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

Of all these various formulas, the one propounded by Switzerland seems 
to be the most legally sound. In view of the difficulties which this matter 
entails, the first requirement is not to confuse the cases of deficient organiza- 
tion of the judiciary with the cases of improper administration of justice due 
to the lack of judicial authorities, or legal actions, or regular speedy pro- 
ceedings, or refusing foreigners access to the courts, or the rendering of 
wrongful decisions prompted by motives beyond the purview of the law. 
These are concrete cases which might properly form the basis of clear re- 
sponsibility. The definitions of “a denial of justice” which include the con- 
sideration of the fact as to whether or not the courts offer proper guaranties 
introduce a very dangerous general conception. The insufficiency of the 
judicial system itself does not form basis of responsibility; this must be 
established by the facts. It is the facts, therefore, which give rise to responsi- 
bility. In other instances and in certain circumstances, responsibility might 
be involved even in connection with a regular and well organized judicial 
system. Another fact consists in that the proceedings or the trial should be 
anusually inconsistent with the principles of justice or constitute a manifest 
injustice. This type of injustice might be due to animosity towards foreign- 
ers in general or towards a certain nationality in particular. Or it might be 
due to corruption. In any event, to draw a line of distinction between these 
facts and court errors seems to be an insurmountable difficulty. Therefore, 
it is exclusively for international practice to determine the application of 
these two doctrines with such varied juridical import. 
As soon as the State has, in good faith, fulfilled its obligations, it is not in principle 
answerable for the erroneous decisions of its judges. The State must, however, be held 
responsible whenever it has not acted in perfect good faith or its judges have clearly 
allowed themselves to be influenced by considerations unconnected with the dispensation 
of sound justice. In such case, the erroneous judgment would be a violation of the 
principle of judicial protection due to foreigners and would thus amount to an offence 
against international law for which the State would be responsible. 
“Wrongful delay on the part of the courts undoubtedly involves the international 
responsibility of the State. Such delay is really one form of a denial of justice, an 
act which is contrary to international law. The arbitral award given by the President 
of the Swiss Confederation on December 3oth, 1896, in the Franco-Venezuelan dispute 
concerning the case of Fabiani, expressly stated that, “if we examine the general prin- 
ciples of international law with regard to a denial of justice, that is to say, the rules 
common to most bodies .of law or laid down by doctrine, we shall see that a denial of 
justice includes, not only the refusal of a judicial authority to exercise its functions 
and, in particular, to give a decision on the request submitted to it, but also wrongful 
delay in giving judgment.” (League of Nations Publication C. 75. M. 60. 1029. V., 
DP. 4748.

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