The Rule of Exhausting Local Remedies within the Framework of Diplomatic Protection

Florian-Daniel Mazilu

International Journal of Academic Research in Business and Social Sciences, 2015, vol. 5, issue 9, 316-321

Abstract: The general rule is that, where there has been a violation of international law in the treatment of an alien by a State, local remedies must be exhausted by the alien before his claim may be espoused by his national State. While on the one hand a sovereign State is given every opportunity of settling such disputes equitably through ist own organs, and it is in the interest of all concerned that such disputes should be settled at the earliest possible opportunity at a local level, on the other hand it is logical that some recognition shoul also be given to the countervailing interests of all parties concerned in efficient justice without, inter alia, financial waste (Amerasinghe C.F., 2008: p. 143). The foundation of the rule that local remedies must be exhausted is represented by the respect for the sovereignty of the respondent or host State. The essence of the claim should be brought before the local judicial bodies and all available and accessible remedies must be exhausted in that they have been pursued as far as is permitted or required by local law so that a final decision is given. This also means that the alien must use the procedures, evidentiary ones especially, which are available to him to support his claim in the process of exhausting remedies and that he fails to exhaust remedies, if the preparation or presentation of his claim at the local level is faulty and results in a wholly or partially unsuccessful resort to remedies. The exhaustion of local remedies represents a general rule of the international law, without having the same character as an absolute and imperative juridical norm. This core rule could be avoid it or derogate from it by states through treaties or, in their absence, in accordance with every concrete situation.

Keywords: Exhausting local remedies; scope of the rule; exceptions or limitations on the rule; waiver of rule (search for similar items in EconPapers)
Date: 2015
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