Book contents
- Frontmatter
- Contents
- Preface
- Table of cases
- List of abbreviations
- Part I Prolegomena
- Part II Application of the rule
- 6 Incidence of the rule
- 7 Scope of the rule
- 8 Limitations on the rule
- 9 The rule as applied to the use of procedural resources
- 10 Waiver of the rule and estoppel
- 11 Burden of proof
- 12 Procedural matters connected with the rule
- Part III Peripheral and analogous applications of the rule
- Part IV Nature of the rule
- Part V Epilogue
- Index
- CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW
8 - Limitations on the rule
from Part II - Application of the rule
Published online by Cambridge University Press: 03 May 2010
- Frontmatter
- Contents
- Preface
- Table of cases
- List of abbreviations
- Part I Prolegomena
- Part II Application of the rule
- 6 Incidence of the rule
- 7 Scope of the rule
- 8 Limitations on the rule
- 9 The rule as applied to the use of procedural resources
- 10 Waiver of the rule and estoppel
- 11 Burden of proof
- 12 Procedural matters connected with the rule
- Part III Peripheral and analogous applications of the rule
- Part IV Nature of the rule
- Part V Epilogue
- Index
- CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW
Summary
Respect for the sovereignty of the respondent or host state constitutes the foundation of the rule that local remedies must be exhausted. Recognition of other interests, such as those of the alien claimant in avoiding undue hardship and excessive expense in pursuing local remedies, has resulted in limitations being placed on or exceptions being made to the operation of the rule. In its positive form, the rule was not absolute and had certain parameters in so far as exhaustion was initially limited to remedies which were, for example, of a legal nature, available and effective. To some extent these positive requirements imply certain negative qualifications, for it is understood, as has been seen in the previous chapter, that remedies that are, for example, not of a judicial or quasi-judicial nature, not available or not effective do not come within the ambit of those remedies which need to be exhausted. In a sense, the negative requirements are the other side of the coin. The limitations, thus, directly resulting and such others as may have been placed on the rule flow primarily out of consideration for the interests of the alien claimant, but also because of the need to have justice dispensed efficiently and economically, which is an interest of the international community.
- Type
- Chapter
- Information
- Local Remedies in International Law , pp. 200 - 215Publisher: Cambridge University PressPrint publication year: 2004