Denial of Justice

Abstract

My instructions are very explicit. I am asked to read an opening paper of ten minutes duration on Responsibility of States for Damages done in their Territories to the Person or Property of Foreigners, with special reference to Denial of Justice. So there is no danger that I shall exhaust your patience or my subject. The general principle governing the responsibility of states for acts injurious to foreigners within their own jurisdiction is that a state is bound to furnish the same degree and kind of protection to foreigners and provide the same means of redress or measure of justice that it grants to its own nation als; but that ordinarily (i.e., in the absence of special privileges conferred by treaty or municipal law) foreigners are not entitled to a greater degree of protection or better guarantees of justice than are afforded to a state's own citizens or subjects. This principle, although it is not without exceptions, is generally ad mitted to be an undoubted rule of international law. Upon it is based the famous Calvo Doctrine, which condemns intervention (diplomatic as well as armed) as a legitimate method of enforcing any or all private claims of a pecuniary nature, at least such as are based upon contract or are the result of civil war, insurrection, or mob violence. Says Calvo: To admit in such cases the responsibility of governments, i.e., the principle of indemnity, would be to create an exorbitant and fatal privilege essentially favorable to powerful states and injurious to weaker nations, and to establish an un justifiable inequality between nationals and foreigners. This doctrine is undoubtedly sound in principle, but subject to certain exceptions. It has been incorporated, though perhaps in too absolute a form, into some of the constitutions and into many treaties by Latin Ameri can States. In attempting to secure redress or justice, foreigners should, in the first instance, have recourse to the local or territorial tribunals of the district in which they are domiciled, or, as Vattel put it, to the judge of the place. Judicial remedies should, generally speaking, be exhausted before resorting