Academic literature on the topic 'Rule of exhaustion of local remedies'

AbstractIn the context of the responsibility of international organisations the duty to exhaust local remedies shall apply as a modified exhaustion of the internal remedies rule. Thereby, international organisations, like states, can avail themselves of the opportunity to rectify the behaviour of their organs by their own means. Against the backdrop of the raison d'être of international organisations, internal remedies do not necessarily have to meet the same stringent requirements as local remedies within states but must provide comparable legal redress. In order to render a claim against an international organisation admissible, such internal remedies have to be invoked beforehand. In toto, such an approach might serve as an incentive for international organisations to enhance means of legal review and promote legal protection of individuals against acts of international organisations that do today exercise state-like jurisdiction in an incremental number of instances.

Art. 295 of the UN Convention on the Law of the Sea (unclos) embodies the rule of prior exhaustion of local remedies by making a renvoi to cases where the application of the rule is required by international law. In the practice of the International Tribunal for the Law of Sea (itlos) and Annex vii Tribunals, States continuously raise preliminary objections based on Art. 295. However, such tribunals have never found the local remedies rule applicable. In this paper, it is argued that the approach taken by unclos Tribunals towards the applicability of the local remedies rule is not persuasive since, absent proper reasoning, it fails to align with – or expressly depart from – what appears to be the present state of international law on the topic. Furthermore, the above practice undermines the effectiveness of Art. 295 and calls into question the actual relevance of the local remedies rule within unclos disputes. In the present article the approach followed by unclos Tribunals with respect to the applicability of the local remedies rule is assessed against a reconsideration of the issue of mixed claims and the specific regime set forth in the Law of the Sea Convention. In the concluding section the approach taken in unclos Tribunals’ case law is considered in light of recent criticisms pointing out the current improper expansion of the jurisdiction under unclos Part xv.

The rule of exhaustion of domestic remedies applies in the process of diplomatic protection. It is justified by the practical and political reasons, in order to avoid big number of claims at the international level. The individual, whose right has been violated, must have the opportunity to seek protection against the violation of international law, or to use the legal remedy, which relates to the questions of international law, but gives substantial compensation for the damage the claimant is complaining of. The rule on exhaustion of local remedies has its origins in the ancient times in the cases of reprisals and it receives its relatively clear limits in the 12th and 13th century, when it is invoked in solving the claims between the merchants and other cities. This practice has been present in the following centuries and with the strengthening of national states, reprisals were regulated by international agreements between states and they were allowed only when the plaintiff did not receive redress, or some unjustified delay in the procedure occurred. The legal doctrine, for example Hugo Grotius and Vattel agreed on this issue and supported the related practice. In the 19th and 20th century practice of the states has been intensified concerning this issue and it presents one of the conditions for the diplomatic protection before international courts and arbitrations. This tendency continues today and the rule on exhaustion of local remedies has its place in the area of protection of aliens and human rights.

Abstract The present article describes the arbitral proceedings in the investment dispute between Italy and Cuba, with special regard for the Final Award rendered in 2008. The arbitration has raised a number of interesting issues in the application of customary international law, including the admissibility of claims in diplomatic protection in investment disputes under a BIT, the application of the rule on the exhaustion of local remedies, the attribution of acts of State-owned enterprises to the State and the use of general international law as a means to interpret treaty provisions defining the scope of the BIT. Some of these aspects have proved particularly controversial, as shown by the thorough dissenting opinion attached by arbitrator Tanzi, and they are critically analysed. The arbitration confirms the profound interdependence of bilateral treaties and customary international law in international investment arbitration.

INTRODUCTION. Over the past decade, the International Court of Justice has been requested to adjudicate on claims under 1965 Convention against Racial Discrimination (CERD). While adjudication under treaty compromissory clauses is not uncommon, the Court’s jurisdiction under CERD is subject to conditions that are not replicated under other multilateral treaties. Therefore, the Court’s use of compromissory clause under CERD raises complex issues of treaty interpretation as well as of the Court’s compliance with consensually established limits of its own authority.MATERIALS AND METHODS. The article proceeds to examine the Court’s application of jurisdictional clause under Article 22 CERD in the case of Ukraine v Russia from the positivist legal perspective. It assesses the Court’s use of treaty interpretation methods relating to the text and context of Article 22, as well as CERD’s object and purpose. After assessing the Court’s analysis of its jurisdiction, the article proceeds to examine the Court’s use of the rule on exhaustion of local remedies which is one the condition of the admissibility of claims in cases relating to treatment of individual and their groups.RESEARCH RESULTS. The article demonstrates that the Court’s interpretation of Article 22 CERD does not accurately identify the meaning of this provision, especially the meaning of the word “or” contained in it. As a consequence, the Court ends up asserting jurisdiction in the case before the Committee established under CERD has dealt with it. Moreover, the Court concludes that the victims of alleged racial discrimination do not have to exhaust local remedies. This conclusion places the Court at odds with previous jurisprudence of all major international tribunals.DISCUSSION AND CONCLUSIONS. It becomes clear that the Court has asserted jurisdiction over the case even though CERD provisions did not confer that jurisdiction to it, and that local remedies were not exhausted anyway. As this face forms one rather small part of overall Russia-Ukraine relations, a temptation could obviously arise to justify the Court’s flawed legal reasoning by considerations of ethics, politics, ideology or justice. However, positivist legal reasoning requires maintaining that the Court operates on the basis of State consent, and any neglect for that fact risks negative consequences for the overall efficiency of international adjudication.