The International Extension of Denial of Justice
| Published date | 01 November 2022 |
| Author | Jarrod Hepburn |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12743 |
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Modern Law Review
DOI:10.1111/1468-2230.12743
The International Extension of Denial of Justice
Jarrod Hepburn*
Denial of justice arises under customary international law when states prevent foreigners from
accessing domestic courts. Certain states,scholars and arbitrators have maintained that an exten-
sion of the rule against denial of justice applies when states prevent access to international courts
or tribunals. If correct,this extension would impose a signicant control on states’ engagement
with inter national adjudication. However,this article contends that the international extension
of denial of justice is unsupported on any account of custom. A state’s interference with interna-
tional adjudication might be treated as ineective,or it might breach the instrument containing
the state’s consent to the international claim.But this ar ticle argues that it does not, and should
not,also breach the customar y rule on denial of justice.The article therefore aims to clarify both
the customary law in this area and the actual and desirable extent of states’ autonomy in their
engagement with international adjudication.
INTRODUCTION
In classical international law, a State denies justice when its courts are closed to
foreign nationals or render judgments against foreign nationals that are arbitrary.
In modern international law, a State denies justice no less when it refuses or fails
to arbitrate with a foreign national when it is legally bound to do so, or when
it, whether by executive, legislative or judicial action, fr ustrates or endeavors to
frustrate international arbitral processes in which it is bound to participate.1
Denial of justice is most commonly understood as a rule of customary in-
ternational law relating to deciencies suered by aliens in the domestic ad-
ministration of justice within a state. On typical accounts of the rule, denial
of justice arises when judges in a local court are corrupt, biased,unreasonably
∗Associate Professor, Melbourne Law School, Australia. For comments, cr iticisms and assistance,I am
grateful to Farrah Ahmed, Wolfgang Alschner,Lisa Böhmer, Hilary Charlesworth,Damien Charlotin,
Madelaine Chiam, Caroline Henckels, Karen Knop, Joshua Paine, Margaret Young,Tony VanDuzer,
Melbourne Law School’sAcademic Research Service, participants in seminars at Latrobe,Melbour ne,
Ottawa and Toronto, and the anonymous reviewers. All URLs last visited 19 April 2022. Funding
Statement: Open access publishingf acilitated byThe University of Melbourne, as part of the Wiley -
The University of Melbourne agreement via the Council of Australian University Librarians. WOA
Institution: The University of Melbourne. Consortia Name: CAUL 2022.
1 S. Schwebel, Justice in Inter national Law: Further Selected Writings (Cambridge: Cambr idge Uni-
versity Press, 2011) 219.
© 2022 The Authors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1357–1386
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
The International Extension of Denial of Justice
slow, or make manifest errors; when the executive branch interferes in domestic
judicial proceedings or fails to comply with judgments; or when the legislature
bars access to local courts or grants overly-wide immunities to local authorities,
preventing valid claims by aliens.2Examples of these situations abound, in cases
stretching back at least to the mid-1800s.3The rule against denial of justice at
the domestic level is now a well-accepted part of the customary international
law minimum standard of treatment of aliens.
The quote above,however,suggests that, in ‘modern’ international law, there
is an extended understanding of denial of justice.In this modern extension, de-
nial of justice covers not only mistreatment in local courts but also mistreatment
in – and in particular, refusal of access to – international tribunals.4Thus, on this
view, where a state takes actions that prevent a foreigner from commencing or
continuing an international claim to which the state had previously consented,
the state commits a denial of justice, alongside whatever other breach of inter-
national law was to be alleged in the prevented claim.5In another formulation
of the modern extension, denial of justice arises whenever a state ‘prevent[s] a
foreign party from pursuing its remedies before a[n international] forum … on
the availability of which the foreigner relied in making investments explicitly
envisaged by the state’.6
The putative international extension of denial of justice was ‘famously ar-
gued’7in the inaugural Hersch Lauterpacht Memorial Lecture, published by
Stephen Schwebel in 1987 (on which the epigraph above draws).8That lecture
remains the canonical and most extensive consideration of the topic to date.The
argument did not strike most contemporaneous reviewers of Schwebel’s lecture
2 C. Focarelli, ‘Denial of Justice’ (Max Planck Encyclopedia of Public International Law,online)
at [11]-[28].
3 See for example J. Paulsson, Denial of Justice in International Law (Cambridge: Cambr idge Uni-
versity Press, 2005) xvii-xxii.
4 Dening an ‘international’ tribunal is dicult: C. Brown, A Common Law of International Adju-
dication (Oxford: OUP, 2007) 10. For present purposes, this article follows Schwebel, for whom
the key factor was essentially that a forum other than a domestic court was hearing a dispute
between a state (or state entity) and an alien: S. Schwebel,International Arbitration: Three Salient
Problems (Cambridge: Grotius Publications, 1987) 61, 65-66.
5 The classic wr iters on denial of justice uniformly appear to envisage application to domestic
adjudication only:see for example C. Eagleton,‘Denial of Justice in International Law’ (1928) 22
AJIL 538, 559; G. Fitzmaurice, ‘The Meaning of the Term Denial of Justice’(1932) 13 BYIL 93,
102-105; O.Lissitzyn, ‘The Meaning of the Term Denial of Justice in International Law’(1936)
30 AJIL 632; A. Freeman, The International Responsibility of States for Denial of Justice (London:
Longmans, 1938) 1, 117.
6Himpurna California Energy Ltd vIndonesia (UNCITRAL), Interim Award,26 September 1999
at [184].
7 M.Paparinskis, The International Minimum Standard and Fair and Equitable Treatment(Oxford: OUP,
2013) 210.
8 Schwebel, n 4 above.
1358 © 2022 The Authors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1357–1386
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