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The principles of estoppel and good faith may operate to exclude the application of the rule of local remedies. The doctrine of estoppel in broad terms prevents one party from taking advantage of another when the former by his actions has led the latter to act in a certain manner detrimental to the latter's own interests. The principle of good faith is at the root of this doctrine. The exact scope of the (p. 170) doctrine in international law is not fully defined. For the purpose of the application of the rule of local remedies, the statement in the Chorzów Factory Case, which purported to advert to an aspect of this doctrine, may be a good starting point. The PCIJ said:
It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him. 112
The court pointed to an illegal act in particular. However, the principles of good faith and estoppel have a broader coverage than that. In fact, any conduct on the part of one party which is intended to lead and induces the other party to act in a manner which is detrimental to his interests could qualify, there being no special requirement that the conduct be illegal.
While the principles of estoppel and good faith may have a general application to the exclusion of the rule of local remedies in appropriate circumstances, the manner in which they are applicable seems to have a strict definition. There must be cogent evidence that the conduct was not only intended to lead the alien or individual to believe that local remedies need not be further exhausted, for whatever reason, but also that the latter could reasonably be expected to rely on that conduct, did rely on it, and for that reason did not resort to the local remedies which were available. Thus, in the Interhandel Case, the ICJ did not consider that the conduct of the US government was of this nature when it said:
The Court does not consider it necessary to dwell upon the assertion of the Swiss Government that ‘the United States itself has admitted that Interhandel had exhausted the remedies available in the United States courts’. It is true that the representatives of the Government of the United States expressed this opinion on several occasions, in particular in the memorandum annexed to the Note of the Secretary of State of January 11th, 1957. This opinion was based upon a view which has proved unfounded. In fact, the proceedings which Interhandel had instituted before the courts of the United States were then in progress. 113
It would appear that in the circumstances of the case the court considered that it was not reasonable to expect that the alien would rely on the opinion of the US government, which was a party to the dispute and had no control on the US courts, and whose opinion on the existence of remedies was not necessarily an expert one. What is required for the principle of good faith and estoppel to operate is not merely that the host or respondent State express a general view about the existence of remedies, but that it conduct itself in such a way that a (p. 171) reasonable opponent would conclude that he was relieved of the duty to exhaust local remedies or that the rule would not be invoked.
In the ELSI Case, a chamber of the ICJ dealt with the argument that the rule of local remedies had been excluded by estoppel. While not denying that estoppel could have been relevant to the matter in hand, the court held that estoppel did not operate to exclude the rule on the facts of the case. It explained the doctrine of estoppel and its application to the facts as follows:
53. There was a further argument of the Applicant, based on estoppel in relation to the application of the local remedies rule, which should be examined. In the ‘Memorandum of Law’ elaborating the United States claim on the diplomatic plane, transmitted to the Italian Government by Note Verbale of 7 February 1974, one finds that the whole of Part VI (pp. 133 et seq.) deals generally and to some length with the ‘Exhaustion of Local Remedies’. There were also annexed the opinions of the lawyers advising the Applicant, which dealt directly with the position of Raytheon and Machlett in relation to the local remedies rule. The Memorandum concluded that Raytheon and Machlett had indeed exhausted ‘every meaningful legal remedy available to them in Italy’ … In view of this evidence that the United States was very much aware that it must satisfy the local remedies rule, that it evidently believed that the rule had been satisfied, and that it had been advised that the shareholders of ELSI had no direct action against the Italian Government under Italian law, it was argued by the Applicant that Italy, if it was indeed at that time of the opinion that the local remedies had not been exhausted, should have apprised the United States of its opinion. According to the United States, however, at no time until the filing of the Respondent's Counter-Memorial in the present proceedings did Italy suggest that Raytheon and Machlett should sue in the Italian courts on the basis of the Treaty. The written aide-mémoire of 13 June 1978, by which Italy rejected the 1974 Claim, had contained no suggestion that the local remedies had not been exhausted, nor indeed any mention of the matter.
54. It was argued by the Applicant that this absence of riposte from Italy amounts to an estoppel. There are however difficulties about drawing any such conclusion from the exchanges of correspondence when the matter was still being pursued on the diplomatic level. In the Interhandel case, when Switzerland argued that the United States had at one time actually ‘admitted that Interhandel had exhausted the remedies available in the United States courts’, the Court, far from seeing in this admission an estoppel, dismissed the argument by merely observing that ‘this opinion was based upon a view which has proved unfounded’ (Interhandel, Judgment, ICJ Reports 1959, p. 27). Furthermore, although it cannot be excluded that an estoppel could in certain circumstances arise from a silence when something ought to have been said, there are obvious difficulties in constructing an estoppel from a mere failure to mention a matter at a particular point in somewhat desultory diplomatic exchanges. 114
(p. 172) Inapplicability of the Rule
Questions relating to the incidence of the rule of local remedies in connection with the category of claims have been raised mainly out of concern that the rule may be applied to situations for which it was not in principle intended. There is considerable diplomatic practice in this area while there is also judicial precedent on the subject. What has been in issue in the situations which have arisen is whether, in cases where an alien is involved in asserting his rights or having some protection exercised by a protecting State, there are circumstances in which the rule will not be applicable, or whether the rule is applicable in all situations where an alien is involved. The history of the rule in international law has shown that major concerns have in practice been articulated about the over-extension of the rule, rather than about the possibility that it may not be implemented when it should. Although the discussion reflects the clash of interests involved, it has taken the form of invoking such considerations as the intrinsic nature of the rule as an instrument in the settling of disputes essentially concerned with the protection of rights belonging to aliens, rather than of emphasizing the prerogatives of State sovereignty, which could have the effect of highlighting exclusively the interests of respondent States. As a result, the views expressed on these questions have taken into account the historical antecedents and development of the rule and its relevance in inter-State relationships, while there has been some expression of the need to see that the rule does not necessarily obstruct the protection of what are essentially rights or interests of aliens. The tendency has certainly not been to conclude that the rule is automatically applicable to any context in which an alien's rights or interests are involved or affected by the acts or omissions of a sovereign State.
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