State responsibility
that responsibility by another State or States. Thus, it is
not the function of the articles to deal with such questions
as the requirement for exhausting other means of peaceful settlement before commencing proceedings, or such
doctrines as litispendence or election as they may affect
the jurisdiction of one international tribunal vis-à-vis another.681 By contrast, certain questions which would be
classified as questions of admissibility when raised before
an international court are of a more fundamental character. They are conditions for invoking the responsibility of
a State in the first place. Two such matters are dealt with
in article 44: the requirements of nationality of claims and
exhaustion of local remedies.
(2) Subparagraph (a) provides that the responsibility of
a State may not be invoked other than in accordance with
any applicable rule relating to the nationality of claims.
As PCIJ said in the Mavrommatis Palestine Concessions
case:
It is an elementary principle of international law that a State is entitled
to protect its subjects, when injured by acts contrary to international
law committed by another State, from whom they have been unable to
obtain satisfaction through the ordinary channels.682
Subparagraph (a) does not attempt a detailed elaboration
of the nationality of claims rule or of the exceptions to
it. Rather, it makes it clear that the nationality of claims
rule is not only relevant to questions of jurisdiction or the
admissibility of claims before judicial bodies, but is also
a general condition for the invocation of responsibility in
those cases where it is applicable.683
(3) Subparagraph (b) provides that when the claim is
one to which the rule of exhaustion of local remedies applies, the claim is inadmissible if any available and effective local remedy has not been exhausted. The paragraph
is formulated in general terms in order to cover any case
to which the exhaustion of local remedies rule applies,
whether under treaty or general international law, and in
spheres not necessarily limited to diplomatic protection.
(4) The local remedies rule was described by a Chamber
of the Court in the ELSI case as “an important principle of
customary international law”.684 In the context of a claim
681 For discussion of the range of considerations affecting jurisdiction and admissibility of international claims before courts, see G.
Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour
internationale (Paris, Pedone, 1967); Sir Gerald Fitzmaurice, The
Law and Procedure of the International Court of Justice (Cambridge,
Grotius, 1986), vol. 2, pp. 427–575; and S. Rosenne, The Law and
Practice of the International Court, 1920–1996, 3rd ed. (The Hague,
Martinus Nijhoff, 1997), vol. II, Jurisdiction.
682 Mavrommatis (see footnote 236 above), p. 12.
683 Questions of nationality of claims will be dealt with in detail in
the work of the Commission on diplomatic protection. See first report
of the Special Rapporteur for the topic “Diplomatic protection” in
Yearbook … 2000, vol. II (Part One), document A/CN.4/506 and
Add.1.
684 ELSI (see footnote 85 above), p. 42, para. 50. See also Interhandel, Preliminary Objections, I.C.J. Reports 1959, p. 6, at p. 27. On the
exhaustion of local remedies rule generally, see, e.g., C. F. Amerasinghe, Local Remedies in International Law (Cambridge, Grotius, 1990);
J. Chappez, La règle de l’épuisement des voies de recours internes
(Paris, Pedone, 1972); K. Doehring, “Local remedies, exhaustion of ”,
Encyclopedia of Public International Law, R. Bernhardt, ed. (footnote
409 above), vol. 3, pp. 238–242; and G. Perrin, “La naissance de la responsabilité internationale et l’épuisement des voies de recours internes
121
brought on behalf of a corporation of the claimant State,
the Chamber defined the rule succinctly in the following
terms:
for an international claim [sc. on behalf of individual nationals or corporations] to be admissible, it is sufficient if the essence of the claim
has been brought before the competent tribunals and pursued as far as
permitted by local law and procedures, and without success.685
The Chamber thus treated the exhaustion of local remedies as being distinct, in principle, from “the merits of
the case”.686
(5) Only those local remedies which are “available and
effective” have to be exhausted before invoking the responsibility of a State. The mere existence on paper of
remedies under the internal law of a State does not impose a requirement to make use of those remedies in
every case. In particular, there is no requirement to use a
remedy which offers no possibility of redressing the situation, for instance, where it is clear from the outset that
the law which the local court would have to apply can lead
only to the rejection of any appeal. Beyond this, article
44, subparagraph (b), does not attempt to spell out comprehensively the scope and content of the exhaustion of
local remedies rule, leaving this to the applicable rules of
international law.687
Article 45. Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) the injured State has validly waived the claim;
(b) the injured State is to be considered as having,
by reason of its conduct, validly acquiesced in the lapse
of the claim.
Commentary
(1) Article 45 is analogous to article 45 of the 1969 Vienna Convention concerning loss of the right to invoke a
ground for invalidating or terminating a treaty. The article
deals with two situations in which the right of an injured
State or other States concerned to invoke the responsibility of a wrongdoing State may be lost: waiver and acquiescence in the lapse of the claim. In this regard, the position
of an injured State as referred to in article 42 and other
States concerned with a breach needs to be distinguished.
A valid waiver or settlement of the responsibility dispute
dans le projet d’articles de la Commission du droit international”,
Festschrift für Rudolf Bindschedler (Bern, Stämpfli, 1980), p. 271.
On the exhaustion of local remedies rule in relation to violations of
human rights obligations, see, e.g., A. A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International
Law: Its Rationale in the International Protection of Individual Rights
(Cambridge University Press, 1983); and E. Wyler, L’illicite et la condition des personnes privées (Paris, Pedone, 1995), pp. 65–89.
685 ELSI (see footnote 85 above), p. 46, para. 59.
686 Ibid., p. 48, para. 63.
687 The topic will be dealt with in detail in the work of the Commission on diplomatic protection. See second report of the Special Rapporteur on diplomatic protection in Yearbook … 2001, vol. II (Part One),
document A/CN.4/514.
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