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Reforms of Domestic Law as a Remedy in Human Rights Adjudication

About the Project:

Some of the most contentious cases of human rights courts relate to instances in which they ordered the respondent state to amend its domestic legislation. This type of remedy, developed through judicial practice in each of the three regional human rights protection systems, is rather exceptional at the international level, due to its high degree of intrusiveness in the sovereignty of states. Issuing legislative remedies, human rights courts go beyond its traditional role of providing individual justice and adopt a constitutional function. Moreover, such remedies have a particularly ambivalent nature. On the one hand, they allow courts to tackle structural problems that can trigger many applications, and states to internalise regional human rights standards. Nevertheless, on the other hand they also generate resistance inside the respondent states and can affect the authority and legitimacy of the human rights courts, as such remedies usually have impact upon democratic decisions by domestic parliaments.  

It is thus necessary to establish under which circumstances this remedial practice should be adopted, and to assess if the current approach used by the respective regional human rights courts is appropriate in this regard. The dissertation will offer a systematic analysis of legislative remedies in human rights adjudication, comparing the remedial practice of the three regional human rights courts (i.e. the African Court of Human and Peoples Rights, the European Court of Human Rights and the Inter-American Court of Human Rights) in this respect. It will focus on whether legislative reforms are a consistent judicial remedy in human rights law, examining the type of cases in which this remedy is applied and its main features and problems.   

The first part will conceptually analyse legislative remedies and situate them in the remedial landscape of international law in general and human rights law in particular. In this regard, such remedies will be examined particularly in light of the constitutionalization of human rights law. The second part will then turn to the actual case law of the three regional human rights courts, adopting a comparative approach. After identifying the cases in which these courts have ordered sates to reform domestic legislation, this practice will be examined and compared, putting the focus on the type of cases and the way in which such orders are formulated. Finally, this remedial practice will be assessed, in particular with respect to its consistency, legitimacy and effectiveness.

PhD candidate