A/CN.4/302 and Add.1, 2 & 3

Sixth report on State responsibility by Mr. Roberto Ago, Special Rapporteur - the internationallywrongful act of the State, source of international responsibility (continued)

Extract from the Yearbook of the International Law Commission:-

1977

Document:-

vol. II(1),

Topic:State responsibility

Copyright © United Nations

Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm)

STATE RESPONSIBILITY

[Agenda item 2]

DOCUMENT A/CN.4/302 AND ADD.1-3

Sixth report on State responsibility, by Mr. Roberto Ago, Special Rapporteur

[Original: French][15 April, 7 June, 5 and 14 July 1977]

The internationally wrongful act of the State, source of international responsibility (continued) *

CONTENTS

Page

Abbreviations 3

Explanatory note: italics in quotations 3

Chapter Paragraphs

HI. BREACH OF AN INTERNATIONAL OBLIGATION (continued) 1-113 4

5. Breach of an international obligation calling for the State to adopt a specific course of conduct 1-13 4Article 20 13 8

6. Breach of an international obligation requiring the State to achieve a particular result . . . 14-46 8

Article 21 46 20

7. Exhaustion of local remedies 47-113 20Article 22 113 43

ABBREVIATIONS

GATT General Agreement on Tariffs and TradeI.C.J. International Court of JusticeI.C.J. Pleadings I.C.J., Pleadings, Oral Arguments, DocumentsI.C.J. Reports I.C.J., Reports of Judgments, Advisory Opinions and OrdersILO International Labour OrganisationP.C.I. J. Permanent Court of International JusticeP.C.I.J., Series A P.C.I.J., Collection of JudgmentsP.C.I.J., Series A/B P.C.I.J., Judgments, Orders and Advisory OpinionsP.C.I.J., Series C P.C.I.J., Pleadings, Oral Statements and Documents

EXPLANATORY NOTE: ITALICS IN QUOTATIONS

An asterisk inserted in a quotation indicates that, in the passage immediately preceding theasterisk, the italics have been supplied by the Special Rapporteur.

* The present report is a continuation of the fifth report on State responsibility, submitted by the Special Rapporteur to the Com-mission at its twenty-eighth session (Yearbook... 1976, vol. II (Part One), p. 3, document A/CN.4/291 and Add.1-2).

Yearbook of the International Law Commission, 1977, vol. II, Part One

CHAPTER III

Breach of an international obligation (continued)1

5. BREACH OF AN INTERNATIONAL OBLIGATION CALLINGFOR THE STATE TO ADOPT A SPECIFIC COURSE OF CON-DUCT

1. The preceding section of this chapter was devoted toa study of the impact of the content of an internationalobligation on the definition of a State action committedin violation of that obligation. Specifically, considerationwas given to the manner in which the degree of impor-tance of the content of the breached international obli-gation for the safeguarding of the fundamental interestsof the international community as a whole was reflectedin the characterization of the act. On that basis, a distinc-tion was made between two types of internationallywrongful acts, defined respectively as international"crimes" and international "delicts", to which differentregimes of responsibility applied. Quite logically, thedefinition of these regimes was postponed until later;it was nevertheless noted that the difference between themrelated both to the type of consequences deriving fromthe internationally wrongful act attributable to the Statethat had committed the breach and to the subjects of lawauthorized to "enforce" those consequences.2. However, the substantive aspects of an internationalobligation may also be viewed from another angle: notso much from the point of view of content but ratherfrom that of the type of obligation, of the manner inwhich it imposes its requirements upon a State. Theobligations imposed on a State under international lawnot only reflect duties relating to various sectors of inter-State relations, to matters of varying importance for theinternational community; they may also be structureddifferently with respect to the ways and means by whichthe State is expected to ensure their fulfilment. It followsthat the breach by a State of an international obligationincumbent upon it does not necessarily assume the sameform in each case.

3. For a better understanding of the nature of thisdistinction, it should be remembered that, although allobligations placed upon a State under the rules of inter-national law are of course directed towards a particulargoal, there is a vast difference between a case where themeans of attaining that goal are determined at the inter-national level and a case where they are determined atthe national level. In the former case, the obligations arelaid upon the State, requiring it to take or to refrainfrom taking some specific action: for example, to adoptor to refrain from adopting a specific legislative, admin-istrative or judicial act. In the latter case, internationallaw, concerned with respect for the internal freedom ofthe State, merely requires the State to ensure a particularsituation or result and leaves it free to do so by whatevermeans it chooses. To quote Dionisio Anzilotti:

... as a rule, international law does not establish the meanswhereby the State has to ensure that its duties are carried out.

The logical necessity for respecting the internal freedom of theState means that the prescriptions of international law are usuallyfairly general: they have to indicate the required result, leavingit to the State to choose the means of achieving it. 2

The only condition international law lays down in thiscase that would make it possible to say that executionof the international obligation has been ensured is that,by one means or another, the desired result must be fullyattained. As has been pointed out on many occasions,one of the principles most generally recognized in theliterature, in judicial decisions and in internationalpractice is that a State may not take advantage of theshortcomings of its internal order to evade its internationalduties.4. On that basis, therefore, the existence of two kindsof international obligations may be noted. In carryingout some of them, the State may employ only certainspecific means; in carrying out others, it can choose fromamong a variety of means. 3 It will be seen in the nextsection that, in the latter case, there are, in turn, a numberof possibilities. It may make no difference with regard tointernational law which of the possible alternatives aState chooses, or—and this amounts to almost the samething—the obligation in question, while implying apreference for one means, may nevertheless permit, or atany rate not rule out, the State's choice of another means.Above all, the result aimed at by the international obli-gation may be so defined that, once a situation inconsistentwith that result has been created by the means chosenby the State, it will have to be concluded that the Statehas definitely failed to carry out the task incumbent uponit, whereas in a different case it may not be necessary toarrive at such a conclusion. The internationally desiredresult may be defined in such a way as to permit itsbeing also regarded as achieved when, by extraordinarymeans, the State ex post facto remedies the situationcreated by the means originally employed and restores asituation that is fully consistent with the desired result.However, rather than anticipate, it is preferable at thisstage simply to consider the basic distinction betweenobligations that call categorically for the use of specificmeans and those that leave the State free to choose amongvarious means. As has just been said, this basic distinction

1 For the beginning of chapter III (sections 1-4), see Yearbook...1976, vol. H (Part One), p. 3, document A/CN.4/291 and Add.1-2.

2 "La responsabilit6 internationale des Etats a raison des dom-mages soufferts par des Strangers", Revue generate de droit inter-national public, vol. XIII, No. 1, (Paris, 1906), p. 26. Anzilottiadds: "That is why the State in most instances performs not somuch acts prescribed by international law as acts that it has itselffreely chosen as the most appropriate means of ensuring that itsduty vis-a-vis other States is fulfilled." See also the same author'sTeoria generate della responsabilitd dello Stato nel diritto inter-nazionale, reprinted in Scritti di diritto internazionale pubblico(Padua, CEDAM, 1956), vol. I, p. 117.

3 A distinction between the two types of obligations had alreadybeen made by H. Triepel, who emphasized the difference betweendirectly ordered internal law ("unmittelbar gebotenes Landesrecht")and internationally necessary internal law ("internationales unent-behrliches Landesrecht") (H. Triepel, Volkerrecht und Landesrecht(Leipzig, Hirschfeld, 1899), p. 299) (French edition: Droit inter-national et droit interne, translated by R. Brunet (Paris, Pedone,1920), p. 297). The same distinction is necessarily implied in thepassages from Anzilotti quoted in the preceding foot-note. How-ever, it was D. Donati who stated it explicitly for the first time andmade it a general principle (D. Donati, / trattati internazionali neldiritto constituzionale (Turin, Unione tipografico-editrice torinese,1906), vol. I, pp. 343 et seq.).

State responsibility

between two types of international obligations necessarilyhas an impact on the manner in which the obligationis breached. This section is devoted to analysing the firstof the two possibilities indicated above; its purpose willtherefore be to determine under what conditions a breachof an international obligation exists in cases where theobligation calls for the State to adopt a specific course ofconduct.

5. In the situation that has just been mentioned, thespecific conduct required of the State by the internationalobligation may be a course of action. It may involveaction by legislative or, in a broader sense, regulatorybodies in the form of adoption or repeal of a law in thestrict sense of the term, or at all events of a given regu-lation, of whatever kind. The example may be cited of theobligation imposed by one of the so-called "uniform law"international conventions. Under article I, paragraph 1,of the Convention relating to a uniform law on theinternational sale of goods: (The Hague, 1 July 1964)4

Each Contracting State undertakes to incorporate into its ownlegislation, in accordance with its constitutional procedure, notlater than the date of entry into force of the present Conventionin respect of that State, the Uniform Law on the InternationalSale of Goods... forming the Annex to the present Convention.

The Hague conventions on private international law,some of the international labour conventions,5 someagreements relating to international law in matters ofhealth, the provisions drawn up by some internationalorganizations and agencies,6 etc. contain similar formu-

4 United Nations, Treaty Series^ vol. 834, p. 107.5 See, for example, ILO Convention No. 121 concerning Benefits

in the Case of Employment Injury (Conventions and Recommenda-tions, 1919-1966 (Geneva, International Labour Office, 1966),p. 1080), which specifies the categories of persons to whom nationallegislation is to accord such benefits. It should be noted thatsome conventions do not expressly lay down, or mention only inpart, the requirement for legislative action; this requirement maynevertheless be deduced from the context of the convention, as isthe case with regard to articles 1 and 2 of Convention No. 55 con-cerning the Liability of the Shipowner in Case of Sickness, Injuryor Death of Seamen (ibid., p. 333), or article 2 of Convention No. 112concerning the Minimum Age for Admission to Employment asFishermen (ibid., p. 977), or article 4 of Convention No. 123 con-cerning the Minimum Age for Admission to Employment Under-ground in Mines (ibid., p. 1117), and others. The forms addressedto States concerning observance of the provisions of these conven-tions confirm this conclusion. For example, that relating to Con-vention No. 55 contains the following injunction: "Please give a listof the legislation and administrative regulations, etc., which applythe provisions of the Convention. Where this has not alreadybeen done, please forward copies of the said legislation ..." Inreply to a question put on the subject by the Government of theUnited States, the International Labour Office replied, on 13 Novem-ber 1950, that "the competent bodies of the International LabourOrganisation have regarded the question of whether or not legis-lation is, in fact, necessary to make effective the provisions of sucha Convention as being a matter for decision by each Member ofthe Organisation in the light of its constitutional practice andexisting law". The reference to constitutional practice clearlyrelated to those cases where, under that practice, the ratificationof a convention automatically incorporates the provisions of theconvention into "the law of the land", thus in fact giving the instru-ment of ratification the force of a domestic legislative enactment.See The International Labour Code, 1951 (Geneva, ILO, 1952),vol. I, pp. 863 et seq., foot-note 352.

6 Article 24 of the Convention establishing the definitive statuteof the Danube, adopted at Paris on 23 July 1921 (League of Nations,Treaty Series, vol. XXVI, p. 187), laid down expressly that the

las. Article 10, paragraph 1, of the State Treaty for theRe-establishment of an Independent and DemocraticAustria (Vienna, 15 May 1955)7 requires Austria, interalia, to codify the principles set out in articles 6, 8 and 9 ofthe Treaty and to give effect to them. On the other hand,under article 2, paragraph 1 (c), of the 1965 InternationalConvention on the Elimination of All Forms of RacialDiscrimination,8

Each State Party shall take effective measures to... amend,rescind or nullify any laws and regulations which have the effectof creating or perpetuating racial discrimination wherever it exists.

Similarly, under article 3 (a) of the 1960 Conventionagainst discrimination in education, 9 States undertookto "abrogate any statutory provisions and any adminis-trative instructions . . . which involve discrimination ineducation". Article 10, paragraph 1, of the AustrianState Treaty required Austria to repeal or amend alllegislative and administrative measures adopted between5 March 1933 and 30 April 1945 that conflicted with theprinciples set forth in articles 6, 8 and 9 of the Treaty.Action by executive organs might also be involved: forexample, in connexion with specific obligations to deliverarms and other objects, to deliver or scuttle ships, or todismantle fortifications, which appear so frequently inpeace treaties.10 Lastly, action by judicial organs mightbe involved. Examples are to be found in some inter-national conventions on judicial competence, on recogni-tion of foreign decisions or on legal assistance.u Evenmore specific examples are provided by peace treatiesrequiring the competent authorities to revise certainrulings and orders of prize courts.12

6. The specific conduct required of a State under aninternational obligation may also be an act of omission.Moreover, the conduct in question may relate to differentareas of activity. It may be the obligation of the Statenot to enact certain laws or, more generally, certainregulations. An example of an international obligationrequiring the State not to rescind specific laws is found,once again, in article 10 of the 1955 Treaty, under whichAustria undertakes to keep in force the laws alreadyadopted for the liquidation of the remnants of the Naziregime; a similar case is the law of 3 April 1919 concern-ing the House of Hapsburg-Lorraine. Again, certain

Danube Commission should draw up navigation and police regula-tions and that "Each State shall bring these regulations into forcein its own territory by a legislative or administrative act ...".

7 United Nations, Treaty Series, vol. 217, p. 223.8 Ibid., vol. 660, p. 195.9 Ibid., vol. 429, p. 93.10 See, for example, article 115 of the Treaty of Versailles, which

provides for the destruction of the fortifications, military establish-ments and harbours of the Islands of Heligoland "by Germanlabour and at the expense of Germany" (British and Foreign StatePapers, 1919 (London, H. M. Stationery Office, 1922), pp. 71and 72). See also articles 145 and 195 and other articles of part Vof the same Treaty. See further, articles 40,41 and 42 of the Treatyof Peace with Italy (for reference, see foot-note 12 below) and thesimilar provisions in the other peace treaties following the SecondWorld War.

11 See, for example, article 2, paragraph 1, and articles 31 and 32of the Brussels Convention of 27 September 1968 concerningjurisdiction and the enforcement of civil and commercial judgments.

12 See, for example, annex XVII (A) of the Peace Treaty betweenthe Allied and Associated Powers and Italy, signed at Paris on10 February 1947 (United Nations, Treaty Series, vol. 49, p. 3).

Yearbook of the International Law Commission, 1977, vol. n , Part One

international obligations require that the administrativeauthorities, particularly the police, refrain from enteringcertain premises which enjoy special protection, such asthe premises of a diplomatic or consular mission or aninternational organization,13 or that the authorities inquestion refrain from subjecting certain individuals toarrest or detention.14 Under general international law,the police forces—and, a fortiori, the armed forces—ofany country are under an obligation not to enter theterritory of another country without the latter's consent,not to make arrests there, etc. Some peace treaties evenlay down the specific obligation not to maintain orassemble armed forces in a specified portion of theterritory of the State in question.15 In other cases, it isthe judicial authorities which are required not to exercisetheir jurisdiction in respect of foreign States, certain oftheir organs or certain categories of disputes,16 etc.

7. In the cases just envisaged, which, despite theirdiversity, are all characterized by the fact that the inter-national obligation in question requires from the Statea specific course of conduct in the form of an action oromission, the implications of the nature of the obligationfor determining the existence of a possible breach arelogically clear. Difficulties may always arise in a particularcase in determining what in fact was the conduct of theState organs, and questions may always arise regardingthe verification of the exact content of the obligationincumbent upon the State. There can be no doubt, onthe other hand, regarding the conclusion that, when theaction or omission noted is, in fact, not in conformitywith the conduct specifically required of the organresponsible for the action or omission, there is an imme-diate breach of the obligation in question, without anyother condition being required for such a finding. Thefinding should not be influenced by whether or not thenon-conformity of the conduct adopted with the conductwhich should have been adopted had harmful conse-quences. If, for example, as in the case of article 10,paragraph 3, of the International Covenant on Economic,

18 Under article 22, para. 1, of the 1961 Vienna Convention onDiplomatic Relations (ibid., vol. 500, p. 95), for example, "Thepremises of the mission shall be inviolable. The agents of the receiv-ing State may not enter them, except with the consent of the headof the mission.

14 Article 29 of the same Convention provides that "The personof a diplomatic agent shall be inviolable. He shall not be liableto any form of arrest or detention ...".

18 Article 43 of the Treaty of Versailles (for reference, see foot-note 10 above) forbade Germany to maintain or assemble armedforces and execute military manoeuvres on the left bank of the Rhineand on the right bank to the west of a line situated 50 kilometresfrom the river.

16 Thus, for example, article 43, para. 1, of the 1963 ViennaConvention on Consular Relations (United Nations, Treaty Series,vol. 596, p. 261) forbids the judicial authorities of the receivingState to exercise their jurisdiction over consular officers in respectof acts performed in the exercise of consular functions. Article II,para. 3, of the Convention on the Recognition and Enforcement ofForeign Arbitral Awards (New York, 10 June 1958) (ibid., vol. 330,p. 3) requires the court of a contracting State, seized of an actionin a matter in respect of which the parties have made an arbitrationagreement to refrain from any exercise of jurisdiction and to referthe parties to arbitration if one of them so requests. Other con-ventions provide for the obligation to suspend certain sentencesduring the term of a parallel sentence in another State.

Social and Cultural Rights,17 an international conventionimposes on a State an obligation to the effect that theemployment of children and young persons "in workharmful to their morals or health or dangerous to life orlikely to hamper their normal development should bepunishable by law", this obligation is breached simplyby the fact that the law providing for punishment ofsuch practices has not been enacted, even if no specificinstance of employment of children in such work hasbeen found in the country concerned. Similarly, if, asin the case of article 2, paragraph 1 (c), of the 1965International Convention on the Elimination of AllForms of Racial Discrimination, a convention obliges aState to rescind legislative provisions which have theeffect of creating such discrimination, this obligation isbreached simply by the fact that the provisions in questionhave not officially been rescinded, even if they actuallynever would have been or no longer could be applied.8. A study of both State practice and international legalprecedents confirms the validity of the distinction drawnhere between the nature of the international obligationwhich requires from the State a specific activity and thenature of the obligation which requires only that theState achieve a certain result, leaving it free to choose themeans of attaining that result. In particular, this studyconfirms the conclusion that, when the obligation is inthe first of these two categories, the activity of a Stateorgan which proves to be not in conformity with thatrequired of it is sufficient to constitute a breach of theobligation. The most accurate theoretical formulation ofthese conclusions was given by the Swiss Governmentin its reply to point HI, No. I, of the request for informa-tion addressed to States by the Preparatory Committeeof the Conference for the Codification of InternationalLaw (The Hague, 1930). The "point" was worded asfollows:

Does the State become responsible in the following circumstances:Enactment of legislation incompatible with the treaty rights of

other States or with its other international obligations? Failureto enact legislation necessary for the purpose of implementing thetreaty obligations of the State or its other international obligations?18

In response to the second question, the Swiss Govern-ment noted:

We should ... be adopting too absolute an attitude if we merelyreplied in the affirmative to the second question raised under (!)•Failure to enact legislation may of itself involve the internationalresponsibility of the State if some agreement to which the Stateis a party expressly obliges * the contracting parties to enact certainlegislation. On the other hand, in the absence of a contractualprovision of this kind, it is not failure to enact a law which involvesthe responsibility of a State, but rather the fact that this State isnot in a position, by any means, * to fulfil its international obli-gations ...19

The distinction between the two ways in which an inter-national obligation may be breached, depending on thevarying nature of the obligation, is clearly brought out

17 General Assembly resolution 2200 A (XXI), annex.18 League of Nations, Conference for the Codification of Inter-

national Law, Bases of Discussion for the Conference drawn up bythe Preparatory Committee, vol. Ill: Responsibility of States forDamage caused in their Territory to the Person or Property ofForeigners (document C.75.M.69. 1929.V), p. 25.

19 Ibid., p. 29.

State responsibility

in this explicit statement. In particular, with regard to thecase referred to in this section, the Swiss Governmentclearly favours the view that, when the internationalobligation specifically requires the State to adopt acertain measure (in this case a law), the mere negativefact of not adopting that measure constitutes in itself abreach of the international obligation in question and,if all other circumstances are equal, involves the respon-sibility of the State.

9. There is no doubt either about the applicability ofthe principle thus stated to practical cases. In this con-nexion, it is particularly interesting to consider casesinvolving the violation of certain international labourconventions, for example, when one of the States whichratified a convention has not enacted the legislativeprovisions required by the convention or, above all, hasnot rescinded the laws which the convention expresslyobliged it to rescind. Let us take, for example, the reportof the commission appointed under article 26 of theConstitution of the ILO to examine the complaint filedby the Government of Ghana concerning the observanceby the Government of Portugal of Convention No. 105concerning the Abolition of Forced Labour, 1957. Itwill be noted that the Commission (composed ofMr. P. Ruegger, Mr. E. Armand-Ugon and Mr. I. Forster)stressed in particular that the international obligationsplaced on the State by certain conventions require theformal rescission of a particular legislative provision andthat a "situation in which a legal provision inconsistentwith the requirements of the Convention subsists but isregarded as obsolete" or as being superseded de factocannot be considered satisfactory for the purposes ofthe application of the Convention. The Commissionemphasized that "Full conformity of the law with therequirements of the Convention is therefore essential *,"even if taken alone that is not enough, since it is alsonecessary "that the law should be fully and strictly appliedin practice." 20 Subsequently, the report of the commis-sion appointed under article 26 of the Constitution ofthe ILO to examine the complaint filed by the Govern-ment of Portugal concerning the observance by theGovernment of Liberia of the Forced Labour Convention,1930 (No. 29) showed that the Commission (composed ofMr. E. Armand-Ugon, Mr. T. P. P. Goonetilleke andMr. E. Castren) endorsed the opinion expressed by theGhana-Portugal omission. It was in application of andwith specific reference to article 23 of the Convention,which requires the competent authorities of the Stateto "issue complete and precise regulations governingthe use of forced or compulsory labour", that the Com-mission concluded that:

... the legislation of Liberia until 31 August 1961, the date offiling of the complaint, was inconsistent with the obligation ofLiberia under the Constitution of the Organisation to give effectto the provisions of the Convention in law and in fact and withthe specific requirements of Articles 23 to 25 of the Convention". 21

10. In other cases it has not been a breach of the specificobligation to enact or abrogate a legislative provisionwhich has been the subject of a dispute between Statesbut rather failure to observe the equally specific obligationto perform a certain act of an administrative nature or,particularly, to refrain from performing such act, such asthe obligation not to enter the premises of a diplomaticmission or the private residence of a foreign diplomaticagent, 22 or the premises of a foreign consulate ,23 Instill other situations, the dispute has been caused by abreach of the obligation to respect the immunity fromjurisdiction of diplomatic agents etc. 24 In all these cases,the basic principle applied has been the same, namely,that the adoption by any administrative or judicialauthority of conduct different from that specificallyrequired by the international obligation has been con-sidered as immediately constituting a breach of thatobligation.

11. The positions taken by the authors of scientificworks dealing with the question examined here coincidewith those deriving from the logic of the relevant prin-ciples and confirmed by State practice and by internationaljudicial decisions. Heinrich Triepel expressly deducedfrom the distinction he had made concerning the possibleinfluence of international law on internal law that, whena rule of international law or a treaty imposes on theState the duty to have a. particular law, the non-adoptionor the abrogation of such law constitutes a breach ofinternational law or of the treaty; this obtains even if,despite the non-adoption or the abrogation of the inter-nationally required internal law, the State is in a position"effectively to carry out everything which can or shouldbe carried out under the law" and intends to do so. 25

More recently, several authors have studied the questionin greater detail and have shown the effect which theform taken by an international obligation necessarilyhas on determining the existence of a breach of suchobligation. With reference to the matter which is of con-cern to us in this section, the authors have stressed that,where the obligation requires of a State conduct—whetherinvolving an action or an omission—"which mustnecessarily be carried out in certain ways and by specificbodies", any conduct adopted by the State which is notin conformity with that specifically required constitutesas such "a direct breach of the existing internationallegal obligation", so that, if all the other requisite con-ditions exist, we are confronted with an internationallywrongful act. 26

20 ILO, Official Bulletin, vol. XLV, No. 2, Supplement II, April1962, para. 716, p . 231.

21 Ibid., vol. XLVI, No. 2, Supplement II, April 1963, para. 416,p. 182. Article 25 supplements article 23 by requiring that theillegal exaction of forced or compulsory labour should be punishableas a penal offence.

22 See in this connexion the cases cited by G . H . Hackwor th ,Digest of International Law (Washington, D .C . , United StatesGovernment Printing Office, 1942), vol. IV, p p . 562 et seq.

23 See G. H . Hackworth , op. cit., pp . 716 et seq.; A . C. Kiss,Repertoire de la pratique francaise en matiire de droit internationalpublic (Paris, C N R S , 1965), vol. I l l , p p . 408 et seq.; S.I.O.I.-C.N.R. , La prassi italiana di diritto internazionale (Dobbs Ferry,New York , Oceana, 1970), first series (1861-1887), vol. I, p p . 469-470.

24 See the cases cited by G . H . Hackwor th , op. cit., p p . 533 etseq.; A . C. Kiss, op. cit., p p . 340-341; S.I.O.I.-C.N.R., op. cit.,pp . 384 et seq.

26 Triepel, op cit,. p . 299.26 See R. Ago, "La regola del previo esaurimento dei ricorsi

interni in tema di responsabilita internazionale", Archivio di diritto(Continued on next page.)

Yearbook of the International Law Commission, 1977, vol. II, Part One

12. One might be tempted to characterize as "inter-national obligations of conduct" those obligationswhich require a State to adopt a specific course ofconduct, whether an action or an omission, as opposedto those obligations which impose on the State the genericrequirement that it should bring about a certain resultbut leave to it the choice of the ways and means by whichthe results are to be achieved, and which could be char-acterized as "obligations of result". That would simplybe following the model furnished by the systems ofinternal private law originating in Roman law. Thus itwould be possible to define as an "internationally wrong-ful act of conduct" and an "internationally wrongfulact of result" respectively the breach by a State of aninternational obligation falling within the first or thesecond of those two categories. In our opinion, the useof this terminology might be helpful because of itsconcision. It might, however, be wiser to speak moreprecisely, with regard to the first category, of "obliga-tions of specific conduct" and, consequently, of "inter-nationally wrongful acts of specific conduct", for evenin the case of "obligations of result" it is still the "con-duct" of the State which is required in order to ensurethe desired result. We feel it would be appropriate toemphasize that the meaning attributed to the distinctionand the characterizations in question would be thatwhich is made clear in this section, a meaning whichseems to us to correspond to typical aspects of the inter-national community and its law. On the other hand,there would be some risk of conclusion in seeking toliken the distinction and the characterizations in questiontoo closely to those which are familiar to jurists concernedwith systems of private law and which are logicallyinfluenced by the aspects proper to these other socio-juridical systems. 27

(Foot-note 26 continued.)pubblico, May-August 1938-XVI (Padua, CEDAM, 1938), vol. 3,fasc. 2, pp. 231 et seq.\ and "Le delit international", Recueil descours de VAcademie de droit international de La Haye, 1939-11(Paris, Sirey, 1947), vol. 68, pp. 508 et seq. See also, in particular,G. Morelli, Nozioni di diritto internazionale, 7th ed. (Padua, CEDAM,1967), p. 332; P. Reuter, "La responsabilit6 internationale", Droitinternational public (cours) (Paris, Les Nouvelles Institutes, 1955-1956), pp. 56 et seq.; A. P. Sereni, Diritto internazionale (Milan,Giuffre, 1962), vol. Ill, pp. 1533 et seq. For an analysis of par-ticular aspects of the question related to the legislative activity ofthe State, see Ch. de Visscher, "La responsabilite des Etats",Bibliotheca Visseriana (Leyden, Brill, 1924), vol. II, p. 97; E. Vitta,La responsibility internazionale dello Stato per atti legislativi (Milan,Giuffre, 1953), pp. 87 et seq.; A. S. Bilge, La responsabiliti inter-nationale des Etats et son application en matiere d'actes legislatifs(thesis No. 471) (Istanbul, Tsitouris, 1950), pp. 101 et seq.

27 An ingenious application to international law of conceptsproper to civil law has been proposed by P. Reuter (Joe. cit.). Butit should be noted that, while in most cases an "obligation of con-duct" in the meaning which we favour is at the same time an "obli-gation of conduct" in the meaning which would be borrowed fromcivil law, this is not always the case; the same is true of "obligationsof result". According to the civil law criterion which, for example,holds that the obligation of a doctor to treat a patient withoutnecessarily being able to ensure his cure is an obligation of conduct,one would have to characterize as an international obligation ofconduct the obligation of the State to protect foreigners, andparticularly certain foreign persons, against attempts by thirdparties, an obligation which, on the contrary, would appear to bean obligation of result according to the criteria favoured in thissection. The State has in fact the choice of the means which itconsiders most appropriate to ensure the protection in question.

13. Whatever the terminology which the Commissionmay choose, the Special Rapporteur thinks that, for thepurposes of the present draft, the definition of theprinciple with which this section is concerned should notpresent any particular difficulties. In view of all theforegoing considerations, he therefore proposes theadoption of the following text:

Article 20. Breach of an international obligation calling for the Stateto adopt a specific course of conduct

A breach by the State of an international obligation specificallycalling for it to adopt a particular course of conduct exists simply byvirtue of the adoption of a course of conduct different from thatspecifically required.

6. BREACH OF AN INTERNATIONAL OBLIGATION REQUIRINGTHE STATE TO ACHIEVE A PARTICULAR RESULT

14. The previous section was devoted to cases of breachby a State of international obligations requiring it toengage in or refrain from a specific activity. In suchcases—which, as stated, are relatively rare—internationallaw, in a sense, invades the sphere of the State by requir-ing one or other specified component of the State machin-ery to adopt a particular course of conduct. It requiresthat the legislative organ, or at any rate some organhaving a normative function, issue or revoke certainrules, or that the executive organs perform or refrainfrom certain acts, or that the judicial organs rule orrefrain from ruling on certain situations or as regardscertain persons, and so on. We showed in this way that,in all such cases, the form, as thus described, of the inter-national obligation had obvious consequences for deter-mining whether the obligation had been fulfilled orbreached. If the course of conduct specifically requiredhas been adopted, the obligation will have been fulfilled;if it has not, the obligation will have been breached.

15. The situation is entirely different in the cases—particularly numerous in international law—where inter-national law stops short at the outer boundaries of theState machinery and, as we stated above, being "concernedwith respect for the internal freedom of the State, merelyrequires the State to ensure a particular situation orresult and leaves it free to do so by whatever means itchooses". 28 The purpose of the present section is pre-cisely to establish how to determine that there has been abreach of an international obligation characterized bythis other form, so different from the previous one.

16. It was pointed out earlier29 that the cases we nowpropose to consider covered a vast and varied range, andthe various possibilities within that range were brieflyreviewed. We looked first of all at cases in which theState has some initial freedom of choice as to the meansof achieving the result required by an internationalobligation. Among those cases, we noted that there wasa distinction to be made. On the one hand were the caseswhere it was left entirely to the State to choose betweenthe means available to it to achieve the result required by

28 See para. 3 above.29 See para. 4 above.

State responsibility

the international obligation, and no opinion was expressedat the international level. On the other hand were thecases where the international obligation did at leastindicate a preference and suggest that a particular meansappeared as at any rate the most likely to produce therequired result though without making recourse to thatmeans compulsory.

17. There are many examples of cases in the first group.Sometimes the text of the treaty itself, in imposingcertain obligations, expressly states that it is left to theState to choose the means of achieving the purpose of theobligation. Article 14 of the Treaty instituting the Euro-pean Coal and Steel Community provides that:

Recommendations shall be binding with respect to the objectiveswhich they specify but shall leave to those to whom they are directedthe choice of appropriate means for attaining these objectives. 80

The Treaty establishing the European Economic Com-munity provides in article 189, third paragraph, that:

Directives shall bind any Member State to which they areaddressed, as to the result to be achieved, while leaving to domesticagencies a competence as to form and means. 31

Again, the State's complete freedom of choice is some-times implicit in the fact that the international obligationgenerally calls upon the States bound by it to take "allappropriate measures" to achieve a given result, withoutgiving any indication as to what those appropriatemeasures may be. For example, the International Con-vention on the Elimination of All Forms of RacialDiscrimination provides in article 2, paragraph 1, that:

States Parties condemn racial discrimination and undertake topursue by all appropriate means and without delay a policy ofeliminating racial discrimination in all its forms. 82

Similarly, with regard to the protection of the represen-tative organs of other States, the Vienna Convention onDiplomatic Relations provides in article 22, paragraph 2,that:

The receiving State is under a special duty to take all appro-priate steps to protect the premises of the mission against anyintrusion or damage and to prevent any disturbance of the peaceof the mission or impairment of its dignity.83

and in article 29 that "The receiving State . . . shall takeall appropriate steps to prevent any attack on [a diplo-matic agent's] person, freedom or dignity". The ViennaConvention on Consular Relations, in article 31, para-graph 3, and article 40, M and the 1969 Convention onSpecial Missions, in article 25, paragraph 2, and arti-cle 29, 35 use virtually identical language. In perhaps aneven larger number of cases, the freedom of choiceaccorded to the State is left to be inferred from the factthat the international obligation merely specifies theresult to be achieved, and the text imposing the obliga-tion makes no mention of the means of achieving it.Examples are to be found in the 1950 Convention forthe Protection of Human Rights and Fundamental

Freedoms 36 and certain international labour conventions;many other texts contain provisions of the same kind. 37

We may add that the situation described here is normalas regards international obligations, whether of customaryor of treaty origin, concerning the protection of aliensand certain specific categories. M

18. With regard to the second group of cases, we needonly mention, among other examples, article 2, para-graph 1, of the International Covenant on Economic,Social and Cultural Rights, which provides that:

Each State Party to the present Covenant undertakes to takesteps... with a view to achieving progressively the full realizationof the rights recognized in the present Covenant by all appropriatemeans, including particularly the adoption of legislative measures, 89

or article 2, paragraph 2, of the International Covenanton Civil and Political Rights, which provides that:

Where not already provided for by existing legislative or othermeasures, each State Party to the present Covenant undertakesto take the necessary steps, in accordance with its constitutionalprocesses and with the provisions of the present Covenant, toadopt such legislative or other measures * as may be necessary togive effect to the rights recognized in the present Covenant. 40

There can be no doubt that, in these cases, the legislativemeans is expressly indicated at the international levelas the most normal and most appropriate means ofachieving the purposes of the Covenant in question.But recourse to such means is not specifically required;it is not made an exclusive condition. The State is leftfree to employ some other means if it sees fit, providedthat such means equally enables it to achieve in concretothe full realization of the human rights prescribed by theCovenants.

80 United Nations, Treaty Series, vol. 261, p . 140.31 Ibid., vol. 298, p . 11.82 For reference, see foot-note 8 above.88 Idem, foot-note 13.84 Idem, foot-note 16.86 General Assembly resolution 2530 (XXIV), annex.

88 United Nations, Treaty Series, vol. 213, p . 221. Article 1of the Convention provides:

"The High Contracting Parties shall secure to everyone withintheir jurisdiction the rights and freedoms defined in Section Iof this Convention."The articles of Section I provide as follows: " N o one shall be held

in slavery or servitude" (article 4, paragraph (1)); "No one shallbe required to perform forced or compulsory labour" (article 5,paragraph (2)); "Everyone has the right to liberty and security ofperson" (article 5, paragraph (1)); and so on. It is implicit inthese provisions that the State is free to choose whatever meansit deems best calculated to ensure that no one is held in slavery,that everyone's security of person is preserved, and so forth.

37 As a rule, treaty provisions binding States to extend most-favoured-nation treatment to other States in an agreed field ofrelations merely state the aim to be achieved, without specifyingthe means to be employed to achieve it.

38 The Memorial of the Italian Government in the Phosphatesin Morocco case (Preliminary Exceptions) refers to the obligationplaced on the protecting Power by international law to ensure"that the treatment which the Protecting Power is bound by inter-national conventions to extend to aliens, and respect for the acquiredrights of aliens vis-a-vis the public administration, are guaranteedby adequate means of judicial protection". The Memorial goeson to say that: "The Protecting Power has the choice of thosemeans; it may choose whatever means it deems most appropriatefor the organization of the public authorities of the Protectorate,but they must be calculated to assure aliens of treatment in con-formity with international conventions and acquired rights" (trans-lation by the Secretariat). See Repertoire des decisions et desdocuments de la procedure ecrite et orale de la Cour permanentede justice Internationale et de la Cour Internationale de justice,published under the direction of P. Guggenheim, Serie I, vol. I,Droit international et droit interne, by K. Marek (Geneva, Droz,1961), p . 679.

39 General Assembly resolution 2200 A (XXI) , annex.40 Ibid.

10 Yearbook of the International Law Commission, 1977, vol. II, Part One

The reply given to the Irish Government by the ILOon 18 October 1929 is particularly instructive on thispoint. The Government had asked whether legislationwas specifically required in order to give effect to theprovisions of articles 2, 3 and 4 of Convention No. 14of 1921 (Convention concerning the application of theweekly rest in industrial undertakings), seeing that is wasalready Irish practice to grant industrial workers a restperiod of 24 hours. The ILO observed that "The coursemost usually adopted is that of passing legislation tomake the application of the weekly rest compulsory inindustrial undertakings", but that the Convention leftconsiderable latitude to Governments in fulfilling theobligation. It went on to say:

A Government is therefore free to apply under the Conventionany system which meets with its approval;... it is for the Govern-ment which undertakes international responsibility as a party toa Convention to judge what is the action which in its view willsecure the Convention's effective application. In the present case,it would be for your Government to decide what guarantees, ifany, would be necessary after ratification to guard against changesin, or non-observance of, the existing practice.

The ILO made no secret of its view that the adoptionof legislation giving the force of law to the existingpractice was the most appropriate method to follow inthe case in point; but it repeated that the Government wasfree to adopt any other method, provided it would"secure the effective fulfilment of the Convention". 41

19. We also noted that the existence of a certain latitudewith regard to the course to be followed to achieve theresult required by international law might be demonstratedin some other way than by the existence of an initialfreedom of choice. 42 It is fairly common for a Statewhich has initially adopted a course of conduct, by actor omission, calculated to frustrate the achievement ofthe result required of it by an international obligationto find itself granted another opportunity to comply withthat obligation. In certain circumstances, and providedthat the initial course of conduct has not made therequired result impossible of attainment, internationallaw allows the State to redress the unfortunate situationwhich has temporarily arisen and produce that result,albeit after some delay, by adopting, as an exceptionalmeasure, another course of conduct capable of erasingentirely the consequences of its first course of conduct.Obviously—and this should be quite clear—the situationin this case is not the same as in the cases consideredabove. As we have already noted, this is not a questionof freedom of choice for the State between differentmeans on the same plane; recourse to a subsequent courseof conduct designed to remedy the internationally un-acceptable effects of the initial course of conduct partakesof the "pathology" rather than the "physiology" of thefulfilment of international obligations. It is neverthelessa fact that the existence of this possibility of makinggood the defects of the means which ought normally tohave been applied at the outset to achieving the resultrequired by the international obligation is sufficient initself to warrant the conclusion that the State has atits disposal more than one means of fulfilling its obliga-

41 The International Labour Code, 1951 {op. cit.), p p . 277-278.42 See para. 4 above.

tion. For the possibility of still achieving a situationconforming with the international obligation by correct-ing by some other means the non-conforming situationthat has momentarily arisen is not granted to the Statesolely in cases where it had an initial freedom of choicebetween different "normal means of fulfilling the obli-gation. The State may be provided with such an oppor-tunity even when it had no such initial freedom of choice.In such a case, the subsequent opportunity to make good,by a fresh course of conduct, the consequences of theinitial action or omission demonstrates the latitude opento the State; if the text has left any doubt on the subject,this subsequent opportunity is the factor which places theobligation in question among those whose purpose is toachieve a certain result rather than among those callingfor the adoption of a specific course of conduct (whichwere the subject of the previous section). It should benoted in passing that it is a fairly rare occurrence forrules—even treaty rules—which lay international obli-gations upon the State to mention explicitly that it isopen to the State, in certain circumstances, to make goodex post facto the situation created initially by an actionor omission on the part of its organs calculated to frustratethe internationally required result. The answer to thequestion whether a given obligation may or may not befulfilled, exceptionally, by some other course of conductwhere the course initially adopted has failed to producethe required result will normally be found by examiningthe relevant clause in conjunction with the provisions ofthe convention as a whole, in accordance with its ratioand spirit, or in the light of the applicable rules of custom-ary international law.20. As usual, the situations just described will be madeclearer by a few examples. Let us consider first of all thecase of international obligations where the exceptionalopportunity accorded to the State to discharge if necessaryits obligation by adopting a subsequent course of conductdesigned to redress the internationally unacceptableconsequences of the course of conduct initially adoptedis merely an addition to a normal initial freedom of choiceof the means to be used to fulfil the obligation. Suchinitial freedom of choice, as we saw earlier, is character-istic of, for example, the majority of international obliga-tions concerning the protection of human rights. Wherethe International Covenant on Civil and Political Rights 43

provides that "Everyone shall be free to leave any country,including his own" (article 12, paragraph 2), that "Every-one shall have the right to recognition everywhere as aperson before the law" (article 16), or that "Everyoneshall have the right to freedom of association with others,including the right to form and join trade unions for theprotection of his interests" (article 22, paragraph 1),the first inference to be drawn from the very object ofthese provisions and from their formulation is that theState is free to adopt whatever measures it deems mostappropriate, in its own particular case, to guarantee thesefreedoms and rights to individuals. In the extreme case,it may refrain from adopting any measures whatsoever,provided the same result is achieved in practice, namely,that any man or woman who wishes to leave a countryis in fact free to go; that his or her existence as a person

43 For reference, see foot-note 40 above.

State responsibility 11

before the law will not be denied; that his or her freedomof association will not be obstructed, and so on. Butthe spirit of the Covenant, its aim, object and context,also point to another conclusion. If we assume, forexample, that the State has chosen to fulfil its obligationsthrough the administrative channel, an adverse decisionconcerning the right of an individual taken by the firstauthority called upon to decide his case does not normallymake it impossible for the State to achieve the inter-nationally required result. That result may be consideredto have been achieved even if a higher authority has hadto intervene and set aside the first authority's decision,and only this subsequent action has secured for the indi-vidual concerned respect for the right he sought toexercise. If any doubt should persist as to the soundnessof this conclusion, the existence in the Covenant of aclause concerning the exhaustion of domestic remedies u

should suffice to remove it. And it stands to reason thata similar conclusion applies for all obligations imposedby conventions which contain a clause of this kind. 46

For this clause, as we shall show in the next section,should be regarded essentially as a substantive clause, theeffect of which is, precisely, to prevent the establishmentof definitive failure to achieve the result required of theState by the obligation the clause accompanies, so longas it is still possible to achieve that result by one of theother means at the State's disposal.21. It would, however, be wrong to believe that theconclusion which must clearly be drawn from the examplewe have just been considering is only justified in caseswhere the agreement from which certain obligations derivecontains a clause expressly providing that the State cannotbe charged, at the international level, with not havingfulfilled its obligations, so long as the available localremedies have not been exhausted. Even in the absenceof such a clause, the conclusion reached in the examplein question might also follow from the context of theagreement, its spirit, its object and purpose or, lastly,from the customary rules in the context of which theagreement is to be interpreted. Let us take as anotherexample article 3, paragraph 1, of the General Agreementon Tariffs and Trade (GATT)46 which reads

The contracting parties recognize that internal taxes and otherinternal charges ... should not be applied to imported or domesticproducts so as to afford protection to domestic production,and paragraph 2 of the same article, which provides that

44 Article 4 1 , paragraph 1 (c), provides that the Commit teeestablished by the Covenant to consider "communicat ions tothe effect that a State Par ty claims that another State Party is notfulfilling its obligations under the present Covenant ... shall dealwith a mat ter referred to it only after it has ascertained that allavailable domestic remedies have been invoked and exhausted inthe matter , in conformity with the generally recognized principlesof international law".

45 See, for example, article 26 of the Convention for the Protec-t ion of H u m a n Rights and Fundamenta l Freedoms (for reference,see foot-note 36 above); and articles 11, para . 3, and 14, para . 7 (a),of the International Convention on the Elimination of All Fo rmsof Racial Discrimination (for reference, see foot-note 8 above).See also the agreements on economic co-operation concluded bythe Uni ted States and cited by G . Gaja in L'esaurimento dei ricorsiinterni net diritto internazionale (Milan, Giuffre, 1967), p . 140,note 17.

48 GATT, Basic Instruments and Selected Documents, vol. IV(Sales No. GATT/1969-1).

The products of the territory of any contracting party importedinto the territory of any other contracting party shall not be subject,directly or indirectly, to internal taxes or other internal chargesof any kind in excess of those applied, directly or indirectly, tolike domestic products.

These provisions are not accompanied by any explicitclause relating to local remedies. But their purpose, theironly raison d'etre, is to prevent domestic products fromultimately enjoying protection in practice, at the expenseof like foreign products. What is required of the Stateparty to the Agreement is that it ensure in the final resultthat foreign products are not placed at a disadvantage onthe domestic market because their price is burdened byheavier taxation than domestic products. Hence theseprovisions cannot be interpreted as requiring absoluteprevention of any act, even temporary, by which a foreignproduct is wrongly taxed. If at a given moment one ofthese products becomes subject to a tariff different fromthat applicable to a like national product, and if the dutyis improperly collected, the result referred to by the obli-gations stated in the articles cited will also be achievedif the State takes steps to cancel or duly reduce thediscriminatory taxation and refund the amounts wronglycollected. The desired purpose of equality of treatmentof foreign and domestic products will thus be achieved. 47

22. The examples given so far all relate to obligationslaid down in agreements. But it goes without saying thatno less valid examples can be found among obligationsof customary origin. Let us take the obligation whichrequires a State to guarantee to aliens, in certain spheresat least, equal treatment with nationals; or the obligationwhich, under certain conditions, requires the State toindemnify aliens whose property has been expropriated;or again, the obligation which requires the State to punishthe authors of crimes against the person of aliens, espe-cially aliens having the status of organs of their State, etc.It would obviously be going too far to say that thesedifferent obligations will not be considered as fulfilledunless the State so acts that at no time does a State organtake a discriminatory measure against an alien or carry outan act of expropriation without compensation, or pro-nounce a sentence acquitting the author of a crime againstan alien or against an organ of a foreign State. The resultrequired by these international obligations is that, inthe last resort, the foreigner should receive the same

47 The international obligation referred to here should be com-pared, from this point of view, with, for example, the obligationsstated in article 34 of the Vienna Convention on Diplomatic Rela-tions, which provides that "A diplomatic agent shall be exemptfrom all dues and taxes, personal or real, national, regional ormunicipal, ..." (for reference, see foot-note 13 above). Here,the ratio of the obligation is quite different. What the Conventionrequires is that, in the fundamental interests of the unhinderedexercise of the functions entrusted to him, the diplomatic agentshould not be hampered in his activity by the application of fiscalmeasures, just as he should not be hampered by the application ofpolice measures, judicial measures, etc. No improper act of taxcollection should be applied to him. Unlike the obligation con-sidered in the text, this is one of the obligations which require theState to adopt a specific conduct of forbearance. It is one of theobligations dealt with in section 5: the State cannot consider thatit has correctly performed its international duty because it hassubsequently refunded to the diplomatic agent the sums undulydemanded of him, or because it has released a diplomatic agentwho was improperly arrested, etc.

12 Yearbook of the International Law Commission, 1977, vol. II, Part One

treatment as a national, that he should be compensatedfor property expropriated from him, and that anyoneguilty of a crime against his person should be punished.Now it is obvious that here, too, the desired result willbe achieved even where an initial measure contrary towhat was required is rectified by a subsequent measurewhich can obliterate the consequences of the first.23. The obligation requiring, not the adoption of spe-cific conduct, but the achievement of a certain generalresult, may take an even more permissive form than thatwhich allows the State an initial freedom of choice of themeans by which the result is to be achieved or whichpermits the State to achieve the result by completelyobliterating, through different conduct, the consequencesof any initial conduct calculated to frustrate the achieve-ment of the result. There are cases in which, when theinitial conduct adopted has made the main result requiredimpossible to achieve, the form of the internationalobligation allows the State to consider that it has ful-filled its international obligation by achieving an alter-native result. Let us take, for example, the obligation ofcustomary international law which requires the Stateto exercise a certain vigilance to prevent unlawful attacksagainst the person or property of aliens. If, in a concretecase, the State has been unable to prevent an attack ofthis kind, it can still discharge its obligation by offeringreparation for the damage suffered by the alien who wasattacked. A similar conclusion is reached in regard toarticle 9, paragraph 1, of the International Covenant onCivil and Political Rights which provides that "No oneshall be subjected to arbitrary arrest or detention". *The obligation here set out should be read together withparagraphs 4 and 5 of the same article, which provide,respectively, that

Anyone who is deprived of his liberty by arrest or detention shallbe entitled to take proceedings before a court, in order that thatcourt may decide without delay on the lawfulness of his detentionand order his release if the detention is not lawfuland that

Anyone who has been the victim of unlawful arrest or detentionshall have an enforceable right to compensation.This juxtaposition of provisions shows that the State canconsider that it has acted in conformity with its inter-national duties even when, having failed to achieve themain result required by the obligation stated in article 9,it has nevertheless achieved the alternative result of makingreparation for the injury unlawfully caused to the personwho suffered an arrest or detention which should nothave taken place. 49

48 F o r reference, see foot-note 40 above.49 In addit ion, as noted above in foot-note 44, the Covenant

contains in article 4 1 , pa ra 1 (c), a general provision making theexhaustion of domestic remedies a condition for the Commit teeon H u m a n Rights to "receive and consider communicat ions tothe effect that a State Par ty claims tha t another State Par ty is no tfulfilling its obligations under the present Covenant" . N o w anydomestic remedy may pu t an end to arbitrary arrest or detentionor provide reparat ion for injury suffered, but it certainly cannotprevent the arrest or arbitrary detention from having taken place.Repara t ion for the injury caused is clearly only an alternativeresult, achieved instead of the pr imary required result of preventingarbitrary arrest or detention.

Once again, at tention must be drawn to the difference betweena n obligation such as that to which we are referring and another ,apparently similar, obligation such as that contained in article 29

24. To sum up, the international obligations which donot go so far as to require a specific course of conductof the State (or, one might say, conduct by specificallydesignated organs), but are confined to requiring theachievement of a given result, are characterized, as com-pared with the former, by a degree of permissiveness,which is, moreover, variable. As abready seen, this per-missiveness may include initial freedom to choosebetween the various means of achieving the desired result.In addition to this freedom of choice, or even without it,it may sometimes include the possibility of applying aremedy a posteriori to the effects of an initial conductwhich resulted in a situation contrary to the desiredresult. And this faculty of applying a remedy may extendonly to the belated achievement of the same result, bythe obliteration of all the consequences of the initialconduct; or it may go so far as to include the achievementof an alternative result, considered, to some extent, asequivalent to that which the initial conduct has renderedimpossible to achieve.

25. In the light of these findings, it must now be estab-lished how the breach of an international obligationof the kind considered in this section is to be determined.This task is much less simple than in the cases consideredin the preceding section, where the existence of the breachwas shown simply by comparing the conduct in factadopted by the State with the conduct it was specificallyrequired to adopt in the case in point. In the cases con-sidered in the present section, it will, rather, be necessaryto compare the result required by the international obli-gation with the result finally attained in practice by thecourse or courses of conduct adopted by the State. Onlywhere the two results do not coincide must it obviouslybe concluded that the conduct of the State was not inconformity with what the international obligation requiredof it, and that there has therefore been a breach. In otherwords, it is the circumstance that the result required bythe international obligation has not been achieved whichalone characterizes the nature of the breach. It is nownecessary to examine in greater detail how this circum-stance applies in the different cases discussed in the fore-going paragraphs and the consequences which followfrom it in each case.

26. It is natural to begin by considering the case inwhich the permissiveness which characterizes the inter-national obligation as to the means of ensuring its ful-filment, 50 takes the form, as we have seen, of a simpleinitial freedom to choose between the different means

of the Vienna Convention on Diplomatic Relations, which laysdown that "The person of a diplomatic agent shall be inviolable.He shall not be liable to any form of arrest or detention." It isobvious that both the letter and the spirit of this provision makeit impossible to accept that the State can consider it has fulfilledits obligation if it offers to pay compensation for the arrest ordetention of a diplomatic agent. As we have emphasized severaltimes, the obligation which remains in regard to the foreign diplo-matic agent amounts to requiring the State to adopt a specificcourse of conduct of forbearance, not merely to achieve a certainresult and still less to achieve a possible alternative result, such asreparation for the injury caused to the diplomatic agent by arrestor detention.

60 It is this permissiveness which places the obligation amongthose which require the State to achieve a certain result, and notamong those which require it to adopt a specific course of conduct.

State responsibility 13

available for achieving the result internationally required.This freedom of choice, as we have also seen, obtainsboth where the international obligation is completelyneutral as to the choice, and where the instrument inwhich the obligation is embodied expresses a simplepreference for one means rather than another, withoutthat preference being binding on the State. In both cases,the State is only required to achieve the result called forby the obligation.27. Let us take the case of an international obligationwhich allows the State to achieve the required result bywhatever means it prefers, that is to say, either by pro-mulgating a law, or by passing an act or issuing adminis-trative regulations, or by following established practiceor adopting a new practice, or by some other means.It seems obvious that, when an international obligationis of this nature, the State's choice of the means to beemployed can in no case constitute the breach of theobligation. The breach can consist only in the fact thatthe State has not in practice succeeded in achieving theresult internationally required by one or other of themeans available to it for doing so. This logically evidentconclusion comprises the following four elements:

(a) Where the State has in fact succeeded, by themeans of its choice, in achieving the internationallydesired result, no one can claim that it has committeda breach of the obligation on the ground that its conducttook the form of adopting one measure rather thananother, or even on the ground that it achieved thedesired result without having adopted any particularmeasure to that end;

(b) So long as it cannot be established in concreto thatthe State has failed in its task as regards the result requiredof it by an international obligation, the fact that it hasnot taken the measure which, in abstracto, would haveappeared the most appropriate for achieving that resultis not in itself sufficient grounds for charging the Statewith a breach of the obligation;

(c) So long as there has been no concrete failure toachieve the result required, the conclusion is the samewhere the State has taken a measure susceptible inprinciple of frustrating the achievement of that result,but has not itself created a concrete situation contraryto that result;

(d) On the other hand, where it is established that thesituation actually created by the State, by one or otherof the measures between which it could choose, is contraryto the result required of it by an international obligation,the State obviously cannot claim that it has fulfilled itsobligation by invoking, for example, the fact that it hadnevertheless adopted measures by which it could hopeto achieve the required result.

28. The conclusion just stated and its different elementsare inescapable from the point of view of logic andcommon sense; they are the obvious consequence of thefact that, in the cases considered, it is only the resultactually achieved which counts, and a comparison ofthat result with the result which the State should haveachieved is the only criterion for establishing whetherthe obligation has been breached or not. However, itshould be emphasized that this same conclusion and its

elements are fully confirmed by an examination of Statepractice, international jurisprudence and the opinions oflearned writers.29. In section 5, it was noted that the difference in theform taken by the breach of an international obligation,according to whether it required the State to adopt aspecific course of conduct or only required it to achievea specific result by conduct of its own choice, had beenclearly brought out in the practice of States, whenexamining the possibility of establishing that a breach ofan international obligation has been committed by takingor failing to take legislative action. Certain States which,like Switzerland 51 and Poland, 62 stated their opinion onthe matter in their replies to point III, No. 1 of therequest for information addressed to them by the Pre-paratory Committee for the 1930 Codification Conference,pointed out that, in the second case, which in theiropinion was much more common than the first, theadoption or non-adoption of a law having a specificcontent could only be considered as one means, amongothers, of achieving a result, which alone was decisive.

A similar statement of position may be noted in aletter sent on 18 October 1929 by Mr. Albert Thomas,the Director General of the International Labour Office,to the Government of the Irish Free State, in reply toan inquiry from that Government as to whether theprovisions of the Weekly Rest Convention were fulfilledby existing practice in that country. While pointing outthat the course most usually adopted to secure theConvention's effective application was that of passinglegislation, the letter from the Director General of theInternational Labour Office emphasized that the Statewas free to follow whatever method seemed most appro-priate in its particular case, provided only that thatmethod would in fact ensure effective application of theprovisions of the Convention. 53

61 As we recalled in paragraph 8 above, the Swiss Governmentemphasized the need to qualify its reply to the question whetherinternational responsibility was engaged by the failure of a State"to enact legislation necessary for the purpose of implementing"its obligations. It replied in the affirmative only as regards thecase in which an international agreement expressly required theparties to take specific legislative measures. It observed that,in the other cases, "it is not failure to enact a law which involvesthe responsibility of a State, but rather the fact that this State isnot in a position, by any means, to fulfil its international obli-gations ...".

52 The Polish Government in its reply distinguished between the"entirely exceptional and very rare case of a State which has assumedan international undertaking to enact provisions before the expiryof a certain period" and "all other cases". It indicated that onlyin the first case did the fact that the provisions had not been enactedwithin that period constitute an offence, whereas in the other cases"the mere fact of not enacting legislation does not involve inter-national responsibility ...". See League of Nations, Basis ofDiscussion ... (op. cit.), pp. 28-29.

61 Mr. A. Thomas's letter stated: "The Convention leaves con-siderable latitude to the Governments which ratify it... A Govern-ment is therefore free to apply under the Convention any systemwhich meets with its approval; and the existing practice in theIrish Free State would undoubtedly fulfil the requirements of theConvention ... it is for the Government which undertakes inter-national responsibility as a party to a Convention to judge what isthe action which in its view will secure the Convention's effectiveapplication ... The course most usually adopted is that of passinglegislation to make the application of the weekly rest compulsory

{Continued on next page.)

14 Yearbook of the International Law Commission, 1977, vol. II, Part One

Thus, these different statements of opinion expresslyconfirm the correctness of the conclusion stated above 54

and of its first element, according to which, if the inter-nationally required result is achieved by the State in aparticular case, it matters little whether it is achievedby legislation or by any other means.

30. The replies quoted above to the request for infor-mation by the Preparatory Committee for the 1930 Codi-fication Conference also provide confirmation of thesecond element of the conclusion already mentioned, 55

which is closely connected with the first. According tothis element, so long as the State has not failed to achievein concreto the result required of it by the internationalobligation, the fact that it has not taken a specific measureto that end (and in particular has not enacted a law)cannot be held against it as a breach of the obligation.

In the continuation of the Swiss Government's replyto the request for information by the Preparatory Com-mittee, it is stated:

... even in the absence of a law by which the State could imme-diately fulfil its obligations, we will not be confronted with a factor act contrary to international law unless some circumstancearises by which the rights of other States are prejudiced.56

In the continuation of the Polish Government 's reply,it is stated that responsibility:

... ensues only if the State authorities or tribunals refuse, in theabsence of relevant municipal provisions, to give effect to rightsarising out of international undertakings. Until this has occurred,there is nothing to show that such provisions are required, that theauthorities and tribunals, for example, will give decisions incom-patible with the international undertakings of the State; it shouldbe left to the State to decide whether the promulgation of a speciallaw, decree or circular is necessary.57

31. With regard to the ideas put forward in the works oflearned writers, these also accord with the basic conclusionset out in paragraph 27, particularly with its first twoelements, supported, as we have seen, by official expres-sions of the opinion of States. The authors of theseworks also naturally concentrate their attention on theproblem as it arises in relation to the taking of, or failureto take, legislative measures. They state very emphatically

{.Foot-note 53 continued.)in industrial undertakings ... It would, however, suffice thatlegislation should be adopted which would be confined to givingthe force of law to the existing practice ... It is for the Governmentof the Irish Free State to appreciate which of these methods isthe best adapted to its requirements. Any of them would ... securethe effective fulfilment of the Convention." (ILO, Official Bulletin,vol. XIV, No. 3, 31 December 1929, pp. 125-126.) See also TheInternational Labour Code, 1951 (op. cit.), p. 277, note 464.

64 Para. 27.55 Para. 27 (b).68 In other words, so long as the State has not actually reached

a result in conflict with that internationally required of it (Leagueof Nations, Basis of Discussion ... (op. cit.), p. 29).

67 Ibid. The reply of the British Government gave examplesof obligations for the fulfilment of which the adoption of legislativemeasures constituted the appropriate and, probably, essential means.But it clearly brought out that, in view of the form of the obligations,which required only the achievement of a certain result, the failureto adopt such legislative measures should not be considered as initself a breach of the obligations. The breach would be establishedonly if, probably through lack of appropriate provisions, the Stateshowed itself unable in practice to achieve the result required byits obligation.

that, in their view, no State which has specifically ensuredthe result required of it by an international obligationcan be accused of breaching that obligation on theground that it achieved the result without enacting a lawfor the purpose, and, more generally, that failure to takelegislative measures does not in itself warrant the conclu-sion that the obligation has been breached unless it canbe affirmed that the State specifically failed to ensure theresult in question. These principles had already emergedclearly from the reasoning of Heinrich Triepel;58 theyhave been explicitly formulated in the writings ofCharles de Visscher59 and Eduardo Jimenez deArechaga.60 Some authors have explicitly stipulated thatthese principles are merely the necessary consequence of

68 Op. cit., pp . 301-202 (French edit ion: p . 299). Referring tothe distinction between "immediately ordered" and "internationallyindispensable" domestic law, the author observes that the latter"is indeed established in consideration of an international duty,but it is a duty which in itself leads t o something other than theformation of this legal rule. The State establishes the law here,because, if it did not do so, it would not , under domestic law, bein a position to fulfil an international duty, for example a dutyto punish ... thus , the legislator is moved to act not by internationallaw, bu t by domestic law. In immediately ordered law, the actwhich the State was ordered to perform by international law con-sisted in creating law; here the State puts itself in a position, withregard to its own law, and through the new law, to perform an actordered by international law. I n the former case, the fact of notlegislating or of repealing the law was itself already contrary tothe law; in this case, the breach of the law results from the factthat the State has not performed the act which the law authorizesit t o perform, or tha t it has performed the act which the Stateauthorizes it no t to perform."

59 Loc. cit., p . 97. "I t may happen" , writes this internationalscholar, " tha t the responsibility of a State is engaged ... by thefailure of the legislative power to vote a law which has becomeindispensable for effective compliance with the State's internationalobligations. Suppose, for example, that an establishment treatyhas guaranteed particularly favourable t reatment for aliens in aparticular country. That country may be compelled to introducecertain legislative provisions in its domestic law intended to ensurethe fulfilment of its international obligations. A clarificationshould, however, be made here : the only thing of importance fromthe international s tandpoint is that the obligation incumbent onthe State should be effectively fulfilled; by contrast , it is a mat terof absolute indifference whether this purpose is achieved by enact-ment of a law, issue of a decree or any other procedure authorizedby internal public law; the choice of the method by which the othercontracting par ty places itself in a posit ion to fulfil its internationalobligations is of little importance to foreign States; here inter-national law is concerned only with the result t o be achieved.Thus , if we examine the matter carefully, we see tha t the respon-sibility of a State is engaged most often, no t because it has givenan undertaking to another State to enact a law, but because, underthe conditions established by domestic law, recourse to legislativeaction may be the only means by which the State can impose onits organs, officials and agents a course of conduct in conformitywith its international obligations. It would only be otherwisein the rather exceptional cases in which a State had expressly bounditself by treaty to ensure tha t a particular reform was confirmedby its legislature."

60 E . Jimenez de Arechaga, "Internat ional Responsibility",Manual of Public International Law, ed. S0rensen (London, Mac-millan, 1968), p. 545:

There is international responsibility for the non-enactment oflegislation only in those cases in which it has been stipulatedthat a particular piece of legislation shall be enacted as the onlyway of implementing a treaty obligation. In other cases in whicha particular obligation may be met either by legislation or byother means, responsibility arises from failure to meet the obli-gation, whether it is due to absence of legislation or to any otherdeficiency in the machinery of the State.

State responsibility 15

a distinction between obligations requiring the State toadopt a specific course of conduct and those whichmerely require it to achieve a particular result.61

32. At first sight, acceptance of the third element of theconclusion set out on the basis of the characteristicnature of obligations which leave the State free to choosethe means of achieving the result required, may raiseproblems. 62 It may be asked whether it is quite clear thatthe adoption of a measure or, particularly, of a lawwhich would appear to obstruct the attainment of theresult internationally required is not in itself sufficientto establish that there has been a breach of the inter-national obligation. But there is no justification fordoubt: logically, whatever the measure taken, we cansay that there has been a breach of an obligation requiringa particular result to be actually attained only if it is infact established that this result has not been attained,not if it has merely been found that there is an obstacleto its attainment. The difficulties experienced by certainwriters seem to us to be really due to the fact that theyhave not borne in mind the distinction to be madebetween the different types of obligation, and that theyhave taken an undifferentiated position on the wholequestion whether the promulgation of a law "contrary tointernational law" is in itself a breach of its obligationby the State, or whether the breach only occurs later,when the law is applied in practice. It is therefore logicalthat those among these writers who had mainly in mindobligations specifically requiring the State to enact or notto enact a certain law should naturally have reached theconclusion that the breach occurs when the law is pro-mulgated 63 and that, conversely, those who were thinkingmainly of obligations which require only the attainmentof a concrete result should have reached the conclusionthat the breach occurs only when the law is applied to aspecific case. 64 But most writers have found it necessaryto make a distinction between different situations andhave maintained that either conclusion could be justified,depending on the content of the obligation 65 and thecircumstances of the particular case.66 However, thecriteria put forward on both sides for establishing inwhich specific cases the mere fact of having passed alaw with a particular content constitutes a breach of aninternational obligation, and in which cases the opposite

61 See, in particular, Bilge, op. cit., pp. 103-104; and Vittar,op. cit., p. 95 et seq.

62 See para . 27 (c) above.63 This applies, for example, t o U . Scheuner, who nevertheless

qualifies his assertion by the words "as a general rule" ("L'influencedu droit interne sur la formation du droit international", Recueildes cours ..., 1939-11 (Paris, Sirey, 1947), vol. 68, p . 121 et seq.).

64 See L. Kopelmanas, "Du conflit entre le traite internationalet la loi interne", Revue de droit international et de legislation corn-paree (Brussels), 3rd series, vol. XVIII, No. 1, pp. 118 and 122;G. Tenekides, "Responsabilite internationale", Repertoire de droitinternational (Paris, Dalloz, 1969), vol. II, p. 787.

66 B. Cheng, for example, observes that the answer to the questionraised here "depends upon what is in fact prohibited by the particu-lar rule of international law and upon whether the municipal lawactually contravenes it or merely enables some other organ of theState to do so" {General Principles of Law as applied by InternationalCourts and Tribunals (London, Stevens, 1953), pp. 174-175).

88 This applies to G. Schwarzenberger, International Law, 3rd ed.(London, Stevens, 1957), vol. I, pp. 614 and 615.

conclusion is warranted, vary and do not always seempertinent. 67 The writers who have based their solutionof the problem on the distinction between the breachof obligations "of conduct" and the breach of obligations"of result" are undoubtedly those who have provided thevalid criterion for deciding the question we are consider-ing. 68

33. In the opinion of the Special Rapporteur, the crite-rion of differentiation advocated by these writers is notonly the most logical: it also permits the most plausibleinterpretation of State practice and international juris-prudence. State practice, it must be admitted, does notabound in explicit statements of position on the questionunder consideration. The replies from Governments topoint III, No. 1 of the request for information by thePreparatory Committee of the 1930 Conference werebound to be influenced on this point by the rather super-ficial manner in which the question was drafted. Manycountries accordingly confined themselves to answeringin the affirmative, without giving any information as tothe extent of the agreement they were expressing. However,we think it would be quite wrong to believe that, by suchanswers, the Governments concerned meant to expresstheir conviction that, in the event of legislative actionby the State, its international responsibility would imme-diately and in all cases be engaged by the promulgation ofthe law. On the contrary, the reply of the South AfricanGovernment, for example, 69 shows that it regarded therequest submitted to it as referring to the application, notthe promulgation of the law. Two other Governments,those of Great Britain and Switzerland, explicitly statedthat, in their view, the mere fact of the adoption of ameasure, such as the promulgation of a law, whichconstituted an obstacle to the fulfilment of the obligation,would not in itself warrant the conclusion that therewas a breach of an international obligation. The BritishGovernment stated that "It is not the enactment but theenforcement of the legislation so enacted which engages

67 Some writers m a k e a distinction according t o whether thelaw can be applied direct or whether it requires the enactment ofregulations for its application (for example, P . Guggenheim, Traitide droit international public (Geneva, Georg, 1954), vol. I I , p p . 7-8).Others base the distinction on the fact tha t the law "directly violatesexisting rights or rules", as in the case of an illegal revocation of aconcession granted to a foreign company, or that it produces wrong-ful effects only when there is "implementation in concreto", as inthe case of a law laying down directives for future nationalizations(see J. H . W. Verzijl, International Law in Historical Perspective(Leyden, Sijthoff, 1973), vol. VI, p p . 621-622, 641-642). Others ,again, emphasize that , in the case of injury to a State, the promul-gation of the law may be sufficient in itself, whereas when the injuryis suffered by foreign individuals, responsibility generally arises atthe time of its application (E. Jimenez de Arechaga, loc. cit.,p p . 547-548; I . Brownlie, Principles of Public International Law,2nd ed. (London, Oxford University Press, 1973), p p . 435-436).

68 These are, in particular, the writers who have publishedmonographs on the question of State responsibility for the acts oflegislative organs. See Bilge, op. cit., p p . 101 et seq.; and Vitta,op. cit., p p . 89 et seq. See also Sereni, op. cit., p p . 1538-1539;and A. Fabre , Principes du droit des gens (Paris, Librairie de droitet de jurisprudence, 1974), p p . 650-651.

69 See League of Na t ions , Bases of Discussion ... (op. cit.), p . 25 .T h e South African Governmen t stated tha t the "enforcement *of legislation incompat ible with the provisions of a treaty concludedwith another State or with its other international obligations"engaged the responsibility of a State.

16 Yearbook of the International Law Commission, 1977, vol. II, Part One

the responsability of the State". * 70 while the SwissGovernment held that "Generally speaking ... we shouldnot consult the various laws as such in order to ascertainand establish international responsibility, but rather thefacts deriving from these laws, which affect the rights ofother States". * 71 We may add that the view expressedby the British and Swiss Governments, like the requestto which they were replying, related only to responsibilityfor the breach of obligations concerning the treatmentof foreigners, which are in fact obligations requiring onlythe achievement of a particular result. If their replieshad related to the breach of obligations in any sphere ingeneral, they would no doubt have been more detailed.The two Governments would probably have found itnecessary to distinguish between cases in which theenactment of a law constitutes the "specific conduct"which itself constitutes the fulfilment or breach of aninternational obligation, and the more frequent casesin which the enactment of a law is only one of the waysin which the State can arrive at the concrete result whichis the real object of the international obligation. 72 Itseems probable that, had other Governments given theirviews in more detail, they would have endorsed the viewsof the British and Swiss Governments. It can thereforebe accepted that the codification work done by the Leagueof Nations in 1929 and 1930 does not provide sufficientevidence to establish with certainty what States con-sidered, at that time, to be the correct solution to ourproblem. It must, nevertheless, be recognized that theresults of this work are certainly not incompatible withthe conclusion that, where an international obligationonly requires the achievement of a specific result by theState, it cannot be concluded that this obligation has beenbreached merely because the State has enacted a lawwhich may be an obstacle to the attainment of the resultrequired.

34. When the positions taken by Governments inspecific cases are examined, it is interesting to note thoseof the United States and Great Britain in the controversywhich arose between the two countries in 1912-1913concerning the Tolls on the Panama Canal. In 1912, theUnited States Congress passed an Act regulating tollson the Canal on the basis of criteria which Great Britainconsidered incompatible with the provisions of article III,paragraph 1, of the Hay-Pauncefote Treaty of 18 Novem-ber 1901, which provided for equality of treatment forthe flags of all nations parties to the treaty, without dis-crimination.73 Invoking article 1 of the Arbitration Treaty

70 Ibid., p . 27.71 Ibid., p. 29.78 Thus, the fact that the Preparatory Committee proposed as a

"basis of discussion", in the light of the replies received, a text whichaffirms that "A State is responsible for damage suffered by a foreigneras the result... of the enactment of legislation incompatible with itsinternational obligations" (basis No. 2) {ibid., p. 30, and Yearbook...1956, vol. II, p. 223, A/CN.4/96, annex 2) does not prove that,in the Committee's view, responsibility would always arise from themere enactment of "incompatible" legislative provisions. Thisalso applies to article 6, which was adopted on first reading by theThird Committee of the Conference, and which reproduces thetext of basis No. 2.

73 The relevant paragraph read:"The Canal shall be free and open to the vessels of commerce

and of war of all nations observing these Rules, on terms of entire

of 1908, the Government in London therefore proposedthat the question be submitted to arbitration. The UnitedStates Government did not go into the substance of thematter, but opposed that British proposal, saying:

When, and if, complaint is made by Great Britain that the effectof the act and the proclamation together will be to subject Britishvessels as a matter of fact to inequality of treatment, or to unjustand inequitable tolls in conflict with the terms of the Hay-Paunce-fote Treaty, the question will then be raised as to whether theUnited States is bound by the treaty both to take into account andto collect tolls from American vessels, and also whether under theobligations of that treaty British vessels are entitled to equalityof treatment in all respects with the vessels of the United States.Until these objections rest upon something more substantial thanmere possibility, it is not believed that they should be submittedto arbitration.7i

The British Government expressed a different view, in thefollowing terms:

... international law or usage does not support the doctrine thatthe passing of a statute in contravention of a treaty right affordsno ground of complaint for the infraction of that right, and thata nation which holds that its treaty rights have been so infringedor brought into question by a denial that they exist must, beforeprotesting and seeking a means of determining the point at issue,wait until some further action violating those rights in a conclusiveinstance has been taken, which in the present instance would,according to your argument, seem to mean until tolls have beenactually levied upon British vessels from which vessels owned bycitizens of the United States have been exempted...

... the Act of Congress, when it declared that no tolls should belevied on ships engaged in the coasting trade of the United States,and when, in further directing the President to fix those tolls withincertain limits, it distinguished between the vessels of citizens ofthe United States and other vessels, was in itself, and apart fromany action which may be taken under it, inconsistent with theprovisions of the Hay-Pauncefote Treaty for the equal treatmentof the vessels of all nations.75

In the end, there was no arbitration in this case, as theUnited States agreed to amend the law which had givenrise to the exchange of notes. But it is neverthelessinteresting to consider the positions taken by the twoGovernments. The United States view was fully consis-tent, at least from the formal standpoint, with the generalprinciple which seems to us to compel recognition in thismatter: the principle that it cannot be concluded thatthere has been a breach of an obligation requiring aState to achieve a particular result in concreto, on theground that the State has taken a legislative or othermeasure which falls short of creating a specific situationnot in conformity with the desired result, even if sucha measure introduces an obstacle to the attainment ofthat result. The British view, on the other hand, seems to

equality, so that there shall be no discrimination against anysuch nation, or its citizens or subjects, in respect of the conditionsor charges of traffic or otherwise. Such conditions and chargesof traffic shall be just a n d equi table ." {British and ForeignState Papers, 1900-1901, vol . X C I V (London , H . M . Stat ioneryOffice, 1904), p . 47.)74 Instructions of Secretary of State Knox to the United States

Charge d'affaires in London, dated 17 January 1913 (Hackworth,op. cit. (Washington, D.C., United States Government PrintingOffice, 1943), vol. VI, p. 59).

75 Note from the British Ambassador at Washington to UnitedStates Secretary of State Knox, dated 28 February 1913 (A. D.McNair, The Law of Treaties, 2nd ed. (Oxford, Clarendon Press,1961), pp. 548-549).

State responsibility 17

contradict that criterion. It may, however, be noted thatthe measure taken by the United States Government inthis case did not impose higher tolls on British vesselsthan those levied on United States vessels, but exemptedUnited States vessels from the tolls which continued tobe levied on the vessels of other nations. It could thereforebe maintained with some justification that the situationwhich resulted for British vessels was already a discrim-inatory situation in concreto, which was unlawful underthe Treaty, which explains President Wilson's promptaction to change the situation by the 1914 Act. More-over, as Lord McNair's comment on the British Notestates:

... the British Note did not go so far as to allege that a violationof the Treaty had already occurred, and ... the following paragraphsare rather in the nature of the assertion of a right, quia timet, toprotest and demand arbitration.76

Indeed, the purpose of the British protest and its proposalfor arbitration seem to have been to prevent an inter-nationally wrongful act from occurring, rather than toinvoke the consequences of a wrongful act alreadycommitted. 77 And, as already noted, in 1929 the BritishGovernment was to adhere firmly to the principle thatis is not the law as such which gives rise to State respon-sibility but the facts deriving from that law. 78

35. As regards international jurisprudence, it may berecalled that the United States-Panama General ClaimsCommission, established by the Convention of 28 July1926, took the problem before us directly into considera-tion in its decision of 27 June 1933 in the MariposaDevelopment Company case. It stated that:

The Commission does not assert that legislation might not bepassed of such a character that its mere enactment would destroymarketability of private property, render it valueless and give riseforthwith to an international claim, but it is the opinion of theCommission that ordinarily, and in this case, a claim for expro-priation of property must be held to have arisen when the possessionof the owner is interfered with and not when the legislationis passed which makes the later deprivation of possessionpossible.

Practical common sense indicates that the mere passage of anact under which private property may later be expropriated withoutcompensation by judicial or executive action should not at oncecreate an international claim on behalf of every alien propertyholder in the country. There should be a locus penitentiae fordiplomatic representation and executive forbearance, and claimsshould arise only when actual confiscation follows. 79

The criterion adopted by the United States-PanamaClaims Commission is thus in full conformity with thatset out in subparagraph (c) of the conclusion reached inparagraph 27 above. In the case submitted to the Com-mission, the result intended was clearly respect for the

76 Ibid., p . 548.77 A note of protest and a proposal that the existence of a right

should be established by an objective authority may very well bejustified as a means of preventing an internationally wrongful act.See Schwarzenberger, op. cit., p . 614; Vitta, op. cit., p . 95 ; Favre,op. cit., p . 651.

78 See para. 33 above.79 Un i t ed Na t ions , Reports of international arbitral awards,

vol. VI. (United Nations publication, Sales No. 1955.V.3), pp. 340-341.

property of foreigners. And, in the Commission's view,it could not already be maintained that this result hadnot been achieved merely because a law had been enactedwhich would permit future confiscations of propertybelonging to foreigners ("legislation is passed which makesthe later deprivation of possession possible"). It couldnot be held that there had been failure to achieve aresult, and subject to the existence of subsequent possi-bilities of obtaining that result—a point which will bedealt with specifically later—it could not be held that anobligation had been breached, unless there had beenactual interference with the property of a foreigner ("thepossession of the owner is interfered with"). As the Com-mission pointed out, the only case in which, from anotherstandpoint, the acquired result could be regarded aswanting, as soon as the law authorizing expropriationwas enacted, would be that in which the enactment ofthe law seriously reduced the commercial value of theforeigner's property.80 Otherwise, in the Commission'sview, a breach would occur when the foreigner wasdeprived of his property in concreto, not when all thathad been done was to adopt a measure making suchdeprivation possible in abstracto.

36. In other international judicial decisions, acceptanceof the principle to which we are referring is, if notexpressis verbis, at least implicit. This is so, for example,where the Permanent International Court of Justice,asked to rule on whether a particular law constituted abreach of an international obligation or not—an obliga-tion requiring the achievement of a particular result by theState, not the adoption of a specific course of conduct—referred to the application of this law, not to its enactment.In its very well-known judgment of 25 May 1926, inthe case concerning Certain German interests in PolishUpper Silesia (the merits), the Court stated that:

It might be asked whether a difficulty does not arise from thefact that the Court would have to deal with the Polish law ofJuly 14th, 1920. This, however, does not appear to be the case...The Court is certainly not called upon to interpret the Polish lawas such; but there is nothing to prevent the Court's giving judgmenton the question whether or not, in applying that law, * Polandis acting in conformity with its obligations towards Germanyunder the Geneva Convention.81

The European Court of Human Rights appears to endorsethe same criterion when stating, in its judgment of27 March 1962 on the De Becker case:

... the Court is not called upon, under articles 19 and 25 of theConvention, to give a decision on an abstract problem relating tothe compatibility of that Act with the provisions of the Convention,but on the specific case of the application * of such an Act to theApplicant and to the extent to which the latter would, as a result,be prevented from exercising one of the rights guaranteed by theConven t ion . . . 8 a

80 On this point, see Reuter, loc. cit., pp . 95-96.81 P.C.I.J., series A , N o . 7, p . 19. In the advisory opinion of

4 February 1932, concerning the Treatment of Polish nationalsin Danzig {ibid., series A/B, N o . 44, p . 24) the Court also consideredthat :

"The application * of the Danzig Constitution may, however,result in the violation of an international obligation incumbenton Danzig".88 Yearbook of the European Convention on Human Rights, 1962

(The Hague), vol. 5, 1963, pp. 334 and 336.

18 Yearbook of the International Law Commission, 1977, vol. II, Part One

Lastly, very similar positions may be noted in a series ofdecisions of the European Commission on HumanRights. 83

37. We may therefore sum up the result of our investi-gation by noting that the writers of learned works, Statepractice and international jurisprudence all confirm whatwe first logically deduced from the characteristic natureof obligations requiring the State to achieve a specificresult. The fact that a State under an obligation of thiskind has adopted a measure or, in particular, that it hasenacted a law constituting in abstracto an obstacle to theattainment of the result required is not in itself a breachor even the beginning of a breach of the obligation inquestion. 84 A breach will exist only if the State is foundto have failed in concreto to ensure the said result.38. Lastly, we may refer to the fourth element of theconclusion reached regarding determination of the exist-ence of a breach of an obligation requiring the Statenot to adopt a specific course of conduct but to achievein concreto a certain result.85 This is the element accordingto which a State having failed to achieve the requiredresult cannot escape the charge of not having fulfilledits international obligation by claiming that it did,nevertheless, adopt measures by which it hoped to achievethe result required of it. As has been said repeatedly,what is important is that the concrete result should beachieved: if it is not, a breach has been committed,regardless of the measures taken by the State.86 We haveseen, for example, that article 2, paragraph 1, of theInternational Convention on the Elimination of AllForms of Racial Discrimination provides thatStates Parties condemn racial discrimination and undertake topursue by all appropriate means and without delay a policy ofeliminating racial discrimination in all its forms...87

Now it is obvious that, if the executive authorities of aState Party to the Convention in fact commit acts ofracial discrimination, the State will not escape the

83 The decisions on applications N o . 290/57 against Ireland andN o . 867/60 against Norway all contain the following s ta tement :

"... the Commission can examine the compatibility of domesticlegislation with the Convention only with respect to its applica-t ion t o a person, non-governmental organization or group ofindividuals and only insofar as its application is alleged to constitutea violation of the Convention * in regard to the applicant person,organization or group in quest ion; ...".

(.Yearbook of the European Convention on Human Rights, 1960(The Hague) , vol. 3, 1961, p . 2 2 1 ; Yearbook of the Convention...1961 (The Hague) , vol. 4, 1962, p . 276.)

84 Except, of course, in instances such as tha t referred to by theClaims Commission in the Mariposa Development Company case{supra, para . 35), where the law in question would itself create aspecific situation incompatible with the internationally requiredresult.

85 See para . 27 {d) above.86 The result to be achieved must obviously be tha t which the

international obligation requires of the State and nothing else.This point should be stressed, particularly in connexion with thepossible breach of an obligation requiring the State, for example,t o provide adequate protection against certain external events bythe means it considers most appropr ia te . It is obvious that theresult required in such a case is that the system of protection shouldb e established and m a d e operative, no t tha t the event feared shouldbe avoided in all circumstances. In a later section, we shall con-sider more particularly internationally wrongful acts constitutedby events, and their distinguishing characteristics.

87 Fo r reference, see foot-note 8 above.

consequence of being charged with a breach of theConvention by taking refuge behind some law prohibitingsuch acts which it may have adopted.85 It is, moreover,unnecessary to dwell further on this point, since the truthstated in the last element of the conclusion set outabove89 (an element which deals with the oppositesituation from that previously considered and settles thecase according to the same principles) is self-evident.39. At the beginning of our examination, 90 we said thatit would begin with consideration of the case in which,to achieve the result required by a specific internationalobligation, the State has initial freedom of choice as tothe means to be used for this purpose, but is allowedno other latitude than this initial freedom. It is obviousin a case of this kind that, if, through the active or omis-sive conduct it adopts in taking one of the courses it isfree to choose, the State creates a situation incompatiblewith the result required of it by its international obliga-tion, it thus loses the opportunity of fulfilling that obli-gation. It is not allowed to remedy the effects of itsconduct ex post facto or to change the situation it hascreated by recourse to another means.

40. It is not impossible that this limitation of the discre-tion given to the State—for the fulfilment of its obliga-tion—to an initial choice of the different means whichcould be used to achieve the internationally requiredresult, should be expressly stated in the text of the instru-ment which establishes the obligation in question. Butsuch a limitation is more likely to be implicit in thecontext of the instrument or its object and purpose.Most frequently, no doubt, it follows automatically fromthe specific nature of the result required by the inter-national obligation in question, because, owing to thenature of that result, the creation of a situation whichis contrary to it will make it definitively impossible toachieve. As an illustration of this case, let us take one ofthe examples referred to above, 91 namely, the require-ment of article 22, paragraph 2, of the Vienna Conventionon Diplomatic Relations, which provides that "Thereceiving State is under a special duty to take all appro-priate steps to protect the premises of the mission againstany intrusion or damage and to prevent any disturbanceof the peace of the mission or impairment of its dignity".As regards customary international obligations relatingto the status of foreigners in general, we can also take thecase of the obligation by which the State is required totake minimum preventive measures to protect foreignersagainst attacks due, for example, to an outbreak ofxenophobia. There is no doubt that both of those obli-gations merely give the State an indication of the result to

88 I t should also be noted that , even where an obligation speci-fically requires the State to enact a law with a certain content,that obligation is usually accompanied by an obligation to applythe law. T h e fact of having enacted the prescribed law then consti-tutes fulfilment of the first obligation, but possible failure to applythe law in practice constitutes a breach of the second obligation.See, in this connexion, the posit ion stated a t the end of the par tof the report of the Ghana-Por tugal Inquiry Commission, citedin paragraph 9 concerning violation of I L C N o . 105 on the Aboli t ionof Forced Labour .

89 See para . 27 {d) above.90 See para . 26 above.81 See para . 17 above.

State responsibility 19

be achieved and that the State does certainly have initialfreedom to choose the means by which to establish therequired system of protection. However, when, whateverthe means used to provide such protection, its manifestinadequacy permits the occurrence of an invasion of thepremises of an embassy, the lynching of a foreigner or amassacre of nationals of a particular country by a riotingcrowd, it can only be concluded that the State has failedirremediably in its task and that there is no further possi-bility of using other means to restore a situation ab initioin conformity with the result required by the internationalobligation. It must then be recognized that the resultto be achieved by the State has not, and will not, beachieved and that it has thus committed a breach of theobligation.41. The cases considered in the two proceding para-graphs are, however, the exception rather than the rule.As we have seen, where international law defines theobligation it lays on the State by a simple indication ofthe result to be achieved, the discretion it gives the Stateas to the means of achieving this result usually goesbeyond mere initial freedom of choice. So long as therequired result has not become finally unattainable byreason only of the fact that the initial conduct of theState failed to achieve it, international law does notusually preclude a State, one of whose organs has createda situation incompatible with the result required by aninternational obligation, from still achieving this resultthrough a new course of conduct by State organs, whicheliminates the existing situation and replaces it by anotherthat will ab initio be in conformity with the required result.In this case, the possibility of subsequent action open tothe State is added to, and supplements, its initial freedomof choice. 92 The latitude left to the State in regard to thefulfilment of its obligation is thus defined in its entirety.42. One reservation must, however, be made beforeconclusions are reached on the conditions for recognizingthe existence of a breach of an international obligation inthe case considered. It may well be that, internationally,there is nothing to prevent the State from still fulfillingits obligation by remedying, ex post facto, by the adoptionof different conduct, a situation incompatible with theinternationally required result which was created by itsinitial conduct. But it is also possible that the State mayencounter an obstacle to this solution in its own systemof internal law. This is the case especially when thesituation which is incompatible with the internationallyrequired result has been created by means whose effectscannot be obliterated. For example, if the situation wascreated by the enactment and effective application of alaw, there is, in most cases, no hope of finding, in theinternal legal system, any means of changing this situationretroactively and thus still achieving the result to whichthe law ran counter. It would be otherwise only if thereexisted, in the machinery of the State, a judicial authorityempowered to declare legislative acts null and void and to

92 This is not necessarily always so, however, for as pointed outin paragraph 6 above, the State may still remedy, a posteriori, theconsequence of initial conduct opposed to the achievement of theinternationally required result, even in cases where, originally, theparticular nature of the result to be achieved did not permit of areal choice between different means of action, since the resultcould, in fact, initially be achieved in only one way.

obliterate their effects retroactively. The obligation torespect the property of foreigners, which is imposed bysome treaties, is the typical example of an obligationwhich requires the State to achieve a certain result,but leaves it complete latitude as to the means of doingso. But if the State passes a law providing for the expro-priation, without compensation, of certain classes offoreigner, or of certain kinds of property belonging tothem, and applies that law to the property of personscovered by such a treaty, it cannot reasonably be expectedthat the obligation imposed by the treaty can still befulfilled since it is hard to see what organs or authoritieswould have the power to fulfil it. The same conclusion isvalid for cases in which the action that created a situationincompatible with the required result takes the form of ameasure by the executive power which can be neitherrepealed nor amended by another State organ, of a judi-cial decision against which there is no appeal, or of anadministrative or judicial measure which has merelycorrectly applied a mandatory provision of the law. Forit should be stressed—and not in these cases only—thatthe impossibility of rectifying the consequences of initialconduct by new conduct which obliterates them mayresult, not from any real lack of means that can be usedfor this purpose in the internal legal system, but from thefact that the availability of such means is purely formal,since, in the case in point at least, they offer no realprospect of achieving the required result. In all thesecases, the obstacle which makes it impossible to remedythe situation created by the initial action or omission of theorgan concerned thus has the same paralysing effect as theobstacle which, as we saw in the preceding paragraph,is encountered when the initial action or omission of theState has made it impossible, in fact, to achieve the resultrequired by the international obligation. In both cases,the State does not really have any means of wiping outthe consequences of its initial conduct. Hence, it can onlybe concluded that the result which the State was requiredto achieve has not been and will not be achieved: theexistence of a breach of the obligation will thus inevitablybe established.

43. Thus, when the initial conduct of an organ of theState has created a situation incompatible with the resultrequired by an international obligation, for that situationitself not to be a complete and definitive breach of theobligation, three conditions must be met: (a) the obli-gation itself must, in principle, give the State discretionto pursue the achievement of the required result, evenafter a situation incompatible with that result has beencreated by an action or omission of one of its organs;(b) the required result must not in fact have becomeunattainable in consequence of that action or omission;and (c) the internal legal system must not place anyformal or real obstacles in the way of subsequent effortsnevertheless to fulfil the obligation. If all these con-ditions are satisfied, it clearly cannot yet be concludedthat the State has finally failed to achieve the resultproperly expected of it. The fact that the organ whichfirst intervened in the case created, by its action oromission, a situation incompatible with the requiredresult is only a beginning or adumbration of a breach ofthe international obligation, since the State has not yet

20 Yearbook of the International Law Commission, 1977, vol. II, Part One

exhausted all its available means of achieving that result.This adumbration will, moreover, come to nothing if theState can seize the opportunity still open to it and fullyachieve the required result by new conduct which elimi-nates, entirely and ab initio, the incompatible situationcreated by its previous conduct. In this connexion, weneed only refer to the international obligations cited asexamples. 93 Let us suppose that, contrary to the require-ments of international conventions on human rights,the police authorities of a State deny certain personsfreedom to reside in the place of their choice, freedom ofassociation or freedom to profess their religion etc., orthat, contrary to the provisions of an establishmenttreaty, the competent administrative authority refuses, orwithdraws from, a foreign national a permit to exercise acertain profession or activity. In both these cases, theState can still, if it wishes, create a situation which con-forms to the internationally required result, provided thatthe country has a higher administrative authority, oran administrative or civil court which is competent, andin fact able, to revoke the prohibition of residence orassociation, to remove the obstacles to the practice ofthe chosen religion, or to revoke the decision refusingor withdrawing a permit. Let us also suppose, again, that,contrary to an obligation laid down in an internationalconvention, which requires the national law of a particularcountry to be applied to certain relations involvingnationals of that country, a court of first instance appliesa different law in a given case, or that, contrary to obli-gations imposed by international custom, a court obstructsthe normal course of an action brought by a foreigner oracquits persons known to have committed a crime againstthe representative of a foreign Government or for thatmatter against any foreigner. 94 The State will still beable to fulfil its obligations provided that there is a higherauthority able to reverse the wrongful decision and thuscreate a situation which in every respect conforms to theinternationally required result.

44. Thus, in all these different cases, the initial conductof a State organ which has created a situation incom-patible with the internationally required result becomesa complete breach of the international obligation onlyif the State refrains, despite the possibility open to it,from eliminating this situation or confirms it by furtheraction. It will be as a result of this later action or omissionthat the existence of the breach will be definitely estab-lished and that the responsibility of the State will bedirectly engaged. However, since the beginning of thebreach represented by its initial conduct will not havebeen effaced but rather completed by the State's subse-quent conduct, the breach will finally be brought aboutby a complex act, 96 combining all the successive actionsand omissions of the State in the case in question.

98 See paras. 20-22 above.•4 See para. 22.95 The concept of a "complex" act of the State has been illustrated

by the Special Rapporteur in his fifth report (see Yearbook... 1976,vol. II (Part One), p. 23, document A/CN.4/291 and Add. 1-2,para. 67) and by the Commission itself in its draft articles (seeYearbook ... 1976, vol. II (Part Two), pp. 88 and 94, documentA/31/10, chap. Ill, sect. B, article 18, paras. 5 and 23 of the com-mentary).

45. It only remains to refer briefly to the last of thethree possible cases successively considered in the firstpart of this section, namely, the case involving the cate-gory of obligations whose characteristics have beendescribed and examples of which have been given above. 96

As stated, these obligations, as compared with thosementioned previously, are characterized by an evengreater degree of permissiveness as regards the latitudeleft to the State for their fulfilment. By reason of theirnature and purpose and their field of application, whenthe initial conduct of a State bound by such an obligation,besides creating a situation incompatible with the inter-nationally required result, has made the attainment ofthat result materially impossible, the State still has a lastopportunity of discharging its international duties. Itis allowed, as an exception, to produce an alternativeresult, instead of that originally required—a result differentfrom that required under the obligation, but in a wayequivalent to it. The conclusion as to the recognition ofa breach of one of these obligations is self-evident. Ashas already been said, a State cannot be charged witha complete breach of the obligation to exercise vigilanceto prevent unlawful attacks against the person or propertyof foreigners, or of the obligation to protect every personagainst arbitrary arrest and detention, merely because ithas not been able to prevent such wrongs from occurring.In order to be able to conclude that such a breach hasbeen committed, it must be established that the State, nothaving achieved the priority result, has also failed toachieve the alternative result, namely, full and completecompensation of the victims for the injury sustained. 97

It is this second failure which, added to the beginningof a breach constituted by the first, makes it into a com-plete and definitive breach. And, as in the case previouslyconsidered, the breach is constituted by a "complex" actof the State.46. In view of the information provided and the argu-ments set out in this section, to define its difficult subject-matter the Special Rapporteur proposes the adoptionof the following text:

Article 21. Breach of an international obligation requiring the Stateto achieve a particular result

1. A breach of an international obligation requiring the State toachieve a particular result in concreto, but leaving it free to chooseat the outset the means of achieving that result, exists if, by the conductadopted in exercising its freedom of choice, the State has not in factachieved the internationally required result.

2. In cases where the international obligation permits the Statewhose initial conduct has led to a situation incompatible with therequired result to rectify that situation, either by achieving the orig-inally required result through new conduct or by achieving an equiv-alent result in place of it, a breach of the obligation exists if, inaddition, the State has failed to take this subsequent opportunity andhas thus completed the breach begun by its initial conduct.

7. EXHAUSTION OF LOCAL REMEDIES

47. The preceding section of this chapter was devotedto a consideration of how, in general, a breach of an

96 See pa ra . 23 .97 Idem.

State responsibility 21

international obligation occurs when the latter does notrequire the State to adopt a specific course of conduct,but merely to take positive steps to ensure a particularresult. We pointed out that, in this case, it is logical thatboth the fulfilment and the breach of the obligationshould be assessed by that result. We therefore began byemphasizing the fundamental criterion that a breachexists when there is no tangible evidence of the requiredresult having been achieved. In the light of this criterion,we asked ourselves in what respect the more or less gen-erous latitude allowed the State in achieving this result isdecisive for concluding that there has been a breach ofan international obligation. Our analysis enabled us todefine the basic principles indicating the conditions inwhich it may be considered that such a breach has beencommitted, whether in cases where the State only hasfreedom of choice at the outset, or in the more frequentcases where the State, having created by its initial conducta situation incompatible with the result required by theobligation, has the faculty to remedy that situation andstill fulfil its obligation by subsequent conduct.48. Having thus established the basic rules, we now haveto study, in particular, in connexion with the last-mentioned cases, the specific conditions of a breach ofobligations falling within a given category. We proposeto discuss those obligations which are designed to protectindividuals, natural or legal persons, and which, at theinternational level, formulate certain requirements andestablish certain guarantees as regards the treatment tobe accorded by States, at the internal level, to the personsin question and to their property. A further condition isthen added, for the purpose of determining whether abreach of an obligation in this category has been com-mitted, to those required in connexion with a breach ofthe other obligations which, moreover, are termed obli-gations "of result". And in our view, the special aspectof these obligations, due precisely to the beneficiaries oftheir provisions, is also the cause of the special characterof the conditions of their breach.49. For where the result which the State is required toachieve is fixed essentially in the interest of individualsand affects their situation in the internal legal orderof the State in question, it is natural that the co-operationof the persons concerned should be sought to get the Stateto comply with the stipulation laid down for their benefitby the international obligation. It is natural that, in caseof difficulty, it is they who should be responsible fortaking the initiative to promote action by the State toremedy the effects possibly engendered by an initialaction or omission by a member of the State machinery,such action or omission being attributable to the Stateand running counter to the achievement of the inter-nationally required result. 98 Hence there will be a breachof the international obligation if the individuals who

98 Where, on the other hand, the result to be achieved is requiredin the direct interest of other subjects of international law, theobligation to institute for this purpose action to enable the Statestill to fulfil its obligation, can only rest with the State, providedit has the possibility of remedying the effects of an initial courseof conduct incompatible with that result. Indeed, it would hardlybe natural that promotion of such action at the level of the internallegal order of the State should be left to another State and subjectof international law.

consider themselves injured through having been placedin a situation incompatible with the internationallyrequired result, do not succeed, even after exhaustingall remedies open to them at the internal level, in gettingthat situation duly rectified. In this case, the result soughtby the international obligation becomes definitelyunattainable by reason of the act of the State. However if,for various reasons, individuals who should and could setthe necessary wheels in motion neglect to do so, " theState can hardly be blamed for having failed to take theinitiative to obliterate the specific situation which conflictswith the internationally required result, and which wascreated by its initial conduct. It follows, therefore, that,if the necessary action by the individuals concerned wasnot taken, the situation engendered by conduct of theState running counter to the internationally desired resultcould not be rectified by a subsequent action of the Statecapable of replacing it by a situation compatible with thesaid result. But the fact that there has been no suchcorrective action, simply because those on whom it wasincumbent to take the necessary initiative have failed todo so, cannot be blamed on the State. The case here isquite different from that where, despite the necessaryinitiative having been taken to obtain redress, the situationcreated by the initial course of conduct is confirmed bya new conduct of the State, likewise incompatible withthe internationally required result. In the case we arenow envisaging, it cannot be concluded that there hasbeen a breach of its obligation by the State, preciselybecause in fact one of the conditions for the completionof the breach has not been fulfilled. The absence of thiscondition has the effect of excluding the wrongfulness ofthe failure to achieve the internationally required result.In this case, therefore, no international responsibilitycan arise for the State. That, in our opinion, is what ismeant by the condition known as "exhaustion of localremedies".

50. The principle setting forth this condition has beenthe subject of special and sometimes very penetratingstudies. Moreover, it is one of the principles which haveattracted most attention from authors of general works onthe responsibility of States for breach of their obligationsconcerning the treatment of aliens or their protectionfrom injury to their person or their property. Interna-tional courts have often stated this principle. It occursfrequently in international conventions designed to ensurethat the contracting States accord a certain situation toprivate persons, whether aliens or even nationals. Inview of the keen interest aroused and this abundance offormulations and analyses, it is only to be expected thatdifferent approaches should have emerged in the con-sideration and explanation of the principle, and thatdifferent ideas should have been put forward on thesubject. Conflicting views have appeared, particularly asto the conventional or customary origin of the principle,as to whether it should be regarded as a substantive ruleor a rule of procedure, and so on.

51. In our opinion, many of these differences are moreapparent than real. They are often due to the fact that

99 Provided, of course, that the State itself is not to blame forthis inaction by individuals.

22 Yearbook of the International Law Commission, 1977, vol. II, Part One

the question has been badly put or, especially, to the factthat the specific framework within which the problemhas been considered has suggested conclusions whichwould probably not have been reached if the analysishad been carried out in a wider framework. For no onedisputes that the principle of the exhaustion of localremedies by private persons who consider themselvesinjured by measures or decisions incompatible with thetreatment to which they are entitled under internationallaw, makes such recourse, in the last resort, a conditionfor the "implementation" of international responsibility,whether the form taken by such inplementation is thesubmission of a claim through the diplomatic channel,or the lodging of an appeal to an international judicial orarbitral tribunal. Thus no one can dispute that theprinciple has an obvious impact on the possibility ofutilizing the procedures for implementing responsibility.But this does not warrant the conclusion that the principleitself is merely a "practical rule" or a "rule of procedure",as some contend, even to the point of disagreeing on thequestion whether this "rule" should concern diplomaticprotection in general or only the procedure for institutingproceedings before an international tribunal. The unde-niable impact of the principle on these different proceduresis a corollary, and a logical one, of the principle in ques-tion, but the main proposition it states cannot, in ourview, be reduced to this corollary.

52. It is our contention that the principle of the exhaus-tion of local remedies applies necessarily, and primarily,to the determination of the existence of an internationallywrongful act arising through the breach of an internationalobligation, and thus to the genesis of international re-sponsibility. To establish, for example that a State hascommitted a breach of an obligation laid on it by atreaty, to guarantee a certain situation to a national ofanother State is tantamount—as we have already notedfrom the beginning of our work—to establishing that aninternational subjective right of that other State has beeninfringed: the right that its own national shall be accordedthe situation provided for in the treaty. Hence, if a Statehas completely breached its obligation towards anotherState, and if the right of the latter has, in consequence,been definitively infringed, international responsibility isinevitably generated, imputable to the author of themisdeed in question. 10° Now, generation of responsibilitymeans generation of those new subjective legal situationsby which it is reflected. In our case, it is the generation ofa new international subjective right of the injured Stateto reparation for the infringement of the right accordedto it by the treaty. But, it would be inconceivable thatthis new international subjective right of the State,generated by the infringement, should remain, as itwere, suspended in mid-air pending the result of proceed-ings instituted by a private person at the internal level,proceedings which may lead to the restoration of theright of that individual but not to the restoration of a

100 It is impossible to conceive, at least in the international legalorder, of a wrongful act not engendering responsibility. Andcertainly international law, so essentially realistic and so practicalin its aims, would never provide for the generation of a responsi-bility which only existed in the abstract, that is to say, withoutanother State having the faculty to enforce it as soon as it becameapparent.

right belonging to the State at the international level andwhich has been infringed at that level. A right, in thesubjective meaning of the term, is essentially a facultyto require from someone else a particular conduct orservice. If the State is not authorized to require reparationfor an internationally wrongful act committed to itsdetriment so long as local remedies have not been invokedand exhausted by the individual concerned, it is becausefor the time being it is not entitled to such reparation;in other words, it is because the wrongful act does notyet exist or, at least, has not yet been completed, and theinternational responsibility has not yet been generated.As we have stated, it is only the final rejection of allappeals which engenders such responsibility, by complet-ing through its effects those of the initial conduct adoptedby the State in the case in point and thereby renderingthe result required by the international obligation defi-nitely impossible of achievement. For we repeat, it is byrendering definitely impossible the achievement of therequired result that the State completes its wrongful act.To think otherwise would be to fail to take into accountthe essential characteristic of an obligation designed tosecure, not the adoption of a specific course of conduct,but the final achievement of a particular result. It wouldbe to overlook the concept of a complex act of the Stateand of the point of time at which an act of this kind iscompleted and entails international legal consequences.In conclusion, it seems logically undeniable that theapplication of the principle with which we are concernedprecedes the completion of the breach of an internationalobligation and the genesis of international responsibility,and does not follow them.

53. To the foregoing considerations should be added theundeniable fact, which we have emphasized, that therequirement of the exhaustion of local remedies isexplicitly stipulated in a growing number of internationalconventions. Mention should first be made of establish-ment and other treaties which provide for the treatmentto be accorded to natural or legal persons of one of thecontracting States in the territory of the other, inter-national treaties having as their general or particularobject to ensure to all individuals, without distinction asto nationality, respect for certain basic prerogatives of thehuman person, treaties regulating recourse by States tointernational arbitral or judicial tribunals followingoffences committed in one of the above-mentioned fields,and so forth. However, the confirmation and developmentof this principle in treaty law should not be allowed toobscure the fact that the so-called "exhaustion of localremedies" requirement has its roots in internationalcustom, where its affirmation is of longer standing thanis its formulation in written instruments of voluntaryorigin. The reason is, once again, that the principleconcerned lays down a requirement for the generation ofinternational responsibility for breach of an obligationrelating to specific subjects much more than a requirementfor the practical enforcement of that responsibility.

54. We have so far endeavoured to explain, in terms ofthe logic of principles, how the expression of the require-ment of exhaustion of local remedies should in ouropinion be understood, justified and interpreted as

State responsibility 23

regards both its direct scope and that of its corollaries,a requirement which is affirmed by international law inspecific relation to the breach of international obligationsrelating to the treatment accorded to individuals by theState. Having done so, we now propose to consider, aswas done in the preceding section, whether it may not bethat international case-law and State practice formallycontradict the ideas which we have expressed and, hence,oblige us to modify our conclusions. We mention case-law and practice because, as already stated, the authors ofspecific works dealing with the subject adopt differentapproaches and often reach conflicting conclusions. Underthese circumstances, taken as a whole, the explanationsof the principle given by those writers are not such asto tip the scale towards one solution rather than another.It will be recalled that the Institute of International Lawarrived at somewhat inconclusive findings on the matterin 1927, in 1954 and in 1956.101 Suffice it to say only thatthe writers who have explained the principle of theexhaustion of local remedies mainly in terms of thegeneration of international responsibility include Bor-chard,102 Strisower,103 Ago,104 Pau,105 Durante,106

Donner,107 Simpson and Fox,108 Sereni,109 Morelli,110

Giuliano,1U Gaja,112 and Thierry, Combacan, Sur andVallee.113 The procedural aspects of this principle have

1 0 1 Annuaire de I'Institut de droit international, 1927 (Brussels),vol. 33-1, p p . 455 et seq.; and vol. 33-111, pp . 81 et seq.; Annuairede I'Institut... 1954 (Basel), vol. 45-1, p p . 5 et seq.; and Annuairede I'Institut... 1956, vol. 46, p p . 1 et seq., and p p . 265 et seq.

1 0 2 E . M . Borchard , The Diplomatic Protection of CitizensAbroad or The Law of International Claims (New York , BanksLaw Publishing, 1928), p p . 817 et seq.; "Theoretical aspects of theinternat ional responsibility of State" , Zeitschrift fur ausldndischesoffentliches Recht und Volkerrecht (Berlin), vol. I, 1st par t (1929),p p . 233 et seq., 239 et seq. and " L a responsabilite des Etats a laConference de codification de La Haye" , Revue de droit interna-tional et de legislation comparee (Brussels), 3rd series, vol. XI I ,1931, p p . 47 et seq.

1 0 3 L . Strisower, Repor t on " L a responsabili te internationale desEta t s a raison des dommages causes sur leur terri toire a la personneou aux biens des etrangers" , Annuaire de I'Institut de droit interna-tional, 1927 (Brussels), vol. 33-1, p p . 492 and 498.

1 0 4 R . Ago " L a regola del previo esauriemento . . ." {he. cit.),p p . 181 et seq., and more particularly p p . 239 et seq.; "Le delitin ternat ional" (loc. cit.), p p . 514 et seq.; and "Observat ions on thepreliminary statement of J. H . W. Verzijl", Annuaire de I'Institutde droit international, 1954 (Basel), vol. 45-1, p p . 34 et seq.

1 0 6 G . Pau , "Responsibili ty internazionale dello Sta to per att idi giurisdizione", Is t i tuto di scienze giuridiche, economiche epolitiche dell 'Universita di Cagliari , Studi economico-giuridici,vol. X X X I I I (1949-1950) (Rome, P innaro , 1950), p p . 45 et seq.

1 0 6 F . Duran t e , Ricorsi individuali a organi internazionali (Milan,Giuffre, 1958), p . 137.

1 0 7 B . Donne r , "Kotazce nutnost i vycerpani vnitrostatnichpravnich postfedku pfed diplomatickym zak rokem" (Concerningthe exhaust ion of local remedies pr ior t o diplomatic representa-t ions), Studie Z mezindrodniho prdva (Prague), vol. IV (1958),p p . 5 et seq.

1 0 8 J. L . Simpson and H . Fox , International Arbitration Lawand Practice (New York , Praeger, 1959), p p . 111-112.

1 0 9 A . P . Sereni, op. cit., p . 1534.1 1 0 G . Morelli , op. cit., p . 350.1 1 1 M . Giul iano, Diritto internazionale (Milan, Giuffre, 1974),

vol. I , p . 593.112 G . Gaja, op. cit., p p . 5 et seq.1 1 3 H . Thierry et al, Droit international public (Paris, M o n t -

chrestien, 1975), p p . 660 et seq.

been brought out by de Visscher,1U Panayotakos,115

Urbanek,116 Law,117 Amerasinghe,118 Haesler,119 Chap-pez120 and Strozzi.121 Nor should it be overlookedthat there is a third current of opinion, according towhich the rule concerns the origin of responsibility incases where the breach of the international obligationderives exclusively from the acts of judicial organs whichhave failed in their duty to ensure to an individual theinternationally required legal protection against injuriessustained in breach of internal law. In other cases,according to this opinion, the same principle would relateonly to the procedures for enforcing the responsibility.This view is expressed by Eagleton,122 Eustathiades,m

Freeman,124 Fawcett125 and Verzijl.126 These divergencesof opinion—or, as in many cases, of emphasis and pre-sentation—find their natural reflection in the draftprovisions for the codification of the internationalresponsibility of States drawn up by jurists or by autho-ritative organizations.127 To speak of schools of thought

1 1 4 Ch. de Visscher, Note sur la "responsabilite internationale desEtats et la protection diplomatique d'apres quelques documentsrecents", Revue de droit international et de legislation comparee(Brussels), 3rd series, vol. VIII (1927), p p . 245 et seq., and "Ledeni de justice en droit internat ional" , Recueil des cours..., 1935-11(Paris, Sirey, 1936), vol. 52, p p . 421 et seq.

1 1 6 C . P . Panayotakos , La regie de Vepuisement des voies derecours internes, en theorie et en pratique (Marseilles, Imp . Moul lot ,1952), p p . 29 et seq., 113.

1 1 6 H . Urbanek , " D a s volkerrechtsverletzende nat ionale Ur te i l" ,Osterreichische Zeitschrift fur offentliches Recht (Vienna), vol. IX ,fasc. 2, 1958-1959, p p . 213 et seq.

1 1 7 C. H . P . Law, The Local Remedies Rule in International Law(Geneva, Droz , 1961), p p . 32 et seq., 131 et seq.

1 1 8 C . F . Amerasinghe, "The formal character of the rule oflocal remedies", Zeitschrift fiir ausldndisches offentliches Recht undVolkerrecht (Stuttgart) , vol. 25, fasc. 3 (1965), p p . 445 et seq.

1 1 9 T. Haesler, The Exhaustion of Local Remedies in the CaseLaw of International Courts and Tribunals (Leyden, Sijthoff, 1968),p p . 92 et seq., 131 et seq.

1 2 0 J. Chappez , La regie de Vepuisement des voies de recoursinternes (Paris, Pedone , 1972), p p . 9 et seq.

121 G . Strozzi, Interessi statali e interessi privati nell'ordinamentointernazionale; la funzione del previo esaurimento dei ricorsi interni(Milan, Giuffre, 1977), p . 104.

122 G . Eagle ton , The Responsibility of States in International Law(New Y o r k , N e w Y o r k Univers i ty Press , 1928), p p . 95 et seq.;and "Une theorie au sujet du commencement de la responsabilit6in te rna t iona le" , Revue de droit international et de legislation compa-ree, (Brussels), 3rd series, vol . X I , N o . 2 (1930), p p . 643 et seq.

1 2 3 C . T h . Eus ta th iades , La responsabilite internationale de I'Etatpour les actes des organes judiciaires et le probleme du deni de justiceen droit international (Paris , P e d o n e , 1936), p p . 243 et seq., 331et seq.

1 2 4 A . V. F r e e m a n , The International Responsability of Statesfor Denial of Justice ( L o n d o n , L o n g m a n s G r e e n , 1938), p p . 407-408.

1 2 5 J. E. S. Fawcett, "The exhaustion of local remedies: substanceor procedure?", The British Year Book of International Law, 1954(London), vol. 31, pp. 452 et seq.

1 2 6 J. H. W. Verzijl, "La regie de l'epuisement des recours internes",Annuaire de I'Institut de droit international, 1954 (Basel), vol. 45-1,pp. 23 et seq., 30 et seq.; International Law in Historical Perspec-tive (pp. cit.), p. 635.

127 Articles 6, 7 and 8 of the draft drawn up in 1929 by the Har-vard Law School, under the influence of Borchard, very clearlypresent the exhaustion of local remedies as a requirement for thegeneration of State responsibility {Yearbook... 1956, vol. II, p. 229,document A/CN.4/96, annex 9). The same can be said of arti-cle IX of the draft prepared by G. O. Murdock and approved in

{Continued on next page.)

24 Yearbook of the International Law Commission, 1977, vol. II, Part One

is also inappropriate, since the arguments advanced bywriters for or against a particular thesis vary so greatlythat they sometimes arrive at similar conclusions fromvirtually opposite directions. In addition, the particularconcerns of individual writers have often led them toextend the scope of their analysis far beyond the limitsof the matter which now concerns us. There is thereforeno need to emphasize the impossibility of undertaking inthis report a critical review of all the arguments expoundedin the various works in support of the theses which theyuphold. We shall confine ourselves to taking into consid-eration, at the appropriate time, those arguments whichmight, in one way or another, have a direct effect on theconcepts which in our view compel recognition in thisarea.

55. With regard to the positions taken by States, itseems desirable first to consider the general opinions theyhave expressed in the abstract, without relation, therefore,to the specific disputes in which these States have beeninvolved. The question whether the exhaustion of localremedies is, in certain conditions, a sine qua non forthe generation of international responsibility or only forthe enforcement of responsibility through the diplomaticchannel or by legal proceedings, was considered at theConference for the Codification of International Law(The Hague, 1930). Point XII of the request for informa-tion addressed to Governments by the Preparatory Com-mittee of the Conference reads as follows:

Is it the case that the enforcement of the responsibility of theState under international law is subordinated to the exhaustionby the individuals concerned of the remedies afforded by the muni-cipal law of the State whose responsibility is in question?128

The terms of this request were not very clear. They seemto reflect a certain hesitancy over the ideas to be expressedand a concern not to prejudge the question. It is notsurprising therefore that the replies from Governments

{Foot-note 127 continued.)1965 by the Inter-American Juridical Committee as reflecting theviews of the United States of America {Yearbook... 1969, vol. II,p. 153, document A/CN.4/217 and Add.l, annex XV).

Other draft provisions, by contrast, deal with the exhaustion oflocal remedies from the point of view of its effects on the exerciseof diplomatic protection: the resolution of the Institute of Inter-national Law of 1927 (article XII) (Yearbook... 1956, vol. II,p. 228, document A/CN.4/96, annex 8); the draft of the DeutscheGesellschaft fur Volkerrecht of 1930 (article 13) (Yearbook... 1969,vol. II, pp. 150-151, document A/CN.4/217 and Add.l, annex VIII);the draft prepared by A. Roth in 1932 (article 9) (ibid., p. 152,annex X); the resolution of the Institute of International Law of1956, specifically concerned with the rule of the exhaustion of localremedies (ibid., p. 142, annex IV); the draft prepared for the Inter-national Law Commission in 1958 by F. V. Garcia Amador (arti-cle 15) (Yearbook... 1958, vol. II, p. 72, document A/CN.4/III,annex) and the revised draft which he prepared in 1961 (article 18)(Yearbook... 1961, vol. II, p. 50, document A/CN.4/134 and Add.l,addendum); the draft prepared by Sohn and Baxter for the HarvardLaw School in 1961 (article 1) (Yearbook... 1969,vol. II,p. 142, docu-ment A/CN.4/217 and Add.l, annex); the Restatement drawn upin 1965 by the American Law Institute (para. 206) (Yearbook... 1971,vol. II (Part One), pp. 197-198, document A/CN.4/217/Add.2).In the case of the latter draft, the character accorded to the prin-ciple does not really emerge very clearly from the text of the para-graph, but was specified in the commentary (American Law Insti-tute, Restetament of the Law, Second: Foreign Relations Law ofthe United States (St. Paul, Minn., American Law Institute, 1965,p. 612).

128 League of Nations, Bases for Discussion, op, cit., p. 136.

are not always formulated in such a way as to give aclear idea of the opinion on the question, but it is ap-parent, however, that Austria, Belgium, Bulgaria, Ger-many, 129 Czechoslovakia and Poland130 considered thatinternational responsibility did not come into being untilafter the fruitless exhaustion of local remedies. On theother hand, Great Britain seems to have expressed theopinion that only the enforcement of an already estab-lished responsibility was subject to the exhaustion oflocal remedies.m In the light of the replies, the Prepara-tory Committee formulated the following Basis forDiscussion:

Where the foreigner has a legal remedy open to him in the courtsof the State (which term includes administrative courts), the Statemay require that any question of international responsibility shallremain in suspense until its courts have given their final decision...132

That text in turn seems to have been drafted deliberatelyto provoke discussion, and it certainly did. During thediscussion at the Conference,133 some delegations,namely, those of Egypt,134 Spain,135 Mexico,136 Colom-bia,137 and Romania, expressed the opinion that theexhaustion of local remedies was a prerequisite for thegeneration of responsibility. It is particularly interestingto read the declaration by the representative of Romania,whose statement of position was distinguished by theclarity and precision of the ideas expressed and languageused:

The responsibility of the State arises from the disregard of aninternational obligation. * It is therefore proportionate or subordi-nate to the measure of the non-fulfilment of that obligation.

So long, however, as some organ of the State is in a position tofulfil the obligation, its non-fulfilment is not proved. * Accord-ingly, the condition for the coming into being of such responsibility *—namely, the evidence of non-fulfilment—does not exist. *

Consequently, it is quite correct to say that responsibility itselfcomes into being only after it has become patent that there has beenno fulfilment * i.e. that the international requirement or obligationhas not been met.

So long as there is a possibility of its fulfilment by some internalmeans of redress, it cannot be said that the international obligationhas not been fulfilled.138

129 Ibid.180 Ibid., p . 139.131 Ibid., p . 137. Norway (ibid., p . 138) distinguished between

two cases: damage caused t o a foreigner as a result of an actcontrary t o nat ional laws, a n d damage caused by an act in breachof a treaty or some other indisputable obligation of internationallaw. The Norwegian Government considered that , in the firstcase, international responsibility did not come into being untilall internal remedies h a d been exhausted, a n d that , in the second,the principle of exhaust ion was not applicable.

182 Basis N o . 27 (ibid., p . 139).183 The discussion on this Basis for Discussion is t o be found

in League of Na t ions , Acts of the Conference for the Codificationof International Law, volume IV, Minutes of the Third Committee(C.351 (c) M . 145 (c), 1930 V), p p . 63 et seq., 162 et seq.

184 Ibid., p . 64. The Egyptian Government proposed an amend-ment t o the text on the lines advocated by it (ibid., p . 210).

186 Ibid., p p . 64-65.186 Ibid., p p . 72-73. The Mexican Government also proposed

an amendment (ibid., p . 223).187 Ibid., p p . 78-79.188 Ibid., p . 77.

State responsibility 25

Other representatives, like those of Italy139 and Ger-many, 140 although fewer in number, expressed a contraryopinion without, however, taking up such a clear andsubstantiated position. A third group (e.g. the represen-tatives of the United States141 and Norway142) was ofthe opinion that exhaustion of local remedies was some-times a prerequisite for responsibility and sometimesfor enforcement.

56. At the end of the discussion, the delegations agreedon the adoption of a formula that did not take any posi-tion on the question whether international responsibilitycame into being before or after the exhaustion of localremedies.143 The proposal of the sub-committee dealingwith the question,144 and adopted by the committee onfirst reading, was embodied in article 4, paragraph 1,and read as follows:

The State's international responsibility may not be invoked asregards reparation for damage sustained by a foreigner until afterexhaustion of the remedies available to the injured person underthe municipal law of the State.146

There can be no doubt that the formula thus adoptedended by being deliberately ambiguous and, indeed,proponents of each of the schools of thought representedin the discussion subsequently invoked it in support oftheir own point of view.146 Consequently, we cannot drawany clear and final conclusions from the work of the1930 Codification Conference on the point which con-cerns us. That does not prevent us, however, from notingthat the majority of Government representatives whoexpressed their views on the subject considered that theexhaustion of local remedies, in cases where that is pro-vided for, amounts to fulfilling a condition for the breachof an international obligation to arise (and thus forinternational responsibility to come into being), and doesnot simply give the green light to the Faculty to initiatethe procedure for the implementation of an alreadyexisting responsibility.

139 Ibid., pp . 74-75.140 Ibid., p p . 79-80. It should be noted that , in its reply to the

request for information, Germany supported the view that respon-sibility does not come into being until after all local remedieshave been exhausted.

141 Ibid., pp . 73-74.142 Ibid., p . 76.143 Several delegations acquiesced in that solution in the belief

tha t the problem was of no major practical consequence. Seethe statements by the representatives of Greece (ibid., pp . 66-67),Belgium (p. 69), Great Britain (pp. 69-71), United States (pp. 73-74), Mexico (pp. 72-73), Colombia (p. 78) and Germany (pp. 79-80). The participants in the Conference had obviously failed toweigh the consequences which the adoption of one point of viewrather than another might have on such matters as the determina-tion of the moment a t which an internationally wrongful act wascommit ted and the durat ion of the commission of the act. Thepractical implications of the reply to these questions may be deci-sive as regards such important points as knowing whether thedispute arising out of a particular act is or is not one which aninternational tr ibunal is competent to judge, or of knowing fromwhat moment any damage caused should be taken into considera-tion for the purposes of assessing the amount of reparation.

144 Ibid., p . 162.145 Ibid., p . 236.146 See, for instance, E. M. Borchard, "La responsabilite des

Etats ..." (loc. cit.), p . 49 and Chappez, op. cit., p . 23.

57. A further reflection is called for on the subject ofthe opinion put forward by some Governments, such asthose of the United States and Norway, that the principleof the exhaustion of local remedies is not a conditionfor the existence of international responsibility exceptin the case where a judicial appeal has been institutedfollowing an ordinary violation of internal law.147

Leaving aside the curious notion that a principle canchange its character according to the case to which it isapplied, what is still more interesting is that, even inthe case considered, the application of the principle ofthe exhaustion of local remedies is also and inevitablyextended to the case of an appeal to the court to reversea decision that conflicts with an international obligation.Let us suppose, in order to make this clearer, that theindividual who originally complained of the violation ofan internal law to his detriment appeals to a court offirst instance, and his appeal is dismissed in circumstancesthat conflict with the requirements of international lawregarding the administration of justice to foreigners.According to the opinion to which we referred at thebeginning of this paragraph, an act of this kind certainlydoes not give rise to international responsibility: an inter-nationally wrongful act as understood in the term "denialof justice" is not considered as complete until the highercourts have successively given their judgment and con-firmed the decision of the court of first instance. Thismeans recognizing, in the case in point, that, even ifconduct has taken place which is contrary to what wasrequired by an international obligation, that obligationwill not be completely breached and responsibility willnot arise until all available local remedies against suchconduct have been employed and exhausted by the indi-vidual concerned. Such conduct, let us repeat, mayamount to an embryonic breach of an internationalobligation, but it does not constitute a completed breach,which alone gives rise to the international responsibilityof States.

58. This seems an appropriate point at which to analysesome of the more significant positions taken up on otheroccasions by State organs or international tribunals,particularly in disputes over concrete cases. However,we feel that some reflections are called for to begin with,in order to avoid errors of interpretation that might leadus to draw arbitrary conclusions.

59. In international diplomatic and judicial practice, wesometimes come across the unequivocal statement thatthe exhaustion of local remedies is a condition for thegenesis of the international responsibility of the State.We shall see some striking examples of this. Now it isobvious that the authority of these statements of positionvaries considerably depending upon whether they are tobe found in the written decision of a court, or in theargument put forward by the representative of a Stateparty to a dispute, and, in the latter case, whether thestatement of position is accepted or rejected by theopposing party. But, in any case, there can be no doubtthat the mere fact that an affirmation of this belief ismade at all is strong support for the argument that, in

147 This opinion obviously reflects that of the third school ofthought mentioned above (para. 54).

26 Yearbook of the International Law Commission, 1977, vol. II, Part One

the cases we are considering in this section, the inter-national responsibility of the State is not engaged untilthe condition is fulfilled that all local remedies have beenexhausted by the individual concerned. In other words,any affirmation of this kind is grist to the mill of thosewho see in this initiative by the individual an indispen-sable element in enabling the breach of an internationalobligation to be completed and produce its consequences.

60. Only an assertion flatly denying that the principleof exhaustion of local remedies may affect the formationof international responsibility would lend support tothe contrary opinion. On the other hand, there are nogrounds for regarding as evidence of the validity of thisother opinion the fact that, in various cases, internationalcourts in their decisions, and Governments in the posi-tion they have adopted, have relied on the exhaustion oflocal remedies as a condition for the exercise of diplomaticprotection of certain persons or of the faculty to submitclaims on their behalf to an international tribunal.148 Itwould be wrong to interpret this as concrete evidence ofan implicit conviction that the condition of the exhaustionof local remedies does not affect in any way whatever thegenesis of responsibility and is merely of a purely prac-tical and procedural character. It must be rememberedthat the aim of the State in invoking failure to employlocal remedies against a claim asserted against it beforean international court is mainly to block considerationof the substance of the claim by entering a plea of inad-missibility. And in turn, the aim of the State submittingthe claim, when it contests the existence of such failureor its effect in the case in point, is precisely to remove thepreliminary obstacle thus placed in the way of consider-ation of the substance of its claim. Thus, both Stateshave to take into consideration the principle of exhaustionof local remedies, not from the point of view of its effecton the formation of responsibility but from that of itsimpact on the admissibility of the claim. The distinctionnow generally made between the procedure relating topreliminary objections and that relating to substance

148 See, for example, the statement in the United KingdomGovernment's Memorandum of 28 August 1931 submitted to theLeague of Nations concerning the Finnish Vessels case (Leagueof Nations, Official Journal, 12th year, No. 11 (November 1931),p. 2217) "that a State is not entitled to make any diplomatic claimon behalf of its nationals against another State in respect of anymatter where, if the claim is valid, the municipal law affords aremedy, unless such municipal remedies have been exhausted",or the reference in the note from United States Secretary of StateHull to Senator Ellender, of 25 April 1942 (reproduced in M.Whiteman, Digest of International Law (Washington, D.C., U.S.Government Printing Office, 1967), vol. VIII, p. 772) to "Thegenerally accepted principle of international law which requires,as a precedent to the establishment of a valid international claim,the exhaustion of such legal remedies as may be available in thecourts of the country against which a claim is asserted". Seealso the passages of the judgment of the International Court ofJustice in the Interhandel case (I.CJ. Reports 1959, p. 27) reading:"Before resort may be had to an international court in such asituation, it has been considered necessary that the State wherethe violation occurred should have an opportunity to redress itby its own means, within the framework of its own domestic legalsystem" and "local remedies must be exhausted before internationalproceedings may be instituted", or the comment in the messageof the Swiss Federal Council of 15 December 1967 (Swiss Year-book of International Law, 1968 (Zurich, 1970), vol. XXV, p. 271),that "a claim may not be taken before an international authorityuntil local remedies have been exhausted".

also means that the international court called on topronounce on the question within the framework ofthe former procedure cannot but approach it from thesame point of view. Discussion on this point usuallycentres on interpretation of the agreement establishingthe jurisdiction of the international tribunal involvedand its scope; therefore, if the agreement mentions theprinciple of exhaustion of local remedies when definingthe conditions in which a claim may be held as admissibleby the tribunal in question, the latter will necessarilyhave to settle the question whether or not local remedieshave been exhausted from the point of view of the exis-tence of a condition of admissibility of the claim ratherthan that of existence of a condition of the internationalresponsibility of the respondent State. It is obvious,however, that any assertion of the effect of failure toexhaust local remedies on the admissibility of an inter-national claim in no way implies an intention to deny theeffect of such failure on the substantive question of thegeneration of international responsibility.149 On thecontrary, recognition of the invalidating effect of suchfailure on the question of admissibility represents, aswas stressed above,150 the application of a simple corollaryto the main thesis of the principle of exhaustion of localremedies, which, far from denying, confirms the effect ofthis main thesis on the commission of a breach of aninternational obligation and, thus, on the generation ofresponsibility.

61. It is moreover a fact that, in many cases, the condi-tion of prior exhaustion of local remedies is simulta-neously invoked at two levels: directly, as a condition forthe determination of international responsibility and onlyindirectly as a condition for the legitimate assertion of aninternational claim. This is the case every time that theinternationally wrongful act invoked by the claim is adenial of justice to an individual who has previouslysuffered injustice only in breach of internal law.151

149 The same is true in cases where the respondent State or theinternational tr ibunal has maintained that the claimant State wasnot authorized to submit a claim because, in the case in question,n o international obligation had been breached. In making suchan assertion, they were not of course maintaining that the existenceof a breach of an international obligation was only the conditionof the admissibility of an international claim and not , first andforemost, the condition of the existence of international responsi-bility. They merely wished to make clear the effect on the useof the claim procedures of an act which relates primarily to thegeneration of responsibility.

150 See para . 51 above.151 Assertions of the following type are, for example, quite

frequently no ted : "... claims arising out of contractual relationshipsbetween a nat ional of this Government and a foreign governmentdo not , generally speaking, provide a proper subject for diplomaticintervention on the par t of this Government in the absence of aclear showing that the American nat ional has exhausted such legalremedies as may be open to him and has sustained a denial ofjustice as that term is understood in international law" (Letterfrom United States Attorney Adviser Matre to Hershel Davis,14 May 1956, M . Whiteman, op. cit., p . 907), o r : "... A legal basisfor an international claim against the Cuban Government or forrepresentations by this Government to the Cuban Governmentwould not arise unless an American national at tempted to collecta debt by exhausting the legal remedies provided by Cuban lawand sustained a denial of justice ..." (Department of State, Memo-randa of information concerning debts owed to American nationals(by private parties and concerns) in Cuba {ibid.).

State responsibility 27

Breach by the State of an international obligation occurs,therefore, only when and if the individual appeals to thecourts of the country against a failure, to his detriment,to observe internal law. The use of local remedies isthus presented both as the condition for the existence ofa denial of justice, a clear example of an internationallywrongful act, and as the condition for the submissionof a claim to enforce the international responsibilitygenerated by this wrongful act. Obviously, the secondaspect presupposes the first from which it logicallyderives. In conclusion, the fact that international arbi-trators and tribunals, like State organs, have often invokedexhaustion of local remedies as a condition for the imple-mentation rather than the generation of responsibilitycannot as such be adduced as evidence of an opinionthat international responsibility is in any case generatedbefore local remedies have been initiated and pursued,and irrespective of their exhaustion. There is nothing inthis to permit the conclusion that, in the opinion of thesetribunals and organs, the only thing that depends on theexhaustion of local remedies is the possibility of enforcing,at the diplomatic or judicial level, a responsibility gen-erated before such exhaustion.

62. All that can be taken into account, therefore, insupport of the argument that the exhaustion of localremedies is only a condition for the exercise of diplomaticand legal protection, are statements of position clearlyfavouring this view. Probative value can be attributedonly to unequivocal statements of rejection of the ideathat, before being a formal condition of the possibilityof enforcing international responsibility through the pre-sentation of an international claim, exhaustion of localremedies is a substantive condition of the generation ofsuch responsibility. Now, it must be said that such state-ments are very hard to find, and in view of the circum-stances in which they are encountered, less conclusivethan those supporting the opposite thesis.

63. Let us, to convince ourselves of this, examine thestatements of Governments or international tribunalson the rare occasions when they were specifically facedwith the question of the possible effect of the exhaustionof local remedies on the generation of the internationalresponsibility of the State. Decision No. 21 of Feb-ruary 1930 of the Great Britain-Mexico Claims Com-mission, set up by the Convention of 19 November 1926,in the Mexican Union Railway case, contains the state-ment that:

... the responsibility of the State under international law canonly commence * when the persons concerned have availed them-selves of all remedies open to them under the national laws of theState in question.152

Unquestionably, what was being clearly stated there wasthat exhaustion of local remedies was a condition for thegeneration of international responsibility.

64. On the occasion of the proceedings instituted byGermany before the International Court of Justice inconnexion with the case concerning the Administrationof the Prince von Pless, the Polish Government raised apreliminary objection in which, after opposing the action

of the German Government, which amounted to bringinga claim "to an international court when the person con-cerned possesses a means of recourse to national courtswhere he may find satisfaction", it went on to say:

... until the legal means made available by internal legislationto individuals to defend their interests have been exhausted, therecan be no question of the international responsibility * of the State.163

Thus, the Polish Government clearly adopted the positionthat the principle laying down the condition of exhaustionof local remedies directly concerns the existence of inter-national responsibility, even through at the same time itemphasized the corollary of that principle relating to theformal possibility of taking a claim to an internationalcourt. It should also be noted that the German Govern-ment maintained that, by reason of a conventional dero-gation therefrom, the principle of exhaustion of localremedies was inapplicable in that particular case, but inno way contested the Polish Government's definition ofthe principle.

65. Interpretation of the arbitral award in the FinnishVessels case is less easy. We saw above 154 that the Brit-ish Government, in its Memorandum to the Council ofthe League of Nations, had invoked the principle of theexhaustion of local remedies for the purpose of blockingthe submission by the Finnish Government of the diplo-matic protest addressed to it by that Government. Wethen showed that invocation of the principle for thatpurpose in no way excluded the possibility of invokingit for other purposes also, particularly that of challeng-ing the existence, in a specific case, of a completed breachof an international obligation and, thus, of an inter-national responsibility already established against therespondent State. The Finnish Government, in turn, hadquestioned the very existence of the principle which theUnited Kingdom regarded as unchallenged. As a result ofthe discussion before the Council, the parties submittedthe following concrete question to arbitration: "Have theFinnish shipowners or have they not exhausted the meansof recourse placed at their disposal by British law?"155

This was the question that the Arbitrator, A. Bagge,had to decide, and he began by noting that the FinnishGovernment did not claim that the breach of internationallaw alleged by it was represented by the rejection by theBritish courts of the claim by the Finnish shipowners,but by the "initial breach of international law"156

constituted, in its view, by the seizure and use withoutpayment of the vessels belonging to them. Having saidthis, the Arbitrator concentrated on determining whatpoints of law and fact should be submitted by the claim-ants to the municipal courts in a case of the kind. Hecommented that, where "an initial breach of internationallaw" was alleged, the sole raison d'etre of the principle ofexhaustion of local remedies was to enable the municipalcourts, up to the highest court of appeal, to inquire into

162 United Nations, Reports of International Arbitral Awards,vol. V (United Nat ions publication, Sales N o . 1952.V.3), p . 122.

153 P.C.I.J., Series C, N o . 70, p p . 134-135 (translation by theSecretariat).

154 Foot -note 148.155 G . F . de Mar tens , ed. , Nouveau Recueil de traites (Leipzig,

Buske, 1933), 3rd Series, vol. XXVII I , p . 116.166 Uni ted Na t ion , Reports of International Arbitral Awards,

vol. I l l (United Na t ions publication, Sales N o . 1949.V.2), p . 1502.

28 Yearbook of the International Law Commission, 1977, vol. II, Part One

and decide all questions of law and of fact alleged bythe claimant State in international proceedings to provethat a breach had occurred. The purpose of this was toallow the respondent State the opportunity of doingjustice "in their own ordinary way". Without enteringhere into the substance of the question, which is outsideour subject, we note first that, by the very fact of takinginto consideration the possibility that the principlerequiring the exhaustion of local remedies was applicableto cases where the claimant alleges "an initial breach"of international law, the Arbitrator seemed to be leaningtowards the idea that the principle in question did notstate a condition for the generation of responsibility,157

but only a condition for recourse to a claims procedure.Nevertheless, immediately afterwards the Arbitratordeclared that he was not unaware of the fact that, in theworks of learned writers, at sessions of the Institute ofInternational Law and, in particular, at the 1930 Codi-fication Conference, the theory had been maintained:that no responsibility of the State can come into existence untilthe private claim has been rejected by the local courts, whether thebasis brought forward for the international claim may be a failureof the local courts of law to fulfil the requirements of internationallaw, or the basis is an initial breach of international law,and he finally concluded that:

If this proposition means that the responsibility of the Statedoes not come into existence until the grounds upon which theclaimant Government in the international procedure base theircontention of an initial breach of international law have beenrejected by the municipal courts, this proposition does not seemto result in any difference as to the question which contentions offact or propositions of law should be considered under the localremedies rule.158

Arbitrator Bagge thus maintained a sort of neutrality 169

between the two approaches to the requirement of theexhaustion of local remedies, since both led to the sameconclusion as regards the point he had to decide. Itwould thus be quite arbitrary to regard his considerations

167 The expression "initial breach of international law", in thelanguage used by the Arbitrator, Mr . Bagge, probably meant abreach of international law committed at the beginning of the case.The expression is ambiguous, however, since it might also meanthe "beginning, inception or first stage of a breach of internationallaw"; it would then express a different idea, namely, precisely theone that seems to us appropriate for describing a concrete situationsuch as that to which the Arbitrator was referring.

168 United Nations, Reports of International Awards, vol. I l l(op. cit.\ p . 1502.

169 Arbitrator Bagge confined himself to saying that he couldnot understand how this argument could be reconciled with thefact that, in certain decisions of the 1871 United States/UnitedKingdom Conciliation Commission, the individuals concerned hadbeen excused for not having appealed against decisions of lowercourts because they had been unable to communicate with theirlawyers or because the time-limits fixed were too short. If thebreach of an international obligation actually occurs only afterrejection of the claim of individuals by the highest municipalcourt of law, he said, recourse to municipal courts is a "matterof substance and not of procedure". I t is difficult, however, t ofollow the Arbitrator 's reasoning on this point. According to theopinion to which he was referring, the principle requiring recourseto and the exhaustion of local remedies indeed constitutes a substan-tive condition for the generation of international responsibility,but admittedly this does not mean that the abusive employmentof procedural obstacles in order to impede normal recourse tolocal remedies may not release the parties from their obligationsand that the required condition may thus be held to be fulfilled.

as a clear, reasoned stand in favour of rejection of thetheory that, in cases where the principle of the exhaustionof local remedies comes into play, such exhaustion is acondition for the coming into being of internationalresponsibility.20. The two theories as to the function attributed to theexhaustion of local remedies by the principle which statesthat condition came face to face in the Phosphates inMorocco case between Italy and France. In its preliminaryapplication of 30 March 1932 to the Permanent Court ofInternational Justice, the Italian Government asked theCourt to judge and declare that the decision by the MinesDepartment dated 8 January 1925160 and the denial ofjustice which had followed it were inconsistent withthe international obligation incumbent upon France torespect the acquired rights of the Italian companyMiniere e Fosfati.161 The French Government hadaccepted the compulsory jurisdiction of the Court by adeclaration dated 25 April 1931, for "any disputes whichmay arise after the ratification of the present declarationwith regard to situations or facts subsequent to this rati-fication *."162 The question thus arose whether the inter-nationally wrongful act of which the Italian Governmentwas complaining could or could not be regarded as a"fact subsequent" to the critical date. The Italian Govern-ment contended that the breach of an international obli-gation initiated by the decision in 1925 only became acompleted breach following certain acts subsequent to1931, particularly a note of 28 January 1933 from theFrench Minister for Foreign Affairs to the Italian Ambas-sador and a letter of the same date addressed by the sameMinister to the Italian individual concerned. The ItalianGovernment saw that note and that letter as an officialinterpretation of the acquired rights of Italian nationalswhich was inconsistent with the international obligationsof France. It saw in them a confirmation of the denial ofjustice to the Italian nationals concerned, constitutedby the refusal of the French Resident-General to permitthem to submit to him a petition for redress in accordancewith the terms of article 8 of the dahir of 12 August 1913.The new denial of justice now consisted in the final refusalof the French Government to make available to theclaimants an extraordinary means of recourse, whetheradministrative or other, in view of the lack of ordinarymeans.163 On the basis of these facts, the Italian Govern-ment clearly opted for the theory that an internationallywrongful act, though initiated by a first State conductcontrary to the result required by an internationalobligation, is completed only when the injured individualshave tried unsuccessfully to make use of all existingappropriate and effective remedies. It was thus from thatmoment that, in its view, the responsibility came intoexistence.164

160 This decision had rejected the claim of an Italian citizen,Mr . Tassara, to be recognized as the discoverer of the phosphatedeposits in Morocco.

161 P.C.I.J., Series A/B, N o . 74, p . 15.162 Ibid., p . 22.163 Ibid., p p . 27-28.164 The Italian Government's argument was developed mainly

in its oral statement of 12 May 1938 (P.C.I.J., Series C, No. 85,pp. 1231-1232), but taken up again in its statement of 16 May(ibid., pp. 1332-1333).

State responsibility 29

67. In opposition to the Italian Government, theFrench Government maintained that if, as the formeraffirmed, the decision of 1925 by the Mines Departmentreally merited the criticisms levelled against it—violationof treaties, violation of international law in general—it was at that date that the breach by France of its inter-national obligations had been committed and completed,and at that date that the alleged internationally wrongfulact had come into being. The French representativeaffirmed that:

Here, the rule of the exhaustion of local remedies is nothing morethan a rule of procedure. The international responsibility isalready in being, even if it cannot be enforced through the diplo-matic channel or by resort to an international tribunal and appealto the Permanent Court of International Justice until local remedieshave first been exhausted.165

68. In its judgment of 14 June 1938, the Court indicatedthat it did not discern in the action of the French Govern-ment subsequent to the decision of 1925 any new factorgiving rise to the dispute in question, and that the refusalby the French Government to accede to the request tosubmit the dispute to extraordinary judges did notconstitute an unlawful international act giving rise toa new dispute. The Court went on to say:

The Court cannot regard the denial of justice alleged by theItalian Government as a factor giving rise to the present dispute.In its Application, the Italian Government has represented thedecision of the Department of Mines as an unlawful internationalact, because that decision was inspired by the will to get rid ofthe foreign holding and because it therefore constituted a violationof the vested rights placed under the protection of the internationalconventions. That being so, it is in this decision that we shouldlook for the violation of international law—a definitive act whichwould, by itself, directly involve international responsibility....In these circumstances the alleged denial of justice, resulting eitherfrom a lacuna in the judicial organization or from the refusal ofadministrative or extraordinary methods of redress designed tosupplement its deficiencies, merely results in allowing the unlawfulact to subsist. It exercises no influence either on the accomplish-ment of the act or on the responsibility ensuing from it.166

69. Despite certain indications to the contrary, the Court,in rejecting the Italian claim that the "unlawful inter-national act" invoked by the Italian Government wasan act subsequent to the crucial date and in considering,as a consequence, that it had no jurisdiction to adjudicateon the case, was not in any way taking a stand againstthe argument of principle put forward by the ItalianGovernment. According to the Court, the decision takenin 1925 by the Department of Mines, against which there

195 The French Government's argument was set out in its oralpleading of 5 May 1938 (ibid., Series C, No. 85, p. 1048). Assumingthat the French Government was correct in stating, in its note of28 January 1933, that the decision of the Mines Department wasnot subject to appeal, the French position was probably well-founded when it contended that the internationally wrongful actin question must have been completed in 1925 and that, conse-quently, the Permanent Court had no jurisdiction. Where itwould seem that the French Government's argument appearscontradictory is when it maintained that the principle requiring theexhaustion of local remedies could still apply in the case in pointbut purely as a rule of procedure. If no appeal is possible, then theprinciple of exhaustion of local remedies is clearly not susceptibleof any practical application whatsoever.

166 Ibid., Series A/B, No. 74, p. 28.

was in fact no legal or other redress,167 was, by that veryfact, a definitive violation of the international obligationto grant Italian nationals full equality of treatment inrespect of mining concessions. Consequently, the Courtdid not accept that the "unlawful international act"attributed to France by the Italian Government hadculminated in an alleged "denial of justice" in the formof the French Government's note of 28 January 1933,which merely confirmed, at the diplomatic level, thatthere was no redress against the decision of 1925. Neitherdid it accept that the request by the individuals to theFrench Government to make available to them extra-ordinary legal means not provided for by law could beregarded as a "local remedy" within the meaning of theprinciple. Finally, the Court did not concede that the"unlawful international act", alleged by the ItalianGovernment to have commenced in 1925, had beendependent upon the note of 1933 for its completion. Thispoint of view can certainly be defended but, although itnecessarily culminates in the rejection of the Italianapplication, it does not constitute a rejection of theopinion put forward by the Italian Government as ageneral principle, concerning the effect of local remedieswhere they are available—on the establishment of thedefinitive nature of a breach of an international obligationand, as a consequence, on the genesis of internationalresponsibility.70. After the Phosphates in Morocco case, neither thePermanent Court of International Justice nor, subse-quently, the International Court of Justice had anyfurther occasion to pronounce on the question withwhich we are concerned. The Court cannot be regardedas having taken a position on the question in the passageof its judgment of 21 March 1959 in the Interhandel casewhere, after stating that the exhaustion of local remedieswas provided for by "a well-established rule of customaryinternational law . . . generally observed in cases in whicha State has adopted the cause of its national whoserights are claimed to have been disregarded in anotherState in violation of international law", it goes on tosay:

Before resort may be had to an international court in such asituation, it has been considered necessary that the State wherethe violation occurred should have an opportunity to redress itby its own means, within the framework of its own domesticlegal system.168

It is perfectly clear that the expression "violation" usedby the Court was intended, as in the previous phrase,to refer to the violation of the individual's rights underinternal law and not to a violation of the State's rightsunder international law. The principle so succinctlystated by the Court is therefore perfectly compatible withthe idea that a violation by a State of its internationalobligation, justifying an appeal to an international tri-bunal, is only completed upon the State's refusal ofredress, within the framework of its domestic legal system,for the injury caused by its initial conduct to the rightsof an individual.

167 Clearly, the Court did not consider that the "petition forredress" to the French Resident-General in Morocco could beregarded as a real remedy.

188 I.C.J. Reports 1959, p. 27.

30 Yearbook of the International Law Commission, 1977, vol. II, Part One

71. On the other hand, the European Commission ofHuman Rights has several times had occasion to pro-nounce on the principle of exhaustion of local remedies.In the case-law of the Commission, we find from time totime affirmations of the need to allow the State "anopportunity to redress by its own means within theframework of its own domestic legal system the wrongalleged to have been done . . . " . Here, the Commissionis obviously referring to the wrong done to the individualand is not claiming that such a wrong in itself constitutesa definitive breach of an international obligation. Suchaffirmations therefore form part of the series alreadyconsidered;170 and while they illustrate the effect offailure to resort to local remedies on the admissibility ofan international claim, they are certainly not intended todeny the effect of such failure on the creation of inter-national responsibility. Indeed, the justice of this obser-vation is, if need be, further borne out by the Commissionitself, which is responsible for the most recent and, at thesame time, very clear and direct confirmation of theprinciple upheld in this section. In its decision of 1958on Application No. 235/56, the Commission statedthat:

... the responsibility of a State * under the Human Rights Conven-tion does not exist * until, in conformity with article 26, all domesticremedies have been exhausted * ...m

Although the above statement was made in relation to aparticularly clear case of the application of the principlein question,172 it is couched in terms which obviouslycover all possible cases of application of article 26 of theConvention, in which the rule requiring the exhaustionof local remedies is set out in the most general terms.There cannot, therefore, be the slightest doubt that thisdecision may be regarded as a general interpretation ofthe principle requiring the exhaustion of local remediesas essentially laying down a condition for the cominginto being of the international responsibility of the State.

72. Before concluding an analysis of the positionsadopted by official representatives of States, by tribunalsand other international courts on the point in question,it may be useful to note the views expressed, in separateor dissenting opinions, by judges of the InternationalCourt of Justice and its predecessor, the Permanent Courtof International Justice. These opinions are all the moreinteresting as the Court itself has not taken a direct andclear stand on the matter with which we are concernedin the cases to which they are related.

73. Some of these opinions are not particularly clear.The dissenting opinion of Judge Armand-Ugon in theInterhandel case, for instance, is open to various inter-pretations. It states that:

169 Application No . 343/57, Yearbook of the European Conven-tion on Human Rights, 1958-1959 (The Hague), vol. I I (I960),p . 438. Almost identical affirmations are to be found in decisionsrendered in subsequent years.

170 See para. 60 above.171 Yearbook of the European Convention on Human Rights

{op. cit.\ p . 304.172 I t was a case of maladminis t ra t ion of justice, and almost

everybody agrees tha t in such cases the rule requiring the exhaust ionof local remedies amoun t s t o a substantive principle.

T h e purpose of the local remedies rule is simply t o allow thenat ional t r ibunals in the first stage of the case to examine theinternat ional responsibility of the defendant State as presentedin the Appl icat ion; tha t examinat ion would of course have t o bemade by a nat ional c o u r t . 1 7 3

This may be understood as meaning that a nationaltribunal should "examine" an international responsibilityalready formed, which would be somewhat surprisingsince it is hard to see how a national tribunal coulddetermine the consequences of a responsibility createdat the level of inter-State relations. But it can also beinterpreted—and it is more likely that this is its realmeaning—as signifying that the purpose of the principlerequiring the exhaustion of local remedies is to allownational tribunals to examine the situation created by theconduct of a State which has embarked upon the complexprocess of breach of an international obligation and,consequently, of the creation of international responsi-bility, the purpose being to intervene with an effectiveremedy before any international responsibility is estab-lished.74. The separate opinion of Judge Tanaka in the caseof the Barcelona Traction, Light and Power Company,Limited (second stage) stresses the idea that the exhaustionof local remedies rule possesses a procedural characterin that it sets forth a condition for enabling the State toespouse before an international tribunal the claim of theperson it seeks to protect. However, the fact that JudgeTanaka also mentioned the procedural aspect that theprinciple in question assumes in relation to the exerciseof diplomatic and judicial protection does not seem toindicate that he intended to exclude the existence of thesubstantive aspect which the principle assumes in relationto the question of the generation of international respon-sibility. 174

75. Opinions which were absolutely clear, and whichwere all along the same lines as the ideas upheld here,have been expressed by three other judges. In his dissent-ing opinion in the Panevezys-Saldutiskis Railway case,Hudge Hudson wrote:

It is a very important rule of international law that local remediesmust have been exhausted without redress before a State maysuccessfully espouse a claim of its national against another State.This is not a rule of procedure. It is not merely a matter of orderlyconduct. It is part of the substantive law as to international, i.e.State-to-State, responsibility. * If adequate redress for the injuryis available to the person who suffered it, if such a person hasonly to reach out to avail himself of such redress, there is no basisfor a claim * to be espoused by the State of which such a personis a national. Until the available means of local redress have beenexhausted, no international responsibility can arise. *176

Furthermore, Judge Cordoba, in his separate opinion inthe Interhandel case, expressed himself as follows:

The right of the State... to protect its national... for an allegedwrongful act of a foreign government... does not legally arise

173 I.CJ. Reports 1959, p p . 88-89.174 I.CJ. Reports 1970, p . 143. Some other passages of his

"opin ion" might , at first sight, convey the impression that suchwas his intention, but , in reality, this is very doubtful, particularlysince the question of the force of the local remedies rule h a d n obearing whatsoever on the point dealt with by Judge Tanaka inhis opinion.

175 P.C.I.J., Series A / B , N o . 76, p . 47.

State responsibility 31

until the judicial authorities of the latter decide irrevocably uponsuch wrongful act through a decision of its judicial authorities.Before the tribunals of the respondent State have handed down itsfinal decision, the State may not be considered liable internationallybecause and for the simple and good reason that the damage hasnot as yet been consummated. * This principle informs all systemsof law—civil as well as criminal, local as well as international. m

Finally, Judge Morelli, in his dissenting opinion in thecase of the Barcelona Traction, Light and Power Com-pany, Limited {preliminary objections), gave a definitionof the exhaustion of local remedies rule which, in ourview, is the most thorough and the most precise yetwritten by an international judge:

The local remedies rule, as a rule of general international law,is in my view substantive and not procedural. * It is indeed a rulewhich is supplementary * to other rules, which also themselvespossess the character of substantive rules, namely the rules concerningthe treatment of foreigners. *

Those rules require from the State to which they are directeda particular final result * in respect of the treatment of foreignnationals, leaving the State which is under the obligation free *as regards the means to be used. * Consequently, if an organ ofthe State which is under the obligation performs an act contraryto the desired result, the existence of an internationally unlawfulact and of the international responsibility of the State cannot beasserted so long as the foreign national has the possibility of securing,through the means provided by the municipal legal system, the resultrequired by the international rule. * 177

76. We are gratified to have been able to conclude ourexamination of the statements of position of governmentrepresentatives and international judges by quoting anopinion which is so clear, explicit and imbued with thetrue spirit of the principle which we are studying. Weundertook earlier,178 as a precaution, to make a carefuland thorough analysis of international case-law and Statepractice in order, as we said, to ascertain whether, bychance, they conflicted with the conclusions we had firstreached, by a process of deduction, from the nature,purpose and beneficiaries of a given category of inter-national obligations and, consequently, the conditionsin which a breach might occur. There is no longer anyreason for this precaution, since the very least that canbe said is that our analysis has produced no refutation ofthe ideas advocated by us. On the contrary, looking atthem as a whole after having sought the exact meaning ofassertions which had initially misled certain observers, thepractice and the case-law seem, despite some uncertain-ties, to lend solid support to the views dictated by thelogic of the principles.

77. Some additional considerations will enable us todismiss certain objections to the conclusions which mayhave been suggested by various premises. For instance,mention has been made of the fact that, when a Statecomplains of a breach by another State of an internationalobligation concerning the treatment to be granted toindividuals, the injury for which it requests reparation

1761.C.J. Reports 1959, pp. 45-46. This opinion is of particularinterest, since it expresses fairly clearly the idea that the impactof the principle of local remedies on the exercise of diplomaticprotection is merely a corollary of the impact which the sameprinciple has on the birth of international responsibility.

177 I.CJ. Reports 1964, p . 114.178 See para . 54 above.

is that caused by the original conduct of the State and notthat caused by the refusal of local remedies sought by theinjured individuals. This is put forward as evidence thatinternational responsibility irrevocably arises from thefirst conduct of the State and, accordingly, before theexhaustion of local remedies by the individuals concerned.In point of fact, this reasoning does not stand up. Firstof all, on more than one occasion in earlier reports of theSpecial Rapporteur and of the Commission, attentionhas been drawn to the danger of trying to draw, from the"damage" element and the criteria for determining itsexistence and its amount, conclusions regarding thedetermination of the existence of an internationallywrongful act, its constituent elements, and its effects.179

The obligation to provide reparation which devolves upona State pursuant to an internationally wrongful actconcerns—let us stress this again—reparation for thefailure of the State to fulfil its own obligations towardsanother State. The reparation which may be requestedand obtained by the State injured in its right to haveinternational obligations concerning the treatment tobe accorded to individuals respected is one thing; thereparation which one of those individuals, whose enjoy-ment of his rights has been impaired by the conduct ofState organs which have acted in a manner contraryto the result required by an international obligation, mayrequest and obtain from a national tribunal of the sameState, is another. These reparations have different basesand are at different levels. Even if the amount of thereparation requested by the State at the internationallevel conformed materially to that of the reparationrequested by the individual at the national level, even ifthe first was actually assessed on the basis of the second,the difference in nature between the two reparationswould still remain.

Aside from these considerations of principle, theobjection examined here obviously does not take intoaccount the complex situation brought about for theState by the breach of an international obligation incases where the requirement that local remedies beexhausted enters into play. When the individual injuredby conduct of a State incompatible with the resultrequired by an international obligation seeks a remedyby using and exhausting unsuccessfully the means ofredress available to him under internal law, the breachof the international obligation is not constituted solelyby the final stage in the process of its perpetration,any more than it is constituted solely by the first stage.

179 See the Third Report of the Special Rapporteur (Yearbook...7977, vol. II (Part One), p. 223, document A/CN.4/24 6 and Add. 1-3,paras. 73-75) and the Report of the International Law Commissionon the work of its twenty-fifth session (Yearbook... 1973, vol. II,pp. 183-184, document A/9010/Rev.l, chap. II, sect. B, article 3,para. 12 of the commentary), concerning the conditions for theexistence of an internationally wrongful act. See also the FourthReport of the Special Rapporteur (Yearbook... 1972, vol. II, pp. 98-99, document A/CN.4/264 and Add.l, paras. 68-70) and the Reportof the Commission on the work of its twenty-seventh session,(Yearbook... 1975, vol. II, pp. 72-73, document A/10010/Rev.l,chap. II, sect. B, subsect. 2, article 11, paras. 9-10 of the commen-tary) regarding the error in relying on the criteria used in specificcases to determine the amount of reparation due, for the purposeof drawing conclusions concerning determination of the act tobe attributed to the State as source of responsibility.

32 Yearbook of the International Law Commission, 1977, vol. II, Part One

It results from the whole series of successive acts ofState conduct, from the first which sets it in motion tothe last which completes it and renders it final, so thatthe injury suffered by the individual—which may even-tually be used as an element of appreciation to determinethe amount of reparation which the State in its capacityas diplomatic or judicial protector may demand—isthe injury caused to the individual by the aggregate ofState conduct conflicting with the internationally requiredresult. Even if the only basis is the injury caused by theoriginal conduct, it is because successive acts of conducthave added nothing to that injury and not because theprocess of performance of the internationally wrongfulact has been completed with the first stage. 18°

78. Other objections seem to us even less well-founded—for example, the objection that the moment when thebreach of an international obligation is completed andwhen, as a result, international liability is established,necessarily coincides with the moment when the disputebetween the States involved originates.181 Whateverconcept of "international dispute" one may adopt,international practice clearly shows that disputes—andwe are speaking of legal disputes only—may well arisebefore the definitive perpetration of an internationallywrongful act, or even without any such act happeningat all. To link the genesis of the dispute with that of theexistence of international responsibility already fullyestablished, and then to draw from the fact that disputesarise before exhaustion of local remedies the conclusionthat such exhaustion has nothing to do with the genesisof responsibility is, in our view, a purely arbitrary pro-cedure.

79. Again, we can attach no value to the view that theargument that the exhaustion of local remedies is asubstantive condition for the generation of internationalresponsibility is invalidated by the fact that internationaltribunals normally deal with that point when consideringpreliminary objections.182 The Special Rapporteur isfully convinced that questions of substance also can beraised as preliminary objections, and that is undoubtedlythe prevailing opinion in the International Court ofJustice itself. But even for those who, like Judges Hudson

180 Conversely, even if, and equally wrongly in our view, the lastact only is considered as consti tuting the breach of the internationalobligation and , consequently, as being the source of internationalresponsibility, there is n o reason why the repara t ion which theState may request for this breach should be established o n thebasis of the injury caused t o the individual by this last act. Thecriteria of justice a n d equity which normally govern the determina-t ion of the amoun t of repara t ion for internationally unlawful actsmay very well lead to the basis adopted for this purpose being theinjury caused by the first act. A n d this does not exclude thosecases where it is only subsequent acts tha t a re incompatible withthe requirements of an international obligation, as when the inter-nationally wrongful act at t r ibuted t o the State is exclusively adenial of justice. I n that case, an estimate has to be made of theextent t o which the determinat ion of the reparat ion due for thebreach of an international obligation is independent of the deter-minat ion of the " d a m a g e " and particularly of the economic damagedirectly caused by the breach itself.

181 See Amerasinghe, loc. cit., p p . 448-449, 463 ; and contraGaja, op. cit., p p . 22-23.

182 See again Amerasinghe, loc. cit., p p . 449-450, 462-463;Chappez , op. cit., p . 25.

and Morelli, have expressed a different view,183 theinevitable conclusion is that it is impossible for theparties to invoke, and for the Court to consider, failureto exhaust local remedies as a preliminary objection.In their view, such failure should be treated as a substan-tive objection, when considering the substance. The twojudges in question are in fact among the firmest upholdersof the idea that the exhaustion of local remedies consti-tutes a substantive condition of responsibility, and notjust a procedural condition.

80. Finally, we do not feel obliged to take into consider-ation the objection that a purely declaratory judgmentmay be pronounced even before local remedies have beenexhausted. Indeed, this is more a theoretical than apractical possibility since it has never actually happened.184

Apart from this, we are aware that there is a school ofthought which holds the much debated view that therequirement of exhaustion of local remedies applies onlywhere a claim is made for restitution of property orindemnification and not, therefore, where all that isasked for is a purely declaratory judgment.185 But it ishard to see on what grounds certain writers maintainthat, for those who hold such an opinion, the exhaustionof local remedies is excluded a priori as a condition forthe completion of a breach of an international obligation,

183 See their jo int dissenting opinions in, respectively, the judg-ment in the Panevezys-Saldutiskis Railway case (P.C.I.J., Series A/B, N o . 76, p . 47) and that in the case of the Barcelona Tract ion, Lightand Power C o m p a n y Limited (preliminary objections) (I.C.J.Reports 1964, p p . 114-115), where they criticize the majority deci-sion t o treat local remedies as a preliminary objection.

184 I n the Interhandel case, the Cour t gave n o decision on thesubsidiary request of the Swiss Government that the Cour t shouldconfine itself t o declaring that there had been a breach of an inter-nat ional obligation, in the event of its no t recognizing that , in thatpart icular case, local remedies had been exhausted (I.C.J. Pleadings,Interhandel case, p . 405). The Uni ted States had reconsidered inthe oral proceedings (ibid., p p . 501-502) what it h a d allowed onthat point in the written proceedings (ibid., p . 317). In the awardof the Arbitral Tr ibunal (and the Mixed Commission) betweenSwitzerland a n d the Federal Republ ic of Germany, rendered on3 July 1958, for the agreement on G e r m a n External debts , theTribunal observed, but only as a principle, tha t "appeal t o theprinciple of exhaust ion of local remedies as a recognized rule ofgeneral international law is admit ted in law only when a claimis made against a State, particularly a claim for restitution ofproper ty o r indemnification" (Zeitschrift fur auslandisches offent-liches Recht und Volkerrecht (Stuttgart) , vol. 19 (1958), p . 770.See also International Law Reports, 1958-1 (London) , vol. 25 (1963).

185 Writers are divided in their views as t o the possibility of adeclaratory judgment before the exhaust ion of local remedies.A t the Insti tute of Internat ional Law, P . Guggenheim (Annuairede I'Institut de droit international, 1956 (Basel), vol. 46, p p . 299-300) and J. H . W. Verzijl (ibid., p . 301) spoke in favour of such apossibility, E . Gi raud and C. de Visscher against it (ibid., pp . 300-301). The majority of members shared the view expressed in thetext (ibid., p . 302). Those in favour included Fawcett (op. cit.,p.457) , a n d against C. H . P . Law (op. cit.,p. 110) and, with reserva-tions, Amerasinghe (op. cit., pp . 450-451). All of these, however,based their views, whether for or against, on the desirability o rotherwise of the consequences of such a judgment ra ther than oninternational practice. Chappez thinks it can be affirmed that thepractice of States recognizes the possibility of such a judgment ,(op. cit., p . 94 et seq.). Haesler, on the other hand , maintainsthat there are n o significant precedents (op. cit., p . 125). Accordingto Gaja, if the possibility of a declaratory judgment is admit ted,then the possibility of a judgment on some of the condit ions ofthe wrongful act or of responsibility or of diplomatic protect ionmust also be admit ted (op. cit., p . 25, foot-note 15).

State responsibility 33

which thereby becomes a source of responsibility.186

It is entirely possible to envisage a purely declaratoryjudgment for the purpose of establishing, before anyconsideration at all of a possible infringement and theresulting responsibility, the existence of an internationalobligation on the State and the scope and content ofthat obligation. It is also possible to envisage a judgmentof that kind being pronounced for the purpose of recog-nizing that an initial course of conduct by the Statetowards an individual is in contradiction with the resultrequired by the obligation.

81. Our brief but adequate survey of the assertionsregarding an alleged incompatibility of our views withthe alleged conclusions which some would like to drawfrom certain premises has not induced us to modify ourviews in the slightest, any more than has our detailedanalysis of the positions adopted by Governments andjudges of international tribunals. We can therefore confirmour initial reasoning as our conclusion on the questionexamined so far. Among the multifarious internationalobligations which require a State not to adopt a specificcourse of conduct but to achieve a particular result,there is one special category that has to be distinguished:those designed specifically to ensure that, within thejurisdiction of the State, a given treatment is accordedto natural or legal persons and their property. The veryfact of this qualification means that, as indicated above,187

a supplementary condition must logically be added tothe others normally required in order to be able to estab-lish the breach of an obligation requiring the State toachieve a particular result. The point to be borne inmind here is the fact that the aim and purpose of inter-national obligations of this particular category are toensure that the State guarantees a specific situation toindividuals, subjects of its internal law. There cannottherefore be a complete and final breach of an internatio-nal obligation of this category so long as the personsintended as the beneficiaries of the required result havenot done everything in their power to bring about thatresult. In particular, there cannot be a breach of theobligation so long as those persons have not employed,for that purpose, the remedies available to them underinternal law to rectify a situation incompatible with therequired result and obtain redress, and so long as theyhave not exhausted those remedies without achievingtheir aim. Only then can it be said that the State hasfinally failed to achieve the internationally requiredresults, that it has committed a complete breach of itsinternational obligation, and that it thus incurs inter-national responsibility.

82. In the light of these conclusions, it seems almostsuperfluous to consider whether or not the requirementof the exhaustion of local remedies is primarily a generalprinciple of unwritten law, even though it is expressly

186 According to Amerasinghe, "it is only when the rule of localremedies is conceived as having a procedural nature that such ajudgment will be available before local remedies have been exhaus-ted" (loc. cit., p . 451). Similarly, Chappez, "The ability, widelyrecognized in practice, of a court to render a declaratory judgmentwithout local remedies having been exhausted beforehand invali-dates the approach which treats such exhaustion as a substantiverule" (pp. cit., p . 17).

187 See para . 48 above.

provided for in innumerable conventions. As we havealready emphasized, this is in fact one of those principleswhich command recognition as the logical consequenceof the nature and specific object and purpose of the obli-gations concerned. While it is true that many conventionsenunciate, refer to and confirm the principle, stipulate itsscope and effect, extend or restrict its limits and, in somecases, wholly preclude its application to the obligationslaid down in those intruments, they do so precisely on thebasis that the requirement of the exhaustion of localremedies is a pre-existing principle of general application,albeit open to derogation, a principle which, to repeat,has its roots in custom or, still more, in the very logic ofthe mode of performance of a particular type of inter-national obligation and which is, therefore, certainly notof purely conventional origin.83. Some recent writers have demonstrated the validityof this assertion in highly conscientious and exhaustivestudies.188 It will suffice to recall briefly the main elementsof their demonstration.84. There would appear to be no doubt that, in generalinternational law, the establishment of the principle of theexhaustion of local remedies is closely related to thedevelopment of international obligations regarding thetreatment accorded by a State to foreign natural or legalpersons and the prevention of injury to such personsand their property. A perusal of the decisions handeddown by the Permanent Court of International Justiceshows that, in its judgment in the Mavrommatis PalestineConcessions case (1924), the Court defined the require-ment that aliens injured by acts of the State which arecontrary to international law should seek to "obtainsatisfaction through the ordinary channels" as "anelementary principle of international law",189 while, inits judgment in the Panevezys-Saldutiskis Railway case(1939), it noted that the two parties recognized theexistence of "the rule of international law requiring theexhaustion of the remedies afforded by municipal law *." 190

In its judgment in the Interhandel case (1959), the Inter-national Court of Justice took a very explicit position onthe matter when it affirmed that:

... The rule that local remedies must be exhausted... is a well-established rule of customary international law *.191

International arbitration case-law clearly follows thisapproach. In his award in the British Property in SpanishMorocco case, rendered in 1925, the Arbitrator,Max Huber, held the requirement of the exhaustion oflocal remedies to be "a recognized principle of inter-national law".192 In its decision of 1930 in the MexicanUnion Railway case—already cited193 for its definitionof the principle as indicating that "the responsibility ofthe State under international law can only commence *"after recourse to local remedies—the Great Britain/Mexico Claims Commission stated that the principle inquestion was "one of the recognized rules of international

188 See, in part icular , Gaja , op. cit., p . 37 et seq.189 P.C.U., Series A., No. 2, p. 12.190 P.C.I.J., Series A . /B . , N o . 76, p . 18.191 I.C.J. Reports 1959, p . 27.192 Uni ted Na t ions , Reports of International Arbitral Awards,

vol. II (United Nations publication, Sales No. 1949.V.I), p. 731.198 See para. 63 above.

34 Yearbook of the International Law Commission, 1977, vol. II, Part One

law *."194 In its award of 1956 in the Ambatielos case,the Greece/United Kingdom Commission of Arbitrationdescribed the requirement of the full utilization of localremedies as a rule "well established in internationallaw *."195 In its decision of 1958, the Tribunal set upby Switzerland and the Federal Republic of Germanyfor the Agreement on German External Debts affirmedthat :

There can be no doubt that the rule of exhaustion of local reme-dies ... is also a generally accepted rule of international law *.1 9 6

International case law thus reveals a unanimous recog-nition of the existence of the principle of the exhaustionof local remedies in general international law, indepen-dently of any special provisions embodied in treatyinstruments. At the same time, it is a fact that all thespecific cases considered by international courts whichhave given rise to expressions of recognition of the prin-ciple are cases involving the breach or alleged breach ofinternational obligations concerning the treatment accord-ed by a State in its territory to aliens or their property.

85. There are just as many statements of position inthe matter to be found in State practice, all of thesevirtually unanimous in recognizing the general characterof the principle of the exhaustion of local remedies. Itis clear from an examination of the opinions expressedby representatives of Governments in the course ofcodification work concerning the responsibility of Statesfor damage caused in their territory to the person orproperty of foreigners. It also emerges from the attitudetaken by Governments in disputes involving the breachof an international obligation relating to the treatmentof nationals of another State.

86. During the 1930 attempt at codification no Govern-ment expressed the slightest doubt that the rule whichit was sought to codify was first and foremost a rule ofgeneral international law. The scope of the rule had beendetermined in advance by the limits of the subject-matter of the Codification Conference. The replies ofGovernments to the request for information addressedto them by the Preparatory Committee,197 the statementsby delegations in the Third Committee of the Conferenceand the proposals made during its deliberations,198 andthe text of article 4 adopted on first reading at the closeof the discussions,199 were all based on a fundamentalconviction of the existence of the principle of the exhaus-tion of local remedies as a rule of general internationallaw. The limitations placed on the principle in the text

194 Ibid., vol. V, p . 122.195 Ibid., vol. X I I , p p . 118-119.196 International Law Reports, 1958-1 (London , But terworth ,

1963), vol. 25, p . 42.197 F o r the text of point X I I of the request for information, see

paragraph 55 above . F o r the replies of Governments , see Leagueof Nat ions , Bases for Discussion..., (op. cit.), p p . 136 et seq., andSupplement to volume III (C.75(a).M.69(a).1929.V), p p . 4 and 23.Basis for Discussion N o . 27, drafted by the Commit tee on thebasis of those replies, is also reproduced above (para. 55).

198 F o r the statements made during the debates, see League ofNat ions , Acts of the Conference... (op. cit.), p p . 63 et seq., 162 etseq.\ for proposals a n d amendments , see ibid., p p . 209 et seq.,217, 220, 227 et seq., and 251.

199 See para . 56 above .

adopted, 20° as well as those proposed by certain repre-sentatives, were grounded in the same conviction.

87. With regard to the positions taken by Governmentsin the many cases in which the problem of the non-exhaustion of local remedies arose in a particular dispute,the most interesting feature is the convergence of views,not only of respondent Governments but also of claimantGovernments, concerning recognition of the principlein question as a general rule of international law. Theinevitable divergences related only to the problem of theapplicability of the principle in the particular circum-stances of the specific case. In any event, it was nevermaintained that the requirement of the prior exhaustionof local remedies could be invoked only if specificallyprovided for in a convention. To mention only the mostexplicit statements before the Permanent Court of Inter-national Justice or the International Court of Justice,in the case concerning the Administration of Prince vonPless, the Polish Government expressed the view, whichwas never challenged by the German Government,that the requirement of the exhaustion of local remedieswas "a generally accepted principle of international rela-tions *;" 201 in the Losinger case, the Yugoslav Govern-ment referred to a "universally admitted rule *" and theSwiss Government stated that it was not unaware ofthat "rule of international law*;" 202 in the Phosphates inMorocco case, the French Government affirmed that itwas "a well-established rule of international law *" andthe Italian Government stated that it "did not intend tochallenge the existence of that rule*;" 203 in the Panevezys-Saldutiskis case, the Lithuanian Government maintained,without opposition from the Estonian Government, that"the rule of the exhaustion of local remedies is firmlyestablished in the positive international law of ourtime";204 in the Anglo-Iranian Oil Company case, theIranian Government referred to the "prior exhaustionof local remedies" as a condition to be met "in accordancewith general international law * and the British Govern-ment recognized that it was "in general a condition *; 205

in the Interhandel case, the United States invoked the"well-established principle of international law requiringthe exhaustion of local remedies * and the Swiss Govern-ment replied that it in no way contested that asser-tion; 206 finally, in the Aerial Incident of 27 July 1955 case,the Bulgarian Government emphasized the "incontest-able" nature of the "rule of the prior exhaustion of localremedies", without being challenged on that point bythe Governments of the United States and Israel. 207

Similar positions were implicit in many other cases. 208

200 The limitations on the application of the principle providedfor in article 4 , pa ragraph 2, concerned self-evident cases in whichthe judicial authorit ies h a d definitively refused to administer justiceor h a d rendered final judgments .

201 P.C.I.J., Series C , N o . 70, p p . 134 a n d 182.202 Ibid., N o . 78, p p . 129 and 156.203 Ibid., N o . 84, p p . 209 and 440.204 Ibid., N o . 86, p . 143.205 I.C.J. Pleadings, Anglo-Iranian Oil Company, p p . 291 and 155.206 Ibid., Interhandel, p p . 315 a n d 402.207 Ibid., Aerial Incident of 27 July 1955, p p . 276-277, 326, 454.208 I n only one case did a Government express any doubts

concerning the existence of the principle as a general rule—Belgium

State responsibility 35

88. The positions taken by Governments parties todisputes referred to other international tribunals areequally conclusive. For example, it is clear from thearbitral award in the Central Rhodope Forests case, thatthe Bulgarian Government based its argument on "thewell-known principle of international law of exhaustionof local legal remedies *" and that the Greek Govern-ment challenged only the applicability of that principleto the case in point; 209 the decision in the Anglo-IranianOil Co. case, between Iran and Great Britain, shows thatthe British Government recognized that the requirementthat all local remedies be exhausted, which the IranianGovernment had invoked, was, indeed, "an establishedprinciple *." 21° There was one occasion when the existenceof the rule as part of general international law waschallenged, and that was the initial challenge by theFinnish Government in the Finnish Ships case, which,as stated above, 211 was referred to the Council of theLeague of Nations in 1931. When the British Governmentreiterated that the rule was an undisputed principle ofinternational law, however, the Finnish Governmentaccepted that view and agreed to refer to arbitration thequestion whether, in the case in point, local remedies hadbeen exhausted.

89. We would also point out, ad abundantiam, thatsignificant positions have been taken by Governments onother occasions. Particularly interesting is the positiontaken by the Swiss Government during the 1957 debatein the Federal Assembly on approval of the Conventionof 18 March 1965 on the Settlement of InvestmentDisputes between States and Nationals of other States.Commenting on article 26 of the Convention, the FederalCouncil referred to exhaustion of local remedies as "ageneral principle of international law *." 212 Moreover,the practice of certain Governments, particularly theUnited States and Canadian Governments, of consideringthemselves as precluded from endorsing claims by theirnationals until the latter have exhausted local remedies,attests to their firm belief in the existence of the principle asone of general application. 213 Lastly, even some bilateral

in the Borchgrave case (P.C.I.J., Series C, No. 83, p. 65). However,the Belgian Government later adopted a clearly positive attitude inthe case concerning the Electricity Company of Sofia and Bulgaria(ibid., No. 88, p . 37) and in the case concerning the BarcelonaTraction, Light and Power Company Limited (I.C.J. Pleadings,Barcelona Traction, Light and Power Company, Limited (New Appli-cation: 1962), vol. 1, pp. 215 et seq.

209 United Nations, Reports of International Arbitral Awards,vol. I l l (op. cit.), p . 1419 (translated by the Secretariat).

210 I.C.J. Pleadings, p . 122.211 See para. 65 above.212 See the message of the Federa l Council of 15 December 1967

in t he Annuaire suisse de droit international, 1968 (Zurich, 1970),vol. 25, p. 271. It is clear from the statements made by the FederalCouncil in 1968 concerning article 26 of the European Conventionon Human Rights (Annuaire suisse de droit international, 1969-1970 (Zurich, 1971), vol. 26, p . 172) and in 1970 concerning theTreaty of Conciliation, Judicial Settlement and Arbitration, conclu-ded between Switzerland and Chile on 14 January 1970 (Annuairesuisse de droit international, 1971 (Zurich 1977), vol. 27, p . 198)that Switzerland recognizes exhaustion of local remedies as acustomary rule.

213 F o r a n example of Un i t ed States pract ice, see M . Whi teman ,(op. cit.), p p . 769 et seq., 906 et seq., and , for an example of C a n a -dian pract ice , see Canadian Yearbook of International Law, 1968(Vancouver) , vol. VI , p p . 263 et seq.

and multilateral treaties refer to the exhaustion of localremedies as a general principle of international law.Article 26 of the 1950 Convention for the Protection ofHuman Rights and Fundamental Freedoms214 forexample, refers to the exhaustion of all local remedies,"according to the generally recognized principles ofinternational law". 216

90. In view of the unanimity of opinion reflected ininternational case-law and State practice, it hardly seemsnecessary to add that the character of the principle withwhich we are concerned as a principle of general inter-national law is also recognized by virtually all the learnedwriters who have considered the question. We see noneed to quote further from the numerous writers whohave studied this subject since all, with very rare excep-tions, recognize that, under general international law,exhaustion of local remedies is a condition for the gen-eration of international responsibility or at least for itsimplementation.216

91. Lastly, it is as a principle applicable under generalinternational law that this condition was taken intoconsideration in the resolution adopted in 1956 by theInstitute of International Law. 217 And it was on thesame understanding that the principle stating this con-dition was included in the codification drafts on theinternational responsibility of States for injury caused ontheir territory to the person or property of aliens, adopted

214 For reference, see foot-note 36 above.216 Article 5 of the General Claims Convention between the

United States and Mexico of 8 September 1923 speaks of the"general principle of international law that legal remedies mustbe exhausted". (British and Foreign State Papers (London, H .M.Stationery Office, 1926), vol. CXVIII, p . 1105.)

216 C. G. Tenekides did express doubts in an article publishedin 1933 ("Exhaustion of local remedies as a precondition for inter-national proceedings", Revue de droit international et de legislationcomparee (Brussels), 3rd series, vol. XIV, N o . 3 (1933), pp. 514et seq.) but later changed his opinion (" 'Patently unjust' nationaljudgments as sources of international responsibility of States",Revue generate de droit international public (Paris), 3rd series,vol. XIII, No. 4 (July-August 1939), p . 376). W. Friedman, inhis article "Exhaustion of local remedies" (Revue de droit inter-national (op. cit), pp. 318 et seq.), denied the existence of the prin-ciple of exhaustion of local remedies in general international lawbut this article appears to be out of date now. J. H. W. Verzijl,in his report to the Institute of International Law ("The rule ofthe exhaustion of local remedies ..." (he. cit.), pp. 5 et seq. and,in particular, 22 and 23) accepted that the rule was a principle ofgeneral international law but considerably restricted its scope.In his opinion, it would be justified only in the event of a denialof justice in the true sense. In other cases, the possibility open tothe State of avoiding international responsibility by referring aforeigner who has suffered injury to its national courts can beexplained only "on the grounds of expediency". A young Italianinternational jurist, G. Strozzi, has very recently published anextensive study, already referred to in foot-note 121 above, on thisquestion: he considers that, except in a very few cases, the prin-ciple of exhaustion of local remedies originates in treaties. Consis-tent with this line of thought, the only value which he sees in theprinciple, about which he expresses very restrictive ideas in general,is as a condition for the institution of proceedings before aninternational tribunal. This author's position is, however, uniqueamong Italian legal writers who are among those who have devotedmost attention to our subject.

217 See Annuaire de I'Institut de droit international, 1956 (Basel),vol. 46, p . 358; and Yearbook.. 1969, vol. II, p . 142, documentA/CN.4/217 and Add. l , annex. IV.

36 Yearbook of the International Law Commission, 1977, vol. II, Part One

under the auspices of international organizationsm

or by private scientific associations. 219 The same prin-ciple is also included in drafts on the international respon-sibility of States for wrongful acts generally. 22°92. It therefore seems to be clearly established thatgeneral international law has traditionally affirmed theprinciple known as exhaustion of local remedies in rela-tion to respect for international obligations which requirethe State to ensure that foreign natural and legal personsare accorded certain treatment. In the first part of thissection, we stated that, in our view, the principle consistsof a main proposition and a corollary. The propositionis that the breach of an international obligation, and theinternational responsibility arising from that breach,cannot be established so long as the individuals whocomplain of a situation due to the action or omission ofa State organ and running counter to the result requiredby an international obligation have not endeavoured toredress that situation by resort to the other local remediescapable of still achieving the internationally requiredresult. The corollary is that the State of which the saidindividuals are nationals is not authorized, so long asthe condition referred to has not been met, to espousetheir cause, that is to say, to take steps for their diplo-matic or legal protection; in particular, it is not authorizedto institute proceedings before an international tribunal.

218 In addition to articles 4 and 9 adopted on first reading in1930 by the Third Committee of the Hague Codification Conference(Yearbook... 1956, vol. I I , pp . 225-226, document A/CN.4/96,annex 3), see article 15 of the draft prepared in 1958 by F . V.Garcia Amador (Yearbook... 1958, vol. II, p. 72, document A/CN.4/111, annex) and article 18 of the revised draft prepared in 1961(Yearbook... 1961, vol. II, p. 48, document A/CN.4/134 and Add.l,addendum); paragraph 3 of the resolution adopted in 1933 at theSeventh International Conference of American States (Yearbook...1956, vol. II, p. 226, document A/CN.96, annex 6); number VIIIof the principles adopted in 1962 by the Inter-American JuridicalCommittee referring to the opinion of Latin American countries(Yearbook... 1969, vol. II, p. 153, document A/CN.4/217 andAdd.l, annex XIV); and number IX of the principles adopted in1965 by the same Committee, referring to the opinion of the UnitedStates (ibid., p. 154, annex XV).

219 See article X I I of the resolut ion p repared in 1927 by theInst i tute of In terna t iona l L a w (Yearbook... 1956, vol . I I , p . 228,document A/CN.4/96, annex 8); articles 6 and 7 of the draft pre-pared in 1929 by Harvard Law School (ibid., p. 229, annex 9);article 13 of the draft prepared in 1930 by the Deutsche Gesellschaftfur Volkerrecht (Yearbook... 1969, vol. II, p. 150, document A/CN.4/217 and Add.l, annex VIII); article 1, paragraph 2, and article 19of the draft prepared in 1961 by the Harvard Law School (ibid.,pp. 143 and 146, document A/CN.4/217 and Add.l, annex VII;and paragraphs 206-210 of the Restatement adopted in 1965 bythe American Law Institute (Yearbook... 1971, vol. II (Part One),pp. 197-198, document A/CN.4/217/Add.2). See also articles IIIand IV of the draft on diplomatic protection prepared in 1925by the American Institute of International Law (Yearbook... 1956,vol. II, p. 227, document A/CN.4/96, annex 7).

220 This applies to the bases for discussion on the internationalresponsibility of States, prepared in 1956 by F. V. Garcia Amador(Basis No. V, para. 2) (Yearbook... 1956, vol. II, p. 220, documentA/CN.4/96, para. 241) and the draft convention on the responsibil-ity of States for international wrongful acts, prepared by ProfessorRoth in 1932 (article 9) (Yearbook... 1969, vol. II, p. 152, documentA/CN.4/217 and Add.l, annex X). The drafts prepared by K.Strupp (ibid., p. 151, annex IX) and by B. Graefrath and P. A.Steiniger ("Kodifikation der volkerrechtlichen Verantwortlich-keit", Neue Justiz (Berlin, 1973), No. 8, p. 227), which also dealwith the international responsibility of States in general, do notmention the rule, but this certainly does not mean that their authorsexclude the rule from general international law.

93. The question may be asked, however, whether ourfinding that the requirement of exhaustion of local reme-dies has been affirmed in customary international lawconcurrently with the development of the rules concerningthe status of aliens may not have led us to conclusionswhich sin both by over- and by understatement, particu-larly if it is applied exactly as it stands to existing inter-national law. It may, for instance, be asked whethergeneral international law itself does not nowadays provideat least for exceptions to the applicability of the principlein the determination of a breach of international obliga-tions concerning the treatment of foreign natural andlegal persons. Again, it may be asked whether the con-dition of exhaustion of local remedies by the individualsconcerned should not likewise obtain in the determinationof a breach of international obligations concerningpersons other than those for whom the principle hastraditionally been affirmed, and particularly for nationalnatural and legal persons. Obviously, we ask thesequestions only in relation to general international law,for we are well aware that States sometimes avail them-selves of the possibility of restricting or extending thescope of the principle by means of bilateral or evenmultilateral treaties.94. Let us begin by considering the first aspect. Twodifferent cases invariably prompt the question whetherexhaustion of local remedies by the individuals concerneddoes or does not constitute a condition precedent for aState to find that there has been a complete breach byanother State of an international obligation concerningthe treatment to be accorded to its nationals, and so forthe first State to be able to invoke the internationalresponsibility incurred by the other State. The first caseis where an initial course of conduct by organs of theState in whose territory the act took place (referred tohere as the 'territorial State') has created a situationincompatible with the result required by an internationalobligation and injurious to certain persons as nationalsof a particular foreign country. The second case is wherethe injury caused to the rights of foreign individuals hasbeen done outside the territory of the State or to thedetriment of persons either not resident in the territorialState or not having some voluntary link with the terri-torial State.95. Admittedly, where there is a situation broughtabout by the conduct of a State organ which is injuriousto a person through his possession of the nationalityof a State which is the object of some special discrimi-natory intention, the State of which that person possessesthe nationality sometimes reacts by invoking the respon-sibility of the territorial State, without waiting till thevictim has had recourse to the local tribunals. 221 Perti-nent to this subject is a sentence from Denmark's reply

221 G. Gaja (op. cit., p. 79), cites, as recent examples, the commu-nique of 31 July 1964 issued by the French Ministry of ForeignAffairs regarding the demonstrations in Saigon against Frenchsubjects (for text, see Ch. Rousseau, "Chronique des faits inter-nationaux", Revue generate de droit international public (Paris),3rd series, vol. XXXV, No. 4 (October-December 1964), p. 943),and the note by the Netherlands Government of 18 December 1959concerning discriminatory nationalization measures adopted byIndonesia (American Journal of International Law (Washington,D.C.), vol. 54, No. 2 April 1960), pp. 487 et seq.

State responsibility 37

to the request for information by the Preparatory Com-mittee for the 1930 Codification Conference. In acceptingthe proposal that the right to invoke State responsibilityunder international law should be subject to the exhaus-tion, by those concerned, of the remedies available tothem under the internal law of the State whose responsi-bility is alleged, the Danish Government adds:

It is understood, however, that the national authorities mustnot allow the matter to drag on unconscionably and there mustbe no obvious neglect of the foreigner's right because he is a foreigneror a national of some foreign State.222

But it would be reading too much into this observationto ascribe to it an intention clearly to affirm the existencein general international law of an exception to the generalcondition of exhaustion of local remedies. Like theattitude of some States in certain cases, it simply fits inwith a normal and reasonable application of the prin-ciple. In other words, it may be that, in certain specificcases where the injury due to the action or omission of aState organ occurred within the context of a generalfeeling of hostility towards the nationals of some otherforeign country, the State of which the injured personswere nationals did not wait, before intervening, untilthose persons had had recourse to the local remedies.The reason for that, however, is much simpler than anyintention to claim an alleged exception to the principle.It is that, in the specific cases in quescion, the State ofnationality of the injured persons realized that the situa-tion in which its nationals were placed was beyond remedyat the level of internal law. It was convinced that it wasimpossible, in the circumstances, to secure the correc-tion, by effective local remedies, of a situation createdby the initial attitude of the territorial State. 223 In thelight of these considerations, it is the Special Rappor-teur's firm belief that there is no reason to make expressprovision, in order to meet this particular case, for anexception to the normal application of the principle ofexhaustion of local remedies, since this principle appliesonly, as we shall have occasion to show once more, to"effective" remedies.

96. With regard to the second case mentioned in para-graph 94 it must be said at the outset, and no one wouldthink of denying, that the principle of exhaustion oflocal remedies has often been defined with reference toa situation injurious to foreigners which has arisen in aState's territory. Should that be taken to imply that theprinciple requiring such exhaustion would not applyin the case of injury caused by a State to foreigners outsideits territory? Certainly not! Cases of injury caused bya State to foreigners in its own territory are, of course,

222 League of Nations, Bases for Discussion... (op. cit.), p. 136.The Rapporteur of the Sub-Commission, Ch. de Visscher, pointedout that affirmation of the principle does not prevent the Statefrom claiming reparation, before the local remedies are exhausted,for prejudice suffered by the State which was distinct from butconsequential upon the damage caused to persons because theywere of a particular nationality.

223 I t was difficult in these cases for the respondent State itselfseriously t o challenge the ineffectiveness of the available remedies.See again Gaja (op. cit.) on the possibility of explaining the veryfew cases tha t have occurred in practice in ano the r way than byrecognizing the alleged exception.

by far the most common, which explains the formulationof the definitions in question, but there is no justificationfor reading into those definitions any intention to excludethe principle's applicability to other cases. Neither Statepractice nor international jurisprudence offer the slightestexplicit support for such a view, while analysis of allegedimplicit affirmations of the inapplicability of the require-ment of exhaustion of local remedies in such cases asdamage caused to the property of foreigners on the highseas has proved most inconclusive. 224 In legal literature,some authors have rejected the notion that the exhaustionof local remedies principle is applicable in cases ofinjury caused by State organs to foreigners or theirproperty outside the territory of that State. However,they cannot be said to have provided convincing supportfor their argument. 225 It should be added that codificationdrafts whose scope was not limited in advance to inter-national responsibility for injury caused by the Statein its own territory to foreigners or their property havenot excluded the application of the principle to cases ofinjury caused to foreigners outside the territory of theState.97. It must be said that, generally speaking, there is noreal justification for such limitation. Those writers whohave upheld it obviously have not considered the reasonfor and the true significance of the principle of requiringexhaustion of local remedies in cases where such require-ment is justified. Why, indeed, should the act of an organof the State constitute a completed breach of an inter-national obligation relating to the treatment of aliens

224 In cases of the seizure of ships, especially private fishingvessels, on the high seas, the flag State has sometimes demandedimmediate release of the vessel or compensation. That is whathappened in the S.S. Vm Alone case between Canada and the UnitedStates tried by a court of arbitration in 1933 (United Nations,Reports of International Arbitral Awards, vol. Ill (op. cit.), pp. 1609et seq.). In other cases, however, the flag State has refrained fromintervening immediately (see the cases cited by Law, op. cit., pp. 103et seq., and by Gaja, op. cit., pp. 90 et seq.). Practice in regardto fishing catches seems to support the idea of the applicability ofthe principle of the exhaustion of local remedies (see Reuter,loc. cit., pp. 161 et seq., and Gaja, op. cit., p. 91, note 17). Incases of aircraft shot down over the high seas, compensationhas often been claimed and obtained without prior exhaustion oflocal remedies but by amicable settlement. Moreover, the privatecharacter of the aircraft shot down was often open to question.Instances of injury to aliens in the territory of another State aresometimes illustrated by reference to the case of the ConsolidatedMining and Smelting Company at Trail, British Columbia ("TrailSmelter case") (United States v. Canada; for the arbitration court'saward, see United Nations, Reports of International ArbitralAwards, vol. Ill (pp. cit.), pp. 1907 et seq.), in which the fumesfrom a foundry situated in Canada had caused damage in UnitedStates territory. However, the international obligation claimed tobe breached was that of respect for the territory of another Staterather than that of the treatment of individual aliens. Lastly, itshould be remembered that, in many cases, non-application of theprinciple of the exhaustion of local remedies was due only to theabsence of remedies really available to those concerned.

226 See for example C. Parry, "Some considerations upon theprotection of individuals in international law", Recueil des Cours...1956-11. (Leyden, Sijthoff, 1957), vol. 90, p. 688; T. Meron.,"The incidence of the rule of exhaustion of local remedies". TheBritish Year Book of International Law, 1959 (London), vol. 35,p. 98; Law, op. cit., p. 104; I. L. Head, "A fresh look at the localremedies rule", Canadian Yearbook of International Law, 1967(Vancouver), vol. V, p. 153; and C. F. Amerasinghe, State Respon-sibility for Injuries to Aliens (Oxford, Clarendon Press, 1967),pp. 185 et seq.

38 Yearbook of the International Law Commission, 1977, vol. II, Part One

when the act affects property outside the State's territory,but not when it affects property within its territory?Why should international responsibility and the facultyof invoking it arise from such an act immediately in thefirst case, but only after a subsequent act in the secondcase? In fact, the only valid criterion for determining,in the case of injury caused by a State to the person orproperty of foreign individuals, whether the principle ofexhaustion of local remedies should or should not applyis the existence or absence of adequate and effectiveremedies available to those individuals. Admittedly, itis sometimes more difficult for injured foreigners to availthemselves of such remedies in case of damage to theirproperty outside the territory of the State which hascommitted the injurious acts. 226 However, where suitableeffective remedies exist and those remedies are availableto the individuals concerned, we can see no reason whythe State should be denied the opportunity of dischargingits obligation by taking, when appealed to by thoseindividuals, the necessary steps to rectify the situationcreated by the initial conduct of its organs. It seems to usinconceivable that it should be denied that possibilitysolely because the situation to be rectified arose outsiderather than within the State frontiers. Moreover, even ifthe principle of the exhaustion of local remedies isregarded as a purely "procedural" rule—which wedispute—it is difficult to see why the location of an indi-vidual's property at the time when the damage is sustainedshould be decisive in determining whether or not theindividual's home State must wait until he has exhaustedlocal remedies before being permitted to intervene itselfon the ground of offering diplomatic protection.227

98. The above arguments apply equally to the claimthat an exception to the principle of exhaustion of localremedies should be made in the case of injury to foreignersnot resident in the territory of the State causing theinjury. This is just another attempt to introduce a terri-torial element which has nothing to do with the ratioof the principle of exhaustion of local remedies. Thetheory that the principle is not applicable to cases ofinjury to non-resident foreigners was upheld in practiceby the French Government in the Norwegian Loans casein order to release French nationals who were holdersof Norwegian bonds but resident in France from theobligation to resort to the remedies provided by Nor-wegian law. The French Government's reply of 20 Feb-ruary 1957 states:

Although the rule under consideration is sometimes formulatedin terms of the "prior exhaustion of domestic remedies", it also,and perhaps more often, appears with such terms as "exhaustionof local remedies" and "local redress", suggesting a nuance affect-ing the very substance of this rule and its justification.

226 But in some of the decisions in specific cases, apparent lybased on the no t ion of the inapplicability of the principle of exhaus-t ion of local remedies t o cases of injury caused outs ide the terr i toryof the State , the decisive factor seems in fact t o have been thedegree of effectiveness of the local remedies actually available.

227 W o u l d there be any justification, for example, for requir ingthe owner of a pr ivate ship w h o has suffered injury by the act oforgans of a State to exhaust the local remedies of that State if theact which caused the injury to his ship was committed within terri-torial waters, but not if it was committed in international waters?

... the only explanation of this rule lies in the requirement thata foreigner in dispute with the State under whose sovereignty hehas chosen to live * may not have his case submitted to an inter-national tribunal without having first exhausted all local meansof settlement.228

The Norwegian Government strongly contested thatview and maintained that there was no precedent to befound in the practice for the limitation attributed to therule by the French Government. 229 The Court was notcalled on to give any ruling on the point, but JudgeRead strongly criticized the French Government'sposition in his dissenting opinion, remarking that:

France has not been able to put forward any persuasive authorityfor accepting this limitation on the application of the rule and,indeed, the weight of authority is the other way.230

It is not true, at present at least, that the exhaustion oflocal remedies requirement has been applied only tocases of injury caused to foreigners resident in the terri-tory of the State causing the injury. To mention onlytwo well-known cases, in the Finnish Ships case and theAmbatielos case the individuals injured were not residentin the territory of the State causing the alleged injury.Nevertheless, neither of the claimants—the FinnishGovernment in the first case and the Greek Govern-ment in the second—invoked that circumstance to estab-lish inapplicability of the principle.99. It may be added that article 4 of the draft adoptedon first reading by the Third Committee of the 1930Hague Conference231 made no distinction betweenresident and non-resident foreigners. The same appliesto all the other codification drafts adopted under theauspices of international organizations and drafts ofprivate origin. And finally most writers reject the ideaof a distinction on that basis. 232 There is no need tosay more about this limitation, which in our opinion isnot justified by the logic of the principle and, in practice,would have unacceptable effects. It would exclude fromthe sphere of application of the principle many cases ofnationalization of foreigners' property or prejudice toforeigners' investments, on the sole ground that theforeigners were not resident in the country. The desireto avoid imposing too heavy a burden on an individualwho considers that he has suffered injury, by requiringhim to exhaust the local remedies in a country other thanthe one in which he resides cannot warrant such aconclusion.

228 I.C.J. Pleadings, Certain Norwegian Loans, vo l . I , p . 408 .(Translation from French.)

229 Ibid., p p . 452 et seq.280 I.CJ. Reports 1975, p . 97 .231 League of Na t ions , Acts of the Conference... {op. cit.), p . 236.

Text reproduced in Yearbook... 1956, vol. I I , p . 225, documentA/CN.4/96 , annex 3.

232 Wi th the exception of D . R. M u m m e r y ("The content of theduty t o exhaust local judicial remedies", American Journal ofInternational Law (Washington D.C. ) , vol. 58, N o . 2 (April 1964),p p . 390 et seq.), who considers the principle t o be applicable in thecase of resident aliens and in tha t of non-resident aliens whoseproperty is in the territory of the accused State. According toD. P. O'Connell {International Law, 2nd ed. (London, Stevens,1970), vol. II, pp. 950 et seq.), the principle would not apply if theforeigner was outside the jurisdiction of the State. Definitelyagainst any limitation of this kind are A. D. McNair {InternationalLaw Opinions (Cambridge, University Press, 1956), vol. II, p. 219)and Gaja (op. cit., pp. 87 et seq.).

State responsibility 39

100. The idea of an exception which would exempt fromapplication of the requirement of exhaustion of localremedies only foreigners not connected by any voluntarylink to the State whose remedies are to be used is verysimilar in spirit to the idea of an exception for non-resident aliens, but is more restrictive in scope. Thisidea was developed before the International Court ofJustice by the Government of Israel in connexion withdamage caused to Israeli nationals by the Bulgariananti-aircraft defence in shooting down an Israeli civilaircraft which had entered Bulgarian air space by mis-take. 233 The Bulgarian Government disputed the exist-ence of this limitation;234 the United States, some ofwhose nationals had also been injured by the action ofthe Bulgarian authorities, claimed that the principle wasnot applicable in that specific case, but did not take theexception put forward by the Government of Israel. 235

The Court did not have occasion to rule on this question,but the idea of introducing this exception subsequentlyfound a few supporters in legal literature.236 At thepresent stage, however, it does not seem that an exceptionthus conceived, even of a very limited nature, has yetfound support in international practice, and we wouldhesitate to propose its adoption, even from the pointof view of the progressive development of internationallaw. Even if this line were to be taken, it would seem tous more consistent with the reason for the existence ofthe principle of exhaustion of local remedies, and withthe logic of that principle, to provide, in a form to beworked out, that the collaboration of individuals shouldnot always be required in order to set in motion machineryenabling the State to redress, by a new course of conduct,a situation which is contrary to the result internationallyrequired of it and which has been brought about by itsoriginal conduct. Such a provision would apply, forexample, in the case of injury caused to a foreignerbrought into the territory of a State, or conveyed intransit by air or over land, against his will. It might befound in fact that the burdens that would otherwisedevolve upon such an individual would be too heavy tobe justified. However, even without expressly providingfor an exception which might compromise the soundness

233 In his oral argument , the agent of the Government of Israelstated the following:

"There are a number of impor tant limitations t o the appli-cation in practice of this rule. In my submission ... it is essential,before the rule can be applied, tha t a link should exist betweenthe injured individual and the State whose actions are impugned.I submit tha t all the precedents show that the rule is only appliedwhen the alien ... has created ... a voluntary, conscious and deli-berate connection between himself and the foreign State whoseactions are impugned. The precedents relate always t o casesin which a link of this character has been brought about , forinstance, by reason of residence in that State, t rade activitiesthere , the ownership of proper ty t h e r e . . . or by virtue of his havingmade some contract with the government of that State, suchas the cases involving foreign bondholders ; and there may beother instances." (J.C.J. Pleadings, Aerial Incident of 27 July1955, p p . 531 et seq.)234 Ibid., p . 565.235 Ibid., p p . 301, 326 et seq.236 Meron (be. cit., pp. 94 et seq.), Head (be. cit., p. 153),

Jimenez de Arechaga (be. cit., p. 583) and Chappez (op. cit., pp. 48et seq.) have expressed themselves to that effect. Law (op. cit.,p. 104) links the proposed exception to the case of absence ofvoluntary submission by the foreigner to local law and jurisdiction.Contra, Gaja, op. cit., p. 89.

of the principle, would it not be possible to regard thesefew extreme cases as covered by the general requirementthat local remedies should be effective, that requirementbeing understood to include the further requirement thatsuch remedies should also be effectively usable, in thecases submitted, by the individuals concerned? Andwould it not be possible to envisage that, for such cases,the State should be able to establish procedures for theex officio use of local remedies in order to avoid beingplaced, for reasons for which it is not to blame, in asituation involving its international responsibility?101. Having examined the first of the two aspects men-tioned above, 237 let us now consider the second. Thequestion is whether the traditional area in which theprinciple under discussion took shape has not beenwidened in modern international law. Is it not consideredfeasible nowadays to apply in other sectors too therequirement that the persons interested in the perfor-mance by the State of international obligations of concernto them must use and exhaust the available local reme-dies before the State can be accused of having breachedone of those obligations and it can be claimed that theState has an international responsibility and may becalled upon to discharge it?102. Let it be said at the outset that there can be noquestion of extending the applicability of the principle tocases of injury suffered by persons acting in the countryas organs of the State to which they belong. Mentionhas been made of an alleged exemption from applicabilityof the rule of exhaustion of local remedies for foreignersenjoying "special international protection" in the country.The 1956 resolution of the Institute of International Lawwas expressed in these terms. 238 The expression may,however, be misleading. It might be thought to implysome sort of exception to an otherwise normal applica-tion of the principle, in virtue of the fact that certainforeigners, including diplomatic agents, consular agentsand Heads of State, enjoy greater protection in the terri-tory of the country than foreigners in general. In reality,however, there is no exception here. As we pointed outat the beginning of this section, the so-called principleof exhaustion of local remedies became establishedin general international law concurrently with the for-mation of international obligations laying down thetreatment to be accorded by the State to foreign naturalor legal persons. Having regard to the specific object ofthose obligations, to the fact that private persons wereenvisaged as the beneficiaries of their performance,it seemed normal that those same persons should haveto set in motion the machinery that would enable theState to redress where necessary any adverse consequencesof the original conduct of its organs and in that way stillproduce the result whose attainment might have beenjeopardized by that original conduct. In other words,all this is meaningful precisely because it is concernedwith the performance or breach of obligations concerningthe treatment to be accorded to individuals. Foreign

237 See para . 93 above.238 The resolution provided that the rule of exhaust ion of local

remedies would no t apply "if the injurious act affect a person en-joying special international protect ion" . (Annuaire de I'Institutde droit international, 1956 (Basel), vol. 46, p . 358.)

40 Yearbook of the International Law Commission, 1977, vol. II, Part One

Heads of State, diplomatic agents, consular agents andmembers of special missions of a foreign State are notforeign individuals; they are State organs, they are theforeign State itself. Their case is therefore outside thescope of the possible application of the principle underdiscussion.239 This, and not the protection speciallyprovided for them, is the reason why, if they suffer aninjury which affects them in their official capacity,there is no question of requiring them to use local reme-dies. Such use could be required of them in a specificcase in which they complained of a State action contraryto an international obligation which allegedly affectedthem in their private capacity, in a case, that is to say,in which they appeared only as individuals.240 Butthen, of course, we are dealing with a normal case ofapplication of the principle and not with an exceptionalextension of the principle to other areas.103. An extension of the traditional sphere of applica-tion of the principle requiring the exhaustion of localremedies may come about automatically as a result ofthe growing participation of public capital in privatecompanies. It is useful to bear this development in mindin delimiting the scope of the specific situations in whichthe use of local remedies must be reckoned with. Thefact that the requirement of such use has been affirmed inconnexion with international obligations governing thetreatment to be accorded by the State to foreign indi-viduals must not lead us, in this context, to assign tothe word "individual" the same meaning as it had acentury ago. A foreign company financed partly or evenmainly by public capital is bound, in the appropriatecircumstances, to employ local remedies in exactly thesame way as a purely private joint stock company.Indeed, the participation of public capital has neverbeen put forward as grounds for non-applicability of theprinciple of exhaustion of local remedies to any legalperson. For example, the United Kingdom Governmentmade no such claim in the Anglo-Iranian Oil Companycase. In the dispute over the Aerial Incident of 27 July 1955,counsel for the Bulgarian Government stated, in support

239 The same applies to other organs of a State which are calledupon to perform functions in the territory of another State, andto organs of subjects of international law other than States, suchas the Holy See or international organizations. In this context,it is interesting to note the individual opinion given by JudgeAzevedo in connexion with the advisory opinion in the case ofReparat ion for injuries suffered in the service of the United Nat ions :

"In the case of officials or experts appointed directly by theOrganization, ... the Organization ... may make a claim withouthaving to put forward a denial of justice, or even to show thatdomestic remedies have been exhausted." (I.C.J. Reports 1949,p . 195.)240 Let us imagine that a foreign diplomat owns private property

in the receiving country, for example, a country estate which hehas bought with a view to eventual retirement or private profit. Letus suppose that he is the victim of an act of confiscation committedby a local authority, contrary to the provisions of a treaty requiringthat the real property of nationals of his country should be respec-ted. He will obviously have to use the local remedies before itcan be concluded that the international responsibility of the receiv-ing State is engaged and that action may be taken in consequence.(It should be noted that there is no argument against this conclusionin the fact that the diplomatic agent enjoys complete exemptionfrom local jurisdiction. Such exemption dispenses with therequirement that the diplomat should appear before the courts asa defendant, but in no way prevents him from resorting to themas a plaintiff.)

of the applicability of the principle in the case in question,that:

Even if it was proved that El Al was a company... in whichthe State of Israel held a vast majority of the shares, I would saythat altered nothing in the case.241

Furthermore, without going into a question whose mainfeatures far transcend the bounds of our present con-cerns, we would simply observe that we do not believethat the applicability of the principle of exhaustion oflocal remedies should be ruled out in the case of foreignlegal persons of a predominantly, if not exclusively,public character. It seems to us that, from this pointof view, the main consideration should be, not the moreor less public character attributed to the legal personin the legal order to which it belongs, but the fact thatits activity in the territory of the foreign State is carriedon in the same areas as those where the activities of privatelegal persons are usually carried on. Ma

104. We think, however, that a genuine extension ofthe sphere of application of the principle of exhaustionof local remedies can be spoken of only in connexionwith the applicability of the requirement imposed bythat principle to the beneficiaries of the obligationsnow being laid on States with regard to the treatmentto be accorded, no longer to "foreign" individuals alone,but also to "national" individuals. The problem is rela-tively new, because States have only recently recognized—and so far have recognized only to a limited degree—that international law lays duties upon them in thisconnexion. It should also be noted that the internationalobligations of the State with regard to the treatment ofits own citizens are almost exclusively of a conventionalnature and that, in the instruments imposing them, therequirement of exhaustion of local remedies by thepersons concerned is nearly always explicitly stated. Itis, however, acknowledged that the existence of a fewcustomary rules on the subject at the present time cannotbe entirely ruled out and that such rules will probablyincrease in number. Moreover, an attempt to clarifythe question in the present draft may be of some use inthe interpretation of conventions in which the problemof the applicability of the principle of exhaustion of localremedies is not explicitly solved.

105. This having been said, it seems to us clear beyonddoubt that the principle discussed in this section shouldalso apply to international obligations of the Stateconcerning the treatment to be accorded to its ownnationals. We see no reason whatsoever why the Stateshould avoid incurring international responsibility byrectifying, necessarily on the initiative of the personsconcerned, situations that are incompatible with the

241I.CJ. Pleadings, Aerial Incident of 27 July 1955, p. 569(translation by the Secretariat). See in this connexion Gaja, op.cit., p. 82, note 6.

242 Various writers incline—somewhat tentatively, it is true—tothe view that the requirement of exhaustion of local remedieswould gradually be extended to cases of injury caused to foreignpublic entities—including States—provided that, in the cases inquestion, they had acted jure negotii or jure gestionis. For refer-ences, see Gaja, op. cit., p. 83, note 6. For the reasons indicatedabove (foot-note 240), we think that any exemption from localjurisdiction which these entities may enjoy is irrelevant to thesolution of our problem.

State responsibility 41

result required by international obligations in cases wherethat result concerns foreigners and not in cases whereit concerns nationals. Let us add that States are alreadydisinclined to allow frequent intervention by other Stateswhere the stated purpose of such intervention is theprotection of nationals of those other States; they willbe even less inclined to allow interventions of this kindwhere the stated purpose is the protection of their ownnationals. It is hence unthinkable that they shouldconsent to forgo, precisely with regard to a possiblebreach of obligations concerning the treatment of theirown nationals, the valuable "screening" afforded by therequirement of prior exhaustion of local remedies. Thevery fact that the principal international conventionsrelating to the protection of human rights expresslyimpose the requirement of prior exhaustion of localremedies 243 rules out the possibility that States mightlay aside this shield in the case of obligations of a cus-tomary nature. We therefore believe that we should takethese considerations into account in the definition of theprinciple which we propose to formulate, and that, inparticular, the reference to be made, in the text to beadopted, to the persons upon whom the requirement ofexhaustion of local remedies is to be laid should not berestricted to foreign individuals.

106. It remains for us to give a brief explanation ofprecisely what is meant by the use and exhaustion oflocal remedies. It is obvious—and in a different contextwe have already pointed out244—that the principle weare considering is based on the assumption that there areremedies open to the individuals concerned under theinternal legal system of the State in question. 245 If themeasure initially taken by a State organ, whether it bea legislative, executive, judicial or other measure, is notsubject to any remedy, the possibility of using othermeans to redress the situation created by that measureis ruled out. The breach by the State of its internationalobligation is complete ab initio. The internationalresponsibility of the State has thus come into beingalready, and nothing can delay the possibility of takingaction on it. The only qualification to be made to thisstatement refers to the case in which the lack of remediesopen to the individual is due to his own negligence: for

248 This is true of the Convention for the Protection of HumanRights and Fundamental Freedoms (art. 26) (for reference, seefoot-note 36 above); the International Convention on the Elimin-ation of All Forms of Racial Discrimination (art. 11, para. 3, andart. 14, para. l(a)) (idem, foot-note 8); the International Covenanton Civil and Political Rights (art. 41, para. l(c)) (General Assem-bly resolution 2200 A (XXI), annex), and the Optional Protocolthereto (art. 5, para. 2(b)) (ibid.).

244 See what was said in paragraph 42 about cases where theState encounters in its own system of internal law an insurmountableobstacle precluding the possibility that it may still fulfil its obli-gation by remedying ex post facto, by the adoption of differentconduct, a situation which is incompatible with the internationallyrequired result and which was created by its initial conduct.

246 See the observation made by United States Secretary ofState Fish on 29 May 1873 to the effect that: "A claimant in aforeign State is not required to exhaust justice in such State whenthere is no justice to exhaust" (J. B. Moore, A Digest of Interna-tional Law (Washington, D.C., U.S. Government Printing Office,1906), vol. VI, p. 677). For an analysis of State practice, inter-national judicial decisions and the opinions of writers on thispoint, see Gaja, op. cit., pp. 123 et seq., note 29, and p. 85, note 9.

example, failure to lodge his appeal within the prescribedtime-limit.246

107. The real problems in interpreting the principlearise, therefore, when remedies against a given Statemeasure exist in law and are available to individuals whoconsider themselves injured by that measure. It isuniversally recognized in principle, furthermore, that themere existence of remedies does not automatically imposea mandatory requirement that the individuals concernedshould make use of them. There is, however, lessunanimity about identifying the cases in which it ispermissible not to meet that requirement. The remediesvary considerably in form from one legal system toanother; all international law can do, therefore, is toprovide some guidance in principle for adaptation toeach specific case. In any event, the real reason forthe existence of the principle of exhaustion of localremedies must always be kept in mind: it is to enablethe State to avoid the breach of an international obliga-tion by redressing, through a subsequent course ofconduct adopted on the initiative of the individualsconcerned, the consequences of an initial course ofconduct contrary to the result required by the obligation.From the standpoint of the person with whom thatinitiative lies, it seems plain that the action to be takenis concerned with all avenues which offer a real prospectof still achieving the result originally aimed at by theinternational obligation or, where appropriate, an equiv-alent result. But it seems equally plain that onlyavenues which offer such a prospect should be used.This idea is summed up in the general conclusion requir-ing that the remedies available should be "effective".

108. It seems worth while to make a brief analysis ofthis conclusion. It implies, from the positive stand-point:

(a) That all available remedies capable of redressingthe situation complained of, whether they be judicialor administrative, ordinary or extraordinary, of the first,second or third degree, should be used; 247

(b) That all fitting legal grounds should be advancedwith a view to securing a favourable decision. The same

248 This aspect of the matter was considered in detail in connexionwith the Finnish Vessels case. The validity of the qualificationmentioned in the text is open to doubt, however, in a case wherethe time allowed for the exercise of a remedy is unduly short,for instance, if the injured foreigner is not resident in the territoryof the State and it is thus materially impossible for him to takeaction in time. The tendency in such a case is to treat the situationas one in which there is no remedy at all.

847 Appeals to the highest judicial authority (court of cassation,supreme court) are of course included, along with such specialremedies as application for review, appeal against the judges andappeal to the constitutional court where such a court exists andis open to individuals. For details of the practice of States in thismatter, see Gaja, op. cit., pp. 123 et seq., Chappez, op. cit., pp. 181et seq., Haesler, op. cit., pp. 28 et seq., 48 et seq. Amerasinghe(State Responsibility... (op. cit.), pp. 189 et seq.) would exceptadministrative remedies. One doubtful point remains: that of"petitions for redress", not based on a precise legal claim. Thesewere mentioned, as we have seen, in the Phosphates in Moroccocase. Against the inclusion of this type of remedy among thoseto be used, see Chappez, op. cit., pp. 180 et seq., Haesler, op. cit.,p. 29, and Amerasinghe, State Responsibility... (op. cit.), pp. 191et seq.

42 Yearbook of the International Law Commission, 1977, vol. II, Part One

applies to procedural means and other formal remedies.248

In a word, the claimant must show that he wants to winthe case, and not merely to lodge an appeal in order tomeet the requirement for formal exhaustion of localremedies. He must prove his genuine intention to createthe prerequisites for action by the State at the interna-tional level. It should be emphasized that, if the indi-vidual fails to advance in the course of the internal pro-ceedings an argument which might have won him thecase, and if that omission is later revealed by the use ofthat argument before an international court, the courtmay find that the requirement for exhaustion of localremedies has not been duly met.

109. From the negative standpoint, the conclusionreached above implies:

(a) That a remedy should not be used unless it holdsout genuine—even if uncertain—prospects of success.In other words, the individual concerned is under noobligation to waste his time attacking before an internalcourt a State measure which is de facto final. He cannotbe required to use a remedy which would be a mereformality, as for example where it is clear from theoutset that the law which the court will have to applycan lead only to rejection of the appeal (the case ofappeal against a measure taken under a law that cannotbe overturned; of a court bound by a previous judgmentrejecting a similar appeal, or by a well-established bodyof unfavourable case-law; of proven partiality on thepart of the court, etc.); 249

(b) That a remedy should not be used unless thesuccess it may bring is not, in its turn, a mere success ofform but can actually produce either the result originallyrequired by the international obligation or, if that is nolonger possible, an alternative result which is genuinelyequivalent. 250

248 The question of using all procedural means was discussedin particular in the Ambatielos case (United Nat ions , Reports ofInternational Arbitral Awards, vol. X I I (op. cit.), p p . 119-120).See Gaja, op. cit., pp . 119 et seq., Haesler, op. cit., p p . 28 et seq.,48 et seq., and 71 et seq., and Chappez, op. cit., p p . 205 et seq.

249 See Amerasinghe, State Responsibility... (op. cit.), p p . 192et seq., 194 et seq., and Gaja, op. cit., pp . 109 et seq., notes 14 and 15.

260 If the result required by the international obligation is, infact, still at tainable, it would appear that the individuals concernedcannot be compelled to settle for an equivalent result—in otherwords, for reparat ion instead of restitution. This point wasdiscussed in the Phosphates in Morocco case, although the Cour twas not called upon to rule on it. Where the internationallyrequired result has become de facto unattainable, it is plain thatthe individual concerned cannot be required to use a remedyunless it offers h im prospects of adequate reparat ion at the veryleast. A m o n g possible cases under this heading are those inwhich the course of justice is unduly slow or unduly expensive inpropor t ion to the prospective compensation. On these aspects ofthe matter , which were dealt with in the Finnish Vessels case andthe Ambatielos case, see Amerasinghe, State Responsibility...(op. cit.), pp . 196 et seq., and Gaja, op. cit., pp . 106 et seq., notes 10and 12. We have already mentioned the specific case in which,for reasons such as the fact that the injured individual's residenceis distant from the territory of the State that adopted the harmfulmeasures, or that he has no voluntary link with that State, or forsimilar reasons, the obstacle to the use of local remedies is notnecessarily due to a defect of the available system of remediesper se but to an objective situation which in practice makes itimpossible for the individual concerned t o use that system. Aswe said in paragraph 100 above, it is open to question whether

110. The exhaustive use of the available local remediesmay prove fruitful where it is practised, and may thuslead to acceptance of the recourse lodged by the individualconcerned. On the other hand, it may prove fruitlessand result in rejection of the recourse. If the recourseis accepted, the effect of acceptance is the achievementof the result required by the international obligation or,where appropriate, the achievement of another result,economically equivalent to it. If the recourse is rejected,the breach of the obligation begun by the State conductagainst which the recourse was lodged is consequentlycompleted by the rejection, and an international respon-sibility comes into being for the State. A purely osten-sible acceptance of the recourse—which, for example,did not lead to the internationally required result in acase where that result was still attainable, or which ledto an alternative result that was not equivalent—wouldobviously be tantamount to rejection.111. In conclusion, let us put forward some briefconsiderations de jure condendo. We are well awarethat there are not solely advantages in the fact thatgeneral international law requires individuals injured bythe action or omission of a State organ to seek redressof the situation injurious to them by having recourseto internal authorities and thus prompting a new courseof State conduct that corrects the initial course of conduct.To put it more clearly, there are not solely advantagesin the fact that a very large proportion of internationalobligations concerning the treatment of individualsultimately allow the State to achieve, in stages, the resultrequired of it. There are not solely advantages in thefact that such obligations accordingly allow conductcontrary to the internationally required result to bedisregarded for the purposes of establishing internationalresponsibility, provided that that result is eventuallysecured by subsequent conduct. All the practical dis-advantages inevitably attendant on these facts explainwhy various conventions expressly preclude the appli-cation of the principle of exhaustion of local remediesin certain contexts. Again, the desire to avoid thehesitations and delays to which the principle may giverise, both in redressing situations incompatible with theresult aimed at by an international obligation and inestablishing that that obligation has definitely beenbreached, has led to the consideration and institution ofalternative systems. As examples of such systems, wemay cite the over-all compensation agreements reached incertain disputes over nationalization of foreign property,or the inclusion in contracts between States and foreignprivate companies of arbitration clauses in place ofrecourse to local courts. However this, in our view,offers no proof that States would be prepared today,having regard to the progressive development of inter-national law, to abandon the principle of exhaustion oflocal remedies or severely to curtail its scope. It istrue that the investing countries exhibit a growingawareness of the repercussions on the interests of thenational community as a whole of encroachments uponthe interests of their nationals operating on foreign soil.

the general requirement that the available remedies should beeffective ought not to be understood to imply also that they shouldbe effectively usable.

State responsibility 43

They would consequently like to be free to lodge inter-national claims as they see fit, independently of whetherthe individuals directly injured have exhausted theavailable local remedies or shown themselves neglectfulin that regard. The proponents of the idea of a moredirect, quicker and more effective form of protection ofhuman rights, in their turn, see in the principle of exhaus-tion of local remedies an obstacle to the development towhich they aspire. At the same time, the requirementthat the individuals directly affected by measures on thepart of an organ of the State in which they reside andin which they carry on their activity should exhaust thelocal remedies has always been a safeguard applied bythe investing countries against a tendency to exaggerateobligations concerning the treatment of foreign naturaland legal persons. Those countries see in this require-ment a protection against the unduly facile attemptstraditionally made to place on the level of internationalrelations disputes which have often belonged only tothe internal level. The inclination of the developingcountries would thus be, in the context of general inter-national law, to favour strengthening rather than weaken-ing the principle of exhaustion of local remedies. Letus add that the minds most heedful of today's problemsand of the difficulties in solving them realize that com-pliance with this essential requirement may well be thebest guarantee of further substantial progress in theacceptance of new obligations with regard to humanrights. In the circumstances, the Special Rapporteurconsiders that it would be injudicious to tamper with

the existing general scope of the principle in the nameof an alleged progressive development which othersmight regard as a step backwards in the matter ofguarantees of equal sovereignty for all States.112. The definition given to the principle in the rule weare about to formulate needs to be, in our opinion,flexible enough for adaptation to a variety of specificsituations. In addition, a summary wording seems tous preferable to a detailed list of different aspects of theprinciple, which, in the multiform nature of internationallife, could never be exhaustive.

113. In view of these considerations and of the argumentsadvanced and evidence cited in the foregoing paragraphs,the Special Rapporteur proposes that the Commissionshould adopt the following text:

Article 22. Exhaustion of local remedies

There is a breach of an international obligation requiring the Stateto achieve a particular result, namely, to accord certain treatmentto individuals, natural or legal persons, if, after the State's initialconduct has led to a situation incompatible with the required result,the said individuals have employed and exhausted without success thelocal remedies which were available to them and which possessed thenecessary effectiveness to ensure either that the required treatmentwould continue to be accorded to them or, if that should prove impos-sible, that appropriate compensation be awarded to them. Conse-quently, the international responsibility of the State for the initialact or omission and the possibility of enforcing it against the Stateare not established until after local remedies have been exhaustedwithout satisfaction.