Beyond Disagreement: Open Remedies in Human Rights Adjudication by Aruna SathanapallyBeyond Disagreement: Open Remedies in Human Rights Adjudication by Aruna Sathanapally

Beyond Disagreement: Open Remedies in Human Rights Adjudication

byAruna Sathanapally

Hardcover | December 29, 2012

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Examining the role of 'open remedies' in human rights adjudication, this book provides a new perspective informing comparative constitutional debates on how to structure institutional relationships over fundamental rights and freedoms. Open remedies declare a human rights violation but invite the other branches of government to decide what corrective action should be taken. Open remedies are premised on the need to engage institutions beyond courts in the process of thinking about and acting on human rights problems. This bookconsiders examples across the United States, South Africa, Canada, and internationally, emphasising their similarities and differences in design and the diverse ways they could operate in practice. The book investigates these possibilities through the first systematic legal and empirical study of the declaration of incompatibility model under the United Kingdom Human Rights Act. This new model provides a non-binding declaration that the law has infringed human rights standards, for thelegislature's consideration. By design, it has the potential to support democratic deliberation on what human rights require of the laws and policies of the State, however, it also carries uncertainties and risks. Providing a lucid account of existing debates on the relative roles of courts and legislatures to determine the requirements of fundamental rights commitments, the book argues that we need to look beyond the theoretical focus on rights disagreements, to how these remedies have operated in practiceacross the courts and the political branches of government. Importantly, we should pay attention to the nature and scope of legislative engagement in deliberation on the human rights matters raised by declarations of incompatibility. Adopting this approach, this book presents a carefully argued viewof how courts have exercised this power, as well as how the UK executive and Parliament have responded to its use.
Dr Aruna Sathanapally is lawyer who completed her doctorate in law at the University of Oxford, as a Menzies Scholar and a John Monash Scholar. She clerked for the President of the NSW Court of Appeal and has worked on a wide range of human rights matters.
Title:Beyond Disagreement: Open Remedies in Human Rights AdjudicationFormat:HardcoverDimensions:288 pages, 9.21 × 6.14 × 0.03 inPublished:December 29, 2012Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199669309

ISBN - 13:9780199669301

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Table of Contents

IntroductionPart I: Typology and Interactions1. Open Remedies in Human Rights Adjudication2. The Role of the Legislature3. From Dialogue to EngagementPart II: Declarations of Incompatibility in the Courts4. The Criteria for a Declaration of Incompatibility5. Judicial Restraint and Activism ConsideredPart III: Responsive Deliberation in Practice6. The Pattern of Institutional Dialogue7. Remedial Deliberation in the Legislature8. Belmarsh Prisoners and Dialogue over Control Orders9. EpilogueConclusionBibliography