Abstract
The international responsibility of the state for wrongful acts of private persons against foreign nations is a phase of the general law of international responsibility under international law. While the rules concerning certain areas of state responsibility are well established,1 its liability for hostile actions of individuals remains to be defined.2 It is perhaps for this reason that most discussions of state responsibility deal with fairly well accepted doctrines, such as responsibility for unauthorized acts of governmental officials or for acts of individuals resulting in injury to aliens. In discussing state liability involving actions of private persons against other nations, authoritative guidance will therefore be sought in more settled branches of the law. Inadvertence to these preliminary matters may explain the inconclusiveness of attempted solutions to the problem, and the almost insuperable difficulties which it raises.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
H. W. Briggs, The Law of Nations: Cases, Documents and Notes, pp. 680–697 (2d ed., 1952).
In this connection, some authors speak of original and vicarious responsibility, the former describing the responsibility of the state for acts of its government, while the latter includes responsibility for private acts. See L. Oppenheim, International Law Vol. I. p. 337 (8th ed. by H. Lauterpacht, 1955). Others speak of direct and indirect responsibility of the state.
See M. Miele, Principi di Diritto Internazionale, p. 236 (1953);
J. Dumas, De La Responsabilité Internationale des Etats, pp. 57–64 (1930). Still others speak of primary and secondary liability.
See A. D. McNair, International Law Opinions, Vol. 2, p. 288 (1956).
C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. 1, p. 33 (2d ed., 1945).
For text, see Am. J. Int’l. L. Supp. Vol. 41, p. 172 (1947).
This was the rule adopted by the Third Committee of the Hague Codification Conference of 1930, Art. 10. For text, see H. W. Briggs, op. cit., p. 711.
In technical language, this responsibility is referred to as culpability while absolute responsibility is known as liability. See H. Kelsen, Principles of International Law, pp. 122–124 (1952).
E. M. Borchard, The Diplomatic Protection of Citizens Abroad or The Law of International Claims, p. 217 (1915).
H. Grotius, De Jure Belli ac Pacis Libri Tres, bk. II, ch. XVII, sec. 20 (Transi. by F. W. Kelsey, 1925).
Ibid., bk. II, ch. XXI, sec. 2.
L. A. Podestá Costa, Derecho International Público, Vol. I, p. 441 (3d ed., 1955).
W. Schiffer, The Legal Community of Mankind, c.2 (1954). It is paradoxical, however, that the theory of responsibility based on fault should be adopted largely by the followers of the natural law school, while the theory of absolute responsibility is usually followed by the so-called positivists. This is even more surprising in view of the fact that the theory of absolute responsibility is not based either on the practice of states or on treaties. It is the doctrine of culpability (liability based on fault), which is based on practice and treaties.
See L. A. Podestá Costa, op. cit., Vol. I, pp. 453, 454.
See L. A. Podestá Costa, The Legal Community of Mankind, (1954) pp. 454.
U.N. Secretariat, Survey of International Law, U.N. Doc. no. A/CN.4/1 Rev. 1, pp. 34–35 (1949).
Cf. P. E. Corbett, Law and Society in the Relations of States, (1951). Professor Josef L. Kunz has said in this connection that “Religious and ethical rules embody higher values and are sometimes more effective than legal rules.”
J. L. Kunz, “Sanctions in International Law,” Am. J. Int. L., Vol. 54, p. 324 (1960).
For a comprehensive discussion of Grotius’ theories see J. Basdevant in Les Fondateurs du Droit International, pp. 125–267 (1904).
E. de Vattel, Le Droit des Gens, bk. II, ch. VI, sec. 72 (Transi. by C. G. Fenwick, 1916).
J. Stone, Legal Controls of International Conflict, pp. 15–16 (1954).
E. de Vattel, op. cit., bk. II, ch. VI, sec. 73.
E. de VattelIbid., bk. II, ch. VI, sec. 74.
E. M. Borchard, op. cit., p. 217.
C. G. Fenwick, International Law, p. 301 (3d ed., 1948).
H. Kelsen, “Théorie du Droit International Public,” Hague Recueil, Vol. 84, III, 1953, p. 90
H. Kelsen, “Théorie du Droit International Public,” Hague Recueil, Vol. 84, III, p. 90 (1955).
Ibid., p. 92.
See also his H. Kelsen, Principles of International Law, pp. 119–122 (1952).
Some writers would say, however, that the state still has the right of self-defense, but it will be seen later that this so-called right only brings about anarchy in international relations and contributes to divide rather than unite the states in the world community. Cf. J. L. Kunz, op. cit., pp. 324, (1960).
J. L. Kunz, op. cit., pp. 332 (1960).
P. Guggenheim, “Les Principes de Droit International Public,” Hague Recueil, Vol. 80, I, 1952, p. 138 (1953).
To the authors cited in footnote 2, supra, the following may be added: C. Eagleton, International Government, p. 89 (3d ed., 1957);
A. Ross, A Textbook of International Law, pp. 254, (1947);
A. Ross, A Textbook of International Law, pp. 256–259 (1947);
D. Antokoletz, Tratado de Derecho Internacional Público, Vol. 3, p. 25 (3d ed., 1938).
Cited in B. Cheng, General Principles of Law as Applied by International Courts and Tribunals, p. 209 (1953).
Corfu Channel Case, I.C.J. Reports, p. 18 (1949).
This is particularly true in respect to the law of neutrality. For elaboration, see J. Stone, op. cit., pp. 383–384.
J. L. Brierly, “The Theory of Implied State Complicity in International Claims,” Brit Y.B. Int. L., 1928. Vol. 9, p. 42 (1928).
This article was reprinted in J. L. Brierly, The Basis of Obligation in International Law, p. 152 (Selected and edited by Sir H. Lauterpacht and C. H. M. Waldock, 1958). References will be made to the latter.
Ibid., pp. 152–153. Italics are those of Professor Brierly. Professor Alf Ross appears to adhere to the same view, for he says in dealing with instances where the state is responsible for acts of individuals, “… the responsibility is then a responsibility for the state’s own organs, not for the actions of private individuals.”
A. Ross, op. cit., p. 254.
Cf. A. D. McNair, op. cit., Vol. 2, pp. 288–289 (1956).
See in this connection, H. Lauterpacht, International Law and Human Rights, pp. 40–45 (1950).
J. L. Brierly, op. cit., p. 152.
Cf. C. Rousseau, Droit International Public, pp. 376–377 (1953).
Thus, as will be seen, in punishing individuals for hostile acts the state is allowed to exercise jurisdiction extraterritorially on the basis of what is loosely called protection. See, Chapter IX, infra. In other respects, the state may resort to the use of force allegedly in the exercise of the right of self-defense, which is also restricted by the United Nations Charter. See, particularly, U.N. Charter, art. 2, sec. 4.
For a discussion of Pufendorf’s theories, see P. Avril in Les Fondateurs du Droit International, pp. 331–383 (1904).
S. Pufendorf, De Jure Naturae et Gentium Libri Octo, bk. VIII, ch. VI, sec. 12 (Transi. by C. H. and W. A. Oldfather, 1934). Italics supplied.
L. Podestá Costa, op. cit., Vol. I, p. 441.
At the beginning of book VI, Pufendorf says that “… it is one of the first principles of natural law that no one unjustly do another hurt or damage…” S. Pufendorf, op. cit., bk. VIII, ch. VI, sec. 2.
It should be mentioned that clearly his theory modifies that of Grotius, for it is prefaced by saying that “… a community, whether civil or of any other kind, is not responsible for the actions of individual members, except by some culpable act of commission or omission on its part…” Here he quotes Grotius. See S. Pufendorf, op. cit., bk. VIII, ch. VI, sec. 12.
For development, see A. Anzilotti, Cours de Droit International, Vol. I, pp. 496 et seq. (French transi. by G. Gidel, 1920).
A. Ross, op. cit., p. 256.
H. W. Briggs, op. cit., p. 618.
Cf. D. Anzilotti, op. cit., Vol. I, pp. 466, 467.
L. Podestá Costa, op. cit., Vol. I, p. 451.
H. Lauterpacht, “Revolutionary Activities by Private Persons Against Foreign States,” Am. J. Int. Law, Vol. 22, pp. 105, (1928).
H. Lauterpacht, “Revolutionary Activities by Private Persons Against Foreign States,” Am. J. Int. Law, Vol. 22, pp. 126 (1928).
D. W. Bowett, Self-Defence in International Law, pp. 39–40 (1958).
See particularly U.N. Charter, art. 2, sec. 4.
Cf. H. Kelsen, “Théories du Droit International,” Hague Recueil, Vol. 84, III, 1953, p. 92 (1955).
C. C. Hyde, op. cit., Vol. I, p. 36.
C. C. Hyde, op. cit., Vol. I See also his remarks in p. 723.
H. Lauterpacht, International Law and Human Rights, pp. 40–42 (1950).
Cf. V. F. García-Amador, “State Responsibility in the Light of New Trends in International Law,” Am. J. Int. Law, Vol. 49, p. 339 (1955).
Thus, Professor C. C. Hyde said: “The underlying principle would seem to be that what a state claims the right exclusively to control, such as its own territory, it must possess the power and accept the obligation to endeavor so to control as to prevent occurrences therein from becoming by any process the immediate cause of such injury to a foreign state as the latter, in consequence of the propriety of its own conduct, should not be subjected to at the hands of a neighbor.” C. C. Hyde, op. cit., Vol. I, p. 723.
Cf. A. Rougier, Les Guerres Civiles et le Droit des Gens, p. 418 (1903). It should be remembered that these considerations gave Pufendorf ample reason to presume the existance of fault.
See S. Pufendorf, op. cit., bk. VIII, ch. VI, sec. 12.
It is admitted, though, that the culpa rule does not preclude the possibility that international law in certain cases recognize absolute responsibility, as for instance, the case of Article 3 of the Hague Convention IV of 1907 regarding Law and Customs of War on Land which says: “A belligerent party… shall be responsible for all acts committed by persons forming part of its armed forces.” For text of the Convention, see W. W. Bishop, Jr., International Law: Cases and Materials, p. 604 (1953).
For comments, see A. Ross, International Law: Cases and Materials, (1953)op. cit., p. 258.
In United States v. Arjona, 120 U.S. 479 (1887), involving the counterfeiting within the United States of currency issued by the Colombian Government, the Supreme Court said: “The law of nations requires every national government to use ‘due diligence’ to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof; and because of this the obligation of one nation to punish those who, within its own jurisdiction, counterfeit the money of another nation has long been recognized.” P. 497.
This assertion immediately brings into play the controversy as to whether international law gives the states competence. Thus, Judge Dionisio Anzilotti says that international law presupposes the state and, therefore, cannot be superior to it. See D. Anzilotti, op. cit., Vol. I, p. 51. Also C. De Visscher, Theory and Reality in Public International Law, p. 103 (Transi. by P. E. Corbett, 1957). Professor Georges Scelle, on the other hand, believes that the competence of the state proceeds from a legal system superior to it.
See, G. Scelle, Précis de Droit des Gens: Principes et Systématique, Vol. I, p. 80 (1932). See also to the same effect, P. Fiore, International Law Codified, p. 157 (Transi. by E. M. Borchard, 1918).
Cf. H. Kelsen, Principles of International Law, p. 126 (1952).
This is not only a responsibility of the state which is unable to suppress the acts, but also of any other state, since it is a matter which affects world peace. This can be done under Article 35 of the United Nations Charter. Also certain regional arrangements provide for a similar course of action. Thus, Articles 6 and 7 of the Inter-American Treaty of Reciprocal Assistance are pertinent in this regard. For text, see Am. J. Int. L. Supp., Vol. 43, p. 53 (1949).
We are not here concerned with the insoluble problem of defining aggression, but it is understood for our purposes that any use of force which results in a violation of the territorial integrity of a state thus endangering world peace is an act of aggression. For the difficulties in defining aggression, see J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (1958).
Q. Wright, “The Prevention of Aggression,” Am. J. Int. L., Vol. 50, pp. 514, 527 (1956).
J. L. Kunz, “Sanctions in International Law,” Am. J. Int. L., Vol. 54, pp. 324, 331–332 (1960). Italics are the author’s.
J. L. Kunz, “Sanctions in International Law,” Am. J. Int. L., Vol. 54, pp. 331–332 (1960).
United States v. Great Britain (1871). For the record of this arbitration see J. B. Moore, A Digest of International Law, Vol. 7, pp. 1059–1067 (1906). This case is fully discussed in Chapter IV, infra.
J. L. Kunz, “Sanctions in International Law,” Am. J. Int. L., Vol. 54, op. cit., p. 332 (1960)..
For the record of this case, see J. B. Moore, A Digest of International Law, op. cit., Vol. 2, pp. 409–414 (1906).
Q. Wright, “United Nations Intervention in the Lebanon,” Am. J. Int. L., Vol. 53, pp. 112, 115 (1959).
The question of a definition of aggression has occupied the minds of great jurists for over a half-century. For the difficulties involved, see C. Eagleton, “The Attempts to Define Aggression,” International Conciliation, No. 264, p. 579 (1930).
L. B. Sohn, “The Definition of Aggression,” Virginia L. R., Vol. 45, p. 677 (1959).
For text, see J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression, p. 35 (1958).
Convention Defining Aggression, London, July 3, 1933, Article II, paragraph 5. For text, see Am. J. Int. L. Supp., Vol. 27, p. 193 (1933).
For these proposals, see J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression, pp. 201–202 (1958).
For the various proposals, see U.N. General Assembly, Official Records, Sixth Session, Supplement No. 9 (A/1858), p. 12 (1951).
For text, see Am. J. Int. L. Supp., Vol. 44, p. 16 (1950).
See, in particular, Article II, sections (4), (5), and (6). For text, see Report of the International Law Commission, Covering the Work of Its Third Session, 16 May — 27 July, 1951, U.N. General Assembly, Official Records, Sixth Session, Supplement, No. 9 (A/1858), p. 12 (1951).
These will be discussed in the various chapters dealing with specific hostile acts of private individuals.
V. F. García-Amador, op. cit., p. 345.
In this connection, the Draft Statute for an International Criminal Court proposed by the Committee on Criminal Jurisdiction in 1951 rejected the conception of responsibility of states. For text of the Draft Statute, see Report of the Committee on International Criminal Jurisdiction, U.N. General Assembly, Official Records, Seventh Session, Supplement No. 11, Annex I (A/2136), pp. 21–25 (1952).
L. Oppenheim, International Law op. cit., Vol. I, p. 355, 1955.
In this category are of course included private acts against foreign states, as it has been seen that they may constitute aggression.
L. Oppenheim, International Law, op. cit., Vol. I, p. 356.1955
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 1962 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
García-Mora, M.R. (1962). The Traditional Law Concerning the Responsibility of The State for Actions of Private Persons. In: García-Mora, M.R. (eds) International Responsibility for Hostile Acts of Private Persons against Foreign States. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0722-6_2
Download citation
DOI: https://doi.org/10.1007/978-94-015-0722-6_2
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-015-0218-4
Online ISBN: 978-94-015-0722-6
eBook Packages: Springer Book Archive