Compensation at The Intersection of Tort Law and International Human Rights Law

4.
Compensation at the intersection of tort law

and international human rights law
Giovanna Gilleri
INTRODUCTION
In the previous edition of the present volume, the editors Mauro Bussani and Anthony Sebok
pointed out that legal systems shared ‘a common set of questions’ although their terminol-
ogy is different.1 The main question, drawn from James Gordley’s contribution to the same
volume, was: ‘what conduct by the defendant triggers liability, and for what grievances may
the plaintiff recover?’.2 This is a key and complex question to which tort law systems try to
answer, as the present volume and its previous edition show. In this chapter, I approach the
second part of the question – the plaintiff’s possibility to recover – from the perspective of the
relationship between tort law and international human rights law with regard to the right to
reparation, particularly compensation.
For human rights not to become empty letters, the respect and fulfilment of the right to
remedy is instrumental to the victims’ recovery from past violations. Human rights abuses
have found redress also before domestic courts.3 Yet litigation can move from the domestic
to regional forum where the former does not provide the victim with adequate remedies.
My aim is to explain how the two systems may interact providing specific means to address
and redress wrongful conducts constituting torts and human rights abuses. The comparison
between the concerned legal systems, and particularly their enforcement machineries, can be
conducted variously. One can draw a list of commonalities and tensions between tort law and
human rights law, by underscoring, for instance, the opposition tort law versus human rights
law conceived of as divergent, sometimes even opposite, systems. Mainstream literature has
focused predominately on ontological contrasts between inner features of tort law and human
rights law such as private versus public sphere; private-private versus private-public actors,
1
Mauro Bussani and Anthony James Sebok, ‘Introduction to Comparative Tort Law: Global
Perspectives’ in Mauro Bussani and Anthony James Sebok (eds), Comparative Tort Law: Global
Perspectives (1st ed., Edward Elgar Publishing 2015) 1.
2
James Gordley, ‘The Architecture of the Common and Civil Law of Torts: An Historical Survey’
in Anthony James Sebok and Mauro Bussani (eds), Comparative tort law: global perspectives (2015)
173.
3
On litigation between state and non-state actors, see the well-known South African case-law:
Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); Government of the Republic
of South Africa v Grootboom 2001 (1) SA 46 (CC); Minister of Health v Treatment Action Campaign
2002 (5) SA 721 (CC); on litigation between non-state actors under the US’ Alien Tort Claims Act
(‘ATCA’, 28 U.S.C. § 1350): inter alia, Filartiga v Pena-Irala 630 F.2d 876 (2d Cir. 1980); Sosa
v Alvarez-Machain 542 U.S. 692 (2004); as well as under both the ATCA and the Torture Victims
Protection Act (28 U.S.C. § 1350): inter alia, Yousuf v Samantar 560 U.S. 305 (2010); Wiwa v Royal
Dutch Petroleum, Wiwa v Anderson and Wiwa v Shell Petroleum Development Company 48 ILM 972
(S.D.N.Y. 2009); see below (n 14).
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64 Comparative tort law
that is private plaintiff-private defendant versus private applicant-public defendant. Other

divides concern the different nature of the harms involved, the number of victims,4 the nature
of sanctions (pecuniary, material, symbolic) and their objectives (retributive, deterrent, reha-
bilitative, restorative).5
However, commonly oppositions are only formal while substantial analogies make the two
systems closer than one might think. The topic would deserve a book on its own.6 Without
hijacking the scope of this examination, we can take the example of the inter-subjective dimen-
sion as it develops within both systems. In the realm of international treaties, international
human rights treaties enshrine the peculiarity that the agreement is concluded inter partes, but
has an impact on non-state parties.7 Among the latter there are individuals whose rights find
protection under human rights instruments and these instruments should provide adequate
remedy. The nature of the relationships established by human rights sources is multilateral and
multi-layered. Human rights treaties regulate not only vertical axes of rights claims (between
individuals and states) but also horizontal relations (between states, between individuals), as
well as multifaceted institutional interactions (between monitoring and enforcement bodies,
and states; between individuals and monitoring and enforcement bodies). Yet, international
human rights law has traditionally been seen as providing individuals with protection against
states’ violations. Only recently, interpretive developments have recognised that both state and
non-state actors can impact negatively on the enjoyment of human rights.8 With human rights
rules applying also to horizontal relationships, the inter-individual dimension becomes a site
of encounter between tort law and human rights law. The state can be considered responsible
not only by virtue of a specific connection with non-state actors concretely carrying out the
abuse, but also because of its failure to (meet its positive obligation to) prevent or redress
a wrongful conduct. The obligation to secure human rights belongs to states, who can be held
accountable for human rights violations. States have the positive obligation9 to ensure protec-
4
Jaime E Malamud‐Goti and Lucas Sebastián Grosman, ‘Reparations and Civil Litigation’ in Pablo
de Greiff (ed), The Handbook of Reparations (Oxford University Press 2006) 542, 551–552.
5
Robert Stevens, Torts and Rights (Oxford University Press 2007) 320–328.
6
This examination focuses on positive law, which tells us only part of the story of legal cultures:
in many cultures, unofficial mechanisms operate to enforce remedies; as Marta Infantino and Mauro
Bussani hold: ‘This is also why the set of rules, notions, and procedures that are produced by official
legal actors may only provide the starting point of research about the disputes managed by tort law mech-
anisms, and the ways in which these mechanisms actually work. The rest lies somewhere else, before
and beyond the facade of official rules and official adjudication mechanisms’: Mauro Bussani and Marta
Infantino, ‘Tort Law and Legal Cultures’ (2015) 63 American Journal of Comparative Law 77, 83, on
remedies, see 103–107.
7
Cf UN Human Rights Committee, ‘General Comment No 26: Continuity of Obligations’ (1997)
CCPR/C/21/Rev.1/Add.8/Rev.1 para 4.
8
David Weissbrodt mentions the example of transnational corporations as non-state actors per-
petrating human rights abuses, by ‘employing child labourers; discriminating against certain groups of
employees (such as union members and women); attempting to repress independent trade unions and
discouraging the right to bargain collectively; failing to provide safe and healthy working conditions;
and limiting the broad dissemination of appropriate technology and intellectual property; […] dump[ing]
toxic wastes, and their production processes [that] may have consequences for the lives and livelihoods
of those people’: David Weissbrodt, ‘Roles and Responsibilities of Non-State Actors’ in Dinah Shelton
(ed), The Oxford Handbook of International Human Rights Law (OUP, 2013) 726.
9
See, inter alia, Case relating to certain aspects of the laws on use of languages in education
in Belgium v Belgium ('Belgian Linguistic case) [1968] European Court of Human Rights 1474/62,

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Compensation at the intersection of tort law and international human rights law 65
tion of human rights in horizontal relations: this horizontal relation of human rights can be
relevant for private law.10 Non-state actors, such as transnational corporations, armed non-state
groups and other groups, can threaten the effective enjoyment of rights by committing human
rights abuses.11 States have an obligation to ensure that non-state actors respect the rights of
individuals in their territory.12 It is believed that international law increasingly places more
responsibilities directly on non-state entities, instead of relying on states to prevent human
rights abuses committed by private actors.13 This trend, however, is more theoretical than
actual. The existence of only some promising litigation in domestic courts against transna-
tional corporations is sufficient to warrant a certain caution in drawing general conclusions on
non-state actors’ accountability.14
Notwithstanding the value of a scrutinising exercise based on intra-system analogies and
oppositions, including horizontal and vertical relations between parties, another lens suits
better, operationally speaking, the nature of our enquiry. A ‘functionalist’ approach to tort law
and human rights law allows us to scrutinise how the two systems fulfil the task of protecting
individuals and restoring justice, rather than looking at the formal characteristics that the
systems share or do not share. This entails exploring whether and to what extent tort law and
human rights law communicate with each other, irrespective of whether this communication
is voluntary or involuntary – we all communicate more than what we intentionally want to
communicate, don’t we? A functionalist approach can help capture the common ‘project’
of human rights law and tort law, leaving aside any aspirational projection that each system
attracts and incorporates. The word ‘project’ clashes with the random, frequently non-rational
actions of wo/manhood since it evokes the outcomes that legal systems are supposed to nat-
1677/62, 1691/62,1769/63, 1994/63, 2126/64; Marckx v Belgium [1979] European Court of Human
Rights 6833/74; Airey v Ireland [1979] European Court of Human Rights 6289/73.
10
Stefan Somers, The European Convention on Human Rights as an Instrument of Tort Law
(Intersentia 2018) 3.
11
David Weissbrodt, ‘Non-State Entities and Human Rights within the Context of the Nation-State
in the 21 Century’ in Monique Castermans-Holleman, Fried van Hoof and Jacqueline Smith (eds), The
Role of the Nation-State in the 21st Century: Human Rights, International Organisations and Foreign
Policy (Kluwer, 1998) 194; see Arts 2(1), 5(1), International Covenant on Civil and Political Rights
(adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; Art 5, International
Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3
January 1976) 993 UNTS 3; Art 2(1)(d), International Convention on the Elimination of All Forms of
Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195;
Art 2(e), Convention on the Elimination of All Forms of Discrimination against Women [1249 UNTS
13]; Cees van Dam, ‘Tort Law and Human Rights: Brothers in Arms On the Role of Tort Law in the Area
of Business and Human Rights’ (2011) 2 Journal of European Tort Law 221; Andrew Clapham, Human
Rights Obligations of Non-State Actors (Oxford University Press 2006).
12
Cf Jane Wright, Tort Law and Human Rights (Hart Publishing 2017) 20–21.
13
Weissbrodt (n 8) 736; Nicola MCP Jägers, Corporate Human Rights Obligations: In Search of
Accountability (Intersentia 2002) ch 2.
14
Inter alia, Wiwa et al v Royal Dutch Petroleum et al (n 3), now blocked by US Supreme
Court’s ruling in Kiobel v Royal Dutch Petroleum Co [2013] 569 US 108; see, in contrast, the African
Commission on Human and Peoples’ Rights’ Communication No. 155/96, where the Commission was
incompetent to rule on the conduct of private companies: The Social and Economic Rights Action Center
for Economic and Social Rights v Nigeria [2001] African Commission on Human and Peoples Rights
Comm. No. 155/96; Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20; cf
Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises
donneuses d’ordre.

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urally realise. The term ‘function’, instead, relates more to the intricacies of processes than
their outcomes. Without being trapped in artificial conceptual acrobatics – ‘the description
of a function is already the mission statement of a project’, a critical reader might argue – all
this is to say: this chapter explores how the right to reparation is articulated under interna-
tional human rights law according to tort law-based configurations, with specific regard to
compensation under the three regional human rights systems. This functionalist premise
conceives tort law and human rights law as interacting regimes. This premise transcends the
divides of public-private domains of law, horizontal and vertical relations and national and
international normative systems. The two systems share a point of communication in the realm
of human rights enforcement. As is well-known, among the admissibility criteria of regional
human rights courts is the exhaustion of internal remedies.15 Regional courts are subsidiary to
national systems safeguarding human rights. The interrelation, as well as complementarity, of
the two regimes can be appreciated from at least two perspectives. First, where the case has
been decided at domestic level and remedies have been exhausted, individuals can bring an
application before the regional court where they find that their rights have been breached and
the local enforcement machinery has not (allegedly) secured them. Secondly, the last-resort
rule finds an exception where the domestic remedy is not considered adequate to punish and
redress violations. This occurs when the domestic system does not guarantee, in practice, the
right to an effective remedy. In these cases, for torts constituting also human rights violations,
supranational human rights courts can become an additional forum in which to litigate the tort.
Supranational courts can act as alternative tort law forums where the national system grants
only limited and/or inadequate financial compensation.16 For example, the European Court of
Human Rights has granted additional compensation in cases where it deemed insufficient the
compensation received in national procedures.17
Against this backdrop, this chapter unfolds as follows. Section 1 introduces a theory of
tort law and human rights, explaining their relationship and interactions. Section 2 outlines
the interpretative principles on the right to remedy under international law and international
human rights law. At the heart of the discussion are Sections 3.1, 3.2 and 3.3, addressing
compensation as a form of reparation in the Council of Europe’s, Inter-American and African
human rights systems respectively. The conclusion emphasises that regional human rights
courts can be used as compensatory instruments, perceived as tort law devices. The domestic
enforcement of regional courts’ decisions remains nevertheless essential to the award of com-
pensation and the effective realisation of individuals’ right to reparation.
15
Art 35(1), Convention for the Protection of Human Rights and Fundamental Freedoms (adopted
4 November 1950, entered into force 3 September 1953) ETS 005; Art 46(1)(a), American Convention
on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OASTS 36; Art 6(2),
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court
on Human and Peoples’ Rights (adopted 10 June 1998, entered into force 25 January 2004); Art 56(5),
African Charter on Human and Peoples’ Rights (adopted 27 June 1998, entered into force 21 October
1986) OAU Doc. CAB/LEG/67/3 rev. 5.
16
See below, Sect 3.1; Somers (n 10) 63.
17
See, inter alia, Schuler-Zgraggen and Wasserman v Switzerland [1995] European Court of Human
Rights 14518/89 [15]; Kormos v Slovakia [2011] European Court of Human Rights 46092/06 [109];
Ernestina Zullo v Italy [2006] European Court of Human Rights 64897/01 [142]; Khachiev and Akaieva
v Russia [2005] European Court of Human Rights 57942/00, 57945/00 [189, 193].

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1. A THEORETICAL SKETCH OF TORT LAW AND HUMAN

RIGHTS LAW
What is tort law made for? What is the purpose of human rights law? We can describe tort law
and human rights law in many ways, depending on the perspective we embrace. The teleolog-
ical approach to tort law and human rights law requires to ask – and possibly answer – ques-
tions such as these, and many others. This section describes the relation between (domestic)
tort law and (international) human rights law as one of connection and dependency. With this
interaction in mind, we then proceed to apply different models of justice to uncovering the
meaning and implications of various forms of reparation, particularly compensation.
1.1 A Legal Archipelago
To answer the questions above – what is tort law made for? What is the purpose of human
rights law? – at least two perspectives are possible. An internal perspective sees each of the
systems as autopoietic and operating for its own sake: like love, tort law and human rights law
have no goals, someone would say.18 Tort law is tort law, human rights law is human rights
law. From the internal point of view, each regime cannot be but autonomous. The autonomy
of a regime dictates also the autonomy of principles guiding the legal machinery, mainly
according to the principle of corrective justice for tort law.19 Courts should, in practice, rectify
the wrongdoing by extracting the ‘gain’ from the defendant and returning it to the claimant
(or obliging the former to erase the loss of the latter). This model of law of torts, based upon
bilateral relationship and correlational structure of damages, serves primarily to restore
interpersonal justice. As such, it is not concerned primarily with the community’s goals, it is
believed.20 The only aim of tort law is to be tort law.
Like lovers, however, tort law and human rights law cannot live their love (and, on the other
side of the coin, their hate) isolated one from each other. Despite this romantic introductory
note, this chapter is not a love story, a story of full harmony (or constant dissent). The second
perspective to the legal regimes, indeed, assumes an external eye to look at how different
systems interact. The debate is deeper and far more intricate than what follows. Space pre-
cludes anything resembling a thorough examination of the relationship between tort law and
human rights, which would require a deeper investigation of what we mean by, for example,
the concepts of human rights and tort law.21 This is just a sketch with operational value for the
purposes of what comes in the next sections. According to this second perspective, one regime
is hardly independent from the other given that its purpose can be detected only in relation
to the big picture of law as a whole. In a nutshell, the way in which tort law is implemented
should meet the rationale of human rights norms. Equally, international human rights law is
18
Ernest Joseph Weinrib, The Idea of Private Law (First edition, Oxford University Press 2012) 3.
19
Weinrib (n 18).
20
Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart Pub 2012) 2.
21
On the impact of the European Convention on Human Rights on tort law, see Wright (n 12); on the
relationship between tort law and human rights from a domestic perspective, relying on a case-by-case
analysis of the legal grounds, the premises and the extent of pecuniary compensation for the violations
of human rights in domestic legal systems, see Ewa Baginska, Damages for Violations of Human Rights:
A Comparative Study of Domestic Legal Systems (Springer 2015).

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implemented through national tort law systems.22 The corollary of this relational conception of
systems is that there is a legal reality outside each system that the latter should consider while
operating. The viewpoint that is external (human rights) for one system (tort law) is internal
for the other (human rights), and vice versa. This premise does not take into account legal hier-
archies, giving preference to one source over the other. Rather, it is about recognising, more
generally, that the existence of international human rights standards as an external scrutiniser
constitutes a necessary interlocutor for domestic tort law. If we then want also to address
hierarchies of sources of law, compliance of a tort rule is to be evaluated against human rights
standards. Nevertheless, demands of hierarchical compliance are only one aspect of the inter-
action of tort law and human rights law, based predominantly on positive conceptions of the
law.23 Tort law rules are versatile ‘human-rightsing’ devices: they can function as ‘vehicles’
to ensure human rights protection, and, at the same time, according to the above-mentioned
compliance-oriented model, they can be shaped to accommodate human rights obligations.24
International human rights law was not born and does not operate in a vacuum. It is not the
case, as we will see below, that most regimes of state liability for violations of international
human rights norms build on tort frameworks, which address ‘everywhere the same problems:
the foundation of liability, causation, justifications or excuses, and remoteness of damage’.25
This chapter explores the right to reparation in the specific form of compensation. Reparative
orders issued by international human rights courts constitute the bridge between the regime
of international human rights law and domestic tort law systems. Domestic compensatory
reparations respond to the logic of subsidiarity. Human rights protection starts ‘at home’ where
the state should secure compensation (or other forms of reparation) to the injured person. But
human rights protection does not end ‘at home’ since it encompasses internationally-derived
remedies.26 We will shortly discover that domestic tort principles on reparation play a guiding
role in providing individuals with human rights protection. Indeed, rules on damages for
human rights violations and abuses are based on general norms of state liability law on com-
pensation for damages caused by unlawful acts. For some, certain human rights enforcement
systems, such as the European Court of Human Right, have developed a compensatory prac-
tice which can be even described as tort law system: the Court uses a terminology different to
the vocabulary of domestic tort law, but it applies very similar principles.27
1.2 Judicial Healing
The teleological approach proposed above can be applied to other angles of laws besides the
relational-isolationist models described above. Needless to say, questions such as ‘what is tort
law made for?’ and ‘what is the aim of human rights law?’ find different answers depending
upon the purposes that one attributes to the law as such, regardless of its articulation as ‘tort’
or ‘human rights’. For example, the economic approach to law concentrates on (dis)incentives
22
Wright (n 12) 23; on the domestication of international human rights law and the set of challenges
facing human rights litigators in twelve African jurisdictions, see Magnus Killander (ed), International
Law and Domestic Human Rights Litigation in Africa (Pretoria University Law Press 2010).
23
See above (n 6).
24
Wright (n 12) 17.
25
Dinah Shelton, Remedies in International Human Rights Law (2nd ed., OUP 2005) 22.
26
See ibid 22–49, 291–353.
27
Somers (n 10).

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to the wrongdoer, who is expected to internalise the costs of provoking the harm so that
they would be deterred from future misconduct.28 In contrast, the model of corrective justice
focuses on fairness to the victim in that its function (and fiction) is to rectify the harm suffered
by the victim – this is why, as we will see shortly, compensation is a substitute remedy of res-
titution.29 Yet the boundary line between the two models is blurred precisely in relation to the
objective each of the models aims for. Not only in the economic model, but also in corrective
justice, regardless of the focus on the victim, the wrongdoer is both sanctioned for bearing
liability and deterred from future misconducts.
In the light of these general premises, we can enter the heart of this chapter, looking at
the right to reparation under international human rights law through a law-of-torts lens.30
As we will see in the next sections, the right to reparation under international human rights
law comprises various forms of remedies including pecuniary and non-pecuniary remedies.
Among pecuniary remedies is compensation. The scope of compensation includes three types
of damages at international human rights law level which mimic damages awarded within
domestic tort law systems. First, nominal awards symbolise the recognition of the violation, by
making the judgment ‘a matter of record’. Secondly, pecuniary damages are meant to make up
for the monetary loss and/or the harm suffered by the victim. Thirdly, moral damages represent
the financial (or the closest possible financial) equivalent for dignitary abuses (mental distress,
humiliation, fear).31
Another similarity can be uncovered between the economic approach and the corrective
justice approach: both models entail compensation of the full value of the injury to the victim.
Under tort law, compensation of harm caused by a human rights abuse is no different from
compensation of ordinary harm.32 Compensation is the second-best response where restitution
is not possible. However, compensation carries the risk of commodification of human rights,
since it is not able, as a remedy, to restore the rights that have been violated. Compensation
is often an inadequate remedy to redress fully the harm. If full rectification is not feasible
through reparation, monetary awards are aimed at restoring the status quo ante, conveying the
sense that money replaces the thing lost, even where the thing lost is a right.33 A further conse-
quence is paradoxical: not only can human rights be violated, but also perpetrators can ‘buy’
the possibility to violate the others’ rights, provided that they have sufficient tax revenues or
other financial resources – an easy cost-benefit analysis. This in-built limit of compensation is
usually offset by other, non-monetary, forms of remedy awarded by the court.
Non-monetary remedies awarded by a human rights tribunal depend upon the nature of the
violation. Orders can be: reparative, such as restitution or restoration by the defendant of the
28
See David Friedman, ‘What Is “Fair Compensation” for Death or Injury’ (1982) 2 International
Review of Law and Economics 81.
29
Dinah Shelton, Remedies in International Human Rights Law (3rd ed., OUP 2015) 316.
30
This chapter does not discuss directly causation as a crucial element for a thorough analysis of
the topic, also for a comparative study between tort law and international human rights law systems: see
Marta Infantino, ‘Causation Theories and Causation Rules’ in Mauro Bussani and Anthony James Sebok
(eds), Comparative Tort Law: Global Perspectives (Edward Elgar Publishing 2015).
31
Shelton, Remedies in International Human Rights Law (n 29) 316.
32
Malamud‐Goti and Grosman (n 4) 540.
33
Shelton, Remedies in International Human Rights Law (n 29) 316, 433; cf Whiteman, stressing
that ‘no amount of money can, of course, atone for the death of a person’: Marjorie Whiteman, Damages
in International Law (US Government Printing Office, 1937) 705.

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plaintiff’s pre-existing entitlement; preventive, awarded in presence of threat of possible com-

mission of a wrong or repetitive wrongdoing; satisfactory (acknowledgement of the breach,
expression of regret, a formal apology);34 and structural, requiring to remodel an existing
social or political institution so that this could meet legal standards, such as restructuring
a health system to ensure non-discriminatory access to health.35 For example, in the case Lohé
Issa Konaté v Burkina Faso, the African Court of Human Rights held that Burkina Faso’s
defamation laws infringed the right to freedom of expression and unanimously ordered the
government to amend the legislation by repealing custodial sentences for acts of defamation
and ensuring that other sanctions for defamation meet the test of necessity and proportional-
ity.36 Against this taxonomy, which does not account for hybrid orders that can be awarded
in the concrete legal reality, rehabilitation is a remedy which occupies a special place among
non-pecuniary awards. Rehabilitation in the human rights vocabulary has a different meaning
and application from its use in e.g. Anglo-American criminal law. In the human rights regime,
‘rehabilitation’ does not mean that the wrongdoer is rehabilitated such that they no longer
desire to engage in wrongdoing. Rather, rehabilitation focuses on the restoration of the plain-
tiff’s health and reputation,37 following a severe attack on mental and/or physical integrity.
Such a healing and remedial process constitutes a sort of restitution, while also enshrining the
preventive objective of avoiding further deterioration. The two-sided essence of rehabilitation
implies both ‘acknowledgement of the wrong and reintegration of the individual’.38
Hence, if financial injunctions order to pay money, remedial orders imposing a certain
behaviour can be – maybe less effective but – more piercing. Non-pecuniary remedies redress
the individual harm and have an impact on broader social benefits. All that glitters isn’t gold,
though: suffice it to recall that many non-pecuniary awards require expensive supervision by
the court.39 Overall, money may take a chameleonic shape in the constellation of remedies.
Compensation of moral injury is crucial in cases of limitation of rights such as free speech or
fair hearing, which entail minimal pecuniary losses. However, the monetary side of damages
is not that central to an effective reparation in cases where the truth is what matters for the
applicant. Litigation can be far from real life: even where the truth has been established with
fair trial resulting in a judgment, the judicial truth can still be far from the subjective truth.
This kind of reflection would lead us into, albeit fascinating, remote lands that we have not
the space to explore here. Let us maintain the focus on judicial truth. Through the so-called
declaratory judgments human rights courts recognise that a right has or has not been violated.
The declaratory judgment of a tortious behaviour, being a statement of right, can constitute
a retrospective remedial measure, even where the applicant wins the merits but receives only
(some) litigation expenses.40 It is submitted here that while the recognition of the truth incor-
porates per se a therapeutic effect, it could not be considered an effective remedy. Rather, as
34
Cf Art 37(2), ILC Articles, ‘International Law Commission’s Articles on Responsibility of States
for Internationally Wrongful Acts’ (2001) Res 56/83.
35
Cf Shelton, Remedies in International Human Rights Law (n 29) 383–384.
36
Lohé Issa Konaté v Burkina Faso [2014] African Court of Human Rights App 004/2013 [176(8)].
37
See Suárez-Rosero v Ecuador [1999] Inter-American Court of Human Rights IACtHR Series C
No 35 [55–67, 72].
38
39
ibid 378–379.
40
ibid 287.

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with domestic tort law litigation, a declaratory judgment is ‘the beginning of remedies, not the
end’.41
Regional human rights courts have the power to award both monetary and non-monetary
remedies. This is implicitly or explicitly provided by the treaties establishing the courts and/or
setting out limits of their functions. The following sections deal with compensation in the three
regional human rights systems. Before entering the discussion of compensation at regional
level, what follows is an outline of some general principles of international law and human
rights law on the right to remedy.
2. FROM INTERNATIONAL LAW TO INTERNATIONAL

HUMAN RIGHTS LAW
As mentioned at the outset of this chapter,42 non-state actors can commit human rights abuses,
with states being the traditional agents accountable for human rights violations. Indeed, the
right to remedy is closely linked to the evolution of the concept of state accountability under
international law, particularly the principle of state civil responsibility. In 1928, the Permanent
Court of International Justice, the predecessor of the International Court of Justice between
1922 and 1946, stipulated in Chorzow Factory that states that have been held accountable
of international wrongs are civilly liable for attributable acts and therefore responsible43 for
financial reparations. The Court established that:
The essential principle contained in the actual notion of an illegal act – a principle which
seems to be established by international practice and in particular by the decisions of arbitral
tribunals – is that reparation must, as far as possible, wipe-out all the consequences of the
illegal act and re-establish the situation which would, in all probability, have existed if that act
had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corre-
sponding to the value which a restitution in kind would bear; the award, if need be, of damages
for loss sustained which would not be covered by restitution in kind or payment in place of
it – such are the principles which should serve to determine the amount of compensation due
for an act contrary to international law.44
Such a dictum should not sound new to any (tort) lawyer: the breach of the duty not to
cause harm triggers a right to restitution, or where restitution is impossible, a right to com-
pensation. The novelty lies in the establishment of state liability under international law.
The International Court of Justice followed the principle on state liability starting from its
establishment in 1945.45 More recently, after some 45 years from the first consideration of the
41
ibid 297.
42
See above, Introduction.
43
On the requirements for establishing state responsibility, see Malcolm N Shaw, International Law
(8th ed., Cambridge University Press 2017) 589–639.
44
The Factory at Corzów (Claim for Indemnity, Germany v Poland) [1928] Permanent Court of
International Justice Series A No 17 [125].
45
Inter alia, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania)
[1949] International Court of Justice ICJ Reports 244; Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v United States of America) [1986] International Court of Justice ICJ Reports 14;
Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States of America) [1996] International
Court of Justice ICJ Reports 9 et seq.

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topic by the International Law Commission, the UN General Assembly formalised this and
other connected principles with the adoption of the International Law Commission’s Articles
on Responsibility of States for Internationally Wrongful Acts46 (‘ILC Articles’). The ILC
Articles establish that an internationally wrongful act entails a state’s international responsi-
bility47 when an action or omission is attributable to the state and it constitutes a breach of an
international obligation of the state.48 This infringement occurs when the state does not act in
conformity with what is provided by the concerned obligation.49 International responsibility
attracts the duty to make full reparation for the injury caused,50 with financial compensation to
the injured state being a subsidiary remedy to restitution.51
Notwithstanding the importance of the ILC Articles for the international (dis)order,52
general international law can serve the purposes of our investigation only to a limited extent. It
constitutes, for us, nothing more than (1) a condensed account of the origins of state liability at
the international level; and (2) a frame to the next discussion of regional human rights systems.
As the ILC Articles explain, indeed, the scope of the obligations of the responsible state
referred to in the document ‘may be owed to another state, several states, or to the international
community as a whole.’53 Hence, leaving aside inter-state disputes and general international
public law, we now move to the realm of human rights. Here, as in tort law systems, private
citizens have the right to access judicial remedies and to ask for reparation if a breach is found.
The right to remedy is twofold in nature: it enshrines the (procedural) right to access to judicial
remedies and, where deemed judicially adequate, the (substantial) right to various forms of
reparation. This right is secured under international human rights law, in both its individual
and societal dimensions: a sanction for the perpetrator, restoring the victim’s dignity,54 and
a deterrent for future abuses by the same or other wrongdoers.55 The remainder of this section
present an overview of the right to remedy, including the right to reparation, as incorporated
into international human rights instruments and documents.
State civil liability for human rights breaches is a rather old concept in international law.56
The individual who has suffered the wrongdoing can claim the violation of their rights
before a domestic court. Article 8 of the Universal Declaration of Human Rights guarantees
to everyone ‘the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted to him by the constitution or by law’.57 The right to
remedy and reparation is affirmed by many international instruments, including Article 39 of
46
ILC Articles (n 34).
47
Art 1, ibid.
48
Art 2, ibid.
49
Art 12, ibid.
50
Art 31, ibid.
51
Art 36(1), ibid.
52
See James Crawford, Jacqueline Peel and Simon Olleson, ‘The ILC’s Articles on Responsibility
of States for Internationally Wrongful Acts: Completion of the Second Reading’ (2001) 12 European
Journal of International Law 963.
53
Art 33(1), ILC Articles (n 34).
54
Malamud‐Goti and Grosman (n 4) 541.
55
56
See Sascha-Dominik Bachmann, Civil Responsibility for Gross Human Rights Violations: The
Need for a Global Instrument (Pretoria University Law Press 2007) 4.
57
Art 8, Universal Declaration of Human Rights (adopted 10 December 1948) A/RES/810.

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the Convention on the Rights of the Child,58 Article 25 of the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa,59 Articles 8(2) and 20(2)
International Convention for the Protection of All Persons from Enforced Disappearance,60
Articles 68 and 75 of the Rome Statute of the International Criminal Court.61 While the right
to remedy is clearly recognised by international human rights law, what is controversial is
the scope and content of this right. As mentioned above, the right to remedy has a procedural
aspect (access to justice) and a substantial aspect (reparation). This multifaceted nature is not
explicitly granted under the International Covenant on Civil and Political Rights (ICCPR).62
The Human Rights Committee, the UN treaty body overseeing the implementation and pro-
viding authoritative interpretation of the ICCPR, has explained that ‘reparation can involve
restitution, rehabilitation, and measures of satisfaction, such as public apologies, public
memorials, guarantees of non-repetition and changes in relevant laws and practices, as well
as bringing to justice perpetrators of human rights violations’.63 The Committee has therefore
interpreted Article 2(3) as including the right to financial compensation.64 However, some are
sceptical about an extensive interpretation incorporating the substance of redress owed to the
victim of a human rights abuse. Christian Tomuschat, for instance, maintains that the French
(‘recours’) and Spanish (‘recurso’) versions of the ICCPR of the English ‘remedy’ suggest that
the right to remedy should be intended as referring to the procedural, not substantial, means
to obtain redress.65
How can a remedy be effective if the only form of reparation awarded is, for example, the
acknowledgement of the violation? As we have already discussed above,66 in certain cases the
award of pecuniary damages is not enough, especially where the victim’s dignity and reputa-
tion have been harmed. In these and other circumstances, we have also highlighted the need
for a comprehensive approach to reparation, which should incorporate different forms, both
pecuniary and non-pecuniary. Otherwise, the ‘remedy’ could not be defined as such, given
its limited scope, as well as its nominal and formal efficacy. Can efficacy be only formal?
I am not persuaded by this restrictive approach to the right to redress as procedural right only.
Stating that one can claim their right before a domestic court, but it is not guaranteed that,
where the court recognises the breach of a right, they will receive a substantial redress is like
saying that they received a bike, but are not allowed to use it. Or, more seriously, that one is
granted access to a hospital, but cannot be hospitalised, i.e. because they are not fully entitled
to enjoy their right to health substantially by receiving medical treatment. These hyperbolic
58
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September
1990) 1577 UNTS 3.
59
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
(adopted 11 July 2003, entered into force 25 November 2005) CAB/LEG/66.6.
60
Arts 8(2) and 20(2), International Convention for the Protection of All Persons from Enforced
Disappearance (adopted 12 January 2007, entered into force 23 December 2010) A/RES/61/177.
61
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July
2002) 2187 UNTS 3.
62
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 (n 11).
63
CCPR, ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on States
Parties to the Covenant’ (2004) CCPR/C/21/Rev.1/Add.13 para 16.
64
Ann Maria Garcia Lanza de Netto v Uruguay [1980] 8/1977 CCPR/C/9/D/8/1977 [17].
65
Christian Tomuschat, Human Rights: Between Idealism and Realism (3rd ed., OUP 2014) 302.
66
See above, Sect 1.

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consequences make us rethink the scope of the substantive right to remedy. The travaux
preparatoires illuminate our doubts. What is at stake, here, is compensation, not any form
of reparation: the travaux preparatoires show that the drafters of ICCPR intended to design
Article 2 in a broad way, in order to allow for tailored remedies responsive to specific abuses.67
One thing is to say, therefore, that courts have the duty to assure compensation for every type
of human rights abuse; another is to say that courts have the duty to assure a certain form of
reparation, which could or could not be compensation, but should be compensation in specific
cases. Indeed, this time I share the line of thought of Christian Tomuschat himself, who recalls
two specific provisions of the ICCPR and another from the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (ICAT)68 to show the close
relationship between the international human rights regime and the domestic system which
is meant to provide redress against state liability. Compensation is explicitly addressed under
Articles 9(5) and 14(6) ICCPR. These articles provide for, respectively, the enforceable right
to compensation for unlawful arrest or detention,69 and the right to compensation ‘according to
law’ for persons punished as a result of miscarriage of justice.70 Further, Article 14(1) ICAT
provides for adequate and fair financial compensation as an additional remedy, besides domes-
tic remedies, for victims of acts of torture or their dependants in case of death.71 In all these
instances, these provisions call on states to adopt legislation guaranteeing individual enforce-
able rights before domestic tribunals. In other words, the UN human rights treaty bodies make
recommendation on the remedies to be adopted by the state. Compensation, one among many
forms of substantial reparation, is not ordered directly by UN treaty bodies, but it is ensured on
the basis of the domestic legislation that the state has to enact.72
The scope of compensable human rights infringements has been broadened by the UN
General Assembly with the adoption of the Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised
Human Rights and Fundamental Freedoms.73 Under Article 9, the Declaration states that
67
Diane F Orentlicher, ‘Addressing Gross Human Rights Abuses: Punishment and Victim
Compensation’ (1994) 26 Studies in Transnational Legal Policy 425, 449.
68
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(adopted on 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
69
The Human Rights Committee has repeatedly called on states parties to provide compensa-
tion to victims of unlawful detention: inter alia, Viana Acosta v Uruguay [1984] 110/1981 CCPR/
C/21/D/110/1981 [15]; Schweizer v Uruguay, Machado de Campora (on behalf of Campora Schweizer)
v Uruguay [1982] 76/1980 CCPR/C/17/D/66/1980 [19–20].
70
Art 9(5) states: ‘anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation’; Art 14(6) stipulates: ‘When a person has by a final decision been
convicted of a criminal offence and when subsequently his conviction has been reversed or he has been
pardoned on the ground that a new or newly discovered fact shows conclusively that there has been
a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be
compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him’: International Covenant on Civil and Political Rights (adopted 16
December 1966, entered into force 23 March 1976) 999 UNTS 171 (n 11).
71
Art 14(1), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (adopted on 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (n 68).
72
Tomuschat (n 65) 302, 305.
73
UNGA, ‘Declaration on the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms’
(1998) 53/144.

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everyone has the right to access and benefit from an effective remedy, which includes com-
pensation.74 Finally, in 2005, the Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law (‘UN Remedy and Reparations
Principles’) were adopted by the UN General Assembly.75 As the Preamble highlights, the
Principles do not introduce any new international or domestic obligations, but rather identify
the mechanisms, modalities and procedures for the implementation of existing obligations.76
Under Principle 20, compensation is meant to redress ‘any economically assessable damage’,
including mental, physical and material harm.77 According to Principles 1(c), 11(b) and 15,
reparation should be ‘adequate, appropriate and prompt’, which calls for combination of mon-
etary, material and symbolic forms of reparation, beyond compensation.78 Against this frame-
work, warnings against underestimating or overestimating the importance of compensation in
serious human rights violations79 cannot be but shared. In the light of the international human
rights framework discussed above, the next sections explore and compare the peculiarities of
the three regional human rights systems.
3. COMPENSATION IN THE REGIONAL HUMAN RIGHTS

SYSTEMS
The guiding principle in remedies under international human rights law prioritises restitution
as the ‘most perfect’ form of reparation. Restitution claims usually arise in cases of illegal
deprivation of personal property (land, art), wrongful termination of employment and arbitrary
detention. Where restitution cannot be awarded, the other pecuniary and non-pecuniary rem-
edies apply. Accordingly, the European Court of Human Rights, the Inter-American Court of
Human Rights and the African Court of Human and Peoples’ Rights, unlike the bodies of the
League of Arab States and the Association of Southeast Asian Nations,80 have the power to
74
Art 9 stipulates: ‘(1) In the exercise of human rights and fundamental freedoms, including the
promotion and protection of human rights as referred to in the present Declaration, everyone has the
right, individually and in association with others, to benefit from an effective remedy and to be protected
in the event of the violation of those rights. (2) To this end, everyone whose rights or freedoms are
allegedly violated has the right, either in person or through legally authorized representation, to complain
to and have that complaint promptly reviewed in a public hearing before an independent, impartial and
competent judicial or other authority established by law and to obtain from such an authority a decision,
in accordance with law, providing redress, including any compensation due, where there has been a vio-
lation of that person’s rights or freedoms, as well as enforcement of the eventual decision and award, all
without undue delay’: ibid.
75
UN Remedy and Reparations Principles, ‘Basic Principles and Guidelines on the Right to
a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law’ (2005) A/RES/60/147.
76
Preamble, ibid.
77
Principle 20, ibid.
78
Principles 1(c), 11(b), 15, 19–23, ibid.
79
Juan Pablo Pérez-León-Acevedo, ‘The Situation of Reparations in the Inter-American Human
Rights System: Analysis and Comparative Considerations’ (2016) 20 ASIL Insights 2.
80
See Revised Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March
2008); ASEAN Human Rights Declaration and the Phnom Penh statement on the adoption of the
ASEAN Human Rights Declaration (adopted 18 November 2012).

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award both monetary and non-monetary remedies. These powers derive from the principles of
international law and international human rights law, as well as from the treaty that each court
is supposed to enforce. Leaving aside non-monetary remedies, we continue our discussion on
financial compensation in order to examine financial compensation as a reparation ordered by
regional human rights courts. This chapter is not concerned with the criteria for the determi-
nation of the amount of compensation.81 Rather, the following sections explore the different
attitudes and patterns of the three regional enforcement mechanism with regard the award or
denial of compensatory remedies.
3.1 The Council of Europe System
The European Convention of Human Rights (‘ECHR’) guarantees the right to effective
remedy under Article 13.82 This is a parasitic provision: it can be invoked only in conjunction
with another substantial provision.83 The national legal order should provide individuals with
the possibility to redress the abuses suffered. The state enjoys the margin of appreciation in
determining the form and content of the remedy: for instance, in Kudla v Poland, the European
Court of Human Rights (‘ECtHR’) did not specify what a remedy in tort law should look
like,84 as this depends on the type of human rights violation.85 The minimum requirement for
a domestic remedy to meet Article 13 is to be effective, in a preventive or, at least, compen-
satory manner.
Hence, the discussion on the right to compensation under Article 41 cannot transcend the
right to remedy as stipulated under Article 13. The vast majority of reparations ordered by
the Court incorporate compensation, or, to be more precise, ‘just satisfaction’. The ECtHR
is empowered to afford a partial financial compensation in specific cases, that is where the
state allows only partial reparation to be made. Precisely, Article 41 stipulates that: ‘If the
Court finds that there has been a violation of the Convention or the Protocols thereto, and if
the internal law of the High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the injured party’.86 In case of
81
See Shelton, Remedies in International Human Rights Law (n 29) 331–346; Ben Saul,
‘Compensation for Unlawful Death in International Law: A Focus on the Inter-American Court of
Human Rights’ (2004) 19 American University International Law Review 524, 573.
82
Article 13 (Right to an effective remedy) reads: ‘Everyone whose rights and freedoms as set forth
in this Convention are violated shall have an effective remedy before a national authority notwithstand-
ing that the violation has been committed by persons acting in an official capacity’: Convention for the
Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force
3 September 1953) ETS 005 (n 15).
83
Yutaka Arai, ‘Right to an Effective Remedy before a National Authority (Article 13)’ in Pieter van
Dijk and others (eds), Theory and practice of the European Convention on Human Rights (Intersentia
2006) 998–999.
84
Kudla v Poland [2000] European Court of Human Rights 30210/96 [159]; Silver and Others
v United Kingdom [1983] European Court of Human Rights 5947/72, 6205/73, 7052/75, 7061/75,
7107/75, 7113/75, 7136/75 [113]; Iovchev v Bulgaria [2006] European Court of Human Rights 41211/98
[142–143].
85
Inter alia, Kudla v Poland (n 84) para 157; Sedminek v Slovenia [2013] European Court of Human
Rights 9842/07 [58].
86
Article 41, Convention for the Protection of Human Rights and Fundamental Freedoms (adopted
4 November 1950, entered into force 3 September 1953) ETS 005 (n 15).

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an infringement of one of the rights enumerated under the ECHR, the Court awards just satis-
faction, but only ‘if necessary’. This power is therefore discretionary. Some argue, however,
for the existence of the Court’s obligation to award compensation and recognise the respective
rights to compensation to the injured party, thereby attributing to the victims the same status
they have in national tort law systems.87 I would rather maintain that the Court’s power is one
of a partially bounded discretion. The ECtHR is not obliged to grant compensation, but in
case of refusal, it has to provide reasons similar to those provided under national tort law.88
The compensatory function of tort law, that criminal law per se lacks, is crucial given the
ECtHR’s orders to provide financial compensation through national mechanisms. In such
cases, compensation becomes a deterrent civil-law instrument.89 Further, the Court exercises
its discretion in order to decide which circumstances attract compensation or which, instead,
can be redressed simply by the judicial pronouncement determining the breach. In the latter
case, the ECtHR can consider the finding of a violation per se sufficient to provide redress to
the injured party.90 From a domestic perspective, declaratory judgments might be considered
a sort of restitution in kind, insofar it is meant to satisfy victims of human rights violations
under the ‘moral’ point of view. The possibility of refraining from compensating has produced
some counterintuitive results, however. A spectacular dictum is enshrined in McCann v UK.
The case involved the death of three people, shot by a British anti-terrorist unit in Gibraltar,
and entailed the violation of the right to life protected under Article 2 ECHR. The Court did
not recognise any compensation to the families of the victims, because: ‘In any event, having
regard to the fact that the three terrorist suspects who were killed had been intending to plant
a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this
head. It therefore dismisses the applicants’ claim for damages’.91 A judgment of condemnation
seems to be the preferred – and supposedly adequate – remedy for the ECtHR especially in
cases of breaches of political rights.92 Interestingly, the Court’s attitude towards compensation
for moral damages evokes the reluctance of many domestic tort law systems to grant compen-
sation for moral injury in exceptional circumstances.93 In fact, the ECtHR has been criticised
87
Somers (n 10) 240.
88
ibid 5.
89
ibid 57; see Ciechońska v Poland [2004] European Court of Human Rights 19776/04 [71];
Söderman v Sweden [2013] European Court of Human Rights 5786/08 [85].
90
For a discussion of the ECtHR case-law from the perspective of the Court’s pattern to award or
deny damages, see Shelton, Remedies in International Human Rights Law (n 29) 289–295.
91
McCann and Others v UK [1995] European Court of Human Rights 18984/91 [219].
92
Inter alia, Grande Oriente d’Italia di Palazzo Giustiniani v Italy [2007] European Court of Human
Rights 26740/02 [70]; Silay v Turkey [2007] European Court of Human Rights 8691/02 [39]; Zhechev v
Bulgaria [2007] European Court of Human Rights 57045/00 [63]; Eğitim ve Bilim Emekçileri Sendikası
v Turkey [2012] European Court of Human Rights 20641/05.
93
Tomuschat (n 65) 405; Aurelia Colombi Ciacchi, Gert Brüggemeier and Patrick O’Callaghan
(eds), Personality Rights in European Tort Law (Cambridge University Press 2010) 94, 104; Christian
von Bar, Non-Contractual Liability Arising out of Damage Caused to Another (PEL Liab. Dam.) (De
Gruyter 2009) 329–335; see Helmut Koziol, ‘Damages under Austrian Law’ in Ulrich Magnus (ed),
Unification of Tort Law: Damages (Kluwer Law International 2001) 11–12; Herman Cousy and Anja
Vanderspikken, ‘Damages under Belgian Law’ in Ulrich Magnus (ed), Unification of Tort Law: Damages
(Kluwer Law International 2001) 40; Ulrich Magnus, ‘Damages under German Law’ in Ulrich Magnus
(ed), Unification of Tort Law: Damages (Kluwer Law International 2001) 94–95; Francesco Donato
Busnelli and Giovanni Comandé, ‘Damages under Italian Law’ in Ulrich Magnus (ed), Unification of
Tort Law: Damages (Kluwer Law International 2001) 124; Bénédict Winiger and others, ‘Comparative

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for both its reluctance to award compensation and its inconsistency in providing disproportion-
ate compensatory amounts. The Court, it is said, lacks generosity concerning compensation
for moral damages, especially if compared to the Inter-American Court of Human Rights.94
The ECtHR embraces frequently the sort of reasoning that we have already discussed above:95
as human suffering has no price, human rights should not be monetarised. The idea that ‘the
sorrow and pain suffered by the [applicants] cannot be compensated even if huge amounts
were awarded,’96 has ultimately become, however, a pretext to deny compensation or award
even minimal amounts in many cases.
Another controversial question relates to the adjustments of compensation to the different
standards of living of the member states.97 While the right to be free from torture or, to make
another example, the right to life has the same ‘value’ throughout the world and therefore in
each country where the ECtHR exercises its jurisdiction, the value of the sums awarded as
compensation can differ considerably across member states.98
Overall, the case-law analysed above, and elsewhere,99 concerns only a limited number of
substantive rights. It would be therefore inaccurate to conclude that the ECHR provides for
a domestic obligation to establish mechanisms of state liability for human rights violations.
Certainly, the ECtHR requires states to provide a remedy, including financial redress for
breaches of rights enshrined in the Convention. The Court also requires that states protect
human rights in horizontal relations. It follows that states should provide compensation for
abuses of human rights in horizontal relations.100 We can therefore ask: is this attitude towards
the award/denial and content of financial compensation unique to the ECtHR?
3.2 The Inter-American System
The Inter-American human rights system has a peculiarity concerning access to the enforce-
ment mechanism which makes it differ from the Council of Europe’s and the African
systems.101 This aspect concerns the access to the jurisdiction of the Inter-American Court
of Human Rights (‘IACtHR’). Indeed, under the American Convention on Human Rights
(‘ACHR’), only state parties and the Inter-American Commission on Human Rights can
Report (Categories 11-13)’ in Bénédict Winiger and others (eds), Digest of European Tort Law. Essential
Cases on Damages, vol II (De Gruyter 2011).
94
95
See supra, Sect 1.2.
96
Partly Concurring and Partly Dissenting Opinion of Judge Sajó, Oyal v Turkey [2010] European
Court of Human Rights 4864/05.
97
See Octavian Ichim, Just Satisfaction under the European Convention on Human Rights (CUP
2015).
98
See, for example, the Dissenting Opinion of Judge Pavlovschi in Holomiov v Moldova: ‘While
agreeing with the amount awarded for costs and expenses, I respectfully disagree with the majority,
however, as regards the amount awarded in respect of non-pecuniary damage. I consider that this amount,
EUR 25,000, is far too excessive and does not take into consideration either the realities of life in the
Republic of Moldova or our previous case-law’: Holomiov v Moldova [2006] European Court of Human
Rights 30649/05.
99
Somers (n 10) 33–44.
100
Cf Michael O’Boyle and others, Law of the European Convention on Human Rights (4th ed.,
Oxford University Press 2018) 288.
101
See below, Sect 3.3.

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submit a case to the IACtHR.102 As individuals do not have direct standing before the IACtHR,
they can bring their claims indirectly to the IACtHR through legal representatives appointed
in the proceedings before the Inter-American Commission.103
Against this backdrop, the procedural steps for awarding compensation under IACHR
mimic those set forth under the ECHR. The American Convention on Human Rights grants the
right to fair compensation to the injured party under Article 63(1):
If the Court finds that there has been a violation of a right or freedom protected by this Convention,
the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was
violated. It shall also rule, if appropriate, that the consequences of the measure or situation that
constituted the breach of such right or freedom be remedied and that fair compensation be paid to the
injured party.104
This provision is similar to Article 41 ECHR in that it recognises the power to award com-
pensatory reparation, where appropriate, to the injured party. Here again, the expression ‘if
appropriate’ leaves room to the IACtHR for discretionary determination as to whether or not
compensate the victim. Yet, if compared to the critiques on the ECtHR reluctance to award
compensation, the IACtHR, since its very first decision of 1988, has been more inclined to
compensate and victim-focused. The judgment of 1988 is Velásquez Rodríguez v Honduras,
which involved a case of forced disappearance (and other human rights breaches) in Honduras.
The IACtHR stipulated that the state has the duty ‘to ensure the victim adequate compensation’
if a violation has occurred.105 It seems, therefore, that compensation is to be granted for any
infringement of human rights norms. This statement echoes the customary rule of international
law we mentioned above stipulating that the wrongdoer is liable for damage caused to another
state.106 The IACtHR, for instance, in Aloeboetoe v Suriname refers to Chorzow Factory.107
However, this expansive understanding of compensation, it has been noted, is a misinterpreta-
tion of decisions of the International Court of Justice and the Permanent Court of International
Justice. Nowhere in their case-law the Courts establish the states’ obligation to fully compen-
sate their own citizens in cases where the wrongdoer has been a public authority.108
Besides the scope of compensation, the IACtHR has nevertheless a ‘broad view’109 of
reparation – in the concerned case and the subsequent case-law – as the violation of an inter-
national obligation entails ‘full restitution, which includes the restoration of the prior situation,
the reparation of the consequences of the violation, and indemnification for patrimonial and
non-patrimonial damages, including emotional harm’.110
102
Art 61(1), American Convention on Human Rights (adopted 22 November 1969, entered into
force 18 July 1978) OASTS 36 (n 15).
103
See Dinah Shelton, ‘Remedies in the Inter-American System’ (1998) Proceedings of the 92nd
Annual Meeting of the American Society of International Law 202, 205.
104
Art 63(1), American Convention on Human Rights (adopted 22 November 1969, entered into
force 18 July 1978) OASTS 36 (n 15).
105
Velásquez Rodríguez v Honduras [1989] Inter-American Court of Human Rights C04 [174]; see
also Suárez Peralta v Ecuador [2013] Inter-American Court of Human Rights C 261 161.
106
See above, Sect 2.
107
Aloeboetoe v Suriname [1993] Inter-American Court of Human Rights C 11 [43].
108
Cf Tomuschat (n 65) 407.
109
Orentlicher (n 67) 449.
110
Velásquez Rodríguez v Honduras (n 105) para 26.

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Similarly to the requests addressed to the ECtHR, some states have asked the IACtHR to
adjust awards considering their economic situation. Instead of adjusting the amount due, the
Court has responded with adjustments of the terms of payment.111 The Court’s view is even
broader if we look outside monetary reparations. Without succumbing to the temptation of
falling out of the scope of this chapter, we should at least mention that the IACtHR has estab-
lished a ‘remarkable record’112 with regard to non-pecuniary reparation, in particular symbolic
measures.113
Velásquez Rodríguez v Honduras allowed the Court to discuss also the issue of punitive
damages.114 The Court addresses the petitioners’ request for so-called punitive damages aimed
at deterring (‘exemplary damages’) and/or punishing (‘punitive damages’) the defendant
without a connection to any proved loss suffered by the plaintiff.115 At domestic level, punitive
damages can be used to compensate losses that are difficult to prove.116 At international level,
the IACtHR explains, punitive damages should not apply.117 Human rights law, the IACtHR
continues, should not be confused with criminal justice, being the objective of the former the
protection of the victims and the adequate reparation of their suffering, instead of the punish-
ment of wrongdoers. The ECtHR has also addressed requests for punitive damages for the first
time in Silver v UK,118 citing Rookes v Barnard.119 Drawing upon the principles of general prin-
cipal law on reparation, the IACtHR (and other supervisory bodies) consider punitive damages
in contrast with the principle of sovereign equality of states.120 The function of compensation is
not to punish. Overall, the use and evolution of punitive damages in international human rights
law is hardly comparable to the one developed under tort regimes.121 The story is different
because of the different objective – namely, to protect individuals – of human rights law, and
111
For example, Plan de Sánchez Massacre v Guatemala [2004] Inter-American Court of Human
Rights C 116; cf Shelton, Remedies in International Human Rights Law (n 29) 329.
112
Tomuschat (n 65) 407.
113
See, for example, the numerous measures the IACtHR ordered the state of Guatemala to take in
order to restore harmony in the injured community in Plan de Sánchez Massacre: obligation to investi-
gate the facts that resulted in the violations, and identify, prosecute and punish those responsible; public
act acknowledging international responsibility to make reparation to the victims and to commemorate
those executed in the massacre; translation of the judgments of the Court into the Maya-Achí language,
Publication of the pertinent parts of the judgments of the Court; guarantee of non-repetition by providing
resources for the collective memory; medical and psychological treatment; housing and development
programs (health, education, production and infrastructure): Plan de Sánchez Massacre v Guatemala (n
111) paras 93–111.
114
On punitive damages and the different approach to punitive damages in common law and civil
law systems, see Izhak Englard, The Philosophy of Tort Law (Dartmouth 1993) 197; Helmut Koziol and
European Centre of Tort and Insurance Law (eds), Basic Questions of Tort Law from a Comparative
Perspective (Jan Sramek Verlag 2015) 701–702; Helmut Koziol, ‘Punitive Damages: Admission into the
Seventh Legal Heaven or Eternal Damnation? Comparative Report and Conclusions’ in Helmut Koziol
and Vanessa WIlcox (eds) (Springer 2011).
115
The two terms, ‘punitive’ and ‘exemplary,’ are used interchangeably in different jurisdictions.
116
117
Velásquez Rodríguez v Honduras (n 105) para 38.
118
Silver and Others v United Kingdom (n 84).
119
Rookes v Barnard [1964] HL AC, 1129 1126.
120
Wright (n 12) 22.
121
Nina HB Jørgensen, ‘A Reappraisal of Punitive Damages in International Law’ (1998) 68 British
Yearbook of International Law 247; on the incompatibility of punitive damages with a rights-based
approach to law, Stevens (n 5) 85–91.

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therefore of reparation. The etymology of the verb ‘to repair’ is the Latin verb reparo, -as, -avi,
-atum, -are, which means ‘to regain’, ‘to recover’, ‘to reconstruct’, ‘to renew’, ‘to restore’:122
the existence of a previous situation which has changed and has to be brought back (‘re-’) to
the previous status is inherent to all these verbs. It is clear that the concept of reparation has, by
nature, a remedial function concentrating on the injured person who has lost something (mate-
rial or immaterial). Certainly, arguing that the main focus of reparation is the injured party’s
subjective dimension is not synonymous with denying the existence of any retributive or deter-
rent power of compensation.123 These deterrent and retributive powers descend as side-effects
from the reparative essence of compensation. Compensation constitutes an economic loss for
the wrongdoer, who is liable to restore the situation quo ante: as such, it is a form of sanction.
Compensation has the indirect effect of deterring other possible wrongdoers because ‘harming
has a cost’ is its underlying message. Its primary aim is to receive money from the wrongdoer
and assign it to the victim. These reparatory, retributive and deterrent aspects coexist in the
award of compensation, regardless of the emphasis (courts or scholars) put on one of them –
usually the reparatory aspect.
3.3 The African System
The African system is the youngest of the regional systems, but enshrines the most
victim-oriented conception of compensatory remedies. Let us start from some analogies,
which have currently become principles shared by the human rights supervisory bodies. Like
its European and Inter-American fellows, the African Court on Human and Peoples’ Rights
(‘ACtHPR’) stipulated in Armand Guehi v United Republic of Tanzania that international
state liability for wrongful acts is a prerequisite of reparative orders. Referring to previous
judgments,124 the Court explained, precisely, that ‘for reparations claims to be granted, the
Respondent State should be internationally responsible, the reparation should cover the full
damage suffered, there should be causality and the Applicant must bear the onus to justify
the claims made’.125 Similarly to the other regional systems, the ACtHPR held in Reverend
Christopher Mtikila v Tanzania that a declaratory judgment, ‘per se, can constitute a sufficient
form of reparation for moral damages.’126 So far, nothing new, the reader would think. Here
below is the news.
The remedial protection secured by the African machinery differs to a certain extent from
the other two systems. The African human rights regime provides for compensation in two
norms with specific and general scope respectively. First, The African Charter on Human and
Peoples’ Rights enjoins the state to adequately compensate ‘dispossessed people’ in the case
122
Luigi Castiglioni and Scevola Mariotti, Vocabolario della lingua latina (4th ed., Loescher 2007).
123
Koziol (n 114) 746–750.
124
Lohe Issa Konale v Burkina Faso [2016] African Court of Human and Peoples’ Rights 004/2013
[52–59]; Reverend Christopher R Mtikila v Tanzania (Reparations) [2014] African Court of Human and
Peoples’ Rights 011/2011 [27–29]; Norbert Zanga and Others v Burkina Faso (Reparations) [2015]
African Court of Human and Peoples’ Rights 013/2011 [20–31].
125
Armand Guehi v United Republic of Tanzania [2018] African Court of Human and Peoples’ Rights
001/2015 [157].
126
Reverend Christopher R. Mtikila v Tanzania (Reparations) (n 124) para 45.

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of spoliation under Article 21(2).127 Secondly, the general remedies provision is incorporated
into the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment
of an African Court of on Human and Peoples’ Rights128 (‘Protocol’). The Protocol confers
to the ACtHPR the power to order reparation and fair compensation. Precisely, Article 27(1)
states that ‘if the Court finds that there has been violation of a human or peoples’ rights, it shall
make appropriate orders to remedy the violation, including the payment of fair compensation
or reparation’.129
Let us leave aside the specific provision on spoliation and focus on the general guarantee of
reparation, including compensation. This provision is broader than the mandates of the ECtHR
and the IActHR analysed above. Indeed, the provision, unlike the norms regulating the award
of compensation within the Council of Europe and the Inter-American systems, does not allow
for any discretion on compensating the injured party. ‘Appropriate’ means effective, adequate,
prompt and proportional to the harm suffered.130 What should be ‘appropriate’ here is not the
act of issuing an order, but the content of the order itself. The ACtHPR must, therefore, carry
out two complementary duties: (a) to issue an order of fair compensation or reparation; and
(b) to respect the criterion of appropriateness considering the type of violation and the purpose
of the order.
In contrast, compared to the other two regional systems, the African enforcement machin-
ery enjoys a broader mandate to award (reparations and) compensation. Notwithstanding
this peculiarity, in many cases, however, human rights abuses cannot find redress before the
ACtHR since its power remains only potential and limited in geographical scope. Indeed, as of
July 2019, the Protocol has not yet been ratified by all state parties to the African Charter, but
only 30 out of 55 member states.131
4. CONCLUSION
International human rights law and domestic tort law are two systems not isolated and sepa-
rated one from another. Both regimes aim at repairing damages suffered by the injured party.
Compensatory remedies constitute a common vocabulary between the two systems that the
plaintiff-victim avail themselves of. We have discussed the modalities through which com-
pensation is awarded, evaluating, in particular, the role played by the courts in determining the
award or rejection of compensation. The three regional courts differ in terms of discretionary
127
Art 21(2) states: ‘In case of spoliation the dispossessed people shall have the right to the lawful
recovery of its property as well as to an adequate compensation’: African Charter on Human and Peoples’
Rights (adopted 27 June 1998, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 rev. 5 (n
15).
128
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African
Court on Human and Peoples’ Rights (adopted 10 June 1998, entered into force 25 January 2004) (n 15).
129
Art 27(1), ibid.
130
Cf CEDAW, ‘General Recommendation No. 33: Women’s Access to Justice’ (2015) CEDAW/C/
GC/33 para 19(b).
131
By July 2019, the 30 out of 55 states that have ratified the Protocol are: Algeria, Benin, Burkina
Faso, Burundi, Cameroon, Chad, Côte d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Kenya,
Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Rwanda, Sahrawi
Arab Democratic Republic, South Africa, Senegal, Tanzania, Togo, Tunisia and Uganda.

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powers or bounded duties to award compensation. Beyond terminological divergencies (fair

compensation for the ACtHPR and the IACtHR, just satisfaction for the ECtHR), the discre-
tionary element recognised to the courts makes it difficult to uphold the existence of a right
to financial compensation of the injured party before the ECtHR and the IACtHR. 132 The
ACtHPR, instead, is mandated with a broad duty-power to provide compensation.
Domestic tort law has both a compensatory and deterrent function, which makes it an instru-
ment of human rights litigation. This chapter has showed that regional human rights courts
can be used as compensatory instruments, and therefore perceived as tort law devices (this is
a perception, not an identification). We opened this chapter by highlighting that human rights
protection starts but does not end at the domestic level. We should refine this statement now.
Human rights protection starts at home, incorporates the standards set out by international
remedies and – here comes the refinement – following the international courts’ decision, ends
at home where states should meet the order of compensation. Eventually, the last recovery lies,
again, with the state. This circular movement shows the central role of the state in providing
financial compensation (and other forms of reparation) for human rights abuses. This central-
ity becomes problematic when the state has not ratified an instrument (as with the Protocol
to the African Charter) or does not comply with the judicial order. For instance, the IACtHR
lacks the power to execute its findings: there is no mechanism to enforce states’ compliance
with judgments in the Inter-American system.133 We also discussed that under the ECHR not
all breach entails a right of financial compensation, depending the latter upon the ECtHR’s
determination. Once a judgment has been issued, it is the Council of Europe Committee of
Ministers that supervises the implementation of the decisions. The high number of cases
decided before the ECHR makes the work of the Committee of Ministers challenging. In
fact, given the high number of decisions, far broader than the African and the Inter-American
human rights system, the control over the implementation, thus the political pressure on states,
risk is to be reduced.134 To conclude, the domestic enforcement of regional courts’ decisions
is crucial for the effective award of compensation and the realisation of individuals’ right to
reparation.
132
Tomuschat (n 65) 408.
133
Bachmann (n 56) 12–13.
134
Pérez-León-Acevedo (n 79) 1.

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Compensation at The Intersection of Tort Law and International Human Rights Law

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Compensation at The Intersection of Tort Law and International Human Rights Law

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4.

Compensation at the intersection of tort law

Giovanna Gilleri - 9781789905984

that is private plaintiff-private defendant versus private applicant-public defendant. Other

Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

1. A THEORETICAL SKETCH OF TORT LAW AND HUMAN

1.1 A Legal Archipelago

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1.2 Judicial Healing

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plaintiff’s pre-existing entitlement; preventive, awarded in presence of threat of possible com-

Giovanna Gilleri - 9781789905984

2. FROM INTERNATIONAL LAW TO INTERNATIONAL

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Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

3. COMPENSATION IN THE REGIONAL HUMAN RIGHTS

Giovanna Gilleri - 9781789905984

3.1 The Council of Europe System

Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

3.2 The Inter-American System

Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

3.3 The African System

Giovanna Gilleri - 9781789905984

Giovanna Gilleri - 9781789905984

powers or bounded duties to award compensation. Beyond terminological divergencies (fair

Giovanna Gilleri - 9781789905984

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