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justice" to an alien. However, the term has been tribunal on the same basis as nationals. 65
employed in a variety of meanings. These include: (1) any d. Erroneous Decisions. It appears to be well settled
treatment of an alien that violates international law, (2) that mere error in a decision does not constitute a denial
treatment of an alien that departs from generally accepted of procedural justice. The injustice in question must be
standards of substantive law, (3) treatment of an alien that egregious. Indeed, the decision must be "so obviously
departs from generally accepted standards for the conduct wrong that it cannot have been made in good faith and
of legal proceedings, (4) failure to afford an alien an ade- with reasonable care," or "a serious miscarriage of
quate remedy or protection in the administration of justice." 66
justice, (5) failure to prosecute the perpetrator of a crime 7-13. Injury to Economic Interests of Aliens. a. Scope.
causing injury to an alien, or (6) failure to provide an ade- The subject matter of this secion deals primarily with the
quate domestic remedy for an injury to an alien for which "nationalization problems;" that is, state action affecting
the state has international responsibility. The rules in aliens' property or economic interests. Prior to the First
Restatement, Second, on this subject deal with these World War, expropriations involving foreign property
different types of injury to an alien but use the term holders were infrequent. In 1917 the Russian revolution
"denial of justice" only in the modified form, "denial of ushered in the problem of nationalization of all private
procedural justice," which is confied to the third and property by Communist states. The Mexican land and oil
fourth meanings indicated above. 61 The sixth meaning expropriations ushered in the problem of underdeveloped
referred to is related to the procedural requirement that an nations seeking to change the status quo in regard to
injured alien must exhaust his domestic remedies in the foreign control of important segments of the economy.
foreign state before the state of which he is a national may The patterns of diplomatic action in theevent of ex-
assert a claim on the international plane. 62 propriation were also set during this period. Diplomatic
6. Arrest and Detention. Restatement, Second, 8 179 protests and representations were fust made. If local
deals with arrest and detention in the following manner: remedies proved insufficient, claims were referred to ar-
(1) The mest of an alien is a denial of procedural justice if bitrators or special commissions or held for further
(a) he is not informed of the cause of the arrest, or negotiation. Since the end of the Second World War, ex-
(b) the arrest is for a cause not recognized as justifying arrest propriations have increased, with the most widespread ex-
under the international standard of justice. propriations occurring in countries which adopted com-
(2) The detention of an alien constitutes a denial of procedural- munism. Agreements on lump sums to settle claims aris-
justice if he is not, without unreasonable delay, ing from expropriations have been reached with
(a) informed of the charges against him, Yugoslavia, Poland, Bulgaria, and Rumania. Some of the
(b) afforded access to a tribunal or other authority having juris- claims against Czechoslovakia and Hungary have been,
diction to determine the lawfulness of his detention and to paid out of funds established from assets of those coun-
order his release if such detention is unlawful, tries in the United States. The problem of obtaining com-
(c) permitted during detention to communicate with a repre- pensation from Cuba and the Peoples' Republic of China
sentative of his government, is being held in abeyance.
(d) afforded aaxssto counsel, or b. Current Practice. The existing international jurispru-
(e) granted a trial.
dencial system is under great stress in this particular area.
(3) Mistreatment of an alien in the course d mest or during de- As can be seen, the nationalization problem is an old one.
tention is a denial of procedural justice.
However, it has become more acute as states, particularly
hest and detention are also covered in the U.N. Cove- new and developing ones, embark upon various types of
nant of Civil and Political Rights. 63 Additionally, certain social experimentation.
rights of an accused are specifically guaranteed in U.S. 7-14. Expropriation and Nationalization of Alien-
Owned Property. a. General Principles. As Mr. Justice
Treaties of Friendship, Commerce and Negotiation. 64
Harlan observed in Bance Nacional De Cuba v. Sab-
c. Denial of Trial. Denial of a trial for the determina-
batino:67
tion of an alien's right is an obvious form of denial of
procedural justice. Indeed, this is viewed by the great ma-
65. The concept of procedural due process would seem to require
jority of those states which deny the existence of an inter- the grant of a trial to determine what rights an alien has. Aliens are
national standard of justice as the only possible denial of usually guaranteed access to a court or other tribunal on the same basis
procedural justice. Accordingly, intemational agreements as nationals by international agreements. See, e.g., Friendship, Com-
merce and Navigation Treaty with the Netherlands, March 27, 1956,
commonly guarantee reasonable access to a court or other Art. V(1), 8 U.S.T. 2043, T.I.A.S. No. 3942; American Declaration of
the Rights and Duties of Man; Art. XVIII (1948), 43 Am. J. Int'l L.
61. Resutement, supra, note 11 at 4 165, comment c. Supp. 133, 136 (1949).
62. Id. 66. Resutemenr, supra, note 11 at 4 182, comment a. See also Her-
63. 21 U.N. GAOR Supp. 16, at 52-58, U.N. Doc. A/6316 (1966). rera v. Canevaro and Co. [1927-281 Ann.Dig. 219 (Sup. Ct. Peru).
64. See, e.g., Treaty with Greece, August 3, 1951, art. IV(2). 67. Banco Nacional de Cuba v. Sabbantino, 376 U.S 398, 428-29
[I9521 5 U.S.T. 1829, T.I.A.S. No. 3057. (1 964).