David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an "effective remedy." International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for the violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This Article illustrates these "remedial deterrence" effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia - two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court's particular objectives and constraints.Although some degree of remedial deterrence is inevitable and legitimate, extreme remedial-cost pressures - like those often present in international criminal proceedings - result in severe doctrinal distortions that subvert the purpose of international courts' strong remedial rules. Because victims cannot be granted lesser remedies, they often receive no remedy at all. This overkill effect is magnified because the doctrinal distortions spill over to other cases lacking similar remedial costs and to domestic courts and other actors that follow international judicial precedent, even though they do not share the same institutional constraints. To mitigate these consequences, this Article makes two sets of recommendations. First, international courts' structures and procedures should be designed to avoid excessive remedial deterrence pressures. This Article offers specific proposals for international criminal tribunals. Second, international courts should modify their approach to the effective remedy requirement, allowing some degree of equitable balancing of interests. Such an approach would promote judicial candor and enable courts to avoid untenable remedial costs without unduly distorting other doctrines.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Douwe Korff, The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights.
Aukje A. H. Van Hoek, Transnational Corporate Social Responsibility: Some Issues with Regard to the Liability of European Corporations for Labour Law Infringements in the Countries of Establishment of Their Suppliers.
Allen Buchanan (1997). Theories of Secession. Philosophy and Public Affairs 26 (1):31–61.
Daphna Kapeliuk, The Limits of Judicial Discretion: Emotive Dispositions of Israeli Courts in Implementing the New York Convention.
Larry May (2010). Habeas Corpus as Jus Cogens in International Law. Criminal Law and Philosophy 4 (3):249-265.
Juliet M. Moringiello, Seizing Domain Names to Enforce Judgments: Looking Back to Look to the Future.
Sorry, there are not enough data points to plot this chart.
Added to index2009-01-28
Total downloads1 ( #608,104 of 1,699,588 )
Recent downloads (6 months)1 ( #362,609 of 1,699,588 )
How can I increase my downloads?