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E) Circumstances Rendering the Requirement of Exhaustion of Remedies Unreasonable

The exception to or limitation on the rule of local remedies based on a broad test of ‘unreasonableness’ was introduced in the 2004 Draft Articles of the ILC. In Article 16(c) was found the statement that local remedies need not be exhausted where ‘the circumstances of the case otherwise make the exhaustion of local remedies unreasonable’. Thus, where local remedies cannot be described as ineffective or offer a reasonable possibility of effective redress, it may, nevertheless, be unreasonable or cause unjustifiable hardship to the injured alien to require him to exhaust local remedies. In these circumstances an exception would be recognized exempting the alien from exhausting local remedies. The ILC has elaborated on this exception in the commentary to its 2004 Draft Articles as follows: (p. 161)

The second part of paragraph (c) is designed to give a tribunal the power to dispense with the need for the exhaustion of local remedies where, in all the circumstances of the case, it would be unreasonable to expect compliance with this rule. Each case will obviously have to be considered on its own merits in making such a determination and it would be unwise to attempt to provide a comprehensive list of factors that might qualify for this exception. It is, however, suggested that the exception might be exercised where a State prevents an injured alien from gaining factual access to its tribunals by, for instance, denying him entry to its territory or by exposing him to dangers that make it unsafe for him to seek entry to its territory; or where criminal conspiracies in the host State obstruct the bringing of proceedings before local courts; or where the cost of exhausting local remedies is prohibitive. ⁷⁰

The test of unreasonableness, covering as it does undue hardship to the alien, is very broad and to some extent it may be considered vacuous. There is a danger that it might be misapplied. However, it is a useful safety valve, provided its applicability is not abused. In addition to applying the exception to the situations envisaged by the ILC, an opportunity may be provided, for example, for reconsidering the relevance of indigence of the alien in certain circumstances (not caused by his own unreasonable actions) to determining whether the rule of local remedies is applicable in a given situation. ⁷¹ The test clearly, of course, will need to be applied judiciously by decision-makers and judges to avoid undue extension of the exceptions to the rule and depriving the host State of a genuine opportunity of settling a dispute through means of local redress.

In the 2006 Draft Articles of the ILC this exception has been omitted. There is only a reference in Article 15(d) to an exception on the ground that the alien has been manifestly precluded from pursuing local remedies. The formulation of the exception in the 2004 Draft Articles is to be preferred.

Waiver of Rule

The principles of consent and good faith are relevant to the law relating to the rule of local remedies in so far as the rule may be excluded by the operation of either of them. The application of the principle of consent results in the exclusion of the rule on the basis that it has been waived, either expressly or impliedly, by the host or respondent State ⁷² while the principle of good faith has the effect of excluding (p. 162) the application of the rule in circumstances such as where the doctrine of estoppel or its equivalent would operate.