Damages and Human Rights

Winner of the 2018 Inner Temple New Authors Book Prize and the 2016 SLS Peter Birks Prize for Outstanding Legal Scholarship. Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as a field of great practical significance, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book s focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts. The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law. The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration. Winner of the 2018 Inner Temple New Authors Book Prize and the 2016 SLS Peter Birks Prize for Outstanding Legal Scholarship. Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as an important and practically significant field of law, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts. The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law. The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration. The book was the winner of the 2016 SLS Peter Birks Prize for Outstanding Legal Scholarship and the 2018 Inner Temple New Authors Book Prize. Damages For Breaches Of Human Rights Is Emerging As An Important And Practically Significant Field Of Law, Yet The Rules And Principles Governing Such Awards And Their Theoretical Foundations Remain Underexplored, While Courts Continue To Struggle To Articulate A Coherent Law Of Human Rights Damages. The Book's Focus Is English Law, But It Draws Heavily On Comparative Material From A Range Of Common Law Jurisdictions, As Well As The Jurisprudence Of International Courts. Introduction -- The Tort Framework -- A Tort-based Approach To Human Rights Damages -- The Public Law-private Law Distinction -- Human Rights Damages And Just Satisfaction : The Mirror Approach -- Interest-balancing Approaches -- Other Methods Of Limiting Human Rights Damages -- Conclusion. Jason Ne Varuhas. Based On The Author's Thesis (doctoral - University Of Cambridge, 2011) Issued Under Title: Damages For Breaches Of Human Rights : A Tort-based Approach. Includes Bibliographical References And Index. Foreword 6 Preface 8 Acknowledgements 12 Table of Contents 14 Table of Cases 22 Table of Legislation 46 Table of International Treaties and Conventions 52 1. Introduction 54 Part 1: A Tort-Based Approach to Damages for Human Rights Breaches 64 2. The Tort Framework 66 3. A Tort-Based Approach to Human Rights Damages 129 Part 2: Human Rights Damages and the Public Law–Private Law Distinction 218 4. The Public Law–Private Law Distinction 220 Part 3: Alternative Approaches to Damages for Human Rights Breaches 280 Introduction 281 5. Human Rights Damages and ‘Just Satisfaction’: The ‘Mirror’ Approach 288 6. Interest-Balancing Approaches 377 7. Other Methods of Limiting Human Rights Damages 479 8. Conclusion 523 Index 530 This book explores the theoretical foundations of human rights damages and examines when such damages ought to be awarded, how they ought to be assessed, and the range of damages that ought to be available to remedy a rights-breach.