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

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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