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Published online by Cambridge University Press: 04 May 2017
It appears to be generally accepted that International Law as we know it today had its beginnings in the writings of the political theorists of the latter sixteenth and early seventeenth centuries, more particularly in the memorable treatise of Grotius which appeared in the year 1625. The works of these writers were produced during the period of so-called rationalism when the true historical view had not yet been discovered, and the precedents and examples which were cited in support of the new rules of international law were taken exclusively from Biblical or classical antiquity. Moreover, in this same period Roman law was held in high esteem, a fact which further served to focus attention upon ancient law and custom. It is not surprising, therefore, to find that many principles which had regulated international conduct among European states, especially those of Teutonic character, during the Middle Ages, were either overlooked or rejected. If we remember that these principles had been enforced by an extensive system of municipal legislation, we shall understand why the founders of international law may have regarded them as res internæ rather than as matters of international import. Recently, however, the problems to which these very principles were applied have become of increasing international concern and vigorous attempts have been made on the one hand to preserve a sphere of municipal jurisdiction and on the other hand to inject into our international jurisprudence the principles upon which they were based. It shall be my purpose to show the early development of the rules which regulated the question of responsibility for aliens, how they were rejected by the early publicists and what effect they had upon later developments in our international law.
1 Grotius, De Jure Belli ac Pads, Whewell ed., Lib. II, XXI, p. 342.
2 Ibid., p. 342.
3 Vattel, Law of Nations (ed. Chitty), vol. II, c. VI, p. 161, et seq.
4 Space does not permit a discussion of the illegal act, and its relation to the determinate subjects. These are two elements which responsibility presupposes. The third element is the injury resulting from the illegal act.
5 It is worth while indicating the peculiar nature of the infraction of an international norm. The violation proceeds primarily from the injury, as I have indicated, and not from the illegal act itself. This explains in some measure the fact that, although the injury which gives rise to a violation is in reality objective in character, it is treated as if it were a purely subjective violation of right. This subjective character arises from the dual character of any injury which gives rise to an international obligation. Similarly in municipal law we may have an act which gives rise on the one hand to a civil liability and on the other to a criminal responsibility.
6 The right of protection abroad depends in a large measure on the intimacy of the relation existing between the state and subject. This relation is regulated by municipal law. From this point of view we may regard the right of protection as a duty as well.
7 The error has its roots in the Grotian misconception of responsibility.
8 Calvo, Le droit international, Vol. III, p. 142.
9 Fiore, , Le Droit international Codifié (Antoine ed. 1911), p. 326 Google Scholar, et seq.
10 Hall, International Law, p. 231.
11 Apart from these three main arguments against responsibility there are some writers, who, adhering to the theory of fault, believe that it must be met by a civil responsibility. These writers have been led astray by the existence of municipal law regulation of responsibility.
12 The arbitrations of the question will bear me out in this. Despite the great conflict of opinion even here, the general opinion is that there is no escape from liability in the circumstance I have indicated.
13 The theory of risk enters here.
14 Moore, Digest of International Law, VI, p. 809.
15 18 British & Foreign State Papers, 43, esp. p. 103–4, Case of M’Kenna & Munro.
16 Ibid., 268.
17 Ibid., 395.
18 39 Br. & For. St. Pap., 332, et seq.
19 58 Ibid., 1009.
20 Ibid., 1142.
21 62 Br. & For. St. Pap., 985.
22 For. Rel. 1878–81, Correspondence with Great Britain.
28 72 Br. & For. St. Pap., 1267.
24 Staatsarchiv, 30/333, 33/108.
25 The American consul was absent at the time. For. Rel. 1876, 569.
26 Consuls do not enjoy the immunities of diplomatic officers in these matters.
27 54 Journal de Droit International Privi, 1257.
28 30 Duvergier, Lois et Collection, 138.
29 III Calvo, op. cit., 150.
30 51 Duvergier, op. cit., 538.
31 Calvo, op. cit., III, 154.
32 Moore, Digest, VI., p. 809.
33 Staatsarchiv, 16, p. 119; Archives Diplomatiques, Ser. 1, 33–4, p. 601.
34 Staatsarchiv, 16, p. 121.
35 Cambridge Mod. Hist., XII, 258.
36 Archives Diplomatiques, 1882–3, p. 120; Jour. Privé, 1888, p. 293.
37 Arch. Dip., 1882–3, III , p. 57; I R . D. I. P., p. 177.
38 Arch. Dip., Ser. 2, Vol. 7, p. 59.
39 France’s share, 900,000 fr. Arch. Dip., loc. cit., p. 71.
40 Ibid., p. 173; Arch. Dip., Ser. 2, Vol. 49, p. 37 et seq.
41 Amount of 420,000 fr.
42 Archiv. Dip., loc. cit., pp. 47–8.
43 Jour. Pr., 37, 1139.
44 Ibid., 1140.
45 13 B. D. I. P., p. 223. The soldier was evidently not on duty.
46 39 Jour. Pr., 675.
47 1905 Rapport du Canseil Federal, p. 300.
48 39 Jour. Pr., 686.
49 Rodriguez, American Constitutions, Vol. I, p. 332, Art. 46.
50 Ibid., p. 238.
51 Ibid., Art. 46, p. 268.
52 Ibid., Art. 185, Vol. II, p. 85.
53 Ibid., Art. 14 & 15 Vol. I, p. 362; Art. 142, p. 388.
54 Ibid., I, pp. 301–2.
55 Mas. kindly furnished me by Pan American Union.
56 So 1904 and 1901 and 1891.
57 Art. 37, Ibid., Vol. II, p. 283.
58 Art. 11, Ibid., Vol. II, p. 321.
59 Art. 33, Ibid., Vol. II, p. 388.
60 Art. 10, Ibid., Vol. II, pp. 144–5
61 Art. 9, Ibid., Vol. I, p. 394.
62 74 Br. and For. Stat. Pap., 1065.
63 68 Ibid., 776.
64 68 Br. and For. Stat. Pap., p. 778.
65 Ibid., p. 776.
66 69 Ibid., p. 376.
67 Ibid.
68 76 Ibid., p. 566.
69 77 Ibid., p. 807.
70 78 Ibid., p. 53.
71 77 Br. & For. Stat. Pap., p. 121.
72 77 Br. & For. Stat. Pap., p. 116.
73 For. Rel., 1887, p. 114.
74 Ibid., 1887, p. 99.
75 77 Br. & For. Stat. Pap., p. 1270 et seq.
76 Ibid., p. 728.
77 79 Ibid., p. 731.
78 Ibid., p. 166.
79 For. Rel., 1888, p. 491. Nothing further is noted.
80 84 Br. & For. Stat. Pap., p. 644.
81 86 Ibid., p. 1281.
82 87 Ibid., p. 703.
83 96 Ibid., p. 647.
84 Art. 11, Ibid., p. 648.
85 For. Rel. 1903, p. 806.
86 Ibid., 1908, p. 706. This is the first statute of the kind which I have found. It is possible that similar ones preceded it.
87 International American Conference Repts. of Committees, Vol. II, p. 233
88 Actas y Documentos de la Segunda Gonferencia, p. 830.
89 Ibid., p. 854.
90 Third Int. Am. Conf. Minutes, etc., p. 181.
91 55 Br. & For. St. Pap., p. 837.
92 4 R. D. I. P., note, p. 227.
93 Martens, Nouveau Recueil Géréral de Traités, ser. II, Vol. XXII, p. 50.
94 Ibid., Vol. XXIV, p. 396.
95 27 Br. & For. St. Pap., p. 1178; H. H. Bancroft, Works, Vol. 13, p. 187.
96 27 Br. & For. St. Pap., p. 1178; H. H. Bancroft, Works, Vol. 13, p. 187.
97 27 Br. & For. St. Pap., p. 1186 ff.
98 Ibid., p. 1176.
99 Moore, History and Digest of International Arbitrations, Vol. II, p. 1362.
100 Malloy, Treaties, etc., of U. S., Vol. I, p. 302.
101 So Mr. Arias in this Journal for October, 1918.
102 Moore, Arbitrations, Vol. II, p. 1369.
103 52 Br. & For. St. Pap., pp. 272–87.
104 Ibid., 392.
105 51 Br. & For. St. Pap., p. 63.
106 House Doc, 100, 37 Cong. 2 sess., p. 1187.
107 53 Br. & For. St. Pap., p. 573.
108 56 Ibid., p. 7.
109 For facts cf. Moore, Arb., Vol. II , p. 1615 et seq.
110 Moore, Arb., Vol. II, pp. 1629, 1652–7.
111 VI Moore, Digest, p. 973.
112 Moore, Arb., Vol. II, p. 1421; For. Rel. 1871, p. 230.
113 Moore, Arb., Vol. II, p. 1693 et seq.
114 Sen. Doc. 264, 57th Cong. 1 sess.; 76 Br. & For. St. Pap., p. 566.
115 Moore, Arb., Vol. II, p. 2117 R. D. I. P. XIX, p. 268.
116 For. Rel. 1892, p. 54.
117 II R. D. I. P., p. 45.
118 Sen. Doc. 533, 59th Cong. 1st Seas. The Italian Government published compromising papers in a Green Book which led to recall of Venezuelan ministers in France and Belgium. France retaliated in kind.
119 4 B. D. I. P., p. 403.
120 Archives Diplomatiques, Vol. 48, ser. 2, p. 215.
121 For. Rel. 1901, p. 193.
122 For. Rel. 1903, p. 803.
123 Ibid., p. 823.
124 The question of responsibility was not important in this case.
