The local remedies rule is usually considered a device to accommodate the legitimate desire of states to preserve their own sovereignty with the equally legitimate desire of states to protect their nationals who have suffered injury abroad. It is obvious that the adequacy of the rule in serving the second of these ends will depend on the nature and quality of the local remedies available. In turn, the effectiveness of local remedies in protecting the rights of aliens will depend on a variety of factors. Most importantly, there is the adequacy of the substantive legal rights in the fields of public and private law. Another consideration is the practice and custom of courts in areas in which there are no hard and fast rules of law. Thus, it is a well-known fact that even in situations in which damage awards are not limited by law, European courts are much less generous in granting awards for pain and suffering than courts in the United States. Finally, since rights which cannot be enforced are no rights at all, the nature of judicial and administrative remedies, the fairness and speed of procedures, and the general integrity of the judicial and administrative processes are of great importance.
It is obvious, however, that such broad topics cannot be covered well as part of one research project, especially in the case of an area having as large a mass of legal materials as does Western Europe.For this reason, the present inquiry is limited to one topic only: the extent to which the fact of alien age creates procedural obstacles for the enforcement of rights-in particular, through the requirement of security for costs, denial of the right to sue in forma pauper is, non-recognition of foreign judgments, and denial of the right to sue the government. Furthermore, this study has been restricted to three countries, Austria, France, and Germany. In view of the numerous treaties which affect the rights of aliens in these countries, there is a final limitation upon the scope of this paper: generally speaking, the rights of United States nationals, rather than those of aliens in general, will be considered.
Peter E. Herzog,
International Law, National Tribunals and the Rights of Aliens: The West European Experience,
21 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol21/iss5/6