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

This responsibility, however, can only be fixed through the medium of the 
central government, which represents the entire Union. There may be found 
in international history various instances of direct and indirect responsibility 
of federal governments, and it has been no easy task to achieve the ad- 
mission of federal responsibility for the infringements of the member states. 
In several cases federal governments, while not disclaiming responsibility, 
have pleaded their inability to discharge international obligations due to the 
lack of legal means to compel fulfilment on the part of its constituent political 
units. In other cases, like the Luis Stern matter, the central government has 
gone so far as to refuse a lmine to discuss the judicial organization of a 
particular State. Other well known leading cases are the McLeod between 
England and the United States; the California Schools, between Japan and 
the United States; and the New Orleans and Hahnville, Louisiana, lynchings, 
which caused differences between the United States and Italy, etc. In all of 
these various controversies, the governments have been reluctant to accept 
full federal responsibility ; but, in the end, it has been admitted. In the last 
mentioned case, the acceptance of responsibility was solemn and definite. 
The experience gained from these incidents leads to the conclusion that it is 
a recognized principle of international law that the federated State should 
be responsible for the violation of the international obligations of the Union 
by its constituent members, and also for the infringement of the latter’s own 
international duties, It is not permissible to set up the national organization 
of the government as an excuse for the failure to discharge such obligations. 
This question was brought up in the inquiry of the Preparatory Committee 
of the Codification Conference. The replies of the various governments 
were all based on the assumption that responsibility arises out of the fact 
that the entity which conducts the foreign relations is the proper one to 
undertake international obligations. The replies on this point refer also to 
the position of subordinate states, colonies, protectorates, etc., for the acts of 
which the controlling State should be responsible. Among the Bases of Dis- 
cussion of the Codification inquiry, No. 23 reads as follows: “Where a 
State is entrusted with the conduct of the foreign relations of another 
political unit, the responsibility for damage suffered by foreigners on the 
territory of the latter belongs to such State. When one Government is 
entrusted with the conduct of the foreign relations of several States, the 
responsibility for damage suffered by foreigners on the territory of such 
States belongs to such common or central Government.” 
This Basis of Discussion does not appear to be technically adequate. The 
conduct of foreign relations is sometimes divided in a certain way. There 
are instances in which the states of a federation retain the right to enter into 
treaties upon specific matters, and to have diplomatic representation. This 
was the case with the German Federated Empire prior to the World War of

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