12.8 Protection of Human Rights
Rights are not merely good intentions. If a right is violated, one must be able to find
a way to protect it. It is possible to identify three types of institutional actors that
play a role in this connection, namely courts, politicians, and experts.
12.8.1 Protection by Courts
The protection of human rights by courts can be divided into two paradigms. Some
courts are more “constitutional” in style and focus more on repealing state policies
and legislation that violate human rights.
The power to strike down legislation creates the so-called anti-majoritarian problem: why
should a judge be able to override democracy? The issue of judicial review of national
legislation against human rights is further discussed in Sect.8.2.8.
Other courts focus more on individual justice. With some caveats, international
courts tend to fall into this second paradigm.
At risk of oversimplifying things, it could be said that an international procedure
for rights protection typically involves three stages.
Admissibility The first is a stage of “admissibility,” where the court has to decide
whether the claim satisfies several formal requirements for being considered by the
court, such as whether the claim really involves a human right, whether it has been
timely filed, and whether domestic remedies have been exhausted.
For example a tax claim should normally not be presented to a human rights court and will
not be deemed admissible.Merits If a claim is found admissible, that does not guarantee that it will be found
valid. That second judgment depends on the “merits” stage of the proceedings.
Here, the court will assess the law and the available evidence to determine whether
a human right has been violated or not.
Remedies If the court determines that a human right has been violated it passes to
the “remedies” stage of the proceedings. Here, the court will determine which
reparations should be granted by the state to the victim of human rights violations.
The stage of remedies allows for many different approaches. It can be said that tradition-
ally, the European Court of Human Rights has tended to order only remedies of “compen-
sation” -that is, monetary remedies- and to consider the judgment itself as a form of moral
redress.
By contrast, the Inter-American Court of Human Rights has tended to order much more
extensive forms of redress, including measures of restitution such as orders for the state to
create medical dispensaries in communities disrupted by human rights violations or to put
memorials for the victims.284 G. Arosemena