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On the other hand, the protection afforded to inoffensive citizens abroad makes it very important that there be no interference with suspected parties until some real offense is at least imminent. There can be no complaint against organizations whose activities are confined to the country of their origin. We may take this a step further: the departure of an expedition is not in itself an offense. It must appear that there has been committed a distinct wrong against the state in question in addition to the mere fitting out of the expedition. The undertaking must have arrived at the point where some attempt at forcible interference has been made. In observing this condition, the state which is to be the object of attack may, no doubt, take preventive measures for its protection. It need not await the direct attack of the offenders, but may act whenever their purpose is apparent. But it could not proceed to the punishment of the members of the expedition as though they had completed their anticipated offense.79 It must have regard to the extent of their wrongdoing. And if the state has deemed interference necessary while there still remained a locus pænitentiæ to the individuals involved, it is questionable that any punishment may be inflicted.
It is important thus to determine the position of the individual under international law, and the nature of his offense against the local law, in order to arrive at the distinctly international phase of the subject. This latter is a matter primarily of the relation of states. But the individual action does bear a relation to the international offense which is not to be neglected. The carrying on of hostile expeditions is the situation which the law is designed to remedy; it is the whole concern of the international law in that particular. This law has no occasion to be applied until the personal offense has been committed or attempted. The setting on foot of a hostile expedition creates the situation which gives rise to the international obligation. It is a fact always first to be proved, and the guilt or innocence of the individual is the first fact to be considered in the evidence of an international delinquency.
But while the expedition is a necessary fact precedent to the delinquency of the state, the relation of the two facts is not that of cause and effect. The international delinquency does not follow, ipso facto, from the expedition. Some added act or failure to act on the part of the state
708 Op. At. Gen. 216; S. Ex. Doc. 57, 31 Cong. 1 Sess. p. 48.
is requisite. While the fact of the expedition is a necessary condition, there is further to be proven the actual delinquency of the state itself.
That there is any relation at all between the individual act and the international duty of the sovereign arises in this case out of the fact that the territory and resources of the state, over which the sovereign is supposed to have complete control, have been used to the disadvantage and injury of another state. If only the immediate attack on the foreign country be considered no international consequences result; for the government is not responsible for citizens beyond its control. But in connection with their acts which injure other nations while the citizens are within the control of the sovereign, the government does have an international obligation. In this case, it is the use of its territory and resources, and the abuse of its protection, for wrongful purposes that renders the state liable for the subsequent hostilities. From the standpoint of the citizen, that is an act against his own government. But internationally considered, it is the fact that connects his state with the attack on the neighboring state. In this way the citizen involves his country in his offense; he makes it a party to the act by the use of its property, or through receiving its protection for his unlawful enterprise. Thus the two states are brought into conflict, an international obligation is involved, and, so far as it fails in meeting that obligation, the sovereign itself becomes an offender.
3. THE INTERNATIONAL DELINQUENCY
✓ Whenever the state itself becomes a direct party to the carrying on of
a hostile expedition, it is, of course, directly liable to the offended state. The expedition itself is then the immediate international offense, and the government is compelled to assume full responsibility for the enterprise. The participation of the government destroys the semi-private nature of an expedition, and it becomes a public undertaking. It is in such cases that the original and direct responsibility of the state is most evident. But they can occur only when the state has acted through its government or agents. Expeditions so carried on are, in fact, acts of war on the part of the state, and are removed from the category of peace-time aggressions. We are directly concerned, therefore, only
with unauthorized expeditions, and with the responsibility of the state for them.
The international law, in creating an obligation to prevent hostile attacks on other states, establishes a presumption of responsibility for those attacks that are not prevented.80 The sovereign state is considered to be able to control the use of its territory; it is presumed to have the power to prevent hostile expeditions. Its failure to prevent is, therefore, regarded as a refusal to exercise that power; and for this the state is responsible. But this is a presumption which may be overcome. The control of private conduct is not as absolute in fact as in theory. The state may have ample power, and have diligently sought to exercise it, and yet may fail to accomplish the object enjoined by the law. Its responsibility may, consequently, be rebutted if the difficulties in the way of the prevention of an expedition were so great as to make it impossible, or to require a greater exertion than was warranted. There is then no delinquency and no liability. 81
The responsibility which a state does incur through failure to prevent expeditions under other conditions is a direct responsibility. That is to say, in case of a failure through some fault of its own, it has incurred not merely a vicarious responsibility for the acts of the individuals involved, but is itself guilty of an international delinquency. This follows from the fact of the definite duty of prevention. This duty would mean nothing if it might be performed by such subsequent action as is otherwise demanded in satisfaction for individual misconduct. If the responsibility were purely vicarious, the practice with regard to hostile expeditions would be confined entirely to the punishment of offenders and to securing reparation by them, or at most to voluntary prevention. The obligation, not being directly enforceable, would give no right of action against the negligent state. A failure would then not amount to a delinquency, and there could be said to be no legal duty of prevention. It is true, the state may prefer to meet its responsibility in the matter by redress to the offended state. But the responsibility it assumes is for its own delinquency, and must be met in addition to any vicarious responsibility it may otherwise normally have.82 ** Charge to Grand Jury, Fed. Cas. 18266.
81 Infra, Chap. IV, sec. 2. 52 Charge to Grand Jury, Fed. Cas. 18266. See also the cases submitted to arbi
The direct liability of the government concerns only the conduct of expeditions while within its own jurisdiction. Whether or not it has been guilty of delinquency in the prevention of an undertaking, it is not considered an offender at international law by reason of the subsequent conduct of the individuals involved. The state is, however, under a
relative responsibility for their actions which injure another country. * Though it is not itself compelled to make reparation, nor secure satis
faction to the wronged state, it is required to deal with the offending parties as circumstances will permit to compel them to redress the wrong done or pay the penalties of the law. Because the injury done is usually not such as may be repaired by the individual offenders, the infliction of criminal penalties is all that is demanded.83
The state itself becomes directly responsible again if it refuses or neglects for any reason to meet the just requirements of its vicarious responsibility. The nation then becomes a party to the wrong, and . direct reparation may be demanded of it in lieu of the private persons. 84
Expressed thus negatively, the wrong committed by the state is a failure to meet a certain international requirement. That, we have considered the real offense at international law, and have excluded private offenses. But when viewed positively, the wrongful act of the state appears to consist in complicity in hostile attacks on friendly states. The authorized and direct complicity of the government in the expedition itself has been excluded as actual war. The negligence and carelessness of the state, however, in the prevention of such enterprises amounts to virtual complicity in the undertaking. If there is such an attitude on the part of the government as indicates a disregard of its international obligation, it may be considered as having consented to the attack which is to be made; it may even be regarded as assisting in the hostilities by protecting the persons engaged, and allowing them its territory as a base for organization. If the sovereign has knowingly suffered the harm to be done to another state, it may be said to be an accomplice in the act itself.
tration, referred to in Chap. VI, sec. 2. For the means of enforcement of the direct responsibility, see Chap. V.
83 See infra, Chap. IV, sec. 2.
The reception of offending individuals after their crime has been committed is likewise an act of complicity. It is often as essential to the success of the enterprise that retreat be afforded the participants as that they be sheltered or aided in the preparation of their undertaking. The government of the state receiving them consents to their offense after the act, and furnishes them aid or protection. It offends thus by complicity after their act as well as by complicity in the beginning.
The international delinquency is the act or omission of a state in complicity with a hostile expedition, or in disregard of the international obligation to prevent hostile attacks on friendly states.
Roy EMERSON CURTIS.
(This article will be concluded in the next number of the JOURNAL.]