United States (Neer and Neer)vs

Mexico

United States for the Neers:

• Unwarranted lack of diligence or unwarranted lack of intelligent investigation in prosecuting the culprits

Points to consider:

• Paul Neer was murdered in Mexico on the evening of 16 November 1928.

• After the killing of Paul Neer had been brought to their notice on the morning after, the authorities addressed the matter by conducting a proper investigation.- turned out to be futile; unable to gather any helpful information from the single eye witness

General Claims Commission:

• “There is a long way between holding that a more active and more efficient course of procedure might have been pursued, on one hand, and holding that this record presents such lack of diligence and of intelligent investigation as constitutes an international delinquency, on the other hand.”

• International delinquency vs an unsatisfactory use of power included in national sovereignty

- John Bassett Moore- De Lapradelle and Politis

• Denial of Justicea) The propriety of government acts should be put to the test of international standardsb) The treatment of the alien should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and partial man would readily recognize its insufficiency.

• “In the light of the entire record in this case, the Commission is not prepared to hold that the Mexican authorities have shown such lack of intelligent investigation in apprehending and punishing the culprits as would render Mexico liable before this Commission.”

General Claims Commission:

Mexico (Garcia and Garza)vs

United States

Mexico:

• The US is liable for a wrongful killing by one of its officials.

• And for denial of justice

Points to consider:

• A little girl was killed while she and her family were crossing the river/ border to get to the US

- purpose: to import barrels of a native liquor called “mescal”- suppositions as to atrocious acts they might have been perpetrating we mere inferences

• Delinquency: Crossing the river

• “At a hidden point on the border”- committed during broad daylight

• The Lieutenant tried to reach them so he wouldn’t not have to fire at them.- unable to get to them; instantaneous decision to fire at them

• The firing took place in such a dangerous way- statement of officer

• The officer had be court-martialed and ordered dismissed from the service but the President of the United States reversed the decision.

Points to consider:

General Claims Commission:

• Main issue: Whether, under international law, the American officer was entitled to shoot in the direction of the raft in the way he did.

- Whether there exists among civilized nations any international standard concerning the taking of human life.

• To justify shooting at the border:a) the act of firing, always dangerous in itself, should not be indulged in unless the delinquency is “sufficiently well stated”b) it should not be indulged in unless the importance of preventing or repressing the delinquency by firing is in reasonable proportion to the danger arising from it to the lives of the culprits and other persons in the neighborhoodc) it should not be indulged in whenever other practicable ways of preventing or repressing the delinquency, might be availabled) it should be done with sufficient precaution not to create unnecessary danger, unless it be the officer’s intention to hit, wound, or kill

• *** “A proportion between the supposed delinquency and the endangering of lives is therefore not established by the record.” ***

• “There should be a convincing evidence that, put to the test of international standards, the disapproval of the sentence of the court-martial by the President acting in his judicial capacity amounted to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. None of these insufficiencies appear from the record.”

General Claims Commission:

United States ( North American Dredging Co.)

vsMexico

Point to consider:

• Claim was filed on behalf of the North American Dredging Co. of Texas for the recovery of allegedly losses and damages resulting from a breach of contract concluded between the company and the Government of Mexico City.

Mexico:• Raised the Calvo Clause in their contract, moving to dismiss the claim

for want of jurisdiction of the General Claims Commission.- The Calvo Doctrine is a foreign policy doctrine which holds

that jurisdiction in international investment disputes lies with the country in which the investment is located. The Calvo Doctrine thus proposed to prohibit diplomatic protection or (armed) intervention before local resources were exhausted. An investor, under this doctrine, has no recourse but to use the local courts, rather than those of their home country. As a policy prescription, the Calvo Doctrine is an expression of legal nationalism.

• - “..under no conditions shall the intervention of foreign diplomatic agents be permitted in any matter related to this contract.”

General Claims Commission:

• Possible without violating any rule of international law?- “The Calvo clause in a specific contract is neither a clause which must

be sustained to its full length because of its contractual nature nor can it be discretionarily separated from the rest of the contract as if it were just an ordinary postscript.”

• ..unless!!- “The present stage of international law imposed upon every international tribunal the solemn duty of seeking for a proper and adequate balance between the sovereign right of national jurisdiction, on one hand, and the sovereign right of national protection of citizens on the other.”

- Alien may make promise to seek redress in the locality of the business but his the government of his nation is not precluded from applying international remedies for violations of international law committed to his detriment.- No set formula. - Based on the merits of each case.- Claimant signed an agreement (promise) that he would not seek his government to intervene on his behalf.

• Decision: The case is not within the jurisdiction of the Commission.

General Claims Commission: