Another question that has been raised is whether, in cases where a State is obviously protecting its national, ie genuine cases of diplomatic protection, there could arise situations in which the application of the rule of local remedies is excluded. Clearly, there can be little doubt that, where, for instance, State A improperly (p. 182) imprisons a national of State B who is resident in State A, the rule applies, but there may be situations where the applicability of the rule may be questioned where there is doubt as to whether there is an adequate ‘jurisdictional connection’. Examples that may be given are (i) where naval officers of State A improperly treat nationals of State B on a ship belonging to State C on the high seas, or (ii) where diplomatic officers of State A in State B treat a national of State C in a manner which violates a treaty between State A and State B. In all cases, especially of this kind, the issue raised is one concerned with jurisdictional connection which would require, in the above examples, the nationals of State B to exhaust local remedies in State A before State B may exercise diplomatic protection over its nationals. On the other hand, the commoner examples of cases where the jurisdictional connection may be assumed to have been established, apart from the case where the alien takes up residence either temporarily or permanently in the territory of the host or respondent State, are those where an alien engages in business in, owns property in, 143 or enters into contractual relations with 144 the government of the host or respondent State.
It would appear that in almost all decided cases that have been reported where the rule has been applied the question never arose as to whether there was an adequate jurisdictional connection, because apparently one did exist. In general, most of these cases concerned situations in which the alien was temporarily or permanently resident in, or was physically present in, or had some kind of contractual connection with the host State. The history of the diplomatic practice related to the rule also shows that the circumstances in which the rule was invoked were those in which the alien had some physical connection with the host State. Hence, it is not surprising that a legal commentator in 1915 expressed the idea that the rule was applicable because the ‘alien is deemed to tacitly submit and to be subject to the local law of the state of residence’ 145 thus consecrating the requirement of residence. But, as cases like the Ambatielos Claim show, 146 the rule has been regarded as being applicable in cases where the alien is not resident or even physically present in the host State but where he has some connection, such as a contractual one, with the host State.
The authorities, whether judicial or other, have not generally faced the problem of the jurisdictional connection in any systematic way, although there has been some discussion of the problem. In the cases and arguments before the ICJ there have been a few broad statements of the circumstances in which the rule that local remedies must be exhausted is applicable, without any apparent qualification.147
(p. 183) On the other hand, there have been more limited statements in the cases and argument before the ICJ such as the one made in the Interhandel Case:
the rule has been generally observed in cases in which a State has adopted the cause of its national where rights are claimed to have been disregarded in another State in violation of international law. Before resort may be had to an international court in such a situation, it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its own means. 148
This explanation attaches importance to the place where the violation of international law took place. France in the Norwegian Loans Case emphasized residence in the delinquent State as a criterion of limitation. 149 Judge Read in a dissenting opinion in the same case said that the rule was not limited to circumstances in which the injured alien was resident in the delinquent State, but did not refer to the limitations on the incidence of the rule. 150 In the Salem Case, an arbitral tribunal stated, in terms similar to the French argument, that:
as a rule, a foreigner must acknowledge as applicable to himself the kind of justice instituted in the country in which he did choose his residence. 151
In the Aerial Incident Case, Israel argued for a limitation based on some notion of a voluntary link. 152Bulgaria opposed Israel's argument on the ground that the voluntary link was not part of international law, although it did not indicate, in turn, whether there were any limitations on the incidence of the rule of local remedies. 153 It may also be mentioned that in early British practice it was asserted that, where an alien suffered injury on the high seas, by seizure or capture of a vessel, local remedies had to be exhausted in the seizing or capturing State with no reference to a voluntary link or other connection. 154 It is doubtful, one may comment, whether the practice would be recognized today.
(p. 184) Legal commentators who have remarked on the problem also assert in one way or another that there are some limitations on the incidence of the rule. 155 Largely on the basis of the Israeli argument in the Aerial Incident Case, the view has been expressed that there must be a genuine link between the alien and the respondent State in order that the rule of local remedies be applicable. This view ultimately relied on a voluntary link. 156
While no international court or tribunal has up to now had to decide the specific issue raised here, it appears that the rule has actually been applied in a strictly circumscribed sphere. Simply because no case has decided that the rule does not apply in every situation in which an alien is injured by a foreign State, it would not be in keeping with the policies behind the rule that it should apply in every such circumstance. Hence, the broad unqualified statements referred to above cannot be regarded as properly reflecting the law.
At the other extreme, to insist on the residence or presence of the alien in the delinquent State at the time of the injury would not be compatible with the application of the rule in some of the decided cases. Judge Read was, therefore, correct in rejecting this formulation of the rule by France in the Norwegian Loans Case.
It would seem, then, that the solution lies somewhere in between these two extremes. In terms of the policies behind the rule of local remedies, it is apparent that it is only where the delinquent State can be said to be entitled to jurisdiction over the issue that the rule may be applied. As is generally known, international law does not for a general purpose define the circumstances in which a State will be entitled to jurisdiction over any particular issue, so that resort to other fields of international law may not be very helpful. In this sense the analogy of the ‘voluntary or genuine link’ which may have some relationship to the rules of the nationality of claims may not be so apt, since policy may demand a different approach. On the other hand, such concepts mentioned as ‘location of the wrong’, ‘voluntary subjection to jurisdiction by entering into the sphere of operation’ (understood in a general sense), ‘tacit subjection to jurisdiction’ and ‘free and voluntary submission to jurisdiction’ are more relevant to the problem in hand. These concepts are divisible into two groups, representing respectively the idea of ‘the location of the wrong’ and the notion of ‘free and voluntary submission to the jurisdiction’.
In view of the fact that the ICJ in the Interhandel Case distinctly and clearly expressed its agreement with the view that ‘the State where the violation occurred should have an opportunity to redress it by its own means’, 157 the proper starting point for a consideration of the limitations on the incidence of the rule of (p. 185) local remedies is the ‘location of the wrong’. If the wrong must be located in the territory of the delinquent State, whatever the difficulties of determining the locus of the wrong, 158then it would generally mean that the person or property must also be located in the delinquent State. Inter alia, if a subjective approach to the problem of the locus of the wrong were taken, it may be possible to say that the locus of the person or property injured may be outside the delinquent State, while the locus of the wrong remained within. That would happen where the act constituting the wrong is begun within the delinquent state but terminates on a person or property outside the delinquent State. This anomaly can be overcome by adopting a test for the locus which embodies the objective approach and fixes on the place where the last event necessary to make an actor liable for an alleged wrong takes place. 159
There is certainly one circumstance in which the theory of the locus of the wrong may have to be modified, and that is, where the determination that the locus of the wrong is in the delinquent state is dependent on the presence of the alien's person or property in the delinquent State and that presence of person or property is the result of a seizure made in violation of international law, attributable to the delinquent State. Here the principle ex iniuria non oritur ius is applicable. 160 It is to be noted that this exception is not co-extensive with the absence of voluntariness or consent freely given. Although in the incidence of the exception there will be found to be absence of voluntariness or consent, it does not follow that in every case in which there is absence of voluntariness or consent the exception will apply. For instance, the facts of the Aerial Incident Case would have shown that the exception did not apply, because the presence of the aircraft in Bulgarian airspace was not attributable to an illegal seizure by Bulgaria, regardless of the question of whether or not it was there voluntarily. On the other hand, the old British view that a seizure on the high seas requires exhaustion of local remedies in the delinquent State cannot be supported in modern law where this exception applies. It is clear also that the principle ex iniuria non oritur ius as applied in this context refers only to an iniuria attributable to the respondent State.
The application of the theory of the locus of the wrong to a breach of contract, where such breach is internationally wrongful, may give rise to apparent difficulties, because such a breach of contract will often be an omission. A solution may be found in regarding a breach of contract in such circumstances as an interference with the alien's rights in the contract, ie his right to performance. Since this is in the nature of a chose in action, the situs of the chose in action will determine (p. 186) the locus of the wrong. The determination of situs will depend on general principles of law as found in the conflict of laws (private international law). 161
The theory of the locus of the wrong, with the exception outlined above, not only has the virtue of recognizing the view of the ICJ and the policies behind the rule of local remedies and of adequately balancing two principal interests involved, but is also compatible with all the decided cases that can be explained by reference to it.
It is quite clear that the broad generic view of ‘free and voluntary submission to jurisdiction’ as such finds no general support in the decided cases or State practice, with the exception of the Israeli argument in the Aerial Incident Case. 162 An example will illustrate the point. If bandits in State A seize an alien (in relation to State B) and bring him across the border to State B, where a delictual violation of international law in respect of the alien in relation to the alien's national State is subsequently committed, there is no reason why there should be no jurisdictional connection for the exercise of jurisdiction on the basis that there had been no free and voluntary submission by the alien to the jurisdiction of State B, where the wrong has occurred. The principle, ex iniuria non oritur ius, does not apply because under this principle the iniuria must be committed by State B (in this example). There is clearly no reason why an exception should be made to State B's entitlement to have local remedies exhausted in its territory. Here, State B's interests are clearly paramount.
The conclusion to be drawn on a policy basis is that a broad absence of ‘free and voluntary submission’ exception may not be as such the sole relevant factor for determining whether the rule of local remedies does not apply. The ex iniuria non oritur principle by itself—a general principle of law—is certainly one exception legitimately to protect the two principal interests. Conversely, the ‘free and voluntary submission to jurisdiction’ principle does not have support as such as a general principle of law.
A recent rapporteur of the ILC incorporated in Article 14 of his draft the ‘free and voluntary link’ principle as such. 163 The discussion and analysis which follows this Draft Article 164 is not merely inconclusive as to the acceptance of the principle in State practice and in judicial decisions or by legal commentators but rather supports its non-acceptance, because the evidence shows that (i) where such a principle or some variation of it has been recognized as an exception, there has been an explicit or implicit waiver, on the basis of the principle, of the rule of local remedies in the circumstances; (ii) the reference to treaties as establishing the exception does not reveal that such treaties give rise to customary international law, because of a lack of a clear opinio iuris in any case, apart from the absence of cogent practice; (iii) existing judicial decisions of relevance as such do (p. 187) not come anywhere near to supporting the principle as an exception; and (iv) legal commentators are not in agreement at all that the exception as such is applicable but rather ignore it. What is eminently clear is that there are judicial decisions, inter alia, which categorically support the view that the basic principle of jurisdiction is that of the ‘location of the wrong’, there being little or no discussion of the exception based on ‘absence of voluntary submission’. The only reference to this principle is in the Israeli argument in the Aerial Incident Case, a reference which is not based on any kind of precedent, authority, or a general principle of law—nor apparently substantiated by policy reasons except the idea that an alien must by choice assume the risk of local remedies being applicable for the rule to apply. That may be a cogent policy value but must be weighed against the sovereign rights of a State to exercise jurisdiction over violations of law in its territory.
While the ex iniuria non oritur ius principle itself may not have been applied hitherto, inter alia, in any international judicial decisions on the rule of local remedies, there are international judicial decisions which have recognized it in other areas 165 and it is clearly an accepted general principle of law. Thus, there is no difficulty in applying it as a general principle of both international and national law in the context of the rule of local remedies.
Article 15(c) of the 2006 ILC Draft Articles states that local remedies do not need to be exhausted where there is no relevant connection between the injured person and the respondent or host State. In the commentary to this section of Article 15 the voluntary link principle for the incidence of the rule of local remedies is referred to but not canvassed, while the idea that there must be an ‘assumption of risk’ by the injured alien is supported. 166 However, it may be going too far to deprive the host or respondent State of the opportunity of redressing the injury to the alien even where there is no voluntary link between the alien and such State, provided the maxim ex iniuria non oritur ius is not applicable to the situation. Absence of free and voluntary submission to jurisdiction by itself as the criterion for inapplicability of the rule of local remedies may be too broad a characterization.
Perspectives
The importance of respect for the sovereignty of the host or respondent State has been attested to in many areas of the law relating to the rule of local remedies (p. 188) and it is right that this should be so. Particular mention may be made of the approach to the scope of the rule. The law relating to extraordinary remedies, to the raising of substantive issues, and to the persons who should exhaust remedies for instance, has resulted in a substantial role being assigned to the local or domestic system of dispute settlement, as has the conclusion that in the usual case what is required is a normal use of remedies—but not in the sense that what reasonable counsel might have done was necessarily adequate. In certain respects the stringency with which waivers are implied from agreements by the host or respondent State, and the rather strict manner in which the doctrines of estoppel and good faith have recently been applied, particularly in the ELSI Case, also flow from regard for the sovereignty of the host or respondent State.
On the other hand, consideration for other concerned interests has led to limitations on the incidence of the rule by reference to the concepts of direct injury and jurisdictional connection. While these limitations do not in reality inappropriately detract from the sovereignty of the host or respondent State, they have clearly arisen from the policy objective of containing the application of the rule and confining it to situations which the host or respondent State may justifiably claim to be subject to its system of dispute settlement. Other limitations, such as the requirement that only remedies of a legal nature need to be exercised, also flow from a rational approach to the balancing of the conflicting interests involved, which recognizes and gives effect to interests other than those of the host or respondent State. The recent application, by the ICJ, inter alia, of the law relating to the availability of remedies in the ELSI Case also reveals some concern that the rule should not be applied in such a manner as to rob it of its balanced effectiveness by over-protecting the interests of the host or respondent State.
The principle of avoiding undue hardship to the alien or individual, which has been clearly recognized in international jurisprudence and practice, and was explicitly acknowledged in the Finnish Ships Arbitration, has, it appears, especially been applied to impose limitations upon the operation of the rule. To the extent that the quality of the remedies offered is controlled, the principle has been effective. On the other hand, in so far as the general limitation relating to the quality of remedies propounded in the Finnish Ships Arbitration has been strictly construed, there has been a tendency to lean towards the sovereignty of the host or respondent State. The rejection of some excuses which clearly favour the interests of the alien or individual, confirms the respect accorded the sovereignty of the host or respondent State. It is understood that the principle of avoiding undue hardship to the alien or individual has a specific and important relevance and is tempered by the basic principle of respect for the sovereignty of the host or respondent State. However, it cannot be said that the interests of the alien or individual have necessarily been prejudiced. There is, nevertheless, a tendency which has been observed to avoid the application of the rule by express or implied waiver, more recently through the instrument of the BIT. Jurisprudence and practice have been found to have considerably developed the implication of waivers. While explicit waivers tend to be strictly construed, as already pointed (p. 189) out, the implication of waivers has been more liberal in connection with certain specific situations, just as the doctrines of estoppel and good faith have also to a large degree worked in favour of excluding the application of the rule. Perhaps these trends indicate a certain impatience with the rule, particularly on the part of protecting States. The approach to implication of waivers and estoppel or good faith, however, has not been overly protective of the interests of aliens or individuals and of protecting States, although such interests have clearly been considered. Generally, waivers have been implied and estoppel or good faith has been effective only where the circumstances justify a conclusion which requires a modification of the recognition of the sovereign interests of the host or respondent State. While waivers of the rule may sometimes be given after the injury has been committed, the numerous cases involving the rule in the field of diplomatic protection which have come before the PCIJ, the ICJ, and other tribunals, such as the Interhandel Case, the Norwegian Loans Case, and the ELSI Case, prove that waivers are not automatic and that the doctrines of estoppel, in the narrow sense, and good faith do not often operate to exclude the application of the rule. 167
The rule may, thus, still be regarded as an important instrument of dispute settlement in the international system. Nor has the point been reached at which it may be concluded that the rule is not a useful mechanism for defusing international disputes before they reach an international level, provided there is always a judicious balancing of the interests involved.
Finally, the question of whether the rule has been applied too strictly in the law of diplomatic protection may be broached. As already pointed out, the primary purpose of the rule is to give the host or respondent State an opportunity of rectifying a situation which is alleged to be in violation of the law. Consequently, it would defeat that purpose, if the rule were implemented in such a manner, or if such an approach were taken, as to make it too easy for aliens to have direct access to international fora, particularly judicial, by avoiding recourse to local remedies without giving the host or respondent State a fair chance of doing justice. What is required is that the rule be applied in such a way that justice is not travestied by too much regard for the interests of host or respondent States and too little consideration of the other interests involved, particularly of the alien. There is no evidence that decision-makers in the international system of dispute settlement have not hitherto tended to respect the demands of justice in the implementation of the rule. It is principally in the area of limitations on the rule, particularly by reference to the principle of avoiding undue hardship to the alien and in the application of the principle of consent to the non-application of the rule, that the (p. 190) legitimate parameters of the rule need to be kept in mind. The development of the rule has shown that these parameters have generally been judiciously and sagaciously established and may be maintained in the future by prudent interpretation. There is no reason to believe that, when decision-makers are confronted with the application of the rule to new situations, they cannot duly apply the rule, having considered all the relevant interests, in such a way as not to over-emphasize or ignore certain interests in relation to others. It is really a matter of balancing interests and finding a result which would ensure justice, which after all may be a question of common sense and reason. 168
Notes:
(1) See C F Amerasinghe, Local Remedies in International Law (2004) 22 ff and authorities there cited. The rule of exhaustion of local remedies has been considered and discussed in detail in the above work.
(2) C F Amerasinghe, ibid 247 ff 425; C F Amerasinghe, ‘Whither the Local Remedies Rule?’ 5 ICSID Review (1990) 293 ff. For an assessment of the usefulness of the rule and its future see ibid 309–10; C F Amerasinghe (note 1 above) 425 ff.
(3) Article 44(b): Crawford, The International Law Commission's Articles on State Responsibility (2002) 70, 264–5. Now see also Article 2006 14(1) of the ILC's Draft Articles on Diplomatic Protection: Report of the ILC (2006) 20, 71.
(4) See the statement of the ICJ in the ELSI Case, 1989 ICJ Reports 42; particularly also the Interhandel Case, 1959 ICJ Reports 27; the Diallo Case (Preliminary Objections), 2007 ICJ Reports, para 42, <http://www.icj-cij.org.>.
(5) See on this particularly C F Amerasinghe (note 1 above) 182 ff.
(6) For decisions see eg Mavrommatis Palestine Concessions Case, PCIJ Series A No 5 (1925); the German Interests in Upper Silesia Case, PCIJ Series A No 6 (1925); the Chorzów Factory Case, PCIJ Series A No 9 (1927); the Phosphates in Morocco Case, PCIJ Series A/B No 74 (1938); the Panavezys-Saldutiskis Railway Case, PCIJ Series A/B No 76 (1939); the Electricity Co of Sofia Case, PCIJ Series A/B No 77 (1939); the Norwegian Loans Case, 1957 ICJ Reports 14; the Interhandel Case, 1959 ICJ Reports 11; the ELSI Case, 1989 ICJ Reports 15; the Arrest Warrant of 11 April 2000 Case, <http://www.icj-cij.org>; the Finnish Ships Arbitration (Finland v Great Britain), 3 UNRIAA p. 1479 (1934); the Ambatielos Claim (Greece v UK), 12 UNRIAA 83 (1956); other cases cited in de La Pradelle-Politis, RAI, vol 1, 24, 48, 131, 138, 161, 460, 474, 476, 582 and 592; vol 2, 103, 112, 121, 275, 291, 294, 486, 487, 594, 673, 674 and 710; and vol 3, 116, 121 and 123. There are also some cases inMoore, 6 International Arbitrations (1898) and the UNRIAA series. For some diplomatic practice, see eg Moore, International Law (1906) 656 ff; Hackworth, 5 Digest (1943) 501 ff; and McNair, 2 International Law Opinions (1956) 312 ff.
(7) McNair, 2 ibid 312.
(8) C F Amerasinghe (note 1 above) 183.
(9) See C F Amerasinghe, ibid 183–4.
(10) (Great Britain v Portugal, 1856), 59 BFSP (1859–60) 1288.
(11) See the Phosphates in Morocco Case, PCIJ Series A/B No 74, 17 (1938); the French pleadings in PCIJ Series C No 84, 209 ff.; and the Italian pleadings in PCIJ Series C No 84, 439 ff.
(12) See the Interhandel Case, 1959 ICJ Reports 27.
(13) Greece v UK, 12 UNRIAA 120 (1956).
(14) Anzilotti, ‘La Responsabilité internationale des étâts à raison des dommages soufferts par des étrangers’, 13 RGDIP (1906) 8; Borchard, The Diplomatic Protection of Citizens Abroad (1916) 381;Ralston, The Law and Procedure of International Tribunals (1926) 95; Eagleton, The Responsibility of States in International Law (1929) 95 Eagleton, ‘Une théorie au sujet du commencement de la responsabilité de l'état’, 11 RDILC (1930) 643; Hoijer, La Responsabilité internationale des étâts (1930) 374; Borchard, in 38 AIDI (1931-I) 424; Dunn, The Protection of Nationals (1932) 156;Witenberg, ‘La Recevabilité des réclamations devant les juridictions internationales’, 41 Hague Recueil (1932) 50; H Friedmann, ‘Épuisement des voies de recours internes’, 14 RDILC (1933) 318; Ténékidès, ‘L'épuisement des voies de recours internes comme condition préalable de l'instance internationale’, 14 RDILC (1933) 514; Fachiri, ‘The Local Remedies Rule in the Light of the Finnish Ships Arbitration’, 17 BYIL (1936) 19; Ago, ‘La Regola del Previo Esaurimento dei Ricorsi Interni in Tema di Responsabilità Internazionale’, 3 ArchivDP (1938) 181; Freeman, The International Responsibility of States for Denial of Justice (1937) 407 and 422; Fawcett, ‘The Exhaustion of Local Remedies: Substance or Procedure?’, 31 BYIL (1954) 452; Verzijl, in 45 AIDI (1954-I) 5, 84 and in 46 AIDI (1956) 13 ff; C de Visscher, ‘Le Déni de justice en droit international’, 52 Hague Recueil (1935) 421 ff; Shea, The Calvo Clause (1955);Bagge, ‘Intervention on the Ground of Damage Caused to Nationals, with Particular Reference to Exhaustion of Local Remedies and the Rights of Shareholders’, 34 BYIL (1958) 162; Law, The Local Remedies Rule in International Law (1961); Mummery, ‘The Content of the Duty to Exhaust Local Judicial Remedies’, 58 AJIL (1964) 389; Gaja, L'Esaurimento dei Ricorsi Interni nel Diritto Internazionale (1967); Haesler, The Exhaustion of Local Remedies in the Case Law of International Courts and Tribunals (1968) 28 ff; Chappez, La Régle de l'épuisement des voies de recours internes (1972); and Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law (1983) 58. I have also considered this aspect of scope in Local Remedies in International Law (2004) 182 ff.
(15) YBILC (1956), vol 2 221 ff.
(16) Article 18, YBILC (1961), vol 2 48.
(17) See for examples C F Amerasinghe (note 1 above) 185.
(18) PCIJ Series A/B No 74, 28 (1938).
(19) There is an early British precedent relating to reprisals which contradicts this view: see McNair, 2 International Law Opinions (1956) 312. But not only is this an old precedent but it refers to the use of force.
(20) See the Neptune's Case (1977), where an opinion given by the House of Lords to the British Government would not have been binding: Moore, 3 International Arbitrations (1898) 3043.
(21) ICJ Pleadings (1962–9), vol 4, 592–3.
(22) ‘Exceptions preliminaries présentées par le Gouvernernent espagnol’ ICJ Pleadings (1962–9), vol 1, 242. The Spanish government also referred to the remedy by way of revision of the bankruptcy judgment, which, it argued, although extraordinary, should have been exhausted: ICJ Pleadings (1962–9), vol 9, 923.
(23) ICJ Pleadings (1962–9), vol 1, 242.
(24) ‘Observations et conclusions du Gouvernement Belge’, ICJ Pleadings (1962–9), vol 1, 267–8.
(25) Ibid 221.
(26) The Commentary to Article 14 expresses views which reflect what has been said above: Report of the ILC (2006) 71–2. Now in the Diallo Case (Preliminary Objections) the ICJ had something to say on what kinds of remedies must be exhausted. The Court explained that, while extraordinary, administrative remedies must be exhausted, remedies involving acts of grace need not be exhausted:
47 The Court further observes that, even if this was a case of expulsion and not refusal of entry, as the DRC maintains, the DRC has also failed to show that means of redress against expulsion decisions are available under its domestic law. The DRC did, it is true, cite the possibility of requesting reconsideration by the competent administrative authority (see paragraph 36 above). The Court nevertheless recalls that, while the local remedies that must be exhausted include all remedies of a legal nature, judicial redress as well as redress before administrative bodies, administrative remedies can only be taken into consideration for purposes of the local remedies rule if they are aimed at vindicating a right and not at obtaining a favour, unless they constitute an essential prerequisite for the admissibility of subsequent contentious proceedings. Thus, the possibility open to Mr. Diallo of submitting a request for reconsideration of the expulsion decision to the administrative authority having taken it — that is to say the Prime Minister — in the hope that he would retract his decision as a matter of grace cannot be deemed a local remedy to be exhausted. (2007 ICT Reports, para 47—<http://www.icj-cij.org>)
With regard to both the claims made by the claimant State, Guinea, in respect of (i) the alleged wrongful expulsion of its national and (ii) the alleged direct injury to him as a shareholder of two companies incorporated in the Democratic Republic of Congo (DRC), the respondent, the court held that there were no effective remedies to exhaust. In respect of the first claim the court pointed out, as seen above, that there were no ‘legal’ remedies available, let alone effective ones. The court then stated that
48. Having established that the DRC has not proved the existence in its domestic legal system of available and effective remedies allowing Mr. Diallo to challenge his expulsion, the Court concludes that the DRC's objection to admissibility based on the failure to exhaust local remedies cannot be upheld in respect of that expulsion. (Ibid, para 48)
With regard to the second claim the court in effect found that the respondent had not established that there are any effective internal remedies to which resort could have been had by Mr. Diallo in seeking redress for the alleged violation of his direct rights as a shareholder of the two companies—the remedies available being no different from those relating to the claim based on his alleged expulsion. The court said:
74. The Court notes that the alleged violation of Mr. Diallo's direct rights as associé was dealt with by Guinea as direct consequence of his expulsion given the circumstances in which that expulsion occurred. The Court has already found above (see paragraph 48), that the DRC has not proved that there were effective remedies, under Congolese law, against the expulsion Order against Mr. Diallo. The Court further observes that at no time has the DRC argued that remedies distinct from those in respect of Mr. Diallo's expulsion existed in the Congolese legal system against the alleged violations of his direct rights as associé and that he should have exhausted them. The Parties have indeed devoted discussion to the question of the effectiveness of local remedies in the DRC but have confined themselves in it to examining remedies open to Africom-Zaire and Africontainers-Zaire, without considering any which may have been open to Mr. Diallo as associé in the companies. Inasmuch as it has not been argued that there were remedies that Mr. Diallo should have exhausted in respect of his direct rights as associé, the question of the effectiveness of those remedies does not in any case arise.
75. The Court concludes from the foregoing that the objection as to inadmissibility raised by the DRC on the ground of the failure to exhaust the local remedies against the alleged violations of Mr. Diallo's direct rights as associé of the two companies Africom-Zaire and Africontainers-Zaire cannot be upheld. (ibid, paras 74 and 75)
(27) Ibid 69. See also C F Amerasinghe (note 1 above) 197–8.
(28) 1989 ICJ Reports 45–6. See also C F Amerasinghe (note 1 above) 195 ff; Commentary on Article 14 of the ILC Draft: Report of the ILC (2006) 73; the Finnish Ships Arbitration (1938), 3 UNRIAA 1502, where slightly different language was used in describing what aspects of the claim must be presented to the local institutions.
(29) See C F Amerasinghe (note 1 above) 195–6, 216 ff; commentary on Article 14 of the ILC Draft Articles: Report of the ILC (2006) 73 ff.
(30) Finland v Great Britain, 3 UNRIAA 1497 (1934).
(31) Greece v UK, 12 UNRIAA 120 (1956). See also p 125 (Alfaro) and p 128 (Spiropoulos) for comparable ideas.
(32) Some early cases: Communication No 8/1977, HRC Selected Decisions 48; Communication No 28/1978, HRC Selected Decisions 58–9; and Communication No 44/1979, HRC Selected Decisions 77 and 79.
(33) Finland v Great Britain, 3 UNRIAA 1504 (1934). The term ‘effective remedy’ was used at p. 1495.
(34) Ibid 1543.
(35) Ibid 1545.
(36) Ibid 1550.
(37) Fachiri criticized this particular solution: ‘The Local Remedies Rule in the Light of the Finnish Ships Arbitration’, 17 BYIL (1936) 36.
(38) 1957 ICJ Reports 39 ff.
(39) 1959 ICJ Reports 26 ff.
(40) Mummery requires that the absence of a proper remedy be ‘reasonably clear’: ‘The Content of the Duty to Exhaust Local Judicial Remedies’, 58 AJIL (1964) 401. In the ELSI Case, a chamber of the ICJ held that what was important was whether it could be concluded from all the circumstances that the possibility of success of a remedy was remote: 1989 ICJ Reports 47–8. In that case it was found that the remedy identified as not having been exhausted could not have been regarded as possibly relevant to the success of the alien's claim.
(41) Finnish Ships Arbitration (Finland v Great Britain), 3 UNRIAA 1495 (1934), endorsed this principle. In the ELSI Case, 1989 ICJ Reports 47–8, the ICJ found that it was clear that the alien company could not have succeeded in the local courts, because the established law worked definitely against its contentions: see on this point in the case Adler, ‘The Exhaustion of Local Remedies Rule after the International Court of Justice's Decision in ELSI’, 39 ICLQ (1990) 651. A similar conclusion exempting the alien from exhausting local remedies was reached for the same basic reason as in the ELSI Case, in the Interpretation of the Treaty of Finance and Compensation Arbitration (Austria v FRG, 1972), 32 ZAORV 49. See also the Johnson Case (United States v Peru, 1878); de La Pradelle-Politis, 2 RAI 593 ff; and Freeman (note 14 above) 421.
(42) See ICJ Pleadings (1962–9), vol 1, 256; ICJ Pleadings (1962–9), vol 3, 814; ICJ Pleadings (1962–9), vol 9, 593 and 609 (the Spanish view); and ICJ Pleadings (1962–9), vol 8, 577–8 (the Belgian view). See also the Panavezys-Saldutiskis Railway Case, PCIJ Series A/B, 1939, No 76, 4 and 18; ‘S.S. Lisman’ (1937) 3 UNRIAA, 1773; ‘ S.S. Seguranca ’ (1939), 3 UNRIAA 1868. Human rights cases under the European Convention on Human Rights have followed suit: see eg X v Federal Republic of Germany, 1 Yearbook of the European Convention on Human Rights (1956), 138; X v Federal Republic of Germany, 2 ibid (1958–1959) 344; X v Austria, 3 ibid (1960) 202.
(43) PCIJ Series A/B, 1939, No 76, 18. See also the Arbitration under Article 181 of the Treaty of Neuilly, reported in 28 AJIL (1934) 789; Claims of R Gelbtrunk and Salvador Commercial Co et al, 15 UNRIAA, 476–477; ‘The Lottie May’ Incident (1899, Honduras v UK), 15 UNRIAA, 31.
(44) 1957 ICJ Reports 39 ff.
(45) 1959 ICJ Reports 26 ff. Where the applicant's appeal is on the facts and a higher court has no jurisdiction except in appeals on matters of law, there is no need to appeal to the higher court: see Communication No 27/1978, HRC Selected Decisions 14, which is a case on human rights protection.
(46) Greece v Bulgaria, 3 UNRIAA 1405 (1933). See also Arbitration under Article 181 of the Treaty of Neuilly, 28 AJIL (1934), 789; Ambatielos Claim, 12 UNRIAA 119; Interhandel Case 1959, ICJ Reports 28.
(47) (1923, USA v GB), 6 UNRIAA 120. See also on the similar position in human rights protection, eg Communication No 63/1979, HRC Selected Decisions 102; the Vélasquez Rodríguez Case (1989), 28 ILM 304 ff.
(48) Becker v Denmark, Application No 7011/75, Decisions and Reports, ECHR, vol 4, 227–8 and 232–3. See also X v Denmark, Application No 7465/76, Decisions and Reports, ECHR, vol 7, 154; X v Austria, Application No 6701/74, Decisions and Reports, ECHR, vol 5, 78–9; and Zamir v UK, Application No 9174/80, Report of the Commission; Kornmann v Federal Republic of Germany, Application No 2686/65, 22 Collection 10.
(49) Finland v Great Britain, 3 UNRIAA 1496 (1934). See also the Vélasquez Rodríguez Case (1989), 28 ILM 304–9; Yağci and Sargin v Turkey, Judgment of 8 June 1995, European Court of Human Rights, Reports and Decisions, No 319, 17, para 42; Hornsby v Greece, Judgment of 19 March 1997, 1997-II European Court of Human Rights, Reports and Decisions, No 33, 509, para 37.
(50) The ground has been supported by the Institut de Droit International: see 36(l) AIDI (1935) 435; and 45 AIDI (1954) 28 ff. See also HLS, ‘Research in International Law II. Responsibility of States’ (1929) 23 AJIL (1929), Supplement, 134. This ground is specifically referred to in Article 46(2)(a) of the ACHR. Although not all forms of denial of justice may have the result of exempting the alien or claimant from exhausting remedies, certainly this one would seem to have the effect of rendering remedies obviously futile in so far as proper justice and fairness cannot be expected to prevail. The exception would be relevant even in the absence of specific provisions for it in a conventional instrument. The exception was found to be applicable by the IACHR in Resolution No 1a/88, where it held that the irregularities pertaining to legal process inherent in Chilean military justice were reflected in the abusive recourse to secrecy in the conduct of the proceedings, with the result that it was initially impossible to gain access to basic elements of the trial and the military authorities were allowed to control the evidence submitted. Therefore, the Commission held that due process of law was non-existent and local remedies did not have to be pursued: see Resolution No 1a/88, Case 9755, Ann Rep IAComHR 1987–88, 137.
(51) Greece v UK, 12 UNRIAA 122 (1956).
(52) See Report of the ILC (2006) 77–9 (the Commentary) and Article 16(a) of the Draft Articles.
(53) 1957 ICJ Reports 39.
(54) See the Commentary to Article 15(a) of the ILC Draft Articles: Report of the ILC (2006) 78 and cases therein referred to in footnote 202.
(55) See the Finnish Ships Arbitration (1934), 3 UNRIAA 1504; the Ambatielos Claim (1956), 12 UNRIAA 119–20. The ILC's 2006 Draft Article 15(a) states that local remedies need not be exhausted where ‘there are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress’, Report of the ILC (2006) at 20. The Commentary explains the Article, ibid at 77–9, as receiving a lower threshold than that referred to in the cases and the text above.The ICJ has explained the matter of burden of proof in connection with effective and ineffective remedies. Most recently in the Diallo Case (Preliminary Objections) it pointed out that the respondent state, the DRC, had ‘not proved the existence in its domestic legal system of available and effective remedies allowing Mr. Diallo to challenge his expulsion …’ (2007 ICJ Reports, para 48, <http://www.icj-cij.org>) stating that:44. In matters of diplomatic protection, it is incumbent on the applicant to prove that local remedies were indeed exhausted or to establish that exceptional circumstances relieved the allegedly injured person whom the applicant seeks to protect of the obligation to exhaust available local remedies (see the ELSI Case, 1989 ICJ Reports, 43–44, para. 53). It is for the respondent to convince the Court that there were effective remedies in its domestic legal system that were not exhausted (see ibid., p. 46, para. 59). Thus, in the present case, Guinea must establish that Mr Diallo exhausted any available local remedies or, if not, must show that exceptional circumstances justified the fact that he did not do so; it is, on the other hand, for the DRC to prove that there were available and effective remedies in its domestic legal system against the decision to remove Mr Diallo from the territory and that he did not exhaust them. (ibid para 44)
(56) (1931, GB v Mexico), 5 UNRIAA 191.
(57) Ibid 198.
(58) 1957 ICJ Reports 6.
(59) Ibid 89.
(60) See also Dugard, ‘Third Report on Diplomatic Protection’ (ILC), UN Doc. A/CN.4/523, 35–7, Article 14(e) of his draft, and the legal commentators referred to therein. The principle of undue delay has been applied and elaborated upon in the law of human rights protection: see C F Amerasinghe (note 1 above), Chapter 13. There have been some text writers who have considered the question of defining undue delay in the context of human rights protections: see eg Wiebringhaus, ‘La Règle de l'épuisement prealable des voies de recours interne dans la jurisprudence de la Commission européenne des droits de l'homme’, 5 AFDI (1959) 685; Schaffer and Weissbrodt, ‘Exhausting Remedies in the Context of the Racial Discrimination Convention’, 2 HRJ (1969) 639 ff. See also the other cases referred to above in this section.
(61) Report of the ILC (2006) 80.
(62) See Freeman (note 14 above) 418; and Law (note 14 above) 70.
(63) (1933, USA v Panama), 26 AJIL (1934) 607.
(64) See eg the Norwegian Loans Case, 1957 ICJ Reports 39 per Judge Lauterpacht in a separate opinion; the Salem Case (United States v Egypt), 2 UNRIAA 1189 (1932); the Panavezys-Saldutiskis Railway Case, PCIJ Series A/B No 77 138 (1939) per Judge de Visscher in a dissenting opinion.
(65) Law (note 14 above) 147; and Jenks, The Prospects of International Adjudication (1964) 536. See also Schwarzenberger, 1 International Law (1957) 604.
(66) (1921, USA v GB), 6 UNRIAA 85 (1921).
(67) See also the Napier Case (USA v UK) (1921), de La Pradelle-Politis, 3 RAI 121. As emerges from the discussion in the next section, this rule may be subject to change.
(68) See the Interhandel Case, 1959 ICJ Reports 27; the Norwegian Loans Case, 1957 ICJ Reports 41 per Judge Lauterpacht in a separate opinion; and the Salem Case (United States v Egypt), 2 UNRIAA 1189 (1932). Judge Read in his dissenting opinion in the Norwegian Loans Case cast some doubt on this view: 1957 ICJ Reports 98.
(69) See C F Amerasinghe (note 1 above) Chapter 13.
(70) Report of the ILC (2004) 20, 82.
(71) See section (d) above. In the human rights area indigence of the injured applicant has caused much difficulty to international courts confronted with the issue of applying the local remedies rule: see C F Amerasinghe (note 1 above) Chapter 13.
(72) Waiver has generally been accepted in principle both in judicial decisions and by legal commentators and in codification draft: see eg the ELSI Case, 1989 ICJ Reports 42; De Wilde, Ooms and Versyp, ECHR, 50 ILR 670 (1971); Government of Costa Rica Case, IACHR, 67 ILR 587; C F Amerasinghe, ‘The Local Remedies Rule in an Appropriate Perspective’, 36 ZAORV (1976) 752; Garcia Amador, ‘Third Report on State Responsibility’, YBILC (1958), vol 2, 93; Borchard, The Diplomatic Protection of Citizens Abroad (1915) 819 and 825; Borchard, ‘Theoretical Aspects of the International Responsibility of States’, 1 ZAORV (1929) 240; Witenburg, ‘La Recevabilité des reclamations devant les juridictions internationales’, 41 Hague Recueil (1932) 55; Ipsen, Völkerrecht (1990) 313; Kokott, ‘Interim Report on Exhaustion of Local Remedies’, in ILA, Report of the Sixty-ninth Conference (2000) at p. 613; Dugard, ‘Third Report on Diplomatic Protection’ (ILC), UN Doc A/CN.4/523 (2002) 17 ff and the authorities there cited; Article 15(e) of the ILC's 2006 Draft Articles and Commentary thereto: Report of the ILC (2006) at 83 ff. The latter Article refers to waiver as a circumstance which exempts the alien from exhausting local remedies; the commentary then explains waiver. The impact of investment treaties on waiver of the rule of local remedies is discussed in chapter 15.
(73) See Feller, The Mexican Claims Commissions 1923–1934 (1935) 34; Nielsen, International Law Applied to Reclamations (1933) 70; and Eagleton, ‘L'épuisement des recours internes et le déni de justice, d'après certaines decisions récentes’, 16 RDILC (1935) 518–19 and 525–6. On the reasons for waiver, see C F Amerasinghe, State Responsibility for Injuries to Aliens (1967) 207. The validity of express waiver has been confirmed by text writers: see the writers referred to in note 72 above and egDoehring, ‘Exhaustion of Local Remedies’, in Bernhardt et al (eds), 3 EPIL (1977) 240; Briggs, ‘The Local Remedies Rule: A Drafting Suggestion’, 50 AJIL (1956) 925; and C F Amerasinghe 1990 (note 2 above) 293–4.
(74) See Erades, ‘The Gut Dam Arbitration’, 16 NILR (1969) 161. García Amador recognized an express waiver by agreement in 1958 in Article 17 of his draft to the ILC: see García Amador (note 72 above) 55, 57–8 and 72.
(75) See 55 UNTS 159.
(76) It may be noted that, in the area of adjustment or settlement of environmental disputes, there is a marked tendency towards waiver of the rule. For a discussion of this, see eg Hoffman, ‘State Responsibility in International Law and Transboundary Pollution Injuries’, 25 ICLQ (1976) 513 ff;Poulantzas, ‘The Rule of Exhaustion of Local Remedies and Liability for Space Vehicle Accidents’, 17 RHDI (1964) 103–4; Jenks, ‘Liability for Ultra-Hazardous Activities in International Law’, 117 Hague Recueil (1966) 191 ff. There are express waivers in bilateral investment treaties: see C F Amerasinghe (note 1 above) 267 ff. The extent of the waiver depends on the interpretation of the particular treaty.
(77) Clearly, there is a presumption which may be rebutted by evidence to the contrary. On irrevocability as such, see C F Amerasinghe (1967) (note 73 above) 294–5; C F Amerasinghe (note 72 above) 737; and the UK pleadings in the Anglo-Iranian Oil Co Case, ICJ Pleadings (1951) 118–19. In the same case, Iran argued against irrevocability: ibid 501. The grounds on which this argument was made are not clear.
(78) The provisions of Article 26 apply only to arbitration and not to conciliation under the Convention. Whether the rule of local remedies applies to conciliation proceedings per se is a different question. If it did, the rule would not have been waived under the Convention. The incidence of the rule of local remedies and to what exactly the express waiver applied are not clearly addressed in the ICSID Convention although the implications of Article 26 can be deciphered.
(79) The Interhandel Case, 1959 ICJ Reports 6.
(80) It may be noted that the 1956 resolution of the Institut de Droit International clearly stated: ‘La régle ne s'applique pas: … b) au cause où son application a été ecartée par l'acccord des Etas intéressés’ 46 AIDI (l956) 358. But in fact what is really required is the consent of the host or respondent State, given in any form either generally or to the alien or to his national State. Such consent constitutes an express waiver. On the issue of conciliation and the rule of local remedies there are conflicting views: see eg the Interhandel Case 1959 ICJ Reports 29, 45 per Judge Córdova in a separate opinion, 84 per Judge Winiarski dissenting, 121 per Judge Lauterpacht dissenting, ICJ Pleadings (1959) 573 (Swiss oral argument); Gaja, (note 14 above) 157–60; and Cot, La Conciliation internationale (1968) 23–5. See further below in this Chapter.
(81) The Ziat and Ben Kiran Case (Great Britain v Spain), 2 UNRIAA 731 ff (1924); Canadian Hay Importers Case (Great Britain v US) 6 UNRIAA 142 ff (1925); the A.G. Studer Case (US v Great Britain), 6 UNRIAA 149 ff (1925); the R.T. Roy Case (US v Great Britain), 6 UNRIAA 147 ff (1925); the Mexican Union Ltd. Railway Case, 5 UNRIAA 9 and 123 (1926); the George Pinson Case (France v Mexico), 5 UNRIAA 351 (1928); the Panavezys-Saldutiskis Railway Case, PCIJ Series A/B No 76 (1939); the Electricity Co of Sofia Case, PCIJ Series A/B No 77 104 (1939) per Judge Urrutia in a dissenting opinion; and Switzerland v Federal Republic of Germany, 25 ILR 42 ff (1958). For legal commentators, see eg Freeman, The International Responsibility of States for Denial of Justice (1938) 414 ff; Guggenheim, 2 Traité droit international public (1954) 22; Schwarzenberger, International Law (1957) 610 ff; Witenberg (note 72 above) 52; García Amador (note 72 above) 60; and Verzijl, ‘Rapport supplémentaire sur la règle de l'épuisement des recours internes’, 46 AIDI (1956) 3 ff. On implied waiver now, see also in general Dugard (note 72 above) 20 ff and the authorities there cited. While the circumstances of the case matter, it must be emphasized that a clear intention to waive the application of the rule must be established: see the ELSI Case, 1989 ICJ Reports 42.
(82) The R L Trumbull Case (US v Chile ) (1889); Moore, International Arbitration (1898) 3369; the Selwyn Case (GB v Venezuela), 9 UNRIAA 380 (1903); the Forests of Central Rhodope Case (Greece v Bulgaria), 3 UNRIAA 1419 (1933); the German Interests in Polish Upper Silesia Case, PCIJ Series A No 6, 13–14 (1925); the Panavezys-Saldutiskis Railway Case, PCIJ Series A/B No 76, 35 ff (1939) per Judge Van Eysinga in a dissenting opinion; the Lighthouses Arbitration (France v Greece), 23 ILR 639 (1936); and the British memorial in the Anglo-Iranian Oil Co Case, ICJ Pleadings (1952) 122 ff. For legal commentators, see eg Borchard (1916) (note 14 above) 819; Gaja (note 14 above) 156 ff; Ténékidès, ‘L'épuisement des voies de recours internes comme condition préalable de l'instance internationale’, 14 RDILC (1933) 519 ff; and Schwebel and Wetter, ‘Arbitration and the Exhaustion of Local Remedies’, 60 AJIL (1966) 484. Many legal commentators do not make a distinction between diplomatic protection and arbitration between States and private individuals who may be legal or natural persons. In the relevant cases it is not clear that the doctrine of the implied waiver was not being used to explain the position.
(83) Norwegian Loans Case, 1957 ICJ Reports 9. Neither State argued that the rule had been waived by submission to the ICJ. The Court did not decide the preliminary objection based on the local remedies rule, but none of the judges who dealt with this objection took the view that such submission amounted to a waiver. Interhandel Case, 1959 ICJ Reports 6. Neither the court nor the parties took the view that there had been a waiver of the rule of local remedies by submission to an international jurisdiction.
(84) See the argument of the French government in the Norwegian Loans Case which related to the existence of an implied waiver of the rule: ICJ Pleadings (1957), vol 1, 407 ff.
(85) PCIJ Series A/B No 76 (1939).
(86) Ibid 35 ff.
(87) 1957 ICJ Reports 9.
(88) 1959 ICJ Reports 6.
(89) Now see the ELSI Case, 1989 ICJ Reports 31, where the importance of the local remedies rule for the law of diplomatic protection was asserted and confirmed.
(90) 1989 ICJ Reports 42.
(91) See Steiner and Gross v Polish State, AD (1927–8) 472 ff. Dugard (note 72 above) 21–3, distinguishes between general arbitration agreements entered into before disputes arise and ad hoc arbitration agreements entered into after disputes arise, stating that it is easier to imply waiver in the latter cases than in the former. See also the authorities there cited at notes 100–102. But the distinction is neither of an absolute nature nor is it really useful. In every case it is a question of interpretation. There is no need for additional presumptions. The presumption logically should be against implied waiver as such. See also C F Amerasinghe (note 1 above) 253 ff for a further discussion of this.
(92) See Report of the ILC (2006) 85.
(93) The Ambatielos Case, 1953 ICJ Reports 16. See also the Chemin de Fer Zeltweg Case (Austria v Yugoslavia), 3 UNRIAA 1803 (1934).
(94) 1959 ICJ Reports 29.
(95) See 1959 ICJ Reports 32 per Judge Carry, 82 per Judge Klaested, 84 per Judge Winiarski and 120 ff per Judge Lauterpacht.
(96) See Judge Lauterpacht in the Interhandel Case, 1959 ICJ Reports 93.
(97) See the Ambatielos Case, 1953 ICJ Reports 16.
(98) See the Anglo-Iranian Oil Co Case, 1952 ICJ Reports 93.
(99) See eg the discussion in C F Amerasinghe (1967) (note 73 above) 108 ff and the authorities there cited, and (note 1 above), Chapter 5.
(100) See discussion in C F Amerasinghe, ibid 257.
(101) Schwebel and Wetter (note 82 above) 486 ff.
(102) The Affaire Losinger and Co, PCIJ Series A/B No 67 (1936), and Pleadings, Oral Statements and Documents (1936), PCIJ Series C No 78; the Anglo-Iranian Oil Co Case, 1952 ICJ Reports 93, ICJ Pleadings (1951); the Electricité de Beyrouth Co Case, 1954 ICJ Reports 107, ICJ Pleadings (1954); and the Compagnie du Port, des Quais et des Entrepôts de Beyrouth and the Société Radio-Orient Case, ICJ Pleadings (1960).
(103) The better view is that there is an implied waiver in this situation: see the discussion in C F Amerasinghe (note 1 above) 258 ff.
(104) This general principle is mentioned by, inter alios, Rosenne, Law and Practice of the International Court, 1920–1966 (1997), vol 2, 684–5. See now C F Amerasinghe, Jurisdiction of International Tribunals (2003) 303. In the human rights context the principle is often referred to as an ‘estoppel’: see C F Amerasinghe (note 1 above) Chapter 13. The conduct of the respondent State during proceedings is covered by Article 15(e) of the 2006 ILC Draft Articles on waiver: see Commentary, Report of the ILC (2006) at 86.
(105) PCIJ Series A No 6, 20 (1925).
(106) PCIJ Series A No 9, 26–7 (1925).
(107) Beckett, ‘Les Questions d'intérêt général au point de vue juridique dans la jurisprudence de la Cour permanente de justice internationale’, 39 Hague Recueil (1932) 164; de Visscher, ‘Le Déni de justice en droit international’, 52 Hague Recueil (1935) 425; and Kaufmann, ‘Règles générales de droit de la paix’, 54 Hague Recueil (1935) 456. See the explanation and the discussion in C F Amerasinghe (note 1 above), 266.
(108) See the discussion at the Institut de Droit International: 46 AIDI (1956) 302 ff. See also the Air Services Agreement Case (1978, USA v France) 18 UNRIAA 415; the UN Headquarters Agreement Opinion, 1988 ICJ Reports 29, para 41.
(109) ICJ Pleadings (1959) 501 ff.
(110) Report of the ILC (1977): 2 YBILC (1977) Part II, 50. The EComHR has taken the opposite view that declaratory relief, even by way of interpretation, may not be given unless local remedies have been exhausted: Donnelly and Others v UK, Applications Nos 5577-83/72, COE Doc 43,662–06.2, 83, and see C F Amerasinghe (note 1 above), Chapter 13.
(111) See Report of the ILC (2006) 20 and 76.
(112) (1927), PCIJ Series A No 9, 31.
(113) 1959 ICJ Reports 27.
(114) 1989 ICJ Reports 43–4. On silence, see also the Heathrow Airport User Charges Arbitration, 102 ILR 285 (1996). The distinction between implied waiver and estoppel may be fine. It is suggested that estoppel, as distinguished from implied waiver, be defined as above in this section in order to make the differentiation useful. The fact that the term ‘estoppel’ may often be used broadly to include true situations of implied waiver, particularly in the context of human rights protection, does not materially affect the reality.: see C F Amerasinghe (note 1 above), Chapter 13. The most recent work on waiver and estoppel is to be found in Dugard (note 72 above) 17 ff. The conclusions reached on the subject are identical with mine.
(115) 1 ICJ Pleadings (1957) 182.
(116) Ibid.
(117) Ibid 277 ff.
(118) ICJ Pleadings (1959) 402.
(119) Ibid. See also the oral argument of the Swiss government: ibid 547.
(120) Ibid 315 ff (written pleadings) and 612 ff (oral argument).
(121) ICJ Pleadings (1959) 158. See also the oral argument of the Israeli government, ibid 530 ff and 590.
(122) Ibid 570 ff (oral argument).
(123) 2002 ICJ Reports: see <http://www.cij-icj.org>, para 40. See also the Air Services Agreement Arbitration (France v USA), 18 UNRIAA 432 (1978), where the tribunal referred to the international agreement as containing ‘a right granted by one government to the other government ’ which is a reference to a right the violation of which results in a direct injury. Earlier, the tribunal referred to an obligation of ‘result’ (presumably in contrast to an obligation of ‘conduct’) and for all practical purposes regarded the characterization as an unnecessary fifth wheel (ibid). The distinction invoked is misplaced for the purposes of the local remedies rule, is not universal or general in national laws and was imported by Ago, ‘Sixth Report on State Responsibility’, YBILC (1977), vol 2, Part II, 22 ff, as it appears, indiscriminately from the Italian law. Neither is it at all possible to see its relevance to the rule of local remedies nor is it or was it supported by any kind of authority or reasoning in relation to the rule.
(124) See Freeman (note 14 above) 404; Eagleton (1929) (note 14 above) 51 and 103; Hyde, International Law Chiefly as Interpreted and Applied by the United States (1947), vol 2, 888; Jessup, A Modern Law of Nations (1956) 118 ff. See also Meron, ‘The Incidence of the Rule of Exhaustion of Local Remedies’, 35 BYIL (1959) 84 ff. There are several other authorities, including those who have expressed views at the Institut de Droit International and the 1956 Granada resolution of the Institut. See particularly C F Amerasinghe (1967) (note 73 above) 174 ff. Cançado Trindade (note 14 above) 173–4, also has some remarks on the subject.
(125) 2002 ICJ Reports: see <http://www.icj-cij.org>, para. 40.
(126) 1959 ICJ Reports 28–9.
(127) 1989 ICJ Reports 42–3. In Swiss Confederation v Federal Republic of Germany (No. 1), 25 ILR 42 (1958), the arbitral tribunal stated in effect that the mere fact that the dispute related to the interpretation of a treaty did not convert the injury caused into a direct injury. The arbitration was between two States.
(128) ICJ Pleadings (1959) 158–9.
(129) Ibid 530–1.
(130) Jessup (note 124 above) 118–20. The 1956 Granada resolution of the Institut de Droit International also refers to some direct injuries to which the rule of exhaustion of local remedies does not apply. Injuries to heads of state and diplomats are mentioned.
(131) Meron (note 124 above).
(132) Ibid 86–7. He then explains these elements. He cites also the present Article 38(1) and (2) of the Rules of Court of the ICJ in this connection, on the ground that those provisions, which deal with the contents of an application instituting proceedings, refer to these two concepts, but points out that the concept of the direct injury concerns substantive factors rather than procedural features. Cançado Trindade (note 14 above) supports the relevance of the nature of the claim.
(133) 1959 ICJ Reports 19.
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