“The reception of aliens is a matter of discretion and every state is competent to exclude aliens from its territory”. Discuss and also comment on the status of aliens after admission to a state.
- Introduction:
There is no state in practice want to exclude itself from intercourse with rest of the international community. Foreigners such as tourists are readily admitted in foreign territories because they bring in foreign exchange. Foreigners or aliens always fear of being prosecuted for reasons of race, religion, nationality, and membership of a particular group or political opinion, as result of being outside the country of his nationality. The question is whether fundamental rights of these people are well protected under international law and Namibian law. It is worth noting that mistreatment of aliens in a foreign state implicate state responsibility for injury to aliens under international law. In a field of international law, an injury to a foreigner can give rise to the duty of states to make reparation to the injured individual.[1] In Phosphates in Morocco, the Permanent Court of International Justice (PCJI) affirmed that when a state commits an internationally wrongful act against another state international responsibility is established immediately as between the two states. The PCJI also referred to the principle of reparation for injuries suffered by aliens in a foreign state. In Rainbow Warrior case, the Arbitral Tribunal stressed that any violation by a state of any obligation, of whatever origin, gives rise to state responsibility.
- Common law for aliens:
Every member of the Family of Nations is bound by International Law to admit all aliens into its territory for all lawful purposes, although they agree that every State could exclude certain classes of aliens. This opinion is generally held by those who assert that there is a fundamental right of intercourse between States. It will be remembered that no such fundamental right exists, but that intercourse is a characteristic of the position of the States within the Family of Nations and therefore a presupposition of the international personality of every State. A State, therefore, cannot exclude aliens altogether from its territory without violating the spirit of the Law of Nations and endangering its very membership of the Family of Nations. But no State actually does exclude aliens altogether. The question is only whether an international legal duty can be said to exist for every State to admit all unobjectionable aliens to all parts of its territory. And it is this duty which must be denied as far as the customary Law of Nations is concerned. It must be emphasized that, apart from general conventional arrangements, as, for instance, those concerning navigation on international rivers, and apart from special treaties of commerce, friendship, and the like, no State can claim the right for its subjects to enter into and reside on the territory of a foreign State. The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part of its territory. And it is only by an inference of this competence that Great Britain,[644] the United States of America, and other States have made special laws according to which paupers and criminals, as well as diseased and other objectionable aliens, are prevented from entering their territory. Every State is and must remain master in its own house, and such mastership is of especial importance with regard to the admittance of aliens. Of course, if a State excluded all subjects of one State only, this would constitute an unfriendly act, against which torsion would be admissible; but it cannot be denied that a State is competent to do this, although in practice such wholesale exclusion will never happen. Hundreds of treaties of commerce and friendship exist between the members of the Family of Nations according to which they are obliged to receive each other’s unobjectionable subjects, and thus practically the matter is settled, although in strict law every State is competent to exclude foreigners from its territory
3. State responsibility for injury to aliens
A state may incur responsibility directly or indirectly. It does so directly when its agents violates the territorial sovereignty of another state, damage its property, injure its diplomats. Indirect state responsibility occurs when a state injures the person or property of a foreign national within its territory. Scholars on the law of state responsibility have maintained the view that a state will incur responsibility because of its failure to treat the foreign national according to the minimum standard of justice required for the treatment of aliens, for instance, by detaining him for an unreasonable period without trial, or by confiscating his Property without compensation or mistreat an alien in the process of admission into or expulsion from its territory. It is noted that the basis for responsibility in this case is that the defendant state has injured the plaintiff state by injuring its national.
The principle of 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 analysts had practical reasons to focus on this category of state responsibility.[2] Many nationals of one state who have travelled, or worked in another state, are often the victims of intolerant and arbitrary treatment, not only from the authorities in most cases the immigration officials but also from the citizens of that state. They have suffered abuse and discrimination throughout history.
- Admission and Expulsion of aliens
The question of whether a state is under a legal obligation to grant foreigners entry into its territory has long been a matter of controversy. A state is not required to admit foreign nationals. Immigration control is a matter of national law. Such obligation may be based either on customary international law or it could be based on international treaties. Some writers argued that by customary international law no state can claim the right for its nationals to enter into, and reside on, the territory of a foreign state. The reception of aliens is a matter of discretion, and every state is, by reason of its territorial supremacy, competent to exclude aliens from the whole, or any part, of its territory.
It is noted that states may by treaty confer on each other’s nationals a right to enter their territories, especially in treaties of commerce and friendship, which often entitle the foreign nationals concerned not to enter the state but to establish themselves in business there.
Numerous scholars of international law have maintained that it is the sovereign prerogative of states to regulate the presence of foreigners in their territory. This power is not unlimited and international human rights law places some restrictions on when and how to exercise this power. Recently the tendency has been to allow states a general competence to require aliens to leave, but to engage them in international responsibility with respect to the manner of the expulsion of aliens. An alien may be expelled in peace time in the interest of state security or public welfare but mistreatment is not permitted in the process of expulsion.
International law forbids collective expulsion of aliens that have been properly admitted. The right of states to expel alien is generally recognized in international law. It matters whether the alien is only on a temporary visit, or has settled down for professional business or other purposes on its territory, having established his domicile there. It is worth noting that a state has a broad discretion in exercising its right to expel aliens from its territory; however its discretion is not absolute. By customary international law it not abuse its right by acting arbitrary in taking its decision to expel an alien, and it must act reasonably in the manner in which it effects an expulsion
- The standard of treatment relating to the treatment of aliens
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. 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 and an “international minimum standard”. International law does require a state to admit foreign nationals into their territory. Immigration control is a matter of national law. Once the foreigner or alien is admitted, if a state should then fail to treat them in a particular way the host state will be in breach of an international obligation. This was endorsed by the United Nations General Assembly (UN) in1985, in the Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live, which articulates the fundamental human rights to be observed by the host state. It worth to note that aliens under international law are assured of certain rights ,such as the right to equality within the judicial process and protection from torture ,cruel or inhuman treatment they are required to observed the laws of the host state and to respect the host state’s customs and traditions.
6. International minimum standard
The international minimum standard treatment requires states to treat foreigners by observing the [3]international minimum standards in so far as the application of national laws or polices have to comply with the standards of civilization in terms of international rules. In present days there is an acceptance that the treatment [4]of foreigners with regard to their personal rights should be based on the international minimum standard in which its content is in the international human rights instruments and customary international law.
7. Conclusion:
Nevertheless, it is to be hoped that this nation can continue to receive a controlled number of legal immigrants each year. The laudable goals of the present immigration statutes-to reunite families, to meet certain skill shortages, and to accommodate some number of political refugees must be retained. The integrity and the public acceptance of a substantial number of legal immigrants, however, should never be endangered by the massive invasion of illegal immigrants, which is currently the case. Moreover, the creation of an underground population of right fewer individuals is completely out of character with the American experience. To meet the challenge posed by illegal immigration, all of the aforementioned steps must be taken immediately. This issue is rapidly reaching proportions that will soon make it politically impossible to address the problem in any rational way.
Reference:
1. Arnold, R.1992. ‘’Aliens’’.In Bernhardt, R (Ed) Encyclopedia of Public International Law. Volume 1(A-D), Amasterdam: Elservier Science publishers
2. Brownlie, I.2003.Principles of Public International Law.6thedition. Oxford: Oxford Press University
3. Crawford, J.2002.The international Law Commission’s Articles on State Responsibility, Introduction, Text and Commentaries. Cambridge: Cambridge University Press
4. Dixon, M.2005.Textbook on International law.5thedition. Oxford: Oxford University Press
5. Dugard, J.2005.International Law A South African Perspective.3rdedition. Lansdowne: Juta & Co Ltd
6. Dugard, J.2001.International Law A South African Perspective. Lansdowne: Juta & Co Ltd
7. Greig, D.W.1976, International Law.2ndedition. London: Butterworths
8. Hovenveldern, I, S.1992.Aliens and Property, In Bernhardt,R. Encyclopedia of Public International Law, Volume One (A-D).Amasterdam: Elsevier Science Publishers
9. Kaczorowska, A.2002.Public International Law. London: Old Bailey Press
10. Karl, D.1992. ‘’Aliens and admission’’.In Bernhardt, R.(ed) Encyclopedia of Public International Law,Volume One (A-D).Amasterdam: Elsevier Science Publisher
11. Lauterpacht, H.1975.International law, The Law of Peace. Volume 2.London: Cambridge University Press.
[1] bid 279. It is the sovereign prerogative of states to regulate the presence of foreigners on their territory. However, this power is not unlimited and international human rights law places some restrictions on when and how to exercise this power
[2] Commission Report in Bulletin of the European Communities, Supplement7/1975, p.
[3] Statistical data from the 2010-2011 Motivation Budget Speech by the Minister of Home Affairs and Immigration
[4] Article 2(2)(c ) of the Charter of Economic Rights and Duties of States (UN GA Res.3281 (XXIX) of Dec 12, 1974