Bernas Public International Law – STATE RESPONSIBILITY Part 1

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CHAPTER 11 STATE RESPONSIBILITY Part 1

PROTECTION OF ALIENS

  • 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
  • Aliens -nationals abroad
  • 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

a. Injury to a national abroad – injury to the individual’s State of nationality

b. The interest of the State is in the redress of the injury to itself and not of the injury to the individual

c. 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 claim’s 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 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 shareholder’s 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

      • Bright side: aliens would enjoy the same benefits as local nationals
      • 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.

 

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