This article was written by Ankita Soni, a student of City Academy Law College, Lucknow.
From times immemorial the transactions between different groups and communities over globe has been inevitable. In the modern times States have removed every other institution to assume the status of the supreme entities on the international scene. These States in- turn, concordantly form the laws to self- regulate themselves, because there is no other superior authority to regulate their conduct. However, no State can survive independently of other States. The transactions between States are part and parcel of concept of Sovereignty of the States. These transactions include every aspect of relations between States as export and import of natural resources, human resources, manufactured resources, etc. These transactions also depend on and establish the very reputation of different States on the international scene.
From the times of industrial revolution, the majority of States or the most powerful States have been of view that the transaction between States must be eased and effective so to increase corporation among States. This implies that the local laws of every State must be in consonance with the the supreme international law in the terms of the transactions between States so as to ease the process. However, there are many States that have local laws which donot not favour such modern transactions, or their laws are to backward and conservative to allow such activities of free inflow and outflow of resources.
Among all the transactions between States the conveyance of persons from one State to another has been most disputed and the most significant among all. In comparison with the old times, the present status of ease of travel of persons from one state to another has ameliorated to a great extent. However, new problems have come up with the presence of foreign nationals in the territories of States and their diplomatic protection by their States. The presence of foreign nationals has imposed new duties on States. Nevertheless, many States have denied the presence of duties regarding foreign nationals and different approaches have been adopted by the Western and Third World nations. Therefore, the determination of a universal relevant standard of treatment of foreign nationals in every State is essential.
THE INTERNATIONAL MINIMUM TREATMENT STANDARD
The International Minimum Standard of Treatment was the first standard of treatment set by the developed states of the West, that argues that there exists an ‘international minimum standard’ for the protection of foreign nationals that must be upheld irrespective of how the state treats its own nationals.
The international minimum standard is a norm of customary international law which governs the treatment of aliens, by providing for a minimum set of principles which States, regardless of their domestic legislation and practices, must respect when dealing with foreign nationals and their property. This standard sets a number of basic rights established by international law that States must grant to aliens, independent of the treatment accorded to their own citizens. Violation of this norm engenders the international responsibility of the host State and may open the way for international action on behalf of the injured alien provided that the alien has exhausted local remedies.[i]
The American Law Institute’s Restatement (Second) of Foreign Relations Law of the United States, defines the standard in the following terms: “The international standard of justice…is the standard required for the treatment of aliens by:
(a) the applicable principles of international law as established by international custom, judicial and arbitral decisions, and other recognized sources or, in the absence of such applicable principles,
(b) analogous principles of justice generally recognized by States that have reasonably developed legal systems.”[ii]
However, this rule has been used by many developed and powerful countries to subdue their sovereign rights and to encroach over their natural resources under the veil of claiming rights of their nationals.
THE NATIONAL STANDARD OF TREATMENT
The national standard of treatment was evolved in response to ‘the international minimum treatment standard’ that the developed States used to interfere in the internal affairs of the under-developed countries. It also came to be known as the Calvo Clause or Calvo Doctrine, named after the famous Argentine jurist, Carlos Calvo. According to this standard, all the State need do is treat
the alien as it does its own nationals.[iii] It is largely based on the following propositions-
1) that equality, sovereignty and independence are paramount rights of the States,
2) that States, being equal, sovereign and independent, have the right to expect non-interference from other States, and finally,
3) that aliens have to abide by the local law of the State wherein they reside without invoking diplomatic protection of their governments in the prosecution of claims arising out of contracts, insurrection, civil war or mob violence.[iv]
Nonetheless, this standard of treatment endangered the very basic human righst of foreign nationals and could not be accepted universally.
HUMAN RIGHTS TREATMENT STANDARD
This standard is a synthesis between ‘the international minimum treatment standard’ and ‘the national treatment standard’. It was evolved by Garcia-Amador in a report on international responsibility to the International Law Commission in 1956.[v] According to him the difference between aliens and nationals has evaporated in terms of basic human rights in international law. Therefore, the two conflicting standards of treatment lose their basic ground, i.e. the difference between nationals and aliens. This new standard of treatment can be best explained in his own words-
“The State is under a duty to ensure to aliens the enjoyment of the same civil rights, and to make available to them the same individual guarantees as are enjoyed by its own nationals. These rights and guarantees shall not, however, in any case be less than the “fundamental human rights” recognized and defined in contemporary international instruments.
- In consequence, in case of violation of civil rights, or disregard of individual guarantees, with respect to aliens, international responsibility will be involved only if internationally recognized “fundamental human rights” are affected.”[vi]
This standard of treatment as is evident from the very terms is the most just and equitable both for the rights of aliens and for the States.
It is plain from the above examination of the different standards of treatment that both the ‘the international minimum treatment standard’ and ‘the national treatment standard’ form the thesis and antithesis of treatment. From the commixing of these two standards the perfect standard of treatment is synthesized, i.e. the human rights treatment standard. This standard of treatments meets all the needs of the present international society and the International Law Commission and other international authorities should regard it, so that this standard gets its justified place as the universal standard of treatment of aliens.
 Legal Persons and Natural Persons.
[i] OECD (2004), “Fair and Equitable Treatment Standard in International Investment Law” 8, OECD Working Papers on International Investment, 2004/03, OECD Publishing, http://dx.doi.org/10.1787/675702255435.
[ii] The American Law Institute’s Restatement (Second) of Foreign Relations Law of the United States, 1965, par. 165.2.
[iii] Malcolm N. Shaw, International Law 824 (Cambridge University Press, 6th ed. 2008).
[iv] Manuel R. Garcia-Mora,The Calvo Clause in Latin American Constitutions and International Law 206, 33 Marq. L. Rev. 205 (1950), http://scholarship.law.marquette.edu/mulr/vol33/iss4/1.
[v] Yearbook of the ILC, 1956, vol. II, 199–203.
[vi] Id., 113.