Vous êtes sur la page 1sur 5

1. Under the Doctrine of State Responsibility, should the Philippines be held liable for what happened to Brod Pott?

Why or why not? Under the doctrine of state responsibility, a state is deemed responsible for any injury sustanined by an alien within its jurisdiction because of an international wrong imputable to it. However, the state is not an responsible for every injury suffered by an alien. The rule is that if he suffers injury at the hands of a private person, his recourse will be against that person and not against the state. The state will be responsible only if it is shown that it participated in the act or omission complained of or was remiss in redressing the resultant wrong. An alien is not entitled to preferential treatment in the local state. He must accept the institutions of the state as he finds them. On the contrary, the alien may complain if the laws of the state do not conform to the international standard of justice. In such case, he may claim better treatment than that accorded the nationals of the state. To determine whether the Philippines should be held liable for what happened to Brod Pott under said doctrine, we must first distinguish direct state responsibility and indirect state responsibility. Direct state responsibility attaches to the state if the wrongful act or omission was effected through any of its superior organs acting on its behalf. While responsibility of the state would only be vicarious or indirect when the wrongs committed by inferior government officials or even by private individuals cannot be regarded as acts of the state. Such can be excused by proof that it was not negligent in preventing the injury or in vindicating the rights of the alien. Inorder for the doctrine of state responsibility be enforced, the following conditions must be present: a. The injured alien must first exhaust all local remedies. This is because the state must be given an opportunity to do justice in its own regular way without unwarranted interference with its sovereignty by other states. As provided for in the Harvard Research Draft Convention on Responsibility of States, it is a sound principle that where there is judicial remedy, it must be sought; and only if it is sought in vain does diplomatic interpositions become proper. b. He must be represented in the international claim for damages in his own state. The doctrine of state responsibility is based on an injury to a state through injury to one of its nationals, so that if the injured person is not a national of the complaining state, then no injury has been inflicted upon it. Thus, it would not be a proper party to institute claim on behalf of the injured person. However, the first condition may be dispensed with if there are no remedies to exhaust, either because of intrinsic defect in the laws of the local state or laxity or arbitrariness in their enforcement, as when the courts are notoriously corrupt or when there is no adequate machinery for the administration of justice. There would also be no local remedy against the so-called acts of state, which are not subject to judicial review. As stated in the Chattin case, it is true that both categories of government responsibility- the direct one and the so-called indirect oneshould be brought to the test of international standards in order to determine whether an international wrong exists, and that for both categories convincing evidence is

necessary to fasten liability. It is moreover true that, as far as acts of the judiciary are involved, the view applies to both categories that "it is a matter of the greatest political and international delicacy for one country to disacknowledge the judicial decision of a court of another country" (Garrison's case). To both categories the rule applies that state responsibility is limited to judicial acts showing outrage, bad faith, wilful neglect of duty, or manifestly insufficient governmental action. But the distinction becomes of importance whenever acts of the other branches of government are concerned; then the limitation of liability (as it exists for all judicial acts) does not apply to the category of direct responsibility, but only to the category of so-called indirect or derivative responsibility for acts of the executive and legislative branches, for instance on the ground of lack of protection against acts of individuals. For the US to hold the Philippines liable for what happened to Pott, it must present evidence to support its claims of illegal arrest, defective administration of justice, irregularity of court proceedings, mistreatment in prison. That such acts are in reference to the direct responsibility of the state

2. If you are to compare the case of Brod Pott with the case of Chattin, what significant differences can you point out that are present in one and absent in the other? Or there is no difference at all. In the Chattin Case, a US Citizen had been arrested in Mexico for embezzlemenet. Under a treaty between Mexico and the United States establishing a claims commission, the United States in behalf of Mr. Chattin claimed that the Mexican authorities had violated several of Chattin's due process rights as recognized under international law. In relation, the Brod Pott case involves a US Citizen arrested in the Philippines for rape. There also exists a treaty between the United States and the Philippines establishing a claims commission. Likewise, the United States in behalf of Brod Pott argued that the arrest of Pott is illegal, that he was mistreated while in prison, that his trial was unreasonably delayed, and that there was irregularities in the trial. In both cases, the foreign nationals were convicted and sent to prison, released from jail as a consequence of disturbances caused by a revolution, and fled to the United States. The same issues on illegal arrest, defective administration of justice, irregularity of court proceedings, mistreatment in prison are present. The only difference apparent to my view is that in the Chattin case, there was a consolidation of criminal cases, wherein Chattin with 3. What is the meaning of international standards of justice? Who or which body or entity should determine whether a particular standard already conforms to the international standard of justice? The international standards of justice is defined as the standard of the reasonable state and calls for compliance with the ordinary norms of official conduct observed in civilized jurisdictions. It may refer to the intrinsic validity of the laws passed by the state or to the manner in which such laws are administered and enforced. In the American Society of International Law debate, Jurist Philip Jessup called for an

international standard with definite criteria where 'the definiet criterion is actually accepted'. That in absence of a more general consensus about the international standard, one way to proceed could be to identify those aspects of the international standard where definite criteria were accepted, and then to extrapolate and reconstruct the rationale of the general standard from them. For Elihu Root, 38th US Secretary of State, the international standard was 'a standard of justice' that measured 'justice due', the other 'sound policy' apart from equality was 'impartial justice', and States had to do 'what is just'. International law has gone a long way from ancient times when aliens where treated as outlaws not deserving protection. Roman law progressed from this under the concept of jus gentium, which was applicable to both citizens and aliens, as distinct from jus civile which was applicable only to Roman citizens. The advent of Christianity expanded further the righs of aliens with the growth of international commerce in modern times leading to the development of the concept of denial of justice as an international concern. Two standards have immerged in modern times to compete for recognition as the acceptable standard. First, the doctrine of national treatment or equality treatment, wherein aliens are treated in the same manner as nationals of the state where they reside. Second, the minimum international standard, which says that however harsh the municipal laws might be against a state's own citizens, aliens should be protected by certain minimum standards of humane protection. The latter is now the widely accepted standard. According to the Joint Claims Commission, a. the propriety of the government acts should be put to the tests of international standards, and b. that 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. The General Assembly being the chief deliberative, policymaking and representative organ of the United Nations, determines whether a particular standard already conforms to the international standard of justice. Among its functions and powers under the UN Charter, the Assembly considers and make recommendations on the general principles of cooperation for maintaining international peace and security; initiates studies and make recommendations to promote international political cooperation, the development and codification of international law, the realization of human rights and fundamental freedoms, and international collaboration in the economic, social, humanitarian, cultural, educational and health fields; make recommendations for the peaceful settlement of any situation that might impair friendly relations among nations. The Security Council is the organ of the United Nations primarily responsible for the maintenance of international peace and security. In pursuance of its primary responsibility, the Council may take steps for the pacific settlement of disputes or, when necessary, preventive or enforcement action. However, such dispute must be international, and affects the peace of the world. Article 33 Chapter 6 of the UN Charter provides that the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Furthermore, the Security Council may investigate any dispute, or any situation which might

lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security (Article 34). That at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, the Security Council may recommend appropriate procedures or methods of adjustment, and in doing so, it should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties (Article 36). In consequence, it determines whether a particular standard conforms to the international standard of justice. In making recommendations under Article 36, the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. 4. Would it be easier to decide the case of Brod Pott if you are going to apply the Articles on Responsibility of States for Internationally Wrongful Acts? Why or why not? According to the Draft Articles, an internationally wrongful act must: a. be attributable to the state under international law; and b. constitute a breach of an international oblig/ation of the state. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime. On the basis of the rules of international law in force, an international crime may result from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid; (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas. 4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict. Before a state can be held responsible for any action, it is necessary to prove a causal connection between the injury and an official act or omission attributable to the state alleged to be in breach of its obligations. The state is responsible for all actions of its officials and organs, even if the organ or official is formally independent and even if the organ or official is acting ultra vires.Persons or entities not classified as organs of the State may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in the particular instance. Persons or entities not performing public functions may equally be imputable, if they in fact acted under the direction or control of the State. Where there is a breakdown of normal governmental authority and control, such as in so-called "failed states", the actions of those acting as the "government" in a de facto sense will be acts of the state. The acts of an "insurrectional or other movement that becomes the new government of an existing state or succeeds in establishing a new state" can also be attributed to the state.

Despite their apparent concreteness, the standards stated in some rules involve important ambiguities, and their application will often require significant fact-finding and judgment. Most rules state responsibility involving private acts already arise under primary rules. For example, environmental and human rights agreements require states to prevent abuses by private parties. However, James Crawford, author of the The International Law Commission's Articles on State Responsibility: Introduction, notes that the rules are "rigorously general in character,"[9] encompassing all types of international obligations.

Vous aimerez peut-être aussi