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Exceptions to or Limitations on the Rule

Respect for the sovereignty of the respondent or host State constitutes the foundation of the rule that local remedies must be exhausted. Recognition of other interests, such as those of the alien claimant in avoiding undue hardship and excessive expense in pursuing local remedies, has resulted in limitations being placed on or exceptions being made to the operation of the rule. In its positive form, the rule was not absolute and had certain parameters in so far as exhaustion was initially limited to remedies which were, for example, of a legal nature, available, and effective. In a sense, the negative requirements are the other side of the coin. The limitations, thus directly resulting, and such others as may have been placed on the rule flow primarily out of consideration for the interests of the alien claimant, but also because of the need to have justice dispensed efficiently and economically, which is an interest of the international community. The limitation that those remedies which are ineffective or inadequate need not be exhausted, raises some issues of definition which have been addressed in the various sources of the law.

(p. 150) The interests of the alien claimant are an important consideration in deciding how the rule of local remedies is to be applied. These interests were noted in the Finnish Ships Arbitration, ³⁰particularly in regard to the setting of limits upon the rule. It was also pointed out by the arbitral commission in the Ambatielos Claim that the rule could not be strained too far, even though respect for the sovereignty of the respondent or host State required that the whole system of legal protection be tested and exhausted, ³¹ thus implicitly giving particular value to the interests of the alien claimant. However, identifying the limitations on the rule requires more than mere regard for such interests. The process demands reconciliation of the conflict between the interests of the respondent or host State in having an opportunity of doing justice, and other interests, including those of the alien as claimant in avoiding undue hardship and in a quick and efficient dispute the settlement procedure. In jurisprudence and practice some categories of limitation have been clearly established. Theoretically, however, there is room for expansion of these categories when new situations arise which may be eligible for consideration. While the outcome of such consideration may not always be foreseeable, it is clear that in each case a careful weighing of the conflicting interests must take place. In this exercise, because of the history of the rule and of the manner in which it has evolved, the important place held by respect for the sovereignty of the host or respondent State, which requires that it be given a fair opportunity of doing the justice through its own system, cannot be ignored. Consequently, it is only where the interests of the alien claimant or other interests clearly dominate and require recognition that a limitation is to be accepted. Where limitations have been imposed it is because a reasonable case has been made for such limitations. Similarly, where future limitations are canvassed the same principle would apply.

The first systematic attempt to deal with the problem of exceptions to or limitations on the application of the rule of local remedies was, perhaps, in the Finnish Ships Arbitration.

The limitations on the rule of local remedies seem to have been described in its early history as being based on the absence of exhaustible justice but this may not be the sole raison d'être of all the limitations. In a broad sense, the absence of exhaustible justice may be a highly important consideration, particularly as the inapplicability of the rule is viewed from the point of view primarily of the host or respondent State in so far as the limitations on the rule are related to the inability of that State to do justice. But, as was implied in the Finnish Ships Arbitration, it was really consideration also of the alien's interest in not being put to undue hardship that gave rise to the limitation which was found to exist in that case. The tribunal concluded that it was ‘hard’ (or unjust or unfair) to expect the alien (p. 151) to pursue remedies any further in the circumstances which prevailed in the case. Thus, at the heart of the problem of limitations is the question of justice or fairness, which in turn is inextricably involved with a balancing of the conflicting interests in reality associated with the rule.

There may be remedies which, although available, are not in the circumstances applicable to the particular injury of which the alien complains. International courts or organs have then tended to regard the remedy as not available. Apart from the cases discussed earlier in which the remedy was held not to be available in this sense, there have been cases which came before the UN Human Rights Committee in which the remedy was held not to be exhaustible because it was not available according to law. ³² Thus, it is not the theoretical existence of a remedy under the law of the host or respondent State which makes it exhaustible, but rather whether according to that law it is applicable to the claimant's case. By the same token it would follow that it must be quite clear according to the law of the host or respondent State that the remedy in question is inapplicable to the claimant's case.