On Exhaustion Of Local Remedies Rule In Diplomatic Protection

As a well-established system in international law, diplomatic protection has played a significant role in international law and practice. Due to the realization of the significance and urgency of diplomatic protection, the International Law Commission has drafted, after several years of study,"Draft Articles on Diplomatic Protection"(hereinafter referred to as"Draft Articles")in 2004 and submitted to the United Nations General Assembly for discussion. The"Draft Articles"was adopted in 2004 and 2006 respectively by first and second read, and diplomatic protection was also among the subjects of 65th assembly of United Nations. After several hundred years of development, the exhaustion of local remedies rule has become an indispensable requirement in exercising diplomatic protection. Such customary law of exhaustion of local remedies has profound theoretical and practice history and was thus recognized by international community through many cases supporting the application of this rule. However, vagueness and obscures still exist in this rule. This article started research based on the theory of exhaustion of local remedies and further to the issues in its application and development.Chapter one mainly analyzed the background and theory basis of exhaustion of local remedies rule, including the definition, sources and state sovereignty as well. Meanwhile, in this chapter, the nature of exhaustion of local remedies was also discussed, and raised exhaustion of local remedies rule has dual natures of both substantive and procedural requirement.Chapter two discussed the relationship and distinction between Calvo clause and exhaustion of local remedies rule, and set forth criteria for judging the validity of Calvo clause in theory and practice. Chapter three researched specific issues in applying exhaustion of local remedies rule. The exhaustion of local remedies rule shall fall under the scope of diplomatic protection and not be applied in case of direct injury incurred by a state. Afterwards, the article also analyzed the function of exhaustion of local remedies rule in diplomatic protection and consulate protection. In terms of application, the article discussed the meaning of exhaustion and exceptions to such rule, resulting in a clear sphere of application of exhaustion of local remedies rule.The last part introduced the status quo of exhaustion of local remedies rule and diplomatic protection.Although specific articles concerning exhaustion of local remedies rule has appeared in"Draft Articles", the regulations are not complete and concrete enough in answering the contentious issues in diplomatic protection, i.e. exhaustion of local remedies rule. Therefore, it is necessary to carry out further study over exhaustion of local remedies rule so as to better application in practical cases.