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The limitation arising from the positive requirement that the remedy be effective or adequate for the object of the claim implies that ineffective remedies need not be exhausted. In the application of the rule to the problem of appeals from one court to another within the same national system in the Finnish Ships Arbitration it was held that a claimant was not under an obligation to resort to an appeal which was obviously futile. It was insufficient that the remedy merely appeared to be futile for the alien to be exempt from making the appeal. On the other hand, the alien was not absolutely compelled to take his case through to the highest court, whatever the circumstances might be:
As regards finally the third question, whether the local remedy shall be considered as not effective only where it is obviously futile on the merits of the case which are to be taken into account, to have recourse to the municipal remedy, or whether, as the Finnish Government suggests, it is sufficient that such a step only appears to be futile, a certain strictness in construing this rule appears justified by the opinion expressed by Borchard when mentioning the rule applied in the prize cases. Borchard says (a.a. § 383): ‘In a few prize cases it has been held that in the face of a uniform course of decisions in the highest court a reversal of the condemnation being hopeless, an appeal was excused; but this rule was most strictly construed, and if substantial right of appeal existed, failure to prosecute an appeal operated as a bar to relief.’ 33
(p. 152) Accordingly, it was held that, where the finding of fact by a board under an Indemnity Act was final and the success of the claimant's case depended on a different finding of fact, an appeal to a higher court 34 or a reference to a different court or body 35 was ‘obviously futile’. Furthermore, it was held that in any case there was no effective remedy by way of petition of right to the king of the respondent State, the UK, since such a remedy lay only in contract cases and there was no contract in that case. 36
The resulting principle excused the alien from exhausting remedies in certain circumstances as opposed, on the one hand, to laying upon him the absolute obligation to appeal to all available sources of justice, and, on the other, to excusing him from such appeal in any circumstances in which he chose, whether on a bona fide estimate of the effectiveness of the remedies available or not. 37 Where it is clear that the resort to an appeal or reference to another court or tribunal would not be a source of adequate redress, the alien is excused from spending his money and time. Also, in this situation nothing has been lost by the respondent State, as far as its interest in doing justice by its own means is concerned.
This rule which evolved in the Finnish Ships Arbitration was applied more recently by Judge Lauterpacht in the Norwegian Loans Case, where the issue of non-exhaustion of local remedies was raised but not decided by the court. The plaintiff State, France, argued that there were no remedies to exhaust, but Judge Lauterpacht in a separate opinion held that the Norwegian objection was good because it was not clear that resort to the Norwegian courts would have been absolutely futile. 38 In the Interhandel Case, the Court similarly held that there was still a possibility of success in the US courts for the Swiss Interhandel Company so that it could not be said that there were no remedies available, and therefore the Swiss aliens should have exhausted local remedies before having their case taken up before an international tribunal. 39
In the law of diplomatic protection the principle that local remedies need not be exhausted where they are ‘obviously futile’ seems to be established. The Finnish Ships Arbitration made it clear that the test is obvious futility or manifest ineffectiveness, not the absence of a mere reasonable prospect of success or the improbability of success, which are less strict tests. The absence of a reasonable prospect of success as a test seems to have found its way into the law relating to the protection of human rights. The test of obvious futility clearly requires more than the probability of failure or the improbability of success, but perhaps less than the absolute certainty of failure. The test may be said to require (p. 153) evidence from which it could reasonably be concluded that the remedy would be ineffective. 40
The application of the test of obvious futility has resulted in the dismissal of the objection that local remedies had not been exhausted in several kinds of cases. First, it has been held that, where resort to the courts will result in the repetition of a uniform line of decisions adverse to the alien, the remedy is obviously futile. 41 What this means is that the mere likelihood of an adverse decision is insufficient, something more than probability of defeat but less than certainty being required. It seems readily to be accepted that a jurisprudence constante or bien établie, or the existence of a series of decisions which shows that resort to remedies will not end in success, exempts the alien or claimant from exhausting local or internal remedies. This point was either explicitly or implicitly conceded in the written pleadings and oral arguments in the Barcelona Traction Co Case. 42
Second, as in the Finnish Ships Arbitration, there is no need to resort to a court or body which has no jurisdiction over the issue raised by the alien. This is so whether it is a case of resort to a court of first instance or a court of appeal. However, in such a case this point must be strictly proved, as it was in the Finnish Ships Arbitration. In the Panavezys-Saldutiskis Railway Case, the argument was raised that it would have been useless to take the matter to the Lithuanian courts because they would not take jurisdiction over an ‘act of state’, an act jure imperii, since this was an act in performance of the government's public function and not a matter ‘concerning a civil right’ within the meaning of the Lithuanian Code of Civil Procedure. The PCIJ held that it was not satisfied that this was the (p. 154) case in the absence of a Lithuanian court decision on the point. 43 The difference between the two cases is that in the Finnish Ships Arbitration the law consisting of statute and common law was clear, while in the Panavezys-Saldutiskis Railway Case the law, as it stood, was not so clear and therefore the court refused even to examine it. In the Norwegian Loans Case, Judge Lauterpacht's view was similar, namely that the position was not clearly what the French government made it out to be. 44 In the Interhandel Case, the ICJ took basically the same stand. 45 The fact that in the Panavezys-Saldutiskis Railway Case the court refused to examine the issue must be explained by the fact that it was not clear on the face of it that the Estonian argument was a good one. In the Finnish Ships Arbitration the converse was the case and, therefore, the tribunal examined the law to find that the Finnish argument was a good one. Thus, it may further be asserted that unless it appears that there is a clear case that no tribunal has jurisdiction in the case in hand, an international tribunal will not even examine the national law.
Third, where it is clear that a national law justifying the acts of which the alien complains would have to be applied by the local organs or courts, thus rendering recourse to them obviously futile, local remedies need not be exhausted. In the Forests of Central Rhodope Case, 46 the international wrong was the confiscation of certain forests under a national law permitting such confiscation. Since all State organs would have had to apply that law, it was obvious that recourse to local remedies would have been futile. Hence, the arbitral tribunal held that they did not have to be exhausted.
Fourth, absence of independence of the courts has been held to exempt the alien or claimant from resorting to the courts. In the Robert E Brown Case, 47 an alien was excused from exhausting local remedies because the courts were at the time completely under the control of the executive. The obvious futility of recourse to the State judicial organs in these circumstances is based on the absence of justice in the true sense.
Fifth, where the remedies available clearly will not satisfy the object sought by the claimant, they need not be resorted to because they are ineffective or obviously futile. There are several decided cases on this point concerning (p. 155) the protection of human rights under the European Convention on Human Rights. 48 For this same reason, where it is obvious that the reparation available under the national remedy would not be adequate in terms of what the alien is entitled to in international law, the remedy would be ‘obviously futile’ and resort need not be had to it. In the Finnish Ships Arbitration, Finland argued that the remedy of the shipowners with the Admiralty Board was ineffective because the rates by which the Board was bound in assessing compensation did not represent fair market rates. The arbitrator rejected the argument because he found that the redress which would be given under the Indemnity Act was adequate redress. 49 It is evident that for the exception to operate on the ground that reparation is not adequate for the purpose of satisfying the international claim, the inadequacy of the remedy for the specific object must be proven beyond reasonable doubt.
Sixth, apart from the inaccessibility of remedies, which is a reason for not exhausting them, the absence of due process of law in the legal system of the host or respondent State is clearly a good excuse for not exhausting remedies. 50
In the Ambatielos Claim, it was stated that, where the futility of a remedy otherwise available is the result of the alien's fault, there is no exemption from the application of the rule. 51
The ILC has taken a strange course. While examples which in any case satisfy the test of ‘obvious futility’ (many of which have been referred to above and which have been interpreted to do so) and Judge Lauterpacht's separate opinion in the Norwegian Loans Case were cited, the ILC opted for the test of absence of a (p. 156) ‘reasonable possibility’ of effective redress, 52 rejecting the ‘obvious futility’ test as being different and not generous enough to injured aliens. It referred to three tests for determining whether remedies were ineffective and need not be exhausted: (i) obvious futility, (ii) absence of a reasonable prospect of success, and (iii) absence of a reasonable possibility of effective redress. While a difference between (i) and (ii) is apparent in that under (ii) it is easier than under (i) to establish whether remedies need not be exhausted, it is difficult to see a material difference between (i) and (iii). If there is no reasonable possibility of redress, exhausting remedies would be obviously futile. The intention of the ILC was, however, to interpret the current law as requiring a lower threshold for the absence of a need to exhaust remedies. That a lower threshold reflects the law is questionable. The ILC's formulation, if it does lower the threshold, can only be accepted as an attempt at development of the law. The ILC's test is based on a statement by Judge Lauterpacht in his separate opinion in the Norwegian Loans Case. What he did say in reference to the situation prevailing in the case was that:
The legal position on the subject cannot be regarded as so abundantly clear as to rule out as a matter of reasonable possibility an effective remedy before Norwegian courts. 53
A close reading of this statement, particularly taking into account the requirement of abundant clarity of the legal position, the reference to possibility rather than certainty, and the absence of an explicit rejection of, or even reference to, the prevailing ‘ obvious futility’ test of which the judge must be deemed to have been aware, leads to the conclusion that Judge Lauterpacht was merely redefining the ‘obvious futility’ test. It is too much to assume that he was replacing the accepted test with another test without even a reference to or dismissal of the former. Moreover, the formulation he put forward is clearly no more than a definition of the ‘obvious futility’ test, because that test does not require certainty of failure which means that it is based on absence of even a possibility of success. The addition of the epithet ‘reasonable’ to describe the possibility does not do much to dilute the meaning given to obvious futility.
On the other hand, a requirement that there must be no ‘reasonable prospect of success’ which is the test used in most human rights cases, particularly under the European Convention of Human Rights, 54may be more generous to the claimant in that what is meant is that only an absence of probability of success results in the remedies being ineffective. The commentary to the ILC Draft Articles excludes this test as applicable in cases of diplomatic protection, clearly on this assumption.
(p. 157) Whatever the test, the question whether remedies are effective or ineffective must be determined with regard to the local law and circumstances at the time at which they are to be used and the decision on this matter must be made on the assumption that the claim is meritorious. 55
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