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6 - Incidence of the rule

from Part II - Application of the rule

Published online by Cambridge University Press:  03 May 2010

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Summary

Questions relating to the incidence of the rule of local remedies have arisen mainly out of concern that the rule may be applied to situations for which it was not in principle intended. In connection with diplomatic protection, these questions have been discussed largely in diplomatic practice, although there is some judicial precedent on the subject. What has been in issue in the situations which have arisen is whether, in cases where an alien is involved in asserting his rights or having some protection exercised by a protecting state, there are circumstances in which the rule will not be applicable, or whether the rule is applicable in all situations where an alien is involved. The history of the rule in international law has shown that major concerns have in practice been articulated about the over-extension of the rule, rather than about the possibility that it may not be implemented when it should. Although the discussion reflects the clash of interests involved, it has taken the form of invoking such considerations as the intrinsic nature of the rule as an instrument in the settling of disputes essentially concerned with the protection of rights belonging to aliens, rather than of emphasizing the prerogatives of state sovereignty, which could have the effect of highlighting exclusively the interests of respondent states.

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Publisher: Cambridge University Press
Print publication year: 2004

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