The application of the rule that local remedies must be exhausted before an international claim may properly be instituted has served to dismiss many cases brought before international tribunals.1 However, a number of arbitral awards have expressly dispensed with the requirement of exhausting local remedies, not for the reason that the local remedy was illusory or unsatisfactory (different illustrations of which will be discussed presently) but on jurisdictional grounds, the arbitrators reasoning that by the submission of the case to arbitration the two governments must have intended to confer jurisdiction upon the tribunal and supersede the local remedy. It was, therefore, expressly provided in the protocol of arbitration between France and Venezuela of Feb. 11, 1913 that claimants must prove a resort to Venezuelan courts and an undue delay of justice (fifteen months without a decision) or an objection to the municipal decision by the

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1 Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3126; Turner, ibid. 3126; Wilson (U. S.) v. Mexico, March 3, 1849, ibid. 3021; Medina (U. S.) v. Costa Rica, July 2, 1860, ibid. 2317; Pacific Mail (U. S.) v. Colombia, Feb. 10, 1864, ibid. 1412; People of Cinecue (Mexico) v. U. S., July 4, 1868, ibid. 3127; Selkirk (U. S.) v. Mexico, ibid. 3130, Tehuantepec Ship Canal, ibid. 3132, Leichardt, ibid. 3133, Jennings et al., ibid. 3135, Black et al., ibid. 3138, Green, ibid. 3139, Burn, ibid. 3140, Slocum, ibid. 3140, Pratt, ibid. 3141, Clavel, ibid. 3141, Ada, ibid. 3143, Ana, ibid. 3144, Smith, ibid. 3146, Nolan, ibid. 3147, Cramer, ibid. 3250, McManus, ibid. 3411; Danford (U. S.) v. Spain, Feb. 12, 1871, ibid. 3148; Brig Napier (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3152-3159 (prize case); Hubbell (U. S.) v. Great Britain, ibid. 3484; Driggs (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3160, Corwin, ibid. 3210; Oberlander and Messenger (U.S.) v. Mexico, March 2, 1897, For. Rel., 1897, 370 at 382 et seq., Sen. Doc. 73, 55th Cong., 3rd sess., 85, 125; French spoliation cases, Gray v. U. S., 21 Ct. Cl. 340; Ship Tom, 29 Ct. Cl. 68; Brig Freemason, 45 Ct. Cl. 555; La Guaira L. and P. Co. (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 182; De Caro (Italy) v. Venezuela, Feb. 13, 1903, ibid. 810; Comp. General of the Orinoco (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 244.

? See opinion of Day, Arbitrator, in Metzger (U. S.) v. Haiti, Oct. 18, 1899, For. Rel., 1901, 262, 275; Young, Smith and Co. (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3148; Trumbull (Chile) v. U. S., Aug. 7, 1892, ibid. 3569; Davy (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 410; Aroa Mines (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 359 (dictum); Hoffman (U. S.) v. Mexico, March 3, 1849, Opin. 359 (not in Moore). In Moses (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3127 and Manasse (U.S.) v. Mexico, ibid. 3463, two cases decided by Lieber, Umpire, the grounds of decision are not convincing. The British-American commission of 1871, assumed jurisdiction, notwithstanding failure to resort to local remedies in Crutchett (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3734, Braithwaite, ibid. 3737, and Knowles, ibid. 3748. See also the Sally, Hays (U. S.) v. Great Britain, Nov. 19, 1794, ibid. 3101-3119.

French government.1 The construction placed by arbitral courts upon the so-called Calvo clause, by the terms of which a claimant undertakes by contract (usually with the government) to resort to the local courts to the exclusion of diplomatic intervention, has already been fully considered.2 Article III of the Terms of Submission of the British-American Arbitration under the agreement of August 18, 1910 very justly provides:

"The Arbitral Tribunal shall take into account as one of the equities of a claim to such extent as it shall consider just in allowing or disallowing a claim, in whole or in part, any failure on the part of the claimant to obtain satisfaction through legal remedies which are open to him. or placed at his disposal, but no claim shall be disallowed or rejected by application of the general principle of international law that the legal remedies must be exhausted as a condition precedent to the validity of the claim." 3

§ 382. Position of Latin-America.

The Latin-American states have contended vigorously for the adoption by European states of the principle that an exhaustion of local remedies and the establishment of a denial of justice are conditions precedent to the exercise of diplomatic interposition. The principle has been incorporated into their constitutions, statutes and PanAmerican conventions, and has found expression in a number of treaties between the states of Europe and Latin-America.1 Mexico appears to have had little difficulty in negotiating such treaties. Neither the United States nor Great Britain appears to have consented to enter into such a treaty stipulation with a Latin-American state." The Latin-American countries have concluded many treaties of this kind among themselves."

1 Protocol between France and Venezuela, Feb. 11, 1913, art. II, 7 A. J. I. L. (Suppl.), 218.

Infra, § 390 et seq. See also art. 2 of the convention for the establishment of a Central American Court of Justice, Dec. 20, 1907. Malloy's Treaties, II, 2400. See Diaz v. Guatemala, 39 Clunet (1912), 274.

5 Except in so far as such a limitation is contained in art. 10 of the treaty of Aug. 1, 1911 between Great Britain and Bolivia, Treaty series, 1912, 223.

• Pradier-Fodéré, § 1370.

While these states have invoked their sovereignty and independence as a legal justification for insisting on the duty of aliens to exhaust local remedies and to refrain from calling upon the diplomatic protection of their own governments until a denial of justice in the courts is shown, they have not succeeded in securing a definite acceptance of this principle by the states of Europe. The European countries and the United States, invoking the right to protect their subjects abroad, upon which right the municipal law of Latin-America, they assert, can place no limitation, pass upon each case as it arises and determine for themselves whether it appears probable that a resort to local courts will afford an adequate remedy. Their unwillingness to remit their citizens unreservedly to the local courts of the more backward states of Latin-America seems to arise out of a lack of confidence in the impartiality of those courts and in their disposition to accord justice to the foreigner. This attitude of Europe is especially noticeable in cases where the Latin-American government is a party to the litigation. In a recent agreement between France and Venezeula for the settlement of certain claims of French citizens against Venezuela, it has been expressly provided, that after the adjudication of the Venezuelan courts upon a claim, France shall have the right to object to the decision and submit the claim to an arbitral commission. It is quite probable that with the growth of the weaker Latin-American countries in political stability, and, incidental thereto, an increasing confidence on the part of foreign countries in the impartiality and independence of the judiciary, foreign countries will give evidence of a greater willingness to submit the rights of their citizens and subjects to the decisions of the local courts, and to decline diplomatic interposition until local remedies have been exhausted.

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§383. Qualifications of the Rule. When Unnecessary to Exhaust Lo

cal Remedies.

The rule that local remedies must be exhausted before diplomatic interposition is proper is in its application subject to the important condition that the local remedy sought is obtainable and is effect

1 Infra, §§ 390 et seq., 396.

2 Protocol between France and Venezuela, Feb. 11, 1913, art. II, Journal Officiel, June 17, 1913, p. 5198, printed in 7 A. J. I. L. (supplement), 218.

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tive in securing redress. If this condition is absent, it would be futile and an empty form to require the injured individual to resort to local remedies. As Secretary of State Fish tersely remarked: "A claimant in a foreign state is not required to exhaust justice in such state when there is no justice to exhaust." So, where the local tribunals are of such a nature that no confidence may be placed in them and no hope may be entertained of obtaining justice from them, or where there are no duly established courts to which resort is "open and practically available," 3 it is unnecessary to exhaust local remedies.

2

It is not easy to determine when a citizen injured abroad is to be remitted to his local remedies and when the government may make his case the subject of immediate diplomatic action. In a general way, this may be said to depend upon whether he has an effective remedy in the local courts, and upon whether the injury is of a nature sufficiently flagrant to warrant immediate diplomatic action without requiring a preliminary resort to or exhaustion of local remedies. The difficulty of stating any general rule arises from the fact that the claimant's government determines in its discretion which method of procedure is under the circumstances proper. In cases of wrongful arrest and false imprisonment by local authorities, the absence of any uniform rule is particularly apparent.

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1 Mr. Fish, Sec'y of State, to Mr. Pile, May 29, 1873, Moore's Dig. VI, 677. 2 Lord Palmerston on the Don Pacifico case v. Greece, Hansard, Parl. Deb. cxii, 381-383, 387; Mr. Everett, Sec'y of State, to Mr. Marsh, Feb. 5, 1853, in case of Dr. King v. Greece, Moore's Dig. VI, 262-264.

3 Mr. Bayard, Sec'y of State, to Mr. Buck, Min. to Peru, Nov. 1, 1886, Moore's Dig. VII, 267; Mr. Fish, Sec'y of State, to Mr. Foster, Aug. 15, 1873, ibid. 678; Gray v. U. S., 21 Ct. Cl. 340.

Mr. Bayard, Sec'y of State, to Mr. Morgan, April 27, 1886, H. Ex. Doc. 328, 51st Cong., 1st sess., p. 47; Mr. Blaine, Sec'y of State, to Mr. Shannon, Apr. 6, 1892, For. Rel., 1892, p. 34 et seq.; Lord Salisbury to Mr. St. John, Aug. 21, 1885, 77 St. Pap. 1212. Cases of illegal capture of vessels often dispense with requirement of exhausting local remedies. Cushing v. U. S., 22 Ct. Cl. 1, 44.

5 Resort to local remedies was apparently considered unnecessary in Mevs case v. Haiti, Moore's Dig. VI, 768; in case of Angell, Thomas and Pardee v. Guatemala; Master of Russian bark Hans v. U. S.; Hale's case v. Argentina; and Lillywhite case v. Great Britain, ibid. 768-769. It was insisted upon, however, in Warren's case in Ireland (ibid. 661) and in other cases in England, France and Honduras (ibid. 670-671).

The requirement of exhausting local remedies has been dispensed with as unnecessary by the Department of State when the action of the higher officials or authorities of the foreign government causing the injury has been arbitrary and unjust, and there appeared to be no adequate ground for believing that a sufficient remedy was afforded by judicial proceedings.1 The same principle has been applied by international arbitral commissions.2

3

Where recourse to or the prosecution of an appeal before the local courts appears useless or impracticable in affording a claimant relief, he has been excused from appealing to or exhausting his local remedies. This has been held in cases where the local courts were prohibited from entertaining jurisdiction of suits against the state; where the judges were menaced and controlled by a hostile mob; where the payment of a possible judgment was entirely a matter of discretion. with the defendant government; 5 or where an appeal to the highest court from the circumstances of the case appeared impracticable. In these cases the resort to local courts would not have resulted in an effective remedy. In a few prize cases, it has been held that in face of a uniform course of decisions in the highest courts, a reversal

1 Mr. Hay, Sec'y of State, Oct. 25, 1901 in Venezuela, Asuntos Internacionales, 1903, 177; Mr. Frelinghuysen, Sec'y of State, to Mr. Morgan, May 19, 1884, and Mr. Bayard, Sec'y of State, to Mr. Jackson, July 20, 1885, Moore's Dig. VI, 679; Same to same, Sept. 7, 1886, ibid. 680; Mr. Cadwalader to Mr. Foster, Sept. 22, 1874, ibid. 678. See also 77 St. Pap. 1212 and 1225 and Akerman, Atty. Gen., in 13 Op. Atty. Gen. 547, 550.

2 Moses (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3127; Grannan (U. S.) v. Peru, Dec. 4, 1868, ibid. 1652; Johnson (U. S.) v. Peru, ibid. 1656; Davy (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 410.

Ruden (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1653, 1655; Grannan (U. S.) v. Peru, ibid. 1652; Johnson (U. S.) v. Peru, ibid. 1656; dictum in Fretz (U. S.) v. Colombia, Feb. 10, 1864, ibid. 2560; North and South Amer. Construction Co. (U. S.) v. Chile, Aug. 7, 1892, ibid. 2318 (arbitrary suppression of local remedy). See also supra, p. 339.

4 Grannan (U. S.) v. Peru, ibid. 1652, Johnson, ibid. 1656.

The Neptune (U. S.) v. Great Britain, Nov. 19, 1794, Moore's Arb. 3076–3100. 6 This ruling has been made on several occasions in prize cases. Ship Governor Bowdoin v. U. S. (French Spoliations Act of Jan. 20, 1885, 36 Ct. Cl. 338; appeal court 9,000 miles distant); Ship Tom v. U. S., 29 Ct. Cl. 68; Carmalt (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 90, Moore's Arb. 3157; McLennan (Gt. Brit.) v. U. S., ibid. 3158. See also the Peggy, 1 Cranch, 103, 107.