Denial of Justice in International Law

by Jan Paulsson

• ISBN13: 9780521851183
• ISBN10: 0521851181
• Format: Hardcover
• Copyright: 2005-11-07
• Publisher: Cambridge University Press

Summary

Denial of justice is one of the oldest bases of liability in international law and the modern understanding of denial of justice is examined by Paulsson in this book, which was originally published in 2005. The possibilities for prosecuting the offence of denial of justice have evolved in fundamental ways and 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-governmental organisations, corporations and individuals, and Paulsson examines several recent cases of great importance in his book.

Table of Contents

Acknowledgements	viii
Authorities	ix
Abbreviations	xxv
The renaissance of a cause of action	1	(9)
The historical evolution of denial of justice	10	(28)
Absence of a universal standard	10	(3)
Right and might in the law of nations	13	(5)
Objections of weak states	18	(2)
The Calvo Doctrine and Clause	20	(4)
The impulse to limit the scope of denial of justice	24	(2)
Modern political realities	26	(10)
Summary	36	(2)
Three fundamental developments	38	(19)
State responsibility for the conduct of the judiciary	38	(6)
Denial of justice by non-judicial authority	44	(9)
Extension of locus standi	53	(4)
The modern definition of denial of justice	57	(43)
Overview	57	(2)
The difficult emergence of a general international standard	59	(9)
An evolving standard	68	(1)
Relationship with specific rights created by international law	69	(4)
No responsibility for misapplication of national law	73	(8)
Demise of substantive denial of justice	81	(3)
Judgments in breach of international law	84	(3)
Judgments in breach of national law	87	(3)
Confirmation of the distinction	90	(1)
State responsibility for subdivisions	90	(3)
Attempts at codification	93	(5)
Summary	98	(2)
Exhaustion of local remedies and denial of justice	100	(31)
The case for exhaustion	100	(2)
Loewen and the problem of waiver	102	(5)
Exhaustion as a substantive requirement of denial of justice	107	(5)
The qualification of reasonableness	112	(8)
Application of the reasonableness qualification in Loewen	120	(6)
No fresh starts at the international level	126	(1)
Effect of forks in the road	127	(3)
Summary	130	(1)
Denial of justice by outside interference	131	(45)
Jurisprudence under human rights treaties	133	(1)
Denial of access to justice	134	(4)
Absolute denial of access through state immunity	138	(9)
Targeted legislation	147	(2)
Repudiation by a state of an agreement to arbitrate	149	(8)
Governmental interference	157	(6)
Manipulation of the composition of courts	163	(1)
Excessive public pressure	164	(4)
Failure to execute judgments	168	(2)
Inadequate measures against perpetrators of crimes against foreigners	170	(3)
Wrongful measures of physical coercion	173	(3)
Denial of justice by the decision-maker	176	(31)
Refusal to judge	176	(1)
Delay	177	(1)
Illegitimate assertion of jurisdiction	178	(2)
Fundamental breaches of due process	180	(12)
Discrimination or prejudice	192	(3)
Corruption	195	(1)
Arbitrariness	196	(3)
Retroactive application of laws	199	(1)
Gross incompetence	200	(2)
Pretence of form	202	(2)
Summary	204	(3)
Remedies and sanctions	207	(21)
General principles: restitutio, dammon emergens, lucrum cessans	207	(5)
Vicarious damage and deterrence	212	(3)
Illustrative precedents	215	(3)
Amco II and proximate cause	218	(8)
The time value of money	226	(1)
Summary	226	(2)
The menace of `obscure arbiters'?	228	(38)
Anti-international challenges	228	(4)
Responses to the anti-international critiques	232	(12)
The urgency of prudence	244	(8)
Respect for the `obscure arbiter' as a test of commitment to the international rule of law	252	(4)
The early American example	256	(5)
Conclusions	261	(4)
Summary	265	(1)
Bibliography	266	(8)
Index	274