외교적 보호권 행사 전제요건으로서의 국내구제완료의 법적 성질
The Legal Nature of Exhaustion of Local Remedies as a Precondition of the Diplomatic Protection
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Where its national is injured by a foreign State in violation of international law, the State of nationality may exercise the right of diplomatic protection against the wrongdoing State on behalf of the injured national. In exercising the right of diplomatic protection, it is required to satisfy two preconditions, such as, exhaustion of local remedies and continuous nationality of the claim. The exercise of diplomatic protection is not exercising the right of the injured person in subrogation. It is invoking international responsibility against the State which committed international wrongful act against its national. This paper reviews the legal nature of the rule of exhaustion of local remedies, as it were, whether the rule is a procedural condition to be satisfied in order to exercise diplomatic protection, or a substantial condition without which the international wrongful act is not completed. This question is not purely theoretical. It has practical implications. If we consider the rule as a procedural condition, it must be met prior to bring an action in front of international tribunals. Without fulfilling the condition, the defendant may raise the preliminary objection against the plaintiff. On the other hand, if we consider the rule as a substantial one, without fulfilling the condition, the international wrongful act is not completed, thus, international responsibility is not established. And also, there is a third school who considers the rule both substantial and procedural case by case. The third school considers that where purely international law is violated, the rule does not apply; where purely municipal law is violated, as international wrongful acts is absent, it is not possible to invoke international responsibility against the State which violated municipal law. However, in pursuing the municipal remedies in this case, if the denial of justice occurs, then the denial of justice may constitute an international wrongful act; finally, where both municipal law and international law were violated, the rule may be considered to be a procedural condition. I presume that as the rule is waived by the consent of the State and the exceptions to the rule are well founded, it could not be a substantial condition which is an element to be fulfilled in invoking international responsibility. It is considered that the rule is a procedural condition to be met before raising international claim against the wrongdoing State.
Abstract
Where its national is injured by a foreign State in violation of international law, the State of nationality may exercise the right of diplomatic protection against the wrongdoing State on behalf of the injured national. In exercising the right of diplomatic protection, it is required to satisfy two preconditions, such as, exhaustion of local remedies and continuous nationality of the claim. The exercise of diplomatic protection is not exercising the right of the injured person in subrogation. It is invoking international responsibility against the State which committed international wrongful act against its national. This paper reviews the legal nature of the rule of exhaustion of local remedies, as it were, whether the rule is a procedural condition to be satisfied in order to exercise diplomatic protection, or a substantial condition without which the international wrongful act is not completed. This question is not purely theoretical. It has practical implications. If we consider the rule as a procedural condition, it must be met prior to bring an action in front of international tribunals. Without fulfilling the condition, the defendant may raise the preliminary objection against the plaintiff. On the other hand, if we consider the rule as a substantial one, without fulfilling the condition, the international wrongful act is not completed, thus, international responsibility is not established. And also, there is a third school who considers the rule both substantial and procedural case by case. The third school considers that where purely international law is violated, the rule does not apply; where purely municipal law is violated, as international wrongful acts is absent, it is not possible to invoke international responsibility against the State which violated municipal law. However, in pursuing the municipal remedies in this case, if the denial of justice occurs, then the denial of justice may constitute an international wrongful act; finally, where both municipal law and international law were violated, the rule may be considered to be a procedural condition. I presume that as the rule is waived by the consent of the State and the exceptions to the rule are well founded, it could not be a substantial condition which is an element to be fulfilled in invoking international responsibility. It is considered that the rule is a procedural condition to be met before raising international claim against the wrongdoing State.
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