CHAPTER 16: Treatment of Aliens: Failure of Protection or Redress

PUBLIC INTERNATIONAL LAW (Cruz)
CHAPTER 16: 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
* once it decides to accept them, its competence as
territorial soveriegn as limited by the requirement that
they be treated justly, in accordance with the law of
nations
* the alien canot 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 insurerof the life or property of the
alien, whe 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:
a. international deliquency
b. directly or indirectly imputable to it
c. which causes injury to the natonal of another
state
* liabilty will attach to the state where its treatment of
alien falls below the international standard of justice or
wgere it remiss in according him the protection or
redress that is warranted by the circumstances
* !"#$%&": assure the traveler that when his rights
are violated in a foreign state, he will not be denied any
remedy simply because he is not one of its nationals
* encourage more intercourse among the
peoples of the world through inter-visitation of their
respective countries
THE INTERNATIONAL STANDARD OF !STICE
* 'tandard of th reasonable state, that is, as referring to
the ordinary normsof official conduct observed in
civili(ed jurisdictions.
* )&#$*%"+ & +,!-.%$/ & $*+-$0+"$ 1 where
the laws of state fall below the international standard of
justice, it is no defense that they are applicable not inly
to aliens but as well, and equally, to the nationals of that
state. $he relations of that state with ots own nationals
are purely municipal2 international law is involved in its
relations with the nationals of other states.
FAIL!RE OF PROTECTION OR REDRESS
* state may be held liable if it does not make reasonable
efforts to prevent injury to the alien or, having done so
unsuccesfully, fails to repair such injury.
* degree of diligence required
* responsibility does not immediately attach to the state
upon a showing of a failure to prevent or redress an
injury to aliens
* distinction must be made between direct and inirect
state responsibility
a. where the imternational delinquency was
committed by superior government officials or organs,
liability will attach immediately as their acts may not be
effectively prevented or reversed under the constitution
and laws of the state
b. where the offense is committed by inferior
government officials or, more so, by private individuals,
the state will be held liable only if, by reason of its
indifferencein preventing or pushing it, it can be
considered to have conived in effect in its commission
E"HA!STION OF LOCAL RE#EDIES
* the liability of the state for an international delinquency,
its enforcemnet cannot be claimed by the injured
foreigner unless, he first exhausts all available local
remedies for the protection or vindication of his rights
* state must be given an opportunity to do justice in its
own regular way and without unwarranted interference
with its sovereignty by other states
* this requirement may be dispensed with, however, if
there are no remedies to exhaust, as where the laws are
intrinsically defective or there is laxity or arbitrariness in
their enforcement or where the courts are corrupt or
where there is no adeqaute machinery for the
administration of justice
* there would be "& remedy available from 3acts of
state4 which are not subject to judicial review
RESORT TO DIPLO#ATIC PROTECTION
* if the injured foreigner has exhausted all the local
remedies but without success, he may then avail himself
of the assistance of his states 1 but only if he has a
state. &therwise, he will have no party to represent him,
and he by himself, being a mere individual, cannot
institute his claim in his own name.
* any injury to an alien is a violation not of his own
personal rght but of the right of his state to hacve its
nationals protected but of the right of his state to have its
nationals protected whenever they are in a foreign
BETIA. MENOR. REAMICO | 2014
PUBLIC INTERNATIONAL LAW (Cruz)
country
* where the injured alien is stateless, his case will be
one of )-""!0 -5',!+ %"6!*%- and cannot be
subject of diplomatic protection
* tie of nationality 1 required to exist from the time of the
injury until the time the international claim is finally
settled. &nce the tie is broken, the claim itselfis deemed
automatically abated. %f, the injured national dies while
the claim is under consideration and it should happen
that his hers are not nationals of the claimant state, the
calim will lapse
ENFORCE#ENT OF CLAI#
* an international claim for damages may be resolved
through negotiation or, if this fails, any of the other
methods of settling disputes
* in the event that the responsibility of the state is
established or acknowledged, the duty to make
reaparation will arise. 'uch reparation may take the
form of *+'$%$!$%&" or '-$%'-#$%&" or
#&07+"'-$%&".
A$OIDANCE OF STATE RESPONSIBILITY
* to avoid the intervention of the alien8s state in
contracts, the local state sometimes incorporates
therein what is known as the #-.9& #.-!'+
* #alvo #lause 1 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. :owever, may not be
interpreted to deprive the alien8s 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
E"CL!SION OF ALIENS
* the state may also avoid liability to aliens by refusing
their admission, but this is not regarded as sound policy
since it would provoke retaliation in kind and ultimately
isolate its nationals from the rest of the international
community
* )+7&*$-$%&": the removal of an alien out of
the country, simply because his presence is deemed
inconsistent with the public welfare and without any
punishment being imposed or contemplated, either
under the laws of the country out of which he is sent, or
under those of the country to which he is taken
* +;#.!'%&": denial of entry to an alien
BETIA. MENOR. REAMICO | 2014

CHAPTER 16: Treatment of Aliens: Failure of Protection or Redress

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CHAPTER 16: Treatment of Aliens: Failure of Protection or Redress

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PUBLIC INTERNATIONAL LAW (Cruz)

CHAPTER 16: Treatment of Aliens

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