justice by the courts as is internationally injurious, a State must find means to exercise compulsion against such courts. And the same is valid with regard to an obvious and malicious act of misapplication of the law by the courts which is injurious to another State. But if a court observes its own proper forms of justice and nevertheless makes a materially unjust order or pronounces a materially unjust judgment, matters become so complicated that there is hardly a peaceable way in which the injured State can successfully obtain reparation for the wrong done, unless the other party consents to bring the case before a Court of Arbitration. An illustrative case is that of The Costa Rica Packet,1 which happened in 1891. Carpenter, the master of this Australian whaling-ship, was, by order of a court of justice, arrested on November 2, 1891, in the port of Ternate, in the Dutch East Indies, for having committed three years previously a theft on the sea within Dutch territorial waters. He was, however, released on November 28, because the court found that the alleged crime was not committed within Dutch territorial waters, but on the high seas. Great Britain demanded damages for the arrest of the master of the Costa Rica Packet, but Holland maintained that, since the judicial authorities concerned had ordered the arrest of Carpenter in strict conformity with the Dutch laws, the British claim was unjustified. After some correspondence, extending over several years, Great Britain and Holland agreed, in 1895, upon having the conflict settled by arbitration and upon appointing the late Professor de Martens of St. Petersburg as arbitrator. The award, given in 1897, was in favour of Great Britain, and Holland was condemned to pay 1 See Bles in R.I., xxviii. (1896), pp. 452-468; Regelsperger in R.G., iv. (1897), pp. 735-745; Valery in R.G., v. (1898), pp. 57-66; Moore, i. § 148. See also Ullmann, De la Responsabilité de l'État en Matière judiciaire (1911); Borchard, § 81. damages to the master, the proprietors, and the crew of the Costa Rica Packet.1 Injurious Adminis Officials Naval § 163. Internationally injurious acts committed in Interthe exercise of their official functions by administrative nationally officials and military and naval forces of a State with- Acts of out that State's command or authorisation, are not trative international delinquencies, because they are not State and Miliacts. But a State bears a wide, unlimited, and unre- tary and stricted2 vicarious responsibility for such acts because Forces. its administrative officials and military and naval forces are under its disciplinary control, and because all acts of such officials and forces in the exercise of their official functions are prima facie acts of the State. Therefore, a State has, first of all, to disown and disapprove of such acts by expressing its regret or even apologising to the Government of the injured State; secondly, damages must be paid 4 where required; and, lastly, the offenders must be punished according to the merits of the special case. As regards the question what kind of acts of administrative officials and military and naval forces are of an internationally injurious character, the rule may safely be laid down that such acts are internationally injurious as would constitute international delinquencies when committed by the State itself, or with its authorisation. Four very instructive cases may be quoted as illustrative examples : (1) On September 26, 1887, a German soldier on sentry duty at the frontier near Vexaincourt shot from the German side and killed an individual who was on 1 The whole correspondence on the subject and the award are printed in Martens, N.R.G., 2nd Ser. xxiii. (1898), pp. 48, 715, and 808. Borchard (§ 77) objects to this statement. It is of importance to quote again here Article 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, which Grotius, ii. c. 17, § 20, denies ted and French territory. As this act of the sentry viola French territorial supremacy, Germany disowned apologised for it, and paid a sum of fifty thousand fres to the widow of the deceased as damages. The sentry, however, escaped punishment because he proved that he had acted in obedience to orders which he had misunderstood. 12 (2) On November 26, 1905, Hasmann, a member of the crew of the German gunboat Panther,1 at that time in the port of Itajahy in Brazil, failed to return on board his ship. The commander of the Panther sent a search party, comprising three officers in plain clothes and a dozen non-commissioned officers and soldiers in uniform, on shore for the purpose of finding the whereabouts of Hasmann. This party, during the following night, penetrated into several houses, and compelled some of the residents to assist them in their search for the missing Hasmann, who, however, could not be found. He voluntarily returned on board the following morning. As this act violated Brazilian territorial supremacy, Brazil lodged a complaint with Germany, which, after an inquiry, disowned the act of the commander of the Panther, formally apologised for it, and punished the commander of the Panther by relieving him of his command.2 (3) On July 15, 1911, while the Spanish were in occupation of Alcazar in Morocco, M. Boisset, the French consular agent, who was riding back to Alcazar from Suk el Arba with his native servants, was stopped at the gate of the town by a Spanish sentinel. The sentinel refused to allow him to enter unless he and his servants first delivered up their arms. As M. Boisset refused, the sentinel barred the way with his fixed 1 See R.G., xiii. (1906), pp. 200206. Another example occurred in 1904, when the Russian Baltic fleet, on its way to the Far East during the Russo-Japanese War, fired upon the Hull fishing fleet off the Dogger Bank. See below, vol. ii. § 5. bayonet and called out the guard. M. Boisset's horse reared, and the sentinel thereupon covered him with his rifle. After parleying to no purpose with the guard, to whom he explained who he was, the French consular agent was conducted by an armed escort of Spanish soldiers to the Spanish barracks. A native rabble followed upon the heels of the procession and cried out : 'The French consular agent is being arrested by the Spaniards. Upon arriving at the barracks M. Boisset had an interview with a Spanish officer, who, without in any way expressing regret, merely observed that there had been a misunderstanding (equivocacione), and allowed the French consular agent to go his way. It is obvious that, as consuls in Eastern non-Christian countries, Japan now excepted, are exterritorial and inviolable, the arrest of M. Boisset was a great injury to France, which lodged a complaint with Spain. As promptly as July 19 the Spanish Government tendered a formal apology to France, and instructed the Spanish commander at Alcazar to tender a formal apology to M. Boisset. (4) In December 1915, during the World War, and at a time when the United States was still neutral, an Austrian submarine fired upon an American merchantman, flying the American flag, in the Mediterranean. The United States Government demanded an apology for this 'deliberate insult to the flag of the United States,' the punishment of the submarine commander, and reparation for damage done.1 But it must be specially emphasised that a State never bears any responsibility for losses sustained by foreign subjects through legitimate acts of administrative officials and military and naval forces. Individuals who enter foreign territory submit themselves to the law of the land, and their home State has no right to VOL. I. 1 A.J., x. (1916), Special Supplement, p. 306. R request that they should be otherwise treated than as the law of the land authorises a State to treat its own subjects.1 Therefore, since the Law of Nations does not prevent a State from expelling aliens, the home State of an expelled alien cannot request the expelling State to pay damages for the losses sustained by him through having to leave the country. Therefore, further, a State need not make any reparation for losses sustained by an alien through legitimate measures taken by administrative officials and military forces in time of war, insurrection,2 riot, or public calamity, such as a fire, an epidemic outbreak of dangerous disease, and the like. Vicarious in contra Original Responsi Acts of Private IV STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS See the literature quoted above at the commencement of § 148, and especially § 164. As regards State responsibility for acts of distinc private persons, it is first of all necessary not to contion to found the original with the vicarious responsibility of State States for internationally injurious acts of private bility for persons. International Law imposes the duty upon every State to prevent as far as possible its own subjects, Persons. and such foreign subjects as live within its territory, from committing injurious acts against other States. A State which either intentionally and maliciously or through culpable negligence does not comply with this duty commits an international delinquency for which it has to bear original responsibility. But it is in 1 Provided, however, such law does not violate essential principles of justice. See below, § 320. 2 See below, § 167. |