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RESPONSIBILITY OF STATES
played by the large number of treaties on arbitration and conciliation recently
made! All of these treaties provide that in matters within the jurisdiction
of the national courts, the international proceedings will be subject to the
exhaustion of the local remedies available to the injured person for the
purpose of securing redress. This is also, more or less, the conclusion
adopted by the Preparatory Committee. The majority of the governments
have adhered to this doctrine without hesitation. Only in isolated cases have
certain reservations been made. Denmark affirms the principle, especially as
regards injuries caused through the action of the courts:
“In the case of the acts,” she adds, “of an administrative authority,
the above principle cannot, however, be applied unconditionally. In the
domain of the administration, it is possible to conceive of cases in which
the act of a subaltern authority may give rise to diplomatic action, even
though the person concerned has the right of recourse to a higher in-
stance. Here the decision must depend on the nature of each case; no
definite limits can be set. In the collection of taxes, Customs or other
duties, contrary to the provisions of commercial treaties, the claim may
doubtless be brought immediately against the State, even though the
foreign private individual were entitled to complain to a higher Customs
or fiscal authority. When, however, the matter is rather one of technical
or arbitrary judgment—as for instance the classification of certain goods
under a certain tariff heading—the State in question may insist that the
foreigner shall first of all submit the matter fo a higher expert authority
before making anv claim against the State.”
Hungary avers, on her part, that
“This principle may, of course, be modified on behalf of foreigners
as a result of an obligation assumed by the State in an international con-
vention, or when the settlement of a dispute falls in virtue of an inter-
national agreement. within the jurisdiction of an international organ.”
Japan restricts the application of the principle to cases involving court de-
cisions, Finally, Norway states that
“If damage has been caused to a foreigner as a result of an act con-
trary to the various laws of the State, the foreigner in question must
first exhaust all remedies open to him under the laws of that State before
international responsibility can be invoked against the State. The only
exception to this rule would be in extreme cases of denial of justice or
other flagrant injustice.
Hay Duties, British American Claims Commission, March 10, 1925, American Journal
of International Law, vol. 19 pages 797, 799; The R. T. Roy, ibid. 802; Adolph G.
Studer, ibid. 794. .
*Traités Généraux d’Arbitrage cornmuniqués au Bureau International de la Cour
Permanente d’Arbitrage.