DENIAL OF JUSTICE IN INTERNATIONAL LAW

Vol. 16 No. 6 (June, 2006) pp.479-481

DENIAL OF JUSTICE IN INTERNATIONAL LAW, by Jan Paulsson. Cambridge, UK and New York: Cambridge University Press, 2005. 306pp. Hardback. $90.00/£50.00. ISBN: 0521851181.

Reviewed by Mark J. Harris, Department of Jurisprudence and Social Policy, University of California, Berkeley. Email: mjh [at] berkeley.edu

Arising from a series of lectures at the University of Cambridge, DENIAL OF JUSTICE IN INTERNATIONAL LAW does a remarkable job of illuminating a cause of action which has not received in depth scholarly attention since 1938 (a summary of the presentations at the Sir Hersch Memorial Lectures, University of Cambridge, 2003 can be found online at: http://lcil.law.cam.ac.uk/lectures/hersch_lecture_2003_sum.php ). That cause of action, “denial of justice,” originated in a medieval tradition of armed reprisal when a State subject was wronged abroad. In our time, this has come under the penumbra of State responsibility: “a State incurs responsibility if it administers justice to aliens in a fundamentally unfair manner” (p.4). Jan Paulsson makes the case that denial of justice has become much more important in a world where international fora are no longer the exclusive province of State representatives, but also include NGOs and individuals.

The book will be of most interest to students and practitioners of international law, legal historians, and perhaps those social scientists interested in legal and other normative regimes embedded in international dispute resolution. In the legal realm, this book-length treatment of a single cause of action will serve those interested in the development of customary international law, commercial arbitration, human rights jurisprudence, and the relationship of tribunals to the permanent institutions of international justice.

Chapter One is an introduction to the grounds of denial of justice in customary international law and is a lucid example of how those kinds of arguments are made. Customary international law can be a difficult issue for law students to comprehend, and this chapter serves as an excellent illustration, perhaps as supplementary reading to a traditional curriculum.

Chapter Two traces the conceptual development of the delict from the Middle Ages to the present day and will be of most interest to those in legal history. It also includes a fascinating discussion of the Calvo Doctrine and Calvo Doctrine Clauses, and their development in an era when States used military might to enforce international

judgments. As Paulsson notes, “Experience of the delict of the ‘denial of justice’ in the 19th century was so closely associated with the use of international force that it was viewed by the weak as a menace to be resisted” (p.20).

He explains that Calvo Doctrine Clauses can be understood as a condition of entry into a country for the purposes of, say, investment: a foreigner contractually [*480] waives his or her recourse to international fora. Nowadays those clauses can preclude pursuing municipal claims in that country, but it is now accepted law that these clauses cannot preclude claims of international scope such as denial of justice.

Next Paulsson analyzes three modern developments in international law that have made denial of justice more salient. They are: State responsibility for judicial conduct; the imputing of State responsibility to the action of all State nonjudicial officials or entities; and the dramatic increase in access to international law by individuals.

Chapter Four deals with conceptual ambiguities at the heart of denial of justice. Paulsson convincingly argues here that much uncertainty has resulted from confusing the bviously vague idea of “denial of justice” with its relevance to today’s disputes.

DENIAL OF JUSTICE then moves from the general to the specific. Chapter Five details the modern exhaustion of local remedies rule. Indeed, denial of justice is, in the words of one cited commentator, “as central to the study of the local remedies rule as is the Prince

of Denmark to HAMLET” (p.2). It is not clear, if this is so, why the delict has been ignored for so long, and unfortunately Paulsson does not discuss exactly why this gap in the literature should exist. He goes on to analyze instances of executive and legislative interference with international judgments, the denial of justice perpetrated by adjudicators themselves (e.g., refusing to judge, unreasonable delay, violations of due process), and remedies.

Chapter Nine moves from the legal specificities to the political context and implications of Paulsson’s analysis, and this section is especially well done. He analyzes historically the political tensions engendered by commitment to international law and adjudication, contrasting American respect for international law in the past with trends of the current political climate. Indeed, his critique of the neoconservative distaste for international legal procedures and norms will be a pleasure for anyone committed to strengthening the international machinery of dispute resolution. Noting that as of 1909 the United States had no fewer than 12 Supreme Court cases referred to international tribunals, “six of them reaching opposite results, all of them [were] complied with by the US government” (p.257).

It may be lost on the current administrations of the US and UK, but Paulsson’s analysis of a singular international delict shows us that national self-interest and international cooperation are not contradictory. Rather, they are intertwined, and in any analysis beyond the exigencies of the present moment, are almost always one and the same.

“These echoes of history,” he explains, “may suggest that respect for international adjudication is not a dangerous adventure sponsored by the naive, nor a betrayal of sovereignty fomented by the concupiscent, but the rediscovery of an old virtue of national [*481] restraint arising from the recognition of an international community of interests…True, this virtue may often prove powerless against unilateralist expediency and calculation. True, there may be disheartening periods in international life when the flame flickers feebly. . . To obtain the benefits and protections of a community, one must accept some restraints. This is not a matter of good faith or idealism, but of insight” (p.260).

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