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

cept in so far as the duty of the State to afford proper protection is con- 
cerned. The main question in this matter is, therefore, to determine wherein 
does the international obligation lie. If the damage has been inflicted upon 
another State, the principles of responsibility are limited by the duty im- 
posed by the community upon its members to mutually protect themselves in 
matters involving the essential elements of its preservation or dignity. If 
the damage has been caused to foreign nationals, the question to ascertain is 
whether the State should afford them the same protection given to its own 
nationals, or whether this protection may differ. This has been one of the 
questions which have on certain occasions incensed Latin American States, 
on account of the impositions of which they have been victims in the past on 
the part of powerful States that have exacted excessive indemnities for their 
There are conventions between the American States, constitutions and 
laws, treaties and court decisions, which have followed the policy of con- 
fining State responsibility within the limits of protection afforded to nation- 
als. This was also the doctrine of the old treaty authorities and it was in- 
corporated in the declaration of the Institute of International Law at its 
session in Oxford, wherein it was set forth that foreigners, regardless of 
their nationality, are entitled to the same civil rights as nationals, except in 
so far as otherwise specifically provided by current legislation. The same 
doctrine has been, of course, embodied in the draft code of the American 
Institute: “The American Republics do not recognize in favor of foreigners 
other obligations or responsibilities than those established for their own 
nationals in their constitutions, their respective laws, and the treaties in 
force.” The reports of arbitral awards and of diplomatic claims contain 
varied decisions. The oldest rulings follow the principle of equality of 
nationals and foreigners. In the latest cases, however, there appears to be 
a change in this view. This modification has been clearly and specifically set 
forth in the resolution of the Institute of International Law at its Lausanne 
session and in Decision No. 7 of the Permanent Court of International 
Justice. The resolution of the Institute imposes upon the State the obligation 
to treat foreigners in accordance with the international law. This treat- 
ment of foreigners may have to be better than that accorded to nationals, if 
the municipal laws do not come up to the standards required by the inter- 
national community. The Permanent World Court has proclaimed the pre- 
dominance of international common law. The mixed arbitration commissions 
organized under the peace treaties of 1919 follow the same principle. A 
ruling of the Claims Commission, United States and Mexico, in 1926, also 
sets forth that in this question the problem does not consist merely of com- 
paring the rights of nationals and foreigners, but that it is also necessary to 
allow foreigners their rights under international law.

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