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

Structure type:: Chapter

Title:: VI. The administration of justice

Collection:: Economics Books

3g wh : “(d) Caused by procedure so faulty as to exclude all reasonable hope Lo ! of just decisions.” Cw =X. Norway accepts the ancient conception of flagrant injustice. Switzer- and states that: “If the future convention were to lay down that the State is internation- ally responsible, not only for judgments contrary to international law given by its courts and for manifestly incorrect decisions of the courts, but also for a denial of justice in all the forms in which it occurs (including wrongful dilatoriness on the part of the courts), we think that it would cover the essential points.” This theory involves the enforcement of principles of natural justice that are far above the will of the State. The substantive rules have not been laid down by the States. The application of the rules of construction may give rise to discussions among the States, just as it does among individuals, There is no reason warranting the prevalence of the view of one State over that of the others, when one of them disregards, or objects for special reasons, to the presumption of regularity and fairness to which a judicial proceeding is entitled. This difficult problem cannot very well be reduced to a definite formula that would either eliminate it altogether, or accept it without reservation. Neither is it free from dangerous consequences, be- cause it might lead to the revision of the decisions of national courts as a matter of regular procedure and to improper disregard of the judicial authority of the States. Nor could it be altogether eliminated, because it is an international question which arises in certain cases of claims due to un- usual injustice or corruptive practices. When a State disregards or, for special reasons, objects to the presumption of fairness and regularity with which a judicial act is invested, this establishes a conflict between two juris- dictions: one that is organic and regular (the national judiciary); and the other, which is inorganic and irregular, because it is not derived from the regular functions of the administration of justice within the States, and because it is exercised only on account of a conception based on extraordi- nary reasons. The only possible solution for this conflict would be to estab- lish a regular organization to pass upon the conflict, in other words, the jurisdiction of the community of States. International courts are the only ones competent to determine whether it is or not possible to set aside the usual presumption of fairness and justice carried by acts of the national judiciary. If a State should refuse to submit to the jurisdiction of the inter- national community, it could not, without violating the principles of equality, raise any objections to the validity of the action of national courts of other States. In other words, the decisions of the courts that enforce the munici- pal law cannot form the basis of responsibility unless so determined by the

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