Private Law Theory

ABSTRACT
Since its inception, the human rights movement has concentrated on rights, whereas remedies have remained peripheral. Human rights conventions, courts, and nongovernmental organizations have theorized, analyzed, and sought to internationalize rights, but remedies have been treated as an afterthought. While the human rights movement has taken a key position in international law, the possibility of a ‘human remedies’ movement was never considered. In recent years, however, remedies and reparations have become the focus of a growing political and scholarly debate. Harm caused to civilians during armed conflicts, increasing environmental damage inflicted on vulnerable communities, and the expansion of qualified immunity doctrines preventing judicial remediation are only a few examples demonstrating different facets of the wide gap between proclaimed rights and the remedies for their violation. This Article suggests that this remedial deficit is a result of conceptual and institutional designs we, as societies, have made.

Over the past two decades, remedies have begun to claim their place in both theory and practice in international human rights law. Nevertheless, the ‘rights prism’ remains, limiting our thinking about remedial strategies that do not speak in them ‘language of rights’. The right to a remedy, construed as the right to seek remedies, depends on proving wrongdoing, often through a judicial procedure. The notion that a responsibility to remediate can arise due to an injury caused by a lawful act under a no-fault regime, regardless of proving a violation of rights, remains largely unexplored in international human rights law. In stark contrast, the tort law of domestic legal systems has developed in the opposite direction by expanding states’ obligations to remediate and relaxing the adjudication process for specific types of injuries through various reparation schemes.

Framing the remedial process as contingent on the adjudication of a rights claim and its alleged violation has contributed greatly to the internalization and internationalization of rights. But when harms continue, and right-bearers are forced to internalize their costs in the absence of an adequate remedial regime, cumulative damages are obscured, and a right becomes a rather vague and loose concept. This Article reassesses the ‘rights prism’ remedial approach and explores how a no-fault regime can narrow the right-remedy gap by balancing the victim’s right to a remedy with the state’s responsibility to remediate.

Gal, Adi, Human Remedies (June 1, 2024).