The Rule of Prior Exhaustion of Local Remedies in the International Law Doctrine and its Application in the Specific Context of Human Rights Protection

Abstract

This article analyses the so-called ‘rule of exhaustion of local remedies’ whereby a State must be given the opportunity to redress an alleged wrong within the framework of its own domestic legal system before its international responsibility can be called into question at the level of regional or international organs. With respect to the specific historical development of the rule, the paper portrays the transition of the principle from its original function in international law to its extended application in human rights law. At the centre of the analysis is the question of whether the rule of exhaustion of local remedies has simply been ‘transplanted’ into the field of human rights protection or whether it has undergone substantial transformation to the extent that it now qualifies as a self-contained rule under human rights law. After having analysed the application of the local remedies rule in the field of human rights, it is argued that – even though initially influenced by the original rule in the field of diplomatic protection – at present the local remedies rule in human rights law is an autonomous and self-contained rule with different functions and aims.