Cambridge University Press
0521851181 - Denial of Justice in International Law - by Jan Paulsson
Frontmatter/Prelims

Denial of Justice in International Law

Since the last comprehensive 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-governmental organisations, 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 of Commons. Today gunships have been replaced by international tribunals, and so even those who have no might may have the right to seise international jurisdictions to question the conduct of courts in the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
International Law

Jan Paulsson

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© Jan Paulsson 2005

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First published 2005

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ISBN-13 978-0-521-85118-3 hardback

ISBN-10 0-521-85118-1 hardback

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Table of Contents

Acknowledgements

This study grew out of the three Hersch Lauterpacht Memorial Lectures given in Cambridge in November 2003. I thankfully acknowledge the encouragement and support of Sir Elihu Lauterpacht, the founder of Cambridge University’s Lauterpacht Research Centre for International Law, and his successors as directors of the Centre, Professor James Crawford SC and Daniel Bethlehem QC.

I have benefited immensely from the constructive criticism and wise counsel of friends who have commented on the lectures and on their development into this volume. Since some of them prefer anonymity, all my expressions of gratitude will remain private.

Authorities

International Treaties and Conventions

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