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The Responsibility of the State for the Protection of Foreign Officials

Published online by Cambridge University Press:  04 May 2017

Clyde Eagleton
Clyde Eagleton*
Affiliation:
New York University
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Extract

The idea of obligation is of essential importance in any legal system: it is, in a sense, the sanction of law itself. But it is only in the last decade or so that the idea of the responsibility of states in international law has been detached from a subordinate or incidental discussion in connection with the rights of states, with treaties, or elsewhere, and given its proper position as an institute of international law. Only in the latest editions of texts has the legal significance of the word been recognized to such an extent that it is given a separate chapter treatment, upon a footing similar to that of equality, independence, or other accepted attributes of the state. As usual, more interest has been devoted to rights than to duties. Monographic treatment is very limited; and there is as yet no complete treatise. There are, of course, innumerable discussions of particular phases, especially in the case of injuries arising from civil war, but also for federal states, the acts of agents, the theories of risk and fault, et cetera.

Type
Research Article
Information
American Journal of International Law , Volume 19 , Issue 2 , April 1925 , pp. 293 - 314
Copyright
Copyright © by the American Society of International Law 1925

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References

1 Heffter, Despagnet, Neumann, F. von Martens, Diena, Rivier, Pradier-Fodéré, discuss responsibility in conjunction with treaties; Gareis, Bluntschli, Pufendorf, with war; Halleck, Calvo, Bonfils, and Vattel, with the rights and duties of states.

2 The importance of the subject was first revealed by Triepel, in his Völkerrecht und Landesrecht. Anzilotti (Teoria generate de la responsabilità dello Stato ml diritto interna-sionale; and an article in XIII Revue genirale de droit international public, and 285, entitled La Responsabilité Internationale des Etats à raison des dommages soujferts par des Strangers) is a pioneer in the field. The most thorough étreatment so far is by Schoen, Die volkerrechtliche Haflung des Staaten aus unerlaubten Handlungen, in Zeitschrift fur Völkerrecht, Band 10, Ergànzungsheft 2. Schoen deserves the credit which he gives to Triepel for having established responsibility as an institute of international law. Strupp, Das völkerrechtliche Delikt, and Visscher, La Responsabilité des Etats, are also important; and there are a few others.

3 Hall, International Law, Sec. 96.

4 Ullmann, VöIkerrecht (Sec. 42), and Rivier, Principes du droit des gens (I, p. 423), refuse to allow to the president of a republic the same rights as a monarch; but most other writers-grant him the same privileges when abroad.Google Scholar

5 IV Moore, Digest of International Law, Sec. 639, where will also be found the case-following, of Dupuy de Lome. The case of Sackville West is well known.

6 R. D. I. P., XV, p. 453.Google Scholar

7 IV Moore, Digest, See. 639.

8 This trial is recorded in Ward, Law of Nations, II, pp. 564–593.Google Scholar See Nys, Principes, II, pp. 281–284.Google Scholar There were of course exceptional circumstances in this case which may serve to explain, if not to justify, the action taken.

9 Phillimore, International Law, II, Pt. 6, Ch. I.Google Scholar

10 Calvo, he droit international théiorique et pratique, III, p. 290;Google Scholar Clunet, 1874, p. 33.Google Scholar For the United States the principle is laid down in Schooner Exchange v. M’Faddon, II Moore, Digest, p. 558.Google Scholar See also the case of von Hellfeld v. Russia, this JOURNAL, vol. V, p. 490.Google Scholar

11 V Moore, Digest, pp. 517–524.Google Scholar

12 I. P., XXVIII, p. 358.Google Scholar The French were dissatisfied because the troops did not appear in parade dress, and because they sang “Deutschland Hber alles” as they Marched away; and amends were made for this.

13 Satow, Guide to Diplomatic Practise, I, p. 243.Google Scholar

14 For Ross and Gyllenborg, Ward, op. cit., II, p. 487, and Martens, Causes célébres, I, p. 97;Google Scholar for Cellamare, Causes cilebres, I, p. 149.Google Scholar

15 Ward, op. tit., II, p. 499;Google Scholar Causes célébres, I, p. 73.Google Scholar

16 The law of the United States is to be found in Revised Statutes, Sees. 4063 and 4064. The English law is quoted by Satow, I, p. 242, note 1.Google Scholar

17 TV Moore, Digest, p. 627.Google Scholar

18 Causes célébres, I, p. 332.Google Scholar

19 London Times, July 30, 1908, where the ceremony of apology is described. Similar cases may be found in B. D. I. P., XXI, p. 132, where Turkey was forced to apologize for seizing an offender in the Dutch legation;Google Scholar and ibid., XXII, where France sent a cruiser to extract an apology from Haiti, because a mob had taken the President from the French Embassy and murdered him.

20 IV Moore, Digest, Sec. 665.

21 Lawrence, Principles of International Law, p. 293.Google Scholar

22 R.D. I. P., XIV, p. 176.Google Scholar

23 Hyde, International Law, I, Sec. 434.Google Scholar

24 This seems to be the opinion of Oppenheim (International Law, I, p. 461);Google Scholar of Phillimore, who (I, p. 230) expresses approval of the action of Sweden in surrounding the British Embassy with soldiers when it granted asylum to Springer, and in refusing reparation for the act;Google Scholar and of Westlake who (International Law, I, p. 281) quotes the court of Rome that “penal justice has the right and the means of following criminals in case of urgent necessity into the places which enjoy an indirect immunity.” Google Scholar See also Lawrence, p. 294.Google Scholar It is customary to request the ambassador to surrender the accused person and for this purpose to appoint a convenient time at which he shall be taken. In Earl Dudley’s note above quoted he adds “that courtesy requires that their houses should not be entered without permission being first solicited in cases where no urgent necessity presses for the immediate capture of an offender.”

25 New York Times, November 5 and 7, 1923;Google Scholar Paris Tempi, November 5, 6, and 9, 1923.Google Scholar There seems also to have been a suggestion that the question of indemnity be referred to the Hague Court.

26 R. D. I. P., XIV, p. 159;Google Scholar Clunet, 33, p. 751.Google Scholar

27 B. D. I. P., II, p. 352;Google Scholar XVI, p. 377.Google Scholar

28 Cases will be found in R. D. I. P., XIV, p. 159, and XVI, p. 377.Google Scholar In the laws of the United States and England referred to in note 16, supra, legal recognition is given to those whose names are on the list furnished to the foreign secretary.

29 Martens, F. von, for example, says (Völkerrecht, II, p. 60) that to grant immunities to servants injures the dignity of a state by raising a mere servants’ brawl to the level of an international affair.Google Scholar See also R. D. I. P., XIV, p. 159.Google Scholar

30 It should be added that the position of couriers is clear. When possessed of a proper passport indicating his mission, a courier should be allowed the highest degree of inviolability. Vattel, Le droit des gens, Liv. IV, ch. VII, Sec. 86;Google Scholar Lawrence’s Wheaton, p. 417;Google Scholar Martens, Pricis, II, Sec. 250;Google Scholar Kluber, Droit des gens moderne de VEurope, I, Sec. 190;Google Scholar Moore, Digest, IV, Sec. 675.Google Scholar

31 I Wharton, Digest of International Law, pp. 514, 549.Google Scholar De Clerq et de Vallat (Guide Pratique des Consulats, p. 3) say that whoever is charged with the affairs of a nation is a public minister, “et leurs personnes comme leurs domiciles doivent participer du respect du a la nation qui les a commissionés.” Google Scholar See Hall, Sec. 103; Oppenheim I, p. 509.Google Scholar

32 Schooner Exchange v. M’Faddon, II Moore, Digest, Sec. 250: “A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is where he allows troops of a foreign prince to pass through his dominions.” Google Scholar

33 II Moore, Digest, p. 25.Google Scholar

34 Arce v. State of Texas, 202 S. W., 951.Google Scholar Oppenheim (I, Sec. 443), says, “Whenever armed forces are on foreign territory in the service of their home State, they are considered exterritorial and remain, therefore, under the jurisdiction of the latter.” Google Scholar

35 Horn, v. Mitchell, 243 U. S. 247.Google Scholar

36 Fauchille, Traité de droit international public, I, p. 528.Google Scholar He adds, “le gouvernement allemand a opposé certaines objections au paiement de cette amende.” See also B. D. I. P., XIII, p. 223.Google Scholar

37 In the Casablanca arbitration the judgment contained these words: “Considerant que, d’autre part, un corps d’occupation exerce aussi, en régle générale, une juridiction exclusive surtouteslespersonnes appartenant audit corps d’occupation. . . .

“Considérant que, la juridiction du corps d’occupation doit, en cas de conflit, avoir la préférence. . . .” Nouveau recueil general, 3rd Ser., II, p. 27.Google Scholar

38 This JOURNAL, vol. VIII, pp. 579–585.Google Scholar

39 R. D. I. P., XIII, p. 200.Google Scholar The case of H. M. S. Forte is well known.

40 II Moore, Digest, p. 590.Google Scholar

41 IV Moore, Digest, Sec. 623.Google Scholar

42 Heffter, he droit international de I’Europe, Sec. 222.Google Scholar

43 World Peace Foundation, Pamphlet Series, vol. VI, No. 3.Google Scholar

44 Levermore, Fourth Yearbook of the League of Nations, pp. 404–405.Google Scholar

45 The decision was made at a meeting of the Conference of Ambassadors on September 22d, but the final report of the Commission of Enquiry was not ready until the 27th. This final report of the commission is given in Levermore, Ibid., pp. 405–409. It repeats the former statement of inability to give a “final and definite decision.” For the quotation of the decision of the Conference, given above, see Levermore, p. 274.Google Scholar

46 Levermore, Hoc. cit., pp. 273–275.Google Scholar

47 Official Journal, League of Nations, November 1923, p. 1294.Google Scholar

48 Ibid., pp. 1288,1294,1297,1324,1281.

49 World Peace Handbook (World Peace Foundation), Appendix HI.

50 V MooTe, Digest, Sec. 702, which gives many citations to this effect. E.g., from Jefferson: “The law of nations does not of itself extend to consuls at all. They are not of the diplomatic class of characters to which alone that law extends of right.”

51 Clunet, Sec. 49, p. 391.Google Scholar In United States v. Ravara (V Moore, Digest, p. 65) the court held that the Genoese consul was not privileged from prosecution.Google Scholar Other examples are given in Sec. 712, ibid.

52 Moore, Arbitrations, II, p. 1639.Google Scholar

53 Moore, Digest, V, Sec. 704, pp. 40–48.Google Scholar See B. D. I. P., IV, p. 268.Google Scholar

54 B. D. I. P., XXVII, pp. 361–365.Google Scholar See Moore, Digest, V, p. 41:Google Scholar “The search of a foreign consul, his imprisonment, and the carrying off of his archives by the general in command of the United States army in a captured city is a violation of the law of nations, for which the Government of the United States considers itself bound to apologize and to give all other suitable redress.” Other examples may be found in Sec. 705, ibid.

55 VI Moore, Digest, pp. 812–813, where is also quoted President Fillmore’s message: “As in war the bearers of flags of truce are sacred, or else wars would be interminable, so in peace ambassadors, public ministers, and consuls, charged with friendly national intercourse, are objects of especial respect and protection, each according to the rights belonging to his rank and station.” Google Scholar

56 This Journal, vol. XVIII, 768–774.Google Scholar

57 New York Times, December 1, 6, 19, 1919;Google Scholar Current History Magazine, vol. 11, Pt. 1, p. 410;Google Scholar Hyde, International Law, I, p. 504, n. 1.Google Scholar

58 The correspondence, or a great part of it, is given in the New York Times for March 9, 1923.

59 Cases from that of Mathweof (given supra) establish the truth of this statement. See, for example, the Alabama Award, III Wharton, Digest, 633;Google Scholar or, as to the duty of legislating for the execution of a treaty, V Moore, Digest, Sec. 758.Google Scholar

60 The right of a state to take measures of guarantee to secure ultimate reparation was hotly debated in the Council of the League of Nations in the Corfu episode. Official Journal, November, 1923, passim.

61 Foster, Practise of Diplomacy, p. 159:Google Scholar “These immunities were much greater two or three centuries ago than they are today . . . like the forms and ceremonies which formerly attended the ambassadorial service, these privileges have been greatly diminished and are now exercised within reasonable limits.”

62 R. D. I. P., XIV, p. 159;Google Scholar cf. Annuaire de I’Institut, XIV, p. 214.Google Scholar

63 R.D. I. P., XIV, p. 159.Google Scholar

64 Nys, Principes, II, p. 388.Google Scholar

65 When Tchitcherin was counsellor of the Russian Embassy at Paris he was forced to submit to jurisdiction for a newspaper which he controlled, until it was shown that he was acting for his government. Pradier-Fodéré, Cours de droit diplomatique, II, p. 152.Google Scholar

66 In actual practise this is already true to a certain extent, for states will often waive immunities for its agents accused of serious crime, as in the Waddington case, or for the purpose of giving evidence.

67 Revue de Droit International et de Legislation Comparie, XX, p. 218.Google Scholar

68 One suggestion for the codification of international law is by the passage of identical municipal laws. See Moore, International Law and Some Current Illusions, p. 325, and generally Chapter VII, “The Passion for Uniformity.” Google Scholar The solution of problems in private international law would lead toward the same end; and we seem to be approaching a common criminal law through extradition, the assertion of jurisdiction over foreigners on foreign soil, et cetera. Cf. Hall, pp. 58, 220, 223.Google Scholar

69 Strupp, Völkerrechtliche Delikt, p. 14, and notes 5 and 6.Google Scholar He quotes Holtzendorff: “All violations of fundamental law committed against single states are at the same time general violations of international law in the sense that so far as the first state attacked cannot take the law into its own hands, the international community should feel justified and obligated in their ensemble to put an end to such crimes.” Strupp quotes, among others, Bivier, Heffter, and Bluntschli; but he is careful to say that what every such author proposes is natural law.

70 Ward, op. tit., II, p. 557.Google Scholar

71 As would also the claim of the League of Nations to intervene. See Levermore, Fourth Yearbook of the League of Nations, pp. 262–266.Google Scholar