The Treatment of Aliens under International Law – A Critical Appraisal
Keywords:
aliens, international law, treatmentAbstract
Non-citizens include asylum seekers, rejected asylum seekers, immigrants, non-immigrants, migrant workers, refugees, stateless persons, and trafficked persons. This book argues that regardless of their citizenship status, non-citizens should, by virtue of their essential humanity, enjoy all human rights unless exceptional distinctions serve a legitimate State objective and are proportional to the achievement of that objective. Non-citizens should have freedom from arbitrary arrest, arbitrary killing, child labour, forced labour, inhuman treatment, invasions of privacy, refoulement, slavery, unfair trial, and violations of humanitarian law. Additionally, non-citizens should have the right to consular protection, equality, freedom of religion and belief, labour rights (for example, as to collective bargaining, workers' compensation, healthy and safe working conditions, etc.), the right to marry, peaceful association and assembly, protection as minors; and social, cultural, and economic rights. There is a large gap, however, between the rights that international human rights law guarantee to non-citizens and the realities they face. In many countries, non-citizens are confronted with institutional and endemic discrimination and suffering. The situation has worsened since 11 September 2001, as several governments have detained or otherwise violated the rights of non-citizens in response to fears of terrorism. This book attempts to understand and respond to the challenges of international human rights law guarantees for non-citizens human rights.
References
1. See Guha Roy, 'Is the Law of Responsibility of States for Injury toAliens a Part of Universal International Law?', 55 AJIL, 1961, p. 863.
2. See e.g. A. M. Stuyt , Survey of International Arbitrations, 1794 —1889, 3rd edn, Dordrecht, 1990.
3. See e.g. International Claims (eds. R. B. Lillich and B. Weston), Charlottesville, 1982, and R. B. Lillich and B. Weston, International Claims: Their Settlements by Lump-Sum Agree ¬ments, Charlottesville, 2 vols., 1975. See also the US -People's Republic of China Claims Settlement Agreement of 1979, DUSPIL, 1979, pp. 1213-15, and Whiteman, Digest, vol. VIII, pp. 933-69.
4. Note the establishment of the UN Compensation Commission followi ng the ending of the Gulf War in 1991 to enable the settlement of claims arising out of that conflict: see below, chapter 22, p. 1249.
5. See e,g. Guha Roy, 'Law of Responsibility'; J. Castafieda, 'The Underdeveloped Nations and the Development of Internation al Law', 15 International Organization, 1961, p. 38, and R. P. Anand, New States and International Law, Delhi, 1972.
6. See e.g. Lillich, 'Duties', p. 349. 271 4 RIAA, p. 60 (1926); 3 AD, p. 213
7. PCI J, Series A, No. 7, 1926; 3 AD, p. 429.
8. 4 RIAA, p. 119 (1926). See also the Chattin case, 4 RIAA, p. 282 (1927); 4 AD, p. 248.
9. 4 RIAA, p. 77 (1926); 3 AD, p. 227.
10. 4 RIAA, pp. 60, 61 -2 (1926); 3 AD, p. RIAA, p. 282 (1927); 4 AD, p. 248.
11. M. S. McDougal etal, Studies in World Public Order, New Haven, 1960, p. 869.
12. See Lillich, 'Duties', p. 350.
13. See e.g. A. V. Freeman, The International Responsibility of States for Denial of Justice, London, 1938.
14. See AMCOv. Indonesia {Merits) 89 ILR, pp. 405, 451. 4
15. RIAA, p. 82 (1926); 3 AD, p. 218.
16. See e.g. the Roberts claim, 4 RIAA, p. 77 (1926); 3 AD, p. 227 and the Quintanilla claim, 4 RIAA, p. 101 (1926); 3 AD, p. 224.
17. Yearbook of the ILC, 1956, vol. II, pp. 173, 199-203. Treatment of Aliens under International Law – A Critical Appraisal Mahantesh G S JHRLP (2020) 60–74 © Law Journals 2020. All Rights Reserved Page 69
18. Yearbook of the ILC, 1957, vol. II, pp. 104, 112-13.
19. See above, chapters 6 and 7
20. See e.g. article 2 of the International Covenant on Civil and Political Rights, 1966 and article 1 of the European Convention on Human Rights, 1950.
21. General Assembly resolution 40/144. See also E/CN.4/Sub.2/392 (1977) and R. B. Lillich and S. Neff, 'The Treatment of Aliens and International Human Rights Norms', 21 German YIL, 1978, p. 97.
22. See further above, chapter 6, p. 333.
23. 10 RIAA, p. 528 (1903). See also Dr Breger's case, Whiteman, Digest, vol. VIII. p, till R Plender, International Migration Law, 2nd edn, Dordrecht, 1988, and G. Goodwin International Law and the Movement of Persons Between States, Oxford, 1978.
24. Note also article 1 of Protocol 7 (1984) of the European Convention on Human Rights to the same general effect as article Convention Relating to the Status of Refugees and the 1967 Protocol, and G. Goodwin-Gill, The Refugee in International Law, 2nd edn, Oxford, 1996.
25. See Rankin v. The Islamic Republic of Iran 17 Iran-US CTR, pp. 135,142; 82ILR, pp. 204, 214. See also Goodwin -Gill, International Law and the Movement of Persons; Brownlie, Principles, pp. 498 ff., and M. Pellonpaa, Expulsion in International Law, Helsinki, 1984.
26. This is a general principle, but cf. Lord Denning in the Thakrar case, [1974] QB 684; 59 ILR, p. 450. Note that the Lord Chancellor, in dealing with the expulsion of British aliens from East Africa, accepted that in international law a state was under a du ty as between other states to accept expelled nationals: see 335 HL Deb., col. 497, 14 September 1972. See also Van Duyn v. Home Office [1974] ECR 1337; 60 ILR, p. 247.
27. See e.g. G. White, Nationalization of Foreign Property, London, 1961; B. Wortley, Expro priation of Public International Law, 1959; A. F. Lowenfeld, International Economic Law, 2nd edn, Oxford, 2008, part VI; M. Sornarajah, The International Law on Foreign Investment, 2nd edn, Cambridge, 2004, and Sornarajah, The Settlement of Foreign Investment Disputes, The Hague, 2000; I. Brownlie, 'Legal Status of Natural Resources', 162 HR, 1979, p. 245; R. Higgins, 'The Taking of Property by the State: Recent Developments in International, Law', 176 HR, 1982, p. 267, and The Valuation of Nationalized Property in International Law (ed. R. B. Lillich), Charlottesville, 3 vols., 1972 -5. See also Oppenheim's International Law, pp. 911 ff.; P. Muchlinski, Multinational Enterprises and the Law, 2nd edn, Oxford, 1999, pp. 491 ft; A. Mouri, The International Law of Expropriation as Reflected in the Work of the Iran -US Claims Tribunal, Dordrecht, 1994; P. M. Norton, 'A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation', 85 A)IL, 1991, p. 474; N. Schrijver, Sovereignty over Natural Resources, Cambridge, 1997, and F. Bevendge, The Treatment and Taxation of Foreign Investment under International Law, Manchester, 2000
28. See e.g. De Sanchez v. Banco Central de Nicaragua and Others 770 F.2d 1385, 1397; XH II. R, pp. 75, 89.
29. See e.g. AMCO v. Indonesia (Merits) 89 ILR, pp. 405,466.
30. See e.g. the World Bank Guidelines on the Treatment of Foreign Direct Investment, 31 ILM, 1992, p. 1363.
31. 53 ILR, p. 389.
32. See e.g. C. Greenwood, 'State Contracts in International Law - The Libyan Oil Arbitrations', 5 3 BYIL, 1982, pp. 27, 41 ff. See also A. Fatouros, 'International Law and the Internationalized Contract', 74 AJIL, 1980, p. 134.
33. See e.g. J. Paulsson, 'The ICSID Klockner v. Cameroon Award: The Duties of Partners in North -South Economic Development Agreem ents', 1 Journal of International Arbitration, 1984, p. 145; the Ammoi! case, 21 ILM, 1982, p. 976; 66ILR,p.519, and D. W. Bowett,'State Contracts with Aliens: Contemporary Developments on Compensation for JHRLP (2020) 60–74 © Law Journals 2020. All Rights Reserved Page 70 Termination or Breach', 59 BYIL, 1988, p. 49
34. See in particular article 1 of Protocol I of the European Convention on Human Rights, 1950 as regards the protection of the right to property and the prohibition of deprivation of possessions 'except in the public interest and subject to the conditions provided for by law and by the general principles of international law'. See e.g. the following cases: Marckx, European Court of Human Rights, Series A, No. 31; 58 ILR, p. 561; Sporrong and Lbnnroth, ECHR, Series A, No. 52; 68 ILR, p. 86; Loizidou v. Turkey, Judgm ent of 18 December 1996; 108 ILR, p. 444. See also e.g. Jacobs and White European Convention on Human Rights (eds. C. Ovey and R. C. A. White), 4th edn, Oxford, 2006, chapter 15. However, it has been held that the reference to international law did not app ly to the takingby a state of the property of its own nationals: see Lithgow, European Court of Human Rights, Series A, No. 102; 75 ILR, p. 438; James, ECHR, Series A, No. 98; 75 ILR, p. 397 and Mellacher, ECHR, Series A, No. 169. See also Brock, 'The Protection of Property Rights Under the European Convention on Human Rights', Legal Issues of European Integration, 1986, p. 52
35. Higgins, 'Taking of Property', p. 268.
36. 55 AJIL, 1961, p. 548 (article 10(7)).
37. 20 1LM, 1981, pp. 1, 53; 62 ILR, pp. 141,189. See also the Shufeldt case, 2 RIAA, pp. 1083, 1097 (1930); 5 AD, p. 179.
38. See also below, p. 839, concerning the definition of investments' in bilateral investment treaties. See also article 1(6) of the European Energy Charter Treaty, 1994.
39. See e.g. R. Dolzer and C . Schreuer, Principles of International Investment Law, Oxford, 2008, chapter 6
40. The North American Free Trade Agreement (NAFTA) Arbitration Tribunal noted that the term 'expropriation', 'carries with it the connotation of a "taking" by a government-type au thority of a person's "property" with a view to transferring ownership of that property to another person, usually the authority that exercised its dejure or de facto power to do the "taking"', S.D. Myers v. Canada 121 ILR, pp. 72, 122.
41. 55 AJIL, 1961, pp. 553-4 (article 10(3) a).
42. BPIL, 1964, p. 200. See also 4 ILM, 1965, pp. 440-7. Note also Shanghai Power Co. v. US 4 CI. Ct. 237 (1983), where it was held that the settlement of the plaintiff's claim by the US government in an agreement with China for less t han its worth did not constitute a taking for which compensation was required in the context of the Fifth Amendment.
43. Interlocutory Award, 4 Iran -US CTR, p. 122; 85 ILR, p. 349.
44. 4 Iran -US CTR, p. 154; 85 ILR, p. 390. See also Harza Engineering Co. v. The Islamic Republic of Iran 1 Iran -US CTR, p. 499; 70 ILR, p. 117, and A7G v. The Islamic Republic of Iran 4 Iran -US CTR, p. 96. See also SEDCO v. MOC 84 ILR, p. 483.
45. 4 Iran -US CTR, p. 156; 85 ILR, p. 392. Cf. the Concurring Opinion by Judge Holtzmann on this issue, 4 Iran -US CTR, pp. 159, 178; 85 ILR, p. 414.
46. Kalamazoo Spice Extraction Company v. The Provisional Military Government of Socialist Ethiopia 86 ILR, p. 45 and 90 ILR, p. 596. See also Agip SpA v. The Government of the Popular Republic of the Congo 6 7 ILR, p. 319 and Benvenuti and Bonfant. The Government of the Popular Republic of the Congo, ibid., p. 345.
47. 95 ILR, pp. 183, 207 -10. See also Metalclad Corporation v. United Mexican States 119 ILR, pp. 615,639 -40, a case under the North American Free Trad e Agreement (NAFTA), article 1110 of which prohibits direct and indirect expropriation, where the Tribunal noted that expropriation included 'covert or incidental interference with the use of property which has the effect of depriving the owner, in whole o r in significant part, of the use of reasonably to be expected economic benefit of property even if not necessarily to the obvious benefit of the host state', para. 108. See also CME v. Treatment of Aliens under International Law – A Critical Appraisal Mahantesh G S JHRLP (2020) 60–74 © Law Journals 2020. All Rights Reserved Page 71 Czech Republic 9 ICSID Reports, p. 121 and Middle East Cement Shipping v. Egypt 7 ICSID Reports, p. 178.
48. See e.g. Generation Ukraine v. Ukraine 44 ILM 2005, p. 404, paras. 20.22 and 20.26, noting that the plea of'creeping expropriation' proceeded on the basis of an investment existing at a particular time that was eroded by a series of acts attributable to the state to the extent that it is violative of the relevant international standard of protection against expropriation. See also Siemens v. Argentina, Award of 6 February 2007, and W. M. Reisman and R. D. Sloane, 'Indirect Expropriation and Its Valuation in the BIT Generation', 74 BYIL, 2003 p. 115.
49. 39 ILM, 2000, pp. 1317, 1329
50. PCIJ, Series A, No. 7, 1926. See also the Norwegian Shipowners' Claims case, 1 RIAA, p. 307 (1922) and the Sporrong and Lbnnroth case before the Eur opean Court of Human Rights, Series A, No. 52 (1982); 68 ILR, p. 86. See also Papamichalopoulos v. Greece, European Court of Human Rights, Series A, No. 260 (1993), p. 15. Note in addition RevtTt ( oppet v. Opic 56 ILR, p. 258. See G. C. Christie, 'What Co nstitutes a Taking of Property under International Law?', 38 BYIL, 1962, p. 307; DUSPIL, 1976, p. 444; Brownlie, System and State Responsibility, pp. 24 -5; Whiteman, Digest, vol. VIII, pp.1006 ff., and Third Us Restatement on Foreign Relations Law,vol. II, pp, 200-1
51. PCIJ, Series A, No. 7, 1926, p. 22.
52. 53 ILR, p. 297
53. Ibid., p. 329.
54. 20 ILM, 1981, p. 1; 62 ILR, p. 141.
55. 20 ILM, 1981, pp. 58-9; 62 ILR, p. 194.
56. Paragraph 4 of the 1962 Resolution provides that' [nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private in terests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation in accordance with the rules in force in the state taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the state taking such measures shall be exhausted. However, upon agreement by sovereign states and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.
57. Article 2(2)c of the 1974 Charter provides that every state has the right to 'nationalise, expropriate or transfer ownership of foreign property in which case appropriate compensation should be paid by the state adopting such measures, taking into account its relevant laws and regulations and all circumstances that the state considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the d omestic law of the nationalising state and by its tribunals, unless it is freely and mutually agreed by all states concerned that other peaceful means be sought on the basis of the sovereign equality of states and in accordance with the principle of free choice of means.'
58. See also Agip SpA v. The Government of the Popular Republic of the Congo 67 ILR, pp. 319, 336-9
59. 39 ILM, 2000, pp. 1317, 1329. The fact that the taking was for a laudable environmental reason did not affect the duty to pay compensation, ibid. See also Too v. Greater Modesto Insurance Associates 23 Iran -US CTR, p. 378; Methanex v. USA 44 ILM, 2005, p. 1345 and Saluka v. Czech Republic, Partial Award, 17 March 2006.
60. Hackworth, Digest, vol. Ill, 1940 -4, p. Enterprises, pp. 496 ff., and E. Lauterpacht, 'Issues of Compensation and Nationality in the Taking of Energy Investments', 8 Journal of Energy and Natural Resources Law, 1990, p. 241.
61. See e.g. DUSPIL, 1976, p. 444, and D. Robinson, 'Expropriation in the Restatement (Revised)', 78 AJIL, 1984, p. 176. JHRLP (2020) 60–74 © Law Journals 2020. All Rights Reserved Page 72
62. Robinson, 'Expropriation', p. 178. See further below, p. 837.
63. See e.g. the Chorzow Factory case, PCIJ, Series A, No. 17, 1928, p. 46; 4 AD, p. 268 and the Norwegian Shipowners' Claims case, 1 RIAA, pp. 307, 339 -41 (1922). See also O. Schachter, 'Compensation for Expropriation', 78 AJIL, 1984, p. 121.
64. 17 ILM, 1978, pp. 3 , 29; 53 ILR, pp. 389, Chase Manhattan Bank65& F.2d 875 (1981); 66 ILR, p. 421
65. 21 ILM, 1982, p. 976; 66 ILR, p. 519
66. 21 ILM, 1982, p. 1032; 66 ILR, p. 601
67. 21 ILM, 1982, p. 1033.
68. See e.g. the Texaco case, 17 ILM, 1978, pp. 1, 29-31; 53 ILR, p. 489. Note that the Third US Restatement of Foreign Relations Law, p. 196 (para. 712), refers to the requirement of 'just compensation' and not the Hull formula. This is defined as 'an amount equivalent to the value of the property taken and to be paid at the time of taking or within a reasonable time thereafter with interest from the date of taking and in a form economically usable by the foreign national', ibid., p. 197. See also Schachter, 'Compensation', p. 121
69. See generally als o R. Dolzer, 'New Foundation of the Law of Expropriation of Alien Property', 75 AJIL, 1981, p. 533, and M. Sornarajah, 'Compensation for Expropriation', 13 Journal of World Trade Law, 1979,p. 108, and Sornarajah, International Law on Foreign Investment.
70. 31 ILM, 1992, p. 1382. Note also that article 1110 of the North American Free Trade Agreement, 1992 (NAFTA) provides that no party shall directly or indirectly nationalize or expropriate an investment of an investor of another party in its territory or take a measure tantamount to nationalization or expropriation except where it is for a public purpose, on a non -discriminatory basis, in accordance with due process of law and upon payment of compensation. The payment of compensation is to be the fair market va lue of the expropriated investment immediately before the expropriation took place and should not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value (including declared tax value of tangible property) and other criteria, as appropriate to determine fair market value. In addition, compensation shall be paid with interest, without delay and be fully realisable. See 32 ILM, 1993, p. 605.
71. 34 ILM, 1995, p. 391
72. See e.g. the Aminoil case, 21 ILM, 1982, pp. 976, 1038; 66 ILR, pp. 519,608-9.
73. Fair market value means essentially the amount that a willing buyer would pay a willing seller for the shares of a going concern, ignoring the expropriation situation completely: see e.g. INA Corporation v. The Islamic Republic of Iran 8 Iran-US CTR, pp. 373, 380; 75 ILR, p. 603.
74. See the Memorandum of the Foreign and Commonwealth Office on the Practice of International Tribunals in Awarding Interest, UKMIL, 63 BYIL, 1992, p. 768.
75. 24 ILM, 1985, pp. 1022, 1036 -7; 89 ILR, pp. 405, 504. See also the Chorzow Factory case, PCIJ, Series A, No. 17,1928;4AD,p. 268; the Sapphire case, 35 ILR, p. 136; the Norwegian Shipowners' Claims case, 1 RIAA, p. 307 (1922); the Lighthouses Ar bitration 23 ILR, p. 299, and Benvenuti and Bonfant v. The Government of the Popular Republic of the Congo 67 ILR pp. 345, 375-9.
76. 24 ILM, 1985, pp. 1022, 1037; 89 ILR, p. Republic of Iran 83 ILR, p. 460.
77. 119 ILR, pp. 615, 641. See also Benvenuti and Bonfant v. The Government of the Popular Republic of the Congo 67 ILR, p. 345 and AGIP SPA v. The Government of the Popular Republic of the Congo 67 ILR, p. 318.
78. 119 ILR, pp. 641 -2. See also Phelps Dodge Corporation v. Iran 10 Iran -US CTR, 1986, pp. 121,132 -3 and Biloune v. Ghana Investment Centre 95 ILR, pp. 183, 228-9.
79. 8 Iran-US CTR, p. 373; 75 ILR, p. 595.
80. 8 Iran-US CTR, p. 378; 75 ILR, p. 602. 346 8 Iran-US CTR, p. 390; 75 ILR, p. 614. Treatment of Aliens under International Law – A Critical Appraisal Mahantesh G S JHRLP (2020) 60–74 © Law Journals 2020. All Rights Reserved Page 73
81. 15 Iran-US CTR, pp. 189, 246-52; 83 ILR, p. 500.
82. 15 Iran-US CTR, p. 246; 83 ILR, p. 565.
83. See also Judge Lagergren's Separate Opinion in INA Corporation v. The Islamic Republic of Iran 8 Iran -US CTR, p. 385; 75 ILR, p. 609.
84. But see e.g. AIG v. The Islamic Republic of Iran 4 Iran -US CTR, pp. 96, 109 -10, where in a case of lawful expropriation lost profits were awarded. S ee also Brownlie, Principles, pp. 508 ff.; Section IV of the World Bank Guidelines, and article 13 of the European Energy Charter Treaty, 1994.
85. See e.g. Lowenfeld, International Economic Law, pp. 554 ff; E. Denza and D. Brooks, 'Investment Protection Treaties: United Kingdom Experience', 36 ICLQ, 1987, p. 908; A. Akinsanya, 'International Protection of Direct Foreign Investments in the Third World', 36 ICLQ, 1987, p. 58;'F. A. Mann, 'British Treaties for the Promotion and Protection of Investments', 52 BYIL , 1981, p. 241; D. Vagts, 'Foreign Investment Risk Reconsidered: The View From the 1980s', 2 ICSID Review - Foreign Investment Law Journal, 1987, p. 1;P.B. Gann, 'The US Bilateral Investment Treaties Program', 21 Stanford Journal of International Law, 1986 , p. 373, and I. Pogany, 'The Regulation of Foreign Investment in Hungary', 4 ICSID Review - Foreign Investment Law Journal, 1989, p. the Role of Diplomatic Protection in the Field of the Protection of Foreign Investment', International Law Association, Report of the Seventieth Conference, New Delhi, 2002, p. 259, and C. McLachlan, 'Investment Treaties and General International Law', 57 ICLQ, 2008, p. 361
86. Kokott estimates that close to 2,000 are in existence, 'Interim Report', p. 263. See, for earlier figures, 35 ILM, 1996, p. 1130; Denza and Brooks, 'Investment Protection Treaties', p. 913, and UKM1L, 58 BYIL, 1987, p. 621. Lowenfeld estimates that as of 2006, some 2,400 to 2,600 bilateral investment treaties were in effect, International Economic Law, p. 554.
87. See the text of the Foreign Office statement in UKMIL, 58 BYIL, 1987, p. usually termed investment promotion and protection agreements (IPPAs). In March 2000, it was sta ted that the UK had entered into ninety - three such treaties, UKMIL, 71 BYIL, 2000, p. 606.
88. See Kokott, 'Interim Report', p. 263. See also R. Dolzer, 'New Foundations of the Law of Expropriation of Alien Property', 75 AJIL, 1981, pp. 553, 565 -6, and B. Kishoiyian, 'The Utility of Bilateral Investment Treaties in the Formulation of Customary International Law', 14 Netherlands Journal of International Law and Business, 1994, p. 327.
89. Text reproduced in 29 ILM, 1989, p. 366.
90. See also, for example, the similar provisions in the UK -Philippines Investment Agreement, 1981 and the UK - Hungary Investment Agreement, 1987. See also article 1(6) of the European Energy Charter Treaty, 1994.
91. See e.g. article 2 of the UK -USSR agreement.
92. See e.g. article 3 of the UK -USSR agreement.
93. Note that provisions for compensation for expropriation may also be contained in Treaties of Friendship, Commerce and Navigation as part of a framework arrangement dealing with foreign trade and investment: see e.g. article 1V(3) of the Convention o f Establish¬ment, 1959 between the US and France, 11 UST 2398.
94. See e.g. S. J. Canner, 'The Multilateral Agreement on Investment', 31 Cornell In¬ternational Law Journal, 1998, p. 657; A. Bohmer, 'The Struggle for a Multilat¬eral Agreement on Investment - An Assessment of the Negotiation Process in the OECD', 41 German YIL, 1998, p. 267, and T. Waelde, 'Multilateral Investment Agree¬ments (MITs) in the Year 2000' in Melanges Philippe Kahn, Paris, 2000, p. 389. See also www. oecd.org/EN/document/0„EN-document- 92-3-no-6-27308-92,00.html. Dis¬cussi ons on investment continue within the JHRLP (2020) 60–74 © Law Journals 2020. All Rights Reserved Page 74 framework of the World Trade Organization: see www.wto.org/english /tratop-e/invest_e/invest-e.htm
95. See e.g. Lillich and Weston, International Claims: Their Settlement by Lump -Sum Agree¬ments, and Lillich and Weston, 'Lump-Sum Agreements: Their Continuing Contribution to the Law of International Claims', 82 AJIL, 1988, p. Report on Lump Sum Agreements and Diplomatic Protection', International La w Association, Report of the Seventieth Conference, New Delhi, 2002, p. 230.
96. Cm 30. Note that this agreement dealt with claims arising before 1939.
97. As against these claims, the USSR had made extensive claims in the region of £2 billion in respect of alleged losses caused by British intervention in the USSR between I9IH Mid 1921: see UKMIL, 57 BYIL, 1986, p. 606
98. The British government waived its entitlement to a share in the settlement in rctpci I "I its own claims, ibid., p. 608.
99. See also the UK -China Agreement on the Settlement of Property Claims 1987, UKMIL, 58 BYIL, 1987, p. 626.
100. See, with respect to the UK -USSR agreement, the Foreign Compensation (USSR) (Registration and Determination of Claims) Order 1986, SI 1986/2222 and the Foreign Compensation (U SSR) (Distribution) Order 1987.
101. 1 0 Iran -US CTR, pp. 180, 185; 80 AJIL, 1986, p. 969.
102. See e.g. Bowett, 'State C ontracts with Aliens', pp. 65-6.
103. Note the view of the International Court in the Barcelona Traction case that such settlements were sui generis and provided no guide as to general international practice, ICJ Reports, 1969, pp. 4, 40.
104. See e.g. White, Nationalization, pp. 119 ff. See also A. Maniruzzaman, 'Expropriation of Alien Property and the Principle of Non -Discrimination in the International Law of Foreign Investment', 8 Journal of Transnational taw and Policy, 1999, p. 141
105. 20 ILM, 1981, p. 1; 62 ILR, p. 141
106. 20 ILM, 1981, pp. 58-9; 62 ILR, p. 194.
107. 20 ILM, 1981, p. 60. See also Section IV of the World Bank Guidelines on the Treatment of Foreign Direct Investment, and article 13 of the European Energy Charter Treaty, 1994
108. See e.g. S. K. Chatterjee, 'The Convention Establishing the Multilateral Investment Guarantee Agency', 36 ICLQ, 1987, p. 76, and I. Shihata, The Multilateral Investment Guarantee Agency and Foreign Investment, Dordrecht, 1987. The Convention came into force on 12 April 1988: see 28 ILM, 1989, p. 1233 and see also www.miga.org/.
109. See e.g. the UK Multilateral Investment Guarantee Agency Act 1988.
110. Article 11. Cite this Article Mahantesh G S. Treatment of Aliens under International Law – A Critical Appraisal . Practice. 2020; 3(1): 60–74p.
