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The Content of the Duty to Exhaust Local Judicial Remedies

  • David R. Mummery

Extract

The purpose of this paper is to examine certain aspects of the nature and content of the duty, arising in the law of international claims, tot exhaust local remedies. The general rule of exhaustion of local remedies, as set forth in familiar terms in the award of the Commission of Arbitration in the Ambatielos case is as follows:

[The rule] means that the State against which an international action is brought for injuries suffered by private individuals has the right to resist such an action if the persons alleged to have been injured have not first exhausted all the remedies available to them under the municipal law of that State. The defendant State has the right to demand that full advantage shall have been taken of all local remedies …

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1 Grateful acknowledgment is expressed to the Department of External Affairs, Wellington, New Zealand, for leave, and to the United States Educational Foundation in New Zealand and the Law School of Harvard University for assistance, which enabled this paper to be prepared; and to Professor E. E. Baxter for his valued comments and encouragement. The responsibility for the contents is the writer's alone.

2 Ambatielos (Greece v.United Kingdom), Award of the Commission of Arbitration established by the Agreement concluded on Feb. 24, 1955, for the arbitration of the Ambatielos Claim (H.M. Stationery Office, 1956) (hereinafter referred to as ” Award “) . For other references, see note 85 below.

3 Award 27. This statement was cited with approval by the nine-member Arbitral Tribunal for the Agreement on German External Debts, in Swiss Confederation v. Federal Republic of Germany, [1958] Reports of Decisions and Advisory Opinions 3, 22. The rule was recognized in U.N. General Assembly Res. No. 1803 (XVII), Permanent Sovereignty over Natural Resources, par.

4 U.N. General Assembly, 17th Sess., Official Records, Supp. No. 17 (A/5217) (1962); 57 A.J.I.L. 710, 712 (1963). 4 For an example of a remedy which has legislative elements, see Art. 3 of the Iranian Oil Nationalization Act of May 1, 1951, Anglo-Iranian Oil Co. Case—Pleadings, Oral Arguments, and Documents 36 (I.C.J., 1952): The Government is bound to examine the rightful claims of the Government as well as the rightful claims of the Company under the supervision of the Mixed Board [comprising 5 Senators, 5 Deputies and the Minister of Finance] and to submit its suggestions to the two Houses of Parliament in order that the same may be implemented after approval by the two Houses.''

5 See especially Borchard, The Diplomatic Protection of Citizens Abroad, passim (1915); Eagleton, The Responsibility of States in International Law, Ch. V (1928); Freeman, The International Responsibility of States for Denial of Justice, Ch. XV (1938); Cheng, General Principles of Law as Applied by International Courts and Tribunals 177-180, 355 (1953); Wilson, The International Law Standard in Treaties of the United States 71-86 (1953) ; 45 Annuaire, Institut de Droit International 5 (1954, I ) , and 46 Annuaire 265 (1956, I ) ; Bagge, “Intervention on the Ground of Damage Caused to Nationals, with Particular Reference to Exhaustion of Local Remedies and the Eights of Shareholders,” 34 Brit. Yr. Bk. Int. Law 162 (1958); Law, The Local Remedies Rule in International Law (1961); Tammes, “The Obligation to Provide Local Remedies,'’ Volkenrechtelijke Opstellen Aangeboden aan Prof. Dr. Gesina H. J. Van der Molen 152 (1962); Amerasinghe, “ T h e Exhaustion of Procedural Remedies in the Same Court,” 12 Int. and Comp. Law Q. 1285 (1963); Bos, “Les Conditions du Proces en Droit International Public,” 19 Bibliotheea Visseriana 221-237 (1957), and references therein; and other works cited herein.

6 [European] Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, Nov. 4, 1950, Art. 26. See further, note 33 below.

7 Drawn from a developing literature relevant to the sociological approach to law, including international law, the following have been particularly valued for the purposes of this study: Pound, Introduction to the Philosophy of Law (1922); Brierly, The Outlook for International Law (1944), The Basis of Obligation in International Law and Other Papers (1958); Corbett, Law and Society in the Relations of States (1951), The Study of International Law (1955); De Visscher, Theory and Reality in Public International Law (1953, trans. Corbett, 1957); Stone, “Problems Confronting Sociological Enquiries Concerning International Law,” 89 Hague Academy Recueil des Cours 61 (1956); McDougal and Associates, Studies in World Public Order (1960); Northedge, ” Law and Politics between Nations,” 1 International Relations 291 (1957).

8 See, e.g.,per Judge Córdova, Interhandel Case, [1959] I.C.J. Rep. 6, 45 (separate opinion).

9 Borchard, op. cit.note 5 above, at 817, first “ r e a son . “ Borchard's analysis is a useful summary of facets of the rule, but it does not go in any depth into the sociological factors behind it. C/. comment by Amerasinghe, loc. cit. note 5 above, at 1287- 1288.

10 The “ link “ which an individual must possess with the receiving state before he can be required to exhaust local remedies is referred to below, p. 394, at note 30.

11 “I t is a notorious fact of group psychology that outside interference in a conflict inside a closely knit community is resented … “ Eudzinski, “Domestic Jurisdiction in United Nations Practice,” 9 India Quarterly 313, 354 (1953). See also notes 25 and 26 below.

12 A Christian contribution on this subject is to be found in Matthew 18: 15-17, which provides that, before complaining to third persons and the Church about a brother who has done wrong to him, the complainant should go to him and “have it out with him in private” (Rieu trans., 1952), i.e., “exhaust domestic remedies.“ Specifically incorporated into the fundamental law of at least one Christian denomination, the precept in Matthew finds interesting counterpart in rules in other areas, e.g., in the University of Virginia Honor System. University of “Virginia Honor Committee, ” A n Explanation of the Honor System” (M-9 Bev. 6-60), “Procedural Features,“ par. 1. It might well be considered for inclusion in other codes of ethics.

13 The desire for local control over policies and actions is seen in such familiar political phenomena as home rule demands, federal systems, and international regional organizations. Cf. the domestic jurisdiction provision, Art. 2(7), of the United Nations Charter. I t is often said that this provision was designed to ensure respect for member nations' “sovereignty,” as to which see the following note. As to whether the absence of exhaustion of local remedies would be a sufficient ground for applying Art. 2(7), see the discussion on the return of Polish art objects from Canada, General Committee of the General Conference of UNESCO, Gen. Conf. Bee, I I , Vol. 1, pp. 258-262, 315-316 (1947). For a further parallel between the local remedies rule and the domestic jurisdiction principle, see note 84 below.

14 Brierly, The Basis of Obligation in International Law and Other Papers 19 (1958). For the use of the term “sovereignty” as a reason for the local remedies rule, see Rorchard, op. cit. note 5 above, at 817, second “ reason . “ This term merely serves to transfer the discussion of any problem to another plane of abstraction, and it has been the aim in this paper to pierce beyond this expression.

15 The term “ private “ here is, of course, being used in the sense of private to the group, e.g., in the context of international relations, private or domestic to the state, as distinct from inter-state.

16 See Brierly 's illuminating discussion in The Outlook for International Law 46 f. (1944), and op. oil. note 14 above, passim; and see Corbett, The Study of International Law 50-51 (1955).

17 See,e.g.,Mannheim, Systematic Sociology 111 (1958).

18 Assimilating the alien to the position of the national is, needless to say, only one of the defense mechanisms employed by receiving states. In many areas of activity the alien is placed in an inferior position to that of a national. For materials and comments on the broad question of alienage, see Katz and Brewster, International Transactions and Relations, Cases and Materials 8-298 (1960).

19 A State cannot put forward a claim founded on a general rule of law if it is not bound by that same r u l e . “ International Law: The Collected Papers of Sir Cecil Hurst 9 (1950).

20 Freeman,op. cit.note 5 above, at 63-64.

21 International Arbitration from Athens to Locarno 60-61 (1929).

22 Cf.Rorchard,op. cit.note 5 above, at 817-818.

23 See, e.g.,Herz, “Balance System and Balance Policies in a Nuclear and Bipolar Age,” 14 J. Int. Affairs 40-48 (1960), who suggests resort to the International Court of Justice may at times perform this function. See also Janis and Katz, ‘ ‘ The Seduction of Intergroup Hostility: Research Problems and Hypotheses,” 3 J. Conflict Resolution 84, 85 (1959).

24 See Carlston, Law and Structures of Social Action 148 (1956). Cf.Jaffe, Judicial Aspects of Foreign Relations, in Particular of the Becognition of Foreign Powers (Harvard Studies in Administrative Law, Vol. 6, 1933); Fisher, “Bringing Law to Bear on Governments,” 74 Harvard Law Rev. 1130 (1961); Snyder and Robinson, National and International Decision-Making, [Proposed Research] Project No. 27, “The Role of Law and Lawyers in Foreign Policy Decision-Making“ (undated); Appleby, Morality and Administration in Democratic Government 68-99 (1952).

25 See, e.g., Jaffe and Nathanson, Administrative Law, Cases and Materials 880-897 (2d ed., 1961); 3 Davis, Administrative Law Treatise $$ 20.01-20.10 (1958).

26 As to, e.g.,a trade union jmember 's obligation not to resort to a suit at law until all his domestic remedies have* been exhausted, see White v. Kuzych, [1951] A.C. 585 (P.C.); and see Summers, “Disciplinary Procedures of Unions,” 4 Ind. & Lab. Rel. Rev. 15 (1950). As to corporation law, see Escoett v. Aldecress Country Club, 16 N.J. 438, 109 A.2d 277 (1954). As to private associations, see “Developments in the Law— Judicial Control of Actions of Private Associations,” Pt. VIII, “Exhaustion of Association Remedies,” 76 Harvard Law Rev. 983, 1069-1080 (1963).

27 See text, pp. 391-392 above, at notes 11 to 17.

28 See Jaffe and Nathanson,op. cit.note 25 above, at 627-663.

29 As can readily be imagined, this will involve making some assumptions. These are discussed at p. 405 below, text at note 84.

30 See Meron, ‘ ‘ The Incidence of the Rule of Exhaustion of Local Remedies,'’ 35 Brit. Tr. Bk. Int. Law 83 (1959).

31 See Meron, loc. cit.above, pp. 94-101, discussing in particular the case of the Aerial Incident of 27th July, 1955 (Israel v. Bulgaria) (Preliminary Objections), [1959] I.C.J. Rep. 127. Quaere the position when the claimant is a corporation.

32 The issue of whether the local remedies rule is substantive or procedural, and accordingly whether a denial of justice can technically be held to have taken place before local remedies have been exhausted, has given rise to a controversy which, like most controversies, lost much of its value when the original point at issue became obscured. What is the purpose of such a question; what are the social or policy interests involved! The reasons for needing to know when the cause of action actually arose are to determine (a) the jurisdiction ratione temporis of the international tribunal, (b) the date from which interest on damages should be timed to run, and (c) possibly other matters: see, e.g., note 36 below. But these are matters which can be satisfactorily decided in their own right without the need of a general theory about the local remedies rule. On the question of jurisdiction ratione temporis, for example, there are cases which go with some care into the intricate question of when the cause of action should be regarded as having arisen, and take into account the issue of local remedies. Phosphates in Morocco Case (Preliminary Objections), P.C.I.J., Ser. A/B, No. 74 (1938), and Electricity Co. of Sofia and Bulgaria Case (Preliminary Objection), P.C.I.J., Ser. A/B, No. 77 (1939) (the fact that declarations under the optional clause were involved does not diminish the value of these cases for present purposes); and see note 50 below. With or without the help of these cases, the problem of interest reckonings can also be dealt with as an issue in its own right, ease to case, according to the circumstances, with principles crystallizing in the course of time; and so with any other issues. Thus it is possible to avoid in this area the ‘ ‘ semantic morass'’ the substance/procedure dichotomy so often involves. Jessup, Transnational Law 71 (1956). Cf. Fawcett, “The Exhaustion of Local Bemedies: Substance or Procedure?” 31 Brit. Yr. Bk. Int. Law 452 (1954), and authorities there cited. As to the relationship of the local remedies rule and the concept of denial of justice, see Part IV below.

33 This Commission is empowered under the [European] Convention for the Protection of Human Eights and Fundamental Freedoms (Rome, Nov. 4, 1950) to receive petitions from persons claiming to have been deprived by a state party of any of the rights set forth in the Convention (Art. 25), and to examine such petitions and place itself at the disposal of the parties concerned with a view to securing a friendly settlement (Art. 28). The Commission may only deal with the matter “after all domestic remedies have been exhausted, according to the generally recognised rules of international law“ (Art. 26). Although the standard rule of international law is thus imported, the typical situation with which the Commission has had to deal has been the case of a citizen complaining about a denial to him of human rights in his own country. Thus i t is important in reading the Commission's decisions to watch for the entry of policy considerations different from those of the traditional international rule.

34 Nielsen v.Government of Denmark, [1958-1959] Yearbook of the European Convention on Human Bights 412, 440 (1959) (hereinafter cited as European Yearbook of Human Eights) (case noted further below, note 50).

35 This seems to be the significance of the expression ‘ ‘ in principle'’ appearing in the above quotation. What constitutes “effective and sufficient” means of redress will be discussed in following paragraphs.

36 Including those which derive from the fact that the domestic court may be competent to apply international law in its decisions when necessary. See Interhandel Case, [1959] I.C.J. Eep. 6, 28, and, on this general subject, Masters, International Law in National Courts (1932); for recent studies, Erades and Gould, The Eelation Between International Law and Municipal Law in The Netherlands and in the United States (1961); Seidl-Hohenveldern, “Transformation or Adoption of International Law into Municipal Law,” 12 Int. and Comp. Law Q. 88 (1963). Quaere whether domestic courts competent to apply international law should not apply the local remedies rule itself in appropriate cases; cf. the cases cited below, note 53 (based on treaty provisions), and Banco National de Cuba v. Sabbatino, 307 F. 2d 845 (2d Cir., 1962), where the applicability of the local remedies rule does not seem to have been traversed, probably because of the unlikely availability of such remedies. It is submitted that this question can be decided without need of a general theory of the nature of the local remedies rule: cf. note 32 above.

37 [1958-1959] European Yearbook of Human Eights 308 (1958) (application held admissible); Commission reported the detention not contrary to the Convention, due to Ireland's right to derogate from it during a state of emergency, [1960] ibid. 476 (1959); report referred by Commission to European Court of Human Eights, ibid. 492 (1960) (preliminary objections and questions of procedure); report upheld, [1961] ibid. 438; further application to Commission dismissed, ibid. 302. See Robertson, “Lawless v. Government of Ireland (Second Phase) , “ 37 Brit. Yr. Bk. Int. Law 536 (1961).

38 P.C.I.J., Ser. A/B, No. 76 (1939).

39 P.C.I.J., Ser. A/B, No. 76, p. 19 (1939);

40 Lithuanian Code of Civil Procedure, Art. 1. P.C.I.J., Ser. C, No. 86, pp. 42-48, 143- 169 (1938-1939). See also Art. 2: “Private persons … whose legal rights … are infringed by decisions of administrative institutes or persons may bring an action in the courts.” Ibid, at 154; P.C.I.J., Ser. A/B, No. 76, p. 18 (translation the Court's).

41 P.C.I.J., Ser. A/B, No. 76, pp. 18, 19.

42 Ibid,at 19

43 Ibid,at 21.

44 For another discussion of the effect of a contrary jurisprudence constante,see S.S. Lisman (United States v. Great Britain), Award under Exchange of Notes dated May 19, 1927, between the United States and Great Britain for the Disposal of Certain Pecuniary Claims arising out of the Becent War; 3 Int. Arb. Awards 1767 (1937).

45 Judge Erich, though dissenting as to the result, made this point forcefully by observing that, had the matter been referred to the Lithuanian courts themselves, they would have been “assez embarrassés.” P.C.I.J., Ser. A/B, No. 76, p. 53.

46 The difficulties of interpreting domestic legislationin vacuo, i.e.,without knowing how the legislation has been applied in practice, is stressed as one of the hazards of comparative law by Schlesinger, Comparative Law 491-497 (2d ed., 1959). This is also a problem constantly faced by the International Labor Organization in examining member states’ compliance with its conventions. Jenks, The International Protection of Trade Union Freedom 148 (1957).

47 Series A/B, No.76, p.19; cf.Ambatielos Award 27, and Norwegian Loans Case, per Sir Hersch Lauterpacht, [1957] I.C.J. Rep. 9, 39 (separate opinion).

48 De Becker v.Government of Belgium, [1958-1959] European Yearbook of Human Eights 214, 236 (1958) (application to European Commission held admissible); for details and subsequent developments, see note 73 below.

49 Ambatielos Award 27.

50 The approach adopted in an earlier decision was to draw a distinction between processes which constituted a “regular legal remedy” and those which did not, i.e., which constituted an “extraordinary” remedy. Salem (United States v. Egypt), Award of Arbitral Tribunal under Protocol of Jan. 20, 1931, 2 Int. Arb. Awards 1161 (1932) (recours en requete civile). This approach has been repudiated in favor of the claima n t ‘ s being required to have recourse to all remedies available “within the framework of … [the respondent state's] domestic legal system.” Nielsen v. Government of Denmark, [1958-1959] European Yearbook of Human Bights 412 (1959), citing Interhandel Case, [1959] I.C.J. Rep. 6, 27 (Danish Special Court of Bevision, appointed by King to reconsider certain criminal cases, held local remedy under rule, hence, for purposes of Commission's jurisdiction, time did not run until this remedy was exhausted); see also Electricity Co. of Sofia and Bulgaria Case (Preliminary Objection), P.C.I.J., Ser. A/B, No. 77 (1939); and cf. note 4 above. For further proceedings in Nielsen ease, see report of Commission, [1961] European Yearbook of Human Bights 490 (no violation of Convention); affirmed by Committee of Ministers of Council of Europe, Res. 61 (28), ibid. 590.

51 Finland v.Great Britain, Decision under the Agreement dated Sept. 30, 1932, for the submission to Arbitration of a Question connected with a Claim in respect of Certain Finnish Vessels used during the War (H.M. Stationery Office) (hereinafter referred to as “ Award “ ) ; 3 Int. Arb. Awards 1479 (1934).

52 For the decision, see League of Nations Doc. C.519.M.218.1931.VII, pp. 16-18 (1931).

53 Finland had contended that the test should be “ f u t i l e , “ Britain, “obviously futile . “ The arbitrator said: ” … a certain strictness … appears justified by the opinion expressed by Borchard [op. cit. note 5 above] when mentioning the rule applied in the prize cases. Borchard says [pp. 823-824] … : ‘ I n a few prize cases, it has been held that in face of a uniform course of decisions in the highest courts a reversal of the condemnation being hopeless, an appeal was excused; but this rule was most strictly construed, and if substantial right of appeal existed, failure to prosecute an appeal operated as a bar to r e l i e f . ‘ “ Award 27-28; 3 Int. Arb. Awards 1479, 1504. Borchard's authorities for these statements were: (1) Kane's notes on Commission of July 4, 1831, between United States and France (1836), 5 Moore, International Arbitrations to Which the United States Has Been a ‘ P a r t y 4472, 4473 (1898); Bark Jones (United States v. Great Britain), Commission under the Convention between the United States and Great Britain of Feb. 8, 1853, 3 Moore, op. cit. at 3046; (2) Schooner Peggy, 1 Cranch 103 (1801) (French ship which had received a “ final“ condemnation in an inferior American court of admiralty held not to have been “definitively condemned” within the meaning of a French-American treaty, inasmuch as a right of appeal existed and had been claimed); Ship Tom, 29 Ct. CI. 68 (1894) (findings in Schooner Peggy discussed obiter), aff'd. on rehearing, 39 Ct. CI. 290 (1904); Brig Freemason, 45 Ct. CI. 555 (1910). Begarding Borchard's reference to a contrary course of decisions, cf. note 44 above.

54 Ambatielos award,loc. cit.note 2 above.

55 Award 29; 3 Int. Arb. Awards 1479, 1505.

56 Including several decided cases, Halsbury's Laws of England, and the Annual County Court Practice.

57 Award 29-82; 3 Int. Arb. Awards 1479, 1505-1550. For another example of an arbitrator willing to make a close examination of domestic law foreign to him—again English law, this time to see whether a denial of justice had occurred—see dissenting opinion of Professor Spiropoulos in the Ambatielos arbitration, Award 36-42.

58 The Development of International Law by the International Court 101 (1958).

59 lbid.at 91.

60 See Award 10; 3 Int. Arb. Awards 1479, 1489-1490. The arbitration resulted from the recommendations of a Committee of the Council of the League of Nations, Finland having submitted the dispute to the Council under Art. 11(2) of the League Covenant. The Committee recommended that two questions should be examined: the first of these was accordingly submitted to arbitration, viz., “Have the Finnish shipowners, or have they not, exhausted the means of recourse placed at their disposal by British law!“

61 Award 10; 3 Int. Arb. Awards 1479, 1490. For the specific formulation of the issue, see previous footnote.

62 P.C.I.J., Ser. A/B, No. 76, p. 48 (1939) (dissenting opinion).

63 [1957] I.C.J. Rep. 9, 39 (separate opinion). Cf.a similar observation in Lauterpacht, op. cit.note 58 above, at 350. Cf.also Judge Armand-Ugon in the Interhandel Case, [1959] I.C.J. Rep. 6, 87 (dissenting opinion).

64 The meaning of “satisfactory reparation” will be discussed below, Sec. 2.

65 See Levi, An Introduction to Legal Reasoning 8-27 (1948).

66 The concept of reasonableness was also applied in the Ambatielos arbitration: see below, Part III. The importance of considering surrounding circumstances raises the issue of whether and when a plea of non-exhaustion should properly be joined to the merits. See the opinion of Judge Hudson in the Railway Case, P.C.I.J., Ser. A/B, No. 76, p. 48 (1939); also Anglo-Iranian Oil Co. Case (Preliminary Objection), [1952] I.C.J. Eep. 93; Ambatielos Case (Merits: Obligation to Arbitrate), [1953] I.C.J. Rep. 10; Interhandel Case, [1959] I.C.J. Eep. 6; Law, op. cit. note 5 above, at 45 f.

67 Ambatielos Award 27.

68 Garcia Amador, “International Responsibility: Third Report,” [1958] 2 Yearbook of the International Law Commission 55 (Doc. A/CN.4/111).

69 The cases dealing specifically with reparation for international delinquencies will presumably be relevant to this aspect of an “effective remedy” within the meaning of the local remedies rule. Cf. text p. 414 below, at note 119.

70 That is, in time of war: the rates were deliberately fixed, Finland contended, to exclude the effect of war upon current rates of hire. Britain contended that the rates were the result of agreement between the Admiralty and the shipowners, were considered to be fair market rates, and were increased from time to time as the cost of operating steamships increased. Award 18; 3 Int. Arb. Awards 1479, 1496.

71 The arbitrator was not entirely specific. He found, “upon the reasons brought forward by the British Government,” that the compensation which could have been awarded “does not fall short of what has been meant by the term adequate being used in connection with the term effective remedy.” Britain's “ reasons “ were that the redress available (a) was “ s u b s t a n t i a l , “ and therefore satisfied the local remedies rule, since the rule merely required substantial redress; or, alternatively, (b) in fact constituted complete redress if the rule required complete redress. Award 18-19; 3 Int. Arb. Awards 1479, 1496-1497. The arbitrator did not indicate on which leg of the argument he based his decision.

72 Award 19; 3 I n t . Arb. Awards 1479, 1497.

73 In De Becker v.Government of Belgium, [1958-1959] European Yearbook of Human Eights 214 (1958), the applicant had been deprived of civil rights and sentenced to death for collaborating with the German authorities during the war. The death sentence was commuted to seventeen years’ imprisonment, and he was released in 1951 on condition that he would live abroad. One of the local remedies considered by the European Commission under the local remedies rule (on a complaint that the deprivation of civil rights contravened the Convention) was one which would have become available five years after his definitive release, i.e., in 1978; this the Commission held to be ineffective. For subsequent proceedings before the Europan Court see [1960] ibid. 486; [1961] ibid. 436. And see note 48 above.

74 The M.S. Perry, 3 Moore, op. cit.note 53 above, at 3158 (1872) (case hurried through court so rapidly that the claimant, residing in another country, had no opportunity to interpose any plea); cf. The Matamoras, ibid, at 3159 (1872).

75 El Oro Mining & Ry. Co. Ltd. (Great Britain v.Mexico), Further Decisions and Opinions of the Comm'rs in accordance with the Conventions of Nov. 19, 1926, and Dec. 5, 1930, between Great Britain- and the United Mexican States Subsequent to Feb. 15, 1930, p. 141; 5 Int. Arb. Awards 191 (1931).

76 Loc.cit.at 150; 5 Int. Arb. Awards at 198.

77 Ibid.Cf.the dissenting opinion of the Mexican Commissioner, ibid,at 150, 5 Int. Arb. Awards at 199. Cf. Interoceanic By. of Mexico (Great Britain v. Mexico), ibid. at 118, 5 Int. Arb. Awards 178 (1930) (court, dealing with claims to over 77 million pesos Mexican gold, could not be blamed for not rendering decision in nineteen months). In the Interhandel Case, [1959] I.C.J. Rep. 6, the Court gave no weight to the fact that in nine years little progress had been made on the merits of Interhandel's case in the United States courts; part of the delay, i t appears, stemmed from Interhandel's inability to produce all of the many documents called for. Judge Armand-Ugon raised the issue, [1959] I.C.J. Eep. 6, 89 (dissenting opinion), citing Prince von Pless Administration Case, P.C.I.J., Ser. A/B, No. 52, p. 11 (1933).

78 Robert B. Brown (United States v.Great Britain), American and British Claims Arbitration under the Special Agreement concluded between the United States and Great Britain, Aug. 18, 1910, Report of Fred K. Nielsen, p. 187; 6 Int. Arb. Awards 120 (1923).

79 Loc. cit.at 198; 6 Int. Arb. Awards at 129.

80 [1958-1959] European Yearbook of Human Eights 354 (1959).

81 Ibid,at 374-376 (application declared inadmissible, but to be treated as part of proceedings if new application filed when appeal remedies exhausted); aff'd., [1961] European Yearbook of Human Rights 198 (new application filed after local remedies pursued further, Sweden having granted applicant entrance in order to appear in court in person; held, no violation of Convention). For earlier rejected application, see [1955-1957] ibid. 211.

82 For a survey of the essential elements in this area in modern civil-law countries, see Schlesinger, op. tit. note 46 above, at 201-234.

83 As to the burden of proof in regard to the local remedies rule, see Norwegian Loans Case, [1957] I.C.J. Rep. 9, 39, per Sir Hersch Lauterpacht (separate opinion); Law, op. tit. note 5 above, at 54-61.

84 Award 24; 3 Int. Arb. Awards 1479, 1502. The arbitrator held that, in order to test the effectiveness and exhaustion of local remedies, these contentions and propositions should be assumed to be well founded, if they were “reasonably arguable,” i.e., not “manifestly absurd.” This assumption made, the international tribunal should consider whether the domestic tribunal was competent to give a remedy in a case of this sort. Note that the international tribunal is not thus required to determine what the domestic tribunal would or should have decided in actuality on the merits of the case, but merely whether the tribunal could have decided, i.e., was competent, to award a remedy, assuming the case were meritorious. For a discussion, see Ambatielos arbitration, United Kingdom Counter-Case 47 (1955)

85 Loc. cit.note 2 above. For prior proceedings between Greece and Britain, see Ambatielos Case (Jurisdiction), [1952] I.C.J. Eep. 28 (Court held it had jurisdiction to declare whether Britain was obligated to arbitrate); Ambatielos Case (Merits: Obligation to Arbitrate), [1953] I.C.J. Rep. 10 (Britain held obligated). For bibliography on these stages and the arbitral stage, see Syatauw, Decisions of the International Court of Justice: A Digest 65 (1962).

86 Award 24-25.

87 Board of Tradev.Ambatielos, 14 Lloyd's List L.E. 387, 388, 389 (1923).

88 Per Bankes, L.J.,ibid.387,389.

89 Award 20-26. The Commission's discussion of this crucial point is hardly satisfactory; little is offered in support of their view that this conclusion accorded with the true state of English law.

90 Award 26.

91 It is noteworthy that Judge Bagge, the Arbitrator in the Finnish Vessels case, was a member of the Commission in the Ambatielos case.

92 If it be not found under a specific treaty provision, e.g., as in the European Commission on Human rights, note 33 above, the general concept of denial of justice at customary international law will be available. Cf. note 111 below.

93 The distinction the Commission is creating, albeit unwittingly, appears similar to that posed in conflict of laws cases, i.e., classification as between process (procedure) and facts (substance). It is not surprising that the international tribunal, appraising as it is here the decision of a municipal court, should come up against issues similar to those faced by a municipal court engaged in appraising the decisions of another state's municipal court. Cf. Inglis, Conflict of Laws 44-45 (1959).

94 Award 28. This section of the award is adopted verbatim from the United Kingdom Counter-Case, at 37 (1955).

95 Award 28

96 Award 29-30. It would not, of course, have been appropriate for the Commission to have regarded the actual argument about essentiality as a contention of fact or a proposition of law for the purpose of the rule enunciated in the Finnish Vessels case, note 84 above. This rule, Judge Bagge had indicated, applied only to the respondent government's alleged “initial breach of international law,” i.e., not to contentions relating to the nature of the remedies available under the law of the respondent state (he avoided drawing a distinction between substance and procedure: of. notes 32 and 93 above). Otherwise the claimant government's contentions that local remedies were ineffective would have to be accepted without scrutiny, which is absurd. See Fachiri, “The Local Eemedies Eule in the Light of the Finnish Ships Arbitration,” 17 Brit. Yr. Bk. Int. Law 19, 35 (note 1) (1936). As to estoppel in international law, see Bowett, “Estoppel before International Tribunals and Its Relation to Acquiescence,“ 33 ibid. 176 (1957).

97 Award 37.

98 Award 41.

99 Notes 62 and 63 above. M. Spiropoulos appears to have been unaware of Judge Hudson's observations, and to have considered himself as breaking new ground with regard to the reasonableness approach. Award 37.

100 Award 37.

101 Award 37-38.

102 For the other extreme, see the individual opinion of Dr. Alfaro, Award 33-35. He arrived at the same conclusion as the majority by holding that the concept of essentiality applied only to procedural facilities generically; i.e., it was enough that a claimant should have called some evidence, it being at his discretion to decide specifically what evidence. But this approach could result in claimant's making a mere formality out of the process of exhaustion of local remedies.

103 Cf.Amerasinghe, loc. cit.note 5 above, at 1302-1304.

104 Haycock, The Argonaut (Great Britainv.United States), 3 Moore, op. cit.note 53 above, at 3157 (1871).

105 In other words, counsel is not part of the local “remedy” and subject to the test of effectiveness in the same way as is the process supplied by the state; this, however, might be the case if the only counsel available were those supplied by the state.

106 Opinion of J. D. Harding to Earl of Clarendon, dated June 16, 1853. 2 McNair, International Law Opinions 317 (1956).

107 it may not have been different, however: see Award 24-25.

108 Text, p. 400 above, at notes 62 and 63.

109 It is to be noted that, in providing also for “propositions of law” as well as contentions of fact, the Finnish Vessels test (note 84 above) is more broadly phrased than the Ambatielos test, which on the face of it appears not to provide for the problem of arguments of law.

110 Borchard,op. cit.note 5 above, at 330.

111 I.e.,that which refers not merely to the judicial branch of government but to the executive and legislative branches as well. See Borchard, ibid. As to the breadth of the local remedies rule across the three main branches of government, see p. 389 above, text at note 4.

112 The area of international law entitled ‘ ‘ state responsibility'’ is thus broadly correlative to that area of domestic law variously entitled governmental liability, Crown proceedings, droit administratif, etc., areas which are linked with both public law (e.g., administrative law) and private law (e.g., the law of tort liability), an important distinction in the latter case being that, whereas for example the common law possesses a law of torts, rather than a law of tort, ‘’ international tort law,” as it is sometimes called, possesses only one cause of action, one tort, i.e., the all-embracing concept of denial of justice which has to do duty over a wide range of conditions and circumstances. At the same time, as has been suggested above, p. 393, text at note 24, “international tort law'’ may justly be regarded as an aspect of what may be called international administrative law. For a recognition of the ever-increasing interrelation between public and private law concepts in international as well as domestic law, and the use of administrative law concepts in international law, see Friedmann, , “The Uses of ‘General Principles’ in the Development of International Law,” 57 A.J.I.L. 279, 281 283, 290-295 (1963). Cf. note 119 below.

113 It is not meant to imply here that there will not continue to be considerable difficulty in distinguishing and relating the two rules, so closely are they intertwined in many situations. Says Eagleton, op. cit. note 5 above, at 113: “The two rules are interlocking and inseparable.” Of. Freeman, op. cit. note 5 above, at 410: “ T h e rule [of local remedies], in sum, is an imperative which interacts with the concept of denial of justice to form the basis of most international claims.” (Emphasis added.) This, it is submitted, is the more accurate analysis. See note 117 below.

114 Each rule is also naturally concerned in a secondary way with the opposite, countervailing aspect: the denial of justice rule, with what the claimant did or failed to do, to his own detriment, thus contributing to the damage; the local remedies rule, as has been seen, with what the respondent state did or failed to do, i.e., provided or failed to provide, to the detriment of the claimant, thus failing to give an effective remedy.

115 Award 23-24; 3 Int. Arb. Awards 1479, 1501.

116 ” [ E ] ejection of a meritorious claim by a British Court does not in itself under international law create any liability for the British Government.” Award 24; 3 Int. Arb. Awards 1479, 1501. Of course, exhaustion of local remedies without a technical denial of justice may serve the valuable function of confirming the territorial government's liability for a denial of justice in the larger sense, i.e., by establishing that there is to be no redress for an act or omission which has already taken place. In the Finnish Vessels case, however, the arbitrator was not authorized to examine whether there existed the ingredients of an injury. The local remedies rule was thus in this arbitration isolated in an unusual way from the elements that normally accompany it, enabling the arbitrator to give particularly close scrutiny to the rule and to the assumptions which it involves.

117 Eagleton, op. tit.note 5 above, at 113; cf.Briggs, The Law of Nations 648 (2d ed., 1952): “international law … ordinarily requires the exhaustion of local remedies with a consequent denial of justice “ ; cited in Shea, The Calvo Clause 116 (1955). Borchard, op. cit. note 5 above, at 332, 818, also appears to be saying this. Cf. to the contrary, Freeman, op. cit. note 5 above, at 406.

118 For a useful survey of references to the theoretical discussion of this question, see Briggs, op. cit. at 617-618. Cf. Dunn, The Protection of Nationals 191 (1932).

119 E.g.,cases on bias, delay, etc. In addition, it is likely that much value will be derived from the cases in the field of conflict of laws on the recognition and enforcement of foreign judgments, especially those cases which establish principles in the area of fraud and natural justice. See, e.g., Katz and Brewster, op. cit. note 18 above, at 485-492. The interrelationship of the law discussed in this paper with these areas of private international law is an indication of the need perceived by these authors, along with Jessup, op. cit. note 32 above, and others, to lower the intellectual barriers between public and private international law. Cf. note 112 above.

The Content of the Duty to Exhaust Local Judicial Remedies

  • David R. Mummery

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