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

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Monograph

Identifikator:: 1831665921

URN:: urn:nbn:de:zbw-retromon-222025

Document type:: Monograph

Author:: Maúrtua, Víctor M.; Scott, James Brown http://d-nb.info/gnd/117654191

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

Place of publication:: New York

Publisher:: Oxford Univ. Press

Year of publication:: 1930

Scope:: V, 67 S.

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Monograph

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Title:: VI. The administration of justice

Collection:: Economics Books

THE ADMINISTRATION OF JUSTICE 37 bear a distinctly peculiar character, and have not been clearly defined in international rulings. These problems cover the following: first, whether the decisions of local courts may or may not give rise to responsibility; secondly, the definition and extent of a denial of justice; and thirdly, whether international jurisdiction is or not dependent upon the exhaustion of local remedies. (b) The principle of respecting and abiding by court decisions is usu- ally accepted both in theory and in practice. The question is, to what extent should these decisions be upheld? This principle is not based upon the autonomy of the judicial system. Neither is it connected with the ancient and somewhat mystical conception of justice as a supreme majesty. Nor is it possible to consider it as an extension of the doctrine of judicial guaranties which establish the binding force of the res adjudicate in the local jurispru- dence. The international binding force of judicial decisions is sanctioned by the international jurisdiction which the States recognize. All the civil- ized nations have, or should have, a judicial organization and substantive and procedural laws sufficient to afford proper protection to the rights of per- sons who reside in their territory, as well as to the rights of foreign States who are fellow members of the Family of Nations. These rights cannot be protected by other States. The fact that the governmental functions of the State are confined to its territory establishes, therefore, the obligation to provide for the proper administration of justice, and this obligation creates the right to have the acts incident thereto—which constitute the administra- tion of justice—duly respected by the international community. Besides; this respect towards judicial action is essential to mutual independence and cooperation. It is due to these legal considerations that the decisions which the judges render in the national courts should be presumed in international circles to be regular and just. Up to this point there is no possible discrepancy; but it is necessary to determine: (a) when may a court decision be deemed to be the final ruling of the judiciary; (b) whether the presumption of regularity and fairness carried by every judicial decision may be set aside in certain cases; and (c) whenever this presumption is set aside, in what manner would international jurisdiction be established ? Both in theory and in practice there is also absolute accord on the fact that court decisions cannot be considered to give rise to international responsi- bility until all the local remedies available to determine their validity have been exhausted. (¢) But once the decision becomes final, would it be possible to chal- lenge it in the international community by reason of the so-called notorious or manifest injustice? This problem is, indeed, both difficult and compli- cated. In this connection the Institute of International Law adopted the

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