When can a state be held responsible for an injury suffered by an alien?

(page 9)
The customary law doctrine on the protection of aliens should be seen in relation to the doctrine on “state responsibility.”
When an injury has been inflicted, there is need to determine whether the state can be held responsible for it. One of the
principles most strongly held by states is that if a state violates a customary rule of international law or a treaty obligation,
it commits an “internationally wrongful act.” The International Law Commission for some years now has been working
on the codification of the law on the subject. At its fifty-third session (2001), the International Law Commission adopted
on second reading a complete text of the Articles on Responsibility of States for Internationally Wrongful Acts. The
Articles have been referred to the General Assembly for consideration. Although its work has not yet been finalized, much
of what it has done so far consists of principles which are widely accepted. What need to be understood are: (1) the
elements of an internationally wrongful act; (2) the attributability of the wrongful act to the state; and (3) the enforcement
of the obligation that arises from the wrongful act.

How may states accept the jurisdiction of the ICJ? (page 9)

The UN’s principal judicial organ is the International Court of Justice. It is the successor to the Permanent Court of
International Justice established by the League of Nations. It came into being in 1945 through the Statute of the Court.
All members of the UN are ipso facto parties to the Statute of the International Court of Justice. Being party to the Statute,
however, does not mean acceptance of the jurisdiction of the Court. It simply means that the state may accept the
jurisdiction of the court. The Statute opens the court’s door to member states. Only states may be parties in the court. The
cardinal rule in international courts is that states cannot be compelled to submit disputes to international adjudication
unless they have consented to it either before a dispute has arisen or thereafter. States are also free to limit their acceptance
to certain types of disputes and to attach various conditions or reservations to their acceptance.

Is bail available in extradition? Discuss with reasons. (page 5)

If after his arrest and if the trial court finds that an extraditee is not a flight risk, the court may grant him bail. (In this case
the grant of bail presupposed that a co-petitioner, the wife, had already presented evidence to prove her right to be on
bail, that she was no flight risk, and the trial court had already exercised its sound discretion and had already determined
that under the Constitution and laws in force, co- petitioner was entitled to provisional release.) The Court emphasized
that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight
risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances.

In a later case, the Court said that it could not ignore the following trends in international law: (1) the growing importance
of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2)
the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to
observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of the Court to balance the rights
of the individual under our fundamental law, on one hand, and the law on extradition, on the other. It added, “If bail can
be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. After all,
both are administrative proceedings where the innocence or guilt of the person detained is not in issue.”

Discuss the jurisdiction of a state over its nationals (including those outside of the State), corporations and
maritime vessels. (page 5)

The nationality principle says that every state has jurisdiction over its nationals even when those nationals are outside the
state. Each state has the right to decide who are its nationals using either the principle ofjus sanguinis or jus soli or
naturalization laws. However, for a state to claim a person as a national, the state must have reasonable connection or an
“effective link” with that person. The consent of the individual alone is not enough for him to be recognized by other
states as a national of the state to which he claims to belong.

As to corporations, a state has jurisdiction over corporations organized under its laws. Many states assert jurisdiction over
corporations whose principal place of business or registered office is located in their territories. States have also sought to
regulate corporations organized or having their principal place of business abroad when these corporations are owned or
controlled by nationals. This last is controversial. More controversial still are multi-national corporations which register
various addresses for different purposes. Thus, for instance, executive offices, sales operations, manufacturing and
distribution facilities may each be located in different localities. These problems, however, are more properly under the
domain of conflict of laws.
For maritime vessels, a state has jurisdiction over vessels flying its flag. (See Lotus case, supra.) Each state determines
requirements for registration. But flags of convenience might be challenged on the ground of lack of sufficient link. The
same principle is generally applicable to aircraft and spacecraft.
Explain the statement “War was in law a natural function of the state and a prerogative of its uncontrolled
sovereignty.”

It always lies within the power of a State ... to gain political or other advantages over another, not merely by the employment
of force, but also by direct recourse to war.” Early international law did not consider as illegal a war admittedly waged for
such purposes. It rejected, to that extent, the distinction between just and unjust wars.

There were early attempts to outlaw war such as in the Hague Convention II (1907), in the Covenant of the League of
Nations (1919), and in the Kellog-Briand Pact for the Renunciation of War (1928). But these did not prevent the horrors
of World War II. It was after World War II that a more effective law on preventing war was formulated.

Article 2(4) of the UN Charter says: “All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.” In effect, this provision outlaws war.
The paradox, however, is that side by side with the prohibition of armed conflict is the proliferation of laws of war. Three
facts can explain the paradox: first, those who resort to the use of arms do not give up until they have achieved victory;
second, given the first fact, humanitarian considerations dictate the need for rules which curtail violence beyond what is
necessary to achieve a state’s goal; third, there still remains in the hearts of the soldiery an acceptance of chivalry as a value.

On the assumption that wars can always occur there arose the need to formulate laws that can humanize the conduct of
war. From the middle of the last century the law on the area developed as a result of the pioneering effort of Henry Dunant
who had been appalled by the brutality of the battle of Solferino. His book “A Memory of Solferino” inspired the cretion
of the International Red Cross in 1863 and his ideas found their way into the 1864 Geneva Convention.

Distinguish protective principle from universality principle. (2017)

Protective principle - This principle says that a state may exercise jurisdiction over conduct outside its territory that
threatens its security, as long as that conduct is generally recognized as criminal by states in the international community.
(Restatement 402[3]) This conditional clause excludes acts committed in exercise of the liberty guaranteed an alien by the
law of the place where the act was committed.

Universality principle - The universality principle recognizes that certain activities, universally dangerous to states and their
subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link
between the state and the parties or the acts in question. This principle started with piracy. Piracy in international law means
any illegal act of violence or depredation committed for private ends on the high seas or outside the territorial control of
any state. Now the principle covers not just piracy but also genocide, crimes against humanity, war crimes, aircraft piracy
and terrorism. There is also a growing support for universal jurisdiction over crimes against human rights.