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

bind the State, without the necessity of ascertaining the source of the 
municipal law which renders them competent. However, in so far as 
public treaties are concerned, some of the authorities hold that they are to be 
considered as acts of special import which require, precisely, the fulfilment 
of constitutional regulations on the subject. This is a very much debated 
point. Treaty authorities have stated a series of considerations on the 
autonomy of the international juridical system, or on the supremacy of 
the international over the municipal law.! The peculiar handling of this 
matter and the lengthy debates it has caused, do not seem warranted. An 
analysis of the actual facts will disclose that the procedure for entering 
into treaties is now so regulated in the civilized States, that it is a co- 
operative task of the various branches of the government: the Chief Execu- 
tive cannot act without the assistance of the Minister; the Minister, on his 
part, enlists the support of the majority party in Congress, and acts in 
accordance with the expressed will of this body, or under authority already 
obtained to negotiate along certain lines only, or subject to a vote a posteriori 
sanctioning the treaty. This is the usual procedure. States negotiate and 
make treaties with the understanding that they are subject to this procedure, 
which is the only one that can eventually give them the actual force and 
effect of a pact, sanctioned by the will of the Nation. If this is the pro- 
cedure that is being followed every day, then it constitutes a common usage. 
Treaty authorities, however, are anxiously seeking a solution for this prob- 
lem, which, incidentally, they cannot find; whereas, the real solution lies in 
the procedure herein outlined, covering the ground more thoroughly than 
any other suggested principles, since it is being followed out in the large 
number of international covenants that are constantly being made. 
(d) Mediate responsibility is involved in all cases in which the question 
is not between two States, but an injury caused by the officers of one State 
to the nationals of another. From the point of view of responsibility, there 
*“To state that the power to establish who is to be the competent authority to make 
treaties is necessarily within the scope of constitutional law and that therefore it is 
exclusively incumbent upon such law to fix the conditions under which the will of the 
State to make a treaty can properly originate, would amount to saying that the con- 
stitutional provisions have authority in the domain of international law proper; in 
other words, that international law is not an independent system of jurisprudence. It 
would not be otherwise if the doctrine is understood in the sense that it is incumbent 
upon international law to invest the State with the will to make treaties, which, how- 
aver, cannot but imply the will, and only the will of the competent organ in accordance 
with the constitutional law. To state that international law is thus dependent upon 
sonstitutional law does not seem to be legally conceivable. On the contrary, it is con- 
ceivable that international law delegates to municipal law the power to establish that the 
leclaration of the will to make a treaty is attributable to the State if the measure creat- 
ing it emanates from the competent organ under the constitutional provisions. Con- 
stitutional competency would thus imply, in accordance with international jurisprudence, 
the presumption that the international rules upon which the attribution of such will 
lepend, are applicable.” Anzilotti—Cours de Droit International—Paris—1020. D. 262.

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