No State is obliged to admit aliens into its territory unless there is a treaty requiring it Generally, it is difficult to deny admission to all; Hence, States impose legal standards for admission Once admitted, at least under democratic regimes, aliens may not be expelled without due process States protect aliens within their jurisdiction in the expectation that their own nationals will be properly treated when residing or sojourning abroad Forms of ill-treatment of foreign nationals: a. Mistreatment by judicial or police authorities b. Unlawful expropriation of property c. Denial of justice or denial of due process of law failure to prosecute those who attack foreign nationals Diplomatic protection the instrument used for the protection of aliens o Injury to a national abroad = injury to the individuals State of nationality o The interest of the State is in the redress of the injury to itself and not of the injury to the individual o Individuals are at the mercy of their own State Corporations and Shareholders The doctrine of effective link Barcelona Traction Case Facts: The claim arose out of the adjudication of bankruptcy in Space of Barcelona Traction, a company incorporated in Canada. The claims object was to seek reparation for damage suffered by its shareholders, Belgian nationals, as a result of acts committed contrary to international law. Held: The Court found that Belgium lack jus standi to exercise diplomatic protection of shareholders in a Canadian Page 1 of 6
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company with respect to measures taken against that
company in Spain. The breach, if any, was committed against the company, hence, only the company could take action. Whenever a shareholders interests are harmed by an act done to the company, it is to the latter that he has to look to institute appropriate action. As to who should have the right to protect the corporation, it is the State of Nationality of the corporation, in this case, Canada. Standard for the Protection of Aliens Under the Roman Law 1. Jus gentium applicable to both citizens and aliens 2. Jus civile applicable only to Roman citizens In modern times 1. National treatment or Equality of treatment aliens are treated in the same manner as nationals o Bright side: aliens would enjoy the same benefits as local nationals o Dark side: if the State is tyrannical and its municipal laws are harsh and violative of human rights, then aliens would likewise be subject to such laws. 2. Minimum International Standard however harsh the municipal laws might be, aliens should be protected by certain minimum standards of humane protection. Neer Claim Facts: Mr. Neer, a US national working in Mexico, was shot to death. It was claimed that the Mexican government had been negligent in their investigation of the murder. Held: Treatment of an alien, in order to constitute an international delinquency should amount to an outrage, bad faith, 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. Denial of Justice Harvard Draft Convention on the Responsibility of States for Damages Page 2 of 6
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Art. 9. Denial of Justice exists when there is (DUG-FM)
a. Denial b. Unwarranted delay or obstruction of access to courts c. Gross deficiency in the administration of judicial or remedial process d. Failure to provide those guarantees which are generally considered indispensable to the proper administration of justice e. Manifestly unjust judgment but error of a national court which does not produce manifest injustice is not denial of justice Enforcement Regimes Who can resolve issues of violations of the rights of aliens when appealed to by States in conflict? 1. International Court of Justice 2. Ad-hoc tribunals established for the purpose a. US-Iran Claims Tribunal b. UN Compensation Settlements 3. Lump-sum Settlements (Claims Settlement Agreements) a. US-Cambodia b. US-Vietnam DOCTRINE OF STATE RESPONSIBILITY When an injury has been inflicted, there is need to determine whether the State can be held responsible for it Internationally wrongful act committed when a State violates a customary rule of international law or a treaty obligation What needs to be understood? 1. Elements of an internationally wrongful act 2. Attributability of the wrongful act to the State 3. Enforcement of the obligation that arises from the wrongful act INTERNATIONALLY WRONGFUL ACT No State can escape this responsibility when once it has committed an act which satisfies the requirements of an internationally wrongful act Page 3 of 6
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Elements of Internationally wrongful act:
1. Subjective act must be attributable not to the persons or agencies who performed it, but to the State itself 2. Objective act constitutes a breach of an international obligation of the State What determines the wrongful character of the act is international law and not internal law
ATTRIBUTION TO THE STATE
1. Acts of State Organs a. Acts of any State organ whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds, and whatever its character Organ includes any person or body which has that status in accordance with the international law of the State b. Conduct of an entity which is not an organ of the State but which is empowered to exercise elements of governmental authority provided the entity was acting in that capacity in the case in question c. Conduct of an organ placed at the disposal of a State by another State acting in the exercise of elements of governmental authority of the State at whose disposal it had been placed d. Conduct of a State organ or of an entity empowered to exercise elements of governmental authority, such organ or entity having acted in that capacity, exceeding its authority or contravening instructions concerning its exercise CAIRE CLAIM Facts: Caire, a French national, was killed in Mexico by Mexican soldiers after they had demanded money from him. Issue: w/n Mexico is responsible for actions of individual military personnel acting without orders or against the wishes of their commanding officers Held: Objective responsibility of the States
responsibility for the acts of the officials or organs of a
State, which may devolve upon it even in the absence of any fault on its own It tends to impute to the State, in international affairs, the responsibility for all the acts committed by its officials or organs which constitute offenses from the point of view of the law of nations, whether the official or organ in Page 4 of 6
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question has acted within or exceeded the limits of his
competence. In order to be able to admit this so-called objective responsibility of the State for acts committed by its officials or organs outside their competence, they must have acted at least to all appearances as competent officials or organs, or they must have used powers or methods appropriate to their official capacity. Applying to the present case, the officers in question consistently conducted themselves as officers in the brigade of the Villista general; in this capacity they began exacting the remittance of certain sums of money and when Caire refused, they finally shot him. Under these circumstances, there remains no doubt that, even if they are to be regarded as having acted outside their competence, the officers have involved the responsibility of the State. 2. Acts of other Persons a. Conduct of a person or group of persons acting on the instructions of, or under the direction or control of, that State in carrying out the conduct b. Conduct of a person or group of persons exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority 3. Acts of Revolutionaries a. Conduct of an insurrectional movement, which becomes the new government of a State b. Conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration PRELIMINARY OBJECTIONS Claim of denial of justice may be lost due to failure to answer some preliminary objections a. Lack of nationality link b. Failure to exhaust national remedies Page 5 of 6
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Purpose: to protect international courts from being swamped
with cases which are better handled locally REPARATION 1. Obligation to make full reparation for the injury caused by the internationally wrongful act 2. Injury consist of any damage, whether material or moral, arising in consequence of the internationally wrongful act 3. Responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligation CALVO CLAUSE REJECTED A provision in a contract to the effect that under no condition shall the intervention of foreign diplomatic agents in any matter related to the contract be resorted to This was rejected in North American Dredging Company Claim due to the right to seek redress is a sovereign prerogative of a State and a private individual has no right to waive the States right EXPROPRIATION OF ALIEN PROPERTY Expropriation can be internally wrong if it is done contrary to the principles of international law 1962 UN General Assembly Resolution on the Sovereignty over Natural Resources o Expropriation shall be based on grounds or reasons of public utility, security or the national inters which are recognized as overriding purely individual or private interests, both domestic and foreign In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law
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Chapter 11 : STATE RESPONSIBILITY AND PROTECTION OF ALIENS