The disappointing remedy? Damages as a remedy for violations of human rights

After initial optimism, damages have become a disappointing remedy for human rights violations in Canada, New Zealand, South Africa, the United Kingdom, and the United States. Part I of this article relates this disappointment to the modest nature of most awards and the continued impact of qualified and absolute immunities. Part II argues that the answer is not, as some have suggested, to return to tort principles but, rather, to look to public law principles, including international law principles of state responsibility. This allows damages to be placed in the perspective of the state’s obligations to comply with human rights and the availability of alternative and sometimes stronger remedies. A public law approach also allows principles of proportionality to discipline and structure the exercise of remedial discretion. Part III situates damages within a two-track approach to remedies in both domestic and supranational law. Under this approach, courts will play the dominant role in providing remedies including damages to recognize past violations but play a more dialogic role with respect to encouraging states to prevent similar violations in the future.