Margaux J. Hall and David C. Weiss (Wilmer, Cutler, Pickering, Hale, & Dorr LLP and Skadden, Arps, Slate, Meagher & Flom LLP) have posted Human Rights and Remedial Equilibration: Equilibrating Socio-Economic Rights (Brooklyn Journal of International Law, Vol. 36, 2011) on SSRN. Here is the abstract:
-
Human rights law guarantees fundamental rights, except when it doesn’t. The conventional understanding of human rights – and particularly descriptions of socio-economic rights – characterizes rights as universally agreed-upon norms, representing value choices, the frameworks for which states agree to and which courts or international tribunals define. Efforts to create remedies for human rights violations, in this account, stumble over practical realities such as political and budgetary constraints. This conventional description of human rights thus treats the challenge of designing remedies as a problem separable from that of discerning the content of rights. This account echoes “rights essentialism,” in which judges intuit a pure right that is often corrupted when the government translates the right into a remedy. Rights essentialism similarly dominated U.S. constitutional discourse for decades, though it has recently been discredited (or at least challenged). Yet a rights essentialist view of human rights persists in current human rights discourse.
Instead of the rights essentialist, conventional understanding of human rights and attendant remedies, a more nuanced understanding of human rights jurisprudence reveals a symbiotic relationship wherein considerations of remedies affect rights determinations and vice versa. Drawing on theories of “remedial deterrence” and “remedial equilibration,” there are several important implications of such an approach. These include understanding that remedial concerns permeate efforts to define the content of human rights, and especially socio-economic rights; considering the institutional division of labor between branches of government if courts alone do not define rights; and recognizing the importance of judicial transparency and candor in describing the challenges courts confront in seeking to create more resonance between rights and remedies. Ultimately, instead of embracing the conventional view of human rights that parses rights from remedies, human rights practitioners and theorists, as well as policymakers, should more thoughtfully consider the rights-remedies relationship as one in which rights and remedies are inevitably interdependent and mutually defining.
