Rethinking 'Effective Remedies': Remedial Deterrence in International Courts
One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an "effective remedy." International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for the violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This Article illustrates these "remedial deterrence" effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia - two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court's particular objectives and constraints.
Starr, Sonja B. "Rethinking 'Effective Remedies': Remedial Deterrence in International Courts." New York University Law Review 83, no. 3 (2008): 693-768. (Work published when author not on Michigan Law faculty.)