with French and English translations in each case where the originals are in other languages. Volumes are published as the material warrants, usually about four each year. Each volume contains four numbers with consecutive paging, and these numbers sometimes appear simultaneously.109 The treaties are numbered consecutively. In 1920, one volume and part of another appeared; and the last in 1924 was volume 28. In October, 1921, a brochure entitled Registration of Treaties was published as an addition to the Treaty Series, giving a "complete list of the treaties so far registered, the text of which has not yet been published." The delay in publishing these texts had been due to "difficulties of a technical order," and they were later included in the Treaty Series. Beginning with November, 1921, this brochure has appeared monthly, giving a list of the treaties registered during the month. The brochure also includes lists of adhesions, ratifications and denunciations of treaties previously registered, and such lists are also to be found in seven annexes published with various numbers of the Treaty Series itself. By this system of registering treaties and international engagements and publishing their texts in available linguistic and documentary form, a great advance has been made not only toward open diplomacy, but also toward the development of international law. The world's treaty law is entering on a new stage, and if it is too early to see how the content is to be affected, it does not seem too early to say that the scientific study of the conventional law of nations will be greatly facilitated. If the registration and publication can be continued along the lines begun for a quarter of a century, a foundation will have been laid for a pragmatic testing of our treaty law which has never been possible in the past. Why should not the Government of the United States register its treaties, as Germany and other states not members of the League are now doing? Then all American treaties, and not simply those registered by other states that are parties, might be published in the Treaty Series, and the American people could have a part in maintaining that most useful publication, as they now have a part in maintaining the International Customs Bulletin. Until that step is taken, the Treaty Series, though it is essential to every law library, will not attain its maximum utility. Versailles, St. Germain and Neuilly, as well as the agreement of the Allied and Associated Powers with Germany concerning military occupation in the Rhine territories, the treaty with Poland of June 28, 1919, the treaty with the Serb-Croat-Slovene State of September 10, 1919, and with Czechoslovakia of the same date were not reproduced, owing to the worldwide publicity which they had already obtained; but a list of their titles and serial numbers of registration was circulated as an addendum to the Treaty Series. 109 Six indexes have been published: for Volumes 1-3, Volumes 4-7, Volumes 8-11, Volumes 12-15; Volumes 16-19, Volumes 20-23. THE RESPONSIBILITY OF THE STATE FOR THE By CLYDE EAGLETON New York University The idea of obligation is of essential importance in any legal system: it is, in a sense, the sanction of law itself. But it is only in the last decade or so that the idea of the responsibility of states in international law has been detached from a subordinate or incidental discussion in connection with the rights of states, with treaties, or elsewhere, and given its proper position as an institute of international law. Only in the latest editions of texts has the legal significance of the word been recognized to such an extent that it is given a separate chapter treatment, upon a footing similar to that of equality, independence, or other accepted attributes of the state. As usual, more interest has been devoted to rights than to duties. Monographic treatment is very limited;2 and there is as yet no complete treatise. There are, of course, innumerable discussions of particular phases, especially in the case of injuries arising from civil war, but also for federal states, the acts of agents, the theories of risk and fault, et cetera. If states desire to live together in mutually profitable intercourse, they must submit to the rules governing such intercourse. It might be argued that this is a condition of necessity, granted the gregarious instinct, and the interdependence of men; at any rate, states do recognize that it is to their advantage, whether from necessity or from convenience, to maintain relationships with each other; and from this condition, hodie mihi, cras tibi, customs have grown up until they have become consolidated as positive rules of international law. The primary sanction behind this law-for law it is, observed and enforced by state action-is the moral sense of responsibility; and this, translated into terms of law, becomes an institute of international 1 1 Heffter, Despagnet, Neumann, F. von Martens, Diena, Rivier, Pradier-Fodéré, discuss responsibility in conjunction with treaties; Gareis, Bluntschli, Pufendorf, with war; Halleck, Calvo, Bonfils, and Vattel, with the rights and duties of states. 2 The importance of the subject was first revealed by Triepel, in his Völkerrecht und Landesrecht. Anzilotti (Teoria generale de la responsabilità dello Stato nel diritto internazionale; and an article in XIII Revue générale de droit international public, and 285, entitled La Responsabilité internationale des États à raison des dommages soufferts par des étrangers) is a pioneer in the field. The most thorough treatment so far is by Schoen, Die völkerrechtliche Haftung des Staaten aus unerlaubten Handlungen, in Zeitschrift für Völkerrecht, Band 10, Ergänzungsheft 2. Schoen deserves the credit which he gives to Triepel for having established responsibility as an institute of international law. Strupp, Das völkerrechtliche Delikt, and Visscher, La Responsabilité des États, are also important; and there are a few others. law, and indeed the very cornerstone of it. But this, that a state is responsible to the injured state for any violation of international law to its detriment, is practically the sum total of agreement. Most publicists follow, perhaps through sheer inertia, the Grotian theory that there can be no responsibility without fault; but there is an increasing opposition to this position. Again, how far is a state responsible for acts of its agents beyond their competence? Is responsibility for such acts, or for acts of individuals, direct or indirect? How is the reparation to be measured? Such questions as these reveal the need of investigation in this field. The building of international law is an inductive process; and to establish our rules we need to have more knowledge of existing state practise from which principles may be derived. One of the fields in which responsibility is most directly engaged is for injuries suffered by foreign officials; and a study of that subject may perhaps add a ray to help illuminate the whole problem of responsibility. A convenient classification of the foreign agents of the state for our guidance is that of Hall, though, as we shall see, it is insufficient. I. The person or persons to whom the management of foreign affairs is committed. II. Agents subordinate to these, who are 1. Public diplomatic agents; 2. Officers in command of the armed forces of the state; 3. Persons charged with diplomatic functions, but without publicly acknowledged character; 4. Commissioners employed for special objects, such as the settlement of frontiers, supervision of the execution of a treaty, etc. With international agents may be classed consuls, but they are only international agents in a qualified sense. The sovereign embodies the dignity of the state in his person and as such is entitled to the highest degree of respect and protection. If respect is lacking it is a sin of omission, an insult, for which reparation is due. It is often said that one cause of the Crimean War was the failure of the Tsar to address the Emperor Napoleon III as "Mon frère," the customary title of address to a brother sovereign. This may be apocryphal; but many clear cases establish the obligation of respect to a ruler. In 1847 the Emperor of Brazil objected to the fact that the American Minister, Mr. Wise, had failed to appear at court upon the baptism of the Imperial infant, Isabella; and, at a later date, at the fête for the Emperor's birthday; and also to the failure of Commander Rousseau, of the U. S. S. Columbia, to fire a salute. In 1908 a 'Hall, International Law, Sec. 96. • Ullmann, Völkerrecht (Sec. 42), and Rivier, Principes du droit des gens (I, p. 423), refuse to allow to the president of a republic the same rights as a monarch; but most other writers grant him the same privileges when abroad. IV Moore, Digest of International Law, Sec. 639, where will also be found the case following, of Dupuy de Lome. The case of Sackville West is well known. letter from the Dutch Minister to Venezuela, not intended for publication, in which he remarked that the government of the dictator had completely ruined the country, reached the President. He was sent home at once. A similar case developed in the United States when a private letter of the Spanish Minister, Dupuy de Lome, was published, in which he described President McKinley as "weak and a bidder for the admiration of the crowd, besides being a would-be politician." The American Minister at Madrid was instructed to ask for his immediate recall. However, he resigned at once; and when the Spanish Government disclaimed any participation in his sentiments the incident was declared closed by the United States. The above cases refer to the respect due to a sovereign at home, and are included in our subject through the extension of a state's jurisdiction to cover its agents abroad. The measure of reparation would seem to be the recall of the offending diplomat; beyond this, disavowal would seem to relieve any further responsibility. Thus the French Government disavowed the acts of Genet in this country." Recall alone could scarcely be considered a due reparation, since it may be demanded for any cause, and with no reasons stated. The sovereign abroad is of course immune from the jurisdiction of the state in which he is a visitor, upon the maxim par in parem non habet vigorem. The inviolability of the sovereign has been so well respected that cases cannot be found by which the penalty for its infraction can be measured. Since the trial of Mary Queen of Scots the doctrine of competence has been abandoned. In England this is shown by the cases of Wadsworth v. The Queen of Spain, and de Haber v. The Queen of Portugal, in both of which jurisdiction was disclaimed. In France, the Tribunal Civil de la Seine rejected a claim against Mehemet Ali in 1847; and in 1872 the Paris Cour d'Appel refused to entertain a claim against the Emperor of Austria as the heir of Maximilian of Mexico, for decorations ordered by the deceased.10 When a court thus refuses jurisdiction, it has satisfied international law, and no claim for reparation is allowable. What would happen if process were allowed and judgment given is conjectural. The judgment could hardly be enforced except by war; but for even assuming jurisdiction the injured state could perhaps demand disavowal and apology, in analogy with cases in which diplomatic immunity is violated. The only method by which a state may defend itself against a visiting sovereign would be by expelling him, and, if the cir R. D. I. P., XV, p. 453. 'IV Moore, Digest, Sec. 639. This trial is recorded in Ward, Law of Nations, II, pp. 564-593. See Nys, Principes, II, pp. 281-284. There were of course exceptional circumstances in this case which may serve to explain, if not to justify, the action taken. Phillimore, International Law, II, Pt. 6, Ch. I. 10 Calvo, Le droit international théorique et pratique, III, p. 290; Clunet, 1874, p. 33. For the United States the principle is laid down in Schooner Exchange v. M'Faddon, II Moore, Digest, p. 558. See also the case of von Hellfeld v. Russia, this Journal, Vol. V, p. 490. cumstances were urgent enough, under guard. More than this would engage the responsibility of the state. In general, public diplomatic agents have the same immunities as the sovereigns whom they represent. The chief right is that of inviolability. Omnis coactio abesse a legato debet. Many famous cases establish the duty of personal protection which a state owes to the diplomats accredited to it. The best illustration for our purposes is that of the murder of the foreign envoys at the time of the Boxer uprising in China. The protocol of September 7, 1901, fixed the reparation to be made. Special missions bearing the regrets of the Chinese Government were sent to Germany and to Japan; and an arch was erected across the street at the spot where the German Minister was killed, while expiatory monuments were erected in the foreign cemeteries. In addition, an indemnity of 450,000,000 taels was agreed upon; and those guilty of the outrages were punished by death or banishment." In modern times and in civilized states it is rarely if ever that a government insults a foreign official. For acts of individuals the government is only indirectly responsible, and the satisfactory operation of the municipal laws provided for their punishment is usually regarded as sufficient, unless the act involves disrespect to the envoy's state, in which case reparation is necessary. Thus France, when a mob tore down the flag displayed at her embassy in Berlin on July 14, 1920, demanded and received reparation. Germany advertised large rewards for the one guilty of tearing down the flag, and punished him according to law. In addition, apologies were made, the police officer responsible was discharged, and a detachment of 150 soldiers saluted the flag when it was restored.12 The immunity of the diplomatic agent from practically all civil and criminal jurisdiction is equally well established. This, of course, does not mean that preventive measures cannot be taken against him, "for instance, if curiosity induced him to break through the cordon of police drawn round a burning building, or if he exceeded the legal limit of speed when motoring on a high-road or through the streets."'13 It does mean, however, that having violated the law, he cannot be punished for it by the judicial process of the state to which he is accredited. This principle may be regarded as established by the cases of the Bishop of Ross, and Gyllenborg, in England, and of Cellamare in France, in which cases ambassadors guilty of conspiracy, thereby calling into play the countervailing principle of self-preservation, were merely sent home. In cases where jurisdiction has been attempted, 11 V Moore, Digest, pp. 517-524. 12 R. D. I. P., XXVIII, p. 358. The French were dissatisfied because the troops did not appear in parade dress, and because they sang "Deutschland über alles" as they marched away; and amends were made for this. 13 Satow, Guide to Diplomatic Practise, I, p. 243. 14 For Ross and Gyllenborg, Ward, op. cit., II, p. 487, and Martens, Causes célèbres, I, p. 97; for Cellamare, Causes célèbres, I, p. 149. |