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

Some of the authorities differ as regards this latter view. It is pointed 
out that the international common law is not like the positive law established 
by treaties and accepted usage. Therefore, beyond these two sources, no 
definite standards could be established covering the duties incumbent upon 
the States. It might be well also to remember the indefinite line between 
national and international rights. At the present time, the States construe 
and apply these rights in many different ways. This is clearly shown by 
their action in connection with monopolies, government control of business, 
immigration, deportation of aliens, tariffs, and emergency laws regarding 
price fixing and other forms of restriction imposed upon commercial free- 
dom. This means that the juridical status of these matters, which are con- 
sidered to be of national incumbency, does not permit the establishment of 
international standards. It is doubted, therefore, whether international rules 
should be enforced in preference to the municipal law as regards the pro- 
tection of aliens. 
These comments refer to certain specific measures which are undergoing 
a stage of evolution in modern jurisprudence, and none of which are incon- 
sistent with the principles of natural justice that prevent the State sover- 
eignty from ruling without limitations of any sort, or making its will pre- 
ponderant in every sense, without giving due consideration to the funda- 
mental necessities of government generally accepted by the civilized world. 
There is a minimum juridical standard imposed by human civilization, with- 
out which neither the existence of the State as a sovereign entity nor that of 
the international community could be conceived. Even those various meas- 
ures to which we have referred are not altogether at variance in principle. 
Underlying these measures there are certain leading precepts that no State 
could afford to ignore without drawing protests from the others. One of 
these principles might be, for instance, the one of due compensation for the 
confiscation of property for public use. 
This debate, however, has no longer any theoretical importance or prac- 
tical significance. A scientific fact of paramount importance has been elicited, 
which has altogether altered the situation. It is now conceived that the rights 
of man are not a matter exclusively dependent upon the will of the State. 
It has been mentioned elsewhere that at its New York session the Institute 
of International Law has invested the rights of man with international 
character. This means, in other words, that the rights of man are thereby 
placed under the patronage of the international community. “The juridical 
mind of the civilized world”—states the pronouncement of the Institute— 
“demands the recognition of the rights of man free from all attempts on 
the part of the State.” The leading exponent of this doctrine, President 
Tames Brown Scott. thus comments upon it:

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