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This Chapter examines the broad range of remedies available for laws that violate human rights. Part I examines non-binding declarations of incompatibility and related supra-national remedies, interpretative remedies, partial declarations of invalidity, suspended declarations of invalidity and prospective rulings. Part II identifies general principles that should inform the choice of remedies. These include respect for the legitimate roles of legislatures in making policy choices not dictated by the interaction of rights and legislative objectives, not allowing remedies to be limited by the form of legislative drafting and presumptions of retroactive relief. Part III applies the two-track approach to remedies with special attention to the dilemmas provided by suspended declarations of invalidity and prospective rulings. Comparisons are made between the Canadian use of exemptions and the South African use of interim guidelines, and between how Canadian and UK courts have responded to assisted dying cases. It also examines the dilemmas presented when legislatures refuse to respond to a declaration of incompatibility. It suggests that courts should have continued to award damages when the UK Parliament refused to respond to a declaration that a ban on prisoner voting was inconsistent with rights.
These remedies involve the challenges of responding to the harms of colonialism and avoiding new neo-colonial harms. Part I stresses the importance of interim remedies to prevent irreparable harm to Indigenous rights. Courts should stop their tendency to discount pecuniary losses even while trying to off-set this with a more generous approach to non-pecuniary harms. Part II examines the duty to consult. It, like the South African practice of engagement, can result in consensual agreements but also authorize limits on rights, especially if no attempt is made to address inequality of bargaining power and respect Indigenous law. Part III argues that proportionality principles can be used to avoid allowing majoritarian and economic interests to weaken remedies. Following Article 40 of the United Nations Declaration on the Rights of Indigenous Peoples, the overall balance stage should be applied bi-jurally to respect both rights and Indigenous law including with respect to the environment. Part IV suggests that domestic and supra-national courts should focus on providing first-track remedies to prevent irreparable harm and compensate for past harm. They should employ a lighter and respectful touch that encourages bi-jural treaties as systemic remedies. Effective first-track remedies may make such agreements more likely.
This Chapter responds to the under-theorization of remedies by outlining and defending the two-track approach that combines individual and systemic remedies with courts playing a more dominant role with respect to the former and a more dialogic role with respect to the latter. Part I examines the roots of compensatory remedies in corrective justice and “right to a remedy” reasoning associated with the common law and Blackstone and Dicey. Part II examines how remedies have increasingly been concerned with preventing future rights violations. Part III outlines the two-track approach and explores its origins in the distinction that supra-national adjudicators often draw between individual and general measures and Chayes’ distinction between traditional and public law litigation. Part IV argues that an exclusive focus on either individual or systemic remedies will be incomplete and produce remedial pathologies. Part V examines how the two-track approach recognizes and responds to the reality of remedial failure. It outlines how cycles of individual and systemic remedies can occur. This allows both litigants and courts to adjust their approach in response to new evidence and new concerns. This allows courts, when warranted, to escalate their remedies when states fail to take reasonable steps to prevent repetitive violations.
This Chapter examines the award of damages in international and domestic human rights law. Part I outlines current practices of awarding damages, with an emphasis on their often modest nature and the frequent use of qualified immunities that require proof of fault in addition to a human right’s violation. Part II will argue that international public law principles of state responsibility provide a sound basis for damage awards that is superior to reliance on private law principles – even those based on intentional torts. Public law principles recognize the equality of all rights holders and resists legislative limitations on damage awards. They also prioritize restitution, cessation and non-repetition of the violation. Part III argues that proportionality principles provide a better means to recognize legitimate interests that may be harmed by damage awards than would use of qualified or absolute immunities. Part IV applies the two-track approach to damages, suggesting that while they are primarily a first-track compensatory remedy, aggravated damages and other remedies can be justified if the state has not responded reasonably to prevent repetition of the violation. It concludes by demonstrating that damages also play an important role in responding to remedial failure and triggering cycles of remedies.
This Chapter outlines four methodological and four substantive contributions of the book. By addressing the frequent neglect of remedies in human rights law, the book brings human rights closer to the reality of their frequent violation, especially for less advantaged people. It also examines the inter-relations and cross-fertilization of remedies in domestic and international law. It reveals remedies as a fruitful site for comparative law. This includes American remedial exceptionalism and differences between regional supra-national human rights courts. This Chapter highlights the book’s development of an overarching conceptual structure for remedies. Substantively, the book argues that familiar proportionality principles can improve remedial decision-making and make it more transparent. It also outlines similarities between South African engagement orders and the duty to consult Indigenous peoples. In both cases, engagement can result in consensual agreements, but also can limit rights. The two-track approach recognizes that remedies should compensate for past harms and prevent immediate irreparable harms, but also that they should prevent repetitive violations in the future. Individual remedies can recognize remedial failure and start another cycle of two-track individual and systemic remedies.
Part I examines common issues in remedies including their dual compensatory and preventive goals pursued through the two-track approach. Part II discusses the legal process and dialogic methodology used throughout the book. With reference to scholarship by Edwin Borchard and Abram Chayes, Part III justifies the decision to examine remedies in both supra-national and national human rights. Part IV examines the relation between rights and remedies including remedial deterrence where judges do not find violations because of concerns about excessive remedies. Part V examines textual sources for remedies in international and select domestic human rights contexts. It concludes that while some texts such as the European Convention on Human Rights may restrict some remedies, vague admonitions for the need for effective and appropriate remedies do not assist remedial decision-making. Distinctions between strong and rule-based exercises of remedial discretion are examined in Part VI where a principled approach is defended. The ability of proportionality principles to make remedial decision-making more disciplined and transparent is discussed in Part VII. The remedial principles of respecting subsidiarity in international law and the separation of powers are examined in Part VIII with an emphasis on the flexible and dialogic nature of these principles.
Remedies in the criminal process are the most frequently awarded remedies. Part I outlines existing practices in international and select domestic courts. International criminal courts have more experience using alternatives to stays of proceedings or exclusion of evidence by awarding sentence reductions or damage awards, including for crime victims. Domestic courts often balance competing interests before ordering stays or excluding evidence but often not in a transparent or disciplined manner. Part II suggests that rather than relying on vague concepts of judicial integrity, courts should require the state to justify restrictions on remedies through proportionality reasoning. This should be based on legitimate state objectives, not including the seriousness of the offence charged but that does include the seriousness of the violation. Part III applies the two-track approach and argues that courts, subject to proportionality constraints, should focus on compensating for violations. This make sense of individualistic standing and causation requirements. Individual and systemic tracks are not watertight compartments. The court should consider whether the state has responded reasonably to the violation, including with respect to police training and discipline. Domestic courts should be more attentive to repetitive violations and the need to respond with cycles of individual and systemic remedies.
This chapter examines declarations and injunctions in complex cases involving institutions that violate human rights. Part I examines American and Indian public law litigation suggesting that in many cases, courts focus only on systemic remedies whereas supra-national regional human rights courts often combine both individual and systemic remedies. Part II argues that courts can deal with complex cases in a manner consistent with the separation of powers if they provide individual remedies while being more cautious and dialogic with respect to systemic remedies. Negotiation, mediation and broad public participation can help resolve the complexities of polycentric issues. Part III argues that a new remedy called the “declaration plus” allows courts to avoid premature use of detailed injunctions enforceable through contempt while still retaining jurisdiction. A few Canadian cases and supra-national courts follow the declaration plus model. Part IV argues that the two-track approach allows courts to achieve some remedial success by ordering individual remedies while still retaining jurisdiction and engaging in the difficult project of systemic reform. Domestic courts should be more willing to retain jurisdiction, order individual remedies and re-evaluate their approach when systemic reforms fail to prevent violations.