PAIL Institute Publications

PAIL Institute Monograph Series

International Law, National Tribunals, and the Rights of Aliens

Author(s): Dawson, Frank G., and Ivan L. Head

Hardcover - 334 pages (1971)
ISBN: 0-8156-2152-3; LC: 76-155828

Current Price: US $45.00

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About This Publication

Due to the twentieth-century revolution in transportation, communication, and international business, more individuals now travel and reside outside their own nations than ever before. As a result, the alien is no longer quite the object of distrust that he was in the past. Nevertheless, he still is, by virtue of his presence in the host country and his relationships with its people and institutions, subject to a wide variety of legal prescriptions of which he may be only vaguely aware, and which may have philosphical bases quite distinct from those of the legal system of his own nation. International law confirms the alien's dependence upon local legal systems, by requiring that he seek relief in local courts before appealing to the diplomatic protection of his home state.

Thus, modern travel and business techniques combine with traditional international law to make acutely relevant to us all the quality of justice obtainable by aliens aborad. Since judicial practice varies in different countries, and because political considerations intrude into the courtroom in many siuations, the authors have examined the written law in 25 of the leading countries representing the world's major legal systems. They then visited those countries to observe how these laws work in practice. African, Latin American, Asian, and European countries were studied, as well as Great Britain, Canada, and the United States. In none of these nations does procedural legislation discriminate directly against foreigners purely on a basis of their alienage. Nevertheless, even if access to courts and tribunals is granted, the alien could still be disadvantaged or his rights under international law impaired either by the physical environment in which the legal process must function, or by strict application of local procedural rules incompatible with transnational litigation.

The results of this study will be of great interest to individuals and business organizations alike. Company officials seeking a realistic evaluation of the judicial hurdles facing their operations in foreign countries, and international lawyers representing corporate and individual clients will find it a handy and concise treatment of the major legal as well as nonlegal problems confronting the enforcement of rights of aliens in foreign countries.

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About The Author(s)

Frank G. Dawson . . ..

Ivan L. Head is a native of Calgary, educated at the University of Alberta and at Harvard University. Following several years practising law in Calgary, he entered the Dept. of External Affairs, serving in Ottawa and Kuala Lumpur. Subsequently he became professor of law at the University of Alberta prior to serving in the Prime Minister's Office as foreign policy adviser to former Prime Minister Pierre Trudeau from 1968-1978. In 1978, he was appointed president of the International Development Research Centre. He joined the faculty of UBC in 1991 where he is professor of law and chair in South-North Studies. He is the recipient of honorary doctorate degrees from universities in Canada and abroad. Among his many publications are The Canadian Way: Shaping Canada's Foreign Policy 1968-1984, co-authored with Pierre Trudeau, and On a Hinge of History: The Mutual Vulnerability of South and North.

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Reviews

Leigh, George Washington Law Review
"This tenth volume in the Procedural Aspects of International Law Series which was conceived, planned and inaugurated ten years ago by Professor Richard B. Lillich, is, like its predecessors, a valuable addition to the meager literature available on the procedural difficulties arising when aliens are subjected to the jurisdiction of national courts. . . . In many ways the present volume. . . is the most ambitious effort to date in this series."

Suratgar, Journal of Maritime Law and Commerce
"[The authors] are to be congratulated on having produced the first study on this subject and having conveyed to the readers the flavor of excitement and challenge which they clearly felt in tackling this uncharted area of international law. It is a fresh and exciting book to read and at the same time is most informative. . . . This book constitutes a first excellent attempt to correlate the primary material necessary to any scholarly effort to establish comparative standards or general principles against which one can evaluate the adequacy of the available local remedies and rules of procedure in a particular country. . . . This is an essentially practical guide to the types of difficulties which may hamper effective use of national tribunals by aliens either as plaintiffs or defendants. Chapter V is particularly helpful. . . [and] alone justifies the purchase of the book by lawyers counselling businessmen engaged in maritime and international sales contracts."

Gordon, New England Law Review
"The authors have performed a valuable service in summarizing the protections and procedures available to aliens in various countries."

Christol, Santa Clara Lawyer
"The authors have provided some basic practical guides to those engaged in transnational litigation on behalf of the rights of alien clients. They have pointed one way to the enlargement of human rights. Of equal importance has been their noticing that much more remains to be done in the collection, formulating, and dissemination of the procedural laws and the multitude of dispute-resolving processes and practices of States."

Higgins, Harvard International Law Journal
"The particular strength of this book is its identification of the trouble spots likely to be encountered when pursuing legal remedies. . . . [T]he authors have made sound recommendations for the improvement of municipal legal systems and the enhancement of their role in the international legal order. . . . [O]ne must praise the authors' awareness of the futility of attempting to solve legal problems without also taking into account underlying social, economic, and political conditions."

de Vries, Virginia Journal of International Law
"As a richly assorted grab-bag, its comparative chapters range from problems of security for costs, legal aid, jurisdiction of courts, to enforcement of foreign judgments and arbitral awards with an excellent chapter on the key question of remedies against governmental action, particularly in Latin America. . . . Student, scholar and practitioner will find this a stimulating, rewarding introduction to the problems of effective protection of persons and property through recourse to foreign tribunals."

Hyde, American Journal of International Law
"[A] helpful introduction for the practitioner in determining what the important questions are requiring consideration when contemplating litigation abroad."

Rovine, Cornell Law Review
"[T]he Dawson and Head study . . . constitutes a very valuable contribution. The authors have written a highly readable analysis of the procedural rights, obligations and problems of aliens before national tribunals. . . . There is no doubt that in a decentralized world community, local procedural due process is crucial to the development of a rational structure of international transactions and to the free flow of peoples, goods, and investments throughout the world. The authors have contributed much to the building of that structure."

McRae, The Canadian Yearbook of International Law
"[U]seful addition to the literature in the field of the protection of aliens."

Turack, Capital University Law Review
"Throughout, the authors have thrown light on the pitfalls and have shown the nexus between legal and extralegal problems undermining effective judicial due process ultimately giving rise to international conflict. They have easily imparted to the reader the underlying State and regional conditions, and the realities or present practices. Their sound recommendations can only further international cooperation and goodwill if implemented."

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Availability

International Law, National Tribunals, and the Rights of Aliens is available from:

William S. Hein & Co., Inc.
1285 Main Street
Buffalo, NY 14209

(716) 882-2600
(800) 828-7571 (toll free)
(716) 883-8100 (fax)
e-mail: mail@wshein.com
website: http://www.wshein.com/
Hein Item #: 306530

International Law, National Tribunals, and the Rights of Aliens is also available from Amazon.com.

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Table of Contents

	Editor's Foreword				vii
	Preface				xi
I.	Diplomatic Protection and Procedural Due Process in Foreign Tribunals Prior to 1945				1
II.	The Challenge of New Perspectives After 1945				27
III.	Extralegal Problems Which May Intrude Upon the Judicial Process				57
	The Effect of Political Relations and Economic Disparity Between the Alien's Nation and the Host State				60
	Nationalism and Xenophobia in Developing Countries				67
IV.	Political and Economic Instability as They Affect Legal Institutions				79
	Constitutional Safeguards of Fundamental Rights				79
	The Independence of a Well-Functioning Judiciary as a Safeguard of Fundamental Rights				93
	Strengthening the Judicial Systems of Developing Countries				103
V.	Access by Aliens to Foreign Tribunals				109
	Constitutional Guarantees and Special Legislation				114
	Judicial Codes, Treaties, and International Agreements				119
	Security for Costs, Suits in Forma Pauperis, and Legal Aid				135
VI.	Problems Encountered by Aliens in Litigation				159
	General Civil Law Procedure: The Latin American Experience				160
	Jurisdiction, Service of Process, Time Periods, and Default Judgments				170
	International Legal Assistance				183
VII.	Protection Against Governmental Action				193
	Governmental Liability to Suit and Review of Administrative Activity				193
	Governmental Liability to Suit for Actions Infringing Upon Property Rights				231
VIII.	Special Problems Encountered by Aliens in Enforcing Foreign Remedies				249
	Exchange Controls				249
	The Recognition and Enforcement of Foreign Judgments				256
	International Agreements and the Enforcement of Foreign Judicial and Arbitral Awards				278
IX.	Techniques for Achieving Minimum Standards of Procedural Justice in National Tribunals				291
	National Tribunals as Agents of the International Order				292
	Inadequacies in Formal Legal Machinery				295
	Inadequacies of the Political, Economic, and Social Environment Within Which Legal Machinery Must Function				302
	Conclusion				310
	Index				313