I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
As an attribute of sovereignty and right to existence, a state is not obliged to admit foreigners and can determine the conditions and instances where aliens can be admitted.
A state can remove undesirable aliens in any of the following instances:
1.) Deportation/expulsion
Deportation happens when either when an alien has violated the terms and conditions of his stay, that his permission to stay has expired, his entry was illegal or that he constitutes a menace to the state. See Citizenship for further discussion.
2.) Reconduction
Reconduction is the forcible return of undesirable aliens to their home state. Vagabonds, destitute aliens, undocumented aliens, alien criminals and any other undesirables can be arrested and sent back without any formality. The home state is obliged to receive them.
Aliens who are admitted into another state must accept the institutions of the host state. They may, however, be granted certain rights and privileges (such as the right to own personal property, access to the courts) on the grounds of reciprocity, national treatment or most favored nation treatment.
Doctrine of State Responsibility
A state is obliged under international law to provide protection to the nationals of other states visiting its territory. The government of a foreign national can hold the host state liable for injuries if the treatment of the national constitutes an international delinquency, damage to the alien is an indirect injury to his home state or if the treatment is directly or indirectly imputable to the host state.
There is an international delinquency when the alien's treatment reeks of bad faith, outrage, willful neglect of duty or insufficiency of government action. This maltreatment should be sufficient to be noticed by the average person. Reasonable treatment according to ordinary means and notions accepted by modern civilization must be afforded to an alien (international standard of justice.) Execution without trial is considered as a violation of the international standard of justice. Equality of treatment will not apply if both nationals and aliens are treated equally and below the international standard of justice. In all instances, however, the courts must remain independent unless there is proof of extremely grave misconduct.
If a host state doesn't take measures to protect an alien or if the measures are insufficient and the host state fails to repair the injury, the injury can be directly or indirectly imputable to it even if the laws of the state conform to the international standard of justice.) This act (or omission) can either be caused by the officials of the host state or by private individuals in the host state. With regard to officials, if the official acts within his official capacity his act is considered an act of the state; if done without authority, it's considered the act of a private person. For a private person's acts or omissions to hold the host state liable, any of the following must happen:
1.) The state must give its actual or tacit approval either before of after the act. It can either ratify or approve it.
2.) There is a cover-up in the investigation.
3.) The host state is negligent in taking measures to prevent the injury.
4.) The host state prevents the injured alien from prosecuting a civil case against the offender.
The claimant has the burden of proof and must also follow the rule on exhaustion of remedies and can only dispense with this requirements if there are no available remedies, the courts of the home state are corrupt, there is no adequate machinery for the administration of justice or if the international delinquency comes from an act of state. An alien can, by stipulation, waive or restrict his right to appeal to his own state from any contract-based claim and limit himself to the legal remedies of the host state (Calvo Clause.) This waiver, however, will not deprive the alien's home country of the right to protect the alien's rights. In case no remedy is left, the alien can ask for protection from his home state. If the foreigner isn't a national of the home state anymore, he can't ask for protection. The UN, EC or other other international bodies can file a diplomatic claim on behalf of their officials.
Claims are to be enforced either through negotiation, good offices, arbitration or judicial settlement. If the responsibility of the guilty state is established, it will be required to make restitution, satisfaction, compensation or all three.
1 comments:
Post a Comment