Notwithstanding the anomaly of the procedural requirement that local remedies available in the respondent state must be exhausted before there can be diplomatic intervention on behalf of a national, there can be no doubt that the rule serves some very useful purposes and has become generally accepted. This is demonstrated by the significant role the rule now plays in the resolution of issues before the European Commission of Human Rights. Because the rule is often discussed in the context of a complaint of denial of justice, considerable difficulties may be encountered in determining when the rule should be complied with. This difficulty is particularly manifest when an unlawful act injures both the state and its national simultaneously. When the state takes diplomatic action or institutes judicial proceedings under these circumstances, various tests have been used or proposed for determining whether the requirements of the exhaustion of local remedies rule must be fulfilled. In the Interhandel Case the International Court of Justice decided that the applicability of the rule depended on whether the private or the public interest is preponderant in the claim; if the former, local remedies must be exhausted, and if the latter, the rule will not be applied. Other suggested tests that have been considered include making the applicability of the rule depend on the subject matter of the dispute or whether the alleged wrongful act causes an immediate injury to the state.
B. O. Iluyomade,
Dual Claim and the Exhaustion of Local Remedies Rule in International Law,
10 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol10/iss1/3