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Denial of Justice in International Law

Published online by Cambridge University Press:  04 May 2017

Clyde Eagleton
Clyde Eagleton*
Affiliation:
New York University
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Extract

The responsibility of the state in international law is a subject of constantly increasing interest, whether to the practicing lawyer, who finds himself called upon to prepare an international claim, or to the theoretician, interested, perhaps, in the current codification of international law.1 Of the many problems connected with state responsibility, one of the most interesting, and at the same time one of the most vital,is that of the proper denotation to be given to the phrase “ denial of justice.” Most debates hinge upon definitions; and a consistent statement of the rules of responsibility would seem impossible until denial of justice is given clearer definition.It is believed that practice now affords us enough consideration of the meaning of the term to permit of analysis and of more precise definition.

Type
Research Article
Information
American Journal of International Law , Volume 22 , Issue 3 , July 1928 , pp. 538 - 559
Copyright
Copyright © American Society of International Law 1928

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References

1 State responsibility in international law is now being widely studied. It has been considered at the last two meetings of the American Society of International Law; resolutions with regard to it were promulgated at the 1927 meeting of the European Institut de Droit International; it forms an important part of the movement for codification both in America, and under the League of Nations; it is one of the three subjects chosen, by resolution of the Assembly of the League of Nations, for consideration at a conference to be held at the Hague in 1929; and an American committee of international lawyers, under the initiative of the Harvard Law Faculty, is taking up these three subjects for study, Professor Borchard of Yale University being the reporter upon Responsibility.

2 Hyde, International Law, I, pp. 491-492.

3 In his argument before the American and British Claims Arbitration Tribunal, Case of the Cayuga Indians,Nielsen's Report, p. 250. See alsohis concurring opinion in the neer Case, General Claims Commission, U. S. and Mexico, Opinions, p. 77, in which he says: “ I think it is useful and proper to apply the term denial of justice in a broader sense than that of a designation solely of a wrongful act on the part of the judicial branch of the government.” These views will be taken up, infra.

4 See the , Alien Law of Honduras, 1895, Br. and For. St. Pap., 87, p. 707 Google Scholar; the Venezuelan Law of 1903, ibid., 96, p. 648; Fabiani Case, , Moore, Arbitrations, pp. 4893-4896 Google ScholarPubMed.An exhaustive study of such laws is made by Borchard, “ Die Beschrankung des diplomatischen Rechtsschutzes,” Völkerrecht Zeitschrift für , V, p. 510; andsee his Diplomatic Protection, Part IV, Ch. VII. Refer to note 22, infra.

5 Borchard, Diplomatic Protection, p. 330. It is to be observed that Prof. Borchard prefers the narrower definition. On the following page he says: “ It may be well to note that no definition of denial of justice as used in the broader sense is feasible.” The same may be said of Prof. Wambaugh (quoted later), Proc. Am. Soc. Int. Law, IV (1910), p. 128.

6 , Moore, Arbitrations, p. 3073. The disposition of some of the cases under this chapter heading is challenged in the Chattin opinion, General Claims Commission, U. S. and Mexico, Opinions, p. 428.Google Scholar

7 Moore, Arbitrations, p. 1216.

8 Quoted from the Revue Droit, Générale de International Public (hereinafter abbreviated as R. D. I. P.), IV, p. 410 Google Scholar. The editors comment that it was a great success for Brazil that a European government had accepted this principle. A similar treaty between Spain and Chile is quoted at ibid., p. 417; and see ibid., II, p. 339; III, pp. 601-604; IV, pp. 227, 417, 794; Strupp, Urkunden, II, pp. 298, 305; and the references to Borchard, in note 4, supra.

9 Convention Relative to the Rights of Aliens, Second Pan American Conference, January 29, 1902. For a more recent example, see the treaty between Great Britain and Uruguay, April 18, 1918, Nouveau Recueil GMral, 3e série, 15, p. 63.

10 Some eighty cases have been examined, including those from which excerpts have been given in the chapter entitled “ Denial of Justice” in Moore's Arbitrations.

11 From the fact that the state is obligated to use the means at its disposal for the prevention of injuries to aliens, it might be argued that the state is responsible immediately for an injury done by an individual to an alien, as it is for an injury done by a state agent to an alien. This would seem logically to follow from the fact that the responsibility of the state is based upon its exclusive jurisdiction. In either case, the rule of local redress would apply, so that the ultimate decision of the case would be the same. Such a theory would recognize the rights of individuals, now obscured in the mortmain of sovereignty; it would aid in measuring reparation (e. g., the Chattin Case, before the Claims Commission with Mexico), and it would simplify and systematize the whole principle. This theory, however, finds no support in current doctrine.

12 Martens, Causes cèlèbres, II, pp. 96,139, quoted in Phillimore, Commentaries, II, p. 5, and in Wheaton, Elements of International Law, §391.

13 Bum's Case, Moore, Arbitrations, p. 3140. An excellent statement is found in the Baldwin Case, ibid., p. 3127. See generally the cases on pp. 3126-3160, ibid., especially Glenn's Case, p. 3138; Ada, p. 3143; Danford, Knowlton Co., p. 3148; Cotesworth and Powell, p. 2083; Montano, p. 1637.

14 , De Caro Case, Ralston, Venezuelan Arbitrations of 1903, p. 819 Google Scholar. See also, in the same volume, Orinoco Steamship Co., p. 90; LaGuairaLight and Power Co., p. 182; Ballistini Case, p. 503; Woodruff Case, p. 161.

15 Chattin Case, Opinions, pp. 426-427. Other cases before this commission are quoted below. In the Adams, David J. Case, before the American and British Claims Arbitration Tribunal, it was held that “ a denial of justice may not be invoked, unless the claimant has exhausted the legal remedies to obtain justice.” (Nielsen's Report, p. 531 Google Scholar.) See the cases of the Cayuga Indians, ibid., p. 329; Canadian Claim for the Refund of Duties, ibid., p. 368; Oberlander and Messenger Case, For. Rel., 1897, p. 382; and the Croft and YuiUe, Shortridge Co. Cases, with doctrinal notes accompanying them, in Lapradelle and Politis, Recueil, II, pp. 31, 103.

16 Application for the Support of Claims against Foreign Governments, May 15, 1919, Revised October 1,1924, Department of State, Washington, D. C

17 Ralston, Venezuelan Arbitrations, p. 90. For the position of France, see Waller's Case, Moore, Digest, VI, p. 670.

18 Moore, Digest, VI, p. 269.

19 Mr. Blaine to Mr. Caamano, May 19, 1890, ibid., p. 270. “ But the Mexican Government strongly insisted upon the principle that justice could not be said to be denied till the claimants had used the remedies which the laws of the country allowed.” Case of the Rebecca, Moore, Digest, VI, p. 668; and see generally, in the same volume, §§913 and 987.

20 Moore, Arbitrations, p. 3141. Other like cases in the same work: Cinecue, p. 3127; Bronner, p. 3134; Stratton and Black, p. 3138; Green, p. 3139; Slocum, p. 3140; Clavel, p. 3141; Blumhardt, p. 3146; Nolan, p. 3147; Driggs, p. 3160; Cotesworth and Powell, p. 2084; Fabiani, p. 4895; Medina, p. 2315. See also the cases of Woodruff, Ralston, Venezuelan Arbitrations, p. 160; La Guaira Light and Power Co., ibid., p. 182; De Caro, ibid., p. 819; Croft, doctrinal note, Lapradelle-Politis, Recueil, II, p. 31.

21 Mr. Hay to Signor Carignani, Aug. 24,1891, Moore, Digest, VI, p. 674. “ It was from those laws then, through the proper tribunals, that reparation should have been sought for the injury inflicted upon your person and property, and it was only after a participation by those tribunals in the wrong committed by a palpable denial of justice, that the Government of the United States could have been properly called upon to interpose its influence.” Mr. McLane to Mr. Shain, May 28, 1834, ibid., p. 259. Similarly, Mr. Olney to Mr. Hamlin,July 16,1896, ibid., p. 272; Mr. Everett to Mr. Marsh, Feb. 5,1853, ibid., p. 262; Mr. Fish to Mr. Foster, Dec. 16,1873, ibid., p. 265; Mr. Bayard to Mr. McLane, June 23,1886, ibid., p. 266; case of the Bridgewater, ibid., p. 669; Mr. Marcy to Mr. Jackson, April 6,1855, ibid., p. 284; Lord Palmerston, in the case of Don Pacifico, June 25, 1850, ibid., p. 681; and others, in §§913 and 987.

22 Moore, Digest, VI, p. 267. Similar efforts to limit denial of justice, or rather, to limit responsibility, are found in constitutions and treaties. Though M. Guerrero, in his report for the Committee for Progressive Codification approves such treaties, the Imtitut de Droit International condemned them. Annmire, XVIII, p. 255. For citations concerning such limitations, see Goebel, in this Journal , VIII, pp. 832-840; Arias, in ibid., VII, p. 724; Moore, Digest, VI, §919. Such limitations have generally been held invalid. See Ralston, Law and Procedure of International Tribunals, §104, in addition to the above references.

23 “ I consider that the contentions of the United States that there was a denial of justice in this case growing out of the failure to take proper measures to punish the slayer of Massey have been established.” Massey Case, General Claims Commission, U. S. and Mexico, Opinions, p. 238. Whether it be regarded as executive or judicial in character (see next paragraph of the text), the failure to apprehend criminals has been held to be denial of justice. Diaz Case, ibid., p. 143; Janes Case, ibid., p. 144; Roper Case, ibid., pp. 209-210. “ Considering that if the opinion of the agent of Venezuela that the perpetrators of the violence were wrongdoers and sharpers be accepted, it would follow that the obligation of prosecuting and punishing the criminals rested on the competent local authorities, without its being necessary that any request be made by the injured parties for that purpose.” Bovallins and Hedlund Cases, Ralston, Venezuelan Arbitrations, p. 952; Davy Case, ibid., p. 411; Poggioli Case, ibid., pp. 847,869; Glenn Case, Moore, Arbitrations, p. 3138; Mills Case, ibid., p. 3034; Piedras Niegras Claims, ibid., p. 3036. In the Kennedy Case, before the Mexican Commission, it was said that “ this claim can be properly grounded only on a denial of justice resulting from a failure to have imposed on Kennedy's aggressor a punishment commensurate with his offense.” Opinions, p. 296.

24 “ But when he was precluded from so doing [exhausting remedy in Mexican courts] by the adverse proceedings instituted against him by the Mexican authorities, by which he was prevented from making out his case, we must hold that justice was not only denied him, but denied in violation of settled principles of international law.” Mr. Bayard to Mr. Jackson, Sept. 7, 1886, Moore, Digest, VI, p. 681. See Mr. Evarts to Mr. Fairchild, Jan. 17, 1881, ibid., p. 656; Mr. Marcy to Mr. Clay, May 24, 1855, ibid., p. 659.

“ Undue and needless delay in the trial of a citizen abroad is a ground for international intervention.” Mr. Frelinghuysen to Mr. Lowell, April 25,1882, Moore, Digest, VI, p. 277; and similarly, Mr. Bayard to Mr. Jackson, July 26, 1886, ibid., p. 281; Mr. Blaine to Mr. Ryan, June 28, 1890, ibid.

On this point, see Hyde, International Law, I, §283; Borchard, Diplomatic Protection, §129; Decencitire-Ferrandi(Sre, La responsabiliU intemationale des Mats & raison des dommages subis par des Strangers, Paris (thhse), 1925, p. 108.

25 See Mr. Evarts to Mr. Foster, April 19,1879, Moore, Digest, VI, p. 696; Mr, Seward to Mr. Webb, Dec. 7,1867, Wharton, Digest, II, p. 615, and §230 in general; Garrison’s Case, Moore, Arbitrations, p. 3129; Orient Case, ibid., p. 3229.

26 “ In refusing the relief prayed for, the officers of the judicial department were guilty of a gross denial of justice, failing, as they did, to follow the excellent laws prescribed by Venezuela.” Tagliaferro Case, Ralston, Venezuelan Arbitrations, p. 765; and see the Bullis Case, ibid., p. 170; Driggs Case, Moore, Arbitrations, p. 3125; Van Bokkelen Case, ibid., p. 1846; Idler Case, ibid., pp. 3504-3508; Jonans Case, ibid., p. 3521; Mr. Conrad to Mr. Peyton, Oct. 12, 1852, Moore, Digest, VI, p. 274-5.

The due process required is that of the state in question, though it must measure up to an international standard. Mr. Gresham to Mr. Hevner, June 10,1893, Moore, Digest, VI, p. 272; Mr. Marcy to Mr. Jackson, April 6, 1855, ibid., p. 275; Mr. Bayard to Mr. Jackson, July 16,1886, ibid., p. 281. As to what the United States expects as due process, Mr. Fish to Mr. Cushing, Wharton, Digest, II, p. 620; Mr. Evarts to Aristarchi Bey, ibid., p. 625; and generally in §230, ibid.

27 Mr. Fish to Mr. White, Jan. 7, 1874, Moore, Digest, VI, p. 698; and see generally ibid., §992; Hyde, International Law, I, p. 500; Borchard, Diplomatic Protection, p. 197; resolutions of the Institut de Droit International at its 1927 session, Art. 6.

28 “ In addition to all this it appears that you had a right of appeal in the regular course of judicial proceedings, and that this right still exists, unless it has been lost through your neglect.” Mr. Forsyth to Mr. Welsh, March 14, 1835, Moore, Digest, VI, p. 261; and see Mr. Clay to Mr. Tacon, Feb. 5,1828, ibid., p. 652; Mr. Marcy to Chevalier Bertinatti, Dec. 1, 1856, ibid., p. 748; Driggs Case, Moore, Arbitrations, p. 3160; De Caro Case, Ralston, Venezuelan Arbitrations, p. 819; Strupp, Das völkerrechtliche Delikt (Stuttgart, 1920), p. 82.

29 “ The judicial authorities, when appealed to for an investigation of Ruden’s claim, refused to entertain it, on the ground that an executive order had forbidden the trial of suits against the treasury. And while justice was thus denied. . .” Ruden Case, Moore, Arbitrations, p. 1655; and see the similar cases of R. T. Johnson, ibid., p. 1656; and the Neptune Case, ibid., p. 3077. “ These facts prove the denial of justice, because the local authorities deprived Ballistini of the legal means of instituting before the competent tribunals the actions which the laws would authorize him in case he might improperly have been condemned to a criminal judgment.” Ballistini Case, Ralston, Venezuelan Arbitrations, p. 504. “ Mais le fait que le gouverneur de la -province est intervenu dans Vaffaire et a, de sa propre autoriU, empichi Romberg d'exercer un droit Ugitime, constituait un veritable dini de justice, puisque, contre I'ordre du gouverneur, il n'y avait ni appel ni possibility de resistance.” Affaire Oliver Romberg, Lapradelle-Politis, Recueil, II, p. 566. See also Ralston, in Law and Procedure of International Arbitration, p. 51, and as umpire in the Poggioli Case, Venezuelan Arbitrations, p. 869.

30 See, for example, the R. E. Brown Claim, below. On legislative limitations, see note 22, supra.

31 “ Punishment without execution of the penalty constitutes a basis for assuming a denial of jostice.” Malign Case, General Claims Commission, U. S. and Mexico, Opinions, p. 261; and see the following cases before the same commission: Venable, ibid., p. 368; Putnam, ibid., p. 227; also, the Montano Case, Moore, Arbitrations, p. 1637; Fabiani Case, ibid., p. 4878; Promemoria of the German Embassy at Washington, Dec. 11, 1901, Moore, Digest, VI, p. 693, and §990 in general; Mr. Frelinghuysen to Mr. Morgan, May 19, 1884, ibid., p. 679.

32 “ There remains at least the fact that Uriarte escaped and that Mexico had the obligation to answer for Uriarte until the termination of his sentence, and she is now unable to explain his disappearance. In such circumstances it cannot be said that Mexico entirely fulfilled her international obligation to punish the murderer of Putnam, as Uriarte remained imprisoned only thirty months, more or less, and, therefore, Mexico is responsible for the denial of justice resulting from such conduct.” Putnam Case, General Claims Commission, U. S. and Mexico, Opinions, pp. 226-227, and similarly, the Massey Case, ibid., pp. 235 et seq.

33 “ Since Mexico has issued an amnesty act and since the President has held that it covered the murder of West, Mexico has granted amnesty to West's murderers, and has voluntarily deprived itself of the possibility of prosecuting and punishing them.” West Case, ibid., Opinions, p. 406. See also Borchard, Diplomatic Protection, p. 218.

34 General Claims Commission, U. S. and Mexico, Opinions, pp. 77-78. See note 3, supra.

35 Foreign Relations, 1902, p. 870, Scott, Cases, p. 123.

36 Ralston, Venezuelan Arbitrations, p. 869, and see his Law and Procedure, p. 87. For similar cases: Cheek, Moore, Arbitrations, p. 1899, Moore, Digest, VI, p. 656; Danford, Knowlton Co., Moore, Arbitrations, p. 3149; Montano, ibid., p. 1634; Johnson, ibid., p. 1656; Ruden, ibid., p. 1655.

37 Halleck, International Law (4th ed.), Ch. XIII, Sec. 6, pp. 443-444. Halleck does not himself use the term, though he quotes Vattel's description of it. Mr. Nielsen's citations are to cases in which the failure of local remedies is always present. His contentions were rejected by the American and British Claims Arbitration Tribunal, in the case of the Cayuga Indians, Nielsen's Report, p. 329 (for his citations and argument, see pp. 166-167, pp. 250 et seg.); and by the General Claims Commission, U. S. and Mexico, in the Chattin Case, Opinions, p. 429. In the Janes Case, the same commission apparently accepted a broader view. But the ground for the award was “ such failure on the part of the Mexican authorities to take prompt and efficient action to apprehend the slayer as to warrant an award of indemnity.” Opinions, p. 112.

38 Nielsen's Report, p. 198.

39 Nielsen's Report, p. 258. See note 37, supra.

40 General Claims Commission, U. S. and Mexico, Opinions, p. 429. See note 37, supra.

41 Tagliaferro Case, Ralston, Venezuelan Arbitrations, p. 765. The Poggioli opinion speaks of “ complicity on the part of the officials and denial of justice,” ibid., p. 869. See also the cases of Young, Smith & Co., Moore, Arbitrations, p.3148, the British argument thereon on p. 3153, and the distinction made between this case and the Danford, Knowlton Co. Case, p. 3151; the convention adopted by the Second Pan-American Conference, already quoted; Project No. 16, Art. 3, of the American Institute of International Law, Spl. Supp. to this Journal, Vol. XX, p. 329; the Zamora Case, Grant, Prize Cases, p. 14, which quotes the wording of Phillimore, Commentaries, II, p. 4; Borchard, Diplomatic Protection, pp. 842-843.

42 Malign Case, General Claims Commission, U. S. and Mexico, Opinions, pp. 262, 264.

43 Fabiani Case, Moore, Arbitrations, p. 4895, La Fontaine, Pasicrisie, p. 355. The case of Cotesworth and Powell, of equal importance, will be discussed in connection with the ChattinCase. In his dissenting opinion, in the latter case, the Mexican Commissioner speaks of the “ Cotesworth and Powell Case, which is celebrated in this matter, and which summarizes what is established in international law on the question of denial of justice, and on maladministration of justice.”

44 As examples of such confusion, he quotes the Yuille, Shortridge & Co. Case, Lapradelle-Politis, Recueil, II, p. 103; and the Bum, Pratt, and Ada Cases, Moore, Arbitrations, pp. 3140, 3141, 3143.

45 General Claims Commission, U. S. and Mexico, Opinions, pp. 425-429. As “ typical instances of direct damage caused by the judiciary—‘ denial of justice ’ improperly so-called,” the Presiding Commissioner cites the Rozas and Driggs cases (Moore, Arbitrations, pp. 3124-3126); the Faulkner, Roberts, Turner, and Strother cases before his own commission. He adds that in the following cases the improper term denial of justice was not employed by the tribunal itself: Rozas and Driggs (just cited); Selkirk, Moore, Arbitrations, p. 3130; Reed and Fry Case, ibid., p. 3132; Jennings, ibid., p. 3135; Pradel, ibid., p. 3141; Smith, ibid., p. 3146; Baldwin, ibid., p. 3235; Jonan, ibid., p. 3251; Trumbull, ibid., p. 3255; Croft, Lapradelle-Politis, Recueil, II, p. 22; Costa Rica Packet Case, La Fontaine, Pasicrisie, p. 509f Moore, Arbitrations, p. 4948.

46 See, e. g., the Yuille, Shortridge & Co. Case, Lapradelle-Politis, Recueil, II, p. 103; the-Croft Case, ibid., p. 24.

47 Consult, on this point, Fauchille, Traite, I, p. 534; Anzilotti, in R. D. I. P., XIII, pp. 21, 296; Strupp, völkerrechtliche Delikt, p. 74; Schoen, Hajtung der Staaten, p.85; Moore, Digest,. VI, §991; de Visscher, Responsabilié, pp. 99-100; Davy Case, Ralston, Venezuelan Arbitrations, p. 410; Parrish Case, General Claims Commission, U. S. and Mexico, Opinions, p 477; and the Chattin Case, before the same commission, cited above.

48 Moore, Digest, VI, §§1025, 1026.

49 Wheaton, International Law, §391. See the quotations from Grotius, Vattel, and Bynkershoek, given in Moore, Digest, VI, p. 694; de Visscher, Responsabilié, p. 99.

50 On this point see Borchard, Diplomatic Protection, pp. 195, 332-4, 340; Hyde, International Law, I, §286; de Visscher, Responsabilité, p. 98; Schoen, Haftung, p. 83; Strupp, Vökerrechtliche Delikt, p. 74; Mr. Davis to Mr. Chase, Jan. 10, 1870, Moore, Digest, VI, p. 750.

51 Grotius, De Jure Belli et Pads, II, c. 2, 5, 1. See Wheaton, International Law, §391; and Hatschek, VSlkerrecht, p. 398, quoting Bartolus.

52 Vattel, Law of Nations, 6th American ed. by Chitty, Philadelphia, 1844, II, VI, §73; II, VII, §84; II, XVIII, §350.

53 As, for example, Halleck, International Law, I, pp. 443-4; or Westlake, International Law, I, p. 327, Chapters, p. 104; or PMdeliSvre, Précis, I, p. 319. Halleck does not himself use the term at all, nor do Hall, Rivier, Heffter, Wilson, and Woolsey. Others use it only incidentally, as Oppenheim, International Law, I, §161; Liszt, Völkerrecht, 12th ed., §35, III, 1, b; Antokoletz, Tratado de Derecho International Publico, II, p. 228. Pradier-Fodéré is not clear, though apparently in agreement. He asserts that protection should be granted against violations of international law, “ contre les procédés arbitraires ou les dinis de justice de la parte des autorités locales,” and against manifest injustice or discrimination, Traiti, I, §202.

54 Phillimore, Commentaries, II, pp. 4 and 5.

55 D. Anzilotti, “ La responsabiliU Internationale des Mats A raison des dommages soufferts par des Ur angers,” R. D. I. P., XIII, p. 21; and see pages following.

56 Schoen, Die Völkerrechtliche Haftung der Staaten aus unerlaubten Handlungen, Zeitschrift fur Vdlkerrecht, Band X, Erganzungsheft 2, 1917, pp. 83-84. See Strupp, Völkerrechtliche Delikt, p. 76, who discusses it in connection with the courts.

57 De Visscher, “ La responsabiliU des Etats,” Biblioteaa Visseriana, II, pp. 99-100.

58 Fauchille, Traitt, I, p. 533, says: “ le dtni de justice est le fait, par un Etat, de ne point accorder d un ttranger les moyens et les voies de recours ntcessaires A la definse de son droit.” According to Despagnet, Cours, Sec. 466, “ soit en opposant un dtni de justice formel ou diloumi aux reclamations justifies de Vttat ou des particidiers Grangers contre ses propre nationaux.” Bevilaqua attempts to define the term: “ Ddrse denegacao de justiga: a) Quando ojuiz, sent fundctmenlo legal, repelle a peligdo daquelle que recorre A justiga do paiz, para defender ou reHaurar o seu direito, b) Quando, postergando as formulas processuaes, impede a prova do direito ou a sua defeza; c) Quando a sentenga 6, evidentemente, contraria aos principios universales do direito.” Direito Publico International, I, §38; see also pp. 198, 219. Among other writers may be mentioned Diena, Prindpi di diritto internazionale, I, p. 419; Bluntschli, Das modeme Völkerrecht der cimlisirten Staaten, No. 380; Gareis, Institutionen, p. 215; Hatschek, Völkerrecht, p. 398.

59 At its 1927 meeting at Lausanne. See discussions at the 1927 meeting of the American Society of International Law, Proceedings, 1927 (consult index); Questionnaire No. 4 of the League of Nations Committee for the Progressive Codification of International Law, Spl. Supp. to this Journal, Vol. XX, p. 193; Project No. 16, of the American Institute of International Law, ibid., p. 329; Moore, Digest, VI, p. 266; replies of governments to the Committee of Experts for the Progressive Codification of International Law, Report to Council, Geneva, 1927 (C. 196. M. 70. 1927. V.), especially, p. 151 (Denmark); 167 (Greece); 178 (Norway); 195 (Portugal); 250 (Switzerland).

60 In Proc. Am. Soc. Int. Law, IV (1910), p. 128. He admits that the wider definition is not incorrect, and offers as examples of it, executive failure to perform contracts “ provided there is no redress in the courts,” or seizing person or property “ with the same proviso,” or neglecting to use due diligence to prevent mobs, etc.

61 The positions taken by Dr. Hyde and Mr. Nielsen have been given, supra. The position taken by the editors in the doctrinal notes accompanying the Croft and the Yuille, Shortridge Co. cases leaves their position uncertain,Lapradelle-Politis, Recueil, II, pp. 31, 33, 112; and see p. 280. Mr. Hershey's position also is not clear, Essentials of International Public Law (New York, 1927), p. 255, and in Proc. Am. Soc. Int. Law, 1927, p. 27.

62 “ How confusing it must be to use the term ‘denial of justice’ for both categories of governmental acts is shown by a simple deduction. If ‘denial of justice’ covers not only governmental acts implying so-called indirect liability, but also acts of direct liability, and if, on the other hand, ‘denial of justice’ is applied to acts of executive and legislative authorities as well as to acts of judicial authorities—as is often being done—there would exist no international wrong which would not be covered by the phrase ‘denial of justice,’ and the expression would lose its value as a technical distinction.” From the opinion of the Presiding Commissioner in the Chattin Case, General Claims Commission, U. S. and Mexico, Opinions, p. 427.

63 In some cases, redress must be sought from an administrative rather than a judicial tribunal, e. g., an internal claims commission set up to repair damages caused within a state by a civil war. Failure to admit aliens upon the same terms as citizens to such a tribunal would presumably be denial of justice.

64 That denial of justice is a fit subject for codification, see Antokoletz, op. ct. II, p. 228; Westlake, International Law, I, p. 327; Wambaugh, Proc. Am. Soc. Int. Law, 1910, p. 136.