Written Rep PIL

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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 beadmitted 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, ac!uisition of lands,

etc"

•

#r they may be granted certain rights and privileges based on

– $eciprocity

– %ational treatment

• &ut once the state decides to accept the entry of aliens, its competence as territorial

sovereign is limited by the re!uirement that they be treated 'ustly and in accordance with

the law of nations.

– #therwise, the alien and his state will have a valid cause of complaint.

Expulsion or Deportation

• redicated on the ground that

– The stay of the alien constitutes a menace to the security of the state

– )is entry was illegal

– ermission to stay has expired

– )e has violated any limitation or condition prescribed for his admission and

continued to stay



Reconduction

• The forcible conveying of aliens bac* to their home state.

• +estitute aliens, vagabonds, aliens without documents, alien criminals, and the li*e, 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 ma*e 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 a!s of State Responsibility

• It is only recently that the aws of State $esponsibility has been codified. rior to this

codification, this aspect of international law has been governed only by customary

international law.

• In August -/, the International aw 0ommission adopted the +aft Articles on the

$esponsibility of States for Internationally 1rongful Acts.

– The +aft $ules however is not all2encompassing as such treaty may provide forits own rules on state responsibility.

– A notable observation of the +raft $ules was the difficulty in its preparation. It

tool almost 34 years, since the I0 identified it in /535, and thirty reports to

finish the +aft $ules.

Traditional concept of State Responsibility

• The traditional concept of state responsibility refers to the responsibility of states forin'uries caused to aliens.

• )owever, much of the concerns over the rights of aliens have been gradually addressed

by the laws of international human rights.



a! on the "rotection of Aliens

• 6nder this concept, states must exercise due diligence to avert foreseeable in'uries to

foreign nationals.

•

If an in'ury is caused, the state must provide redress or ensure punishment for the harm.)ence, states have the obligation to protect foreign nationals from private2actor

interferences within their territory.

#actors to determine state responsibility

a. An internationally wrongful act

b. Attribution to the state

c. +efenses available to the state

d. egal conse!uences of breach

• Internationally wrongful acts, defined7

• An internationally wrongful act must

a. &e attributable to the state under international law.

b. 0onstitute a breach of an international obligation of the state.

$nternational Standard of %ustice

• The standard of the reasonable state, which means reasonable according to ordinary

means and notions accepted in modern civili8ation

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

'ustice.

• 1here 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. +octrine of e!uality of

treatment does not apply.



#ailure of "rotection or Redress

• Even if the state follows the standards but fails to ma*e a reasonable effort to prevent

in'ury to the alien or fails to repair such in'ury, the state can still be held liable.

Enforcement of Alien&s Claims

/. Exhaustion of ocal $emedies

-. $esort to +iplomatic rotection

9. :odes of Enforcement of 0laims

Enforcement of ocal Remedies

• International delin!uency 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 'ustice 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 delin!uency results from an ;act of state<

Cal'o 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 alien=s State of the right to protect or

vindicate his interests in case he is in'ured in another state.

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



Resort to Diplomatic "rotection

• Available only after exhaustion of local remedies without success. Alien to see*

assistance from his state as its national in see*ing redress of his in'ury

•

A stateless person cannot be sub'ect to diplomatic protection. )is case may be one of Damnum absque injuria (loss without injury)

• The alien must be a national of his state from the time of in'ury up to the settlement of his

claim. #therwise, the tie of nationality is bro*en and he cannot demand for the settlement

of his claim anymore.

– Exception +iplomatic claim filed by the 6% on behalf of its officials.

(odes of Enforcing Alien Claims

/. %egotiation

-. Tender >ood #ffices

9. Arbitration

3. ?udicial Settlement

– %#TE when the responsibility of the State is established, the duty to ma*e

reparation will arise. $eparation may be in the form of

/. $estitution ( Act of restoring7 to return"

-. Satisfaction ( @ulfilling 'udicial order"

9. 0ompensation ( ayment "

3. #r 0ombination of all 9

• %egotiation2 The process by which states ad'ust their differences by an exchange of their

view, generally through diplomatic agents

• Tender >ood #ffices 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 Bexercise 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 *nown as a compromis



• ?udicial Settlement consists in the reference of a dispute to the I0? or to other tribunals

provided for in existing treaties or which may be provided for in subse!uent ones.

•

Extradition

• The surrender of a person by one state to another state where he wanted for prosecution

or if already convicted, for punishment.

• rimarily based on treaty.

• In the absence of a treaty, the local state may grant asylum to the fugitive or surrender

him to the re!uesting 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.

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