Chapter

Open Remedies in Human Rights Adjudication

Aruna Sathanapally

in Beyond Disagreement

Published in print October 2012 | ISBN: 9780199669301
Published online January 2013 | e-ISBN: 9780191744648 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199669301.003.0002
Open Remedies in Human Rights Adjudication

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Chapter 1 introduces the approach referred to as ‘open remedies’ in human rights adjudication, distinguishing between the broader concept of weak-form human rights review and open remedies. Open remedies, elsewhere referred to as ‘weak remedies’ or ‘dialogic remedies’, are a range of declaratory mechanisms whereby the courts do not provide direct immediate relief to the victim other than a declaration that human rights safeguards have been infringed, leaving corrective action in the hands of the other branches of government either temporarily or indefinitely. This chapter examines and classifies the variety of such remedies across a number of jurisdictions. It identifies the shared rationales that underpin the open remedial approach as well as the principal concerns it gives rise to.This chapter contextualises declarations of incompatibility within this broader comparative perspective.

Keywords: declarations; legislative remand; delayed declarations of invalidity; suspended declarations; cooperative constitutionalism; separation of powers; judicial function; corrective justice; expository justice

Chapter.  11538 words. 

Subjects: Human Rights and Immigration

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