14 Jan Remedies in International Law: A Case of Inspiration
[Kristen Boon is a Professor at Seton Hall Law School and a Visiting Academic at Global Affairs Canada. All views expressed are those of the author.]
Kent Roach’s new book Remedies for Human Rights Violations: A Two-Track Approach to Supra-National and National Law celebrates the creativity of international law with regards to remedies. He writes: “a central theme of this book is that domestic human rights lawyers can learn much about remedies from international law.” (5) As international law is sometimes viewed as a siloed discipline by domestic lawyers, Kent’s keen engagement is exciting.
Drawing on decisions and strategies in international human rights litigation he proposes a two‑track process: “in track 1 courts should play the dominant role in providing meaningful remedies for the litigant. On the second systemic track, they should engage dialogically with the state to prevent similar rights violations in the future.” (6). He adopts Dinah Shelton’s definition of remedies as “the range of measures that may be taken in response to an actual or threatened violation of human rights.” (11)
I find Kent’s analysis of the scope of international remedies to be creative and highly persuasive. He highlights the way international courts work between national and supra-national realms to navigate remedies in situations where monetary compensation is often limited. He offers the topic of diplomatic protection as an example of this interaction. Diplomatic protection is the procedure employed by the state of nationality of an injured person to secure protection of that person and to obtain reparation for the internationally wrongful act. This process operates at the state-to-state level, in that it requires states to bring the case forward in the name of their national. However, as the ILC’s 2006 commentaries Arts. 14 and 15 provide, the exhaustion of local remedies, and as such, individuals must go through national processes first, unless an exception applies (ie, domestic remedies are ineffective, inadequate, unavailable). Similar to the principle of complementarity in international criminal law, exhaustion of local remedies is meant to give deference to the place where the dispute arises, on the basis that it is often most efficient to resolve disputes where they occur, and this is a prerogative of sovereign states. I do find it interesting however, that in most state-to-state claims, including diplomatic protection cases, compensation is the exception rather than the norm. In fact, the case of Guinea v. DRC (ICJ) was only the second time the ICJ awarded compensation. Because of the state to state aspect, it is also important to note the country of nationality has no obligation to recompense the individual, because the process of novation means the claim is brought in the state’s name.
Another case that illustrates Kent’s thesis that international courts engage in dialogic approaches to remedies, albeit from a more reluctant participant in the international system, is the US’ reaction to the ICJ’s Avena case. In this famous 1996 decision involving the Vienna Convention on Consular Relations, the ICJ both held that Art. 36 of the Convention created individual rights, and that the US was under an obligation to review and reconsider the national’s conviction and sentence, without resort to procedural default doctrines. In a complicated series of domestic developments that involved a presidential statement, a US Supreme Court decision, and the ultimate execution of the national involved, the US chose not to implement the ICJ’s decision. However, the ICJ was clear that how compliance is achieved is a matter of national law.
The two-track approach attempts to repair past violations with attempts to prevent future and repetitive violations. Kent emphasizes the importance of proportionality in the analysis, which is important, given the baseline approach of full reparation (art. 31). I particularly like his discussion of remedies of social and economic rights across different court systems. It raises the issue of what remedies are appropriate in a cross-cultural context, a topic I have explored in the context of national militaries where I argue they have been remarkably creative and provide a model to draw from going forward.
Although this is outside the scope of Kent’s book, claims against international organizations have long been an area in which it is difficult to ensure an effective remedy. For example, in the Haiti Cholera Case, in which UN peacekeepers from Nepal were found to have introduced cholera into the main tributary of Haiti, the UN itself developed a remedial scheme because immunities prevented the case from proceeding in US courts. However, the UN’s approach was criticized. First, the UN was very careful about terminology, avoiding the words “compensation” or “responsibility” for fear of setting precedent, and focusing instead on apologies. Interestingly the original package proposed did follow the two track approach: about $200 million of the promised package was meant for “material assistance” to families and communities that were most affected (although developing a credible list of victims was always a challenge, so there were few individualized claims), while the other $200 million was meant to address community based problems including cholera eradication and sanitation.” However, the UN ultimately paid very little because the funds were not raised. No individualized compensation was paid out, and last year, a group of experts called on the UN to fulfill a pledge to assist victims, noting their concern about the UN’s decision to help people affected by cholera through community assistance rather than direct support. They stated: “some victims prefer monetary payments, an option that was once on the table, but the UN has foreclosed that possibility seemingly without carrying out consultations or producing a detailed feasibility assessment,” and further: “compensation is ordinarily a central component of the right to an effective remedy, and development projects are simply not a replacement for reparations.” As Kent notes, there is a cost to abandoning traditional first-track “right to a remedy” reasoning. (119)
This is a wonderful, detailed, and engaging book that is well worth a read. Highly recommended, as is Kent’s recent companion article on remedies in climate change litigation.