Read online ebook Damages and Human Rights by Jason N. E. Varuhas PDF, EPUB, FB2
9781849463720 English 1849463727 Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as a field of great practical significance, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts.The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law.The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration., Damages claims under the Human Rights Act 1998 are being made with increasing frequency, yet the theoretical foundations of such damages remain obscure, and courts have struggled to develop a theoretically sound and principled approach to their award and assessment. The question of how courts ought to approach such novel claims raises a host of complex issues. For example, in fashioning the approach how should courts balance competing concerns such as the importance of vindicating fundamental rights and, on the other hand, the public interest in the preservation of scarce public resources? How can human rights be valued in monetary terms? And is it permissible to read across damages principles developed in the private law of tort to a public law context?This book explores the theoretical foundations of human rights damages and undertakes a comprehensive examination of when such damages ought to be awarded, how they ought to be assessed, and the range of damages that ought to be available to remedy a rights-breach. The central thesis is that a vindicatory approach, modelled on the approach to damages in domestic tort law ought to be adopted. Other possible approaches are analysed, with a focus on those adopted in English and comparative case law. These include the current 'mirror' approach which ties the approach to damages in English law to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach according to which the award and assessment of damages are dependent on a judicial balancing of individual and public interests; as well as approaches drawn from EU law and United States Constitutional law.The thesis on which this book is based was awarded the Yorke Prize by the University of Cambridge as the outstanding thesis in law in 2012., Since the first edition (published in 2009), there have been several important treaty developments, including the entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) on individual communications, and significant developments in the case law on economic, social and cultural (ESC) rights. The second edition addresses these developments and explores ESC rights from foundational issues to substantive rights and systems of protection. It has been fully updated to include new material and up-to-date coverage of the case law of human rights bodies and national courts on ESC rights. In addition to the rights to health, education and work covered in the first edition, the second edition analyses new developments, such as the rights to adequate food, water and sanitation, adequate housing, social security and cultural rights. It also considers several contemporary issues including the extraterritorial human rights obligations of states in the area of economic, social and cultural rights; non-state actors; relationship of the ICESCR to other areas of international law; the Optional Protocol to the ICESCR; regional protection of ESC rights; more examples of the domestic protection of ESC rights; the protection of ESC rights of vulnerable groups; contemporary challenges to ESC rights, including poverty, corruption, armed conflicts and terrorism. It concludes by exploring the possible establishment of a World Court of Human Rights. [Subject: Human Rights Law, Tort Law, Comparative Law, Constitutional Law,], This book explores the theoretical foundations of human rights damages and it examines when such damages ought to be awarded, how they ought to be assessed, and the range of damages that ought to be available. The central thesis is that a vindicatory approach, modelled on the approach to damages for breach of basic rights in domestic tort law, ought to be adopted. A number of other approaches are analyzed in detail, including the current 'mirror' approach which ties the approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States Constitutional law. [Subject: Human Rights Law, Tort Law]
9781849463720 English 1849463727 Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as a field of great practical significance, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts.The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law.The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration., Damages claims under the Human Rights Act 1998 are being made with increasing frequency, yet the theoretical foundations of such damages remain obscure, and courts have struggled to develop a theoretically sound and principled approach to their award and assessment. The question of how courts ought to approach such novel claims raises a host of complex issues. For example, in fashioning the approach how should courts balance competing concerns such as the importance of vindicating fundamental rights and, on the other hand, the public interest in the preservation of scarce public resources? How can human rights be valued in monetary terms? And is it permissible to read across damages principles developed in the private law of tort to a public law context?This book explores the theoretical foundations of human rights damages and undertakes a comprehensive examination of when such damages ought to be awarded, how they ought to be assessed, and the range of damages that ought to be available to remedy a rights-breach. The central thesis is that a vindicatory approach, modelled on the approach to damages in domestic tort law ought to be adopted. Other possible approaches are analysed, with a focus on those adopted in English and comparative case law. These include the current 'mirror' approach which ties the approach to damages in English law to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach according to which the award and assessment of damages are dependent on a judicial balancing of individual and public interests; as well as approaches drawn from EU law and United States Constitutional law.The thesis on which this book is based was awarded the Yorke Prize by the University of Cambridge as the outstanding thesis in law in 2012., Since the first edition (published in 2009), there have been several important treaty developments, including the entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) on individual communications, and significant developments in the case law on economic, social and cultural (ESC) rights. The second edition addresses these developments and explores ESC rights from foundational issues to substantive rights and systems of protection. It has been fully updated to include new material and up-to-date coverage of the case law of human rights bodies and national courts on ESC rights. In addition to the rights to health, education and work covered in the first edition, the second edition analyses new developments, such as the rights to adequate food, water and sanitation, adequate housing, social security and cultural rights. It also considers several contemporary issues including the extraterritorial human rights obligations of states in the area of economic, social and cultural rights; non-state actors; relationship of the ICESCR to other areas of international law; the Optional Protocol to the ICESCR; regional protection of ESC rights; more examples of the domestic protection of ESC rights; the protection of ESC rights of vulnerable groups; contemporary challenges to ESC rights, including poverty, corruption, armed conflicts and terrorism. It concludes by exploring the possible establishment of a World Court of Human Rights. [Subject: Human Rights Law, Tort Law, Comparative Law, Constitutional Law,], This book explores the theoretical foundations of human rights damages and it examines when such damages ought to be awarded, how they ought to be assessed, and the range of damages that ought to be available. The central thesis is that a vindicatory approach, modelled on the approach to damages for breach of basic rights in domestic tort law, ought to be adopted. A number of other approaches are analyzed in detail, including the current 'mirror' approach which ties the approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States Constitutional law. [Subject: Human Rights Law, Tort Law]