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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
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