Full text: Responsibility of states for damage caused in their territory to the person or property of foreigners

international courts. The individual action of the State cannot be upheld 
as against the presumption of fairness and regularity which the international 
community attributes to the judicial functions of the various States. The 
solution might consist in organizing a special body to establish whether the 
facts warrant proceedings to fix international responsibility. This body 
could not, of course, pass upon the fundamental issues involved. It should 
determine, in the first place, whether or not the facts may justify a State 
in bringing up for discussion the regularity or fairness of a court decision. 
The usual current practice tends to solve the difficulties of this important 
issue by means of treaties. There is a form of treaty, like that between 
Poland and Switzerland (March 7, 1925), which submits to international 
adjudication certain matters which international law leaves entirely to the 
national jurisdiction of the States. But when under the municipal law one 
of these matters comes within the jurisdiction of the local courts, the de- 
fendant may object to the international jurisdiction until a final decision has 
been rendered by the competent national court. There is another type of 
treaty, as for instance the one between Switzerland and Spain, which sub- 
mits all controversies, regardless of their nature, to the international juris- 
diction. However, if any of these should come within the jurisdiction of 
the national judiciary, the defendant may object to the institution of inter- 
national proceedings until a final local decision has been rendered in the 
(d) The definition of a denial of justice has been very ambiguous. 
John Bassett Moore feared that it might not be possible to set forth some 
formula that would actually serve to solve the problems arising in concrete 
cases. De Lapradelle and Politis remarked that the complicated and uncer- 
tain characteristics of a denial of justice seem to challenge all definition. 
Actual practice, however, has greatly contributed to bring about a relatively 
clear conception of the doctrine. One of the difficulties is due to the fact 
that such a broad conception used to be entertained in connection with the 
denial of justice that it comprised the action of all the State organs. As 
regards the action of the judicial authorities, the doctrine included the typical 
cases of denial of justice, as well as those involving deficient procedure or a 
manifest injustice. Another serious difficulty arose from the confusion be- 
tween the possible error of the decision which does not entail responsibility, 
and unusual deficiency or manifest injustice. No lines of distinction can 
very well be drawn between the various phases of a denial of justice, except 
by careful consideration of the facts of each concrete case. If the question 
involved is the lack of the indispensable organs for the proper administration 
of justice, or lack of laws authorizing the legal actions required by inter- 
national law, or refusal of access to the courts, or wrongful delay, or deci- 
sions influenced by ill-will against all foreigners as such or against the

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