The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures

Romano, Cesare P. R.

doi:10.1007/978-90-6704-894-1_41

The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures

Cesare P. R. Romano⁵

Chapter
First Online: 14 March 2013

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Abstract

The rule of exhaustion of domestic remedies is arguably the most important admissibility requirement in international human rights procedure. It plays a pivotal role, as an interface between international and national legal systems. Starting from the practice of diplomatic protection and some very succinct statutory provisions, it evolved over time, by and large through jurisprudential elaboration. Because international human rights bodies insist in applying it flexibly—treating it more as a golden rule than a rule set in stone—and because the number of exceptions over time has grown considerably, there is significant doubt as to the exact scope of the rule and its exceptions. This uncertainty causes twofold confusion. It leads to an excessive amount of petitions being filed when they should not, but also causes many petitions to remain unfiled because of doubts as to their admissibility. It is argued here that it is time for authoritative codification of the sprawling jurisprudence on this rule.

Keywords

National Court
International Criminal Tribunal
Advisory Opinion
Admissibility Criterion
Diplomatic Protection

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Director, Project on International Courts and Tribunals (PICT).

The author would like to thank Laura Cadra, Guillermo Mayahudon, Hansen Tong and Mark Oknyansky, at Loyola Law School Los Angeles, for their assistance.

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Notes

1.
In the ELSI case, the rule was succinctly defined by the International Court of Justice. “For an international claim to be admissible, it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success” (ICJ: Elettronica Sicula S.p.A. (ELSI) (United States v. Italy), Judgment (20 July 1989), para 59.
2.
Ibidem, para 50. See also ICJ: Interhandel (Switzerland v. United States), Judgment (21 March 1959), p. 27. The International Law Commission has said as much while codifying the customary international law on diplomatic protection. International Law Commission, Draft Articles on Diplomatic Protection, Articles 14 and 15.
3.
See Report of the Commission of Inquiry appointed under Article 26 of the Constitution of the International Labour Organisation to examine observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), by the Federal Republic of Germany, para 255.
4.
See ECSR: Syndicat des Agrégés de l’Enseignement Supérieur (SAGES) v. France, 26/2004, Decision (7 December 2004), para 12.
5.
In the case of some courts and procedures, such as, for instance, the European Court of Human Rights, the petition must be filed within a certain period (usually 6 months) from the date on which the latest decision has been handed down by the national court. While probably equally paramount, the time-limit rule is in the end subordinate to the rule of the exhaustion of domestic remedies because the time limit only lapses after the remedies have been exhausted.
6.
E.g. Crawford and Grant 2011; Amerasinghe 2004; Cançado Trindade 1983, 2003; Burgorgue-Larsen 2011; Santulli 2005; Schermers 2002; D’Ascoli and Scherr 2006; Gandhi 2001; Pisillo Mazzeschi 2000, 2004; Udombana 2003.
7.
See, e.g. IACtHR: Chaparro Álvarez y Lapo Íñiguez v. Ecuador, Judgment (21 November 2007), paras 19–23. For the ECtHR, see Kemmache v. France (no. 3), 17621/91, Judgment (24 November 1994), para 44.
8.
Besides the above-mentioned exception of the ILO Article 26 procedure, it should be mentioned that the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are not complementary to national courts but rather enjoy primacy over them and can therefore formally require them to relinquish a particular case at any stage of the proceedings. See Statute of the ICTY, Article 9.2; Statute of the ICTR, Article 8.2.
9.
See, e.g., ICJ: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment (11 June 1998), paras 56–59.
10.
“(…) [I]t is appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought to Strasbourg, the European Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries” (ECtHR: Burden v. the United Kingdom [GC], 13378/05, Judgment (28 April 2008), para 42; see also ECtHR: Varnava and Others v. Turkey [GC], 16064/90 and others, Judgment (19 September 2009), para 164.
11.
ACtHR: Viviana Gallardo et al. v. Costa Rica, Judgment (13 November 1981), para 26; Velásquez Rodríguez v. Honduras, Judgment (29 July 1988), para 61.
12.
E.g. ECtHR: Kudła v. Poland [GC], 30210/96, Judgment (26 October 2000), para 152; Selmouni v. France [GC], 25803/94, Judgment (28 July 1999), para 74. Of course, the assumption is that there is an effective remedy available with respect to the alleged breach at the national level (ibidem, and see also Akdivar and Others v. Turkey [GC], 21893/93, Judgment (16 September 1996), para 65. See also Council of Europe, Recommendation (2004) 6 of 12 May 2004 of the Committee of Ministers to Member States on the Improvement of Domestic Remedies.
13.
Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), entered into force on 3 September 1953, as amended by Protocol No. 11 (Strasbourg, 11 May 1994), entered into force on 1 November 1998 and Protocol No. 14 (Strasbourg, 13 May 2004), entered into force on 1 June 2010, Article 35.
14.
E.g. American Convention on Human Rights (San José, 22 November 1969), entered into force on 18 July 1978, Article 46.1.a.
15.
E.g., International Covenant on Civil and Political Rights (New York, 16 December 1966), entered into force on 23 March 1976, Article 41.1.c (for state v. state communications); Optional Protocol to the International Covenant on Civil and Political Rights (New York, 16 December 1966), entered into force on 23 March 1976, Articles 2 and 5.2.b (individual communication). African Charter on Human and Peoples’ Rights (Banjul, 27 June 1981), entered into force on 21 October 1986, Article 50 (proceedings before the Commission) and Article 56.5.
16.
American Convention on Human Rights, Articles 46.2, a and b.
17.
The European Commission of Human Rights and the Court have frequently underlined the need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting (is it supposed to be “protecting petitioners” or “proceedings”?). ECmHR: Lehtinen v. Finland, 39076/97, Decision (14 October 1999), Section 1, “Concerning the search and seizure”, citing ECtHR: Cardot v. France, 11069/84, Judgment (19 March 1991), para 34; Van Oosterwijck v. Belgium, 7654/76, Judgment (6 November 1980), para 35; and Akdivar and others, supra n. 12, paras 65–68.
18.
E.g. IACtHR: Velasquez Rodriguez v. Honduras, Judgment (26 June 1987), para 84; Fairén-Garbi and Solís-Corrales v. Honduras v. Honduras, Judgment (26 June 1987), paras 34 and 83; Godínez-Cruz v. Honduras, Judgment (26 June 1987), para 86; Juan Humberto Sánchez v. Honduras, Judgment (23 June 2003), paras 64–69; Exceptions to the Exhaustion of Domestic Remedies (Articles 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights), Advisory Opinion (10 August 1990), para 39.
19.
Annual Report of the Inter-American Commission on Human Rights (2010), Doc. OEA/Ser.L/V/II, Doc. 5, rev. 1 (7 March 2011), hereinafter IACmHR, 2010 Annual Report, p. 37.
20.
Other grounds for inadmissibility are an anonymous submission; that the violation did not take place at a time when the Convention (or relevant protocol) was in force with respect to the state in question; the same matter is pending for consideration before another international dispute settlement procedure; and that the alleged violation cannot be attributable or imputable to the State in question.
21.
See, Burgorgue-Larsen 2011, p. 136 ff.
22.
Rules of Procedure of the Inter-American Commission on Human Rights, as approved by the Commission at its 109th special session (4–8 December 2000) and amended at its 116th regular period of sessions (7–25 October 2002); hereinafter Inter-American Rules of Procedure, Article 31.3. Substantially, same procedures can be found in the various international human rights procedures. Thus, for instance, in the case of the Rules of Procedure of the Committee of the Convention on the Elimination of Discrimination against Women, Rule 69.6 provides: “If the State party concerned disputes the contention of the author or authors (…) that all available domestic remedies have been exhausted, the State party shall give details of the remedies available to the alleged victim or victims in the particular circumstances of the case.”
23.
E.g. ECtHR: De Wilde, Ooms and Versyp v. Belgium, 2832/66-2835/66-2899/66, Judgment (18 June 1971), para 60; Deweer v. Belgium, 6903/75, Judgment (27 February 1980), para 26; Kozacioğlu v. Turkey [GC], 2334/03, Judgment (19 February 2009), para 39; Akdivar, supra n. 12, para 68; Dalia v. France, 26102/95, Judgment (19 February 1998), para 38; McFarlane v. Ireland [GC], 31333/06, Judgment (10 September 2010), para 107.
24.
E.g. ECtHR: Kangasluoma v. Finland, 48339/99, Judgment (20 January 2004), paras 46–48.
25.
ECHR, Applicant Check List, www.echr.coe.int/ECHR/EN/Header/Applicants/Apply+to+the+Court/Checklist/. Accessed 2 January 2012.
26.
Inter-American Rules of Procedure, Articles 26 and 29.
27.
IACmHR, 2010 Annual Report, supra n. 19, Chapter III.B.1.(d) and (e).
28.
Ibidem, (c) and (f).
29.
Human Rights Statistical Survey of Individual Complaints Dealt with by the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (6 April 2011), www2.ohchr.org/english/bodies/hrc/docs/SURVEYCCPR101.xls. Accessed 2 January 2012.
30.
Tyagi 2011, p. 498. The other grounds for inadmissibility in the case of the Human Rights Committee are that the violation did not take place at a time when the Covenant and First Optional Protocol were in force for the relevant state; claims are not substantiated; that the petition was filed anonymously, or could be considered to be an abuse of the right of submission or is otherwise incompatible with the provisions of the Covenant; and that the same matter is simultaneously pending before any another international procedure of investigation.
31.
Tyagi 2011, p. 498; Möller and de Zayas 2009, p. 91.
32.
“A high number of communications are received per year in respect of which complainants are advised that further information would be needed before their communications could be registered for consideration by the Committee, or that their cases cannot be dealt with by the Committee (…). A record of this correspondence is kept by the secretariat of OHCHR.” (Report of the Human Rights Committee (2010–2011), A/66/40 (Vol. I), para 99.
33.
ECtHR, Applicant Check List: Facts and Figures.
34.
High Level Conference on the Future of the European Court of Human Rights, Interlaken Declaration (19 February 2010), p. 2, (4). See also ibidem Action Plan, E.9.(b).
35.
Ibidem, at 2, (5).
36.
Ibidem, Action Plan, C.6.(a).
37.
High Level Conference on the Future of the European Court of Human Rights, Izmir Declaration (27 April 2011), p. 2, para 4.
38.
High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration (20 April 2012), para 15. g.
39.
European Court on Human Rights, Practical Guide on Admissibility Criteria (2009, rev. 2011), www.echr.coe.int/ECHR/EN/Header/Case-Law/Case-law+analysis/Admissibility+guide/. Accessed 2 January 2012.
40.
Ibidem, p. 7, para 3.
41.
It is well known that in international jurisprudence there is no strict rule similar to the stare decisis principle that binds courts in Common Law countries to precedents. International courts rather follow the notion of jurisprudence constante, typical of the Civil Law legal tradition. The Louisiana Supreme Court, the Court of a hybrid common law–civil law state, holds that the principal difference between the two legal doctrines is that while a single decision can provide sufficient foundation for stare decisis, it takes a series of cases, all in accord, to form the basis for jurisprudence constante. See Louisiana Supreme Court: Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & Use Tax Comm'n., 903 So.2d 107, at n. 17 (La. 2005) (Opinion no. 2004-C-0473).
42.
For a contrary opinion, and a pleading for greater flexibility, at least in the case of the African Commission on Human and Peoples’ Rights, see Udombana 2003.
43.
IACtHr: Exceptions to the Exhaustion of Domestic Remedies, cit.

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Professor of Law and Director of the International Human Rights Clinic, Loyola Law School Los Angeles, Los Angeles, CA, USA
Cesare P. R. Romano

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, Dipartimento di diritto pubblico, University of Milan - Statale University, Via Festa del Perdono 7, Milan, 20122, Italy
Nerina Boschiero
Bicocca University, Dipartimento giuridico, University of Milan, Piazza dell’Ateneo Nuovo 1, Milan, 20126, Italy
Tullio Scovazzi
, Dipartimento di Diritto,, University of Parma, Via Università 12, Parma, 43121, Italy
Cesare Pitea
, Dipartimento di diritto pubblico, University of Milan - Statale University, Via Festa del Perdono 7, Milan, 20122, Italy
Chiara Ragni

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Romano, C.P.R. (2013). The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures. In: Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C. (eds) International Courts and the Development of International Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-894-1_41

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