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

maintains that the success of the insurgent party and its assumption of the 
government, do not affect the responsibility of the State. Czechoslovakia 
“The State is not responsible for damages caused by insurrection, 
however, if the claimant State and the State against which the claim 
is brought both recognize the insurgents as belligerents. 
“The question whether a revolutionary Government is responsible 
for damage caused during a civil war to the person or property of 
foreigners where the insurgents gain power is not yet ripe for settlement, 
and it seems unlikely that any general formula found for it would secure 
unanimous acceptance. The reply to this question, above all, would de- 
pend on the circumstances of the case, more particularly on whether the 
acts which caused the damage could be attributed to the new Government 
or to its agents.”’? 
These are neither isolated opinions nor do they lack proper grounds. 
The opinion based upon the success of the insurgents could be termed the 
doctrine of success. Victory, which has become a fact, would control the 
juridical relations. The fiction of the national will, which is presumed to 
lie with the successful side, may be used to explain the advantage of hold- 
ing responsible the new revolutionary government that comes into power; 
but it does not attribute any juridical character to such advantage.2 The 
acts involving responsibility and committed during the revolution are due 
to the fault of those who committed them. If fault exists, responsibility 
follows. It would not then seem correct to state that the Government is 
responsible for damage caused by the insurgents “if the insurrection is suc- 
cessful and the insurgent party has assumed power”. The formula of the 
Harvard Research Committee is preferable: 
“In the event of a successful revolution, the state whose government 
is established thereby is responsible if an injury to an alien has resulted 
1 Ibid. 
® Professor Podesta Costa, of the Argentine, maintains this view in his work 
entitled “Ensayo sobre las Luchas Civiles y el Derecho International” (Essay on Civil 
Wars and International Law). The following is quoted therefrom: “As regards 
specific injurious acts, there is no foundation for the view that the accidental and 
extraneous fact of final victory of the insurgent party should alter the juridical ques- 
tion arising between the State and the injured alien on account of the commission of 
such acts by members of the insurgent party . .. if the hypothesis should be accepted 
a posteriors that the national will is with the successful party from the inception of 
the revolution, it should also be concluded that, at the beginning of every civil war, the 
responsibility of the State for injurious acts will be involved, either in connection with 
the acts attributable to the constituted Government, or in connection with those at- 
tributable to the insurgent party, depending upon which of the two should 
be finally victorious; and if this conclusion is established, when the insurgent party is 
finally successful, the State would have to be relieved from all responsibility for the 
acts attributable to the former constituted Government”

Note to user

Dear user,

In response to current developments in the web technology used by the Goobi viewer, the software no longer supports your browser.

Please use one of the following browsers to display this page correctly.

Thank you.