14 Jan What Domestic Lawyers Can Learn from International Law About Remedies
[Kent Roach, CM, FRSC is Professor of Law at the University of Toronto and the author of 15 books including Remedies for Human Rights Violations: A Two-Track Approach to Supra-National and National Law (Cambridge: Cambridge University Press, 2021).]
I am grateful to Kristen Boon for her thoughtful engagement with my new book and the remedial dilemmas that she poses and examines. This confirms my sense as someone who has studied and litigated remedies for human rights violations in domestic law that domestic lawyers have much to learn from international lawyers about remedies.
As Professor Boon notes, my book does not explore the liability of international organizations for human rights violations, but my two-track approach to remedies can be applied in that important context. As Philip Alston noted in his important report criticizing the UN’s initial position that it would not provide remedies for cholera introduced in 2010 to Haiti by UN Peacekeepers, one way to deny the remedial imperative is “to invoke the need to move beyond the past and focus instead on the future. The past is seen neither as a vital element in devising effective policies for the future, nor as a dimension that needs to be understood if non-repetition is to be promoted.”
The first track of the two-track approach is rooted in the need to try to remedy the past in the form of specific compensatory measures. As Professor Alston notes, this approach builds on domestic private law concepts which stress the right to a remedy and were brought into Anglo-American public by Blackstone and Dicey. The predecessor to the International Court of Justice recognized in the Chorzow Factory case that remedies should “as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability have existed if the act had not been committed.” The Alston report also noted how civil society including scholars, advocacy groups and the media criticized the UN for its failure to provide the victims with compensatory remedies.
In a recent article that develops themes from my book, I argue that litigators seeking remedies for climate change make a mistake in cases where they do not request some compensation for some of the specific damages that individuals suffer. The payment of damages to individuals will not stop climate change. Nevertheless, they provide both courts and civil society an entry and a hold on grappling with larger problems. The same mistake of ignoring the individual can, as argued in my book, happen in litigation with respect to institutions and socio, economic and cultural rights. Hence, specific measures in supra-national law remain important and international law deserves more credit for being creative in conceiving of a broad range of means to achieve just satisfaction.
At the same time, non-repetition- a central concern of the second track- is connected with the first compensatory track through concerns about non-repetition of the violation. In the modern world, it is not enough simply for large bureaucracies or states to pay a tax for violating human rights. Those entities should also take reasonable steps to prevent the repetition of such wrongs or rights violations in the future. This concept in my view is more helpful than the domestic law concepts of deterrence. One of the reasons why American courts so infrequently award remedies for human rights violations is either because they doubt the deterrent effect of remedies on individual state actors or they fear over-deterrence. International law as Edwin Borchard argued over a 100 years ago appropriately focused on the entire state as the relevant actor.
This leads to another argument made by Professor Boon in her blog, namely that understandings of remedies need to account for the need to exhaust local remedies. In my book, I draw parallels between domestic concerns about the separation of powers and supra-national concerns about subsidiarity. As Professor Boon suggests, we should allow the local processes an initial opportunity to provide remedies. Only if individual or systemic remedies are inadequate should supra-national courts intervene. Her work suggests that those working on the ground in Haiti may have been in the best position to provide locally responsive remedies.
At the same time, supra-national courts should use their concepts to evaluate whether domestic remedies are inadequate. As argued in my book, these concepts as articulated in the UN Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights are richer than many domestic concepts.
For example, international law is concerned with various forms of satisfaction including apologies and acknowledgement of harm and truth beyond attempts at monetary compensation. In the Haiti case, Professor Alston criticized the UN for expressing “regret” and “moral responsibility” but not apologizing. Money matters, but so do words. International law replaces court and punishment and “bad apple” centred concepts of deterrence with more institutionally and ethically complex concept of non-repetition of harm.
Supra-national institutions can add value to remedial debates by examining the adequacy of remedies in a manner that reflects the methodology and values of international law. For example, Article 2(3)(b) of the International Covenant on Civil and Political Rights that remedies recognizes that any “competent authority provided by the legal system of the State” can provide remedies, including judicial, legislative and administrative authorities. Professor Boon’s own work makes the case that national militaries in some cases provide creative and ex gratia condolence payments that respect the cultures and laws of the particular country.
Kristen’s work points out that informal and voluntary remedies may be more promising in a cross-cultural context than legalized remedies. In settler societies, treaties signed between European and Indigenous people were our first remedies. They provide a basis for continued respectful cross-cultural reparation and reconciliation. As I argue in chapter 9 of my the book, specialized tribunals may be better at providing remedies that satisfy the aspiration of Article 40 of the UN Declaration on the Rights of Indigenous Peoples for bi-jural remedies that respect both Indigenous laws and international human rights.
The Avena case which ended in the execution despite interim measures ordered by the International Court reveals the reality of remedial failure. One of the many reasons why I admire the remedial approach of supra-national adjudicators is that they are more willing to risk and to admit remedial failure that domestic courts.
The executions in the Avena case stand for some as an indication of the weakness of supra-national law and an efficient breach of it. For me, however, recognizing remedial failure can be a strength. Violation of interim measures both crystallize and publicize the rights violation. It also sets the stage for iterative remedial cycles including compensation and less deferential systemic remedies designed to prevent the repetition of the violation.`