Remedies in international human rights law. 3rd rev. ed

513 Pages·2015·4.047 MB·English

by  Shelton, Dinah

REMEDIES IN INTERNATIONAL
HUMAN RIGHTS LAW

Remedies in
International Human
Rights Law
Third Edition
DINAH SHELTON
1
1
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© Dinah Shelton 2015
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First Edition published in 1999
Second Edition published in 2005
Third Edition published in 2015
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For Chris, Philip, and Elizabeth

Preface to the Third Edition
During the decade since the previous edition of this book appeared, attention to its sub-
ject matter has substantially increased and there have been further major developments
in the remedial jurisprudence of national and international tribunals. The United
Nations adopted now widely cited principles and guidelines on reparations for gross
and systematic violations of human rights and humanitarian law. The International
Criminal Court developed principles on victim reparations and made its first award.
The International Court of Justice issued its first judgment awarding compensation
for human rights violations. The International Law Commission moved beyond its
articles on the law of state responsibility, including the chapter on reparations, to take
up the issue of the responsibility of international organizations, completing its articles
in 2011. New petition procedures entered into force for United Nations human rights
treaty bodies. The UN Compensation Commission completed its work on redress for
injuries resulting from the 1991 Iraqi invasion of Kuwait, providing one model for
processing mass claims of violations, while the Ethiopia/Eritrea arbitration provided
another.
At the regional level, the Association of South-East Asian Nations created an inter-
governmental commission on human rights and adopted an ASEAN Declaration of
Human Rights. A few states parties to the 2004 Arab Charter on Human Rights together
with non-governmental organizations have held meetings to discuss the establishment
of an Arab Human Rights Court. The African Court of Human Rights issued its first
merits judgment.
National courts and some regional bodies increasingly hear claims for redress brought
not only by victims of recent human rights abuses but also by those who have suffered
from unrepaired historical injustices. Some national courts and regional tribunals have
made pioneering decisions on the justiciability and redress of violations of economic and
social rights. The case load of all human rights tribunals unceasingly increases, leading
to reforms in procedure such as the pilot judgment mechanism in the European Court
of Human Rights and changes in its jurisprudence. This third edition aims to take into
account these developments as well as the constructive remarks of readers and reviewers
of the earlier version.
The book originally emerged from discussions about human rights complaint pro-
cedures in courses and seminars over a number of years. Students often asked what
redress applicants can expect to receive as a result of presenting international claims.
The question became a research project that turned into a law review article that evolved
into the book. During the research and writing, many persons have assisted by provid-
ing materials, discussing issues and criticizing drafts. Without them the book could
not have been completed. Barbara Fontana did the first seminar paper and law review
comment on damages in the European human rights system in 1991. John Blakeley,
Joseph Broussard, Willem Gravett, and Paul Simo provided valuable student assistance
in preparing the first edition.
I am particularly grateful to those in the various international organizations who
answered endless questions and were patient and unstinting with their time. At the
Council of Europe, my thanks go to Hans Christian Kruger, Herbert Petzold, Michael
O’Boyle, Caroline Ravaud, and the judges of the European Court who discussed the
procedures and approaches to remedies in the European system. For the Inter-American
system, this edition benefits from my experience as a member of the Inter-American
viii Preface to the Third Edition
Commission on Human Rights between 2010 and 2014, with all the assistance pro-
vided by the staff of the Commission and the Court, as well as the invaluable knowledge
of the other Commissioners, judges, and representatives of petitioners and governments.
This period and position also brought regular meetings with members of other regional
bodies, including the African Commission and Court and the ASEAN AICHR. A spe-
cial debt is owed to the late Richard Lillich who insisted that I write this book, to
Alexandre Kiss who insisted that I finish it, to those at OUP, especially John Louth and
Merel Alstein, who made each edition happen, and to Nora Mgabathi, whose contribu-
tions to researching and editing this third edition were invaluable. Finally, I would like
to express gratitude to the American Society of International Law, which awarded the
first edition its Certificate of Merit in 2000.
Contents
Table of Authorities  xiii 
1 Introduction 1
1.1 Evolution of the Law of Remedies  2
1.2 The Innovations of Human Rights Law  7
PART I: THE CONCEPTUAL FRAMEWORK
2 Meanings and Purposes of Remedies 13
2.1 Preconditions to a Claim  13
2.1.1 Breach of an obligation  13
2.1.2 Resulting harm  14
2.1.3 Identified or identifiable injured parties  15
2.2 The Dual Meaning of Remedies  16
2.2.1 Access to justice  17
2.2.2 Substantive redress  18
2.3 The Purposes of Remedies  19
2.3.1 Compensatory or remedial justice  19
2.3.2 Condemnation or retribution  20
2.3.3 General and individual deterrence  22
2.3.4 Restorative or transitional justice  22
2.4 Economic Analysis of Remedies  27
2.5 Conclusions  30
3 Sources and General Content of the Law of Remedies 32
3.1 General International Law  32
3.1.1 State responsibility  32
3.1.2 The responsibility of international organizations  44
3.1.3 Remedies and business enterprises  51
3.2 Remedies in International Human Rights Instruments  58
3.2.1 The specificity of human rights law  59
3.2.2 Global treaties  63
3.2.3 Regional treaties  67
3.2.4 Declarations and other non-treaty texts  73
3.3 International Humanitarian Law  81
3.4 International Criminal Law  83
3.5 Conclusions  85
PART II: THE INSTITUTIONAL FRAMEWORK
4 Domestic Remedies 89
4.1 The Requirement to Exhaust Local Remedies  91