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Denial of Justice in International Law
Since the prehensive work devoted to denial of justice in international
law was published in 1938, the possibilities for prosecuting this offence have
evolved in fundamental ways. It is now settled law that States cannot disavow
international responsibility by arguing that their courts are independent of the
government. Even more importantly, the doors of international tribunals have
swung wide open to admit claimants other than states: non-an-
isations, corporations and individuals.
A vast number of new treaties for the protection of investment allow private
foreign investors to seise international tribunals to claim denial of justice. This
has given rise to intense controversy. There are those who consider that the very
prospect of an international tribunal passing judgment on the workings of
national courts constitutes an intolerable affront to sovereignty. Others believe
that such must precisely be the role of international tribunals if the rule of law is
to prosper.
The proponents of imperial might once found it convenient to drape the
exercise of power in virtuous shrouds, as in the Don Pacifico affair in 1850,
when Palmerston justified the seizure of all ships in the harbour of Piraeus (in
retribution for the failure of the Greek government to grant redress to a British
subject) by his Civis Romanus Sum oration in the House mons. Today
gunships have been replaced by international tribunals, and so even those who
have no might may have the right to seise international jurisdictions to question
the conduct of courts in the most powerful countries. The tables may therefore be
turned, as when the US in 2002 found itself taken to task on account of alleged
denials of justice suffered by two Canadian investors at the hands of the courts of
Massachusetts and Mississippi.
This book examines the modern understanding of denial of justice.
Denial of Justice in
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