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Abstract and Keywords

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This chapter focuses on the rule of exhaustion of local remedies. The rule states that where there has been a violation of international law in the treatment of an alien by a State, local remedies must be exhausted by the alien before his claim may be espoused by his national State. In the modern law of diplomatic protection, the raison d'être of the rule is the recognition given by members of the international community to the interest of the host State, flowing from its sovereignty, in settling international disputes of a certain kind by its own means before international mechanisms are invoked. The scope of the rule, exceptions and limitations, waiver of the rule, and inapplicability of the rule are discussed.

Keywords: exhaustion of local remedies, international law, alien, diplomatic protection

 

The rule that, where there has been a violation of international law in the treatment of an alien by a State, local remedies must be exhausted by the alien before his claim may be espoused by his national State has in some respects had a distinguished history. 1 It can hardly be said that in the context of modern international law it is defunct or has ceased to be relevant, although a tendency may have arisen to try sometimes to circumvent it by various techniques. 2 As had been pointed out by the ILC in its draft articles on State responsibility, the non-observance of the rule is an objection to admissibility of an international claim. 3 The rule is firmly established. Moreover, its raison d'être is still to be deemed unchanged and viable.

The rule sprang up primarily as an instrument designed to ensure respect for the sovereignty of host States in this particular area of international dispute settlement. Basically, this is the principal reason for its survival today. In the modern law of diplomatic protection the raison d'être of the rule is the recognition given by members of the international community to the interest of the host State, flowing from its sovereignty, in settling international disputes of a certain kind by its own means before international mechanisms are invoked. The utility of this policy value underlying the rule cannot be denied. Even though the disputes concerned, involving individuals as they do, are international disputes, the same reasons that led to the formation of the rule through the years have really survived the development of more sophisticated systems of international dispute settlement. Functionally, to date, the accelerated interaction between aliens and foreign States because of the ease of international travel, the growing sense of community in the world, and the demands of economic development, in both developed and developing nations, means that the rule could be important in (p. 143) the settlement of international disputes that may arise from the exercise of, or in the context of situations which may lead to, diplomatic protection. The respect, shown by reference to the rule, for the sovereignty of the respondent State in conflict situations involving diplomatic protection in general international law has not waned. The ICJ has recognized the viability of the rule in several cases. 4

Although the value attached to respect for the sovereignty of the host or respondent State is at the heart of the implementation of the rule, there is evidence in the evolution of the rule that international law attaches importance, in the rule's application, to values other than the interests of the host or respondent State. Such interests as those of the alien or individual, of the national State of the alien, and of the international community have been taken into consideration. In different situations, the conflict between or among the various interests has been resolved in favour of one or other of the interests besides those of the host or respondent State, while sometimes the roll of the dice has favoured the latter. Generally, it may be concluded that there has been a judicious weighing of conflicting interests, particularly by judicial or quasi-judicial organs of the international community, before a solution has been reached.

It is apparent that local remedies operate as a step or steps in the orderly procedure of settling international disputes. The rule is no more and no less than a method of ascribing to sovereign States a dispute settlement function in international disputes to which they are parties. While States are surely capable of responsibly and constructively discharging the trust placed in them by the international community in conferring on them a role which flows from respect for their sovereignty, it is reasonable to expect that the rule should operate essentially as a means of securing economically and efficiently the settlement of international disputes in the areas relating to the protection of aliens. Thus, while on the one hand a sovereign State is given every opportunity of settling such disputes equitably through its own organs, and it is in the interest of all concerned that such disputes should be settled at the earliest possible opportunity at a local level, on the other hand it is logical that some recognition should also be given to the countervailing interests of all parties concerned in efficient justice without, inter alia, financial waste.




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The Injured Alien | Choices Among Competing Interests | Abstract and Keywords | Abstract and Keywords | Abstract and Keywords 1 страница | Abstract and Keywords 2 страница | Abstract and Keywords 3 страница | Abstract and Keywords 4 страница | I) Article 9 | Ii) Article 10 |


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