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The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights*

Published online by Cambridge University Press:  27 February 2017

Myres S. McDougal ,
Harold D. Lasswell  and
Lung-chu Chen
Myres S. McDougal
Affiliation:
Yale Law School
Harold D. Lasswell
Affiliation:
Yale Law School
Lung-chu Chen
Affiliation:
Yale Law School
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Extract

The deprivations with which we are here concerned are those imposed upon individuals on the ground that they do not possess the “nationality” of the imposing state. By nationality we refer to the “characterizations” states make of individuals for the purpose of controlling and protecting them for the many comprehensive concerns of states. Since the larger transnational community honors states in the conferment and withdrawal of “nationality” upon many different grounds—including place of birth, blood relation, subjective identification of individuals, and various activities—these characterizations may bear little relation to the actual facts of particular community membership and, hence, to reasonable differentiations in terms of common interest in the larger community of mankind. It is our thesis that most deprivations imposed through these characterizations are made unlawful, not merely by the historic law of the responsibility of states, but also by a newly emerged general norm of nondiscrimination which seeks to forbid all generic differentiations among people in access to value shaping and sharing for reasons irrelevant to individual capabilities and contribution.

Type
Research Article
Information
American Journal of International Law , Volume 70 , Issue 3 , July 1976 , pp. 432 - 469
Copyright
Copyright © 1976 by The American Society of International Law

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Footnotes

*

This article is excerpted from a book, Human Rights and World Public Order, the authors have in progress. The authors gratefully acknowledge the criticism and comments of Professor W. Michael Reisman. The Ralph E. Ogden Foundation has been generous in its support of the studies from which this article is drawn.

References

1 The concept of “nationality” is often reified into a pseudoabsolute comparable to “title,” with considerable normative ambiguity. For an attempt at clarification, see McDougal, , Lasswell, , & Chen, , Nationality and Human Rights: The Protection of the Individual in External Arenas, 83 Yale L. J. 901 (1974)Google Scholar, especially at 901–03, wherein relevant references are indicated. It may be recalled that stateless persons are not only aliens but may because of the lack of a protector be subjected to more severe deprivations. See id. at 902, 960–62.

In her recent study, the Baroness Elles employs the term “alien” to designate “an individual over whom a states [sic] has no jurisdiction, and no link exists between the individual and the state except in so far as the individual may be within the territory of that state.” Elles, Aliens and Activities of the United Nations in the Field of Human Rights, 7 Human Rights J. 291, 296 (1974). This would appear inadequate and confusing. The comprehensive and continuing claims states make about individuals under the concept of “nationality” are quite different from the occasional and limited claims they make under the concept of “jurisdiction.” The claims states make in relation to aliens under “jurisdiction” are, furthermore, quite extensive, and the “links” that may exist between an alien and a state may include much more than residence. Cf. Nottebohm case, [1955] ICJ Rep. 4.

2 For detailed elaboration of the general norm of nondiscrimination, see McDougal, , Lasswell, , & Chen, , The Protection of Respect and Human Rights: Freedom of Choice and World Public Order, 24 Am. U. L. Rev. 919, 1034–86 (1975)Google Scholar [hereinafter cited as The Protection of Respect and Human Rights]; McDougal, , Lasswell, , & Chen, , Human Rights for Women and World Public Order: The Outlawing of Sex-Based Discrimination, 69 AJIL 497 (1975)CrossRefGoogle Scholar; McDougal, , Lasswell, , & Chen, , Non-Conforming Political Opinion and Human Rights: Transnational Protection Against Discrimination, 2 Yale Studies in World Public Order 1 (1975)Google Scholar; McDougal, , Lasswell, , & Chen, , The Human Rights of the Aged: An Application of the General Norm of Non-Discrimination, 28 U. Fla. L. Rev. No. 3 (Summer 1976, forthcoming)Google Scholar; McDougal, , Lasswell, , & Chen, , The Right to Religious Freedom and World Public Order: The Emerging Norm of Non-Discrimination, 74 Mich. L. Rev. No. 5 (April 1976)CrossRefGoogle Scholar; McDougal, , Lass-well, , & Chen, , Freedom from Discrimination in Choice of Language and International Human Rights, 1 So. 111. U.L.J. 1151 (1976)Google Scholar.

3 F. Dawson & I. Head, International Law, National Tribunals and the Rights of Aliens xi (1971).

4 See E. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims 63–64 (1922); A. Freeman,The International Responsibility of States for Denial of Justice 510–11 (1938).

In the United States, resident aliens, especially those who had formally declared their intention to become U.S. citizens, were at one time permitted to vote in 22 states. See M.Konvitz, The Alien and the Asiatic in American Law 180 (1946); Terrace v. Thompson, 263 U.S. 197 (1923).

5 E. Borchard, supra note 4, at 63. See also W. Davies, The English Law Relating to Aliens 184–210 (1931).

6 M. Konvitz supra note 4, at 1–45. Cf. generally J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including his Own, and to Return to his Country, UN Doc. E/CN.4/Sub.2/220/Rev. l (1963).

7 See 6 A British Digest of International Law 83–241 (C. Parry ed. 1965); E. Borchard, supra note 4, at 48–63; I. Brownlie, Principles of Public Inter-National Law 505–07 (2d ed. 1973); 3 G. Hackworth, Digest of International Law 690–705 (1942) ; M. Konvitz, supra note 4, at 46–78; M. Konvitz, Civil Rights in Immigration 93–131 (1953) ; 2 D. O ‘Connell, International Law 706–11 (2d ed. 1970); 1 L. Oppenheim, International Law 691–95 (8th ed. H. Lauterpacht ed. 1955); United Nations, Study on Expulsion of Immigrants (1955); P. Weis, Nationality and Statelessness in International Law 49–60 (1956) ; 1 M. White Man, Damages in International Law 418–514 (1937) ; 8 M. Whtteman, Digest of International Law 620–22, 850–63 (1967); Puente, , Exclusion and Expulsion of Aliens in Latin America, 36 AJIL 252, 257-70 (1942 Google Scholar).

8 The concept of “denial of justice” is of course frequently used not primarily for its factual reference but as a term of art to indicate a finding of state responsibility. The same cases, and their discussion in the literature, do, however, illustrate the factual deprivations imposed upon aliens. Sohn and Baxter seek to clarify this much-abused concept in these words:

This term [denial of justice] has in the past been used in at least three different senses. In its broadest sense, this term seems to embrace the whole field of State responsibility, and has been applied to all types of wrongful conduct on the part of the State toward aliens. In its narrowest sense, this term has been limited to refusal of a State to grant an alien access to its courts or a failure of a court to pronounce a judgment. In an intermediate sense, the expression “denial of justice” is employed in connection with the improper administration of civil and criminal justice as regards an alien, including denial of access to courts, inadequate procedures, and unjust decisions. The last appears to be the most apposite usage, since the term may thus be usefully employed to describe a particular type of international wrong for which no other adequate phrase exists in the language of the law.

F. Garcia-Amador, L. Sohn, & R. Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens 180 (1974). This book reproduces, in the first half, the draft articles on “Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens” and commentary thereon, with some minor changes, as excerpted from the six reports submitted by F. V. Garcia-Amador to the International Law Commission during the period 1956–1961 in his capacity as the Special Rapporteur on the subject of “State Responsibility.” These six Reports are: First Report, [1956] 2 Y.B. Int ‘L L. Comm’n 173–231, UN Doc. A / CN.4/96 (1956) [hereinafter cited as Garcia-Amador’s First Report]; Second Report, [1957] 2 Y.B. INT ‘L L. Comm’n 104–30, UN Doc. A/CN.4/106 (1957) [hereinafter cited as Garcia-Amadors Second Report]; Third Report, [1958] 2 Y.B. Int ‘L L. Comm’n 47–73, UN Doc. A/CN.4/111 (1958); Fourth Report, [1959] 2 Y.B. Int ‘L L. Comm’n 1–36, UN Doc. A/CN.4/119 (1959); Fifth Report, [1960] 2 Y.B. Int ‘L L. Comm’n 4 1 -68, UN Doc. A/CN.4/125 (1960); Sixth Report, [1961] 2 Y.B. Int ‘L L. Comm’n 1–54, UN Doc. A/CN.4/134 and Add. 1 (1961). In the second half, the book reproduces the “Convention on the International Responsibility of States for Injuries to Aliens” (Final Draft with Explanatory Notes) prepared in 1961 by Louis B. Sohn and R. R. Baxter, as Reporters.

On denial of justice, see generally I. Brownlie, supra note 7, at 514–16; A. Free-Man, note 4 supra; 2 C. Hyde, International Law Chiefly as Interpreted and Applied by The United States 909–17 (1945) ; 2 D. O ‘Connell, supra note 7, at 945–50; Restatement (Second) of Foreign Relations Law of the United States 502–03, 534–48 (1965) [hereinafter cited as Restatement]: De Arechaga, , Inter-national Responsibility, in Manual of Public International Law 531, 553–57 Google Scholar (M. Sørensen ed. 1968); Eagleton, , Denial of Justice in International Law, 22 AJIL 538 (1928)CrossRefGoogle Scholar ; Fitzmaurice, , The Meaning of the Term “Denial of Justice,” 13 B. Y. Int ‘L L. 93 (1932)Google Scholar; Spiegel, , Origin and Development of Denial of Justice, 32 AJIL 63 (1938)Google Scholar.

9 Cf. F. Dawson & I. Head, note 3 supra; A. Freeman, note 4 supra; F . Garcia-Amador, L. Sohn & R. Baxter, supra note 8, at 179–99; 2 C. Hyde, supra note 8, at 924–36.

10 See E. Borchard, supra note 4, at 87; 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure 1–122.1—1–123 (rev. ed. 1975); M. Konvitz, supra note 4, at 148–52; McGovney, , The Anti-Japanese Land Laws, 35 Calif . L. Rev. 61 (1947)Google Scholar; Sullivan, , Alien Land Laws: A Re-Evaluation, 36 Temp. L. Q. 15 (1962)Google Scholar.

The Mexican laws regarding aliens’ rights to acquire real property are described as “lush, barren, cragged, flat, solemn, capricious, gnarled, slashed, smoothed and painted… .” Quoted in Comment, Do We Live in Alien Nations?, 3 Calif . Western Int’L L. J. 75, 83 (1972) . For more details, see id. at 83–94.For charts showing limitations on the acquisition of land imposed on aliens (individuals and corporations) by various states of the United States, see id. at 95–111.

11 E. Borchard, supra note 4, at 86.

12 Id. at 91.

13 For comprehensive reference, see Weston, , International Law and the Deprivation of Foreign Wealth: A Framework for Future Inquiry, in 2 The Future of the International Legal Order 36–182 (Falk, R. & Black, C. eds. 1970)Google Scholar. Cf. generally K. Carlston, Law and Organization in World Society (1962) ; Essays on Expropriation (R. Miller & R. Stanger eds. 1967); A. Fatouros, Government Guarantees to Foreign Investors (1962) ; I. Foighel, Nationalization and Compensation (1964) ; W. Friedmann, Expropriation in International Law (1953) ; R. Lillich, The Protection of Foreign Investment (1965); R. Lillich, International Claims: Postwar British Practice (1967) ; E. Mooney, Foreign Seizures—Sabbatino and the Act of State Doctrine (1967) ; Rights and Duties of Private Investors Abroad (International and Comparative Law Center, The Southwestern Legal Foundation ed. 1965); Selected Readings on Protection by Law of Private Foreign Investments (International and Comparative Law Center, The Southwestern Legal Foundation ed. 1964); H. Steiner & D. Vagts, Transnational Legal Problems 408–94 (2d ed. 1976); The Valuation of Nationalized Property in International Law (vols.1–3) (R. Lillich ed. 1972–75); B. Weston, International Claims: Postwar French Practice (1971) ; G. White , Nationalisation of Foreign Property (1961); B. Wortley, Expropriation in Public International Law (1959); Dawson & Weston, Prompt, Adequate and Effective: A Universal Standard of Compensation, 30 Fordham L. Rev. 727 (1962); Lowenfield, , Reflections on Expropriation and the Future of Investment in the Americas, 7 Int’l Lawyer 116 (1973);Google Scholar Mann, , Outlines of a History of Expropriation, 75 L. Q. Rev. 188 (1959);Google Scholar Metzger, , Property in International Law, 50 Va. L. Rev. 594 (1964);Google Scholar Nationalization, 14 Harv. Int’l L. J. 378 (1973).

14 As Borchard wrote: “The labor of aliens is the only exchangeable commodity they possess. To deprive them of the right to labor is to consign them to starvation.” E. Borchard, supra note 4, at 186. “An alien cannot live,” he added, “where he cannot work.”Id. at 187.

Cf. W. Gibson, Aliens and the Law 119–43 (1940); Das, , Discrimination in Employment against Aliens—The Impact of the Constitution and Federal Civil Rights Laws, 35 U. Pitt. L. Rev. 499 (1974);Google Scholar Comment, Equal Protection and Supremacy Clause Limitations on State Legislation Restricting Aliens, 1970 Utah L. Rev. 136; Note, , Constitutionality of Restrictions on Aliens’ Right to Work, 57 Colum. L. Rev. 1012 (1957)Google Scholar; Note, Protection of Alien Rights Under the Fourteenth Amendment, 1971 Duke L. J. 583 [hereinafter cited as Note on Protection of Alien Rights].

15 E. Borchard, supra note 4, at 186. See also United Nations, Study on Assistance to Indigent Aliens, UN Doc. ST/SOA/7 (1951); Note, State Discrimination against Mexican Aliens, 38 Geo Wash. L. Rev. 1091 (1970).Google Scholar

16 For a lengthy itemization of occupations that were once denied aliens in the United States, see M.Konvitz, supra note 4, at 190–211. Cf. E. Borchard, supra note 4, at 80; 1 C. Gordon & H.Rosenfield, supra note 10, at 1–118—1–120; Branse, State Laws Barring Aliens from Professions and Occupations, 3 Ins Monthly Rev. 281 (March 1946); Cliffe, Aliens: The Unconstitutional Classification for Admission to the Bar, 4 St. Mary’s L. J. 181 (1972); Sanders, Aliens in Professions and Occupations— State Laws Restricting Participation, 16 in Reporter 37 (1968); Comment, Constitutional Protection of Aliens, 40 Tenn. L. Rev. 235, 245–53 (1973).

Within the United States, community expectations and practices appear to be changing more favorably towards aliens. See In Re Griffiths, 413 U.S. 717 (1973); Gordon, , The Alien and the Constitution, 9 Calif. Western L. Rev. 1 (1972)Google Scholar; Miller, & Steele, , Aliens and the Federal Government: A Newer Equal Protection, in Immigration, Alienage and Nationality 1–31 (1975)Google Scholar (UCD L. Rev. vol. 8); Note on Protection of Alien Rights, supra note 14; Recent Decisions—Constitutional Law—Rights of Aliens —Citizenship as a Requirement for Admission to the Bar is a Violation of Equal Protection, 4 Ga. J. Int’L & Comp. L. 206 (1974).

Cf. also Christol, & Bader, , Legal Rights of the Alien in Austria with Special Reference to the United States Citizen, 7 Int’l Lawyer 289 (1973)Google Scholar.

17 See McDougal, Lasswell, & Chen , supra note 1, at 922–23, 939–40, 973–74. See also United Nations, Nationality of Mabhied Women (1963); United Nations, Convention on the Nationality of Married Women (1962); W. Waltz, The Nationality of Married Women (1937).

18 E. Borchard, supra note 4, at 91.

19 In the words of Dunn:

… the simple fact that he is a foreigner may often be a determining factor in the kind of treatment he receives at the hands of private individuals or government officials. Prejudice against aliens as such is still a pervasive trait of human nature.

F. Dunn, The Protection of Nationals 36 (1932).

It may be noted that the vulnerability of the alien to severe deprivations in the host community is, of course, particularly acute at a time of high crisis, as exemplified by the extremely harsh treatment accorded “enemy aliens.” The treatment of enemy aliens raises very special policy problems in relation to state security, which cannot be dealt with in this article. See M. Domke, The Control of Alien Property (1947); M. Domke, Trading With the Enemy in World War II (1943); F. Lafitte, The Internment of Aliens (1940); M. Mcdougal & F. Feliciano, Law and Minimum World Public Order 89–91 (1961); 2 D. O’Connell, supra note 7, at 769–73; Rubin, S., Private Foreign Investments 57 Et Seq. (1956)Google Scholar; Borchard, , The Treatment of Enemy Property, 34 Geo. L. J. 389 (1946)Google Scholar; Carlston, ; Return of Enemy Property, 52 ASIL Proc. 53 (1958)Google Scholar; Jessup, , Enemy Property, 49 AJIL 57 (1955)CrossRefGoogle Scholar; Sommerich, , A Brief against Confiscation, 11 Law & Contemp. Prob. 152 (1945)Google Scholar.

20 See note 2 supra.The United States Supreme Court, in outlawing state statutes denying welfare benefits to aliens, declared in Graham v. Richardson that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a “discrete and insular’ minority … for whom such heightened judicial solicitude is appropriate.

21 F. Dunn, supra note 19, at 1.

22 Cf. McDougal, Lasswell, & Chen, supra note 1, at 903–05.

23 F. Dunn, supra note 19, at 133.

24 Ibid.

25 Ibid.

26 Id. at 134.

27 See notes 93–132 infra and accompanying text.

28 See McDougal, Lasswell, & Chen, note 1 supra. The imposition of deprivations by such a flexible group label may reflect the utmost arbitrariness.

29 Cf. id at 901–05, 993–98; F. Dunn, supra note 19

30 In the words of Goebel:

Very clearly, in the earliest times, the alien, as a clanless individual or outlaw, was without any of the existing personal rights. He had no “wergeld,” he was not entitled to the peace and protection of the locality, and if by chance he enjoyed even liberty of person it was only by sufferance and in amelioration of the harsh laws which gave the local lord title over his person, as ferae naturae. How long these practices survived, we cannot say, but certainly the growth of a Gastrecht so common among primitive peoples was not long in superseding the ancient customs. This Gastrecht, or rights of hospitality, gave a certain quantum of protection to the foreigner and was exercised more particularly as a form of patronage of a lord over aliens.

Goebel, , The International Responsibility of States for Injuries Sustained by Aliens on Account of Mob Violence, Insurrection and Civil Wars, 8 AJIL 802, 803(1914).Google Scholar

31 E. Borchard, supra note 4, at 33; A. Roth, The Minimum Standard of Inter-National Law Applied to Aliens 25–26 (1949); Head, , The Stranger in Our Midst: A Sketch of the Legal Status of the Alien in Canada, 2 Canadian Y. B. Int’l L. 107, 108 (1964)Google Scholar.

32 See A. Roth, supra note 31, at 26.

33 E. Borchard, supra note 4, at 34.

34 F. Dawson & I. Head, supra note 3, at 1.

35 A. Roth, supra note 31, at 27.

36 Id. at 28. Cf. F. Dunn, supra note 19, at 46–48.

37 3 E. De Vattel, Classics of International Law: The Law of Nations ok the Principles of Natural Law (C. Fenwick transl. 1916). The book was first published in 1758. Cf. P. Remec, The Position of the Individual in International Law According to Grottos and Vattel (1960).

38 3 E. De Vattel, supra note 37, at 136.

Vattel’s doctrine was quite precisely formulated by the Permanent Court of Inter-national Justice in the Panevezys-Saldutiskis Railway case:

[I]n taking up the case of one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law. This right is necessarily limited to the intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the state and the individual which alone confers upon the state the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged. Where the injury was done to the national of some other State no claim to which such injury may give rise falls within the scope of the diplomatic protection which a State is entitled to afford nor can it give rise to a claim which that State is entitled to espouse.

[1939] P.C.I.J., ser. A/B, No. 76, at 16.

39 On the international law of state responsibility, see generally C. Amerasinghe, State Responsibility for Injures to Aliens (1967); W. Bishop, International Law: Cases and Materials 742–899 (3d ed. 1971); E. Borchard, note 4 supra; J. Brierly, the Law of Nations 276–91 (6th ed. H. Waldock ed. 1963); The Law of Nations 601–747 (H. Briggs ed. 2d ed. 1952) [hereinafter cited as H. Briggs]; I. Brownlte, supra note 7, at 418–581; B. Cheng, General Principles of Law as Applied by International Courts and Tribunals 161–253 (1953); F.Dawson * I. Head, note 3 supra; C. De Visscher, Theory and Reality in Public International Law 277–94 (P. Corbett transl. 1968); F. Dunn, note 19 supra; A. Free-Man, note 4 supra; C. Eagleton, the Responsibility of States m International Law (1928); W. Friedmann, O. Lissttzyn, & R. Pugh, Cases and Materials on International Law 745–879 (1969); F. Garcia-Amadoh, L. Sohn, & R. Baxter, note. 8 supra; International Law in the Twentieth Century 481–585 (L. Gross ed. 1969) [hereinafter cited as L. Gross]; W. Holder & G. Brennan, The International Legal System: Cases and Materials 629–709 (1972); P. Jessup, A Modern Law of Nations 94–122 (1968) ; C Joseph, Nationality and Diplomatic Protection: the Commonwealth of Nations (1969); M. Katz & K. Brewster, The Law of Inter-National Transactions and Relations: Cases and Materials 6–398 (1960); N. Leech, C Oliver, & J. Sweeney, Cases and Materials on the International Legal System 572–655 (1973) ; R. Lillich, International Claims: Their Adjudica-tion by National Commissions (1962) ; R. Ltllich & G. Christenson, Inter-National Claims: Their Preparation and Presentation (1962); 6 J. Moore, A Digest of International Law 605–1037 (1906) ; 2 D. O ‘Connell, supra note 7, at 693–719, 941–1025; 1. L. Oppenheim, supra note 7, at 335–69; Restatement, supra note 8, at 497–633; A. Roth, note 31 supra; H. Steiner & D. Vagts, supra note 13, at 357–530; G. Tunktn, Theory of International Law 381–425 (W. Butler trans], 1974); Borchard, , Diplomatic Protection, 5 Encyc. Soc. Sciences 153 (1931)Google Scholar; Copithome, , State Responsibility and International Claims, in Canadian Perspectives on International Law And Organization 207–28 (MacDonald, R., Morris, G., & Johnston, D. eds. 1974)Google Scholar; De Arechaga, note 8 supra; Garcia-Amador, State Responsibility— Some New Problems, 94 Hague Recueil Des Cours 365 (1958); Harvard Research in International Law, The Law of Responsibility,of States for Damage Done in Their Territory to the Person or Property of Foreigners, 23 AJIL Supp. 131 (1929) ; Sweeney, The Restatement of the Foreign Relations Law of the United States and the Responsibility of States for Injury to Aliens, 16 Syracuse L. Rev. 762 (1965).

For the work of the International Law Commission in regard to state responsibility, see Garcia-Amador’s six Reports, note 8 supra, and Ago’s Reports, note 92 infra.

40 See, e.g., McDougal, Lasswell, & Chen, supra note 1, at 906–18; Koessler, , Government Espousal of Private Claims before International Tribunals, 13 U. Chi . L. Rev. 180 (1945).CrossRefGoogle Scholar

41 As Dunn incisively observed:

We think of the United States as an organized group of individuals occupying a particular spot of the earth’s surface. Yet at any given moment, a vast number holding membership in that group are scattered all over the world, and an equally vast amount of their property, both real and personal, is situated in foreign jurisdictions. The same is true of all the other civilized nations of the world. Again, we conceive of the United States as a single economic unit. Yet if we trace the essential threads of that complicated fabric we find a surprisingly large proportion of them leading beyond the boundaries of the country to all parts of the world. If for any reason those threads should be cut, the effect upon the daily lives of all of us would be profound.

Dunn, , International Law and Private Property Rights, 28 Colum. L. Rev. 166, 170 (1928)CrossRefGoogle Scholar. See also McDougal, Lasswell, & Chen, supra note 1, at 901–05.

42 P. Jessup, supra note 39, at 95.

43 Ibid.

44 Id. at 96.

45 Id at 105.

46 Ibid.

The observation of Dunn is equally illuminating:

From a practical point of view, the foreigner, although he may be accorded full civil rights on the same basis as citizens, is often at a disadvantage in any dispute which he may have with the agents of the state of his sojourn merely by reason of the fact that he is a foreigner. Furthermore, being deprived of political rights outside of his own country, he is not at liberty to participate in the determination of the social and economic order and has not the political means for the protection of his interests that are at the disposal of the citizen. Perhaps for these reasons as much as any other, it has been found necessary, in a world of diverse cultures and heterogeneous peoples, of strong governments and weak governments, of orderly countries and disorderly countries, to work out a common code of treatment of aliens in order that there might be some basis of security and predictability upon which to build the present complex structure of international intercourse.

Dunn, supra note 41, at 174.

47 See notes 50–58 infra and accompanying text.

48 For an excellent historical account, see Borchard, , The Minimum Standard of the Treatment of Aliens, 38 Mich. L. Rev. 445 (1940). For other discussions and documentation, see notes 59–82 infra and accompanying textCrossRefGoogle Scholar.

49 See notes 48–139 infra and accompanying text.

50 Nondiscrimination is a principal objective of the treaties of friendship, commerce, and navigation. See R. Wilson, United States Commercial Treaties and Inter-National Law 6 (1960).

In its Restatement of Foreign Relations Law (§ 166), the American Law Institute characterizes “Discrimination against Alien” in these terms:

(1) Conduct, attributable to a state and causing injury to an alien, that discriminates against aliens generally, against aliens of his nationality, or against him because he is an alien, departs from the international standard of justice specified in §165.

(2) Conduct discriminates against an alien within the meaning of Subsection (l) if it involves treating the alien differently from nationals or from aliens of a different nationality without a reasonable basis for the difference.

Restatement, supra note 8, at 507–08.

51 Borchard, supra note 47, at 55.

52 F. Dawson & I. Head, supra note 3, at 7.

53 3 G. Hackworth, supra note 7, at 658–60.

54 The history of the standard of national treatment is well presented in Garcia-Amador’s First Report, supra note 8, at 201–02; F. Garcia-Amadob, L. Sohn, * R. Baxter, supra note 8, at 3–4.

55 6 C. Calvo, Le Droit International 231 (5th ed. 1885), quoted in Garcia-Amador’s First Report, supra note 8, at 201.

56 The International Conferences of American States, 1889 to 1928, at 45 (J. Scotted. 1931).

57 The International Conferences of American States, First Supplement, 1933–1940, at 122 (Carnegie Endowment for International Peace ed. 1940).

58 See Garcia-Amador’s First Report, supra note 8, at 201–02; A. Roth, supra note 31, at 62–80; I. Brownlie, supra note 7, at 509–10; W. Gibson, supraa note 14, at 19–44.

59 J. Breerly, supra note 39, at 278–79.

60 3 G. Hackworth, supra note 7, at 659.

61 F. Garcia-Amador , L. Sohn, & R. Baxter, supra note 8, at 158. Similarly, in the words of Goebel:

The Latin American states have shown considerable ingenuity in devising schemes to avoid liability for injuries to aliens. But to all appearances these have been of no avail. They have repudiated the theory of responsibility not only in their diplomatic correspondence, but in their statutes, their treaties, and even in their constitutions. From a purely political point of view, the position of the Latin American states may be regarded as a protest against indiscriminate intervention by European states. It is an effort, moreover, to maintain the privileges of equality of states and the inviolability of territorial sovereignty. From the juridical stand-point, however, we see in this attempt at repudiation of the theory of responsibility, a final effort to regulate the liability of the state by municipal legislation. This in turn may be in some measure understood as a heritage of the mother country which, in the course of development, has taken a new direction.

Goebel, supra note 30, at 832.

62 Borchard aptly summarized:

Thus, while equality is the ultimate that the alien may ask of municipal law, which is by no means bound to grant equality, the body of international law developed by diplomatic practice and arbitral decision, vague and indefinite as it may be, represents the minimum which each state must accord the alien whom it admits. Whether called the fundamental, natural, or inherent rights of humanity or of man or of the alien, this minimum has acquired a permanent place in the protective ambit of international forums.

Borchard, , The ‘ Minimum Standard” of the Treatment of Aliens, 33 ASIL Phocs., 51 53 (1939).Google Scholar

On the international minimum standard, see C. Amerasinghe, supra note39 at 278–81; E. Borchard, supra note 4, at 39–43, 104–09; H. Briggs, supra note 39, at 562–67; I. Brownlie, supra note 7, at 510–14; F. Dunn, supra note 19, at 113–72; C. Eagleton, supra note 39, at 82–87; A. Freeman, supra note 4, at 497–570; 1 L. Oppenheim, supra note 39, at 350–52; A. Roth, supra note 31, at 81–123; Restatement, supra note 8, at 501–07; H. Steiner & D. Vagts, supra note 13, at 360–530; 8 M. Whiteman, Digest of International Law, supra note 7, at 697–704; Freeman, Recent Aspects of the Calvo Doctrine and the Challenge to International Law, 40 AJIL 121 (1946); Garcia-Amador, supra note 39, at 429–31; Garcia-Amador’s First Report, supra note 8, at 199–201; Herz, , Expropriation of Foreign Property, 35 AJIL 243, 260 (1941)CrossRefGoogle Scholar; Verdross, Les Règles Internationales concernant le Traitement des Etrangers, 37 Hague Recueil Des Cours 323, 348–88 (1931).

63 Root, , The Basis of Protection to Citizens Residing Abroad, 4 ASIL Procs. 20–21 (1910)Google Scholar.

More recently, Wilfred Jenks wrote:

The test is the “ordinary standards of civilisation“; the common denominator is the “practice of civilised nations“; the criterion is the judgment of a “reasonable and impartial man.” These are all conceptions so general that their content will necessarily be determined by the policy of the times. The diplomatic protection of citizens abroad has often been associated in the past with the exercise of military, political or economic pressure by stronger against weaker States and it is therefore not a matter for surprise that a growing resistance to the concept of an inter-national standard should have been an almost inevitable feature of a period of sharp criticism of neo-colonialism; but an international standard, fairly applied, is both so fundamental an element in the concept of internationally guaranteed basic human rights and so essential a prerequisite of any mutually beneficial international economic intercourse that the concept may be expected to reassert itself in deference to overriding considerations of international public policy which are entitled to claim, and may be expected to receive, general acceptance.

C. Jenks, The Prospects of International Adjudication 514–15 (1964).

64 See Borchard, , Responsibility of States at the Hague Codification Conference, 24 AJIL 517 (1930)CrossRefGoogle Scholar. See also H. Briggs, supra note 39, at 563–64; I. Brownlie, supra note 7, at 510; A. Roth, supra note 31, at 104–11.

65 Case Concerning Certain German Interests in Polish Upper Silesia (Merits), [1926] P.C.I.J., ser. A, No. 7, at 22.

66 Ibid

Cf. the summary of Freeman:

The contention that equality with nationals is the measure of a state’s international obligations to aliens has been repeatedly rejected by international claims commissions as well as by the Permanent Court of International Justice itself. That court in the case concerning Certain German Interests in Polish Upper Silesia expressly recognized the existence of a common or generally accepted international law respecting the treatment of aliens and which is applicable to them despite municipal legislation.

Freeman, , Recent Aspects of the Calvo Doctrine and the Challenge to International Law, 40 AJIL 121, 126 (1946).Google Scholar

67 See A. Feller, The Mexican Claims Commissions, 1923–1934 (1935); A. Roth, supra note 31, at 94–99; Borchard, , Decisions of the Claims Commissions, United States and Mexico 20 AJIL 536 (1926)CrossRefGoogle Scholar.

68 The United States of America on behalf of L.F.H. Neer and Pauline E. Neer, Claimants v. The United Mexican States (October 15, 1926), in Claims Commission, United States and Mexico, Opinions of Commissioners Under the Convention Concluded September 8, 1923 Between the United States and Mexico, February 4, 1926, to July 23, 1927, at 71 (1927) [hereinafter cited as Opinions of Commis-Sioners]; 4 U.N.R.I.A.A. 60; [1925–1926] ANN. Dig. Case No. 154, at 214.

69 Opinions of Commissioners, supra note 68, at 73.

70 The United States of America, on behalf of Harry Roberts, Claimant, v. The United Mexican States (November 2, 1926), in Opinions Of Commissioners, supra note 68, at 100; 4 U.N.R.I.A.A. 77; 21 AJIL 357 (1927).

71 Opinions of Commissioners, supra note 68, at 105; 21 AJIL 357, 361 (1927).

72 A. Roth, supra note 31, at 97.

73 Ibid.

74 See R. Wilson, supra note 50.

75 LNTS 151, 157.

Another example is the Treaty of Friendship and Establishment between Egypt and Persia of 1928 which provided, in Article 4, that

The nationals of each of the High Contracting parties … shall enjoy, on the same footing as nationals, the most constant protection and security for their persons, property, rights and interests, in conformity with ordinary international law.

93 LNTS 381, 397.

76 A. Roth, supra note 31, at 99.

77 R. Wilson, supra note 50, at 6–9. Cf. U.S. Dep’t of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 1974 (Dep’t of State Pub. 8755, 1974); R. Wilson, the International Law Standard in Treaties of the United States 87–134 (1953). For a latest example see Agreement on Trade Relations Between the United States of America and the Socialist Republic of Romania; Trade Agreement Between the United States and Romania, H.R. DOC. NO. 94–114, 94th Cong., 1st Sess. (1975); 14ILM 671 (1975).

Treaties of friendship, commerce, and navigation between countries other than the United States are similar in terms. See, e.g., Treaty of Friendship, Commerce and Navigation between Japan and the Argentine Republic, signed on 20 December 1961; 613 UNTS 323.

78 [1954] 7 UST 1839, 1841; 273 UNTS 3,4; TIAS No. 3593.

79 On most-favored-nation treatment, see generally L. Chen, State Succession Relating to Unequal Treaties 96–108 (1974); Schwarzenberger, The Most-Favoured Nation Standard in British State Practice, 22 Brit. Y.B. Int’l L. 99 (1945); The Most-Favored-Nation Clause in the Law of Treaties, working paper submitted by Mr. Endre Ustor, UN Doc. A/CN.4/L.127 (1968), [1968] 2 Y.B. Int’l L. Comm’n 165; Ustor, [First] Report on the Most-Favored Nation Clause, UN Doc. A/CN.4/213 (1969); Second Report, UN Doc. A/CN.4/228 & Add. 1 (1970); Third Report, UN Doc. A/CN.4/257 & Add. 1 (1972); Fourth Report, UN Doc. A/CN.4/266 (1973).

80 See A. Roth, supra note 31, at 127–91; H. Stedmer & D. Vagts, supra note 13, at 357–530. See also note 62 supra. One important contemporary mode of settling disputes about the treatment of aliens is that of lump sum settlement between states. The inherited doctrines about aliens appear to achieve a continuing viability both in the terms of settlement and in the internal decisions by which the agreed sums are apportioned. Note the wide range in types of controversies indicated in the comprehensive and insightful study, R. LILLICH & B. Weston, International Claims: Their Settlement by Lump Sum Agreements (1975).

81 A. Roth, supra note 31, at 185–86. For a more detailed analysis of this recapitulation, see id. at 127–85.

82 The special protection accorded aliens under customary international law was such that Lauterpacht offered this observation:

Although international law does not at present recognise, apart from treaty, any fundamental rights of the individual protected by international society as against the State of which he is a national, it does acknowledge some of the principal fundamental rights of the individual in one particular sphere, namely, in respect of aliens. These are entitled to treatment conforming to a minimum standard of civilisation regardless of how the State where they reside treats its own nationals. That minimum standard of civilisation comprises, in particular, the right of personal liberty and, generally, the right to equality before the law. International tribunals have repeatedly declared it to be a rule of international law. The result, which is somewhat paradoxical, is that the individual in his capacity as an alien enjoys a larger measure of protection by international law than in his character as the citizen of his own State.

H. Lauterpacht, International Law and Human Rights 121 (1950; 1968).A specification of the exact scope of the protection thus accorded to aliens by customary international law would require a comprehensive study of past decisions, value by value. Whether a particular differentiation of aliens and nationals has a reasonable basis in the common interest of the larger community must of course depend not only upon the value primarily at stake in the differentiation but also upon many particular, and varying, features of the context in which the differentiation is made. It is this infinite complexity in the patterning of fact, as well as the failure to clarify common interest, which accounts for some of the continuing controversy over particular kinds of deprivations of aliens, such as in the nationalization or expropriation of property and the unilateral termination of agreements. See note 13 supra. This controversy has recently been dramatized in the adoption by the UN General Assembly of “Declaration on the Establishment of a New International Economic Order” and its accompanying “Programme of Action” in May 1974 and of “The Charter of Economic Rights and Duties of States” in December 1974. See G.A. Res. 3201 (S-VI), May 1, 1974, UN Gaor, 6 Spec. Sess., Supp.1, at 3, UN Doc. A/9559 (1974); G.A. Res. 3202 (S-VI), May 1, 1974, id. at 6: G.A. Res. 3281 (XXIX), Dec. 12, 1974, UN Doc. A/Res/3281 (XXIX) (1975). See also 13 ILM 715 (1974); id., 720; 14 id. 251 (1975); 68 AJIL 798 (1974); 69 id. 484 (1975). For further pertinent references to this development, see Recent Developments, The General Assembly’s International Economics, 16 Harv. Int’l L. J. 670 (1975) . A panorama of conflicting views is offered in 3 The Valuation of Nationalized Property in International Law (R. Lillich ed. 1975).

83 Cf. generally Asian States and the Development of Universal International Law (R. Anand ed. 1972); A. Bozeman, The Future of Law in a Multicultural World (1971); L. chen, supra note 79; J. Cohen * H. Gnu , People’s China and International Law: a Documentary Study (1974); W. Friedmann, The Changing Structure of International Law (1964); R. Higgins, Conflict of Interest (1964); F. Okoye, International Law and the New African States (1972); B. Roltng, International Law m an Expanded World (1960); S. Sinha, New Nations and the Law of Nations (1967); J. Syatauw, Some Newly Established States and the Development of International Law (1961); G. Tunktn, supra note 39; Castañeda, The Underdeveloped Nations and the Development of International Law, 15 Int’l Org. 38 (1961); Falk, A New Paradigm for International Legal Studies: Prospects and Proposals, 84 Yale L. J. 969 (1975); Falk, The New States and Inter-national Legal Order, 118 Hague Recueil Des Cours 1 (1966); Fatouros, International Law and the Third World, 50 Va. L. Rev. 783 (1964); Fatouros, The Participation of the “New” States in the International Legal Order, in 1 the Future of the Inter-National Legal Order 317–71 (R. Falk & C. Black eds. 1969); Guha-Roy, 7s the Law of Responsibility of States for Injuries to Aliens A Part of Universal International Law?, 55 AJIL 863 (1961) , reprinted in L. Gross, supra note 39, at 537–65; Lissitzyn, International Law in a Divided World, 542 Int’l Conciliation (1963); McDougal & Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AJIL 1 (1959) , reprinted in L.Gross, supra note 39, at 169–97.

84 [1957] 1 Y.B. Int’l L. Comm’n 155 (Remarks at the 413th meeting).

85 Guha-Roy, supra note 83, at 537–65.

86 Id. at 546.

87 Id. at 562.

88 Ibid.

89 Guha-Roy repeatedly makes clear that he regards “custom” and “general principles” as distinct and that his “general principles” are to be found only in some brooding metaphysical or “natural law” omnipresence. See id. at 539, 546, 550, 555.

90 Id. at 563.

91 Even in this day of the human rights movement, Guha-Roy writes: “It is, however, no concern of international law how a state discharges its responsibility to its own nationals or if it discharges that responsibility at all.” Id. at 538.

92 See Baxter, , Reflections on Codification in Light of the International Law of State Responsibility for Injuries to Aliens, 16 Syracuse L. Rev. 745 (1965)Google Scholar; Lillich, Toward the Formulation of an Acceptable Body of Law Concerning State Responsibility id., 721. For an overall review, see Garcia-Amador’s Six Reports, supra note 8. For more recent developments, see First report on State responsibility, by Mr. Roberto Ago, Special Rapporteur, [1969] 2 Y.B. Int’L L. Comm’n 125–56, UN Doc. A/CN.4/217 and Add.l (1969) (it deals with “Review of previous work on codification of the topic of the international responsibility of States“); Supplement, prepared by the Secretariat, to the “Digest of the decisions of international tribunals relating to state responsibility,” [1969] 2 Y.B. Int’l L. Comm’n 101–13, UN Doc. A/CN.4/208 (1969); Proposals sub-mitted to, and decisions of, various United Nations organs relating to the question of State responsibility: supplement prepared by the Secretariat to document A/CN.4/165, [1969] 2 Y.B. Int’l L. Comm’n 114–24, UN Doc. A/CN.4/209 (1969); Second report on State responsibility, by Mr. Roberto Ago, Special Rapporteur, [1970] 2 Y.B. Int’l L. Comm’n 177–97, UN Doc. A/CN.4/233 (1970) (“The origin of international responsibility“). For a recent discussion on the question of state responsibility before the International Law Commission, see [1973] 1 Y.B. Int’l L. Comm’n 5–66 (1202nd meeting to 1215th meeting). See also Kearney, The Twenty-Six Session of the International Law Commission, 69 AJIL 591, 602–07 (1975).

The more recent work of the Commission has been at such a high level of abstrac-tion as to shed but a dim light upon specific controversies. The underlying assump-tion seems to be that state responsibility is best studied apart from particular context.

93 See Garcia-Amador’s First Report, supra note 8, at 199–203; Garcia-Amador, supra note 39, at 467.

94 Id. at 199.

95 Garcia-Amador’s Second Report, supra note 8, at 112–13.

96 Id, at 113.

97 C. Amerasinghe, supra note 39, at 278–81, I. Brownlie, supra note 7, at 513–14.

98 In the words of Amerasinghe:

There is scope, then, for the application in practice of the general non-conventional law of alien treatment, in view of the absence of any universal conventional law to replace it, whether in regard to economic interests alone or in regard to personal and social interests as well. What is more, any general convention governing the responsibility of States for injuries to aliens must take into account the existing general non-conventional law.

C. Amerasinghe, supra note 39, at 7.

See Lillich, , The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law under Attack, 69 AJIL 359 (1975).CrossRefGoogle Scholar

99 In the words of Sir Humphrey Waldock:

International lawyers have already begun to speak of the assimilation of the customary law regarding the treatment of aliens with the new law of the Charter regarding “universal respect for, and observance of, human rights.” The assimilation is logical enough so far as concerns the “minimum standards” of treatment, that is, the scope of the fundamental rights and freedoms protected by international law. Human Rights, ex hypothesi, are rights which attach to all human beings equally, whatever their nationality. And in general, as I have said, the Universal Declaration offers aliens at least as much as the minimum standards of treatment guaranteed under customary law. To assimilate the position of aliens to that of nationals in regard to remedies would, however, be wholly unacceptable in the present state of international remedies for violations of human rights.

Waldock, Human Rights in Contemporary International Law and the Significance of the European Convention, in The European Convention on Human Rights 1, 3 (1965) (The British Institute of International and Comparative Law, International Law Series No. 5).

The protection of the rights of aliens is a matter of current concern within the United Nations. Pursuant to Resolution 1790 (LIV) of May 18, 1973 of the Economic and Social Council, as originated from a resolution of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in August 1972 that was endorsed by the Commission on Human Rights, the UN Secretary-General conducted in 1973 a “survey of international instruments in the field of human rights concerning distinctions in the enjoyment of certain rights as between nationals and individuals who are not citizens of the States in which they live.” See The Problem of the Applicability of Existing International Provisions for the Protection of the Human Rights of Individuals Who Are Not Citizens of the Country in which They Live, UN Doc. E/CN.4/ Sub.2/335 (1973) [hereinafter cited as Note on Aliens by the Secretary-General], Cf. also Briggs, The “Rights of Aliens” and International Protection of Human Rights, in Aspects of Liberty 213–31 (M. Konvitz & C. Rossiter eds. 1958); Freeman, , Human Rights and the Rights of Aliens, 45 ASIL Procs. 120 (1951).Google Scholar

The distinction made by Weis between protection of the interests of states under the customary international law of state responsibility and the interests of the larger international community under the human rights prescriptions is an utterly artificial one, which should be made to disappear. See Weis, Diplomatic Protection of Nationals and International Protection of Human Rights, 4 Human RB3rrs∼Jr“043r∼e75-X 1971).

100 See UN Charter, Arts. 1(3), 13 (l) (b) , 55(c), 56, 62(2), and 76Tc7].The Protection of Respect and Human Rights, supra note 2, at 1034–41.

It has been suggested by a reader that the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights do not protect aliens because “nationality” is not listed as a prohibited ground of differentiation. This astonishing interpretation of these various prescriptions finds no basis even in the literal words of these prescriptions.

The Universal Declaration, in the first paragraph of Article 2, provides:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

United Nations, Human Rights: a Compilation of International Instruments of the United Nations 1, UN Doc. ST/HR/1 (1973) [hereinafter cited as Un Human Rights Instruments]. It will be noted that these words stipulate that “all the rights and freedoms” are conferred upon “everyone,” and begin the list of prohibited grounds with “such as,” clearly indicating that the list is not intended to be exhaustive. A similar formulation appears in Article 2(1) of the International Covenant on Civil and Political Rights:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Un Human Rights Instruments, supra, at 8 (emphasis added). It has been generally recognized that one of the major purposes of the whole panoply of human rights prescriptions has been to accord the nationals of a state the same protection previously accorded aliens and to make unnecessary, in general, any differentiation between aliens and nationals. There is nothing in the legislative history (travaux préparatoires) of these prescriptions to suggest any intent to exclude aliens from protection.

The one possible exception to this conclusion is in the International Covenant on Economic, Social, and Cultural Rights, which is worded somewhat differently from the Covenant on Civil and Political Rights. Article 2(2) reads:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race,-colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.Un Human Rights Instruments, supra, at 4 (emphasis added). Note the substitution of “discrimination” for “distinction” and the substitution of “as to” for “such as.” Article 2(3) adds:

Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

Un Human Rights Instruments, supra, at 4. These provisions could, unfortunately for common interest, be construed to permit some states to discriminate against aliens with respect to some economic rights. It has been recorded that Article 2(3) was adopted by the Third Committee of the General Assembly by “41 votes to 38, with 12 abstentions,” and that it was characterized by many delegates as “contrary to the spirit of universality and equality underlying the draft Covenant and likely to give rise to all kinds of discrimination alien to the intentions of the sponsors.” Sohn, Supplementary Paper: A Short History of United Nations Documents on Human Rights, in Commission to Study the Organization of Peace, the United Nations and Hu-Man Rights 38, 116 (1968). The ambiguities in the language of Article 2(2)(3) are spelled out in Note on Aliens by the Secretary-General, supra note 99, at 8–11.

It may be noted, incidentally, that the International Covenant on Economic, Social, and Cultural Rights has been operative since January 3, 1976. 12 Un Monthly Chronicle 28 (Nov. 1975). Similarly, the International Covenant on Civil and Political Rights has been operative since March 23, 1976. 13 id. 73 (Jan. 1976).

101 See Note on Aliens by the Secretary-General, supra note 99, at 7.

102 E.g., Article 3: “Everyone has the right to life, liberty and the security of person.” Article 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Un Human Rights Instruments, supra note 100, at 1. See also Arts. 2, 6, 8, 11(1), 13, 14, 15(1), 17(1), 18, 19, 20(1), 21, 22, 23, 24, 26(1), 27, 28, 29(1), in id. at 1–3.

103 E.g., Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 17(2): “No one shall be arbitrarily deprived of his property.” Id. at 1–2. See also Articles 4, 9, 11(2), 12, 15(2), 20(2), ibid.

104 Ibid.

105 Articles 13(2) of the Universal Declaration provides that “Everyone has the right to leave any country, including his own, and to return to his country.” The right to return, thus, purports to extend only to nationals. Conversely, the asylum provision, Article 14(1) of the Universal Declaration, that “Everyone has the right to seek and to enjoy in other countries asylum from persecution” is obviously intended for non-nationals.

106 See H. Santa Cruz, Study of Discrimination in the Matter of Political Rights 26–27, UN Doc. E/CN.4/Sub.2/213/Rev.l (1962).

107 TJN Human Rights Instruments, supra note 100, at 1.

108 E.g., Article 19(1): “Everyone shall have the right to hold opinions without interference.” Id. at 11. See also Articles 9(1), 14(2)(3)(5) , 16, 17(2), 18(1), 19(2), 22(1), id. at 9–11.In addition, the Covenant on Civil and Political Rights employs such subjects as “Every human being” (Art. 6(1)) , “Anyone” (Arts. 9(2–5)) , and “All persons” (Arts. 10(1), 14(1), and 26). Id. at 9–11.

109 E.g., Article 11: “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.” Id. at 9. See also Arts. 7, 8, 14(7), 15(1), 17(1), 18(2). Id. at 9–11.

110 Id at 11.

111 Id. at 10.

112 Id. The overriding goal for the protection of every human being, as enunciated in the International Covenant on Civil and Political Rights, is unequivocably reiterated in the Optional Protocol to this Covenant. Thus, Article 1 of the Optional Protocol reads: A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol. Id. at 16. The protection and remedies are clearly extended to all “individuals subject to jurisdiction” of a contracting state, and not only those who possess its nationality.

113 It is clear that in this particular Covenant a state may differentiate treatment of aliens from nationals upon a reasonable basis. This is very far from providing that a state may discriminate against aliens. The reference, in Article 2(3) , that “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals” would be totally unnecessary if states may generally discriminate against aliens. For expressions of more tentative conclusions, see Note on Aliens by the Secretary-General, supra note 99, at 8–11; Elles, supra note 1, at 308–09.

114 Art. 6(1), Un Human Rights Instruments, supra note 100, at 4.

115 Art. 7. Ibid.

116 Art 8(1) (a) . Ibid.

117 Art . 9. Ibid.

118 Art 11(1) Id. at 5.

119 Art. 11(2). Ibid.

120 Art. 12. Ibid.

121 Art. 13(1). Ibid.

122 Art. 15(1). Id. at 6.

123 See, e.g., Article 3(e) of the Convention against Discrimination in Education: “In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: … (e) To give foreign nationals resident within their territory the same access to education as that given to their own nationals.” Id. at 31–32. Cf. also Art. 3(c) of the same Convention, id. at 31; Declaration on the Elimination of Discrimination against Women, Art. 5,id. at 39; Convention relating to the Status of Stateless Persons, Art. 3, id. at 61; Convention relating to the Status of Refugees, Art. 3, id. at 68.

124 Id. at 24. The appropriate interpretation of this language in the light of the major purposes of the Convention and the absence of travaux to the contrary is that states may continue to differentiate between aliens and nationals on the bases that historically have been regarded as having a reasonable relation to their differences. This means, as was the principal thrust of the Convention for all individuals, that states may not discriminate against aliens on racial grounds.

It may further be noted that Article 1(3) of this Convention provides:

Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

125 Cf. Schwelb, The International Convention on the Elimination of All Forms of Racial Discrimination, 15 Int’l & Comp. L. Q. 996, 1006–09 (1966); Note on Aliens by the Secretary-General, supra note 99, at 16–17.

126 See Schwelb, supra note 125, at 1007–08. Cf. also Note on Aliens by the Secretary-General, supra note 99, at 16.For an exposition of other prescriptions relevant to aliens, see Note on Aliens by the Secretary-General, supra at 18–35. See also Elles, supra note 1; Weis, supra note 99.

127 Council of Europe, European Convention on Human Rights: Collected Texts 2 (9th ed. 1974). Its text can also be conveniently found in Basic Documents on International Protection of Human Rights 125 (L. Sohn & T. Buergenthal eds.1973) [hereinafter cited as Basic Documents] ; and in Basic Documents on Human Rights 338, 340 ( I . Brownlie ed. 1971).

128 For recent statistical data, see McNulty, Stock-Taking on the European Convention on Human Rights 59 -61 , Doc. DH ( 73 ) 8 (1973); McNulty, Stock-Taking on the European Convention on Human Rights 66–69, Doc. DH(74 ) 6 (Oct. 1, 1974) [hereinafter cited as McNulty’s Stock-Taking 1974].

129 J. Fawcett, The Application of the European Convention on Human Rights 18 (1969).

130 See, e.g., Arts. 5, 6, 8, 9, 10, 11, 13; Basic Documents, supra note 127, at 126–30.

131 See, e.g., Arts. 3 , 4, 7; id. at 126, 128.

Article 14 of the European Convention on Human Rights reads:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national’ or social origin, association with a national minority, property, birth or other status.

Id. at 130. It will be noted, again, that the list of prohibited grounds begins with “such as,” which clearly indicates that the list is merely illustrative. Cf. note 100 supra.

When the Convention intends to permit restrictions upon aliens, it explicitly says so. Thus, Article 16 stipulates:

Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Con-tracting Parties from imposing restrictions on the political activity of aliens.

Id. at 130. Similarly, Protocol No. 4 to the Convention, in Articles 3 and 4, makes explicit the distinction between nationals and aliens. Article 3 reads:

1. No one shall be expelled, by means either of an individual or of a collec-tive measure, from the territory of the State of which he is a national.

2.No one shall be deprived of the right to enter the territory of the State of which he is a national.

Id. at 146.

Article 4 states: “Collective expulsion of aliens is prohibited.” Ibid.The fact that an individual is an alien may of course be a relevant variable in contexts in which states engage in permissible accommodations and derogations, as provided in Articles 8–11 and 15 of the European Convention. Id. at 128–30. This does not mean that alienage per se is a permissible ground for discrimination; it means only that alienage continues to be in some contexts a fact that may rationally be taken into account in determining the necessity and proportionality of a differentiation

132 Id. at 209.

133 Id. at 210.

The Charter of the Organization of American States, as amended, states in Article 3(j) that the “American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex.” A. Peaslee, International Governmental Organizations 1182, 1183 (rev. 3d ed. 1974).

134 See, e.g., Arts. 3, 4(1) , 5(1) , 7(1), 8, 10, 11, 12(1), 13(1), 16(1), 18, 20, 21(1), 22(1)(2), 25(1); Basic Documents, supra note 127, at 210–18.

135 See, e.g., Arts. 5(2), 6, 7(2) (3), 9, 11(2), 12(2), 21(2); id. at 211–17.

136 Id. at 217.

137 Id. at 217–18

138 Id. at 218.

139 Id. at 217.

140 Id. at 218.

141 See notes 99–140 supra and accompanying text.This conclusion might be reinforced by a comprehensive comparative study of internal constitutional developments about the world which create transnational expectations of authority. For development within the United States, see Gordon, note 16 supra. See also the other works cited in notes 14 and 16 supra.

142 F. Garcia-Amador, L. Sohn, & R. Baxter, supra note 8, at 1–5; Garcia-Amador’s First Report, supra note 8, at 199–203.

143 The disappearance of the notion that states are the only appropriate subjects of international law need not becloud the facts of effective power that individuals sometimes need the support of their states to secure appropriate remedies against states and other entities.

For comprehensive and persuasive development of this theme, see Lillich, note 98 supra. See also Jessup, , Non-Universal International Law, 12 Colum. J. Transnat’L L. 415 (1973)Google Scholar.

144 Koessler observed that “the gist of the institution of diplomatic protection” lies “in its remedial aspect rather than in the substantive character of the interest involved.” “It is not,” he continues, “because the protecting state feels offended by the wrong done to one of its nationals, but in order to give the latter a workable substitute for the inaccessability of an international forum, that the strong arm of the government is extended to the private interest… .” Koessler, supra note 40, at 181.

145 See generally J. Carey, Un Protection Of Civil And Political Rights (1970); E. Haas, Human Rights and International Action (1970); M. Moskowttz, Inter-National Concern with Human Rights (1974); C. Norgaard, The Position of the Individual In International Law (1962) ; A. Robertson, Human Rights in the World (1972); United Nations, United Nations Action in the Field of Human Rights, UN Doc . ST /HR/2 (1974) ; V. Van Dyke, Human Rights, The United States, and World Community 159–254 (1970) ; J. Jefferies, The Individual and International Law, 1954 (unpublished J.S.D. dissertation, Yale Law School); Capotorti, The Inter-national Measures of Implementation Included in the Covenants of Human Rights, in International Protection of Human Rights 131–48 (A. Eide & A. Schou eds. 1968); Golsong, Implementation of International Protection of Human Rights, 110 Hague Recueil Des Cours 7 (1963) ; Humphrey, The International Law of Human Rights in the Middle Twentieth Century, in The Present State of International Law and Other Essays 75–105 (M. Bos ed. 1973); Korey, The Key to Human Rights Implementation, 570 Int ‘L Conciliation (Nov. 1968); Schwelb, Civil and Political Rights: The International Measures of Implementation, 62 AJIL 827 (1968); Schwelb, Notes on the Early Legislative History of the Measures of Implementation of the Human Rights Covenants, in Mélanges Offerts a Polys Mondinos 270–89 (1968).

146 See L. Sohn & T. Buergenthal, International Protection of Human Rights 739–856 (1973); United Nations Action in the Field of Human Rights, supra note 145, at 177–84; Carey, , Progress on Human Rights at the UN, 66 AJIL 107 (1972);CrossRefGoogle Scholar Cassese, The Admissibility of Communications to the UN on Human Rights Violations, 5 Human Rights J. 375 (1972); Hoare, The UN Commission on Human Rights, in The International Protection of Human Rights 59–98 (E . Luard ed. 1967); Humphrey, The Right of Petition in the UN, 4 Human Rights J. 463 (1971); Humphrey, The United Nations Commission on Human Rights and its Parent Body, in 1 René Casstn Amicorum Discipulorumque Ld3Er 108–13 (1969); Newman, The New U.N. Procedures for Human Rights Complaints: Reform, Status Quo, or Chambers of Horror?, in Hearings on International Protection of Human Rights Before the Subcommon International Organizations and Movements of the House Comm. of Foreign Affairs, 93d Cong., 1st Sess. 715–22 (1974); Schwelb, Complaints by individuals to the Commission on Human Rights: 25 years of an uphill struggle (1947–1971), in The Changing International Community 119–39 (C . Boasson & M. Nurock eds. 1973); Van Boven, The United Nations Commission on Human Rights and Violations of Human Rights and Fundamental Freedoms, 15 Nederlands Tijdschrift Vooh Internattonaal Recht 374 (1968).

147 The International Convention on the Elimination of All Forms of Racial Discrimination provides for individual petitions in Article 14, the first paragraph of which reads as follows:

A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

Un Human Rights Instruments, supra note 100, at 23, 27. The competence of the Committee regarding individual petitions is made operative “only when at least ten States Parties” have made the requisite declarations of acceptance. Art. 14 (9) , id. at 28. This condition has to date not been fulfilled.

See The Protection of Respect and Human Rights , supra note 2, at 1082–86. See also N. Lerner the Un Convention on the Elimination of all Forms of Racial Discrimination 83–99 (1970); Reisman, Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention on the Elimination of Racial Discrimination, 1 Denver J. Int ‘L L. & Policy 29, 58–64 (1971); Schwelb, supranote 125, at 1031–59.

148 See European Convention on Human Rights, Arts. 25–32; Basic Documents, supra note 127, at 132–34.

See also R. Beddard, Human Rights and Europe 50–85 (1973); F. Castberg, The European Convention on Human Rights 34–67 (1974) ; Council of Europe, the European Convention on Human Rights 11–16 (1968) ; A. Del Russo, Inter-National Protection of Human Rights 68–121 (1971) ; J. Fawcett, supra note 129, at 277–322; C. Morrisson, the Developing European Law of Human Rights 6 0 -98 (1967); A. Robertson, Human Rights in Europe 49–74 (1963) ; A. Robertson, supra note 145, at 51–110; L. Sohn & T. Buergenthal, supra note 146, at 1008–50, 1091–99; G. Weil , The European Convention on Human Rights 90–143 (1963) ; Golsong, The Control Machinery of the European Convention on Human Rights, in The European Convention on Human Rights, supra note 99, at 38–69; McNulty, The Operation and Effectiveness of the European Convention on Human Rights, 3 U. San Francisco L. Rev. 228 (1969) ; McNulty’s Stock-Taking 1974, note 128 supra; Schwelb, , On the Operation of the European Convention on Human Rights, 18 Int’l Org. 558 (1964)CrossRefGoogle Scholar; Waldock, , The European Convention for the Protection of Human Rights and Fundamental Freedoms, 34 Brit. Y.B. Int ‘L L. 356 (1958)Google Scholar. Cf. also 25th Anniversary of the European Convention on Human Rights, 8 Human Rights J. 325 (1975).

149 See A. Schreiber, the Inter-American Commission on Human Rights 41–56 (1970); Secretariat of the Inter-American Commission on Human Rights, The Organization of American States and Human Rights, 1960–1967, at 10–11 36–39, 52–54 (1972); Buergenthal, The Revised OAS Charter and the Protection of Human Rights, 69 AJIL 828 (1975) .

150 The Optional Protocol to the International Covenant on Civil and Political Rights provides for individual petitions (“communications from individuals“) and related procedures to make the protection stipulated in the Covenant more effective. It was adopted and opened for signature, ratification, and accession under UN General Assembly resolution 2200A (XXI) of December 16, 1966, along with the two Covenants. For its text, see Un Human Rights Instruments, supra note 100, at 15–17. The Op-Protocol has already received more than the 10 ratifications or accessions needed for becoming operative. See E. Schwelb, Entry into Force of the International Covenants on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights, infra p. 511.

151 Cf. McDougal, Lasswell, & Chen, supra note 1, at 993–98. It has often been alleged, perhaps with some accuracy, that the doctrine of responsibility of states has been abused. Insofar as these complaints are appropriately directed to the use of force as a means of self-help (“the gunboat policy“), they may be justified. Insofar as they relate to third-party decision making, they have no validity. In the words of Lillich: “While it is true that ‘the ideas of justice and fair dealing incorporated in the accepted norms of conduct for European nations were carried over into the wider sphere of the international society of the nineteenth century,’ there is no need to apologize for attempting to establish a universal consensus behind justice and fair dealing.” Lillich, , Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 325, 327-28 (1967)Google Scholar.