TREATMENT OF ALIENS

Every state has the right, as inherent in

sovereignty and essential to its own
security and existence, to determine in
what cases and under what conditions
foreigners may be admitted to its territory.
The alien cannot as a rule claim a
preferred position vis-a-vis the
national of the state where he is at
best only a guest.
The foreigner may not enjoy the right to vote,
to run for public office, to exploit natural
resources or to engage in certain businesses
regarded as vital to the interests of the local
state.
• The foreigner must accept the institutions of the local
state

• State is not an insurer of the life or property of the alien,

when he is within its territory

• The foreigner is expected to take the customary

precautions for the protection of his own rights and to
avail himself of the usual remedies when these rights are
violated
THE DOCTRINE OF STATE RESPONSIBILITY
Instances when an alien can claim a more favored position than the
national of the local state and hold the state liable for injuries
committed against him while within its territory.

A state may be held responsible for:

1. International delinquency
2. Acts or omissions directly or indirectly imputable to the state.
3. Injury to the claimant state indirectly because of its national.
Liability will attach to the state where its
treatment of alien falls below the
international standard of justice or where
it remiss in according him the protection
or redress that is warranted by the
circumstances.
Conditions required for the enforcement of Doctrine of
State Responsibility

1. The injured subject must first exhaust all local remedies,

except:
a. No remedies to exhaust;
b. Courts are corrupt;
c. No adequate machinery; and
d. Involves acts of states not subject to judicial review.
2. He must resort to diplomatic protection.
Calvo Clause – stipulation by which the alien waives or
restricts his right to appeal to his own state in connection
with any claim arising from the contract and agrees to limit
himself to the remedies available under the laws of the
local state.
Calvo Clause may be enforced as a lawful condition of the
contract. However, may not be interpreted to deprive the
alien's state of the right to protect or vindicate his interests
in case they are injured in another state as such waiver can
legally be made not by him but by his own state
 EXTRADITION

The removal of an accused from the Philippines with the

object of placing him at the disposal of foreign authorities
to enable the requesting state or government to hold him
in connection with any criminal investigation directed
against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or
government. (PD 1069)
Elements for the exercise of extradition:
1.Acts of sovereignty on the part of two States;
2.A request by one State to another State for the
delivery to it of an alleged criminal;
3.The delivery of a person requested for purposes
of trial or sentence in the territory of the
requesting state.
 Fundamental Principles relating to
Extradition
• Extradition is based on the consent of the state of asylum.
• Principle of specialty – a fugitive who is extradited may be
tried only for the crime specified in the request for
extradition and included in the list of offenses in the
extradition treaty.
• Any person may be extradited
• Political and religious offenders are generally
not subject to extradition
• In the absence of a special agreement, the
offense must have been committed within
the territory or against the interests of the
demanding state
• Rule of double criminality - the act for which
the extradition is sought must be punishable
in both the requesting and requested states
 Procedure for Extradition
1. Request through diplomatic representative.
2.DFA forwards request to DOJ.
3. DOJ files petition for extradition with the RTC.
4.The judge must study the petition for extradition and its
supporting documents and make, as soon as possible, a
prima facie finding whether they are sufficient, in
compliance with the ‘Extradition Treaty and Law and
that the person sought is extraditable.
5.Hearing
6.Appeal to CA within 10 days whose decision shall
be final and executory.
7.Decision forwarded to the DFA through the DOJ.
8.Individual placed at the disposal of the
authorities requesting state costs and expenses
be shouldered by requesting state.
 Entitlement to Bail
The time-honored principle of pacta sunt servenda demands that the
Philippines honor its obligations under the Extradiction Treaty entered
into with the Hongkong Special Administrative Region. Failure to
comply with these obligations is a setback in our foreign relations and
defeats the purpose of extradition. However, it does not necessarily
mean that in keeping with its obligations, the Philippines should
diminish a potential extraditee’s rights to life, liberty, and due process.
More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions to which the
Philippines is a party. We should not, therefore, deprive an extradite of
his right to apply for bail, provided that a certain standard for the grant
is satisfactorily met (Government of Hongkong Special Administrative
Region vs. Olalia, Jr, G.R. No. 153675; April 9, 2007).
An extradition proceeding being sui generis, the standard
of proof required in granting or denying bail can neither be
the proof beyond reasonable doubt in criminal cases not
the standard of proof of preponderance of evidence in civil
cases – the potential extradite must prove by clear and
convincing proof that he is not a flight risk and will abide
with all the orders and processes of the extradition court.
(Government of Hongkong Special Administrative Region vs.
Olalia, Jr, G.R. No. 153675; April 9, 2007).
 Rights of a person arrested and detained in
another State: (RCI)

1. Right to have his request complied with by the receiving State to so inform
he consular post of his condition;
2. Right to have his communication addressed to the consular post
forwarded by the receiving State accordingly;
3. Right to be informed by the competent authorities of he receiving State
without delay his rights as mentioned above (Article 36 par. 1, Vienna
Convention on Consular Relations).
The International Court of Justice has
determined that Article 36 par. 1, Vienna
Convention on Consular Relations, creates
individual right for the detained person in
addition to the rights accorded the sending
States (La Grand Case [Germany v. United
States]).
 REFUGEE

A person who, owing to a well-founded fear of being

persecuted for reasons of race, religion, nationality,
membership of a particular social group or political
opinion, is outside the country of his nationality, and is
unable or owing such fear, is unwillingly to avail himself of
the protection of that country; or who, not having a
nationality and being outside the county of his former
habitual residence, is unable, or owing to such fear, is
unwilling to return to it. (Convention Relating to the Status
of Refugees, Art. 1.A[2])
 Rights of refugees:

1.Non-discrimination in relation to the nationals of

the State with respect to public relief and
assistance (Art. 23 Refugee Convention) or relating
to aspects of labor legislation and social security
(Art. 24);
2.Rights to association (Art. 15);
3.Right to wage-earning employment (Art. 17);
4.Right to self-employment (Art. 18);
5.Right to exercise liberal professions (Art.
19);
6.Right to Housing (Art. 21);
7.Refugees having their habitual residence in
the State possess a non-discriminatory
position concerning artistic rights and
intellectual property (Art. 14);
8.Freedom of Religion (Art. 4);
9.Right to be issued identity papers (Art.
27);
10.Free access to courts (Art. 16);
11.Right to same treatment as accorded to nationals with
respect to elementary education (Art. 22);
12.The duty of non-refoulement obliges States not to
return refugees to a place where they risk being
persecuted for a reason laid down in the Refugee
Convention (Art. 33).
Principle of Non-Refoulement
This prohibits a state to return or expel a
refugee to the territory where he escaped
because his life or freedom is threatened. The
state is under obligation to grant temporary
asylums (Refugee Convention of 1951).
Exception to the Principle of Non-Refoulement
The only circumstance in which the requested State may extradite a
refugee with its jurisdiction to a country where they have a well-founded fear
of persecution are those provided for in Article 33 (2) of the 1951 Convention.
In exceptional circumstances, the requested State may also be justified in
extraditing a person determined to be a refugee in another State, if he or she
manifestly comes within the scope of an exclusion clause of Article 1F of the
1951 Convention, particularly commission of a serious crime which constitutes
a danger in the community. The application of Article 33(2) does not, however,
entail the loss of refugee status (Kapferer. The Interface Between Extradition
and Asylum, UNCHR Publications, 2003, Par 233-239).
Asylum
It is the power of the State to allow an alien who
has sought refuge from prosecution or persecution
to remain within the territory and under its
protection (Nachura, Outline Reviewer in Political
Law 2009, p. 697)
 Principle on Asylum

1. Territorial Asylum – it exists only when stipulated in a treaty or justified by

established usage (Id.)
2. Diplomatic Asylum – This refers to the idea that a diplomatic mission of a
sending State has the right to offer protection to refugees present in the
premises of the mission (Shah, Max Planck Encyclopedia of International Law,
Diplomatic Asylum, 2007, par. 1).
Generally, diplomatic asylum cannot be granted except to
members of the official or persona household of
diplomatic representatives. On humanitarian grounds,
however, refuge may be granted to fugitives whose lives
are in imminent danger from mob violence but only during
the period when active danger persist (Nachura, Outline
Reviewer in Political Law, 2009 ed.; p. 697)