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An issue which is crucial to the operation of the rule in practice concerns the extent to which local remedies must be exhausted. As already pointed out, the interplay between the two principal sets of conflicting interests, those of the host (p. 144) or respondent State arising from its sovereignty and those of the alien in securing a fair and equitable solution to his complaint without being put to undue expense or hardship, is significant here, although there tends to be a greater emphasis on those of the host or respondent State in having an opportunity to settle the dispute by its own means. The question is how extensive must be the resort to local remedies in order to enable the host or respondent State to have a proper opportunity of settling the dispute. 5 The development of the rule, particularly through judicial decisions, demonstrates that, while great respect is shown for the sovereignty of the host or respondent State, there has been some concern for the interests of the alien, so as not to make the extent of resort required unreasonable.
There has in the past been some discussion of the question of what remedies must be exhausted in order that the requirements of the rule be satisfied, particularly with respect to extraordinary remedies. The theory of the matter has not been paid much attention in discussions in the past. However, it is reasonably clear that in the past practice relating to diplomatic protection the rule has been applied generally to remedies of a judicial nature. 6 Indeed, in 1864 Phillimore, in an opinion to the British Crown, specifically defined the term local redress which he used as being redress ‘through courts of law’. 7
It was usual to include remedies available through special courts, provided they were legally constituted, in the concept of ‘judicial remedies’. 8 Remedies which could lead to reparation according to rules of law are included among those to be exhausted. 9 In principle courts have certainly been included in the concept of local remedies, even in the decisions of international tribunals. Thus, in the Croft Case, 10 a special court which had jurisdiction over the cancellation of patent rights was held to be a local remedy to which the aggrieved alien should have had resort. Remedies available through a special system of administrative courts are also to be characterized as exhaustible remedies. 11 The fact that resort (p. 145) has already been had to the same courts before would not seem to matter, even if the legal means available are in reality extraordinary ones, provided a legal remedy may be available. 12 In the Ambatielos Claim, the tribunal put the matter succinctly by characterizing the remedies to be exhausted as ‘legal’ when it said: ‘It is the whole system of legal protection, as provided by municipal law, which must have been put to the test.’ 13
Legal commentators generally discuss the rule on the assumption that it is limited to remedies of a judicial or legal nature. 14 Codification drafts of an official nature clearly make the same assumption in general. 15 García Amador's draft is an exception in that it refers to ‘all the remedies and proceedings established by municipal law’. 16
Private bodies have not been so specific or limited in their formulations. 17 Some support is given for these formulations by a statement made by the PCIJ in the Phosphates in Morocco Case to the effect that a failure of local remedies might result ‘either from a lacuna in the judicial organization or from the refusal of administrative or extraordinary methods of redress designed to supplement its deficiencies’.18 Nowhere, in that case, however, did the parties refer to any remedies except judicial remedies, which were available through administrative courts. Hence, the statement could consistently be interpreted to cover only (p. 146) ‘administrative or extraordinary methods of redress’ of an essentially judicial nature. 19 That an act of grace does not come under the concept of remedies to be exhausted seems to have been accepted later. Thus, remedies which would result in a non-binding recommendation given by the deciding body to an executive organ of the host or respondent State seem to be excluded from those which must be exhausted. 20
Later in the arguments in the Barcelona Traction Co Case some views on either side were expressed by the contending States on the issue of ordinary and extraordinary remedies. The Spanish government in its preliminary objections stressed that it was the whole system of legal protection afforded by the respondent State that had to be tested. 21 In the case there were certain remedies arguably involved which may be described as extraordinary. One was the action which could be brought against a corrupt judge in the event that he was fraudulent in giving a decision. The second was contentious administrative proceedings in respect of administrative decisions taken by an executive organ, beginning with a hierarchical appeal to the Minister and followed by recourse to the administrative courts. The Spanish argument was emphatic that the first remedy should have been exhausted because it fell within the category of exhaustible remedies. 22 As regards the contentious administrative proceedings, the Spanish government was of the view that these were certainly included as the kind of remedies to be exhausted, although they were extraordinary. 23
The Belgian government did not dispute the principle enunciated in the Spanish government's argument relating to contentious administrative proceedings. 24 Thus, there seems to have been agreement on the principle that the extraordinary remedy of contentious administrative proceedings including a hierarchical appeal was not excluded per se from those remedies that had to be exhausted by virtue of its character. With regard to the extraordinary remedy by way of action against a corrupt judge, on the other hand, the Belgian government objected that this was not a normal case of remedies, although it could have resulted in the overturning of the decision of the judge in question. 25
The Belgian argument concerning the action against a corrupt judge seems to be based on the idea that exceptional recourse is not as such included in the (p. 147) concept of the remedies to be exhausted, rather than that it was not to be expected that the remedy would be invoked because it was not reasonable to demand this of the aggrieved aliens. There was an element of disagreement on the character of the remedy that must be exhausted.
Generally, except for a few broad statements, particularly in some codification drafts, the tendency has been to accept some limitations on the nature of the remedy to which resort must be had. The question then relates to the extent of the limitations. There are references to, for example, ‘normal usage’ and the exclusion of exceptional recourse. But in fact most descriptions refer to the exhaustion of legal or judicial remedies as being required. The better view is that only those remedies which are of a judicial or quasi-judicial character must be exhausted, although they may not be confined to those provided by the regular courts of law. The 2006 ILC Draft Article 14(2) is not sufficiently specific. It refers merely to ordinary or special remedies, whether provided by judicial or administrative courts or bodies. 26
(p. 148) In principle the policies behind the rule of local remedies would not warrant an unlimited extension of the concept of remedies to all types of remedies. Although the respondent State is given an opportunity of redressing a wrong, it is also relevant that for social ends the alien is being prevented from obtaining what may be less expensive justice by a direct recourse to an international tribunal. It would be proper, then, that he should be compelled to use only those means by which he has an opportunity to obtain justice according to law. What international law is interested in is the determination according to law, in an impartial manner, of the alien's rights. Hence, the emphasis on the judicial or quasi-judicial nature of remedies cannot be out of place. It would be improper to insist on his seeking remedies from sources which do not operate impartially and have no obligation to decide according to legal principles. Thus, to expect him to approach the administration or the legislature in the hope of having his problem solved as a result of the beneficence of either would be unreasonable. It would seem, therefore, that it is only where remedies enjoy a character which ensures impartial determination of disputes, according to law and not purely by uncontrolled discretion, that the alien must resort to them. This is the test that must be applied to determine the exhaustibility of remedies outside the normal judicial sphere. Hence, administrative tribunals and the like may fall within the category of exhaustible remedies, if they share the required character.
A distinction must, of course, be made between the method of deciding the dispute and the procedure for implementing the decision. It is only the former that is of relevance here. The fact that the implementation of a decision is at the discretion of the respondent State would not affect the position, since this lies within the sovereign powers of the State and a truly judicial determination may in any case be disregarded. The respondent State has a right to determine the alien's right in the proper way, and whatever the subsequent attitude it may adopt towards fulfilling its secondary obligation of reparation, this fact should not affect the classification of a remedy in such a way that it is incumbent upon the alien to resort to it. The distinction which is viable is between those remedies which are legal or judicial and quasi-judicial and those that are not.
(p. 149) Both natural and juridical persons must exhaust local remedies, while a foreign company financed partly or mainly by public capital is also required to exhaust local remedies when it engages in acta jure gestionis, and aliens who are non-nationals of a State which may exercise protection in exceptional circumstances must exhaust remedies. 27
As was stated in the ELSI Case, the essence of the claim should be brought before the local judicial bodies and all available and accessible remedies must be ‘exhausted’ in that they have been pursued as far as is permitted or required by local law so that a final decision is given. 28 This also means that the alien must use the procedures, evidentiary ones especially, which are available to him to support his claim in the process of exhausting remedies and that he fails to exhaust remedies, if the preparation or presentation of his claim at the local level is faulty and results in a wholly or partially unsuccessful resort to remedies. 29
It is to be noted that the ILC's 2006 Draft Articles, also in Article 15(a), in addition make it clear that only reasonably available local remedies which provide effective redress need be exhausted.
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