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:: VIII. Exhaustion of logical remedies

Collection:: Economics Books

EXHAUSTION OF LOGICAL REMEDIES 53 “If damage has been caused to a foreigner in violation of contractual engagements or other indisputable obligations at international law, inter- national responsibility may be claimed against the State irrespective of the condition that the matter must have been laid before the national courts.” These reservations, however, do not affect the principle in question in any way, because practically all of them refer to matters that are essentially international in character, such as offences between States, differences of opinion in the interpretation of treaties, and the application of their pro- visions. In some of these cases it is possible for the State to make repara- tion through its national organs; and to allow the State an opportunity to do so would, naturally, make for cordial relations. However, these matters pertain to the international jurisdiction by reason of their very nature, and in the majority of cases they are beyond the scope of the State organs. The other points refer principally to damage caused to private persons. The responsibility arising therefrom, or in connection therewith, exists from the moment that the injury was inflicted. However, in order to make this responsibility effective, various proceedings have to be followed. The claim instituted through diplomatic channels is a relative and temporary pro- cedure. This is resorted to whenever the State has failed to discharge its obligation as regards the proper administration of justice. . This procedure will continue to be followed while the injured parties are not afforded personal actions that can be directly prosecuted by them in the international jurisdiction. And for the very reason that this diplomatic claim proceeding is relative, temporary and liable to impair the cordial relations of the States, its use should be properly restricted. The codification in this regard should also be inclined towards restriction, The codification formulas propounded in the various plans do not appear to be materially different. However, they are not free from defects. Basis No. 27 of the Preparatory Committee has the difficulty that it does not contemplate the cases in which the person has international remedies available. The formula of the Harvard Law School Research Committee is imperfect, because it subordinates responsibility itself, instead of the mere diplomatic proceeding, to the exhaustion of local reme- dies.3 The formula of the Institute of International Law is-an improve- 1 Société des Nations—Conférence pour la Codification du Droit International—C, 7s. M. 60. 1920 V. 2 “Where the foreigner has a legal remedy open to him in the courts of the State (which term includes administrative courts), the State may require that any question of international responsibility shall remain in suspense until its courts have given their final decision. This rule does not exclude application of the provisions set out in Bases of Discussion Nos. 5 and 6.” (Conférence pour la Codification du Droit International, C. 75 M. 69. 1020 V. p. 139.) ® “Article 6.—A state is not ordinarily responsible (under a duty to make repara- tion to another state) until the local remedies available to the injuried alien have been exhausted.” (Research in International Law—Harvard Law School—p. 133.)

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