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

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¢.

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