II. | Substantive International Law - Second Part |
8. | LAW OF ALIENS |
8.1. | General Questions |
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Elettronica Sicula S.p.A. (ELSI)
Judgment of 20 July 1989
I.C.J. Reports 1989, p. 15
[p. 65] In any event, considering that it is not established that
any deterioration in the plant and machinery was due to the presence of the
workers, and that the authorities were able not merely to protect the plant but
even in some measure to continue production, the protection provided by the
authorities could not be regarded as falling below "the full protection and
security required by international law"; or indeed as less than the
national or third-State standards. The mere fact that the occupation was
referred to by the Court of Appeal of Palermo as unlawful does not, in the
Chamber's view, necessarily mean that the protection afforded fell short of the
national standard to which the FCN Treaty refers. The essential question is
whether the local law, either in its terms or its application, has treated
United States nationals less well than Italian nationals. This, in the opinion
of the Chamber, has not been shown.
[pp. 66-67] The primary standard laid down by Article V is "the
full protection and security required by international law", in short the "protection
and security" must conform to the minimum international standard. As noted
above, this is supplemented by the criteria of national treatment and
most-favoured-nation treatment. The Chamber is here called upon to apply the
provisions of a treaty which sets standards in addition to the reference to
general international law which may go further in protecting nationals of the
High Contracting Parties than general international law requires; but the United
States has not - save in one respect - suggested that these requirements do in
this respect set higher standards than the international standard. It must be
doubted whether in all the circumstances, the delay in the Prefect's ruling in
this case can be regarded as falling below that standard. Certainly, the
Applicant's use of so serious a charge as to call it a "denial of
procedural justice" might be thought exaggerated.