the treaty of Washington for the establishment of a Central American Court of Arbitration. The creditor will thus be assured of a hearing, the debtor state will be secured against the pressure of exorbitant claims accompanied by disagreeable diplomatic coercion, the government of the claimant will avoid what is always a potential germ of international difficulty and ill-will, with the incidental expense of pressing a diplomatic claim, and the peace of the world will be fostered by the removal of one great source of international conflict. The details of the organization and operation of this international court may be left to the delegates of the Third Hague Peace Conference, who may profitably examine the proposals of several learned Germans.1 The prospect and opportunity for thus advancing the cause of international justice, toward which goal the Porter proposition makes only a slight forward step, must command universal support.

1See the Denkschrift or memorial of the Ältesten der Kaufmannschaft von Berlin to the Imperial Chancellor, Sept. 30, 1910, reprinted in 20 Niemeyer's Zeitschrift für internationales Recht, 594-599, and the Denkschrift of May 20, 1912, summing up the whole matter, reprinted in Berliner Jahrbuch für Handel and Industrie, 497-514. See also the following works: Freund, G. S., Der Schutz der Gläubiger, Berlin, 1910, §§ 5, 43 et seq.; Wehberg, Hans, Ein internationaler Gerichtshof für Privat-klagen, Berlin, 1911, in which plans for the organization and operation of an international tribunal are carefully worked out. See also Wehberg's article, Die Durchsetzung von Privatansprüchen gegen Schuldnerstaaten, in Jahrbuch f. d. int. Rechtsverkehr, 1912-13, 391-402, and an article in Deutsche Wirtschafts-Zeitung, 1912, 704-710, Zur Errichtung eines internationalen Schiedsgerichtes für Streitigkeiten zwischen Privatpersonen und ausländischen Staaten. See also Fischer, Otto, Die Verfolgung vermögensrechtlicher Ansprüche gegen ausländische Staaten (Leipzig, 1912) and references to the proposals of others mentioned on pp. 15-16; and a further note by Fischer in 43 Ztschr. f. deutschen Zivilprozess, 282-284, and works already cited, Meili, Staatsbankerott, etc., 41, 50, 58, 59 and 63, and Pflug, 58–70.

CHAPTER VIII

INTERNATIONAL RESPONSIBILITY OF THE STATE-Continued. DENIAL OF JUSTICE

§ 127. Meaning of the Term.

In last analysis, a denial of justice is the fundamental basis of an international claim. It connotes some unlawful violation of the rights of an alien. The term, however, is used in two senses. In its broader acceptation it signifies any arbitrary or wrongful conduct on the part of any one of the three departments of government-executive, legislative or judicial. The term includes every positive or negative act of an authority of the government, not redressed by the judiciary, which denies to the alien that protection and lawful treatment to which he is duly entitled. Under the head of aliens, and in the preceding chapters on the responsibility of the state, we have discussed the question of the liability of the government for many of those injuries which may be inflicted on aliens in violation of municipal law, international law, treaties or the ordinary principles of civilized justice. These are denials of justice in the broader sense. For example, a wrongful expulsion, false imprisonment, confiscatory breach of contract, wanton pillage by officered government troops, confiscation of property by legislative act or executive decree, failure to punish a criminal offense, all constitute different forms of denial of justice.

In its narrower and more customary sense the term denotes some misconduct or inaction of the judicial branch of the government by which an alien is denied the benefits of due process of law. It involves, therefore, some violation of rights in the administration of justice, or a wrong perpetrated by the abuse of judicial process. It is in this sense that the term will be considered in the present discussion.1

1 The distinction between the broad and narrow meaning of denial of justice was considered in the case of Fabiani (France) v. Venezuela, Feb. 24, 1891, Moore's Arb. 4878, discussed by R. Floyd Clarke in 1 A. J. I. L. (1907), 389 et seq.

Some reference was made to denial of justice in the discussion of the responsibility of the state for the acts of judicial authorities, although it was there attempted to avoid any treatment of those specific violations of right or due process by the courts which have come to be known as denials of justice. For the present purpose, an undue delay of justice or manifestly unjust judgment may be considered as equivalent to a denial of justice.

Before undertaking any detailed discussion of the subject, it may be well to note that no definition of denial of justice as used in the broader sense is feasible. As was said by Secretary of State Gresham:

"The general ground of diplomatic intervention . . in behalf of private persons is a denial of justice, and the question whether there has been, or is likely to be, such denial is one that can be determined only on the circumstances of each particular case as it may arise." 1

§ 128. Conditions Incident and Precedent to Diplomatic Interposition.

It is also important to note that the claimant government determines for itself whether a denial of justice warranting diplomatic interposition has taken place. In other words, not only is it frequently an uncertain standard to which a given violation of an alien's rights may be referred, but his own government (and not the local government) is the judge of the perpetration of a denial of justice by the state of residence. Thus Secretary of State Blaine aptly said:

"Where the question presented is whether the Government of a country has discharged its duty in rendering protection to the citizens of another nation," it cannot "be conceded that that government is to be the judge of its own conduct." 2

And Secretary Fish in this connection remarked:

"Foreign governments have a right, and it is their duty, to judge whether their citizens have received the protection due to them pursuant to public law and treaties."

In this fact lies the primary condition for the all too frequent abuse, by strong states, of the rights of weaker countries.

1 Mr. Gresham, Sec'y of State, to Mr. Sheehan, Aug. 25, 1894, Moore's Dig. VI, 272. * Mr. Blaine, Sec'y of State, to Mr. Dougherty, Jan. 5, 1891, Moore's Dig. VI, 805. 'Mr. Fish, Sec'y of State, to Mr. Foster, Dec. 16, 1873, Moore's Dig. VI, 265. See also Mr. Bayard to Mr. Morgan, April 27, 1886, ibid. VI, 668.

On the other hand, it is to be noted that as a general rule the exhaustion of local remedies is considered a necessary condition precedent to recourse to diplomatic interposition. Only when these remedies have been exhausted, and a denial of justice established, does formal diplomatic espousal of a claim, as opposed to the use of good offices, become proper. Claimant governments dispense with the requirement of exhausting local remedies when those remedies appear insufficient, illusory or ineffective in securing adequate redress. It may be noted, however, that before a denial of justice has actually been perpetrated, and while the case is still pending, foreign governments may use their good offices to see that their citizens abroad receive the benefits of due process of law, in order that a denial of justice may be avoided.

It has already been observed that the state is not responsible for the mistakes or errors of its courts, especially when the decision has not been appealed to the court of last resort. Nor does a judgment involving a bona fide misinterpretation by the court of its municipal law entail, on principle, the international liability of the state. Only if the court has misapplied international law, or if the municipal law in question is in derogation of the international duties of the state, or if the court has willfully and in bad faith disregarded or misinterpreted its municipal law, does the state incur international liability. There is, however, no international obligation of the state to see to it that the decisions of its courts are intrinsically just.3 While in theory. an unjust judgment reached by proper observance of the rules of international law and the forms of civilized justice does not render the state liable, it will be noticed hereafter that in practice the rule is not usually observed. An unjust judgment has on numerous occasions been regarded as not internationally binding, even in the

1 The necessity to exhaust local remedies is for our purposes considered a limitation

on diplomatic protection. The matter is discussed, infra, § 381 et seq.

2 Supra, p. 195. See also Mr. Marcy to Baron de Kalb, July 20, 1855, 2 Wharton, 505, and Mr. Bayard to Mr. Morrow, Feb. 17, 1886, Moore's Dig. VI, 280. Mansfield's opinion in the Silesian loan case, cited by Randolph, Atty. Gen., in Pagan's case, 1 Op. Atty. Gen. 25, 32.

3 Anzilotti in 13 R. G. D. I. P. (1906), 22. See also Pomeroy (Woolsey's ed. 1886), § 205, to the effect that no state warrants the infallibility of its courts.

Infra, p. 340, note 5.

absence of any violation of due process of law or irregularity in procedure.1

Excess of jurisdiction by the courts was held in the celebrated Costa Rica Packet arbitration to entail international responsibility, although Secretary of State Marcy in 1856 denied this rule. The degree of responsibility incurred by the state through the misfeasance of its judges in their official or private capacities has already been considered.3 Before taking up specific examples of denial of justice, it may be well to recall certain fundamental general principles. The rule that those who resort to foreign countries are bound to submit to the local law as expounded by the judicial tribunals is disregarded only under exceptional circumstances, namely, when, palpable injustice has been voluntarily committed by the courts. Secretary of State Bayard in 1886 remarked that "when application is made to [the] Department for redress for the supposed injurious actions of a foreign judicial tribunal, such application can only be sustained on one of two grounds:

"(1) Undue discrimination against the petitioner as a citizen of the United States in breach of treaty obligations, or

"(2) Violation of those rules for the maintenance of justice in judicial enquiries which are sanctioned by international law.

The limitations implied in the latter principle must be clearly understood. They are intended to limit formal diplomatic interposition to cases in which the judicial proceedings have violated the universally recognized principles of civilized justice. For example, the system of criminal law in force in many countries is harsher than that applied in American courts; e. g., the inquisitorial system prevails in many foreign countries, and trial by jury, habeas corpus and those many safeguards which our laws provide for the benefit of the accused

* Supra, p. 196. See, however, the assertion of liability by Earl Granville, Sept. 30, 1881, 74 St. Pap. 1172, and account in Baty, 172–175.

* Supra, § 52.

4 Mr. Forsyth, Sec'y of State, to Mr. Semple, Feb. 12, 1839, Moore's Dig. VI, 249. Mr. Bayard, Sec'y of State, to Mr. Morrow, Feb. 17, 1886, ibid. VI, 280, 2 Wharton, 649. See also Grotius, III, ch. 2, § 5; Vattel, II, ch. 18, § 350; Pradier-Fodéré, § 403; G. F. de Martens, Précis, § 96; Baty, 163 et seq., 172, 233; Phillimore, 3rd ed.,