No ‘Effective Remedy’ with(out) National Tort Law: A Dutch Perspective on the Obstacles for Enforcement of the Right to a Remedy

Abstract

The governing aspect of international human rights law depends on its interpretation and application by national courts. This chapter discusses the national private law enforcement of the Right to a Remedy (Art. 13 ECHR). When ECHR-rights are violated, individuals can ask for a remedy before a national court. Although national law is of vital importance for the application of international law, it is shown that national (case) law can also stand in the way of the effective application and enforcement of the right to a remedy. Cases in point are from the Dutch legal system, being one of the most progressive: ECHR-provisions can be applied over conflicting domestic law. Therefore, Dutch case-law on the right to a remedy was selected to examine the application and interpretation of international law by national courts. The direct application of international law in Dutch case law shows the effects of international law in the domestic legal order. But it also becomes clear that the peculiarities of national tort law contain certain obstacles that can easily overlooked by international law (makers), and can stand in the way effectively remedying international human rights’ violations.