Responsibility of states for damage caused in their territory to the person or property of foreigners

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Monograph

Identifikator:: 1831665921

URN:: urn:nbn:de:zbw-retromon-222025

Document type:: Monograph

Author:: Maúrtua, Víctor M.; Scott, James Brown http://d-nb.info/gnd/117654191

Title:: Responsibility of states for damage caused in their territory to the person or property of foreigners

Place of publication:: New York

Publisher:: Oxford Univ. Press

Year of publication:: 1930

Scope:: V, 67 S.

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Monograph

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Title:: IV. Mediate and immediate state responsibility

Collection:: Economics Books

MEDIATE AND IMMEDIATE STATE RESPONSIBILITY 23 the exhaustion of the legal remedies available within the municipal judiciary is a condition precedent to international cognizance. There is not, in fact, any proper reason to apply different principles of law, depending upon the rank of the officers of the State. Neither would there be a good reason to base this distinction upon the fact that redress for the damage may be had through prosecution of the legal actions provided by the State for the protection of the rights of the inhabitants of its ter- ritory. These actions are, in general, available to all persons in connection with damages caused by all kinds of agents. Certain special cases in which the State disclaims responsibility, shielding itself behind the ancient con- ception of its powers as a body politic involve, in fact, immediate inter- national responsibility, as they imply a veritable denial of justice. Therefore, logically speaking, any classification made of the acts of government officials as regards the international responsibility of the State therefor, would have to be based exclusively upon the nature of the acts proper and the legal position assumed by the State in the matter, in relation to other States or their nationals. It is thus the nature of the act, which should establish whether it comes properly within the national or the international jurisdiction. Reference has been hereinbefore made to national or private matters, which come properly within the municipal jurisdiction. However, there are certain matters which involve principles of international law, or which affect the conduct or obligations of the Family of Nations and are, therefore, beyond the jurisdiction of the municipal judiciary. Any facts in controversy in this kind of litigations, or the responsibility involved, could not be properly adjudged through an ex parte proceeding of any one of the States con- cerned, as equity would demand a superior jurisdiction to establish the truth of the facts and do justice. Some of these issues, however, may be properly settled through proceedings in the municipal organs, and, no doubt, it would be only fair, under certain circumstances, to afford the State an opportunity to do so. However, this is a matter involving rules of equity and comity, and under strict legal principles, all questions which are prim- arily international in scope, or which assume such character by reason of not being actionable under the municipal jurisprudence, entail international re- sponsibility, whether they involve superior officers or subordinate agents or employees. The damage inflicted by one State upon another, already dealt with, belongs to the first category, the same as municipal laws which violate international principles, enacted by States wherein unconstitutionality cannot void them. In all other cases in which the States have afforded private citizens the right to sue high government officials, there is no distinc. tion to be drawn, from the point of view of responsibility, between the acts of the latter and of subordinate officers or petty employees. They both

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