Главная страница | Контакты | Случайная страница Автомобили Астрономия Биология География Дом и сад Другие языки Другое Информатика История Культура Литература Логика Математика Медицина Металлургия Механика Образование Охрана труда Педагогика Политика Право Психология Религия Риторика Социология Спорт Строительство Технология Туризм Физика Философия Финансы Химия Черчение Экология Экономика Электроника

D) Circumstances Not Limiting the Operation of the Rule

In the development of the rule of local remedies, in practice and through judicial decision, certain circumstances have been identified as not giving rise to limitations on or exceptions to the rule. In a negative sense, therefore, these circumstances cannot have an effect on the operation of the rule. Such circumstances have been adverted to in the law of diplomatic protection and in the area of human rights protection, but particularly in the latter. While it has sometimes been said both by judicial and arbitral authorities ⁶⁴ and by legal commentators ⁶⁵ that the rule is flexible and is to be applied in accordance with the circumstances, it cannot be said that there is scope for broad equitable considerations in the formulation of exceptions. The strength of the value attached to the sovereign rights of the respondent State in doing justice in its own way is so pervasive that, as has been seen, it is only when the interests of the alien claimant or individual clearly outweigh those of the respondent State that an exception may be allowed. Consequently, there are many situations in which the argument that the local remedies rule was not applicable has been raised but rejected.

(p. 160) It has been confirmed on more than one occasion that lack of pecuniary means on the part of the alien claimant or individual does not constitute a valid reason for not pursuing local remedies. In the David Adams Case, ⁶⁶ the arbitral tribunal was faced with the argument that the owner of a ship confiscated in Canada did not pursue a right of appeal partly because of the absence of pecuniary means. The excuse was not recognized in law as being a reason for not exhausting local remedies. ⁶⁷

The better view seems to be that statements by government officials or even in a judgment that in effect there were no further effective remedies available do not of themselves excuse the alien claimant from exhausting remedies. ⁶⁸ However, as will be seen later, there may be considerations of estoppel or waiver that may operate in some situations, but then the release from the requirement that local remedies must be exhausted is not to be treated as an exception but as being based on good faith or consent.

Particularly in the area of human rights protection, many invalid excuses have been considered. ⁶⁹There is no good reason why these circumstances, which have been found inadequate to provide an excuse for not exhausting local remedies in the area of human rights protection, should not have the same effect in the law of diplomatic protection. In general, the definition of their inadequacy seems reasonably conceived and appropriate, particularly because as such they bear no relationship to the effectiveness, adequacy or availability of local remedies.