Interview with Professor Kent Roach on remedies in human rights law and the importance of the IHRP
Professor Kent Roach is Professor of Law and the Prichard-Wilson Chair in Law and Public Policy at the University of Toronto Faculty of Law. Professor Roach’s new book, Remedies for Human Rights Violations: A Two-Track Approach to Supra-national and National Law, provides fresh insights into the field of remedies in both international and domestic human rights law.
This interview has been edited for clarity and concision. The full version appears on the Rights Review website, and the audio version can be found on our podcast, available on both Spotify and Apple Podcasts.
Rights Review (RR): What inspired you to write a book about supra-national law?
Professor Kent Roach (KR): I’ve been interested in remedies for a long time, but mostly domestically. I started the book as a course at the Center for Transnational Legal Studies. I arranged for my students there to meet with representatives of the European Court of Human Rights and the Council of Ministers. That trip got me thinking about supra-national law because the European Court of Human Rights is probably the world’s most important human rights court.
The more I looked at international law, the more I found, perhaps counterintuitively, that domestic lawyers could learn a lot from international lawyers. International courts—in part because they don’t have the coercive powers that some domestic courts have—have been more creative and thoughtful about remedies.
Two people had done this kind of crossover before: Yale Law professor, Edwin Borchard and Harvard Law professor, Abram Chayes. Both of these people wrote at a time when things, perhaps, were not as specialized, and they really straddled domestic and international law. Borchard, for example, is responsible for having declarations recognized as a remedy, and he borrows that from international law and from civil systems.
That’s how I got interested. I hope international lawyers as well as domestic lawyers read the book—but whenever you try to go for two audiences you always run the danger of losing them both.
RR: In what ways have supra-national courts been innovative in ordering remedies?
KR: The essence of the two-track approach that I defend in the book is borrowed from the international law distinction between specific measures, which are designed to provide some remedy to compensate for harm that a litigant has suffered, and general measures, which are designed to ensure non-repetition of the violation.
Supra-national courts have also experimented with interim remedies. This isn’t always successful, but even that can be significant and can signal to civil society that something is wrong. International courts also retain jurisdiction over matters for longer than Canadian courts, which seem quite allergic to retaining jurisdiction.
In part because international law started with state-to-state relations and has now developed into state-individual relations, its approach to satisfaction is much less monetized than the common law’s approach to damages. International law does not pretend that paying money to a person whose life has been altered by a human rights violation suddenly wipes the slate clean and achieves some form of corrective justice.
RR: Could you speak a bit more to declarations as a remedy and how it is applicable within international law?
KR: Domestic lawyers tend to think of declarations as a second-best remedy because, usually, in domestic law, there is a choice between a declaration and an injunction. A declaration is a statement by the court of what the law requires that typically ends a court’s jurisdiction over a case, while an injunction is a mandatory order telling the defendant—often the state—to do something. There, the court retains jurisdiction because the breach of an injunction is a form of fault—contempt of court.
One of the things that I’ve been arguing for, domestically, but that I also saw reflected in international court, is that we need a remedy halfway between a declaration that ends a court’s jurisdiction and an injunction, i.e. the “declaration plus”.
The “declaration plus” is something by which the court provides an idea about what is required to comply with rights going forward, but also retains jurisdiction so that, if there are disputes about what the court meant or a failure by the government to respond, the parties can go back.
It was very bittersweet because just after I finished the book, Joe Arvay, who I’d had the pleasure of working with and who was probably Canada’s leading public law litigator, passed away. One of Joe’s many important cases, Little Sisters Book and Art Emporium v Canada, really illustrates why we need what I call a “declaration plus”. Little Sisters won a declaration that customs had profiled their imports as a bookstore whose clientele were sexual minorities. But customs really didn’t respond or fix its act, and Joe had to start litigation again for Little Sisters. That case went to the Supreme Court but was stopped when the Court refused to award advance costs to allow this very small bookstore to take on the government of Canada and the customs bureaucracy.
For me, the “declaration plus” is practical. It happens, I think, much more routinely in supra-national law because most of those courts don’t have jurisdiction to order an injunction. They make up for it by retaining jurisdiction, which, I think, Canadian courts—partly because of what the Supreme Court of Canada has told them—are extremely reluctant to do.
RR: You referenced the distinction that arises within supra-national law of treating parties as being in state-to-state relations versus state-to-individual relations, and how resolutions come off as less monetized because of that. Given that reconciliation is viewed through the nation-to-nation lens, how do you see that framework shaping remedies for violations of Indigenous rights?
KR: That’s a good and challenging question. I devoted a chapter to remedies for violations of Indigneous rights, and friends such as John Burrows and Brenda Gunn read those chapters and provided suggestions. But I am tentative here because one of the things we don’t want is to promote a form of neocolonialism with respect to Indigenous rights. Even the Inter-American Court of Human Rights, though in some ways the boldest in terms of Indigenous rights, has not always avoided that kind of paternalistic, neocolonial approach.
I think that going back to the state-to-state route—the idea that courts can create a space for Indigenous people to come up with their own solutions—is something that we really need to think about.
Since the book was finished, I was really grateful that students at U of T asked me to write a short piece on remedies for climate change because the Journal of Law and Equality was doing a special issue. One of the things that came out there is that we need to recognize that Indigenous governments may have an ability to regulate and pursue strategies to mitigate climate change. So, that’s one of many remedies that I talk about in that article, which is a pretty direct offshoot from the book. I actually hadn’t thought as much as I should have about climate change, but doing the research for that also kind of convinced me that sometimes the strongest remedies can actually backfire.
And so, one of the things that I’ve kind of built into the book is this idea that we have to own up to remedial failure. We have to recognize the way international courts are more honest about how, sometimes, remedies don’t work and the answer is not to give up, but to try again. If the court has retained jurisdiction over the matter, or if the court is aware of prior attempts to remedy, then it can learn from that experience and perhaps ratchet up the remedies. But if the court sees each case as simply tabula rasa, then we’re not going to have the sense of remedial failure. Part of my big bug-a-boo is that most of the books I pick up on rights, whether its domestic or international law, don’t really grapple fully with the messy world of remedies.
RR: Your comment about the harsh reality of remedial failures addresses why we were interested in reading your book in the first place. Perfect justice shouldn’t be the enemy of individual justice, and it’s important to remember that we can be creative with the remedies within our existing system.
KR: One of the things that has probably changed for me over the years is that I’ve come to appreciate that an individual remedy—and that’s one track, the second is the systemic track—is important, even if it’s inadequate. Damages can often be inadequate, but it’s better to call the judge’s attention to an individual person even if you can’t achieve perfect distribution of justice.
One of the things that Justice Albie Sachs, the great South African Constitutional Court judge and former ANC member, did later in his career as a judge, is draw this distinction between micro- and macro-injustices. There was a housing rights case where the court enjoined the destruction of irregular housing that so many people lived in. He essentially said, “Look, I as a judge can prevent this micro-injustice. I know that it may be a generation before we deal with the macro-injustices, and we shouldn’t lose sight of that, but we can actually do both.”
RR: I think that really illustrates why we should be reading your book. We’re interested in legal systems across the world, and sometimes it’s hard to find a book that spans across criminal and constitutional law issues but also taps into things like remedies and housing cases.
KR: I very much hope that the International Human Rights Program [IHRP] can get back on its feet. One of the reasons I resigned as Chair of the Asper Centre in protest of the University’s approach is that I felt very strongly that the idea that clinical directors were “non-academic”, and therefore not protected by academic freedom, really spoke to a very elitist attitude that dwells in the world of perfect rights and high-status and looks at things like litigation and remedies as somehow dirty and inferior.
Fortunately, a recent committee has recommended that clinical directors be recognized as having academic freedom, though I have to say this wasn’t done in a very well-publicized or particularly collegial, polite, or courteous way. For me, that is also something I think a lot of our students get a skewed view of in class—and I include myself in this criticism. If you get to a world where remedies are seen as a second thought or a simple matter of corrective justice that somehow restores the status quo, then you are operating under a very unrealistic view of the world and its injustices.
It’s only through grappling with the difficulties of remedies, and frankly, the ineffability of remedial failure, that you see that people who are struggling and those that are helping them to get remedies shouldn’t be denigrated in any way.
RR: We appreciate you bringing up the hiring scandal in this context. Many students chose this law school because of the IHRP, so it’s ironic that the sort of program that would train students to enter the world of human rights law and help them become better practitioners in the field has become stunted in this way.
KR: I think this is also a matter of professional responsibility. One of the things that has really influenced me is a 1975 article [called “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation”] by Derrick Bell, who’s one of the founders of Critical Race Theory. It was written after Bell left the NAACP, a public interest group that had done a lot of school desegregation litigation, and had moved into the academy.
It’s this incredibly honest portrayal about who his client was. Was his client the NAACP, which wanted to achieve (to the extent possible in a residentially segregated America) racial integration, or was his client the families and African American school children? Once you’re a parent, you get really selfish because your child only has one education—or, to transfer this to the students here, only three very expensive years in law school.
I also find it disheartening that hiring someone who makes professional responsibility their main topic of academic inquiry has never been the priority in the 30 years that I’ve been on the Faculty.
I definitely appreciate that students who came here for the IHRP feel robbed. I feel that the Faculty is moving away from what we think it should be doing, and I worry that, without things like the IHRP, we aren’t going to attract the students who are interested in these issues of social justice and these kinds of messy struggles to get remedies for the most disadvantaged throughout the world.
RR: In your book, you mention that supra-national courts have better remedies because they need greater legitimacy. On the flip side: can we expect our legal system to be more trusted by the public if we properly address remedial failures?
KR: In 2001, I represented Aboriginal Legal Services, the African Canadian Legal Clinic [now, the Black Legal Action Centre], and others in R v Golden, and we won. The Supreme Court said, “No more routine strip searches.” But we know for the next 20 years, especially here in Toronto, there were a lot of routine strip searches. So, I think that when you don’t have effective remedies, it promotes a lot of cynicism.
The other thing that we have to counter is this idea that one mega-remedy is going to somehow deal with climate change, or police racism and violence. The remedial approach that I outline here and dialogic approaches require, generally, civil society to have a lot of staying power. So, you think of Canada v Bedford and Carter v Canada as two of the most significant Charter cases, but in both cases, the judicial victories became legislative losses.
One of our problems in Canada is a thin civil society, and part of what the IHRP did is give its students access to better financed civil societies across Europe, the United States, and sometimes Latin America. That is one of the advantages of clinics, which is another reason why we have to respect clinical instructors, not as second-class citizens or non-academic faculty, but as academic faculty.
RR: Would you say that class action lawsuits are an effective tool for addressing claims concerning social, economic, and cultural rights?
KR: Class actions are definitely one way to go. But my worry, especially in the Canadian context, is that we’re using class actions when courts should be retaining jurisdiction. This goes to professional responsibility—that class actions are a kind of fix that we have for our access to justice problems and it allows firms to invest literally millions of dollars into lawsuits.
The remedial dilemmas that Derrick Bell talked about so eloquently are huge when it comes to class actions because once you get a class action certified there’s a real temptation for lawyers to settle to get some of the money that they’ve invested back. Although the judge has a role in approving the settlement, frankly our Canadian judges, even during COVID, have not shown receptivity to retaining jurisdiction.
RR: You brought up the possibility of a political victory arising out of a lost court case. What means would best facilitate that victory?
KR: That’s where I think the media and socially engaged universities play a role. My colleague Anver Emon has been doing work on this and there have been other studies by the International Civil Liberties Group on the practices of the Canada Revenue Agency auditing Muslim charities. If we talk about policing: what about the under-protection of Muslims and other groups from terrorism and hate crimes? A socially conscious university needs to encourage this sort of research, especially as traditional media dies.
Media plays a big role in remedying wrongful convictions and all forms of injustice. Along with universities and think tanks, they can step up to provide such information because research is really powerful. One of the things I’ve been involved with over my career is R v Gladue and the recognition of Gladue sentencing. That would never have gotten off the ground if we couldn’t point to the research done by Stats Canada. When I think about remedial failure, I probably think about Gladue.
It, in some ways, has been a spectacular failure, but I’ve really been honored to work with people, like Jonathan Rudin, who just don’t give up and just keep fighting. He fights from his perch at Aboriginal Legal Services, and now he’s a litigator in residence at the Asper Centre, which, again, brings us to the absolute importance of clinical programs at our law school.
RR: That is probably the best takeaway for us as well, as we move into the profession: to keep fighting from our perch.
