JOURNAL LA SOCIALE
VOL. 02, ISSUE 01 (018-024), 2021
DOI: 10.37899/journal-la-sociale.v2i1.264

The Protection of Foreigners in International Law
Ferry Eka Rachman1, Eko Saputro1, Akhirudin Vami Kemalsa1
1Master of Law, Faculty of Law, University of Airlangga, Indonesia

*Corresponding Author: Ferry Eka Rachman
Email: ferryekarachman@gmail.com
Article Info
Article history:
Received 02 January 2021
Received in revised form 08
January 2021
Accepted 13 January 2021
Keywords:
Legal Protection
Citizen
Foreigners

Abstract
This research aims to find out legal protection against foreigners and
citizens who lives outside their nationality country. In discussing the
issue of international legal protection against foreigners, a doctrinal
approach and international court practice is used. From the opinion of
international legal experts, it will be found legal principles and theories
regarding the position of individuals as subjects of international law.
The principles of citizenship are the main basis for the application of the
principle of jurisdiction and country responsibility towards its citizens
and foreigners. The results are, In principle, every country will be
responsible for providing legal protection to every citizen of the country
wherever he/she is and foreigners will receive legal protection, under
certain limitations, both from the country where he/she is temporarily
located and from the country of origin. Thus, a person's citizenship
status is closely related to the protection of international law that will
be given to him/her, against him/her, his/her property and family. The
application of the principle of state responsibility against citizens
abroad or foreigners is based more on the principle of state sovereignty.
A sovereign state will apply its national laws to its citizens within its
territorial boundaries. Apart from that what applies is legal provisions
of other countries or provisions of international law.

Introduction
Individuals who reside in a country in the form of citizens and not citizens. People who are not
citizens of this country are referred to as foreigners. To determine whether a resident is a citizen
or not, this is regulated by the national law of each country. In the national law, it will be
determined who includes citizens and who are not. Although each country has the authority to
determine its citizenship rules that are enforced in the territory of that country, yet that country
must also pay attention to the principles of international law that is contained in international
agreement, international customary law and general principles of international law regarding
citizenship (Schachter, 1991; Ardhiwisastra, 2003; Koh, 2004). According to Starke (2003),
the importance of a person's nationality status for international law is in terms of: Granting
diplomatic protection rights abroad. Every country has the right to protect its citizens abroad;
A country which becomes the nationality of a certain person will be liable to another country
if that country neglects its obligation to prevent acts against the law that are committed by the
person concerned or the country does not punish him/her, after the acts against the law has been
committed. In general, a country may not reject or accept back its citizens in its territory;
Nationality is closely related to loyalty, and one of the main rights of loyalty is the obligation
for military service in the country to which loyalty is dedicated; A country has broad rights,
unless there is a special treaty binding it to exercise that right, to refuse extradition of its citizens
to another country requesting surrender; The enemy's status in war can be determined by the
nationality of the person; and A country exercises criminal jurisdiction and other jurisdictions
based on someone's nationality (Deen-Racsmany, 2001; Starke, 2003).
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Thus, it is quite important to determine the citizenship status of a person in advance so that
there are no doubts about the application of the law to him/her. If doubts arise, then the rule of
law used is the local national law that is recognized by that person or the law in force in the
country that is suspected to be the nationality of that person, so argued Russell J in the Stoeck
v Public Trustee case, as follows: "The issue of which country a person belongs in the end it to
must be decided by the local national law of the country that claimed by that person as his/her
country or alleged to be his/her country”. This principle is also in accordance with articles 1
and 2 of The Hague Convention on the Conflict of Nationality Law in 1930, which reads as
follows: Article 1: “Every country determines according to its own rights who is its citizen.
This law must be recognized by other countries as long as it is consistent with international
conventions, international customs and generally recognized legal principles regarding
nationality”. Article 2: "Every issue regarding whether a person is the nationality of a country
must be determined in accordance with the laws of that country" (Starke, 2003).
Methods
In discussing the issue of international legal protection against foreigners, a doctrinal approach
and international court practice is used. From the opinion of international legal experts, it will
be found legal principles and theories regarding the position of individuals as subjects of
international law. The principles of citizenship are the main basis for the application of the
principle of jurisdiction and country responsibility towards its citizens and foreigners.
Results and Discussion
Individuals as International Law Subjects
Regardless of the position of an individual as a citizen or foreigner, he or she is a subject of
international law, which has rights and obligations under international law in a limited sense.
In this limited sense, it is the opposite of the definition of a country as a subject of international
law in its full meaning. This view is based on the theoretical concept that only the country is a
law subject, and individuals have certain rights and obligations through a country that is a
participant to a convention, such as in the Red Cross Convention of 1949 (Mochtar & Agoes,
2003). By borrowing a term from Prof. Nguyen Quoc Din, that individuals are the subject of
artificial international law, because it is the will of the country, which is formulated in
conventional provisions, which makes individuals in certain matters the subject of international
law (Mauna, 2003).
In its development, the position of individuals as subjects of international law has become
important and the understanding that only country is subject of international law is starting to
be abandoned, as in the case of the Danzig Railway Officials Case, the International Court of
Justice issued a decision in its general dictum arguing that: "If an international agreement gives
rights to individuals, this right must be recognized and have a validity in international law,
meaning that it is recognized by an international judicial bodies”. Likewise, there are courts in
Nurenberg and Tokyo in trying war crimes perpetrators, in which case the perpetrators of
crimes are individually responsible for war crimes and crimes against humanity, and cannot
take refuge in their country (Mochtar & Agoes, 2003).
State Jurisdiction against Foreigners
The practice of exercise of jurisdiction by several countries which applies to people, their
property, actions or events, varies and the differences are caused by historical and geographic
factors of a country (Starke, 2001). In international law there are several principles of
jurisdiction, The first one is territorial jurisdiction, the exercise of territorial jurisdiction by a
country against property, people, actions and events that occur within the territory of a country
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is recognized by international law for all member countries of the international community.
According to article 9 of the Montevideo Convention of 1933, that: "The jurisdiction of states
within the limits of national territory applies to all the inhabitants". Thus the enactment of the
territorial jurisdiction of a country is within the limitation of its territory, and will remain
attached to it because the country is sovereign. Also included in the territory of a country is the
maritime coastline or the territorial sea, ships with the flag of a certain country, and ports.
The extension of the definition of territorial jurisdiction is the subjective territorial principle
and the objective territorial principle. What is meant by subjective territorial principle is that a
country exercises its jurisdiction to prosecute and punish a criminal act that is committed in the
territory of its country, but the act is solved in the territory of another country. The application
of this principle is not yet generally accepted in international practice but is included in the
Geneva Convention for Suppression of Cunterfeiting Currency, 1929 and the 1939 of Geneva
Convention for Suppression of the Illicit Traffic Drug.
Meanwhile, in objective territory, a certain country can apply objective jurisdiction, if a
criminal act or other act committed in another country but carried out or solved within the
territory of their country, or the act has a very dangerous effect on the social and economic
order in the territory of their country. This principle is also embodied in the two conventions
mentioned above and is recognized in court decisions in the United States, United Kingdom
and Germany. In addition, territorial jurisdiction against foreigners is also recognized, citing
the opinion of Moore (1935) in his Lotus Case, among other things, stated there is no
assumption of immunity that arises from the fact that the person who is subject to the case is a
foreigner; a foreigner cannot demand exemption from the exercise of such jurisdiction except
as long as that person can demonstrate the following: for reasons of special immunity, he/she
is not subject to local law or local law is incompatible with international law (Starke, 2001).
The exceptions from the exercise of this territorial jurisdiction are: against foreign heads of
state, foreign representatives and consuls, foreign-owned ships, and foreign-owned armed
forces, international institutions.
The second one is Individual jurisdiction, the application of this jurisdiction depends on the
individual perpetrators involved in certain law events, not on the territorial aspects of a country.
In international practice, this individual jurisdiction is exercised according to the principles of
active nationality and passive nationality. According to the principle of active nationality, the
country can exercise jurisdiction over all its citizens, whereas according to the principle of
passive nationality, the country can exercise its jurisdiction if a citizen suffers a loss.
International law recognizes this principle with certain limitations, such as in the Cutting Case,
where countries that do not recognize this principle are also not obliged to give recognition to
trials that are carried out by other countries against their citizens. The basis for justifying the
principle of passive nationality is that every country has the right to protect its citizens abroad
and if the territorial country where the crime occurred does not punish the person who caused
the loss, then the country of origin of the victim is authorized to the criminal act, if that person
is in its territory (Sarkar, 1962; McCarthy, 1989).
The third one is Jurisdiction according to the principle of protection, every country has the
authority to exercise its jurisdiction against crimes related to security, integrity and vital
economic interests, with resons that the consequences of the criminal act are very large for the
country in question and if jurisdiction is not exercised, then the perpetrator will escape from
punishment for not violating local laws or extradition being rejected with the reason that it is
not a political crime. For example, the court practice in England in the Joyce V DPP Case, the
High Council argued that "a foreigner who betrays the Crown can be punished even if it is done
abroad".
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And the fourth one is Jurisdiction according to universal principles. A criminal act which is
subject to this universal jurisdiction is a crime that falls under the jurisdiction of all countries
wherever the criminal act is committed. Jure gentium criminal act and all countries have the
right to arrest and punish the perpetrators, for example crimes of piracy and war crimes.
A foreigner is entitled to the same protection based on the laws of the country where he/she is
located and is also entitled to certain rights to give him/her the possibility of living a decent
life, as stipulated in article 9 of the Montevideo Convention in 1933, which reads: "Nationals
and foreigners are under the same protection of law and the national authorities and the
foreigners may not claim right other or more than those of nationals "
Regardless of the same protection of the rights of foreigners under the laws of the host before
the court, international law does not prohibit a country from having a different treatment which
puts its own citizens first than foreigners. In general, not all foreigners have the same rights
and obligations. Foreign residents have greater rights and obligations than those in the territory
of a temporary country, such as foreign tourists (Ardhiwisastra, 2003).
State Responsibility against Foreigners
Basically, the rights and obligations of the state towards people, both citizens and foreigners,
are determined by the state and the nationality of the person concerned. Each person is subject
to state power and must obey the laws in force in the territory of the country, except for
foreigners with certain limitations, such as political rights, positions in government. Citizenship
of a person is closely related to his/her country, because it creates mutual rights and obligations.
The state is obliged to protect its citizens wherever they are, and every citizen remains subject
to the power of his/her country and obeys the laws applicable in his/her country. For citizens
who are abroad, the enactment of state power and the rule of law for them is limited by the
power and law of the country where they are located (Istanto, 1998).
The practice of country in treating foreigners residing in the territory of their country is always
accompanied by certain limitation, such as in the areas of taxation, rights to certain jobs,
residence, property ownership, privileges and civil immunity and immigration.
In the doctrine of international law there are several opinions regarding the entry of foreigners
into the territory of a country, which are: A country is obliged to granting permits to all
foreigners; A country is obliged to granting permits to all foreigners, with requirements that
country may refuse certain groups, for example drug addicts, people suffering from dangerous
diseases; A country is bound to allow foreigners to enter but by imposing requirements on entry
permits; A country has the full right to prohibit all foreigners according to its will.
The practice of countries in granting entry permits for foreigners in the territory of their
countries, is always accompanied by certain requirements regulated in the national laws of each
country. This action is in accordance with the reflection of the principle of state sovereignty
adhered by a country, even court practice in America and Britain confirms that the prohibition
of entry to foreigners by a country is an event of territorial sovereignty. Exceptions to the
prohibition of entry of foreigners into the territory of a country, can be determined in binding
international agreements for these countries. In international law itself there is no obligation to
allow the entry of foreigners freely and does not specify a certain period of time for foreigners
who enter the territory of a country (Starke, 2003).
A country is responsible for foreign citizens and their assets in the territory of the country.
Multilateral and regional international agreements or through national law establish the rights
and obligations of country against foreigners who are in the territory of a country, violations
of these obligations cause the country must be responsible for these foreigners. In addition,
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there are reasons for the emergence of state responsibility as a result of actions taken by organs
or their officials in the form of mistreatment of foreigners and actions or negligence that are
economically and physically detrimental to foreigners. (Tontowi & Iskandar, 2006).
There are 2 opinions regarding the treatment of foreigners. The first one is International
Minimum Standard. This view is held by developed countries, according to this opinion,
treating foreigners in the country must meet international minimum standards, namely in
accordance with international law and effective protection according to international law. If
these requirements are not met, then state responsibility will arise. The application of this
principle appears in the case of The Neer Claim in 1926. In this case, the court argued that a
treatment of foreigners was an international crime if the treatment constituted outrage, bad
faith, deliberate negligence or lack of action by the government and the second one is National
Treatment Standard. This view is held by developing countries, according to this principle
foreigners should be treated the same as countries treat their citizens. Application of this
standard can be found in article 9 of the Montevideo Convention in 1933.
With the difference in views of the two different interests, as a middle way, Garcia Amandor
expressed his opinion regarding the responsibility of the state, especially with regard to the
treatment of foreigners, as his report to the International Law Commission in 1957, as follows:
Foreigners enjoy the same rights and guarantees as citizens of the countries where they live,
not less than guarantees enjoy the fundamental human rights that have been established and
recognized by international law; If these rights are violated, it will create responsibility for the
state towards the perpetrators. In this case the country of origin can provide diplomatic
protection. For this reason, the country of origin needs to understand the law principles that
apply in the country where citizens live (Adolf, 2002).
With regard to state responsibility for foreigners, it is also known as Denial of Justice, which
in a broad sense means losses incurred for foreigners abroad due to violations of international
justice that is committed by executive, judicial, legislative officials. In a narrow sense it means
the abuse of the judicial process or the improper administration of justice, for example in the
Chattin Claim case of 1972, the United States-Mexico General Claims Commission argued that
“the irregularity of the court case process is proven by the presence of improper hearings, not
giving the opportunity to the defendant to know all the claims filed against him/her, the undue
delay of the case, the open examination in court is only a formality” (Starke, 2003).
Furthermore, there are also three issues related to state responsibility for the treatment of
foreigners, namely the Nationality of Claims, Exhaustion of Local Remedies and
Expropriation. In the case of the Nationality of Claims, the state provides legal protection to its
citizens abroad in the event of an act that is detrimental to its citizens by another country. In
determining the nationality of its citizens who suffer losses, it is determined by the national
law of the country that file a claim.
Exhaustion of Local Remedies, is intended to ask the state responsibility that have gone through
all the national legal mechanisms of the local state. So foreigners who are involved in a case in
another country, must first use the local national legal mechanism. In the case of the Ambatioles
Arbitration, the British Party rejected the demands of the Turkish citizens, who were
represented by their country, because the Turkish citizens had not used all the legal remedies
in force in the UK (Tontowi & Iskandar, 2009).
The Calvo Doctrine, this clause is often contained in contracts between Central and South
American governments with foreign companies or persons who have concessions or rights
under the contract. The purpose of the submission of this clause is to ensure that legal disputes
arising out of the contract will be transferred to the local courts of the country that granted
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concessions and to remove the jurisdictions of the international arbitral tribunal or prevent
requests for diplomatic action to the country of origin of the company or individuals who enjoy
concessions. (Starke, 2003).
Expropriation is defined as the takeover of private ownership by the country. According to the
United Nations Resolution on Permanent Sovereignty over Natural Resources adopted by the
United Nations General Assembly in 1962 it was stated that; "Expropriation must be carried
out based on broad interests and fair compensation. Expiration should not be discriminatory
and should not be directed at a particular nationality”.
An expropriation is not based on law if it is carried out in a discriminatory manner, only aimed
at certain nationalities, the inability of the country to compensate fairly and not based on
reasons of public policy. If the expropriation is not in accordance with the law, then
compensation is called damage not compensation. This compensation is based on calculation
standard of normal standard, even covering future losses, as in the case of the Amoco Finance
Case in 1985 (Tontowi & Iskandar, 2006).
In the practice of country, there are several legal protection institutions that can be used by
foreigners in solving legal problems: An agreement between the country of origin and the
country where citizen is located to regulate the protection of its respective citizens and their
property; Foreign investment protection agencies, including guarantees from the local
government (host state) if there is nationalization action, such as the Agreement between
Indonesia and Belgium concerning Mutual Encouragement and Protection for Investment on
January 15th, 1972; Insurance Guarantee Agreement, which member consists of the recipient
countries of capital and investors in the Convention Establising the Multilateral Investment
Guarantee Agency under the auspices of the World Bank; Exhaustion of local remedy, in the
form of a legal action by a foreigner who has been harmed by means of a claim before a local
court; Through diplomatic protection. This effort was made because of a violation of
international law through negotiations or prosecutions in court on behalf of its citizens. Thus,
if diplomatic protection actions have been taken, the party in the case is the country, according
to the opinion of the Permanent International Court in the case of Mavrommatis Palestine
Concession in 1924; and Prosecution through a court forum in a third country, if the object in
dispute is in the jurisdiction of the forum country, for example the tobacco case in the Bremen
court between the Indonesian government and the owner of a tobacco company owned by a
Dutch citizen, because the disputed object is located in Germany (Ardhiwisastra, 2003).
Conclusion
In principle, every country will be responsible for providing legal protection to every citizen
of the country wherever he/she is and foreigners will receive legal protection, under certain
limitations, both from the country where he/she is temporarily located and from the country of
origin. Thus, a person's citizenship status is closely related to the protection of international
law that will be given to him/her, against him/her, his/her property and family. The application
of the principle of state responsibility against citizens abroad or foreigners is based more on
the principle of state sovereignty. A sovereign state will apply its national laws to its citizens
within its territorial boundaries. Apart from that what applies is legal provisions of other
countries or provisions of international law.
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