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

salutary effect upon the development of the principle along the lines sug- 
(b) As regards cases of necessity, the Preparatory Committee has pro- 
pounded a general formula that refers only to the concrete case of repudia- 
tion of the contractual obligations of the State. On general principles, neces- 
sity does not justify repudiation, nor does it come within the scope of the 
Law of Nations. It is a situation wherein the interests of the first party, 
protected by the law, are in actual danger and there is no other solution but 
to violate the rights of the second party under juridical sanction. It differs 
materially from self-defense in that—as stated by Carrara—self-defense is a 
“reaction”, whereas, necessity resolves itself into an “action”. This action 
can be defined in the municipal law, inasmuch as the measure of damages 
can be practically determined. Its application to international relations 
would be impractical and, under certain circumstances, it would tend to im- 
pair the fundamental rights of innocent States. 
“Tt was thus with good reason”—the eminent Mr. Charles De Visscher 
comments—*“that the American Institute of International Law formulated 
in 1916 the following fundamental rule that embraces a solemn protest 
against the doctrine of necessity: 
“ “Every nation has the right to exist, and to protect and to conserve 
its existence; but this right neither implies the right nor justifies the act 
of the State to protect itself or to conserve its existence by the com- 
mission of unlawful acts against innocent and unoffending states.’ 
“All the terms of this pronouncement are worthy of consideration: it 
recognizes the right of conservation within the limits imposed by due 
respect for the rights of others, condemns the doctrine of necessity that 
attempts to exceed those limits, and finally, it reserves the cases of justifi- 
cation arising from self-defense and from reprisals.” 
This same formula was proposed and discussed as one of the declarations 
of the rights and duties of nations at the Sixth International Conference of 
American States held at Habana in 1928. 
The authorities cite a number of cases in which self-defense and necessity 
have been pleaded in order to justify or excuse international conduct. Among 
others, the following cases have been cited: the Caroline, the Virginius, the 
American expeditions against the Villa forces in 1916 and 1919, the recipro- 
cal violation of boundaries between Greece and Bulgaria in 1919, etc. In 
the case of the Caroline, Mr. Webster, Secretary of State of the United 
States. thus expounded the doctrine of self-defense: 
“Undoubtedly it is just’—he stated in his note of August 6, 1842, to 
the British Pleninotentiary. Lord Ashburton—*“that while it is admitted 
1 Von Liszt, Treatise on Penal Law, Vol. 11, p. 341.

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