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This page intentionally left blank
Local Remedies in International Law
Second Edition

This work examines the local remedies rule historically and

particularly in modern international law. Not only is the customary
international law discussed but the application, inter alia, of the rule
conventionally to human rights protection and generally to
international organizations is also covered. It is as comprehensive a
treatment on the subject as can be. The law is dealt with in the light
of State practice and the jurisprudence of international courts and
tribunals. The author not only examines the jurisprudential basis of
the rule and its established aspects but ventures into some important
areas, such as the incidence of the rule, the limitations on its
application, the burden of proof and the relevance of the rule to
procedural remedies, in which the law is not so clear. The work also
concerns itself with the interests of the international community and
the interests of justice in relation to the rule. While there is a strict
adherence to the requirements of juristic exposition and analysis,
where the law has been more or less determined, the author does not
hesitate to offer criticism and to make suggestions for the
improvement of the law in the light of modern policy considerations.
The work takes into account the recent reports of the International
Law Commission which have not hitherto been examined in relation
to the rule.
The second edition is a considerably expanded version of the first.
There is not only updating and additional material, but additional
subjects, such as State contracts and bilateral investment treaties, are
included.

Chittharanjan Felix Amerasinghe was formerly Judge of the UN

Tribunal in New York, and of the Commonwealth International
Tribunal in London. He was also Professor of Law and later Honorary
Professor of Law at the University of Ceylon, Colombo. He was
Director of the Secretariat and Registrar of the World Bank Tribunal
in Washington, and is currently a member of the Institut de Droit
International. He has advised governments on international law and
has written extensively on the subject.
cambridge studies in international and comparative law

Established in 1946, this series produces high quality scholarship in the fields of
public and private international law and comparative law. Although these are dis-
tinct legal sub-disciplines, developments since 1946 confirm their interrelation.
Comparative law is increasingly used as a tool in the making of law at na-
tional, regional and international levels. Private international law is now often
affected by international conventions, and the issues faced by classical conflicts
rules are frequently dealt with by substantive harmonisation of law under in-
ternational auspices. Mixed international arbitrations, especially those involving
state economic activity, raise mixed questions of public and private international
law, while in many fields (such as the protection of human rights and democratic
standards, investment guarantees and international criminal law) international
and national systems interact. National constitutional arrangements relating to
‘foreign affairs’, and to the implementation of international norms, are a focus
of attention.
Professor Sir Robert Jennings edited the series from 1981. Following his re-
tirement as General Editor, an editorial board has been created and Cambridge
University Press has recommitted itself to the series, affirming its broad scope.
The Board welcomes works of a theoretical or interdisciplinary character, and
those focusing on new approaches to international or comparative law or con-
flicts of law. Studies of particular institutions or problems are equally welcome,
as are translations of the best work published in other languages.

General Editors James Crawford SC FBA

Whewell Professor of International Law, Faculty of Law, and
Director, Lauterpacht Research Centre for International Law,
University of Cambridge
John S. Bell FBA
Professor of Law, Faculty of Law, University of Cambridge

Editorial Board Professor Hilary Charlesworth University of Adelaide

Professor Lori Damrosch Columbia University Law School
Professor John Dugard Universiteit Leiden
Professor Mary-Ann Glendon Harvard Law School
Professor Christopher Greenwood London School of Economics
Professor David Johnston University of Edinburgh
Professor Hein Kötz Max-Planck-Institut, Hamburg
Professor Donald McRae University of Ottawa
Professor Onuma Yasuaki University of Tokyo
Professor Reinhard Zimmermann Universität Regensburg

Advisory Committee Professor D. W. Bowett QC

Judge Rosalyn Higgins QC
Professor Sir Robert Jennings QC
Professor J. A. Jolowicz QC
Professor Sir Elihu Lauterpacht CBE QC
Professor Kurt Lipstein
Judge Stephen Schwebel

A list of books in the series can be found at the end of this volume.
Local Remedies in International Law
Second Edition

Chittharanjan Felix Amerasinghe

cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521828994

© Cambridge University Press 1990, 2004, 2005

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2004

isbn-13 978-0-511-16573-3 eBook (NetLibrary)

isbn-10 0-511-16573-0 eBook (NetLibrary)

isbn-13 978-0-521-82899-4 hardback

isbn-10 0-521-82899-6 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
 Contents

Preface page xiii

Table of cases xv
List of abbreviations xxix

Part I Prolegomena
1 Introduction 3
The subject 3
Scheme and method 13
2 The evolution of the law relating to local remedies 22
3 Basis of the rule 43
The basis of diplomatic protection 43
The interests of the state of nationality 48
The interests of the defendant state, competing national
states and entities other than the injured alien 49
The interests and position of the injured alien 52
Choices among competing interests and essentials 53
The interests behind the rule of local remedies 56
The interest of the host or respondent state 59
The interest of the alien 61
The interest of the alien’s national state 61
The interest of the international community 61
Choices among competing interests 62
The rule in human rights protection 64
The context of human rights protection 68
The basis of the local remedies rule in human rights
protection 71
The formulation of the rule in human rights instruments 74

vii
viii contents

Trends in the application of theory in human rights

protection as related to diplomatic protection 77

4 The rule, denial of justice and violation of

international law 84
Meaning of the concept 84
Incidence and relevance of the original injury 92
Need to exhaust remedies 97
International responsibility and violation of
international law 102
Conclusion: some basic principles 104
5 Contracts, violation of international law, denial of
justice and the rule 107
The earlier authorities 108
State practice 108
International treaty practice 110
International decisions 114
Text writers 120
Functional considerations 124
The business context 124
The international legal system 125
The delictual analogy 125
Deductions 126
Exceptional circumstances giving rise to a violation of
international law 126
Later developments 127
Choice of law 128
Choice of jurisdictional forum 131
The relationship between jurisdiction and the choice of
the proper law of the contract 135
Transnational law and breach of contract 136
Conclusion 137
The effect of referring alien--state contract claims to
an international jurisdiction 139

Part II Application of the rule

6 Incidence of the rule 145
The direct injury 146
The existence of the ‘direct injury’ exclusion 146
The definition of ‘direct injury’ 151
 contents ix

Jurisdictional connection 168

The authorities 169
The criterion of the location of the wrong 173

7 Scope of the rule 179

The requirement of availability of remedies 181
Ordinary and extraordinary remedies: the
requirement of legal nature 182
The rationale for the applicable principle in regard to the
nature of remedies 188
The requirement of adequate and effective remedies 189
The concept of normal use 192
The raising of substantive issues 195
Persons obligated to observe the rule 197
The need for a final decision 198
8 Limitations on the rule 200
The unavailability and inaccessibility of remedies 203
The ineffectiveness of remedies 204
Undue delay 210
Repetition of injury or likelihood of further damage 212
Other possible exceptional circumstances 213
Circumstances not limiting the operation of the rule 214
9 The rule as applied to the use of procedural
resources 216
Procedures that are obligatory under the local law 219
Procedures that are not obligatory but discretionary
under the local law 223
Verification of the effectiveness of the remedy 233
The time in respect of which the two principles must
be applied 238
Obstruction by the respondent state 240
General conclusions 245
10 Waiver of the rule and estoppel 247
Express waiver 247
Implied waiver 250
The optional clause 252
Submission by states to international adjudication
or arbitration 252
The issue of arbitrability 255
x contents

Non-inter-state arbitration agreements between states and

private parties 256
Failure to raise preliminary objection 265
Request for a declaratory judgment 265
Conciliation proceedings 267
Waiver and investment treaties 267
The principles of estoppel and good faith 276

11 Burden of proof 280

General principles in customary international law 280
Burden of proof in regard to the exhaustion of
local remedies 285

12 Procedural matters connected with the rule 293

The time for raising the objection based on the rule 293
The time of decision on the objection based on
the rule 295
Joinder to the merits 296
The time at which remedies must be exhausted 298

Part III Peripheral and analogous applications of the rule

13 The rule and human rights protection 303
The direct injury 305
Jurisdictional connection 310
Scope of the rule 312
Availability and accessibility 312
Ordinary and extraordinary remedies 313
Effectiveness and adequacy 316
Normal use 318
Raising of substantive issues 319
Need for a final decision 322
Limitations on the rule 325
Unavailability or inaccessibility of remedies 325
Inefficacy 335
Undue delay 339
Repetition of injury or likelihood of further damage 341
Limitations applied in human rights protection 341
The prevailing condition 341
Legislative measures and administrative practices 342
The continuing situation 344
Some non-limiting circumstances 345
 contents xi

Use of procedural resources 346

Waiver 347
Express waiver 347
Implied waiver 348
Estoppel and good faith 349
The burden of proof 350
The European Convention on Human Rights 351
The American Convention on Human Rights 354
The Human Rights Committee 355
Matters connected with procedure 356
The time at which remedies must be exhausted 356
The time for raising the objection 357
The time of decision on the objection 358
Joinder to the merits 359
The six-months rule 362
14 The rule and international organizations 366
Claims by international organizations against
states 367
Claims against international organizations 371
Claims by staff members against international
organizations 375

Part IV Nature of the rule

15 Nature of the rule 385
The prevailing views in theory 387
Theories explanatory of the rule 392
Possible practical consequences of the different views
of the nature of the rule 396
The cause of action 396
The time of incidence of international responsibility 397
The manner in which the issue is treated
internationally 398
Waiver and estoppel 400
Judicial and state practice 402
Support for the substantive view 403
Direct support for the procedural view 404
The action taken by courts and judges 407
Deductions 416
The view of the rule in human rights protection 417
Concluding observations 419
xii contents

Part V Epilogue
16 A concluding appraisal 425
Balancing of interests 425
The rule in human rights protection and its impact 430
Relevance of theory 436
Undue ‘strictnesss’ as a problem 436
Analogous applications 437

Index 438
 Preface

In the preface to the first edition of this book I wrote:

In the introductory chapter of this book I have attempted to justify its publica-
tion in spite of the apparently vast literature that already exists on the subject.
It is hoped that it will not be regarded as yet another book on local remedies.
The primary intention was to bring some element of clarification to and fresh
insight into a rather confused but inviting area of the law of State Responsibility.
This is all the more important now, particularly in view of the great increase
of the flow of investment across national frontiers and the ease with which
international travel is possible.

This still remains true for this second edition of the work. It must be
emphasized that individuals as aliens, because of the ease of travel, are
as much affected by the rule of local remedies as foreign legal persons.
The second edition, like the first, is concerned with the rule of exhaus-
tion of local remedies which came into existence in the context of diplo-
matic protection of aliens. Like the first, again, therefore, this edition
does not deal in general with the place of remedies given by national
courts in settling disputes involving breaches of international law but is
confined to investigating specifically the rule of exhaustion of local remedies
as it has developed, first, in connection with the diplomatic protection
of aliens and, secondly, by extension peripherally to other areas of in-
ternational law, such as human rights protection and the law relating
to international organizations.
Not only has there been updating and revision in the second edition
in the light of developments since the publication of the first, but the
format has been changed, as will be seen from a reading of the contents
pages. Notably, (i) a new Chapter 5 has been introduced dealing with
the all important subject of contracts involving aliens, (ii) the application

xiii
xiv preface

of the rule to human rights protection, as updated and revised, has been
included in a single chapter (Chapter 13) rather than spread throughout
the book, and (iii) the former Appendix, as updated and revised, dealing
with international organizations in the context of the rule has been
converted into Chapter 14. Moreover, the book has been divided into
five parts, which makes the analysis and discussion more systematic
and easier to understand. Further, comments made by some reviewers
which were thought to be in need of treatment have been taken into
account in this second edition.
The bibliography which appeared in the first edition has been omitted.
As has been pointed out, a bibliography is unnecessary in a treatise of
this nature which to a large extent did break and does break new ground.
The references in the footnotes to other material is completely adequate.
Indeed, the bibliography was unnecessary for the first edition. It is not
proposed to continue to publish what is superfluous.
My thanks go to my friends, Laura and Emily Crow, who typed
Chapters 5 and 13 and part of Chapter 10.
 Table of cases

A et al. v. Federal Republic of Germany, 314

A.P.A., 319
Aarts Case, 363
Aboilard Case, 115
Adams, David, Case, 194, 214--15
Administration of the Prince von Pless Case, 36, 39, 403, 413
Administrative Decision No. II, 47
Administrative Decision No. V, 47, 49
Advisory Opinion OC-11/90, 327--31, 334--5
Aerial Incident Case, 37, 149, 156--9, 166--7, 171--2, 176, 177, 287, 297
Affaire Losinger and Co., 36, 88, 257, 258, 297, 413
Agrotexim Helles SA v. Greece, 364
Air Services Agreement Arbitration, 150, 167
Airey v. Ireland, 318
Akdivar Case, 337--8, 343
Aksoy Case, Application 21987/93, 343
Alam and Khan, 360
Alam and Khan v. UK: see Alam and Khan
Ali Khan (No. 2), 379
Ali Khan (No. 3), 378
Altern v. Federal Republic of Germany, 363
Ambatielos Case, 36, 256, 286
Ambatielos Claim, 4, 16, 17, 37, 39, 60, 61, 169, 183, 184, 186, 190, 195,
201, 210, 216, 219--20, 223--44, 410, 428
Ambrozy, 378
American International Group, Inc. v. Iran, 4, 254
Anglo-Iranian Oil Co. Case, 36, 109, 130--1, 248, 251, 256, 258

xv
xvi table of cases

Applicability of the Obligation to Arbitrate under Article 21 of

the United Nations Headquarters Agreement of 27 June 1947
Opinion, 37, 254--5
Application No. 225/56, 220
Application No. 235/56, 102
Application No. 302/57, 314
Application No. 307/57, 352
Application No. 343/57, 72, 180
Application No. 524/59, 76
Application No. 788/60: see Austria v. Italy
Application No. 1727/62, 96, 102
Application No. 2991/66, 353
Application No. 4451/70: see Golder v. UK
Application No. 8007/77, 344
Aramco v. Saudi Arabia, 130, 131, 134, 135
Arrest Warrant of 11 April 2000 Case, 16, 37, 39, 57, 149--50, 151
Asylum Case, 285
Austria v. Italy, 17, 67, 68, 70, 72, 79, 80, 82, 96, 102, 190, 306, 318,
320--1, 338, 341, 342, 346, 351, 353, 360, 418
Award No. 93-2-3: see American International Group, Inc. v. Iran

B.D.B., 321
Barbaro, 319, 339
Barbato, G., v. Uruguay: see G. Barbato v. Uruguay
Barcelona Traction Co. Case (1964), 10, 16, 37, 62, 64, 75, 285, 295,
297--8, 403
Barcelona Traction Co. Case (1970), 16, 37, 46--7, 51, 64, 87, 90, 180,
181, 186--8, 190--1, 193--4, 197, 206, 404--5
Barcelona Traction Co. Case (Preliminary Objection): see Barcelona
Traction Co. Case (1964)
Beale, Nobles and Garrison Case, 87, 118--19
Becker v. Denmark, 209, 336
Belgian Linguistics Case, 69
Bleir v. Uruguay, 326
Board of Trade v. ‘Ambatielos’ etc., 232
Bode, 380
Boeckmans v. Belgium, 190, 314, 358, 418
Borchgrave Case, 36
Boulton, Bliss and Dallett’s Case, 113
Bozano v. France, 349, 350
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