This Chapter responds to the under-theorization of remedies by outlining and defending the two-track approach that combines individual and systemic remedies with courts playing a more dominant role with respect to the former and a more dialogic role with respect to the latter. Part I examines the roots of compensatory remedies in corrective justice and “right to a remedy” reasoning associated with the common law and Blackstone and Dicey. Part II examines how remedies have increasingly been concerned with preventing future rights violations. Part III outlines the two-track approach and explores its origins in the distinction that supra-national adjudicators often draw between individual and general measures and Chayes’ distinction between traditional and public law litigation. Part IV argues that an exclusive focus on either individual or systemic remedies will be incomplete and produce remedial pathologies. Part V examines how the two-track approach recognizes and responds to the reality of remedial failure. It outlines how cycles of individual and systemic remedies can occur. This allows both litigants and courts to adjust their approach in response to new evidence and new concerns. This allows courts, when warranted, to escalate their remedies when states fail to take reasonable steps to prevent repetitive violations.

Part I examines common issues in remedies including their dual compensatory and preventive goals pursued through the two-track approach. Part II discusses the legal process and dialogic methodology used throughout the book. With reference to scholarship by Edwin Borchard and Abram Chayes, Part III justifies the decision to examine remedies in both supra-national and national human rights. Part IV examines the relation between rights and remedies including remedial deterrence where judges do not find violations because of concerns about excessive remedies. Part V examines textual sources for remedies in international and select domestic human rights contexts. It concludes that while some texts such as the European Convention on Human Rights may restrict some remedies, vague admonitions for the need for effective and appropriate remedies do not assist remedial decision-making. Distinctions between strong and rule-based exercises of remedial discretion are examined in Part VI where a principled approach is defended. The ability of proportionality principles to make remedial decision-making more disciplined and transparent is discussed in Part VII. The remedial principles of respecting subsidiarity in international law and the separation of powers are examined in Part VIII with an emphasis on the flexible and dialogic nature of these principles.