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

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Monograph

Identifikator:: 1831665921

URN:: urn:nbn:de:zbw-retromon-222025

Document type:: Monograph

Author:: Maúrtua, Víctor M.; Scott, James Brown http://d-nb.info/gnd/117654191

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

Place of publication:: New York

Publisher:: Oxford Univ. Press

Year of publication:: 1930

Scope:: V, 67 S.

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Monograph

Structure type:: Chapter

Title:: I. The basis of state responsibility

Collection:: Economics Books

THE BASIS OF STATE RESPONSIBILITY 5 entitled to recognition as members of the Family of Nations. It has been this latter meaning of general assent, which has been the subject of con- siderable controversy as regards the meaning itself, and also from the point of view of the effects that have been attributed to same.l However, it is the meaning adopted by the Preparatory Committee of the Codification Confer- ence and by most of the authorities. Mr. De Visscher, in the following state- ment, has combined the doctrine of general assent with the principle of equality among the States: “When States mutually recognize their sovereignty, they also thereby recognize each other’s equal legal rights in the exercise of all the preroga- tives inherent to such sovereignty; and the future relations arising from this recognition are to be established, therefore, on the basis of absolute reciprocity of rights and duties. The responsibility of the States in the international sphere is, therefore, the obligatory complement of their equality. While the mutual recognition of sovereignty represents for each one of the States the freedom of action that is essential for the pursuit of their indi- vidual aims, on the other hand, it renders them subject to the restrictions imposed by the co-existence of other States with rights equal to theirs. Once the State has been recognized by the Family of Nations, it becomes subject to the international law, with the consequent rights and duties, and capable of violating the Law of Nations, and of assuming responsibility therefor.” This eloquent pronouncement of Mr. De Visscher is not, however, alto- gether exempt from the just criticism against the doctrine of general assent of the States. Neither does his conception of equality constitute a satis- factory explanation. All States have the same rights and obligations entailed by membership in the Family of Nations; and of course, they are all liable to incur in a breach of the international law. It is the need for coordina- tion of their activities that establishes their common rights; hence the element of common assent is not altogether essential. This process of legal reason- ing is identical with the one covering the determination of the responsibility of individuals within the State: some individuals might violate the law to {“When a new state is formed under the unquestionable jurisdiction of public inter- national law, it is not dependent upon its own will as to whether it shall or not submit to the universal rules of the Law of Nations. One of the two: either it will become 1 member of the International Community, or else it will not exist as a State, Supposing in Europe, for instance, that a new State should exist outside the juris- diction of the international law; it is absurd. It is incorrect to state that international law is not applicable to the State prior to its securing international recognition; on the contrary, the evidence which it has shown of its intention to observe the Law of Nations, is just precisely one of the grounds which entitles it to international recogni- tion. If this is true, and if it insists, however, upon questioning the effect of recogni- tion, we will readily recede to the extreme doctrine which tends to subject even the birth of the State to the condition precedent of international recognition.” R. Erich: La Naissance et la Reconnaissance des Etats, Académie de Droit International, Recueil des Cours. 1926. III. Tome 13 de la Collection. Librairie Hachette, 1027, Paris.

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