Measuring Effective Remedies for Fraud and Administrative
Malpractice
Katherine Ellena and Chad Vickery1
I.
Introduction
Ubi jus, ibi remedium
(Where there is a right, there must be a remedy)2
The right to an effective remedy is well established in international law, and stems from
the fundamental rights of political participation and universal suffrage detailed in Ben Griffith’s
chapter on “Voting Rights from an International Perspective.” It is the violation of these rights –
intentional or otherwise – that necessitates a remedy to restore them. Less clear is what
constitutes an “effective” remedy, especially given the wide range of electoral irregularities and
violations that can arise throughout an electoral process. Inevitably there are irregularities in
every election that do not necessarily threaten an election outcome or a fundamental right, but
still require a resolution or remedy to preserve or strengthen the integrity of the process. Further
research is needed on just how the efficacy of different remedies might be better measured –
and ultimately their application better refined. This chapter will review case law and literature to
explore the elements of an effective remedy, consider existing research on measuring effective
remedies, and set out an agenda for further research.
II.
The right to an effective remedy
The provision of a meaningful remedy has been long established in law as a fundamental
right. In 1703’s Ashby v. White, the Chief Justice of the King’s Bench of England stated: “If the
plaintiff has a right, he must of necessity have a means to vindicate and maintain it . . . want of
right and want of remedy are reciprocal.”3 More contemporary sources of international law
clearly reinforce the right to an effective remedy. Among other documents, the foundational
Universal Declaration of Human Rights (UDHR) notes the importance of the “right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights granted him
by the constitution or by law.”4 The International Covenant on Civil and Political Rights (ICCPR)
further obliges states to ensure: that effective remedies are provided for human rights violations;
that complainants have their claims determined by competent judicial, administrative or
legislative authorities (or any other competent authority); and that the competent authorities
enforce such remedies.5 As Griffith outlines, other international and regional treaties reaffirm
these rights.6 Without meaningful and enforceable remedies, any legal or adjudicative process
1
The authors also wish to acknowledge the valuable review and editorial commentary provided by David Ennis and
Erica Shein, and research support by Emily Lippolis.
2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 23 (1768).
3 92 Eng. Rep. 126 (K.D. 1703).
4 G.A. Res. 217A (XX), Universal Declaration of Human Rights (Dec. 10, 1948).
5 G.A. Res. 2200A (XXI) art. 2(3), International Covenant on Civil and Political Rights [hereinafter ICCPR] (Mar. 23, 1976)
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
6 For example, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the
International Convention on the Elimination of Racial Discrimination (ICERD), the Convention on the Rights of Persons
with Disabilities (CRPD), the European Convention for Protection of Human Rights & Fundamental Freedoms, the