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

way of conceiving such responsibility, which presupposes that justice is 
supreme, even over the State’s will. Responsibility is based: first, upon the 
law as a group of rules of conduct whose binding force lies on principles 
beyond the will of the State; and secondly, the consequence thereof, that the 
powers of the State are limited by the juridical force of such rules. 
The usual lay foundation for the responsibility of the State lies on the 
fact of territorial sovereignty. Responsibility would thus be a mere conse- 
quence of the exclusive jurisdiction of the State. This doctrine is explained 
by stating that national jurisdiction entirely excludes any protection from 
foreign States. Each State, within its territorial limits, is the only one able 
to afford proper guarantees to the rights of aliens, and for this reason it is 
held responsible for whatever undue injury they may sustain. “The very 
fact of the exclusive authority of the sovereign State” —according to Hall— 
“establishes its responsibility.” “International relations would not be 
possible” —Triepel avers—*if the jurisdiction of the foreign State where one 
resides should not be substituted for that of the home State, whenever the 
latter is unable to afford proper protection.” This territorial doctrine has 
been recently applied in the decisions of the Mixed Claims Commission, 
United States and Germany, in connection with damages charged to Ger- 
many in colonial possessions not under her control. 
National jurisdiction might explain the theory of domestic responsibility. 
However, it would be a mere explanation thereof, and not a judicial founda- 
tion thereof. The question is the function of enforcing such right within 
the limits of the territory, with reference to its occupants. In order that 
such function should have any effect upon a judicial system without the State 
itself, it requires some element to link it with those judicial systems. It is 
evident that every State is able to exercise due diligence to prevent injury 
within the bounds of its jurisdiction. This is, of course, a simple premise; 
but it is essential to ascertain the basis of the duty to prevent said injury, 
and the necessity of redress therefor. The doctrine which transforms power 
into duty must thus be introduced. Moreover, if jurisdiction were to consti- 
tute the only ground for responsibility, the State would be held liable for all 
sorts of damage, though only in respect of occurrences within its own 
boundaries. Both presumptions are, of course, quite incorrect. It would be 
necessary to amend this construction by including therein the question of 
exceeding the rights covered by the powers of the State. 
A broader foundation for the doctrine of State responsibility lies upon 
the general assent of the members of the Family of Nations. This common 
assent would assume that the Nations should conform to certain rules and 
regulations in reference to organization and procedure, and to the general 
principles which govern the conduct of States. This common right thus 
established would imply that, if any political entity should refuse to conform

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