The Exhaustion of Local Remedies Rule in the Settlement of Maritime Disputes: A Study of the Practice of the UNCLOS Tribunals

Abstract

Abstract The exhaustion of local remedies (“ELR”) rule is applicable in the settlement of maritime disputes, and it is not limited to the case of diplomatic protection. So far the manner in which the tribunals under the UN Convention on the Law of the Sea dealt with the ELR issue in the cases of the flag State’s protection has raised the concern that the rule may become a dead letter in practice. Although the cases involved the protection of natural and legal persons by States, the tribunals rejected the objections to the admissibility of claims raised by the respondents based on the ELR rule in all cases. However, the approaches in which the tribunals dealt with the ELR issue are questionable, and the practice of the International Tribunal for the Law of the Sea contains dual imbalances. In the case of a mixed claim, the preponderance test suggested by the International Law Commission should be employed to determine the nature of the plaintiff’s claim as a whole. The test was mentioned in several cases, but it was not used correctly.