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,oftherule 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 aut hor not only examines the jurisprudential basis of the rule and its established aspects but ventures into some important areas, suc h as the incidence of the ru le, the limitations on its application, the burden of proof and the relevance of the rule to procedural remedies, in which the law i s 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 hesitat e 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. H e 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 l aw 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 (suc h 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 approac hes to international or com parative 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 First published in print format isbn-13 978-0-521-82899-4 isbn-13 978-0-511-16573-3 © Cambridge University Press 1990, 2004, 2005 2004 Information on this title: www.cambrid g e.or g /9780521828994 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. isbn-10 0-511-16573-0 isbn-10 0-521-82899-6 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. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback eBook (NetLibrary) eBook (NetLibrary) hardback 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 i njured 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 st ate 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 writ ers 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 [...]... of Justice International and Comparative Law Quarterly International Centre for the Settlement of Investment Disputes Indian Journal of International Law International Law Association International Law Commission International Legal Materials International Labor Organization International Labor Organization Administrative Tribunal International Law Reports Iran US Claims Tribunal Reports International. .. exhaustion of local remedies which came into existence in the context of diplomatic 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... français de droit international Annuaire de l’Institut de Droit international American Journal of International Law Annual Digest of Public International Law Cases (now ILR) Annual Report of the Inter-American Commission of Human Rights Archivio di Diritto Publico Annuaire Suisse de Droit International British and Foreign State Papers bilateral investment treaty British Practice in International Law Bibliotheca... Academy of International Law HRC Human Rights Committee (established under the International Covenant on Civil and Political Rights) HRJ Human Rights Journal HRLJ Human Rights Law Journal Hyde, International Law Hyde, International Law Chiefly as Interpreted and Applied by the United States (1945) IACHR Inter-American Court of Human Rights IAComHR Inter-American Commission of Human Rights ICC International. .. protection of aliens and, secondly, by extension peripherally to other areas of international 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... Union Indian Yearbook of International Affairs Journal de droit international Journal of International Arbitration Jahrbuch für Internationales Recht Judgments of the United Nations Administrative Tribunal Lloyd’s List Law Reports League of Nations League of Nations document League of Nations Treaty Series Law Quarterly Review Malaysia Law Review Multilateral Investment Guarantee Agency Modern Law Review... which remedies must be exhausted The time for raising the objection The time of decision on the objection Joinder to the merits xi 346 347 347 348 349 350 351 354 355 356 356 357 358 359 The six-months rule 14 Part IV 15 362 The rule and international organizations Claims by international organizations against states Claims against international organizations Claims by staff members against international. .. 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... ICCPR International Covenant on Civil and Political Rights list of abbreviations ICERD ICJ ICLQ ICSID IJIL ILA ILC ILM ILO ILOAT ILR Iran US CTR ITU IYIA JDI JIA JIR JUNAT Lloyd’s Rep LN LN Doc LNTS LQR MalayLR MIGA MLR Moore, A Digest of International Law Moore, International Arbitrations NAFTA NILR OAS O’Connell OECD xxxi International Convention for the Elimination of Racial Discrimination International. .. American Society of International Law Receuil des Arbitrages International Revue Belge de Droit International Rivista di Diritto Europeo Revista de Derechos Humanos Rivista di Diritto Internazionale Revue de Droit International et Législation Comparée Revista Espa˜ ola de Derecho Internacional n Reports of the ECHR Revista General de Legislación y Jurisprudencia Revue générale de droit international public . page intentionally left blank Local Remedies in International Law Second Edition This work examines the local remedies rule historically and particularly in. national courts in settling disputes involving breaches of international law but is confined to investigating specifically the rule of exhaustion of local remedies as