A Theoretical and Practical Analysis
Chapter 8: Remedies and reparations
As regards remedies and reparations, it is first necessary to make a distinction between a situation where an international court or tribunal has found a violation of treaty-based rights of an individual or legal person and a situation where a domestic court has established such a breach, for example on behalf of executive authorities or the lower courts. This chapter on remedies and reparations is limited to the latter. This is an important element in enforcing such rights on the domestic level. Different types of remedies or reparations are possible, both general and individual. If a breach is rooted in flawed domestic legislation, a general remedy would be an amendment to the legislation to prevent similar violations in the future. A more individualised remedy is a ‘dis-application’ of national law and the application of the international rule instead and annulment of an executive decision. Yet another common remedy is a compensation for those suffering from the breach of a treaty obligation. There are also other remedies, as further described below. A comparative study has shown that it is quite common that domestic courts enforce treaty-based rights on behalf of private parties. In addition, there is a trend in some countries to move in the direction of judicial enforcement of such rights. Such remedies show that whether or not domestic courts are willing or able to apply international law (incorporated or unincorporated) can have practical consequences.
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