The Treatment Of Aliens Notes

11. The Treatment of Aliens An injury to the State An injury to a national is an injury to the State itself, and accordingly, the injured State is entitled to bring a claim against the responsible State to protect itself: Mavrommatis Palestine Concessions case (1924) The diplomatic protection is a matter of discretion for the national State: Administrative Decision No.V * The diplomatic protection is discretionary in customary international law: Kaunda v President of the Republic of South Africa (2005) * However, any limitation upon a State's control or discretion at all stages of a case is a matter for municipal, not international law: R. (Abassi) v Secretary of State for Foreign and Commonwealth Affairs [2002] 1. The dispute relates to Palestine and Britain's wrongful refusal to recognise Mavrommatis' rights acquired under contracts for public works to be done in Palestine. Greece took up Mavrommatis' case as it is a Greek subject. 2. Greece was asserting its rights by claiming indemnity from Britain arguing that Britain treated Mavrommatis in "a manner incompatible with certain international obligations which they are bound to observe." 3. At first, the dispute was between a private person (Mavrommatis) and a State (Britain). But Greece took up Mavrommatis' case so it is now a dispute in international law. Greece has the right to ensure respect for rules of international law. It is not substituting itself with the citizen, but is actually asserting its own rights. 1. US claims damages for Mexico's failure to exercise due diligence in finding and prosecuting the murderer of an American. The claim was rejected. Mavrommatis Palestine Concessions case (Jurisdiction) Greece v U.K. (1924) Disputes, defined. * A dispute is defined as a "disagreement on a point of law or fact, a conflict of legal views or of interests between 2 persons." Capacity of a state to bring claims from acts contrary to international law committed by another state. * A state can take up the case of its subjects when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. So WON a dispute originates in a personal injury is irrelevant. Greece, in the eyes of Britain, is the sole claimant. Two Standards "International minimum standard" -- developing country * Criteria is that the acts should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognise its insufficiency: Neer Claim "national standard" -- developed country * A State is only responsible for damage caused by private persons to the persons or property of foreigners if it has manifestly failed to take such preventive or punitive measures as in the circumstances might reasonably be expected of it had the persons injured been its own nationals. * Rationale: as a matter of international law, the standard of treatment is to be defined in terms of equality under the local law. Neer Claim US v. Mexico (1926) International minimum standard. The proprietary of governmental acts should be put to the test of international standards, and that the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognise its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law OR from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial. Admission and Expulsion A State may expel an alien whenever it wishes, provided it does not carry out the expulsion in an arbitrary manner: DR Berger's case (1961) * Following examples of "arbitrary": *> by using unnecessary force to effect the expulsion *> by otherwise mistreating the alien *> by refusing to allow the alien a reasonable opportunity to safeguard property. * The requirement for "constructive expulsion": International Technical Products Corp. v Ivan (1985) 1 11. The Treatment of Aliens *> The alien cannot reasonably be regarded as having any real choice; and *> There is an intention of having the alien ejected and *> These acts are attributable to the State in accordance with principles of State responsibility. * It is usually accepted that the following expulsion is justified: (Goodwin-Gill, pp470 case book) *> for entry in breach of law; *> for breach of the conditions of admission; *> for involvement in criminal activities; *> in the light of political and security considerations. A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling State's action, in other words that it was arbitrary, discriminatory, or in breach of the expelling State's obligation: Rankin v Iran (1987) According to British law, a stateless person will not be deported. Whereas a State may exclude aliens in its discretion, it is obliged to admit its own nationals who have been expelled from another State, at least where they have nowhere else to go. 1. The claimant was an American national employed by BHI, an American company, in Iran at the time of the fall of the Shah's Government and its replacement by the Islamic Revolutionary Government in February 1979. 2. On February 12, the day after the new Government took office, the claimant, was requested to be evacuated from the country with other BHI employees whom BHI had arranged to be repatriated. 3. The claimant claimed compensation for loss of salary and abandoned personal property resulting from his alleged expulsion from Iran contrary to international law. Held, no breach; the Revolutionary Guards were not insurrectionists; no proof that the Guards coerced him to leave; he felt unsafe and freely decided to leave; no compensation. Rankin v Iran US v Iran (1987) Burden of Proof International law imposes certain restraints on the circumstances and the manner in which a State may expel aliens from its territory. A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling State's action, in other words that it was arbitrary, discriminatory, or in breach of the expelling State's obligation. The tribunal finds that the Claimant has not satisfied the burden of proving that the implementation of the new policy of the Respondent... was a substantial causal factor in his departure from Iran. Neither has the claimant satisfied the burden of proving that his decision to leave was caused by specific acts or omission of or attributable to the Respondent. Rather, the turmoil and generally chaotic conditions associated with this crucial stage of the Revolution would appear to have been the motivating factor in the Claimant's decision to leave. Expropriation Expropriation & Confiscation * If compensation is not provided, or the taking is regarded as unlawful, the taking is sometimes described as confiscation. Resolution 1803 --> accepted in a number of arbitration awards as reflecting customary international law * Nationalisation, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognised as overriding purely individual or private interests, both domestic and foreign. * In such cases the owner shall be paid appropriate compensation. * In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. * Upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication. Property, for the purpose of expropriation, may extend to contractual rights: Starret case The meaning of a taking of property means a State's interference with property rights to such an extent that these rights are rendered so useless: Starret case * Modes of "taking of property" (Notes): * by the transfer of title by law, as in the typical case of nationalisation or of the expropriation; * by the physical seizure of property, for example, transfer under duress or by confiscatory taxation. * by taking of the "effective use" of the property: Starret case *> Known as indirect or "constructive" expropriation: - In the scenario of indirect expropriation, the intent of the government is less important than the effect of the measures on the owner; and the form of the measures of control or interference is less important than the reality of their impact --> (objective theory of state responsibility):Tippetts v TAMS-ATTA (1985) 2 11. The Treatment of Aliens 1. In 1974, the claimant American company, operating through Shah Goli, an Iranian subsidiary company, entered into an agreement with an Iranian development bank to buy land in Iran and build houses upon it. 2. The project was proceeding on schedule when harassment during the 1979 revolution caused the withdrawal of most of the American and other foreign personnel working on it. 3. This, coupled with general revolutionary disruption and government intervention, caused the project to fall behind schedule and Shah Goli to be in financial difficulties. 4. On January 30, 1980, the Iranian Government placed Shah Goli under the control of a temporary manager. 5. The claimant contended that their property interests in the housing project have been unlawfully taken by the Government of Iran which has deprived them of the effective use, control and benefits of their property by means of various actions authorising, approving and ratifying acts and conditions that prevented Starrett from completing the Project. In this interlocutory award, the Tribunal determined that there had been a "taking" of the claimant's property as of the end of January 1980 and appointed experts to evaluate the loss. Difference between expropriation & regulation * A State is not liable for economic injury which is a consequence of bona fide 'regulation' within the accepted police power of States: Sedco Inc v N.I.O.C (1985) * Accordingly, economic measures such as non-confiscatory taxation, exchange control regulation and currency revaluation do not normally result in expropriation. * In addition, the forfeiture of property as a criminal sanction is in principle lawful. Elements of a lawful expropriation: * Must have a public purpose: Amoco case *> It is sufficient for the expropriating home State to prove "the taking is done in pursuant of some public purpose": Amoco Examples for "not for the public purpose": - The only purpose of the expropriation is to avoid contractual obligations of the State or of an entity controlled by it; - The only purpose of the expropriation is for financial purposes However, those nationalisations for the purpose of obtaining a greater share, or even the totality, of the revenues drawn from the exploitation of a national natural resource, is not regarded as being unlawful and illegitimate. * Non-discrimination: Amoco case *> Not an absolute requirement. * A coherent policy of nationalisation can reasonably be operated gradually in successive stages". * However, discrimination is reasonably related to the public purpose. * Appropriate compensation: Amoco case; BP case *> Controversial issue in regards whether it is an essential element for legal expropriation, especially between developed countries and developing countries. - Developed countries: appropriate compensation as incorporating the "international minimum standard' *> Damages by way of reparation for any illegal expropriation may include lost profits, but limited only to the time of judgment: Amoco case In a case of illegal expropriation the ordinary rules of State responsibility apply: Amoco, Chorzow Factory and Aminoil cases Stabilisation clauses * The term 'stabilisation clause' relates to any clause contained in an agreement between a government and a foreign legal entity by which the government party undertakes not to annul the agreement nor to modify its terms, either by legislation or by administrative measures. * There is no rule in international law absolutely precluding a home state from expropriating: Aminoil case An "internationalised" contract with a stabilisation clause may preclude the exercise of the expropriatory prerogatives of the home state:Texaco v Libya (1978) *> Features of internationalisation of a contract:Texaco v Libya (1978) - Whether the contract refers to the general principles of international law - Whether there is an arbitration clause - Whether there is a new category of agreements between the States and private persons, for example, an economic development agreement - Whether the subject matter is particularly broad, i.e., they are not concerned only with an isolated purchase or performance, but tend to bring to developing countries investments and technical assistance. *> Consequence of an "internationalised" contract - An "internationalised" contract is subjected to the standards of international law and taken out of the ambit of domestic law:Texaco v Libya (1978) Conditions for "stabilisation clauses" to work: Aminoil case *> it is for a serious undertaking; and *> it is expressly stipulated for; and *> it covers a limited period. * In some circumstances, an appropriate compensation may even bypass a "stabilisation clause", see Aminoil case. Starrett Housing Corp v Iran (interlocutory Award) US v Iran (1983) 3

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