CHAPTER 11

STATE RESPONSIBILITY 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
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
o Injury to a national abroad = injury to the individuals State of
nationality
o The interest of the State is in the redress of the injury to itself
and not of the injury to the individual
o 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 claims 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
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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
shareholders 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 o Bright side: aliens would enjoy the same
benefits as local nationals o 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.
Denial of Justice
Harvard Draft Convention on the Responsibility of States for Damages
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Art. 9. Denial of Justice exists when there is (DUG-FM)

a. Denial
b. Unwarranted delay or obstruction of access to courts
c. Gross deficiency in the administration of judicial or remedial
process
d. Failure to provide those guarantees which are generally
considered indispensable to the proper administration of justice
e. Manifestly unjust judgment but error of a national court
which does not produce manifest injustice is not denial of justice
Enforcement Regimes
Who can resolve issues of violations of the rights of aliens when
appealed to by States in conflict?
1. International Court of Justice
2. Ad-hoc tribunals established for the purpose
a. US-Iran Claims Tribunal
b. UN Compensation Settlements
3. Lump-sum Settlements (Claims Settlement Agreements)
a. US-Cambodia b. US-Vietnam
DOCTRINE OF STATE RESPONSIBILITY
When an injury has been inflicted, there is need to determine whether
the State can be held responsible for it
Internationally wrongful act committed when a State violates a
customary rule of international law or a treaty obligation
What needs to be understood?
1. Elements of an internationally wrongful act
2. Attributability of the wrongful act to the State
3. Enforcement of the obligation that arises from the wrongful
act
INTERNATIONALLY WRONGFUL ACT
No State can escape this responsibility when once it has committed an act
which satisfies the requirements of an internationally wrongful act
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Elements of Internationally wrongful act:

1. Subjective act must be attributable not to the persons or
agencies who performed it, but to the State itself
2. Objective act constitutes a breach of an international
obligation of the State
What determines the wrongful character of the act is international law and
not internal law

ATTRIBUTION TO THE STATE

1. Acts of State Organs
a. Acts of any State organ whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds,
and whatever its character
Organ includes any person or body which has that status in
accordance with the international law of the State
b. Conduct of an entity which is not an organ of the State but which is
empowered to exercise elements of governmental authority provided
the entity was acting in that capacity in the case in question
c. Conduct of an organ placed at the disposal of a State by another
State acting in the exercise of elements of governmental authority of
the State at whose disposal it had been placed
d. Conduct of a State organ or of an entity empowered to exercise
elements of governmental authority, such organ or entity having
acted in that capacity, exceeding its authority or contravening
instructions concerning its exercise
CAIRE CLAIM
Facts: Caire, a French national, was killed in Mexico by Mexican
soldiers after they had demanded money from him.
Issue: w/n Mexico is responsible for actions of individual military
personnel acting without orders or against the wishes of
their commanding officers
Held:
Objective
responsibility
of
the
States

responsibility for the acts of the officials or organs of a

State, which may devolve upon it even in the absence of
any fault on its own It tends to impute to the State, in
international affairs, the responsibility for all the acts committed
by its officials or organs which constitute offenses from the point
of view of the law of nations, whether the official or organ in
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question has acted within or exceeded the limits of his

competence.
In order to be able to admit this so-called objective responsibility
of the State for acts committed by its officials or organs outside
their competence, they must have acted at least to all
appearances as competent officials or organs, or they must have
used powers or methods appropriate to their official capacity.
Applying to the present case, the officers in question
consistently conducted themselves as officers in the brigade of
the Villista general; in this capacity they began exacting the
remittance of certain sums of money and when Caire refused,
they finally shot him.
Under these circumstances, there remains no doubt that,
even if they are to be regarded as having acted outside
their competence, the officers have involved the
responsibility of the State.
2. Acts of other Persons
a. Conduct of a person or group of persons acting on the
instructions of, or under the direction or control of, that State
in carrying out the conduct
b. Conduct of a person or group of persons exercising elements of
the governmental authority in the absence or default of the
official authorities and in circumstances such as to call for the
exercise of those elements of authority
3. Acts of Revolutionaries
a. Conduct of an insurrectional movement, which becomes the
new government of a State
b. Conduct of a movement, insurrectional or other, which
succeeds in establishing a new State in part of the territory of
a pre-existing State or in a territory under its administration
PRELIMINARY OBJECTIONS
Claim of denial of justice may be lost due to failure to answer some
preliminary objections
a. Lack of nationality link
b. Failure to exhaust national remedies
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Purpose: to protect international courts from being swamped

with cases which are better handled locally
REPARATION
1. Obligation to make full reparation for the injury caused by the
internationally wrongful act
2. Injury consist of any damage, whether material or moral, arising in
consequence of the internationally wrongful act
3. Responsible State may not rely on the provisions of its internal law
as justification for failure to comply with its obligation
CALVO CLAUSE REJECTED
A provision in a contract to the effect that under no condition shall
the intervention of foreign diplomatic agents in any matter related to the
contract be resorted to
This was rejected in North American Dredging Company Claim due to the
right to seek redress is a sovereign prerogative of a State and a
private individual has no right to waive the States right
EXPROPRIATION OF ALIEN PROPERTY
Expropriation can be internally wrong if it is done contrary to the
principles of international law
1962 UN General Assembly Resolution on the Sovereignty over Natural
Resources o Expropriation shall be based on grounds or reasons of public
utility, security or the national inters which are recognized as overriding
purely individual or private interests, both domestic and foreign
In such cases, the owner shall be paid appropriate compensation in
accordance with the rules in force in the State taking such measures in the
exercise of its sovereignty and in accordance with international law

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Chapter 11 : STATE RESPONSIBILITY AND PROTECTION OF ALIENS