Volume I Part 26 (1/2)

(_a_) When the act from which they have suffered is directed against foreigners as such in general, or against them as under the jurisdiction of a certain State, or

(_b_) When the act from which they have suffered consists in closing a port without due and proper previous notification, or in retaining foreign s.h.i.+ps in a port, or

(_c_) When the injury is the result of an act contrary to the laws committed by a government official, or

(_d_) When the obligation to compensate is established by virtue of the general principles of the law of war.

(2) The obligation is equally well established when the injury has been committed (No. 1, _a_ and _d_) on the territory of an insurrectionary government, whether by this government itself, or by one of its functionaries.

On the other hand, certain demands for indemnity may be set aside when they concern facts which occur after the government of the State to which the injured person belongs has recognised the insurrectionary government as a belligerent Power, and when the injured person has continued to keep his domicile or his habitation on the territory of the insurrectionary government.

As long as the latter is considered by the government of the person alleged to be injured as a belligerent Power, the demand may only be addressed, in the case of paragraph 1 of article 2, to the insurrectionary government and not to the legitimate government.

(3) The obligation to compensate disappears when the injured persons are themselves a cause of the event which has brought the injury.[268] Notably no obligation exists to indemnify those who have returned to the country or who wish to give themselves up to commerce or industry there, when they know, or ought to know, that troubles have broken out, nor to indemnify those who establish themselves or sojourn in a country which offers no security on account of the presence of savage tribes, unless the government of the country has given express a.s.surance to immigrants.

(4) The government of a Federal State composed of a certain number of smaller States, which it represents from an international point of view, may not plead, in order to avoid the responsibility which falls upon it, the fact that the const.i.tution of the Federal State does not give it the right to control the member-States, nor the right to exact from them the discharge of their obligations.

(5) The stipulations mutually exempting States from the duty of giving their diplomatic protection ought not to comprise the cases of refusal of justice, or of evident violation of justice or of International Law.[269]

[Footnote 267: At its meeting at Neuchatel in 1900; see Annuaire, XVIII.

p. 254.]

[Footnote 268: For example, in the case of conduct which is particularly provocative to a crowd.]

[Footnote 269: The Inst.i.tute of International Law has likewise--see Annuaire, XVIII. pp. 253 and 256--expressed the two following _voeux_:--

(_a_) The Inst.i.tute of International Law expresses the wish that the States should avoid inserting in treaties clauses of reciprocal irresponsibility. It considers that these clauses are wrong in exempting States from the fulfilment of their duty of protecting their nationals abroad and of their duty of protecting foreigners on their territory. It considers that the States which, on account of extraordinary circ.u.mstances, do not feel themselves at all in a position to a.s.sure protection in a sufficiently efficacious manner to foreigners on their territory, can only avoid the consequences of this condition of things by temporarily prohibiting foreigners to enter their territory.

(_b_) Recourse to international commissions of inquiry and to international tribunals is in general recommended for all differences which may arise on account of injury to foreigners in the course of a riot, an insurrection, or of civil war.]

PART II

THE OBJECTS OF THE LAW OF NATIONS

CHAPTER I

STATE TERRITORY

I

ON STATE TERRITORY IN GENERAL

Vattel, II. ---- 79-83--Hall, -- 30--Westlake, I. pp.

84-88--Lawrence, ---- 71-72--Phillimore, I. ---- 150-154--Twiss, I. ---- 140-144--Halleck, I. pp. 150-156--Taylor, -- 217--Wheaton, ---- 161-163--Moore, I. -- 125--Bluntschli, -- 277--Hartmann, -- 58--Holtzendorff in Holtzendorff, II. pp. 225-232--Gareis, -- 18--Liszt, -- 9--Ullmann, -- 86--Heffter, ---- 65-68--Bonfils, No.

483--Despagnet, Nos. 374-377--Pradier-Fodere, II. No.

612--Merignhac, II. pp. 356-366--Nys, I. pp. 402-412--Rivier, I.