¹ De Visscher, , “Le déni de justice en droit international,” 52 Recueil des Cours 369 (1935 II).Google Scholar Cf. Dunn, , The Protection of Nationals 147 (1932).Google Scholar

² Lissitzyn, , “The Meaning of the Term Denial of Justice in International Law,” 35 Am. J. Int’l L. 632, at 646 (1936).CrossRefGoogle Scholar

³ See generally Spiegel, , “Origin and Development of Denial of Justice,” 32 Am. J. InflL. 63 (1936).Google Scholar

⁴ The classic work on the subject is Freeman, A., International Responsibility of States for Denial of Justice (1938).Google Scholar

⁵ Ibid.

⁶ One writer had observed that denial of justice “is perhaps the most frequently used term in the whole vocabulary of the law of diplomatic protection, and one that is the least understood. The high emotional content that the word ’justice’ carries with it seems to shut off all conscious intellectual process of dealing with the term. One is impressed with the mental paralysis that seems to follow upon the mere pronouncement of the term ’denial of justice’ in connection with a particular situation”: Dunn, op. cit. supra note 1, at 147.

⁷ Garcia-Amador, F.V., Sohn, Louis B., and Baxter, R.R., Recent Codification of the Law of State Responsibility for Injuries to Aliens 180 (1974) (hereinafter cited as Recent Codification).Google Scholar

⁸ Ibid.

⁹ Ibid.

¹⁰ De Visscher, op. cit. supra note 1.

¹¹ F. Dunn, op. cit. supra note 1.

¹² McDougall, , Laswell, , and Chen, Lung-chu, “The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights,” 70 Am. J. Int’l L. 432, 434 and n. 8 (1976).CrossRefGoogle Scholar

¹³ See infra, 86–90. In putting the discussion of the doctrine in proper perspective, this paper has unavoidably mentioned the rule of exhaustion of local remedies, infra notes 16 and 17; the traditional law of diplomatic protection, infra note 19; the concept of equality of states, infra notes 20 and 23; and the principle of minimum standard of justice for aliens, infra note 32.

¹⁴ In customary international law, “responsibility of states for damage or injuries done in their territory to the person or property of aliens” was essentially designed to provide adequate protection for the aliens so as to encourage and facilitate travel, trade, and other forms of intercourse. The law became bound up with two opposing doctrines: the principle of “international standard of justice” expounded by the capital-exporting nations (see infra note 32), and the doctrine of “equality of treatment” advanced by the capital-importing nations (see infra note 23). The law is now unsettled and the International Law Commission has been in the process of studying it since 1956.

For an overall review of the protracted effort of the International Law Commission to clarify and codify the law of state responsibility, see the reports of Garcia-Amador, F.V., its special rapporteur: First Report, [1956] 2 Google Scholar Y.B. Int’l L. Comm’n 173–231, U.N. Doc. A/CN.4/96 (1956); Second Report, [1957] 2 Y.B. Int’l L. Comm’n 104–30, U.N. Doc. A/Cn.4/106 (1957); Third Report, [1958] a Y.B. Int’l L. Comm’n 47–73, U.N. Doc. A/CN.4/1H (1958); Fourth Report, [1959] 2 Y.B. Int’l. Comm’n 1–36, U.N. Doc. A/CN.4/119 (1959); Fifth Report, [1960] a Y.B. Int’l L. Comm’n 41–68, U.N. Doc. A/CN.4/125 (1960); Sixth Report, [1961] 2 Y.B. Int’l L. Comm’n 1–54, U.N. Doc. A/CN.4/134 and Add. 1 (1961). For more recent developments, see First Report on State Responsibility, by Mr.Ago, Roberto , Special Rapporteur, [1969] 2 Y.B. Int’l L. Comm’n 125–56,Google Scholar U.N. Doc. A/CN.4/217 and Add. 1 (1969) (it deals with “review of previous work on codification of the topic of the international responsibility of States”); Supplement, Prepared by the Secretariat, to the Digest of the Decisions of International Tribunals Relating to State Responsibility, [1969] 2 Y.B. Int’l L. Comm’n 101–13, U.N. Doc. A/CN.4/208 (1969); Proposals submitted to, and decisions of, various United Nations organs relating to the question of State responsibility: supplement prepared by the Secretariat to document A/CN.4/165 [1969] 2 Y.B. Int’l L. Comm’n 114–24, U.N. Doc. A/CN.4/209 (1969). Second Report on State responsibility, by Mr.Ago, Roberto, Special Rapporteur, [1970] 2 Y.B. Int’l L. Comm’n 177–97,Google Scholar U.N. Doc. A/CN.4/233 (1970) (“The origin of international responsibility”). For a recent discussion on the question of state responsibility before the International Law Commission, see [1973] 1 Y.B. Int’l L. Comm’n 5–66 (1202nd meeting to 1215th meeting). See also Kearney, , “The Twenty-Six Session of the International Law Commission,” 69 Am. J. Int’l L. 591, 602–7 (1975).CrossRefGoogle Scholar See also McDougal et al., supra note 12, at 454.

¹⁵ Fitzmaurice, , “The Meaning of the Term Denial of Justice,” 13 Brit. Yb. Int’l L. 93, 94 (1932).Google Scholar

¹⁶ An extensive discussion of the rule of exhaustion of local remedies (ELR) is not within the scope of this paper. The following brief summary may suffice. The rule stands for the proposition that an international claim for reparation of injuries alleged by an alien is not admissible until the alien concerned has exhausted local remedies. It is well established in customary international law: Interhandel case, [1959] I.C.J. Rep. 6. It is essentially a rule of procedure: Pannevesys-Saldutiskis Railway case, P.C.I.J. Ser. A/B, No. 76. It is a favourite preliminary objection, usually raised by a respondent state concerning the admissibility of an international claim brought on behalf of an alien.

Properly understood, the content of the rule requires that the whole system of legal protection of the respondent state is to be put to the test as enunciated in the Ambatielos case, 12 U.N.R.I.A.A. 82 (1956). An alien is to pursue such remedies diligently. The remedies are not limited to judicial remedies only but include all effective remedies which a state may provide for the purposes of redressing the injury to an alien locally.

The traditional case law indicates that the requirement to exhaust local justice has been dispensed with when the local remedies held out are shown to be ineffective: Finnish Ships arbitration, 3 U.N.R.I.A.A. 1481 (1936), or when a denial of justice is shown to have occurred. There are also certain treaties that have specifically dispensed with its requirements. The tendency to abandon the application of the rule was essentially an expression of lack of confidence in the machinery for doing justice in the developing countries. There has been a sharp reaction against this by the developing countries, which have now asserted the power of domestic courts to deal conclusively with all cases involving rights of aliens. For a brief study on an aspect of the rule, see Adede, , “A Survey of Treaty Provisions on the Rule of Exhaustion of Local Remedies,” 18 Harv. Int’l L.J. 1 (1976),Google Scholar and citations therein. Cf. Head, , “A Fresh Look at the Local Remedies Rule,” 5 Canadian Yearbook of International Law 142–58 (1967).Google Scholar

¹⁷ The jurisprudence of the European Commission on Human Rights on the exhaustion of local remedies, as stipulated in Article 26 of the European Convention on Human Rights, reinforces the view that, since there are specific conditions under which the rule has been abandoned or its application suspended without interfering with the substantive claim, it is a rule of procedure relating to admissibility and not one of substance. For a recent study, see Boyle, and Hannun, , “Individual Applications under the European Convention on Human Rights and the Concept of Administrative Practice: The Donnelly Case,” 68 Am. J. Int’l L. 440–53 (1974)CrossRefGoogle Scholar and citations therein.

¹⁸ Recognition of the fact that there were abuses in the traditional law of diplomatic protection is implied in a recent article where the author has appealed for the application of the law in a modern setting in which the “doctrine is stripped of abuses surrounding its use in the past” : Lillich, , “The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law under Attack,” 69 Am. J. Int’l L., 365 and n. 42 (1975).CrossRefGoogle Scholar

¹⁹ Traditional law recognized a state’s right to bring a claim against another state in respect of the injuries to the person or property of its nationals abroad. In the orthodox sense, when a state espouses a claim of its national it is actually protecting its own rights rather than those of the individual. This was stated by the International Court of Justice in the Nottebohm case (Judgment), [1955] I.C.J. Rep. 24, citing the Mavrommatis Palestinian Concession case, P.C.I.J., Ser. A, No. 2, at 12, and Series A/B Nos. 20–21, at 17.

Attempts have now been made to extend the protection of individuals in general, and not only aliens in particular, by the existing International Conventions on Human Rights and Fundamental Freedoms, giving nationals and aliens the opportunity to pursue their own rights through an international proceeding. Dr. F. Garcia-Amador led the way in attempting to assimilate the customary law regarding the treatment of aliens with the human rights guaranteed protection under the Human Rights Conventions for individuals: see Garcia-Amador, , First Report, supra note 14, at 46,Google Scholar found also in Garcia-Amador, F., Principios de Derecho International que Rigen la Responsabilidad 569 (1963).Google Scholar For the most recent, thorough discussion commenting upon the attempt to incorporate the old minimum standard for protection of aliens into those of human rights for individuals, see generally McDougal et al., supra note 12.

²⁰ The Latin American states led the way in finding repugnant the concept of giving aliens special treatment. They took the view that giving aliens treatment better than that accorded to nationals would mean assigning the aliens to a special regime in a host state, thereby creating the political monstrosity of a state within a state. This view was eloquently stated by the Foreign Minister of Argentina in 189a as follows: “Los extranjeros, desde que entran a un pais, se encuentran sometidos a sus leyes y a sus autoridades. Estas leyes no son las mismas en todas partes, pero, cualesquiera que sean, favorables o no al extranjero, obligan igualmente: el extranjero, en consecuencia, para el ejercicio de sus derechos lo mismo que para el de sus acciones civiles o criminales, debe dirigirse como los nacionales a esas autoridades, invocar esas leyes, esperar y respetar las decisiones de dichas autoridades. De otro modo, los extranjeros serian un Estado, dentro del Estado, una monstruosidad politica,” as quoted in Carrera, Luis Creel, Mexico ante la Inversion Extranjera 40 (1966).Google Scholar

In thus rejecting the concept of minimum standard, discussed infra note 32, the Latin American states developed the concept of “equality of treatment”: see infra note 23.

²¹ G. Guerrero, Annex to Questionnaire No. 4, Committee of Experts for the Progressive Codification of International Law, Report of the Sub-Committee, League of Nations Pub. C 196 M.70. 1927V., reproduced in A. Freeman op. cit. supra note 4, at 629–33, the quoted passage at 632.

²² This view was also once espoused by a non-Latin American jurist thus: “Le déni de justice, dans le sens propre du terme implique le refus par l’Etat d’accorder aux étrangers la protection de leurs droits par le recours aux tribunaux … la responsabilité de l’Etat peut, dans des cas d’ailleurs assez rares, se trouver engagée à l’occasion de sentences prononcées par les tribunaux; mais ce n’est plus le déni de justice; il y a justice rendue et non justice déniée” — De Visscher, as quoted in Fitzmaurice, supra note 15, at 101. De Visscher later abandoned his restricted view and adopted a broader view of the term: see De Visscher, op. cit. supra note 1, at 390.

²³ The principle of “equality of treatment” or “national treatment” has been referred to as the “Calvo doctrine” in honour of the Argentinian, Carlos Calvo, who developed it in response to the abuses of the law of diplomatic protection and the principle of the international standard of justice. According to Calvo, “aliens who establish themselves in a country are certainly entitled to the same rights of protection as nationals, but they cannot claim any greater measure of protection”: Calvo, C., 6 Le Droit International 331 (1885, 5th ed.),Google Scholar as quoted in Recent Codification, op. cit. supra note 7, at 3. The Calvo doctrine was endorsed by the First International Conference of American States at Washington (1889-90), where a recommendation was made for the adoption of the doctrine as an American principle of international law; for the text embodying the Calvo doctrine, see Ibid. See “Calvo Clause,” infra note 24. The doctrine has, however, been challenged by many observers: cf. infra notes 47 and 49.

²⁴ The “Calvo clause” essentially compelled an alien to waive his right of diplomatic protection by providing that disputes that may arise in respect of the rights of an alien contractor shall, in no circumstances, lead to an international claim, or else that aliens, natural or juridical, are to be deemed to be nationals of the host state for the purposes of the contract or concession. An example of such a clause may be found in Article 18 of the contract that was in issue in the North American Dredging Company case (United States v. Mexico), Mixed Claims Commission, in 20 Am. J. Int’l L. 800-9 (1926). The “Calvo clause” also found expression in Article VII of the American Treaty of Pacific Settlement of Disputes, Pact of Bogota 1948, in 30 U.N.T.S. 55. at 58.

The United States has constantly challenged the validity of the clause. A thorough analysis is contained in Shea, D., The Calvo Clause: A Problem of Inter-American and International Law and Diplomacy (1955).Google Scholar

²⁵ Quintana, Moreno, Derecho Internacional Publico 170 (1950).Google Scholar

²⁶ Costa, Podestà, Derecho Internacional Publico 443 (1955).Google Scholar

²⁷ The broadest view of the doctrine ever adopted by a Latin American was by the counsel of the government of Cuba in the Cantero-Herrera claim against Peru. The Cuban counsel made the following statement: “…specifically, we would point out the various forms and aspects of refusing to grant justice … : by denying access to the courts, by an undue procrastination in the court proceedings in open violation of the adjective laws of the country, by the non-existence of courts, by want of a sufficient number of officials to dispatch the business of the courts, by not offering proper guarantees due to their use as means of oppression against aliens, or by removing the judges after they have taken cognizance of the cases, or by the excuses of the judges to dictate sentences, or by their handing down of unjust sentences in violation of the substantive laws of the country, or by refusing to comply with the provisions of a law in accordance with the interpretation given by the courts, or by refusing to execute a final sentence, or by amnesty laws protecting crimes to the prejudice of the interests of aliens, or lastly by any other means which deny redress to the injured alien who has suffered in his interests”: see Cantero-Herrera v. The Canevaro Co., relevant sections digested in Freeman, op. cit. supra note 4, at 128-32, the above passage at 132 and n. 3. The fact that Mr. Freeman commented that the Cuban counsel view represented “the most outstanding and encouraging espousal of a sound doctrine of denial of justice,” indicates that he too adopted the unacceptably broad meaning of the doctrine equally rejected here. See comments in relation to notes 34, 35, and 36 infra.

²⁸ As reproduced in Recent Codification, op. cit. supra note 7, at 361.

²⁹ Ibid., 362.

³⁰ Cf. supra notes 34 and 35.

³¹ See infra, 93–94.

³² The capital exporting nations, in their practice of diplomatic protection of nationals abroad, have maintained the position that while every state has the right to treat its own nationals as it pleases, international law imposes upon the state certain obligations, which, under the sanctions of responsibility to the international community, the state is compelled to fulfil with regard to aliens. With a certain amount of dogmatism, the capital exporting states have asserted that there exists a minimum standard of international justice which a state must observe with respect to aliens qua aliens.

The application of the minimum standard principle was to prevent a state from depriving aliens of the right to life, liberty, and security; the right to acquire property, to engage in economic activities, and the right of full protection by all local means of dispensing justice. For a thorough treatment of this subject, see Roth, A., Minimum Standard of International Law Applied to Aliens (1949)Google Scholar; Borchard, , “The Minimum Standard of Treatment of Aliens,” 38 Mich. L. Rev. 445 (1940)CrossRefGoogle Scholar; Borchard, E., The Diplomatic Protection of Citizens Abroad or The Law of International Claims 11–13 (1922)Google Scholar; Gibson, M., Alien and The Law I, (1946).Google Scholar

³³ Hyde, C., International Law Chiefly as Interpreted and Applied by the United States 491–92 (1922).Google Scholar

³⁴ Nielsen, K., American and British Claims Arbitration Tribunal, under Agreement of August 18, 1910, at 198 (1926).Google Scholar An identical position was taken by the United States in the El Triunfo Co. case (United States v. Salvador), which involved the cancellation of a concession through enactment of executive decrees. The action took place about the same time the company was to resort to the local courts in Salvador for the purposes of obtaining relief against certain fraudulent bankruptcy proceedings directed against the company, Scott, and Jaeger, , Cases on International Law 107 (1937)Google Scholar; U.S. Foreign Relations 1903 at 859, and the Cottesworth and Powell case involving amnesty laws by which the Colombian legislature removed appellate remedies for an alien claimant: Moore, , International Arbitrations, 2050.Google Scholar

³⁵ (United States v. Great Britain), K. Nielsen, op. cit. supra note 34, at 250–52.

³⁶ (United States v. Mexico), General Claims Commission 1927, Opinions, 422; 4 U.N.R.I.A.A. 282, 286.

³⁷ 4 U.N.R.I.A.A. 286.

³⁸ See Inter-American Juridical Committee: Contribution of the American Continent to the Principles of International Law that Govern the Responsibility of the State, Text of 1965 Reflecting the View of the United States of America, reprinted in Recent Codification, op. cit. supra note 7, at 363, 364. See also 8 Whitman, , Digest of International Law 727–28 (1967).Google Scholar

³⁹ See infra, 86–90.

⁴⁰ See infra, 85–86.

⁴¹ See American Law Institute, Restatement (Second): Foreign Relations Law of the United States — Responsibility of States for Injuries to Aliens 164–214 (1965).

⁴² Para. 179, ibid., 389.

⁴³ Para. 180, ibid., 390.

⁴⁴ Para. 181, ibid.

⁴⁵ Para. 182, ibid., 391.

⁴⁶ 6 Moore, , Digest 681 (1906)Google ScholarPubMed; also quoted in Freeman, op. cit. supra note 4, at 541.

⁴⁷ Root, , “The Basis of Protection to Citizens Residing Abroad,” 4 Am. J. Int’l L. 531 (1910).CrossRefGoogle Scholar

⁴⁸ Cf. this eloquent rejection of equality of treatment by Anzilotti, who said: “Equality between nationals and foreigners does not signify that the State is free to treat foreigners as it pleases, provided that the same treatment be given to nationals. It only serves to determine the concrete legal situation which foreigners enjoy, by presupposing a recognition of the application of certain fundamental principles, which alone enable States to be contended with this equality, and even not to insist upon it in all cases. The important thing, from the viewpoint of international law, is not equality between aliens and nationals; it is recognition of and respect for these principles. … As they constitute the essential guarantees of modern society’s organization, there is no reason to fear that a State should desire to disregard them towards its own subjects. And it is because of this that many are satisfied with the formula of equality of treatment, which assures to foreigners the enjoyment of a legal status conforming to the principles mentioned. But if it came about that a State, for whatever reason, disregarded them in its relations with its own subjects, its international duty to respect them as against foreigners would continue to exist in all its strength”: quoted in Freeman, op. cit. supra note 4, at 505.

⁴⁹ See also Freeman, op. cit. supra note 4, at 278; cf. Recent Codifications, op. cit. supra note 7, at 190; Brierly, The Law of Nations 287 (6th ed., 1963).

⁵⁰ The Eliza case (U.S. v. Peru), Moore, , International Arbitrations 1630–38.Google Scholar

⁵¹ The Edwards case (U.S. v. Cuba), ibid., 3268–69.

⁵² The Sterling case (Great Britain v. Peru), 66 Brit, and For. State Papers 315–94.

⁵³ The Fabiani case (France v. Venezuela), Moore, , Arbitrations 4877–4951.Google Scholar

⁵⁴ The White case (Great Britain v. Peru), La Fountain, H., Pasicrisie Internationale (Histoire Documentaire des Arbitrages Internationaux) 46–54 (1902).Google Scholar

⁵⁵ The Chattin case (U.S. v. Mexico), 4 U.N.R.I.I.A. 282–312.

⁵⁶ Ibid.

⁵⁷ The Morton case (LT.5. v. Mexico), ibid., 428–35.

⁵⁸ The Farrel case (U.S. v. Mexico), ibid., 658–61.

⁵⁹ The Chevrau case (France v. Great firtiain), ibid., 113–43.

⁶⁰ The Smith case (U.S. v. Cuba), 24 Am. J. Int’l L. 384 (1930).

⁶¹ Vattel, E., Le Droit des Gens (The Law of Nations), 164 (Fenwick, C.G. trans., 1916).Google Scholar

⁶² (Great Britain v. Colombia), Moore, , International Arbitrations 2050.Google Scholar

⁶³ Ibid., 2083.

⁶⁴ See supra notes 50–60.

⁶⁵ Nielson, op. cit supra note 34.

⁶⁶ Supra note 34.

⁶⁷ (United States v. Panama), Hunt, B., American and Panamanian Claims Arbitrations of July 28, 1936 and Dec. 17, 1932, at 500 (1934).Google Scholar

⁶⁸ See text accompanying supra note 32.

⁶⁹ See supra 82–83.

⁷⁰ See passage from the Chattin case, supra 83.

⁷¹ See, e.g., E. Vattel, op. cit. supra note 61, and Podestà Costa, op. cit. supra note 26.

⁷² Brierly, J., The Law of Nations 287 (6th ed., 1963).Google Scholar

⁷³ Fitzmaurice, , “Sir Hersch Lauterpacht — The Scholar as a Judge,” 37 Brit. Y.B. Int’l L. 30 (1961).Google Scholar

⁷⁴ The Driggs case (United States v. Venezuela), Moore, , International Arbitrations 3125.Google Scholar

⁷⁵ The (Second) Martini case (Italy v. Venezuela), 25 Am. J. Int’l L. 554 (1931).

⁷⁶ The De Sabla case (United States v. Panama), B. Hunt, op. cit. supra note 67.

⁷⁷ The Cottesworth and Powell case (Great Britain v. Colombia), supra note 62.

⁷⁸ The Solomon case (United States v. Peru), B. Hunt, op. cit. supra note 67, at 476.

⁷⁹ The Solomon case, ibid.

⁸⁰ Cf. the intermediate meaning explained supra 74.

⁸¹ See cases, supra notes 74–79.

⁸² See the Draft Convention on the International Responsibility of States for Injuries to Aliens, Art. 8, in Garcia-Amador, Sohn, and Baxter, op. cit. supra note 7, at 196. The text merely refers to them as “wrongful” decisions.

⁸³ By sub-paragraph (a), it is not intended that an international tribunal or two states settling a claim through negotiation should act as a court of appeal from the courts of the respondent state, which should normally be considered as the definitive interpreters or declarants of the law of the state. On the other hand, a procedural or substantive decision which is clearly at variance with the law and discriminatory cannot be allowed to establish legal obligations for the alien litigant, even if there is no ill will or corruption. This subparagraph is intended to deal only with obvious mistakes in the administration of the law which operate to the prejudice of aliens. It is not enough that their international arbiter of the claim be persuaded that the result reached by the court of the respondent state was a doubtful one when measured against the law of that state or even that, on balance, the international arbiter would be inclined to reach a different result. The alien must sustain a heavy burden of proving that there was an undoubted mistake of substantive or procedural law operating to his prejudice.

Discrimination between nationals and aliens in substantive rights enjoyed is under certain circumstances fully consistent with international law, if effected by a law of general application. The “discriminatory violation of the law” here referred to is discrimination in the application of the law through judicial or administrative action. It would not be wrongful for a tribunal or an administrative authority to deny a licence to an alien to pursue a particular occupation which might be reserved to nationals or to preclude an alien’s taking possession of real property if aliens are debarred from such ownership. It would, however, be wrongful for a court to deny an alien recovery against a national in an action for breach of contract if the state of the law is clearly such that the recovery would be allowed in an action by a national. The function performed by the word “discriminatory” is more fully described in the Explanatory Note on Article 5 of the Draft Convention, ibid., 182–83.

For the reasons explained in Article 6 of the Draft Convention, dealing with access to tribunals and administrative authorities, the corrupt motives or ill will of the tribunal or administrative authority does not of itself give rise to responsibility, although either may be relevant in the consideration of whether action by a tribunal or administrative authority falls afoul of Article 8.

⁸⁴ Under sub-paragraph (b), international recovery will not necessarily be granted merely because an alien can demonstrate that the decision or judgment rendered in litigation to which he was a party was inconsistent with that which would result from proceedings in the majority of other jurisdictions of the world. Nevertheless, it is recognized that there may be such substantial departures from the generally recognized principles of justice that international intervention may be called for. For example, a decision that an alien should not be allowed to recover damages even though he had admittedly been physically injured by another without justification or excuse would fall below the international standard. It would not, of course, be necessary for an international tribunal or any other arbiter of a claim to determine whether a legal system or individual principles thereof in general fell short of meeting international requirements, but rather whether that system or that principle as applied in the particular case involving an alien resulted in a decision departing clearly from that which would be arrived at by the great majority of mature legal systems. In these cases, the international tribunal or any other arbiter of the claim must be left discretion to determine whether under the special circumstances involved in the case there has been a substantial deviation from justice. To attempt to lay down any standards would require in effect a codification of the ius gentium, the common law of mankind, which would not only be outside the scope of the present project but also a task of supreme difficulty.

⁸⁵ Sub-paragraph (c) takes account of the fact that treaties of amity, friendship, commerce, navigation, and establishment frequently secure special rights to aliens. See, for example, the treaties cited in Whitman, op. cit. supra note 38, at 735.

⁸⁶ See supra 84–85.

⁸⁷ See supra note 48.

⁸⁸ The origin of this resolution is traced back to 1952, when Chile introduced the subject of permanent sovereignty over natural resources into the debates on Human Rights Covenants. The subsequent and much discussed Resolution 1803 (XVII) of December 14, 1962 is not discussed here. For a recent survey and analysis of the resolution, see O’Keefe, , “The United Nations and Permanent Sovereignty over Natural Resources,” J. World Trd. L. 239–82 (1972).Google Scholar

⁸⁹ This is the subject of a recent discussion in Lillich, , “The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law under Attack,” 69 Am. J. Int’l L. 359–65 (1975).CrossRefGoogle Scholar

⁹⁰ Orrego Vicuña, F., “Some International Law Problems, Posed by the Nationalization of the Copper Industry by Chile,” 67 Am. J. Int’l L. 711, 712 (1973).CrossRefGoogle Scholar

⁹¹ Para. 3, U.N. Doc. A/RES/1371 (XXVII) (1974), in 68 Am. J. Int’l L. 381, 382 (1974).

⁹² This was the view expressed in the 1972 U.N.C.T.A.D. resolution 88 (XII) on the same subject of permanent sovereignty over natural resources: see 12 U.N.T.D.O.R., Supp. 5, U.N. Doc. TD/B/423 (1973). For a brief analysis, see U.N.C.T.A.D. : Permanent Sovereignty over Natural Resources, World, J. Trd. L. 376–83 (1973)Google Scholar; Atimomo, , “Natural Resources and the United Nations,” 10 J. World Trd. L. 280–89 (1976).Google Scholar These articles treat the U.N.C.T.A.D. resolution in the context of the Kennecott case which inspired it; for an analysis of the case, see F. Orrego Vicuña, supra note 90.

⁹³ Art. 2(2) (c), U.N. Doc. A/RES/328 (XXIX) (1974), in 69 Am. J. Int’l L. 484, 487 (1975).

⁹⁴ Cf. Lillich, supra note 89.