INTERNATIONAL JURISTS OPINION ON EXHAUSTION OF LOCAL
REMEDIES
Exhaustion of local remedies
General principle of non-recognition
1.
The illegality of the use of force against the territorial integrity or political
independence of a State is firmly established as a rule of customary international
law.i The importance of the prohibition is underscored by its recognition as a norm
of ius cogens and one that gives rise to an obligation that is erga omnes.ii
2.
Consequently, a State may not recognise territorial acquisitions or the establishment
of a purported ‘State’ (hereafter ‘the purported ‘State’’) resulting from the threat or
use of force. In particular, the First Principle of the Declaration of Principles of
International Law concerning Friendly Relations and Cooperation among States
GA Res 2625 (XXV) declares, inter alia, that: ‘No territorial acquisition resulting
from the threat or use of force shall be recognized as legal’.iii Further, the ILC
Draft Articles on the Responsibility of States for Internationally Wrongful Acts,
explicitly provide, in Article 41(2), that: “No State shall recognise as lawful a
situation created by a serious breach within the meaning of Article 40, nor render
aid or assistance in maintaining that situation.”iv Article 40 of the Draft Articles
refers to “a serious breach by a State of an obligation arising under a peremptory
norm of general international law”. An illegal use of force would undoubtedly fall
within this description. The Commentary to Article 41 explains that:
“The obligation applies to situations created by these breaches, such as, for
example, attempted acquisition of sovereignty over territory through the denial of
the right of self-determination of peoples. It not only refers to the formal
recognition of these situations, but also prohibits acts which would imply such
recognition.”v
3.
This principle is also reflected in the jurisprudence of the ICJ.vi It flows from the
doctrine that legal rights cannot derive from an illegal situation:
“The principle ex iniuria ius non oritur is well established in international law and
according to it acts which are contrary to international law cannot become a
source of legal rights for a wrongdoer......To grant recognition to an illegal act or
situation will tend to perpetuate it and to be of benefit to the state which has acted
illegally”vii
4.
It is clear that the obligation on States not to recognise the consequences of a
serious breach of international law extends to the legislative and administrative acts
of the purported ‘State’, including the acts of bodies that purport to act on behalf of
the purported ‘State’. Thus, in the Namibia Advisory Opinion, at paragraph 125, the
ICJ stated that:
2
“...official acts performed by the Government of South Africa on behalf of or
concerning Namibia after the termination of the Mandate are illegal and
invalid...”viii (emphasis added)
5.
It is true that this statement of principle was qualified in the Namibia Advisory
Opinion. Paragraph 125 warned that, “the non-recognition of South Africa’s
administration of the Territory should not result in depriving the people of Namibia
of any advantages derived from international co-operation”, and clarified that the
principle of invalidity would not extend to matters such as the registration of births,
deaths and marriages, “the effects of which can be ignored only to the detriment of
the inhabitants of the Territory”.ix The so-called “Namibia Exception” must,
however, be read in the context of the Advisory Opinion as a whole, including the
following statement of the dominant legal principles:
“South Africa, being responsible for having created and maintained a situation
which the Court is found to have been validly declared illegal, has the obligation to
put an end to it. It is therefore under obligation to withdraw its administration from
the Territory of Namibia. By maintaining the present illegal situation, and
occupying the Territory without title, South Africa incurs international
responsibilities arising from a continuing violation of an international obligation. It
also remains accountable for any violations of its international obligations, or of
the rights of the people of Namibia. The fact that South Africa no longer has any
title to administer the Territory does not release it from its obligations and
responsibilities under international law towards other States in respect of the
exercise of its powers in relation to this Territory. Physical control of a territory
and not sovereignty or legitimacy of title, is the basis of State liability for acts
affecting other States.”x
6.
This statement is clearly relevant to the position of Turkey in any proceedings in
relation to other States, and, in particular, to acts affecting the Republic of Cyprus.
To give effect to the Turkish administration would effectively compel the Cypriot
Government to recognise the illegal entity.
7.
Consequently, the Namibia exception cannot be employed in order to validate acts
which are contrary to the UN Charter and the principles of general international
law. Rather, the exception is only intended to alleviate undue hardship and its
application should be limited to instances where humanitarian concerns are
invoked.xi For example, a person who is granted a divorce decree by a court
established by an unrecognized government in a territory where he or she has long
been living should not be regarded as committing bigamy if he or she subsequently
remarries abroad.xii The ‘Namibia’ exception does not extend to:
(i)
the making of laws or institutions that effect fundamental changes to the
public order of that territory and which are designed to consolidate the control
of the authorities over the area in which they apply; xiii
(ii) acts which are not clearly intended to benefit all of the inhabitants of the
territory, and which can be denied legal effect without triggering
humanitarian concerns; or to
(iii) the judicial system established by the authority in unlawful occupation of the
territory.
3
8.
More specifically, the exception does not apply to (a) legislative and
administrative acts providing for the expropriation of private property, or (b) to
legislative and administrative acts providing for the establishment of judicial (or
quasi-judicial) institutions for the enforcement of public laws.
Duty to exhaust local remedies
8.
It is a well-established rule of customary international law that in case of injury to
an alien, local remedies must be exhausted before international proceedings may
be instituted.xiv
9.
However, that duty is not applicable in circumstances where the injury consists in
the expropriation of private property by a purported ‘State’ or by a body acting on
behalf of that purported ‘State’, and the ‘local remedy’ is established by those
who have purported to establish the purported ‘State’ and its judicial (or quasijudicial) institutions. There is no such duty, for the following reasons.
10.
First, to impose such a duty would be to recognise as effective the legislative and
administrative acts of the purported ‘State’ or of a body acting on behalf of that
purported ‘State’. Such recognition would be contrary to the principles of nonrecognition outlined above. As has been explained, the “Namibia exception” is
not applicable in these circumstances.xv
11.
Second, the limits of the duty to exhaust local remedies are constrained by its
underlying rationale. The primary reason for imposing the duty to exhaust local
remedies is that respect for the sovereignty of the State demands it.xvi That
rationale has no application where the purported ‘State’ has been fabricated by
actions that constitute a violation of a fundamental norm of international law.
12.
Third, the principle ex iniuria ius non oritur dictates that acts that are contrary to
international law cannot become a source of legal rights for the wrongdoer. In a
case where the power of the purported organs of government are imposed upon
individuals by an unlawful use of force, there is no legal duty imposed on those
individuals to submit to institutions established by the purported ‘State’ or by a
body acting on its behalf. As the distinguished international judge and jurist
Theodore Meron has said:
“[A]ccording to general principles of law, it would be very strange indeed if a
State which interfered illegally with an alien, who did not — except for that
interference — have any connection with it, should be allowed to derive any
advantage from its illegal acts....the State may not be allowed to derive an
advantage from its own wrong.”xvii
13.
This third limitation reflects the principle that in instances where there has been
no voluntary submission to or connection with organs of the purported ‘State’, it
would be unfair or inappropriate to impose a duty to exhaust local remedies on the
individual.xviii
4
14.
Fourth, it is firmly established there is no duty to exhaust local remedies where
the local remedy would be ineffectivexix or not in accordance with due process of
law.xx The exhaustion of local remedies is a doctrine of international law. Where
the complaint concerns what purport to be ‘legislative’ acts enacted to entrench
the situation brought about by the unlawful use of force, it would plainly be
contrary to principle, and unfair and inappropriate, to require recourse to
institutions that cannot or will not question the legality under international law of
the measures in question.
15.
The measures may be unlawful under international law because they entrench an
unlawful use of force by which the purported ‘State’ was established, or because
they are otherwise inherently repugnant to the basic principles of international
law, for example because they are unlawfully discriminatory.
16.
Equally, it is well established that there is no duty to exhaust local remedies where
the local remedies are obviously futile.xxi That is the case wherever the body
allegedly able to grant the remedy is in fact limited in its powers and not free to
decide upon the question that lies at the heart of the complaint: for example,
where the legality of a taking of property cannot be challenged.
17.
Finally, the duty only arises where the local remedy is provided by the State
alleged to have breached its international obligation.xxii To the extent that the
remedy is provided by judicial/quasi-judicial institutions established by an entity
distinct from that State and which do not constitute a part of that State’s judicial
system, the duty to exhaust that local remedy is not triggered.xxiii
SIGNED BY:
PROFESSOR RANJAN AMERASINGHE
SIR IAN BROWNLIE Q.C.
PROFESSOR JOHN DUGARD
PROFESSOR GERHARD HAFNER
PROFESSOR ALAIN PELLET
PROFESSOR WILLIAM SCHABAS
PROFESSOR CHRISTIAN TOMUSCHAT
4 December 2009
5
NOTE ON JURISTS
The attached joint Opinion was finalized by a group of international jurists during
consultations by correspondence from September to December 2009. The Opinion was
commissioned by the Government of the Republic of Cyprus. The jurists independently
discussed the legal issues and reached consensus after exchanges of views, whereupon
they approved the finalized text.
Professor Chittharanjan F. Amerasinghe (Sri Lankan) is a Member of the Institut de
Droit international. He was formerly a Judge of the UN Administrative Tribunal, a
Judge of the Commonwealth Secretariat Tribunal, Registrar of the World Bank
Administrative Tribunal and Professor of Law, University of Ceylon. He has advised
Governments, including Argentina and Ceylon. He is Honorary Professor of Law,
University of Colombo. He is author of Local Remedies in International Law (2nd ed.,
2004).
Sir Ian Brownlie CBE, QC, is Emeritus Professor of Public International Law of the
University of Oxford (having been Chichele Professor from 1980-1999). He has served 3
terms on the International Law Commission and became its Chairman for 2007-2008.
Since 2005 he has been Special Rapporteur on the Effects of Armed Conflict on Treaties.
He has been a Member of the International Law Association since 1985 and a Member of
its Executive Council since 1991. He has held various appointments as Arbitrator or
Judge. He frequently appears as Counsel in the International Court of Justice and in
proceedings before international and regional courts and tribunals.
He has been a
Member of the Institut de Droit international since 1985, having been an Associate since
1977. Since 2004 he has been an Honorary Member of the American Society of
International Law and since 2009 an Honorary Member of the Indian Society of
International Law. He was knighted in 2009 “For services to public international law”.
Professor John Dugard (South African) was from 1969 to 1998 Professor of Law at the
University of the Witwatersrand, South Africa, and from 1998 to 2006 Professor of
Public International Law at the University of Leiden, Netherlands. He is at present
Professor of Law at the University of Pretoria. He has been a member of the International
6
Law Commission since 1997 and served as Special
Rapporteur
on
Diplomatic
Protection to the ILC from 2000 to 2006. He has served as a Judge ad hoc on the
International Court of Justice and was from 2001 to 2008 Special Rapporteur to the
Human Rights Council on human rights in the Occupied Palestinian Territiory. He is
member of the Institut de Droit International and a Senior Counsel of the Supreme Court
of South Africa.
Professor Gerhard Hafner (Austrian) is retired Professor of International Law and
International Economic Law at the University of Vienna. He was from 1997 to 2001 a
Member of the International Law Commission. He previously worked in the Legal
Office of the Austrian Ministry of Foreign Affairs, and was acting head of the Austrian
delegation to the Rome Conference on the Establishment of an International Criminal
Court (1998). He is a Conciliator at the OSCE Court and was a Member of its Bureau
from 2001-2007. He is a Member of the Institut de Droit international.
Professor Alain Pellet (French) is Professor of International Law at the University of
Paris Ouest, Nanterre-Lá Defense. He has been a Member of the International Law
Commission of the United Nations since 1990, and was its Chairman in 1997-1998. He
is ILC Special Rapporteur on Reservations to Treaties. He has been advisor to the French
Government and many other Governments for many years. He has appeared before the
International Court of Justice in more than 35 cases. He is an Associate Member of the
Institut de Droit international.
Professor William A. Schabas (Canadian and Irish) is Professor of Human Rights Law at
the National University of Ireland, Galway, and Director of the Irish Centre for Human
Rights. He is also a Global Legal Scholar at the University of Warwick. From 1991 to
2000 he was professor of Human Rights Law and Criminal Law at the Université de
Québec à Montréal. He was a Member of the Québec Bar from 1985-2005. He is
Chairman of the UN Voluntary Fund for Technical Assistance in the field of Human
Rights. He was a delegate to the 1998 Rome Conference on the Establishment of an
International Criminal Court. He is Chairman of the International Institute for Criminal
Investigation and a Member of the Board of the International Institute for Human Rights
(Strasbourg).
7
Professor Christian Tomuschat (German) is Emeritus Professor of International Law
at the Humboldt University, Berlin, where he had from 1995-2004 been Professor of
Public Law and Director of the Institute for International and European Law. He
previously held the Chair of International Law at the University of Bonn from 1972-1995
and was Director of the Institute of International Law.
From 1992-2002 he was
Chairman of the Advisory Board of the Max Planck Institute for Comparative Public Law
and International Law. He was a Member of the UN Human Rights Committee from
1977-1986. He has been a judge in international administrative tribunals. He was a
Member of the International Law Commission from 1985-1996, and its Chairman in
1992-1993. Since 1997 he has been a Member of the Institut de Droit international.
i
Article 2(4) UN Charter; Oppenheim’s International Law (9th ed) at para. 54.
ii
Barcelona Traction, Light and Power Company Limited (Belgium v Spain). Merits, Judgment I.C.J. Reports 1970,
p.32 at paras 33 – 34.
iii
See further (i) Declaration on the Strengthening of International Security GA Res 2734 (XXV) 1970, paragraph 5:
‘no territorial acquisition resulting from the threat or use of force shall be recognized as legal’; (ii) Montevideo
Convention on Rights and Duties of States 1933, Article 11: ‘The contracting states definitely establish as the rule
of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have
been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations,
or in any other effective coercive measure’ (iii) Consensus Definition of Aggression GA Res 3314 (XXIX) 1974,
Article 5(3): ‘No territorial acquisition or special advantage resulting from aggression is or shall be recognized as
lawful’ (iv) ILC, Draft Articles on State Responsibility (2001), which state that there is a breach of an international
obligation by a State when an act of that State is not in conformity with what is required of it by that obligation (Art.
12) and which prohibit the provision aid or assistance by one State to another State in the commission of an
internationally wrongful act (Art.16).
iv
Responsibility of States for Internationally Wrongful Acts (GA Res A/RES/56/83).
v
ILC Annual Reports 2001, at p.287. The Commentary goes on to cite, as examples of this principle, the declaration
of, inter alia, the United States, during the Manchurian Crisis of 1931-32, that it would not “admit the legality of any
situation de facto nor...recognise any treaty or agreement entered into between those Governments, or agents
thereof, which may impair the...sovereignty, the independence or the territorial and administrative integrity of the
Republic of China...[nor] recognise any situation, treaty or agreement which may be brought about by means
contrary to the covenants and obligations of the Pact of Paris of August 27, 1928.” More recently, following the
Iraqi invasion of Kuwait, the Security Council called upon all States and International Organisations to refrain from
any action or dealing that might be interpreted as a recognition, whether direct or indirect, of Iraq’s declaration of
the “merger” of the two States.
vi
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits,
Judgment. I.C.J. Reports 1986, p. 14 at paras 188 – 190; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136 at para 87.
vii
Oppenheim’s International Law (9th ed) at para.54, p184.
viii
Legal Consequences for States of the Constituted Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 at p. 56, para
125.
ix
Legal Consequences for States of the Constituted Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 at p. 56, para
125.
x
Legal Consequences for States of the Constituted Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 at p. 54, para
118.
xi
Legal Consequences for States of the Constituted Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, para 125;
the separate opinion of Judge Dillard at p. 166 referred to “considerations of a practical and humanitarian nature”
and at p. 167 to the concern to avoid “needless hardship”.
9
xii
Adams v Adams [1970] 3 All ER 572, Sir Jocelyn Simon, P.
xiii
This principle is also reflected in the law governing belligerent occupation. Pursuant to Art. 43 of the Hague
Regulations 1907 and Art. 64 of the Fourth Geneva Convention, the occupying authorities are bound to respect the
law of the occupied territory and the tribunals of the occupied territory shall continue to function.
xiv
Interhandel Case, Judgment of March 21st 1959 I.C.J. Reports 1I959, p. 6; Elettronica Sicula S.P.A. (ELSI),
Judgment, I.C.J. Reports 1989, p. 15, para 50.
xv
In Cyprus v Turkey (Application 25781/94), the European Court of Human Rights held that it was necessary for
individuals to exhaust domestic remedies in the TRNC, notwithstanding the objections of Cyprus as to the illegality
of the TRNC courts. However, the Court did not appear to take into account the fact that the TRNC courts had been
established in breach of a peremptory norm of international law. In the light of Articles 40 and 41 of the ILC Draft
Articles, the distinction between a breach of “normal” international law, and a breach of a norm of ius cogens is
crucial. Further, in the light of the decision of the European Court of Human Rights in Van Oosterwijck v Belgium
(Application 7654/76), it is accepted that, in accordance with “generally recognised rules of international law”
there is no obligation to exhaust domestic remedies where there are “special circumstances which absolve the
applicant”. The breach of a norm of ius cogens should be deemed to constitute such a special circumstance.
(i) C. F. Amerasinghe, Local Remedies in International Law (2nd ed., 2004) p. 200 “Respect for the sovereignty
of the respondent or host state constitutes the foundation of the rule that local remedies must be exhausted”. See
also ; ibid., [p. 61] “[t]here is clearly in such statements a recognition of, an emphasis on and perhaps a concession
to the sovereign character of a state; [p. 62] “[b]asically, the rule is a recognition of the sovereignty of the host state
in so far as such state is in reality being permitted to settle through its own organs a dispute of an international
nature to which it is a party.....the rule seems to have become entrenched in response to an insistence by host states
on powers founded on sovereignty rather than because it emanated from a basic principle of justice inherent in the
international legal order.”; [p. 63] “[i]t would follow that host states are in some sense being accorded a function
by virtue of their sovereign status in the process of international dispute settlement”; (ii) Kokott, 'Report on
Exhaustion of Local Remedies', in ILA, Report of 69th Conference (2000) p. 612: “one of the objectives is to protect
the interest of the respondent state in preserving their sovereignty”
xvi
xvii
Meron, ‘The incidence of the rule of exhaustion of local remedies’, 1959 34 BYIL 83, “The incidence of the rule
of exhaustion of local remedies” at p. 96 and p. 100. See also (i) Legal Consequences for States of the Constituted
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, p. 16 at para 91: “One of the fundamental principles governing the
international relationship thus established is that a party which disowns or does not fulfil its own obligations cannot
be recognised as retaining the rights which it claims to derive from the relationship” (ii) C. F. Amerasinghe, Local
Remedies in International Law (2nd ed., 2004) pp. 177-86: “While the ex iniuria non oritur ius principle itself may
not have been applied hitherto, inter alia, in any international judicial decisions on the rule of local remedies, there
are international judicial decisions which have recognised it in other areas and it is clearly an accepted general
principle of law. Thus, there is no difficulty in applying it as a general principle of both international and national
law in the context of the rule of local remedies”.
See, e.g., (i) Oppenheim’s International Law (9th ed) at para 153, p525: “failure to exhaust local remedies will
not constitute a bar to a claim if ...available remedies are inappropriate for the subject matter of the claim....or, as a
rule, when the injury to the alien is the result of an act of government as such”; (ii) the ILC Third Report on
Diplomatic Protection (A/CN.4/523) at para. 83, which refers to “hardship cases” where there is an involuntary link
or territorial connection with the respondent State regarding which it would be “impractical and unfair” to impose a
duty. At para. 87 the report notes that “a general principle of law that would make the local remedies rule
inapplicable in such cases is that of ex injuria jus non oritur”; (iii) Meron 1959 34 BYIL 83 at 101: “the rule must
be applied with caution and only after all of the facts have been adequately considered. Not only is a rigid
application of the rule to all cases of diplomatic protection not supported by either the reasons for the rule of by the
practice, but it also does not serve the interests of justice”; (iv) Ilascu Lesco Ivantoc and Petrov-Popa v Moldova
xviii
10
and Russia (8 July 2004, Application no. 48787/99): The Moldovans complained of violations in Russian-occupied
area of Transdniestria. The ECHR stated that it was “contradictory” to expect the applicants to have approached the
Russian authorities.
xix
See, e.g., (i) ILC Draft Articles on Diplomatic Protection (2006), Art 15; (ii) ILC Draft Articles on State
Responsibility (2001), Art 22; (iii) Kokott, Report on Exhaustion of Local Remedies to the ILA, Report of the SixtyNinth Conference (2000) p629; (iv) Human Rights Committee: A/44/40, p142; A/49/40 annex X Section C para 8.3.
(i) C. F. Amerasinghe, Local Remedies in International Law (2nd ed., 2004) p. 210 “the absence of due process
of law in the legal system of the host or respondent State is a good excuse for not exhausting remedies”; (ii) the
American Convention on Human Rights, 1969, Art. 426(2)(a) the duty to exhaust local remedies is “not be ...
applicable when the domestic legislation of the state concerned does not afford due process of law for the protection
of the right or rights that have allegedly been violated” (iii) ILC Third Report on Diplomatic Protection
(A/CN.4/523), paras. 44 and 45.
xx
xxi
(i) Forest of Central Rhodope Case 3 UNRIAA p 1405 (1933): local remedies did not have to be exhausted where
the individual sought to challenge confiscation of forest areas under a national law permitting such confiscation; (ii)
C. F. Amerasinghe, Local Remedies in International Law (2nd ed., 2004) p. 208: “where it is clear that a national
law justifying the acts of which the alien complains would have to be applied by the local organs or courts thus
rendering recourse to them obviously futile, local remedies need not be exhausted” (iii) ILC Third Report on
Diplomatic Protection (A/CN.4/523), para 40: “where for instance legislation has been adopted to confiscate the
property of an alien and it is clear that the courts are obliged to enforce this legislation there will be no need to
exhaust local remedies”.
(i) Oppenheim’s International Law (9th ed) at para 153 n 5 “a state must be given the opportunity to redress by its
own means and within its own legal framework any wrong suffered by an alien”; (ii) ILC Draft Articles on
Diplomatic Protection (2006), Art 14: courts “of the state alleged to be responsible” (iii) Harris O’Boyle &
Warbrick, Law of the European Convention on Human Rights (2nd ed. 2009) p764 n 49: “The rule is founded on the
principle of international law that states must first have the opportunity to redress the wrong alleged in their own
legal system” (iv) I. Brownlie, Principles of Public International Law (7 th ed) p. 492: the duty is to exhaust legal
remedies “available to him in the state which is alleged to be the author of the injury” (v) Interhandel Case,
Judgment of March 21st 1959 I.C. J . Reports 1I959 p 6 at p27: “redress it by its own means, within the framework of
its own domestic legal system”
xxii
McElhinney v Ireland (ECHR Application no. 31253/96) p. 207, “the Irish Government cannot rely for the
purposes of Article 35 § 1 of the Convention on the applicant’s failure to use a remedy in the United Kingdom”.
xxiii