¹ Compare as to this, Anzilotti, La responsabilite internationale des Etats a raison des dommages soufferts par des strangers, 13 Revue Generale de Droit International Public (1906), pp. 5, 308.

² International Law, Vol. I (3rd ed.), p. 253.

³ These duties and obligations are discussed by Professor Quincy Wright in his The Enforcement of International Law Through Municipal Law in the United States (1916), especially part I.

⁴ The United States Supreme Court in the case of Arjona (120 U. S. 479) said: “The law of nations requires every national government to use due diligence to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof.” Compare also the similar opinion of the English High Court of Chancery in the case of The Emperor of Austria v. Day, 2 Giffard 628 (1861).

⁵ This principle is well illustrated by the recent case of Janes decided by the United States-Mexican Mixed Claims Commission on November 16, 1926 in which the Commission declined to hold Mexico liable for the killing of an American citizen, because it was admitted that the Mexican Government could not have prevented the murder. But it awarded an indemnity to the family of the victim for the reason that the evidence disclosed lack of due diligence on the part of the Mexican authorities in prosecuting and punishing the guilty offender. In short, a distinction was made between the damage inflicted by the killing itself, for which the slayer was responsible, and the damage caused by the Mexican Government by its delinquency in not taking proper steps to apprehend and punish the murderer, and thereby sparing the family of the victim of “indignant neglect” and of rendering it possible for them to subject the murderer to a civil suit for damages.

⁶ As to this see Williams, “The Protection of American Citizens,” 17 Amer. Jour. of Int. Law (1923), pp. 489 if.

⁷ This was asserted by Secretary Evarts in 1880 and by Secretary Bayard in 1886. Moore, Digest 6: 822, 831. It is also the view of many writers on international law.

⁸ Bryce, “Legal and Constitutional Aspects of the Lynching at New Orleans,” New Review, Vol. IV, p. 831, and Williams, 17 Amer. Jour. of Int. Law, p. 471.

⁹ “The Basis of Protection to Citizens Abroad,” Procs. of the Amer. Soc. of Int. Law, 1910, pp. 20–21. Compare also Borchard, Diplomatic Protection of Citizens Abroad, p.47, who remarks that international law fixes the standard of treatment which aliens are entitled to receive at the hands of the state in which they reside. In the case of Garcia and Garcia, decided by the United States-Mexican Mixed Claims Commission on December 3, 1926, the Commission held that there even exists among civilized nations an “international standard” governing the taking of human life. In this case the United States was condemned to pay an indemnity for the act of an army lieutenant in recklessly firing upon and killing a Mexican girl while crossing the Rio Grande river on a raft.

¹⁰ As to this see Watson, “Need of Federal Legislation in Respect to Mob Violence in cases of Lynching of Aliens,” 25 Yale Law Journal, p. 579. See also Hyde, International Law, Vol. I, p. 518.

¹¹ Sec. 5508.

¹² For example, when an American citizen was injured by a mob in Brazil in 1875 and the Government of Brazil attempted to shift the responsibility to the province within which the injury had occurred, the American Minister was instructed to say that the provincial authorities were not “officially known to this government; it is the Imperial government at Rio de Janeiro only which is accountable to this government for any injury to the person or property of a citizen of the United States committed by the authorities of a province. It is with that government alone that we hold diplomatic intercourse.” Moore, Digest, 6:816.

¹³ Officers and agents of the state may, of course, participate in mob outbreaks and riots by encouraging or even assisting the mob or rioters, and in the case of insurrection the injuries may be committed by the authorities or armed forces of the de jure government while endeavoring to suppress the insurrection. In this paper, however, I am concerned mainly with responsibility for injuries committed by private persons.

¹⁴ Oppenheim, International Law (3rd ed.), Vol. I, p. 261, likewise appears to regard the right of free access to the courts for the purpose of claiming damages from the offenders is all that the alien can demand, although he adds that the state “must punish such acts as are criminal.”

¹⁵ Moore, Digest, 6: 826.

¹⁶ Moore, Digest, 6: 835. Senator Edmunds, who dissented from the view of Secretary Bayard that the United States was not liable to pay indemnity in this case, but that the appropriate remedy was recourse to the courts, maintained more correctly, it is believed, that where such a remedy is obviously ineffective for one reason or another, “the body of the nation” is bound to make the reparation which the courts are unable to do. Cong. Rec. 1886, Vol. 17, p. 5186.

¹⁷ See among others Phillimore, Commentaries (3rd ed.), Vol. II, p. 5; Borchard, Diplomatic Protection of Citizens Abroad, p. 220; Huffcut, Ann. Amer. Acad. of Pol. & Soc. Sci., Vol. II, p. 73; Moore, Digest, Vol. VI, Sec. 1022; Williams, 17 Amer. Jour. of Int. Law, 490; Diena, Principi, t. I, p. 447; and De Visscher, La Responsabilite des Etats, Bibl. Visser. t. II (1924), p. 103.

¹⁸ See the cases cited by Ralston, The Law and Procedure of International Tribunals (Rev. ed., 1926), pp. 357-358, and Moore, International Arbitrations, Vol. III, pp. 3027 ff.

¹⁹ Annuaire, Vol. 28, p. 254.

²⁰ Compare Goebel, “The International Responsibility of States for Injuries Sustained by Aliens on Account of Mob Violence, Insurrections and, Civil Wars,” 8 Amer. Jour. of Int. Law (1914), p. 813.

²¹ Droit International theorique et pratique, t. III, secs. 1280, 1297.

²² Traite de Droit International, t. I, sec. 205.

²³ “The Non-Liability of States for Damages Suffered by Foreigners in the Course of a Riot, an Insurrection or a Civil War,” 7 Amer. Jour. of Int. Law, (1913), pp. 72 ff.

²⁴ Le Droit Int. Cod., sec. 380 bis.

²⁵ International Law, p. 231. Arias (article cited, p. 741, n. 25) lists the names of other writers who are quoted as denying the existence of any liability on the part of the state, but some of them do not appear to go to such extreme lengths.

²⁶ Arias (article cited, pp. 755-756) lists twenty such treaties and only six in which the principle of absolute non-liability is recognized. By a treaty formulated by the Second Pan American Conference and signed by the delegates of all the American Republics except those of Hayti and the United States, responsibility for the acts of rebels and of individuals was admitted in case of negligence on the part of the constituted authorities in the fulfillment of their obligations.

²⁷ Annuaire de l’Institut de Droll Int., t. 17, pp. 96f.

²⁸ Droit des Gens., t. II, p. 43.

²⁹ “La Responsabilite des Etats a Raison des Dommages Soufferts par des Etrangers en Gas de Troubles, d’Emeute ou de Guerre Girlie,” Rev. de Droit Int. et de Leg. Comparee, t. 31 (1899), pp. 464 ff.

³⁰ Le Droit Int. Applique aux Guerres Civiles (French ed.), p. 43 ff.

³¹ Traite de Droit Int. Public., t. I, Premiere Partie, (Paix), p. 521. See also Annuaire de l’Institut, :28: 234 ff.

³² Annuaire, 18: p. 254 (1900).

³³ Op. cit., Vol. I, p. 261.

³⁴ Secretary Olney, in a communication to the American Minister to Brazil, stated that an alien domiciled in a foreign country is not entitled to any greater privileges or immunities than a citizen, and that if war breaks out there, he, in common with the other inhabitants, is necessarily exposed to the inconveniences of such a state of things, and if his property is destroyed the government cannot legally be held responsible therefor. Moore, Digest, 6: 802. But in 1912 Secretary Knox flatly denied the contention of the Mexican Government that it was not responsible for damages suffered by foreigners in consequence of civil disorders in the country. For. Rel. 1912, p. 984. The United States denied liability for injuries sustained by foreigners on account of acts committed by participants in the insurrection of 1861-65, but for the reason that the latter were beyond its control, although the government had employed “all the diligence and energy that could be exercised for suppressing the insurrection.” Note of Mr. Seward, Moore, Int. Arbs., II, 1623. There was no denial either by Mr. Knox or Mr. Seward that the United States would have been responsible if fault or lack of due diligence on the part of the government had existed. In a note by Mr. Adee, acting Secretary of State in 1911, it was stated that the general rule is that when an insurrection has gone beyond the control of the insurrecting government, the latter is not responsible for damages done to foreigners by insurgents, the inference being that until such point is reached it may be liable.

³⁵ See the opinions cited by Ralston, op. cit., Vol. I, pp. 523, F, and the numerous authorities and cases cited by him; Borchard, op. cit., pp. 229g; and Moore, Int. Arbs., Vol. III, pp. 2886g.

³⁶ Project No. 15 of the American Institute of International Law on Codification of American International Law lays down the rule that the governments of the American Republics are not responsible for damages suffered by foreigners in their persons or in their property “for any reason whatsoever, except when the said governments have not maintained order in the interior, have been negligent in the suppression of acts disturbing this order, or finally, have not taken precautions so far as they were able, to prevent the occurrence of such damages or injuries.” Unless the term “order” is very strictly interpreted, the effect of this rule would seem to be to establish a larger degree of responsibility than Latin American governments and publicists have heretofore been willing to admit.