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Chapter 16: Treatment of aliens

Right to Exclude Aliens

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.

Includes the power to regulate the entry and stay of aliens and the right to expel them
through deportation.

Aliens must accept the institutions of the states that he is in.

They may be deprived of certain rights. (Example: political rights, acquisition of lands,
etc)

Or they may be granted certain rights and privileges based on:


Reciprocity
National treatment

But once the state decides to accept the entry of aliens, its competence as territorial
sovereign is limited by the requirement that they be treated justly and in accordance with
the law of nations.
Otherwise, the alien and his state will have a valid cause of complaint.

Expulsion or Deportation

Predicated on the ground that


The stay of the alien constitutes a menace to the security of the state
His entry was illegal
Permission to stay has expired
He has violated any limitation or condition prescribed for his admission and
continued to stay

Reconduction

The forcible conveying of aliens back to their home state.

Destitute aliens, vagabonds, aliens without documents, alien criminals, and the like, may
be arrested and reconducted to the frontier without any formalities.

The home state of the aliens has the responsibility to receive them.

State Responsibility

A state is under obligations to make reparation to another State for the failure to fulfill its
preliminary obligation to afford, in accordance with international law, the proper
protection due to an alien who is a national of the latter State.

Codification of the Laws of State Responsibility

It is only recently that the Laws of State Responsibility has been codified. Prior to this
codification, this aspect of international law has been governed only by customary
international law.

In August 2001, the International Law Commission adopted the Daft Articles on the
Responsibility of States for Internationally Wrongful Acts.
The Daft Rules however is not all-encompassing as such treaty may provide for
its own rules on state responsibility.
A notable observation of the Draft Rules was the difficulty in its preparation. It
tool almost 45 years, since the ILC identified it in 1949, and thirty reports to
finish the Daft Rules.

Traditional concept of State Responsibility

The traditional concept of state responsibility refers to the responsibility of states for
injuries caused to aliens.

However, much of the concerns over the rights of aliens have been gradually addressed
by the laws of international human rights.

Law on the Protection of Aliens

Under this concept, states must exercise due diligence to avert foreseeable injuries to
foreign nationals.

If an injury is caused, the state must provide redress or ensure punishment for the harm.
Hence, states have the obligation to protect foreign nationals from private-actor
interferences within their territory.

Factors to determine state responsibility


a. An internationally wrongful act
b. Attribution to the state
c. Defenses available to the state
d. Legal consequences of breach

Internationally wrongful acts, defined;

An internationally wrongful act must:


a. Be attributable to the state under international law.
b. Constitute a breach of an international obligation of the state.

International Standard of Justice

The standard of the reasonable state, which means reasonable according to ordinary
means and notions accepted in modern civilization

Execution of an alien without trial considered as falling below international standard of


justice.

Where the laws of the State fall below the international standard, it is no defense that
such laws are applicable not only to aliens but to nationals too. Doctrine of equality of
treatment does not apply.

Failure of Protection or Redress

Even if the state follows the standards but fails to make a reasonable effort to prevent
injury to the alien or fails to repair such injury, the state can still be held liable.

Enforcement of Aliens Claims


1. Exhaustion of Local Remedies
2. Resort to Diplomatic Protection
3. Modes of Enforcement of Claims

Enforcement of Local Remedies

International delinquency can only be alleged by the alien after he has exhausted all local
remedies

In parallel to the principle that aliens must accept the institutions of the state.

The state must be given opportunity to do justice in its own regular way ad without
warranted interference with its sovereignty by other states

This principle may be dispensed with if there are no local remedies to exhaust.

Exception: exhaustion of local remedies can be dispensed with if there are no remedies to
exhaust and the international delinquency results from an act of state

Calvo Clause

A stipulation by which an 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.

The stipulation cannot be interpreted to deprive the aliens State of the right to protect or
vindicate his interests in case he is injured in another state.

Such waiver can legally be made not by the alien but by his own state.

Resort to Diplomatic Protection

Available only after exhaustion of local remedies without success. Alien to seek
assistance from his state as its national in seeking redress of his injury

A stateless person cannot be subject to diplomatic protection. His case may be one of
Damnum absque injuria (loss without injury)

The alien must be a national of his state from the time of injury up to the settlement of his
claim. Otherwise, the tie of nationality is broken and he cannot demand for the settlement
of his claim anymore.
Exception: Diplomatic claim filed by the UN on behalf of its officials.

Modes of Enforcing Alien Claims


1. Negotiation
2. Tender Good Offices
3. Arbitration
4. Judicial Settlement
NOTE: when the responsibility of the State is established, the duty to make
reparation will arise. Reparation may be in the form of:
1. Restitution ( Act of restoring; to return)
2. Satisfaction ( Fulfilling judicial order)
3. Compensation ( Payment )
4. Or Combination of all 3

Negotiation- The process by which states adjust their differences by an exchange of their
view, generally through diplomatic agents

Tender Good Offices A third party, either along or in collaboration with others, offer
help in the settlement of dispute. If the offer is accepted, there is now an exercise of
good offices

Arbitration The solution of the dispute by an impartial third party, usually a tribunal
created by the parties themselves under a charter known as a compromis

Judicial Settlement consists in the reference of a dispute to the ICJ or to other tribunals
provided for in existing treaties or which may be provided for in subsequent ones.

Extradition

The surrender of a person by one state to another state where he wanted for prosecution
or if already convicted, for punishment.

Primarily based on treaty.

In the absence of a treaty, the local state may grant asylum to the fugitive or surrender
him to the requesting state. If the latter is made, the same is merely a gesture of comity.

Extradition differs from Deportation in that in the latter, the expulsion of an alien by
reason of being undesirable, is a unilateral act of the local state and made exclusively for
its own interest.