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

(a) There are some who consider the suppression of insurrections as a 
legitimate case of defense, and maintain that by reason thereof, the State is 
exempt from responsibility for the damages caused, provided that these do 
not exceed the limits of actual necessity. This is the opinion stated by the 
Government of South Africa in its reply to the inquiry of the Preparatory 
Committee.! However, this view is not acceptable. There are various cases 
in which the State is free from responsibility, and these are: first, self- 
defense understood in its strict meaning; second, reprisals; and third, cases 
of necessity. It is considered that damages caused under any of these cir- 
cumstances do not entail in every case the obligation to indemnify. Self- 
defense is both a right and a duty of all persons and communities. It implies 
an undue and unjust assault, either actual or threatened, against which 
immediate reaction is imperative. In its international aspect the doctrine of 
self-defense is not, as in the penal jurisprudence, a rule of law with clear 
and well defined limitations. Upon being exercised, its limits are liable to be 
exceeded, and its consideration by international courts will always be a very 
delicate matter. Nevertheless, the doctrine is essential. It cannot be dis- 
pensed with as a reason for justification when a State has been forced to 
prevent or repel an attack without the necessary time to curb it in the usual 
way. However, this is not the case either with reprisals or the so-called 
“cases of necessity”. Reprisals are the remaining traces of an utterly dis- 
organized community of states. They are not an unavoidable reaction and 
should be abolished. However, as they could not be banished outright, it 
would be advisable to restrict them, by subjecting them, when authorized, 
to certain conditions of tact and discretion, such as have been communicated 
by the governments of Denmark, Great Britain and Switzerland.2 In deal- 
ing with responsibility, however, the question of reprisals cannot be directly 
considered. But if severe measures should be provided as regards responsi- 
bility arising out of reprisals, there is no doubt but that this would have a 
* Point XI of the Inquiry of the Preparatory Committee. 
"Inquiry of the Preparatory Committee.

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