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that given to all other incarcerated individuals. 10 The Tri- a claim on the international level.
bunal, however, held that 7-7. Procedural Aspects of the Assertion of a Claim
. . .such equality is not the ultimate test of the propriety of the acts of Based on Injury to a National. a. Espousal of Claims by
authorities in the light of international law. That test, is broadly speak- States; General Considerations. International law imposes
ing, whether aliens are treated in accordance with ordinary standards of no duty on a state to press a claim based on injury caused
civilization. We do not hesitate to say that the treatment of Roberts was by a foreign state to one of the former's nationals. Under
such as to warrant an indemnity on the ground of cruel and inhuman
imprisonment. 11 the law of the United States, as well as most other states,
the injured national has no legally enforceable right to
c. In sharp contrast to the view espoused by Western
European and North American states and in keeping with compel his government to espouse his claim. 13
Moreover, if the claim is espoused, the Government en-
their basic approach toward international jurisprudence joys exclusive control over the handling and disposition of
discussed in chapter 1, the third world and lesser- the claim. In Administrative Decision V (United States v.
developed states deny the existence of any international Germany), Umpire Parker stated:
standard of justice. These countries submit that private
In exercising such control [the nation] is governed not only by the in-
and corporate aliens are entitled only to treatment equal to terest of the particular claimant but by the larger interests of the whole
that afforded citizens of the state through which these people of the nation and must exercise an untrammelled discretion in
aliens may be traveling or in which they may be resident. determining when and how the claim will be presented and pressed, or
From the point of view of those states advocating equality withdrawn or compromised, and the private owner will be bound by the
of treatment, an "international standard of justice" is action taken. Even if made to the espousing nation in pursuance of an
subject to five swc objections: award, it has complete control over the fund so paid to and held by it and
may, to prevent fraud, correct a mistake, or protect the national honor,
First, a national of one state, going out to another in search of wealth as its election return the fund to the nation paying it or otherwise dis-
or for any other purpose entirely at his risk, may well be left to the con- pose of it. 14
sequences of his own ventures, even in countries known to be danger- Thus, it is most clear that the President may waive or set-
ous. For international law to concern itself with his protection in a state
without that state's consent amounts to an infringement of that state's tle a claim against a foreign state based on its responsibility
sovereignty. Secondly, a standard open only to aliens but denied to a for an injury to a United States citizen, despite the latter's
state's own citizens inevitably widens the gulf between citizens qnd objection. 15 Claim settlements by the United States have
aliens and thus hampers, rather than helps, free intercourse among peo- often involved lump sum settlements of claims based on
ples of different states. Thirdly, the standard is rather vague and in- injuries to a number of claimants. Most have been in the
definite. Fourthly, the very introduction of an external yardstick for the
internal machinery ofjustice is apt to be looked upon as an affront to the form of executive agreement 16 and have called for the
national system, whether or not it is below the international standard. determination of awards to claimants either by mixed
Fifthly, a different standard of justice for aliens results in a two-fold claims commissions or by agencies in the executive
differentiation in a state where the internal standard is below the inter- branch. The Foreign Claims Settlement Commission has
national standard. Its citizens as aliens in other states are entitled to a
been engaged in such determination. 17
higher standard than their fellow citizens at home. Again the citizens of
other states as aliens in it are also entitled to a better standard than its b. Exhaustion of Local Remedies. Prior to requesting
own citizens. 12 his government to espouse a claim, an alien must exhaust
local judicial remedies in the state where the alleged wrong
d. Controversy continues to surround the issue of state
responsibility to aliens, and the issue becomes increasingly occurred. The requirement to do so is mandatory,
important as third world and lesser developed countries however, only if these remedies are both "available" and
increase in number and importance. Viewed realistically, "effective." Although the determination as to whether
the standard of treatment to be afforded aliens most prob- local remedies are available is a fairly easy one, it is often
more difficult to determine whether the available
ably lies somewhere between the two positions spoken to
above. This fact can best be demonstrated by an analysis remedies are effective judicial measures. Thus, it is helpful .
to examine several decisions dealing with this determina-
of what acts have generally been viewed as violations of
tive issue.
basic concepts constituting an international standard of
justice, substantive violations enabling a state to espouse (1) In Claim of Finnish Shipowners, 18 13 privately
the claim of one of its private or corporate citizens. Before
13. Restatement, supra, note 11 at 212.
initiating such an analysis, however, it is essential to
14. Administrative Decision V (United' States v. Germany),
closely examine the manner in which a state may espouse
11923-251 Administrative Decisions and Opinions 145, 190, 7
U.N.R.I.A.A. 119, 152.
10. -Mexicoas a developing state advocated an "equal treatment" 15. Resutement, supra, note 11 at 213, 214.
standard for aliens. 16. See United States v. Pi, 315 U.S. 203 (1942) for a discussion
11. The Harry Roberts Claim, supra, note 9 at 8 1. See also Restate- of the Executive Branch's right to enter into claims settlements on
ment (Second); Foreign Relations Law of the United States § 165 behalf of the United States and its private citizens.
(hereinafter cited as Restatemenfl. 17. See R. Lillich, International Claims: The Aajudication by Na-
12. Roy, Is the Law of Responsibility of States for IMuries to Aliens tional Commissions (1 962).
a Part of Universal International Law? 55 Am. J. Int'l L. 888, 890 18. Claim of Fish Shipowners (Finland v. Great Britain) 3
(1961). IJ.N.R.1.A.A. 1479 (1934).