Responsibility for Injury to Aliens?

This article aims to address the following issues regarding the law of state responsibility for injury to aliens. Some of the aspects that will be dealt with are how this law developed with time and what the different categories of state responsibility are. Then it will examine the prevalence of an International Minimum Standard for treatment of aliens. On the other hand, the article will also analyse if the National Treatment doctrine contradicts the International Minimum Standard and does if contradiction causes an ambiguity in the law on State Responsibility for Injury to Aliens. The article in its latter parts will delve into aspects of consistency is state practice in dispute settlement mechanisms on nationalization or expropriation of property of aliens. The thesis of this article is that the law of State responsibility is greatly inconsistent for purposes of codification which requires uniformity and acceptance of standards and similar obligations by all nations.

INTRODUCTION

The Concept of State Responsibility: After decades of work on attempts to codify a law for State responsibility, the International Law Commission (hereinafter “ILC”) finally adopted the Draft Articles in 2001. These will remain as soft law, whose legal significance will derive only from whatever authority they possess as evidence of customary law. Some authors have observed that a convention could not have achieved any more than this. [1]

Once a state acquires statehood in International Law, it incurs obligations associated with its international status. Rapporteur Huber in the Spanish Zone of Morocco Claims Case, [2] held that: ‘responsibility is a necessary corollary of a right. All rights of an international character involve international responsibility.’ When the state breaches these rights and obligations it acquires, it commits an ‘internationally wrongful act’. [3] The State is required to make reparations for its international wrongdoing. This view was reflected by the Permanent Court of International Justice (hereinafter “PCIJ”) in Case Concerning the Factory at Chorzow. [4] A State could thus breach an obligation that affects just one State or the entire community of nations. [5]

Three fundamental elements trigger State responsibility: (1) the existence of a legal obligation recognized by International Law, (2) an act or omission that violates such an obligation and (3) some loss or articulable damage caused by the breach of the obligation. [6] The 2001 ILC draft corroborates this view. Article 1 of the 2001 ILC draft provides that every internationally wrongful act of a State entails the international responsibility of that State. Article 2 adds that “there is an internationally wrongful act of a State when the conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of that State.”

The Rainbow Warriors arbitration affirmed that “the legal consequences of a breach of treaty including the determination of the circumstances that may exclude wrongfulness….and the appropriate remedies for breach, are the subjects that belong to the customary law of state responsibility.” [7]

Aliens and State Responsibility: Historically, state responsibility has been developing on the basis of cases concerning the unlawful treatment of aliens (or foreign nationals, corporations etc.) and the modern law of State responsibility revolves around these aspects.

Early commentators had practical reasons to focus on this category of State responsibility. Many nationals of one State – who have lied, traveled, or worked in another State – have endured abuse and discrimination throughout history. [8] A leading study has noted that since ancient times foreigners have been regarded with suspicion, if not fear, either due to their differences from the native people so much so that the Romans refused aliens the benefits of civil law (jus civile), thirteenth-century England limited their recourse to ordinary courts of justice (rather than all courts), and Imperial Spain denied them trading rights in the New World. [9] The law of State responsibility for injury to aliens began almost two centuries ago when one of the foremost commentators of that time, Emerich de Vattel wrote: “whoever ill-treats a foreign citizen injures the State, which must protect the citizen.” [10]

This branch of State responsibility relied on the internal tort law applied by many States. Tort law governs civil wrongs by individuals for unreasonable conduct that harms other individuals. If someone takes the property of another without justification, he is liable to compensate the other for such an infraction. This was the view adopted by man writers and jurists when considering wrongful act of a State for injuries to aliens.

A State is therefore under an international obligation, as discussed earlier, not to ill-treat any

foreign nationals present in its territory and any violation of this obligation will incur

international responsibility. This is one of the commonest forms of state responsibility that arises in international law today. [11] The law of State Responsibility for Injury to Aliens has not yet been codified till date however several attempts have been made. [12]

In sum, the entire law of State Responsibility for Injury to Aliens is a matter of existence of correlative rights and duties. The State has a right to expect that the alien will follow its local laws and the State has an obligation to protect the life and property of this alien under the various treaties and conventions of international law. Failure to observe any of these rights and duties entails and gives rise to international responsibility where both the parties are entitled to remedies which may be utilized through the various channels available in international law beginning with exhaustion of local remedies. [13]

William Slomanson categorizes the concept of State Responsibility for Injury to Aliens according to its conduct and customary violations:

Denial of Justice including wrongful arrest or detention and lack of due diligence;

Confiscation of Property or Expropriation; and

Deprivation of Livelihood. [14]

This article will deal with the issues of Denial of Justice in relation to the existence of an International Minimum Standard for treatment of aliens, the problems of Expropriation and when it is deemed to be lawful or unlawful, finally with dispute settlement and the remedies available under international law for breach of obligations in relation to the procedural aspects of exhaustion of local remedies.

I. DENIAL OF JUSTICE

Mistreatment of aliens giving rise to international responsibility can occur in a number of ways. Denial of Justice is one such mistreatment. When a foreign national is denied due process of law in respect of a legal dispute arising in the State, whether civil or criminal, he is said to be denied justice. [15] This is also applicable to a State’s discriminatory application of its domestic laws to an alien where the standard procedures that apply to a citizen are withheld from an alien. [16] It is regarded as these deficiencies are basically on the part of the organs of the host State, principally concerning administration of justice. [17]

The best guide to the meaning of this term is the Harvard Research draft of 1929:

“Article 9: A State is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is a denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guarantees which are generally considered indispensable to the proper administration of justice or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial of justice.” [18]

The most controverted issue is the extent to which erroneous decisions may constitute denial of justice. One view suggests that an error of law accompanied by a discriminatory intention is a breach of international standard. [19] It is well established that the decision of a lower court open to challenge does not constitute a denial of justice and that the claimant must pursue remedies available in the higher judiciary. [20]

However there is no uniformity in practice of this form of injury. In Latin America, a denial of justice can only occur if the State has completely refused access to its courts or its courts will not take necessary steps to render a decision. If there is some access to some tribunal that will ultimately decide the particular matter, then a foreign citizen cannot complain about the quality of justice even though different procedures apply in his or her home State. [21] Most nations adopt a broader interpretation of the term denial of justice. A State can be responsible for injuring an alien when its tribunals do not provide adequate time or legal representation to prepare a defence. If local citizens are allowed to seek legal assistance, then it would just be denial of justice to withhold that right just because the prisoner is a foreign citizen. [22]

It should be noted that what constitutes a ‘denial of justice’ may well depend on the appropriate standard of conduct which international law requires a State to adopt in its dealings with foreign nationals.

THE INTERNATIONAL MINIMUM STANDARD PARADOX

Whether or not a State is internationally responsible for the way it treats foreigners depends on the standard of treatment which international law obliges that State to adopt. It is only when the State falls below this standard that it becomes internationally responsible. [23]

Unfortunately, there is considerable debate over the right standard of treatment which international law requires. Generally speaking the two opposing views are that of a “national treatment” standard mainly followed by developing nations and an “international minimum standard” [24] (hereinafter “IMS”) approach mainly followed by developed nations. [25]

National Treatment: Originally supported by Latin American countries, this view is favoured today primarily by new and developing countries. [26] According to the national treatment standard, the State is responsible only if it fails to accord foreign nationals the same standard as accorded to its own nationals. [27] The disadvantage of the national treatment standard is that a state could subject an alien to inhuman treatment and justify such treatment on grounds that nationals are treated the same way. [28] But, international arbitration tribunals have denied that a state can exonerate itself by pleading that nationals are treated in the same way in the extent that the treatment of non-nationals falls short of the international minimum standard. [29]

International Minimum Standard: Supported by usually developed nations, this means that every State must treat foreigners within its territory by reference to a minimum international standard, irrespective of how national law allows the State to treat its own citizens. This treatment must conform to an international norm. The standard is not satisfied by pleading national law provisions unless they match up to the international minimum standard. [30]

What is probably the most definitive and equally broad statement defining international minimum standard was made by US Secretary of State Elihu Root in 1910:

“Each country is bound to give to the nationals of another country in its territory in its territory the benefit of the same laws, the same administration, the same protection, and the same redress for injury which it gives to its own citizens, and neither more nor less: provided the protection which the country gives to its won citizens conforms to the established standard of civilization.

There is [however] a standard of justice very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The ….system of law and administration shall conform to this general standard. If any country’s system of law and administration does not conform to that standard, although the people of the country may be content to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment of its citizens.” [31]

The minimum standard test has been applied in a number of cases. In Neer Claim, [32] the US claimed that Mexico had failed to exercise due diligence in finding and prosecuting the murderer of a US national. The Court indicated that that the minimum standard will have to be applied and expressed as follows:

“….the propriety of governmental acts should be put to the test of international standards ….the treatment of an alien, in order to constitute an international delinquency should amount to an outrage, to bad faith, to 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.”

In the Chevreau case, [33] France claimed on behalf of a French national in respect of his arrest and treatment in detention by Great Britain, the arbitrator said: “the detained man must be treated in a manner fitting his station, and which conforms to the standard habitually practiced among civilized nations.” [34] Another important case is the Roberts [35] arbitration in which Harry Roberts, a US citizen was arbitrarily and illegally arrested and held in jail for nineteen months without a hearing in intolerable conditions of incarceration. Holding that the treatment meted out to Roberts was cruel and inhumane, the Court said that equality is not the ultimate test of the propriety of the acts of authorities in the light of international law but that the test is, broadly speaking, whether aliens are treated in accordance with ordinary (minimum) standards of civilization.

In comparison, generally, proponents of national treatment argue that nationals of other states entering their territory must be prepared to take the host state as they find it accepting that responsibility will arise only in the case of discrimination against the foreigner. On the other hand, national treatment pays no regard to such matters as fundamental human rights and it is hardly credible that a State can escape international responsibility for, say, brutal torture of foreigners simply because national law allows it to abuse its own citizens. [36] One approach to overcome this ambiguity is that neither ‘standard’ should be applied universally but the standard of care should vary with the type of application in question. [37]

LACK OF DUE DILIGENCE

A State’s failure to exercise due diligence to protect an alien is wrongful if the unpunished act of a private individual is a crime under the laws of that State. Responsibility then arises if that State fails to apprehend or control the individual who has committed the crime against the foreign citizens. [38] A case in point is United States Diplomatic and Consular Staff in Tehran Case (US v. Iran) [39] where a group of Iranian citizens took a US Embassy hostage along with the Embassy staff. Iran incurred State responsibility for failing to take any action to stop the crowds from stampeding the persons and property of these foreign citizens. In a recent case, the international arbitration tribunal held that “due diligence” obligation under the minimum standard is a part of customary international law. [40]

II. EXPROPRIATION OF PROPERTY OF ALIENS

Expropriation is the compulsory taking of private property by the State. Initially, the definition of property was said to include all moveable and immoveable property, whether tangible or intangible, including industrial, literary and artistic property, as well as the rights and interests in any property. [41] Expropriation extends beyond the actual physical taking of property to include any action which unreasonably interferes with “the use, enjoyment or disposal of property”. [42]

A nation possesses an inherent right to nationalize or expropriate property belonging to

foreign nationals and local citizens. [43] A succinct view on this is:

“Public International law regards nationalization as a lawful exercise of state power. This is because each state, being possessed of sovereignty, naturally has the right within its own territory to prescribe whatever social and economic system it chooses to establish. Speaking more concretely, every State has the exclusive right to regulate…..conditions of acquisition, loss and contents of ownership. Consequently, when one approaches this question from the standpoint of the principle of state sovereignty, one must recognize that the states enjoy their right to adopt nationalization measures. Nationalization belongs to matters of national jurisdiction and therefore….neither the United Nations nor other states have right to intervene when another country nationalizes the property.” [44]

In Texaco Overseas Petroleum Company v. Libyan Arabian Republic, [45] it was held that:

“The right of a State to nationalize is unquestionable today. It results from international customary law, established as a result of general practices considered by the international community as being the law. The exercise of national sovereignty to nationalize is regarded as an expression of the State’s territorial sovereignty.

Territorial sovereignty confers upon the State an exclusive competence to organize as it wished the economic structures of its territory and to introduce therein any reforms which may seem to be desirable to it. It is an essential prerogative of sovereignty for the constitutionally authorized authorities of the State to choose and build freely an economic and social system. International law recognizes that a State has this prerogative just as it has the prerogative to determine freely its political regime and its constitutional institutions. The exclusive nature of such a right is in fact confirmed by the fact that in practice a decision to nationalize very often is made by the organ which is regarded as the supreme level in the hierarchy of State institutions.”

Expropriation especially during the post-colonial period became an important issue in international law with competing interests between capitalist and socialist states and between the developed and developing nations. [46] Capitalist developed countries require a guarantee of protection and security before investing abroad, while the socialist states are reluctant to allow too much foreign investment for fear of undermining their own resources. [47]

Both the competing interests recognize that every state has a legitimate right to expropriate property but the Western view is predominated by the feeling that such steps must comply with the international minimum standard accompanied by an effective compensation, this is denied by the developing nations. The position of the capitalist nations is represented in the General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources, which recognizes the right of peoples and nations “to permanent sovereignty over their natural wealth and resources.” [48]

Paragraph 4 of the Resolution, which is regarded as reinforcing customary international law, provides:

“[N]ationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security of national interest 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.”

In other words, in order to be valid, expropriation should be for public purposes, should not be discriminatory and should be accompanied by compensation assessed in accordance with rules in force in appropriate municipal and international law. [49] Without compensation, the taking of land is termed as confiscation which is unlawful under international law. [50]

LAWFUL AND UNLAWFUL EXPROPRIATION

Nationalization should be for public purpose for it to be valid under international law. This means that it should not be done for merely political purposes but must be done for the general well-being of the State. [51] However, this ground has not been given a predominant importance in international claims and it has been held that public utility principle is not a necessary requisite for legality of nationalization taking secondary importance. [52] Nationalization which is discriminatory against foreigners has been regarded as being contrary to international law. [53] In the Amoco case, although discrimination was acknowledged as being prohibited, it was held that it could be permitted and tolerated in certain circumstances such as being reasonably related to public purpose. [54]

State measures, prima facie a lawful exercise of powers of government, may affect foreign interests considerably without amounting to expropriation. [55] Thus foreign assets and their use may be subjected to taxation, trade restrictions involving licenses and their quotas, or measures of devaluation of currency. [56]

COMPENSATION

In the Chorzow Factory case, [57] the PCIJ held that:

“When expropriation happens unlawfully, reparation in the form of compensation is the necessary corollary of the violation of the obligations resulting from an engagement between States. The essential principle contained in the actual notion of an illegal act is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability have existed if that act had not been committed.”

There is a notion that if compensation is paid, it must comply with the minimum international standard [58] and that it must be “prompt, adequate and effective” [59] . The term “appropriate compensation” has been adopted in the Texaco case [60] as being reflective of customary international law. Also, that such compensation must be assessed in the light of the circumstances peculiar to the particular case. In Anglo-Iranian Oil case, [61] the ICJ held that “effective compensation” means that the recipient of the compensation must be able to make use of it to be able to, say, use it to set up a new enterprise to replace the one that has been expropriated or to use it to such other purposes as he wishes. The compensation, therefore, must be freely transferable from the country paying it and so far as that country’s restrictions are concerned, convertible into other currencies. The idea of just compensation is understood as compensation equal to the full value of the expropriated assets. [62] Many number of hosts are willing to conclude treaties based on the principles of “prompt, adequate and effective compensation and more frequently on the principles of just compensation. The patterns of these agreements surely constitute evidence of an international standard based upon the principle of compensation even though the deals are usually negotiated and arrived at. [63]

In Amco Indonesia case, [64] it was stated that compensation should be awarded for the loss suffered (damnum emergens) and expected profits (lucrum cessans). In accordance with the established rules of State responsibility, unlawful expropriation should merit full restitution in kind or, alternatively, the loss or expected loss of profits. On the other hand, lawful expropriation would only warrant compensation reflecting the value of the property taken at the time of the takeover. [65] Majority of the Western countries support these rules of compensation. [66]

Jurists supporting this compensation rule recognize the existence of certain exceptions [67] such as confiscation as a penalty for crimes, seizure by way of taxation measures or fiscal laws, destruction of property of neutrals as a consequence of milit