Exhaustion of Local Remedies and Mixed Claims in International Law: An Analysis of International Court of Justice Jurisprudence(مقاله علمی وزارت علوم)
حوزههای تخصصی:
The rule of the exhaustion of local remedies serves as an indispensable prerequisite for the admissibility of claims invoked in various fields of international law, including the law of diplomatic protection and international human rights law. A State may invoke the responsibility of another State for injuries suffered by its nationals by exercising diplomatic protection, subject to the satisfaction of certain conditions. Where the legal basis for an application instituting proceedings is predicated upon injury to both the direct rights of the State and the derived rights of its nationals, the characterization of the claim becomes complex. In such instances of "mixed claims," the jurisprudence of the International Court of Justice (the Court, ICJ) applies a "preponderance" test to determine whether the claim is essentially founded upon an injury to the State or to its nationals. Should the claim be determined to relate preponderantly to the interests of the national, its admissibility before the Court is contingent upon the prior exhaustion of local remedies, a fundamental condition for the exercise of diplomatic protection. This article analyses the approach of the ICJ to the exhaustion of local remedies rule, with a particular focus on its jurisprudence concerning mixed claims, to clarify the underlying rationale for the Court’s determinations on admissibility.