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Brownlie, I --- "Remedies in the Sphere of Human Rights" [2005] NZYbkIntLaw 6; (2005) 2 New Zealand Yearbook of International Law 169


Ian Brownlie[*]

I chose this particular topic because it is the subject of remedies which tends to be neglected in the literature of the law and which remains relatively underdeveloped. The development of general principles of human rights law has been necessarily slow because of the variety of jurisdictional frameworks and applicable laws which make up the world of human rights.

The following jurisdictional frameworks can be identified for present purposes: First: the political organs of the United Nations. Second: the International Court of Justice and other international tribunals applying principles of customary or general international law of which some human rights principles form a part. Third: domestic courts applying internal legislation incorporating human rights standards, such as the New Zealand Bill of Rights Act or the United Kingdom Human Rights Act. Fourth: supervisory bodies and complaints procedures ancillary to multi-lateral standard-setting conventions, including the Human Rights Committee created by the Optional Protocol to the International Covenant on Civil and Political Rights. Fifth: Judicial bodies created to deal with the complaints of individuals, in the absence of local remedies, concerning violations of multilateral standard-setting conventions, including the European Court of Human Rights and the Inter-American Court of Human Rights.

Before going further, it is necessary to indicate the general characteristics of this system of control and supervision. The basis of the system is the application of the treaty standards or, as appropriate, the standards of general or customary law, within the domestic legal system.

It is thus the domestic legal systems of States which are relied upon primarily. Article 1 of the European Convention provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention”. In case of alleged violations complaints are subject to various criteria of admissibility, the most significant of which is that all domestic remedies must have been exhausted.

Article 13 of the European Convention is significant in this respect. It provides:

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity [emphasis added].

It is characteristic of the system that the domestic legal and political structures are given a major role. Consistently with this, the process of enforcement of Judgments also relies upon the will of the High Contracting Parties: see article 46(1) of the European Convention and article 68(1) of the American Convention on Human Rights.

The best practice within internal systems involves the incorporation, in some form, of the relevant treaty obligations. Thus the New Zealand Bill of Rights Act has the purpose “[t]o affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”. The United Kingdom Human Rights Act of 1998 incorporates the provisions of the European Convention into the domestic law of the United Kingdom.

This prominence of domestic law is not surprising. The concept of enforcement of human rights involves a process of review and correction of domestic law and not a process of replacement and appeal. At the same time, if a Judgment establishes that particular legislation or an administrative practice is contrary to provisions of the European Convention, the duty of the High Contracting Party is to repeal the legislation or to discontinue the practice. This duty flows from article 46 of the Convention. The necessary changes to ensure compliance may take some time and compliance must be preceded by the often complex process of ascertaining what is necessary to effect compliance.

In any event the repeal or modification of domestic legislation or administrative practices constitute remedies of a radical nature, and parallel the role of a Supreme Court invalidating legislation in breach of a constitution.

I shall now move to another part of the picture where the domestic jurisdiction of the States Parties is less penetrable. The machinery concerned is the Human Rights Committee created by the Optional Protocol to the International Covenant on Civil and Political Rights. The Optional Protocol provides that any Party to the Covenant which ratifies the Protocol thereby “recognises the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant”.

Article 4 of the Protocol provides that:

1. Subject to the provisions of Article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant.

2. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

And article 5 is as follows:

1. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned.

2. The Committee shall not consider any communication from an individual unless it has ascertained that:
(a) The same matter is not being examined under another procedure of international investigation or settlement;
(b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.

3. The Committee shall hold closed meetings when examining communications under the present Protocol.

4. The Committee shall forward its views to the State Party concerned and to the individual.

The procedure of the Committee focuses upon the gathering of information and upon seeking to obtain the cooperation of the Respondent State. The Committee is not a judicial body and does not render binding decisions. Moreover, its power of determination is limited to communicating its views to the State Party concerned for enforcement. In case of non-compliance with its views, there is no provision for enforcement. A typical outcome of an expression of the views of the Committee, in a case

involving the unexplained disappearance of the complainant’s son, is as follows:

10. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose a violation of articles 7 and 9 of the International Covenant on Civil and Political Rights with regard to the [complainant’s] son and Article 7 of the International Covenant on Civil and Political Rights with regard to the [complainant] and his wife.

11. In accordance with Article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the complainant and his family with an effective remedy, including a thorough and effective investigation into the disappearance and fate of the complainant’s son, his immediate release if he is still alive, adequate information resulting from its investigation, and adequate compensation for the violations suffered by the complainant’s son, the complainant and his family. The Committee considers that the State party is under an obligation to expedite the current criminal proceedings and ensure the prompt trial of all persons responsible for the abduction of the complainant’s son under section 356 of the Sri Lankan Penal Code and to bring to justice any other person who has been implicated in the disappearance. The State party is also under an obligation to prevent similar violations in the future.

12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to Article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views.

(International Human Rights Reports, Vol 10, No 4, 949-50; Jegatheeswara Sarma v Sri Lanka)

The Parties to the Optional Protocol number 104 and the Parties include both developed States and many developing States. The performance of the Committee is described well by Merrills, Human Rights in the World, (4th ed, 1996), 39-72.

It is now necessary to move back to the use of the formal judicial function to provide remedies for violations of human rights standards affecting individuals. In marshalling the available legal sources certain themes emerge. In implementing Treaty obligations to provide effective remedies, domestic courts have two ways of proceeding. But first of all I shall set forth the Treaty directives.

The International Covenant on Civil and Political Rights provides in article 2(3):

Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.

The provisions of article 13 of the European Convention are to the same effect.

The question which remains to be resolved is the identification of the remedies which could be counted upon to comply with the standard of providing an effective remedy for the purposes of such Treaty obligations. At this point there is a fork in the road.

In the case of the European Convention article 41 (formerly article 50), this provides a general standard of remedial action, that of affording “just satisfaction to the injured party”. To a certain extent, as will be seen, this formula has been given effect in the case law of the European Court.

In contrast, the International Covenant on Civil and Political Rights and the Optional Protocol contain no provisions relating to supranational judicial action and the provision of legal remedies. Instead there is the monitoring apparatus which applies to States Parties to the Optional Protocol.

Consequently, States Parties to the International Covenant, in the absence of a specific provision analogous to article 41 of the European Convention, resort to the evidently sound policy of giving effect to the general treaty standard set by the Covenant in article 2(3), that is, of providing an effective remedy internally. This approach is obviously justifiable if the Treaty standard of the Covenant has been affirmed in domestic legislation like the New Zealand Bill of Rights Act.

The New Zealand Court of Appeal has in this context simply got on with the business of applying the Treaty standard, in conjunction with the Bill of Rights Act, to provide effective domestic law remedies. Thus, in Simpson v Attorney-General, Cooke P. observed:

Section 3 of the New Zealand Act makes it clear that the Act binds the Crown in respect of functions of the executive government and its agencies. It ‘otherwise specifically provides’ within the meaning of s5(k) of the Acts Interpretation Act 1924. Section 3 also makes it clear that the Bill of Rights applies to acts done by the Courts. The Act is binding on us, and we would fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed. In a case such as the present the only effective remedy is compensation. A mere declaration would be toothless. In other cases a mandatory remedy such as an injunction or an order for return of property might be appropriate: compare Magana v Zaire (1983) 2 Selected Decisions of the Human Rights Committee (under the Optional Protocol) (Communication No 90/1981) 124, 126.

([1994] 3 NZLR 667, 676)

In the Magana case the Human Rights Committee made the following determination:

8. The Human Rights Committee, acting under Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee, insofar as they continued or occurred after 1 February 1977 (the date on which the Covenant and the Optional Protocol entered into force for Zaire), disclose violations of the International Covenant on Civil and Political Rights, particularly:
- of Article 9(1), because Luyeye Magana ex-Philibert has been subjected to arbitrary arrest and detention;
- of Article 9(2), because he was not informed, at the time of his arrest, of the reasons for his arrest and of any charges against him;
- of Article 9(3) and (4), because he was not brought promptly before a judge and no court decided within a reasonable time on the lawfulness of his detention;
- of Article 10(1), because, while in detention, he was not treated with humanity;
- of Article 2(3), because there was no effective remedy under the domestic law of Zaire against the violations of the Covenant complained of.

9. The Committee, accordingly, is of the opinion that the State Party is under an obligation (i) to investigate the complaints made and to provide Luyeye Magana ex-Philibert with effective remedies for the violations he has suffered, including compensation and the return of his property to him, and (ii) to take steps to ensure that similar violations do not occur in the future.

((1989) 79 International Law Reports 187, 191-192).

The result would appear to be that the courts of New Zealand have a power to rely upon any sources which provide reliable indications of the modalities of giving an effective remedy, including the determinations of the Human Rights Committee and the decisions or advisory opinions of international tribunals concerning remedies.

Having looked at the position under the International Covenant, I turn to the provisions of article 41 of the European Convention which are as follows:

Just satisfaction.
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.

This principle of just satisfaction has been expressly incorporated into the UK Human Rights Act and thus section 8 provides (in part):

1. In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

2. But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

3. No award of damages is to be made unless, taking account of all the circumstances of the case, including
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

4. In determining
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

The result of this adoption of the formulation of article 41 into English law is unsatisfactory. A number of commentators have pointed to the lack of clear principles, which characterises the case law of the European Court.

In the first edition of their treatise on Human Rights Law and Practice, 1998, Lester and Pannick observe that:

The case-law of the European Court of Human Rights lacks coherence, and advocates and judges are in danger of spending time attempting to identify principles that do not exist.

The English Court of Appeal in three appeals decided jointly last year (Ala Anufrijeva et al) considered the principles upon which damages should be awarded in the context of the HRA. The Court took great care to seek to establish the relationship between the HRA principles governing the award of damages and the Strasbourg principles on the subject.

The Court of Appeal in Anufrijeva made these observations on the nature of the Strasbourg principles:

57. Section 8(4) of the HRA requires the Court to take into account the principles applied by the ECtHR when deciding whether to award damages and the amount of an award. Both the decisions of that Court and the HRA make it plain that when damages are required to vindicate human rights and to achieve just satisfaction, damages should be awarded. Our approach to awarding damages in this jurisdiction should be no less liberal than those applied at Strasbourg or one of the purposes of the HRA will be defeated and Claimants will still be put to the expense of having to go to Strasbourg to obtain just satisfaction. The difficulty lies in identifying from the Strasbourg jurisprudence clear and coherent principles governing the award of damages.

58. The Law Commission Report states:
‘Perhaps the most striking feature of the Strasbourg case-law, … is the lack of clear principles as to when damages should be awarded and how they should be measured.’ (para 3.4)

59. Despite these warnings it is possible to identify some basic principles the ECtHR applies. The fundamental principle underlying the award of compensation is that the Court should achieve what it describes as restitutio in integrum. The applicant should, insofar as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of Article 8, for loss of earnings and pension rights in Lustig-prean and Beckett v United Kingdom (2001) 31 EHRR 601 and Smith and Grady v United Kingdom (2001) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.

60. None of the rights in Part 1 of the Convention is of such a nature that its infringement will automatically give rise to damage that can be quantified in financial terms. Infringements can involve a variety of treatment of an individual which is objectionable in itself. The treatment may give rise to distress, anxiety, and, in extreme cases, psychiatric trauma. The primary object of the proceedings will often be to bring the adverse treatment to an end. If this is achieved is this enough to constitute ‘just satisfaction’ or is it necessary to award damages to compensate for the adverse treatment that has occurred? More particularly, should damages be awarded for anxiety and distress that has been occasioned by the breach? It is in relation to these questions that Strasbourg fails to give a consistent or coherent answer.

63. In determining whether damages should be awarded, in the absence of any clear guidance from Strasbourg, principles clearly laid down by the HRA may give the greatest assistance. The critical message is that the remedy has to be “just and appropriate” and “necessary” to afford “just satisfaction”. The approach is an equitable one. The “equitable basis” has been cited by the ECtHR both as a reason for awarding damages and as a basis upon which to calculate them. There have been cases where the seriousness or the manner of the violation has meant that as a matter of fairness, the ECtHR has awarded compensation consisting of “moral damages”. The Law Commission stated in its report that the ECtHR took account of ‘a range of factors including the character and conduct of the parties, to an extent which is hitherto unknown in English law’.

These passages strongly suggest that the English courts have become the victims of a series of complications created partly by the phrasing of article 41 of the European Convention and partly by the clumsy and unnecessary incorporation of article 41 in the Human Rights Act.

Before reviewing these complications, I would like to underline the deficiencies of the principles applied by the European Court of Human Rights. These deficiencies are aptly described by Lester and Pannick as follows:

2.8.4 When deciding whether to award damages, or the amount of an award, the court or tribunal must take into account the ‘principles’ applied by the ECt HR in relation to the award of compensation under Article 41 of the
Convention. Those ‘principles’ in truth amount to little more than equitable assessments of the facts of the individual case. They are as follows:
(a) There is no right to compensation. Compensation is awarded only if ‘necessary’ to ‘afford just satisfaction’ to the injured party. The ECt HR adopts an equitable assessment and decides whether compensation is appropriate in the circumstances.
(b) The ECt HR applies the principle of seeking, so far as possible, to put the applicant in the position he would have enjoyed had there been compliance with the requirements of the Convention. The ECt HR only awards monetary compensation where it is satisfied that the loss or damage of which complaint is made was actually caused by the violation of the Convention.
(c) In relation to pecuniary loss, the ECt HR sometimes states that it ‘cannot speculate’ as to whether the adverse consequences of which complaint is made would have occurred but for the breach of the Convention, or that it ‘does not find it established that there existed a causal link between the matter found to constitute a violation and any loss or damage’, and so it awards no compensation under this head. But the court is prepared to award compensation for pecuniary loss when satisfied that it is necessary to do so.
(d) Similarly, in relation to non-pecuniary loss, the E Ct HR sometimes states that it ‘cannot speculate’ as to whether the adverse consequences of which complaint is made would have occurred but for the breach of the Convention, or that, in any event, ‘in the circumstances, the finding of a violation constitutes sufficient just satisfaction’. On other occasions, the court is persuaded to award ‘a just and equitable amount of compensation’ for distress, disruption, lost opportunities of being released from detention, and other types of damage.
(e) The ECt HR has awarded interest on compensation where this is necessary to avoid unfair diminution in its value, but it has not awarded exemplary damages.

(Human Rights Law and Practice (2nd edn, 2004), 55-56) (footnotes omitted)

The first complication is as follows. The primary duty of the High Contracting Parties is laid down in article 13 of the Convention and it is to make available an effective remedy before the domestic courts. Article 41 (previously article 50) is addressed to the European Court of Human Rights and not to the national courts, and yet it is the national courts which are bound to provide effective remedies through the medium of domestic law. It is not logical that the domestic courts should simply follow the case law of the European Court.

There are several reasons for this. The first is that the European Court in its function under article 41 is not a substitute for the domestic court, but is exercising a specialised and supervisory role. Article 41 is addressed to the Court.

Secondly, the provisions of article 41 do not reflect the provisions of article 13, and the British Government in the person of the Lord Chancellor was in error when it adopted the view that section 8 of the HRA reflected article 13 of the Convention.

Thirdly, the language of the Judgments of the European Court insists upon the ‘equitable’ character of the principles which are applied. This insistence has no basis in the language of article 41 of the Convention and appears to be presented as a substitute for a process of normal legal reasoning. It is clear that article 41 does not refer to the need for an ‘equitable assessment’.

And in this context the term ‘just satisfaction’ has been a chronic cause of misunderstanding. The term ‘just satisfaction’ is not a term of art in general international law, although it was used in certain treaties dealing with arbitration and conciliation: see the Belgian Vagrancy Cases (article 50) (1980) 56 International Law Reports 415, 419-420. The term is not discussed in standard works on the law of arbitration.

In any event the term fails to provide a source of well-defined principles and in the practice of the European Court it has been translated, with no justification, into a simplistic and obscure process involving an assessment on an equitable basis. As I have already indicated, article 41 makes no reference to a principle of equitable assessment.

The respective roles of the European Court (under article 41) and the domestic courts can best be analysed by raising the question of the applicable law. The duty to provide an effective remedy placed upon the national authorities is just that: the vehicle for the application of the remedy is domestic law. If local remedies have not been exhausted, further recourse internationally is inadmissible.

But the English Human Rights Act has created a juridical farce. Section 8 insists that the domestic court “must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention”. This presents an appalling confusion. It seeks to fill a gap (in domestic law) which does not exist. It confuses the applicable law of the European Court with the applicable law operating in domestic courts. And, finally, it directs the domestic courts to the incoherent and inadequate principles which infest the European case law.

In addition to these large structural problems, the practice of the European Court has specific forms of disability which should not be transmitted to the English courts.

In the first place, the Court has no power to give declaratory judgments. Secondly, the Court’s case law has avoided the award of exemplary damages. Thirdly, the case law does not support a general right to compensation for violations of the Convention by public authorities. Finally, the powers of the Court are subject to a judge-made discretion: it is not at all clear that article 41 expressly provides that compensation is discretionary.

In face of all these drawbacks it seems clear that domestic courts would be much better equipped to give effective remedies without the flawed path finding provided by the example of the European Court.

As I draw to the end of this analysis there are some ancillary issues to be tidied up.

One question concerns the role of public international law. At first sight a violation of a standard-setting treaty such as the International Covenant involves public international law. However, that is not the way in which human rights instruments are articulated. The treaty obligation lies on the Contracting Party and consists of two elements: the inter-State undertaking to apply the standards and the more specialised obligation to ensure that the domestic courts provide effective remedies. But the remedies are given within the local legal system, and when the standards are applied they are in a naturalised version as a part of domestic law, as the applicable law for the assessment of violations. However, the violations are not at this stage breaches of Treaty on an inter-State basis: the injured victim is an individual or legal person.

The role of international law changes, however, when questions arise in relation to which international law is the applicable law. Thus in the leading case of Loizidou the Applicant had obtained a Judgment on the Merits in the European Court of Human Rights to the effect that Turkey was responsible for the interference with her property rights contrary to article 1 of Protocol 1. The violation took the form of denial of access to her land in the occupied area of Cyprus subsequent to the Turkish invasion in 1974. Mrs Loizidou was awarded CYP 300,000 for her loss of the use of enjoyment of her property, this sum representing an assessment made ‘on an equitable basis’. In respect of non-pecuniary damage the Applicant contended that certain aggravating factors should be taken into account in the Court’s assessment. One of the aggravating factors was the illegality of the Turkish intervention in Cyprus. Another was the fact that the Turkish policy of exclusion in respect of Greek Cypriot owners of property amounted to racial discrimination and was an affront to human rights standards.

The Court’s findings concerning non-pecuniary damage were as follows:

39. The Court is of the opinion that an award should be made under this head in respect of the anguish and feelings of helplessness and frustration which the Applicant must have experienced over the years in not being able to use her property as she saw fit.

40. However, like the Delegate of the Commission, the Court would stress that the present case concerns an individual complaint related to the Applicant’s personal circumstances and not the general situation of the property rights of Greek Cypriots in northern Cyprus. In this connection it recalls that in its principal judgment it held that ‘[it] need not pronounce itself on the arguments which have been adduced by those appearing before it concerning the alleged lawfulness or unlawfulness under international law of Turkey’s military intervention in the island in 1974’ (cited above, 2236, § 56). It also rejected the Applicant’s allegations that there had been a violation of the right to respect for her home (ibid, 2238, §§ 65-66) and made no finding concerning the question of racial discrimination which had not formed part of the Applicant’s complaint under the Convention.

Making an equitable assessment, the Court awards CYP 20,000 under this head.

This setting aside of major considerations of international law is completely unjustified. It is illogical to suppose that the Applicant’s personal circumstances were not affected by the general situation of the property rights of Greek Cypriots. Moreover, the European Convention, like any other Treaty, must be interpreted and applied in the context of other Treaty obligations (including the UN Charter) and also the principles of general international law.

If local remedies are available, then domestic courts would be expected to take account of international law in dealing with significant incidental questions.

So much for the idiosyncrasies of the European Court of Human Rights and the problems which now confront the English courts.

I now return to the New Zealand model which permits the domestic courts to take into account a variety of legal sources in the course of identifying an appropriate remedy. Such sources should include the jurisprudence of other domestic courts applying similar bills of rights or constitutional provisions. They should also include the case law of international human rights courts, but preferably avoiding the fog-bound concept of equitable assessment relied upon by the European Court.

And there is another relevant source which is neglected in the literature. An important part of general or customary international law consists of State responsibility, which is the underpinning of the law of treaties as well as non-treaty obligations. There is a substantial resource of case law from courts of arbitration, the International Court of Justice, and recent claims commissions, concerned with the assessment of damages.

The overall framework is the law of treaties and the principles of general international law relating to State responsibility. The structure of standard-setting treaties involves three elements. First: the standards or principles to be applied; Second: the duty of Contracting Parties to ensure that the national authority provides an effective remedy in case of violation; And third: the duty of each Contracting Party to “ensure to all individuals within its territory and subject to its jurisdiction the rights recognised” in the Convention: see the International Covenant on Civil and Political Rights, article 2(1).

In conclusion, it is clear that the position in the case law of New Zealand has been established by the Court of Appeal decisions in Simpson v Attorney-General and Auckland Unemployed Workers’ Rights Centre v Attorney-General decided in 1994 on the same day. The decision in Simpson was applied in the second case and was applied more recently in Dunlea v Attorney-General [2000] 3 NZLR136.

The main emphasis in these decisions is on the need to provide an effective remedy, if necessary, in damages for breaches of human rights standards. The decision in Dunlea is important in both affirming the role of compensation as a remedy for breaches of the Bill of Rights, and in affirming the view of Cooke P that the cause of action under the Bill of Rights would lie irrespective of an equivalent cause of action at common law.

In any event, the New Zealand courts are free of the concepts of just satisfaction and equitable assessment to be found in the case law of the European Court. The only suggestion made in this lecture has been that it would be helpful to bring into play the basic principle of State responsibility, according to which the State is responsible for violations of international legal obligations within areas under its control. This applies to violations of the obligations set forth in the International Covenant by public authorities.

This last element reflects a basic principle of State responsibility according to which the State is responsible for violations of international legal obligations within areas under its control.

And this principle bears upon the mode of application of the standard of providing an effective remedy. The Contracting Party is necessarily responsible for violations caused by the State and its agents, in other words, by the public authorities. And according to the principles of State responsibility, the responsible State is under an obligation to make full reparation for the injury resulting from a violation. The State responsible is also under an obligation to cease the wrongful act.

In the light of these principles, domestic courts should provide compensation for injury caused by public authorities. In the same context the obligation of Contracting Parties to cease the wrongful act provides clear treaty support for the remedy by way of a declaration of incompatibility. It may be recalled that such declarations are expressly provided for in the United Kingdom Human Rights Act.

[*] Ian Brownlie, CBE, QC, Chichele Professor of Public International Law (Emeritus), Oxford University, and member of the United Nations International Law Commission. Taken from Professor Brownlie’s address at the University of Canterbury, Christchurch, New Zealand, on Thursday 1 April 2004 as part of the International Law Group’s International Law Seminar Series.

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