Edited by Mauro Bussani and Anthony J. Sebok
Chapter 4: Compensation at the intersection of tort law and international human rights law
This chapter examines the relationship between international human rights law and domestic tort law. Relying on financial compensation as a form of reparation, the chapter describes the relation between (domestic) tort law and (international) human rights law as one of connection and dependency. Human rights abuses are seldom redressed before domestic courts. Yet litigation can move from the domestic to international (and mostly) regional fora where the former does not provide the victim with adequate remedies. The investigation explores whether and to what extent international human rights law provides for compensation as a remedy for human rights abuses before regional human rights courts. Indeed, the right to equal and effective access to justice enshrined in human rights treaties would be deprived of any effect where it is not complemented with its corollary, that is the right to adequate, effective and prompt reparation for harm suffered. The reparation is intended to mitigate or erase the consequences of the tortious behaviour in order to re-establish the situation which would have existed had the wrongful conduct not been perpetrated. Among the different forms of reparation (restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition), this chapter explores how compensation is articulated under international human rights law according to tort law-based configurations, with specific regard to the three regional human rights systems. Reparation of damages is a shared principle within the three enforcement mechanisms, which provide for compensation variously. The European Convention on Human Rights grants the right to effective remedy under Article 13 and authorises the European Court of Human Rights to grant partial financial compensation where the domestic legislation of the concerned member state allows for it under Article 41. The Inter-American and African regimes incorporate a more specific focus on compensation. Article 63(1) of the American Convention on Human Rights recognises fair compensation to the injured parties. Equally, Article 27(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights stipulates that the Court shall issue specific orders to remedy the infringement, among which the payment of fair compensation. The paper concludes that regional human rights courts can be used as compensatory instruments, and therefore perceived as tort law devices. The domestic enforcement of regional courts’ decisions remains nevertheless essential to the award of compensation and the effective realisation of individuals’ right to reparation.
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