Foreign Relations of the United States Diplomatic Papers, 1933, The American Republics, Volume IV

710.G International Law/3: Telegram

The Acting Secretary of State to the Chairman of the American Delegation (Hull)

Washington, December 9, 1933—6 p.m.

62. Your 38, December 8, 11 p.m.

(1) Your paragraph 4. The principles of State responsibility agreed to by majority vote on first reading by the Third Committee at The Hague in 1930 are set forth in Volume 4, Minutes, pages 236 and 237.

(2) There would appear to be no objection in general to these articles with the possible exception of the last paragraph of Article 9.

It will be seen that these Articles do not specifically cover “responsibility of States in civil wars”. While the original bases of discussion, numbers 21 and 22, pages 107–124 of Volume 3—”Bases of Discussion”, to which you refer, covered this subject, those bases were omitted from the majority draft. The position of the United States Delegation with respect to Bases 21 and 22 is set forth in its proposal of March 19, 1930, at page 232, Volume 4 of the Minutes.

(3) The draft to which Sierra (Mexico) refers is undoubtedly a counter-draft prepared by the minority group referred to on page 53 of instructions to your Delegation. This minority group presented on April 7 and 8, 1930, to certain members of the Third Committee counter-drafts containing articles declaring the non-responsibility of the State for damages caused by armed forces or the authorities of the State in suppressing insurrection, riot or other disturbances, or those caused by persons participating in an insurrection, riot or mob. Article A of the draft, suggested on April 8 by the minority group, reads as follows:

• “1. The international responsibility of a State is not engaged in consequence of damages caused to the person or property of a foreigner by the armed forces or by the authorities of a State in suppressing an insurrection, a riot, or other disturbance, unless their acts have plainly exceeded the requirements of the situation. The damage occasioned by requisitions should in all cases be repaired.
• 2. The international responsibility of a State is not engaged in cases of damage caused to the person or property of a foreigner by persons participating in an insurrection, in a riot, or by a mob, unless the State has not shown due diligence to prevent the damages, to assure the reparation of them and to punish the authors.
• 3. If the State accords indemnities to its own nationals, it will grant them under like circumstances and on the basis of reciprocity to foreigners.”

These drafts were not submitted to the full Committee and were never considered by it, hence they are not contained in Volume 4 of the Minutes. Accordingly, the statement that “all States were in agreement at The Hague” on these provisions is inaccurate, unless, by “all States”, Sierra means the Latin American States, which largely constituted the minority group.

It will be seen that Article A would be unacceptable in its present form.

Phillips