International Law Review

International Law Review

ICJ’s Approach to the Objection of the United States Regarding Compliance with the Exhaustion of Local Remedy Rule: A Focus on the Certain Iranian Assets Case

Document Type : academic

Authors
Ahmad Reza Tohidi 1
Fateme Mirakhorli 2
1 Associate Professor of International Law Department of Qom University, Qom , Iran
2 PhD Student of International Law, Department of International law, Faculty of Law, University of Qom, Qom, Iran
10.22066/cilamag.2024.2023437.2516
Abstract
The protection of nationals is a significant issue in international law, albeit not contemporary. However, such protection is recognized by the respective State only if the injured individual has exhausted all available legal avenues for remedies (both administrative and judicial) within the domestic authorities of the defendant State. This requirement, serving as a precondition for initiating a lawsuit before international courts or tribunals, affords the host State the opportunity to investigate the alleged violation and provide redress. This article examines how the International Court of Justice (ICJ/ the Court) addresses preliminary objections and claims of non-compliance with the exhaustion of local remedy rule in cases brought before the Court. Employing a descriptive-analytical method and relying on library sources, the article explores the concept of access to justice and the exhaustion of local remedy rule in international disputes, with a particular focus on the ICJ's judgment of March 30, 2023, regarding the case of Certain Iranian Assets. The primary finding of this study is that the Court, departing from its previous approach and emphasizing the efficacy of remedies, dismissed the United States' objection that Iran failed to comply with the rule. The Court emphasized that the exhaustion of local remedy rule should be assessed on a case-by-case basis, taking into account the prevailing circumstances.
Keywords
Exhaustion of Local Remedy Rule
Settlement of International Disputes
International Court of Justice
Diplomatic Protection

Subjects

  1. - Books

    1. Augusto Cancado Trindade, Antônio. The Application of the Rule of Exhaustion of Local Remedies in International Law: Its Rationale in International Protection of Individual Rights. Cambridge: Cambridge University Press, 1983.
    2. Brownlie, Ian. Principles of Public International Law, 5th Oxford: Oxford press, 1998.
    3. Chitteranjan Felix, Amerasinghe, State Responsibility for Injuries to Aliens, 1st ed, Oxford: Clarendon press, 1967.
    4. Chittharanjan Felix Amerasinghe. Exhaustion of Local Remedies in International Law, 2nd London: Cambridge University Press, 2001.
    5. Chittharanjan Felix, Amerasinghe, Local Remedies in International Law, Cambridge: Grotius publications Ltd, 1990.
    6. Doehiring, Karl. Exhaustion of Local Remedies, in Rudolf Bernhardt, ed., Encyclopedia of Public International, Vol. 3. Elsevier, 1997.
    7. Dominic McGold, Rick. the Human Rights Committee, 1st Oxford: Clarendon press, 1991.
    8. Newcombe Andrew, Paul, and Lius Paradell. Law and practice of investment treaties: Standards of treatment, Kluwer Law International, 2009.

     

    - Articles

    1. D'Ascoli, Silvia, and Kathrin Maria Scherr, “The Rule of Prior Exhaustion of Local Remedies in the International Law Doctorine and its Application in the Specific Context of Human Right Protection,” EUI Working Papers Law, 2007.
    2. Kende, Tamás, “Distant Cousins: The Exhaustion of Local Remedies in Customary International Law and in the European Human Rights Contexts,” Elite Law Journal, 2020.
    3. Rudolf Braun, Tillmann, “Globalization-Driven Innovation: The Investor as a Partial Subject in Public International Law-An Inquiry into the Nature and Limits of Investor Rights,” Jean Monnet Working Paper, 2013.
    4. Sattorova, Mavluda, “Denial of Justice Disguised? Investment Arbitration and the Protection of Foreign Investors from Judicial Misconduct,” International and Comparative Law Quarterly 61, no. 1, 2012.

     

    - Documents

    1. Ambatielos, (Greece v. The United Kingdom), Judgment of May 19, 1953, ICJ Report, 1956.
    2. Arrest Warrant, (Democratic Republic of Congo v. Belgium), Judgment of February 14, 2002, ICJ Report, 2002.
    3. Avena and Other Mexican National, (Mexico v. United States of America), Judgment of March 31, 2004, ICJ report 2004.
    4. Bank Markazi v. Peterson, et al., U.S. Supreme Court, 20 April 2016, 578 S. 1. Retrieved from: https://supreme.justia.com/cases/federal/us/578/ 14-770/, accessed on April 23, 2024.
    5. Certain Iranian Assets, (Islamic Republic of Iran v. USA), ICJ pleadings, Counter-Memorial submitted by the United States, October 14, 2019.
    6. Certain Iranian Assets, (Islamic Republic of Iran v. USA), ICJ pleadings, Reply of Islamic Republic of Iran, submitted August 17, 2020.
    7. Certain Iranian Assets, (Islamic Republic of Iran v. USA), Judgment of March 30, 2023, ICJ Report, 2023.
    8. Corfu Channel, (United Kingdom of Great Britain and Northern Ireland. vs. Albania), Judgment of April 9, 1949, ICJ Report, 1949.
    9. Elettronica Sicula S.P.A. (ElSI), (USA v. Italy), Judgment of July 20, 1989, ICJ Report, 1989.
    10. Fourth Report on State Responsibility, by Mr. James Crawford, Special Rapporteur, April 2-3, 2001, UN doc. A/CN.4/517. Retrieved from: https://legal.un.org/ilc/documentation/english/a_cn4_517.pdf, accessed on April 23, 2024.
    11. Interhandel, (Switzerland v. USA), Judgment of March 21, 1959, ICJ Report, 1959.
    12. International Law Commission, Draft Articles on Diplomatic Protection, with commentaries, U.N. Doc. A/61/10, 2006.
    13. PCIJ Report, Series A/B, 1938, No. 74, p.17 and French pleading in PCIJ, Series C, No. 84, 1938.
    14. Second Report on Diplomatic Protection, by Mr. John R. Dugard, Special Rapporteur, A/CN.4/514, February 28, 2001. Retrieved from: https://legal.un.org/ilc/documentation/english/a_cn4_514.pdf, accessed on April 23, 2024.
    15. The Aerial Incident, (Israel vs. Bulgaria), Judgment of May 26, 1959, ICJ Report, 1959.

  • Receive Date 20 February 2024
  • Revise Date 07 May 2024
  • Accept Date 15 April 2024