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2018 | Access Granted, Access Barred: Exploring the Interplay of Human Rights and States’ Domestic Liability Regimes in the Context of Individual Reparation Claims, by L. Beinlich, Max Plack Institute for International Law Research Paper Series, No. 2018-19

Although states’ domestic liability regimes (such as tort law) seem to provide a fitting legal basis for reparation claims of victims of armed conflict, successful proceedings are rather exceptional. This article briefly addresses what legal doctrines domestic courts rely on when dismissing reparation claims. It then looks at this practice through the lenses of Articles 6 and 13 of the European Convention on Human Rights (ECHR) addressing respectively the right to a fair trial, which includes the right of access to a court, and the right to an effective remedy.

Some courts find that claims relating to war-related harm, are non-justiciable because it is outside their jurisdiction to rule on “political” or “governmental” acts. In the last decade, reparation claims of drone victims were repeatedly dismissed by domestic courts in the United States and the United Kingdom. These courts relied on the Political question doctrine and the Foreign Act of State doctrine to avoid entertaining the merits of the case. However, and more generally, such legal doctrines sit uneasily with the fundamental rights of victims of armed conflict under Articles 6 and 15 ECHR.

The author explains that Article 6 ECHR holds a procedural guarantee of access to a court; it requires state parties to the ECHR to enable claimants to pursue civil claims before a domestic court. Limitations to this right, such as immunities, can be justified as long as they are proportionate and do not impair the very essence of the right of access to a court. Seeing proportionality as key, the author advocates for courts to use a ‘proportionality test’ that balances the (legitimate) interests of states against the interests of the affected individuals without dismissing one of the two sides at the outset. Moreover, dismissals should be carefully justified and explained.

Article 13 ECHR obliges states to provide effective (non-) judicial remedies in cases of an alleged violation of a right under the ECHR.  If a state has no non-judicial remedy in place, and claimants nevertheless are denied access to the domestic courts of state parties to the ECHR, the author argues that this situation would give rise to potential violations of Article 13 ECHR.

The author concludes that doctrines that bar victims’ access to a court or to a remedy must be challenged in order to enhance their legal protection. Critically reviewing these barriers is crucial for domestic courts to act as a meaningful forum with regard to individual reparation claims based on international law; thereto procedural human rights could function as a lever.

More on doctrines barring judicial review of claims filed by victims or armed conflict can be found here.