LAST WEEK?S bloody incident where eight foreigners died has given disseminators of international law an opportunity to popularize the topic of state responsibility for the treatment of aliens. There is responsibility for the doing of an internationally wrongful act if a state breaches a norm of international law, whether based on a treaty or existing under customary international law. Here, unlike in the law of tort, fault or negligence is not required although oftentimes, the existence of either will affect the amount of recoverable compensation. It suffices though that such a breach exists.
As a consequence of the breach, a state, according to the International Court of Justice in its Advisory Opinion on the Legal Consequences Arising from the Building of the Palestinian Wall, incurs a positive duty to cease and desist from further perpetrating the breach. Moreover, there is the obligation to make reparations, that is, to restore the status quo ante, and if this is no longer possible, to pay compensation.
How much compensation is due? In the Chorzow Factory case, the Permanent Court of International Justice said that compensation should be sufficient ?to eliminate all the consequences of the illegal act.?
The issue of when a state incurs liability arising from its treatment of an alien in its territory has developed not only in parallel with the law on state responsibility, but has also led to efforts to codify this branch of customary international law. Earlier discussions on international responsibility were about whether or not a state should incur liability for the specific manner by which it treated an alien in its territory.
So when does a state incur liability for its treatment of aliens? Is this when it treats an alien differently from its own nationals? Or is there a distinct internationally recognized minimum standard which states should follow in treating aliens in their territory?
Advocates of the so-called nationality principle argue that responsibility attaches if a state treats an alien differently from its own nationals. Those who subscribe to this view argue that given inherent differences in resources available to states, it would be unfair to compel the poorer sates to a common standard with richer states. Hence, liability should only be where there is an overt act of discrimination against an alien.
The other view says state responsibility is triggered when a state fails to adhere to an internationally accepted minimum standard. This appears to be the more correct view. By arguing on a minimum standard of conduct, it prescribes to the over-all regime by which human rights law operates today. That is, regardless of differences in resources, states are bound to treat all in a ?civilized? manner regardless of nationality, race, color or creed. The problem is, what is this internationally recognized minimum standard?
It was, among others, this particular query which kept the internationally community from codifying the law on international responsibility for more than five decades. In fact, it was only when it was agreed that the treatment of aliens is a substantive issue of international law separate and distinct from when a state incurs international responsibility, that the International Law Commission successfully concluded its draft articles of state responsibility. Meanwhile, the minimum standard by which states should deal with aliens appears to have been arrived at by consensus not because it provides for a rigid formula, but because it has been defined in relative terms.
The Neer Claims, an arbitration between between the United States and Mexico, codifies the prevailing standard: ?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.?
Applying this rule to the carnage at the Luneta, one driven by emotions could readily conclude that the conduct of the ill-equipped and badly trained members of the Philippine National Police, coupled with the media?s failure to exercise self-restraint which may have contributed to the death of eight aliens, may in fact constitute the outrage, bad faith and willful neglect of duty that will entail Philippine state responsibility for the carnage. This is why Hong Kong officials are demanding a through and impartial probe. Like all claims in law, a claim of a breach of state responsibility must be based on evidence, not emotions.
But even assuming that the Philippines may be held responsible for a breach of its obligations, the consequence for such is only payment of compensation. This breach will not suffice to justify any act of reprisal against the Philippine state itself, or against the person of a Filipino national. Reprisals on an inter-state level has been outlawed with the adoption of the United Nations Charter which prohibits the use of force except under very well-defined conditions. Likewise, reprisals by Chinese nationals against Filipinos find absolutely no basis under both international law and the domestic law of any civilized nation. In fact, if Chinese authorities fail to take steps to prevent unofficial attacks against Filipino nationals in Hong Kong, the Chinese state itself may be held in breach of its obligations.
The law on state responsibility exists precisely for the purpose of settling disputes between states and their people peacefully and within the framework of law.
Harry L. Roque Jr. is now on leave from the UP College of Law but will resume teaching international law and constitutional law in November.
