56
RESPONSIBILITY OF STATES
the various governments to the inquiry of the Preparatory Committee. Some
of the governments, such as those of Japan, Norway, Netherlands, Poland
and Roumania, state outright that there is no responsibility in this case.
Other governments, viz., those of Germany and Great Britain, explain the
reasons why no responsibility is involved and subordinate it to the duty of
the State to protect alien subjects. In accordance with this view responsi-
bility might be incurred, as stated by the German Government, if the State
organs have acted in violation of international law, that is, if they have not
afforded sufficient protection or have failed to accomplish everything they
could under the circumstances, allowing thereby occasion for the claims of
the aliens to arise by reason of the injuries inflicted upon them by private
persons. Great Britain applies the rule of negligence as a basis for responsi-
bility and extends it to cover the cases wherein the government allows
reparation to its own nationals, which should then be also made applicable
to foreigners; and cases in which the insurrection is successful and a de
facto government is established. This rule covering the negligence of the
State, or, inversely, of the due diligence which the State should exercise to
prevent the damage or repress the culprits, is the one propounded in the
Harvard codification plan,! and also the one adopted by the Institute of
International Law.2 The Harvard plan refers to due diligence, while that of
the Institute sets forth the diligence which a State should usually exercise
under the same circumstances. The project of the American Institute of
International Law exempts the States from responsibility “except when the
said governments have not maintained order in the interior, have been
negligent in the suppression of acts disturbing this order, or, finally, have
not taken precautions so far as they were able to prevent the occurrence of
such damages or injuries.”® This plan represents the gradual development
of the various formulas of the Pan American Conferences. The Second
Conference held the State responsible only in the event that the “constituted
for damage caused by insurgents, and then gives a detailed list comprising three pages,
covering the large number of cases in which international commissions have upheld
this rule whenever their jurisdiction was not limited in this respect by the conventions
under which they were created. Mr, Borchard adds that this rule is also stipulated in
a great many treaties between European nations and Latin American Republics.
* Research in International Law—Harvard Law School.
*In order to determine whether the State is responsible, the formula of the Insti-
tute considers also the fact as to whether or not the State affords alien subjects the
same protection accorded to its own nationals. It affirms, especially, the obligation to
allow foreigners the same rights to indemnity provided for nationals in connection with
the acts of municipalities or of other persons. Likewise, it recognizes that the State is
relieved from responsibility for acts of insurgents when these have been recognized as
belligerents. (Annuaire de I'Institut, 1927—tome 3.)
* Project No. 15, Responsibility of Governments, prepared by the American Institute
of International Law at the request of the Governing Board of the Pan American
Union, dated January 2, 1024, to be submitted to the International Committee of Jurists.
Submitted to the Governing Board on March 2, 102¢.