The determination of non-pecuniary reparations by regional human rights courts : a cross-regional comparative study

Abstract

How do human rights courts determine non-pecuniary reparations? For a long time, the granting of reparations has been considered to be a special feature of regional human rights courts, governed by their respective conventional provisions. In this light, courts developed dissimilar approaches to reparations. While the european court of human rights (ecthr) mostly favoured the granting of monetary compensation, the inter american court of human rights (iacthr) produced a broad array of non-pecuniary reparative measures. However, these reparative paths started to cross some years ago, as the ecthr began occasionally ordering non-pecuniary reparations. Moreover, the african court on human and peoples’ rights (african court) has partially adopted this practice. Hence, these courts actually have a common reparative practice which has not been examined comparatively. This dissertation explains how regional human rights courts are determining non pecuniary reparations. Taking an integrated approach, this dissertation places the discussion within a single legal system, considering the influence of conventional provisions (lex specialis) and the norms of general international law which have a bearing on reparations notwithstanding their formal non-binding status (lex generalis). Through a comparative examination of the three regional human rights courts’ practice, and occasionally the human rights committee, this thesis inquires into the legal basis and purposes of reparations. Moreover, the ubiquitous, yet controversial, use of discretion in determining reparations is examined, finding that it can be exercised within the consideration of the principles of restitutio in integrum and equity. Additionally, this dissertation examines the iacthr’s innovative approach to reparations, noticing that non-pecuniary measures are used to achieve far-reaching goals. While said innovative approach challenges the traditional understanding of human rights adjudication, it is recognised that a discretionary use of reparations may be allowed within a permissible framework. Finally, a suitable use of the iacthr’s innovative approach by other regional courts is examined.