Neer Claim (US v. Mexico) digest

Neer Claim (L.F.H. Neer and Pauline Neer [USA] v. United Mexican States) (Oct. 15, 1926) Proceeding before the American-Mexican Claims Commission, constituted under the terms of the General Claims Convention, signed September 8, 1923, in Washington D.C. by the United States and the Mexico. FACTS  Paul Neer lived with his wife (private claimant Fay Neer) near the village of Guanacevi, Durango State, Mexico, where he worked as a mine superintendent.  Nov. 16, 1924, about 8:00 PM – While Paul and Fay were travelling home on horseback, they were stopped by some armed men, who talked to Paul in a language that Fay did not understand, after which bullets were fired and Paul was killed.  Mexican authorities examined Paul's corpse shortly after the incident and found 3 bullets which penetrated his body. The next day, the Guanacevi district judge examined some witnesses, including Fay.  The investigation proceeded; arrests were made, but no one was prosecuted or punished for the death of Paul. The United States of America, representing Fay and her daughter Pauline, now come before the American-Mexican Claims Commission claiming $100,000 in damages for the death of Paul. ARGUMENTS/EVIDENCE (from Commissioner Nielsen’s separate opinion)  UNITED STATES o Among the evidence submitted by the United States were affidavits executed by Fay, a resident of Guanacevi, and an employee of a mining company located in the area. o Their statements allege that the Mexican authorities made no special effort or did not exert great care in investigating the incident, and had the Mexican authorities done so, the culprits could have been found. o USA argues “that there was an unwarranted delay in steps taken to apprehend the persons who killed Neer; that the proceedings of investigation were of such a public character as to put persons implicated in the crime on guard and to enable them to escape; [and] that detectives might have been employed to apprehend the offenders”. o Mexican authorities showed an unwarrantable lack of diligence or intelligent investigation, which amounted to a denial of justice.  MEXICO o The Mexican government submitted, together with their Answer, a record of proceedings carried on before the Judge of the First Instance of Guanacevi. This record shows: that on November 17, 1924, the Judge ordered an investigation into the incident; that on the same day members of the Court inspected the crime scene and the corpse; that the examination of witnesses (including Fay) were conducted over several days; and that arrests were made but such arrested persons were subsequently released for lack of evidence. o Mexico argues that the investigation was conducted in compliance with the forms of Mexican law, and that the efficacy of the law had been proven in the light of experience. ISSUES & RULING 1) The nationality of the claim (Pauline and Fay are American citizens) The commission adopts the principles referred to in an earlier decision (Case of William A. Parker, Mar. 31, 1926) and finds that Pauline and Fay have been American nationals since birth. 2) W/N the Mexican government lacked diligence in investigating and prosecuting the culprits (NO)  While the Commission concedes that the Mexican authorities could have been more enthusiastic in investigating the case, the fact that the only eyewitness of the murder was unable to furnish them any helpful information greatly hampered the investigation and ultimately no suspect was found. “There might have been reason for the higher authorities of the State to intervene in the matter, as they apparently did.” But it is one thing to say that the Mexican authorities could have done better and another thing to say that they were exhibited unwarranted lack of diligence as to make them liable for damages. ON THE CONCEPT OF DENIAL OF JUSTICE; STANDARDS  The Commission recognized the difficulty of precise delineation of state responsibility in cases of a denial of justice to an alien. The problem lay in “determining the boundary between an international delinquency of [the denial of justice] type and an unsatisfactory use of power included in national sovereignty.” Citing Bassett Moore and De Lapradelle and Politis, the Commission conceded the “evasive and complex character” of a denial of justice claim. It therefore refused to lay down a precise formulation for “denial of justice”.  It however, said that the breadth by which the sense of “denial of justice” was taken is immaterial, as it includes governmental acts regardless of whether it was judicial, legislative, or executive.  Thus the Commission confined itself to laying down these standards: o the propriety of governmental acts should be put to the test of international standards o the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful 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.

Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial. CASE AT BAR: The Commission found no evidence in the record to show that Mexico fell short of these standards. On the contrary, it was found that the Mexican authorities promptly (but maybe not enthusiastically) investigated the incident and came up empty-handed [see facts]; neither was it shown that Mexican law made it impossible for the investigating authorities to complete their task. o

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DISPOSITION: Claim disallowed. Commissioner Fred K. Nielsen, separate opinion:  Vattel: “The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her sovereign, to exercise justice in all the places under her jurisdiction, to take cognizance of the crimes committed, and the differences that arise in the country.” Other nations must respect this right of the individual state to investigate and prosecute crimes within its jurisdiction.  However, it must be recognized that the domestic law and the measures employed to enforce it must conform to international law. Failure to meet such requirements is a failure to perform a legal duty, and is hence an international delinquency. Strict conformity with the domestic law is important, but not conclusive evidence that state action was in conformity with the legal duties imposed by international law.  Commissioner Nielsen concurs with the majority’s broad conception of “denial of justice”, which includes all governmental acts (legislative, executive, or judicial). In the case at bar, the functions performed by the Judge of Guanacevi were not strictly judicial but were more in the nature of the duties of a police magistrate.  “[I]t is probably not so very difficult to formulate a practicable and sound standard by which to test the propriety of intervention or the right of a nation to claim pecuniary reparation in any given case.”  The propriety of governmental acts should be determined according to ordinary standards of civilization, even though standards may differ among states. A demand for redress based on a denial of justice is justified when the treatment of an alien reveals an obvious error in the administration of justice, or fraud, or a clear outrage.  Commissioner Bertinatti (in the Medina case [Costa Rica v. USA]): ◦ “It being against the independence as well as the dignity of a nation that a foreign government may interfere either with its legislation or the appointment of magistrates for the administration of justice, the consequence is that in the protection of its subjects residing abroad a government, in all matters depending upon the judiciary power, must confine itself to secure for them free access to the local tribunals, besides an equality of treatment with the natives according to the conventional law established by treaties.” ◦ "Only a formal denial of justice, the dishonesty or prevaricatio of a judge legally proved, 'the case of torture, the denial of the means of defense at the trial, or gross injustice, in re minime dubia', may justify a government in extending further its protection."  There may be considerable and honest differences of opinion with regard to the character of governmental acts, but an international tribunal may be guided by the standard that an award for damages on a denial of justice is proper “only on the basis of convincing evidence of a pronounced degree of improper governmental administration”.  While claims commissions have awarded damages for neglect to prosecute crimes or to prevent their commission (de Brissot case and Poggioli case), Commissioner Nielsen finds that there is not enough evidence on the record to hold that there has been a denial of justice by the Mexican authorities. He reiterates the majority opinion that it is one thing to say that the Mexican authorities could have handled the matter more competently and another thing to say that they were exhibited unwarranted lack of diligence as to make them liable for damages.