Monetary Remedies for Breaches of Human Rights

A Comparative Study
Erscheinungsjahr 2006
ISBN: 978-1-84113-511-3
Verlag: Hart Publishing

Buch, Englisch, 236 Seiten, Format (B × H): 156 mm x 234 mm, Gewicht: 0 g

Reihe: Human Rights Law in Perspective

This book constructs a framework which allows a greater understanding of domestic causes of action for breaches of human rights sounding in a monetary remedy. The first part describes the cause of action in three jurisdictions: the United States of America, India and New Zealand.

The second part discusses two insights resulting from a comparative analysis of these three jurisdictions. The first is a list of four common questions that, when answered, structure the cause of action. These questions address what the cause of action protects, who the cause of action protects, against whom the cause of action is directed, and what the court orders. The second is a list of four overarching influences that affected the answers given to those questions in the three jurisdictions, so completing the structure of the causes of action. These influences are the cause of action's source, age, wider context and internal context. Putting these two chapters together provides a generalised outline of the causes of action.

In the third part of the book the analysis is turned around. The generalised framework is assessed as a way in which to categorise the development and shape of the cause of action in England under the Human Rights Act 1998.

The book concludes that a generic structure of the cause of action is common to the three jurisdictions studied and that the differences between the jurisdictions can be explained by influences that affect the causes of action in different ways. Further, this generalised framework is of relevance beyond the three jurisdictions from which it was drawn; it can be used as a guide by other jurisdictions in which such a cause of action either exists or will develop in the future.

Autoren/Hrsg.

Tortell, Lisa

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsvergleichung

Inhaltsverzeichnis

1 Introduction
PART I: JURISDICTIONS
2 United States of America: Section 1983 and Bivens
A. Introduction
B. Actions against State Governments
C. Actions against Federal Officers
D. Summary: The Causes of Action in the United States
3 India: Article 32
A. Introduction
B. The Constitution and the Supreme Court
C. The Centrality of Article 32
D. The Relationship between Articles 32 and 226
E. Standing
F. The Development of a Monetary Remedy
G. Expansion of the Remedy
H. Summary
4 New Zealand: Baigent's Case
A. Introduction
B. New Zealand Bill of Rights Act 1990
C. The Cause of Action
D. Summary
PART II: COMPARATIVE ANALYSIS
5 Structure of the Cause of Action
A. Introduction
B. What Does the Cause of Action Protect?
C. Who Does the Cause of Action Protect?
D. Against Whom Is the Cause of Action Directed?
E. What Does the Court Order?
F. Conclusions
6 Overarching Influences
A. Introduction
B. What Is the Source of the Cause Of Action?
C. What Is the Age of the Cause of Action?
D. What Is the Wider Context of the Cause Of Action?
E. What Is the Internal Context of the Cause of Action?
F. Conclusions
PART III: TURNING THE ANALYSIS AROUND
7 The United Kingdom Human Rights Act 1998
A. Introduction
B. Completing the Framework: the Overarching Influences
C. Answering the Common Questions: Towards an Application to the
Human Rights Act
D. Conclusions
8 Conclusion

Über Autor(innen)

Lisa Tortell is a research fellow at DINÂMIA - Centre for Social and Economic Change in Lisbon. She holds a DPhil in Law from the University of Oxford and has previously worked as Legal Adviser to the ILO Commission of Inquiry on Freedom of Association in Belarus, as Legal Officer in the ILO, as Assistant Crown Counsel in the New Zealand Crown Law Office and as a Judge's Clerk to the Chief Justice of New Zealand.