which includes customary rules on diplomatic protection, as set out in the
arbitral award of the International Centre for Settlement of Investment
Disputes in the matter of Orascom TMT Investments SARL v. People's
Democratic Republic of Algeria. In its view, the Applicant State was obliged
to exhaust the remedies available to the persons concerned.
316. The Respondent State further argues that the interpretation must take into
account any subsequent practice in the application of the treaty, as set out
in Article 31(3)(b) of the VCLT. In this respect, it submits that since 2010,
the Commission has amended its Rules of Procedure by introducing, in
Article 87(2)(b), the obligation for any State to provide information on
“measures taken to exhaust regional or international procedures of
settlement or good offices”. This means, according to the Respondent State,
the remedies to be exhausted also include international and regional
remedies, including negotiations, which is logical in the context of the
growing role of sub-regional human rights mechanisms.
317. The Respondent State also argues that an examination of the context of
Article 50 of the Charter corroborates this position, since any inter-State
procedure requires prior dialogue between the States concerned, in
accordance with Article 47 of the Charter, and must allow time for reflection
to enable them to arrive at a mutually satisfactory solution in application of
Article 48 of the said Charter.
318. According to the Respondent State, therefore, the remedies to be
exhausted by the Applicant State include not only the relevant remedies for
natural persons, victims of the alleged violations, but also any remedies
available at the inter-State level, such as negotiations and good offices.
319. The Respondent State maintains that the Applicant has not proven that it
has exhausted or attempted to exhaust such remedies, which renders its
application inadmissible.
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