The Right to an Effective Remedy: Balancing Realism and Aspiration

Chapter 25
The Right to an Effective Remedy: Balancing Realism and Aspiration

Sonja B. Starr

1. Introduction

Of all the fundamental principles set forth in the UDHR,1 few have been so transformed over the ensuing six decades as Article 8’s ‘right to an effective remedy’. During the drafting of the UDHR, the provision on remedies appears to have been essentially an afterthought.2 Indeed, for decades thereafter, remedies did not occupy a prominent role in human rights discourse, and the content of the right to a remedy was little developed.3 That has changed. The international human rights community has successfully pushed for creation of international remedial mechanisms, and international case-law and soft-law instruments have begun to establish principles governing reparations. This chapter reviews those developments and assesses the current state of the law of remedies.

The topic of remedies in human rights law vastly exceeds the scope of this short chapter. Following an initial, brief historical overview, the remainder of the chapter is therefore, by necessity, confined in several significant respects. First, the right to an effective remedy encompasses both a procedural component concerning the right to raise human rights concerns before courts and a substantive component concerning the actual relief to which the victim is entitled.4 This chapter focuses only on the substantive aspect, sometimes referred to as the law of reparations. Second, this chapter focuses heavily on the decisions of international courts, rather than on domestic court decisions or voluntary governmental decisions to offer reparations. Although domestic actors are the most important frontline implementers of international human rights law,5 international judicial opinion is likely to influence those actors’ understanding of remedial requirements, making the international case law a logical starting point.6 Third, the chapter does not focus specifically on the special problems posed by reparations in the context of political transitions or reparations for historical injustices inflicted during past generations. Instead, it aims to identify remedial principles of more general application.

Sections 2 and 3 of this chapter briefly trace the evolution of the individual right to an effective remedy, and identify major types of remedies granted by international courts in human rights cases. Section 4 discusses the corrective, expressive, structural, and deterrent purposes of remedies and the effectiveness of current remedial practice in accomplishing them. Section 5 argues that human rights law, committed in theory to the ‘full remedy’ ideal but in practice often unable to realize it, is in need of a coherent set of principles governing the permissibility of remedial shortfall and the choice among ‘second-best’ remedies in situations involving strong competing interests. Concluding observations are made in Section 6.

2. The Right to an Effective Remedy: A Brief History

International law has long recognized the principle that violations of international obligations generate an obligation to make reparation. This basic principle – ubi ius, ibi remedium, or ‘where there is a right, there is a remedy’ – is firmly grounded in domestic law in both common-law and civil-law countries.7 Prior to the post-war human rights movement, it was already well ingrained in the law of state responsibility. The classic formulation comes from the decision of the Permanent Court of International Justice (PCIJ) in 1928 in the Chorzów Factory Case: ‘[I]t is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.’8 The court further specified, in ‘[o]ne of the most oft-quoted passages in international law’:9

The essential principle … is that reparation must, as far as possible, wipe out all consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. [It must consist of r]estitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear.10

I refer to this principle as the ‘full remedy rule’, in that it permits no avoidable remedial shortfall: whatever damages cannot be corrected through restitution must, if at all possible, otherwise be fully compensated. The principle has repeatedly been reiterated by the International Court of Justice (ICJ),11 and remains ‘the cornerstone of international claims for reparations, whether presented by states or other litigants’.12 For instance, the International Law Commission’s recent draft Articles on State Responsibility likewise require violators – in addition to ceasing the offending conduct13 – to ‘make full reparation’ for ‘any damage, whether material or moral’.14

Nonetheless, it was not until recent decades that the right to an individual remedy assumed a significant place in international human rights law. As noted above, this right was peripheral in the negotiations over the UDHR, with the proposal to add Article 8 only being introduced very late in the process. Article 8 occasioned little debate, however, suggesting that delegates considered its basic principle uncontroversial. This principle was understood as being procedural – it was a right of access to the courts, intended to curtail executive or legislative abuses of power.15 Like other aspects of the UDHR, Article 8 emerged in part as a reaction to the experience of Nazi Germany, which had shown the dangers of unchecked power in the political branches.16 It was also grounded in the Latin American concept of amparo (a judicial writ protecting individual rights) and in the US concepts of habeas corpus (protecting detainees’ access to courts) and judicial review.17 Article 8 thus specified a right to a judicial remedy, whereas subsequent treaties allowed decisions by other kinds of neutral adjudicators. Article 8 did not purport to specify types of substantive reparation.

Following the UDHR came a series of binding human rights treaties, each containing provisions establishing an individual right to an effective remedy.18 These provisions directly govern remedies provided by national authorities, although they are sometimes invoked to support international courts’ remedial decisions.19 The treaties establishing the regional human rights courts in Europe, the Americas, and Africa also contain provisions specifically authorizing international judicial remedies.20 None of these provisions offers much detailed guidance as to specific forms of reparation.

Indeed, the substantive aspect of the international right to a remedy remained largely undeveloped for decades, as international jurisprudence and scholarship focused principally on the elaboration of primary rules of state conduct.21 The 1980s and 1990s, however, saw a shift in the focus of the human rights movement towards enforcement, driven by the ever-starker disparity between the ambitious rhetoric of human rights instruments and the reality of widespread violation. During this period, a number of developments significantly advanced the substantive international law of remedies.

The first was the creation of several influential soft-law documents concerning remedies. The first of these was the 1985 Basic Principles on Justice for Victims of Crime and Abuse of Power,22 which were ‘founded, in part, on Article 8 of the Universal Declaration’ and were ‘the first international instrument to articulate victims’ right to access justice and obtain reparation for their injuries’.23 Subsequently, following an extensive drafting process led by Special Rapporteurs Theo Van Boven and Cherif Bassiouni, the United Nations (UN) Human Rights Commission produced a set of Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law.24 The Principles are widely seen as fairly authoritative,25 and set forth a right of reparation for human rights violations ‘proportional to the gravity of the violations and the harms’.26 This right includes restoration, so far as possible, of the status quo ante, and compensation for all damages.27 Most recently, the UN Human Rights Committee issued a general comment affirming the individual right to a remedy and identifying various appropriate forms of reparation.28

Second, human rights advocates also began to bring domestic litigation grounded in innovative international law-based theories, and the resulting judgements helped to confirm the principle that victims of human rights violations are entitled to remedies. The seminal case was Filartiga v Peña-Irala, which was decided in a US court in 1980.29 In Europe, many states have passed legislation allowing causes of action for violations of the European Convention.30 Elsewhere, while domestic statutes allowing civil claims specifically for international human rights violations remain fairly rare, many states have other provisions not linked to international law specifically that can be invoked in human rights cases.31 In some civil law countries, the partie civile system has also allowed victims to initiate criminal proceedings against human rights abusers and obtain reparations in the process.32

Third, major political transitions and civil conflicts throughout the world presented the question of how a post-transition or post-conflict government should confront past abuses. Among other approaches, a number of transitional states established claims commissions or other domestic reparations schemes designed to provide compensation or other assistance to individual victims and communities.33

Fourth, the 1980s and 1990s saw the growth of the historical reparations movement as well as a trend toward voluntary governmental apologies and sometimes restitution for both recent and historical wrongs.34 These have included, for instance, reparations by Swiss banks and the German government for stolen property and coerced labour during the Holocaust,35 US reparations for internment of Japanese-Americans,36 and official apologies for abuses ranging from Japan’s sexual enslavement of ‘comfort women’ to the US invasion of Hawaii.37 Many of these developments were grounded more in moral or political claims than in clearly defined legal entitlements. Still, they supported the growing consensus that victims of human rights violations are entitled to symbolic and material reparation.

Fifth, in the late 1980s, the Inter-American Court of Human Rights (IACtHR) began to exercise its contentious jurisdiction. From the beginning, rather than deferring to state enforcement decisions as the European Court of Human Rights (ECtHR) did, it issued detailed remedial orders each time it found violations of the American Convention. The IACtHR has held that the remedial provision of its charter codifies the Chorzów Factory full-remedy rule.38 As discussed further in the next section, the court has over time clearly established itself as the leader among international bodies in the development of creative, ambitious remedies.

Sixth, far more slowly, the ECtHR has begun to develop a somewhat more assertive law of remedies. The court’s traditional practice has been to remand cases to national authorities for the adoption of an effective remedy. In doing so, the court invokes the full-remedy rule, admonishing the state party that the remedy must ‘restore as far as possible the situation existing before the breach’.39 Where domestic law does not provide for a full remedy, Article 41 provides that the court shall make up the difference by ordering ‘just satisfaction’.40 The court has increasingly asserted this power, particularly since its major reorganization in 1998.

Seventh, the UN Human Rights Committee has increasingly issued, along with its findings concerning violations of the International Covenant on Civil and Political Rights (ICCPR),41 strongly worded statements concerning the state party’s obligation to provide an effective remedy and identifying specific remedies that would suffice. It then demands follow-up reports concerning the state’s provision of remedies. Although the committee lacks the power to make binding orders, such statements point out existing obligations of international law and thus may be understood as something more than mere policy recommendations.42

Eighth, a more recent major development has been the establishment of the International Criminal Court (ICC) and its innovative victim reparations mechanisms. The ICC statute allows victims to receive reparations through a trust fund, which comes ultimately from two sources: seizures of perpetrators’ assets43 and supplementary contributions from states parties.44 The ICC is just beginning its work and has not yet considered any victim reparations claims. Still, it is reasonable to expect it to contribute substantially to the future development of the substantive law of remedies.

Finally, the newest addition to the international remedial landscape is the nascent African regional human rights court, which is now in the process of being combined with the African Court of Justice and has not yet started hearing cases. The court will potentially also be an important new contributor to the law of remedies.

Meanwhile, human rights scholars have generally embraced the Chorzów Factory principles and have pushed for the development of stronger judicial remedies for rights violations.45 In short, scholars and courts generally agree that victims of human rights violations have a right to an effective remedy that makes them whole for their injuries. As the following sections will illustrate, however, the actual remedies that courts order do not always effectively vindicate that principle.

3. Types of Remedies in International Courts

This section provides an overview of a number of kinds of reparations often ordered by international courts, including restitution, compensation, declaratory judgements, injunctions ordering structural or legislative reform, symbolic satisfaction including apologies, information, and collective assistance to victimized groups. In addition, international courts generally order states to cease ongoing violations – such orders are not included here because they are not truly remedial, but simply enforce the state’s basic duty to respect human rights.

3.1 Restitution

Although compensation is much more widely granted, international courts uniformly assert that the preferred remedy for human rights violations is restitutio in integrum. This concept (often just called ‘restitution’) refers to specific relief designed actually to restore the victim as closely as possible to the position he or she would have occupied without the violation, rather than merely figuratively ‘making her whole’ through compensation. Human rights cases often involve irreversible harm, making full restitution unattainable. Still, some form of partial restitution can often be accomplished. For instance, stolen land or cultural property can be returned, or parents wrongfully denied access to their children can be provided access. Medical and psychological injuries can be partially alleviated by ordering appropriate health care.46 The IACtHR has recognized interference with a victim’s ‘life plan’ as a cognizable injury, and has accordingly required the state to provide victims and family members with special scholarships so as to help them put their lives back on track.47

Restitution can also include remedies granted to enforce the procedural rights of criminal defendants, such as vacatur of unlawfully obtained conviction and granting of retrials. The regional human rights courts occasionally order such remedies.48 In their procedural case law, international criminal tribunals have likewise invoked the right to an effective remedy that corrects the effects of a breach.49 In addition, the UN Human Rights Committee has consistently held that commutation of a death sentence is an essential remedy in any capital case involving violations of the ICCPR.50

The ECtHR has often stated that restitution is the preferred remedy in principle, but it virtually never orders it, as it has repeatedly held that it lacks the authority to do so. Rather, where restitution appears appropriate, the court simply finds a violation and leaves it to the state party to develop an appropriate remedy under the supervision of the Committee of Ministers.51 Sometimes the court suggests specific remedies;52 occasionally, it suggests that only one available remedy would be adequate.53 Even then, though, the court generally does not actually order that remedy – although there are rare exceptions. The court, for instance, recently ordered the release of a seriously ill, pretrial detainee who had been detained without sufficient cause and deprived of necessary medical treatment.54 However, this order might simply be understood as requiring cessation of ongoing violations, rather than restitution. The text of Article 41 of the European Convention, which refers to ‘just satisfaction’, offers no clear basis for the court’s repeated assertion that it lacks the power to order remedies other than compensation. Indeed, in a dissent from the Grand Chamber’s recent decision in Salduz v Turkey, several judges recently argued that the assertion is unfounded. They argued that tribunals have the inherent authority to fashion remedies, that the European Convention does not confine the court’s remedial authority to compensation, and that it should thus order restitution, the preferred form of compensation for international wrongs, when possible.55 The court’s refusal to order restitution is better explained by political or institutional concerns than by textual restrictions: the court considers itself relatively ill-equipped to fashion remedial orders to be implemented within domestic legal schemes, beyond simple orders of compensation. Its remedial deference is analogous to the ‘margin of appreciation’ the court gives to national authorities in the implementation of substantive convention rights – both reflect the subsidiarity principle.56

3.2 Compensation

Monetary compensation is, in practice, by far the most common international remedy for human rights violations. It is the only remedy, other than declaratory relief, regularly ordered by the ECtHR, and it is also regularly ordered by the IACtHR along with other remedies. Compensation is the remedy typically granted by domestic reparations schemes in transitional contexts, and by international claims commissions. It is also the primary remedy that the ICC statute contemplates being given to victims.

Like restitutio in integrum, compensation is designed to ‘make the victim whole’, and thus covers all meaningful harms that are not redressed through restitution. These include both pecuniary damages and non-pecuniary or ‘moral’ damages, such as pain and suffering, emotional distress, and, at the IACtHR, the previously discussed interruption of the victim’s ‘life plan’. Indeed, most of the damages in many cases are non-pecuniary.57 Interest and court costs may also be included. Still, compensation orders in international courts tend to be modest, a point discussed further in Section 4.1.

3.3 Declaratory Relief

In the human rights context, declaratory relief typically simply refers to the court’s finding that a violation was committed, and is thus provided in every case in which the applicant prevails. This kind of declaration is distinct from the familiar uses of declaratory remedies in domestic courts, which are generally forward-looking and are used to clarify the parties’ ongoing legal rights. Mere findings of liability, without more, provide no material benefit to the victim; as remedies, they are purely symbolic.

Still, the ECtHR and IACtHR both have repeatedly held that such findings count as ‘remedies’ for non-pecuniary injuries. In practice, the IACtHR always also provides other remedies58 – but the ECtHR sometimes does not. In Golder v United Kingdom in 1975, the court held that mere declaratory relief sufficed as ‘adequate just satisfaction’.59 The court has since followed Golder a number of times (albeit inconsistently), often over vociferous dissents.60

3.4 Structural Injunctions and Legislative Reforms

Beyond reparations benefiting the specific claimants, remedies in human rights cases can encompass broader measures designed to prevent similar violations in the future. The IACtHR is the unquestioned leader in devising such remedies. In cases involving individual murders or disappearances, for instance, it has ordered the creation of a nationwide genetic databank to identify missing persons,61 broad human rights education programmes for the armed forces and police,62 a comprehensive system of judicial records covering all government detainees,63 and a new legislative provision criminalizing enforced disappearance.64

3.5 Apology and Other Symbolic Measures

As noted above, official state apology has taken on increased prominence in recent decades – one recent volume on the subject was in fact entitled The Age of Apology.65 Most such apologies have been undertaken without legal coercion. Apologies, however, are a recognized form of ‘satisfaction’ under international law, and thus may be ordered by courts as a remedial measure.66 The IACtHR has sometimes required apologies, often in the course of ‘a public ceremony, where victims [also] officially receive awards of compensation’.67 ‘Satisfaction’ may also encompass other symbolic measures, and in this context, too, the IACtHR has adopted a variety of creative remedies. For instance, it has often required the state to name a public space or school after a victim, to create a special memorial, or to establish a scholarship fund in the victim’s name.68

3.6 Information and Investigation

Another type of remedial order concerns investigation of abuses and provision of information to victims and family members. The IACtHR has issued such orders in most of these cases.69 They are particularly important in cases involving enforced disappearance, where silence concerning victims’ fates exacerbates family members’ pain. The court typically orders the state party to provide all known information to family members, to conduct investigations to fill in gaps, and to return remains of deceased victims wherever possible. Moreover, the court often specifies that states must open criminal investigations into abuses and, as appropriate, prosecute individuals who are guilty of international crimes.70

3.7 Collective Remedies

Finally, where an individual applicant’s claim is part of a broader pattern of state abuse, international courts have sometimes ordered material measures designed to benefit a broader victimized community, such as the construction of roads and schools. The IACtHR has again taken the lead in this regard with a variety of different orders.71 In addition, the African Commission on Human and Peoples’ Rights, which lacks the authority to issue binding remedies, has recommended a number of collective remedies, such as the clean-up of environmental pollution on indigenous lands.72 These remedies, however, enforce provisions of the African Charter on Human and Peoples’ Rights (ACHPR) governing collective rights, which distinguish the charter from most other major human rights treaties. Collective remedies are also authorized by the rules of procedure and evidence of the ICC, reflecting ‘the fact that some crimes within the ICC statute have a collective or group element, such as the crime of genocide’.73

4. Purposes of Remedies

4.1 Corrective Justice

In international case law and human rights scholarship, the principal stated purpose of remedies is generally to require the perpetrator to make victims whole for their injuries. This objective, which is grounded in the idea of ‘corrective justice’, has a long pedigree in the law of state responsibility, in domestic public and private law, and in the case law of the human rights courts, as the discussion above illustrates. Corrective justice theories date back at least to the time of Aristotle, who described the objective as being to ‘make the parties equal’ by cancelling out the effects of a wrong.74 Human rights scholars and advocates have widely embraced such theories.75 Nonetheless, actual remedies in human rights cases often fail to vindicate corrective principles fully. In mass-abuse cases, it is commonplace to note that the Chorzów principle is merely an unrealizable ideal – full compensation for all victims, especially in poor countries, is a practical impossibility.76 But remedies often fall short even in smaller-scale cases. In particular, the compensation orders entered by the ECtHR, discussed in Section 2.2, are often so minimal that it is hard to conceive of them, realistically, as making the victim whole. Recently, for instance, the ECtHR found Turkey responsible for detaining an applicant for an excessive time (seven years) pending criminal proceedings, without providing a way to challenge his detention; during these years, the applicant was repeatedly beaten and subjected to other conduct violating the convention’s prohibition on ‘inhuman or degrading treatment’. The court awarded the applicant 17,500 euros.77 In another recent case, the court awarded a widow 20,000 euros for the death of her husband, which resulted from the Polish authorities’ refusal to provide adequate medical care during his pre-trial detention.78 Both these amounts seem to understate the injury suffered. These were large awards by European Court standards, however – compensation for less egregious injuries tends to be very modest indeed.

Even more dubious than these small awards, from a corrective perspective, is the ECtHR’s Golder line of precedent, which holds that declaratory relief alone can amount to an adequate remedy for non-pecuniary injuries. The court has consistently and appropriately recognized that non-pecuniary injuries are often the central part of the harm suffered in human rights cases. This recognition makes the Golder approach incomprehensible from a corrective justice perspective. If significant harm is done, then corrective justice requires the perpetrator