5 - Damages

Summary

This Chapter examines the award of damages in international and domestic human rights law. Part I outlines current practices of awarding damages, with an emphasis on their often modest nature and the frequent use of qualified immunities that require proof of fault in addition to a human right’s violation. Part II will argue that international public law principles of state responsibility provide a sound basis for damage awards that is superior to reliance on private law principles – even those based on intentional torts. Public law principles recognize the equality of all rights holders and resists legislative limitations on damage awards. They also prioritize restitution, cessation and non-repetition of the violation. Part III argues that proportionality principles provide a better means to recognize legitimate interests that may be harmed by damage awards than would use of qualified or absolute immunities. Part IV applies the two-track approach to damages, suggesting that while they are primarily a first-track compensatory remedy, aggravated damages and other remedies can be justified if the state has not responded reasonably to prevent repetition of the violation. It concludes by demonstrating that damages also play an important role in responding to remedial failure and triggering cycles of remedies.