CHAP. c. Pacific measures of redress from the taking of what was one's neighbor's.1 As long as there was no collective judgment of the international community taking precedence of the judgment of the individual claimant, it was impossible to reduce the problem to terms of positive law. The general principle was accepted that a nation must not go to war except for just causes; but the application of the principle to the concrete case did not get beyond the province of international morality or ethics. Each state determined for itself whether its national interests made it expedient to take action. There remained the sanction of general public opinion to see that a state should not be wholly arbitrary in its application of principle to fact. But the ineffectiveness of the sanction of public opinion, with its postfactum condemnation of acts which it was powerless to undo, left the general principle practically valueless. International practice kept to the pragmatic rule that certain rights were not worth fighting for, and therefore should not be fought for, and that other rights might be fought for according to the chance of success in the particular case.2 In addition to the principle that not all offenses are of sufficient gravity to warrant a resort to force to redress them, international law prescribes that self-help must not take the extreme form of war until more moderate measures have been taken to obtain redress. Negotiation must regularly precede the appeal to arms. The intermediation of third states which undertake to offer their good offices must be given at least a respectful attention. An offer of arbitration must not be refused without at least an alleged belief that the dispute could not be satisfactorily settled by such procedure. Members of the League of Nations must not go to war against a state which complies with the recommendations set forth in a report, to which the Council has given its unanimous consent, or the Assembly a majority consent supporting the Council. The limited and qualified character of these peaceful methods of seeking redress will be considered more in detail in connection with the law of procedure. It need only be observed here, as was For example, the campaign cry of 1844, "Fifty-four forty or fight," had it resulted in war, would have given voice on both sides to a popular conviction of just defense of property rights. Again, the declaration of war against Mexico in 1846 was based upon alleged defense of national property. 1 The question of the justice or injustice of war,'' says the Swiss publicist Rivier, "stated as a general and abstract proposition, although much debated in earlier times, is of little practical importance and is impossible of solution. The question can only be put in the concrete with reference to a particular war; and even then the answer will be far from clear." Quoted by Bonfils, Droit International, § 1002. 'See below, Chap. XXIV. XXII pointed out in connection with the just grounds of war, that these CHAP. restrictions upon the right of self-help are an actual restraint only in so far as the customary sanction of public opinion, or the newer sanctions of the League of Nations, influence an individual state to be governed by them. redress The decision as to what form the redress sought by a state shall d. Form of take rests with the state itself, subject to customary restrictions similar to those mentioned above. Redress for minor offenses 1 generally takes the form of an apology for the wrong done, accompanied by compensation for the losses incurred in consequence of the wrongful act. More serious wrongs, especially those of a political character, can as a rule only be redressed by conceding the object demanded, or by undoing the conditions that have given rise to them. The distinction of municipal law between a suit in rem and a suit in personam 2 is applicable in international law only in so far as a state decides, of its own volition, to accept compensation in lieu of the object which forms the ground of dispute. As a matter of fact, pecuniary damages have rarely been regarded as adequate redress for wrongs arising out of the clash of national policies. Meaning, offenses that are regarded as minor by the injured party. See above, p. 382. That is, a suit to recover the object of the dispute and a suit to recover damages for wrongful conduct. a. Limitations of state responsibility CHAPTER XXIII THE RESPONSIBILITY OF INTERNATIONAL PERSONS In disputes between states concerning the violation of international rights, whether as the result of positive acts or of the failure to fulfil obligations, the issue is frequently raised as to the responsibility of the state for an act done in its name or perpetrated upon its territory. Because of the corporate personality of states," the inference as to responsibility from the act to the agent cannot always be direct as in the case of the acts of individuals under municipal law. Officers of the government hold their position by virtue of the express or implied consent of the citizen body. Not only, however, does this authority not imply an actual acquiescence on the part of the citizen body in each and every act of the officers of government, but in the case of subordinate officers it does not even imply a logical or presumptive acquiescence where the act of the subordinate is in violation of the instructions of a higher officer, or is contrary to the intent and purpose of the higher officer. Moreover, it frequently happens that individual citizens or groups of citizens commit acts injurious to foreign states or to their citizens, which in no way represent the will of the community as a whole. These facts of the domestic organization of the state have been taken into account in part by international law, and more or less definite rules have been developed to meet the claims brought by one state against another on the ground of injuries directly received or obligations unfulfilled. 1 The responsibility of a state in the sense here taken, i.e., the obligation of a state to stand personally for what is done by its agents or for certain acts committed upon its territory, must be distinguished from the obligations, general and particular, of the state toward aliens. The latter have been separately treated above, p. 156. The confusion between the two sets of obligations has been the result of the convenient practice of treating all claims against states under one heading; whereas claims arising out of governmental contracts are based upon a different principle from claims arising out of torts committed by state officers or by insurgent or riotous elements of the population. The former raise no question of responsibility, but only of methods of enforcing an admittedly valid agreement; the latter raise a question as to the existence of any obligation at all. The student may compare in a general way the rules governing criminal intent under municipal law. XXIII directly re for acts governments International law holds states directly responsible for acts com- CHAP. mitted in the name of the state by the head of the government, or by agents acting under orders from the head of the government b. States or acting with its sanction and approval. No account is taken of sponsible the fact that the head of the government may not actually repre- of their sent, in respect of the particular act, the wishes of the citizen body. As in municipal law, so in international law, the will of the community is legally identified with the act of the officer exercising authority in accordance with constitutional law. In the case of President Huerta of Mexico in 1914 this rule was applied by the United States even to a de facto officer who had not been recognized by the United States as holding office de jure.1 An exception is to be noted when the head of the state acts in the capacity of a private citizen, in which case, when satisfactory explanations have been made, his act is judged on the same basis. as that of any other citizen. The acts of subordinate officers committed under direct orders from the head of the government are considered, in respect to responsibility, as acts of the head of the government itself. Under modern constitutional governments the head of the government is understood to be that branch in which is vested the executive power of the government and the duty of representing the state and conducting negotiations with foreign powers. In certain instances foreign governments have refused to accept the voice of the de facto head of the state as a true expression of the will of the people; but in so doing they have acted upon grounds of expediency and subordinated legal claims to practical considerations. In all cases, however, it is open to a state to show that the act of its officer was not intended to produce the results acually produced by it; in which case the offense is reduced in gravity accordingly, being classed with unauthorized acts for which apology and redress may be an adequate remedy. Where the offense is intended, a demand for redress on the part of the injured state would be beside the point. A state is also directly responsible for acts of subordinate administrative officers of the government when acting under general orders governing the particular class to which they belong. Ambassadors and other public ministers, military and naval officers, are, using the terminology of municipal law, "general agents" of the state; and so long as they act within the scope of the powers belonging to their office they create a responsibility on the part 1See above, p. 114. Acts of subordinate officers CHAP. Qualifications due to constitutional gov. ernment of the state itself. It rarely happens, however, that acts done in pursuance of such general instructions give rise to an offense against a foreign state, and in any case it is open to the head of the state to show that the offense committed was not intended by the instructions issued. Numerous cases have arisen in which demands for redress on the part of an injured state have been met by a demonstration by the other party that the act of its agent was either in excess of instructions or based upon a wrong interpretation of instructions, or, again, a mere mistake resulting from lack of adequate information. Thus the commanding general at the port of Tampico promptly disavowed the act of the subaltern who arrested a detachment from an American warship in April, 1914, and the de facto Mexican Government supported his disavowal by a further disavowal of its own. The same procedure was followed by the Japanese Government in the case of the death of Lieutenant Langdon at the hands of a Japanese sentry at Vladivostok in January, 1921.2 When, however, the act of the administrative officer is done under specific orders from the head of the government, it becomes, as has been said, the act of the government itself. Further, it may happen that the act, when originally committed, was unauthorized; yet the state may subsequently approve and ratify it, and thus take upon itself direct responsibility for it. In such cases the officer committing the act is relieved from civil and criminal prosecution in the foreign country where the act was committed, should the latter happen to have control of his person. This assumption of responsibility was undertaken by Great Britain in 1837 in the case of McLeod, the leader of a Canadian force which crossed the Niagara River and committed hostilities on the American side.3 Within the last century, owing to the development of constitutional government, new principles of responsibility have grown up to meet the situation where the executive branch of the government is unable to exercise constitutional control over the other branches. With respect to judicial officers in particular, a state may show that the decisions of the courts are privileged by the constitution, and that they do not represent an intent on the part of the state to give offense to another state, even though they 1 See above, p. 156. New York Times, January 14, 29, February 23, 1921. For further instances see Moore, Digest, VI, §§ 998-1002. See above, p. 143. |