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.