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:: IV. Mediate and immediate state responsibility

Collection:: Economics Books

MEDIATE AND IMMEDIATE STATE RESPONSIBILITY 21 bind the State, without the necessity of ascertaining the source of the municipal law which renders them competent. However, in so far as public treaties are concerned, some of the authorities hold that they are to be considered as acts of special import which require, precisely, the fulfilment of constitutional regulations on the subject. This is a very much debated point. Treaty authorities have stated a series of considerations on the autonomy of the international juridical system, or on the supremacy of the international over the municipal law.! The peculiar handling of this matter and the lengthy debates it has caused, do not seem warranted. An analysis of the actual facts will disclose that the procedure for entering into treaties is now so regulated in the civilized States, that it is a co- operative task of the various branches of the government: the Chief Execu- tive cannot act without the assistance of the Minister; the Minister, on his part, enlists the support of the majority party in Congress, and acts in accordance with the expressed will of this body, or under authority already obtained to negotiate along certain lines only, or subject to a vote a posteriori sanctioning the treaty. This is the usual procedure. States negotiate and make treaties with the understanding that they are subject to this procedure, which is the only one that can eventually give them the actual force and effect of a pact, sanctioned by the will of the Nation. If this is the pro- cedure that is being followed every day, then it constitutes a common usage. Treaty authorities, however, are anxiously seeking a solution for this prob- lem, which, incidentally, they cannot find; whereas, the real solution lies in the procedure herein outlined, covering the ground more thoroughly than any other suggested principles, since it is being followed out in the large number of international covenants that are constantly being made. (d) Mediate responsibility is involved in all cases in which the question is not between two States, but an injury caused by the officers of one State to the nationals of another. From the point of view of responsibility, there *“To state that the power to establish who is to be the competent authority to make treaties is necessarily within the scope of constitutional law and that therefore it is exclusively incumbent upon such law to fix the conditions under which the will of the State to make a treaty can properly originate, would amount to saying that the con- stitutional provisions have authority in the domain of international law proper; in other words, that international law is not an independent system of jurisprudence. It would not be otherwise if the doctrine is understood in the sense that it is incumbent upon international law to invest the State with the will to make treaties, which, how- aver, cannot but imply the will, and only the will of the competent organ in accordance with the constitutional law. To state that international law is thus dependent upon sonstitutional law does not seem to be legally conceivable. On the contrary, it is con- ceivable that international law delegates to municipal law the power to establish that the leclaration of the will to make a treaty is attributable to the State if the measure creat- ing it emanates from the competent organ under the constitutional provisions. Con- stitutional competency would thus imply, in accordance with international jurisprudence, the presumption that the international rules upon which the attribution of such will lepend, are applicable.” Anzilotti—Cours de Droit International—Paris—1020. D. 262.

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