the nature of the delinquency, without particular reference to the amount of pecuniary loss or injury sustained by the individual … However … this … would be repugnant to the traditional notion that sovereign states should not be punished by other sovereign states for their acts.” Dunn, ibid., 173-174.

23 The Davies Case is inconsistent with the Janes Case unless, though “indignity, grief, or other similar wrongs” (to use the words of the latter case) are suffered by the victim's relatives when the (presumably) sane killer is left at large, yet they suffer no such indignity (at least in the eyes of the law) when the insane killer is left at large.

24 Eagleton, op. cit., 196. The italics throughout the paragraph are mine.

25 The right in State A in cases where State B was responsible for the death of A's national to obtain from State B recovery measured by the loss of support which the victim's relatives suffer would not be anomalous if it were further shown that their support has devolved upon the state. But in almost every other conceivable case the victim's or his relatives’ loss is a wholly inapt rod to measure State A's recovery by.

26 Chorzów Factory Case, supra, note 16, p. 27. In this case, the Polish objection that a claim for compensation due the companies whose factories had been seized had been improperly transformed into a claim for indemnity due Germany for breach of treaty, was overruled. It was held that, though private claims for the seizures had been presented to the proper arbitral tribunal, Germany still might demand an indemnity calculated by the amount of the private loss. The U. S.-Mexico General Claims Commission dealt only with private claims; the Permanent Court in the Chorzów Case dealt only with a state claim. But if the court measures recovery by private loss, as it did, does the private claim remain alive? And if the commission allows $12,000 for private “indignity”, does a state claim for “dishonor” still remain alive?

27 In the latter case the sum obtained by the state, though customarily paid over to individuals, apparently does not belong to them. Frelinghuysen v. Key (1884), 110 U. S. 631; Civil War Rights Assn. v. King [1932] A. C. 14; while in the former it does: “Where a demand is made on behalf of a designated national and an award and payment is made on that specific demand, the fund so paid is not a national fund in the sense that the title vests in the nation receiving it entirely free from any obligation to account to the private claimant, on whose behalf the claim was asserted and paid and who is the real owner thereof.” Parker, Ump., Adm. Dec. No. 5, U. S.-Germany, Mixed Claims Comm. (1924), this Journal, Vol. 19 (1925), 612.

28 As seems to have been the situation in the Labaree Case, supra, note 4.

29 Dunn offers another reason, supra, note 22. But is it valid? Confusion arises also from failure to particularize. In a diplomatic settlement “usually the amount due is determined by a process of trading which is of no juridical significance. Often a group of claims of various origins is settled by a lump payment which the claimant state undertakes to distribute.” Decenciére-Ferrandiére, op. eit., note 11, 251-252.

30 “Unless the offense is particularly flagrant or may be deemed a national affront, the individual's waiver of a right to indemnity weakens the moral, if not the legal, right of his government to demand reparation.” Borchard, op. cit., note 9, §145. Likewise the satisfaction of his right.

31 This is substantially the rule expressed in the third paragraph of Basis of Discussion 29, Responsibility of States, prepared for the Hague Conference on Codification. This paragraph, and also Basis 19, laying down a vague measure of damages, were deleted on recommendation of the third subcommittee of the Third Committee. Borchard, supra, note 1, at p. 523. Yet how can the right to recover be properly defined unless there is a clear understanding of what harm, private or public, is to be repaired by the recovery? The Harvard Draft Convention, supra, note 13, evidences this confusion.

32 Borchard, “Recent Opinions of the General Claims Commission, United States v. Mexico,” this Journal, Vol. 25, (1931), 735, 740. Other anomalous results are pointed out by Dunn. Thus in Green's Case (1904) it appears that the lack of relatives led to a dropping of the claim by the United States. Dunn, Diplomatic Protection of Americans in Mexico (1932), 300-302. Against the claim of Way, before the General Claims Commission of 1923, the Mexican Government raised the objection that Way had no relatives who suffered as Janes's did. The award, however, was based on the failure to protect Way; the failure to prosecute his attackers was not considered. Dunn, Protection of Nationals, 222, note 49.

33 Applied to the Davies Case, this rule would give the United States (but not the Davies family) recovery against Mexico, not measured by Davies’ relatives’ mental suffering for the failure to lock Corona up, but measured by the risk to the United States of allowing a man known to be dangerously insane to be at large in Mexico. Even if no measurable risk could be shown, an award of exemplary damages would be appropriate as a vindication of the international duty to maintain adequate standards of law and administration relating to the confinement of the criminally insane. The United States would recover, not because the United States specifically has been damaged thereby, but for the same reason of convenience that has brought it about in national law, that individuals are sometimes permitted by statute to retain part or all of fines imposed for minor infractions of criminal law, for which they bring actions, theoretically of course a no more defensible practice than that of the claims commission which I criticize, but practically justified until the world community has a legal organ.

34 Supra, note 32.

35 Supra, note 18.

36 Supra, note 1, at 186.

37 Editorial comment, this Journal, Vol. 21 (1927), 516, 518.

38 British Year Book of International Law, 1928, 49.

State Responsibility for Failure to Vindicate the Public Peace

  • William Gorham Rice (a1)


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