Transnational Corporations and the International Human Rights - Dissertation Example

40 (2) Between the happening of the event that constitutes a violation, and the judgment of the court that liability exists, a substantial amount of time would usually have passed, during which restoration would have been rendered difficult or impossible. 40 (3) Restitution may not be sufficient to fully repair the damage that was done. When individuals suffered injuries during the violation, medical care may not be sufficient to restore the mental health of those who suffered the injustice 40 These reasons may discourage the tribunal from resorting to restitution as the primary means of reparation; when deciding on the remedy, the tribunal must use its discretion, because there is not sufficient guidance in case law to advice when a remedy is suitable and when it is not.

40 Chapter 5: Access to Remedies 41 5.1 Chapter overview 41 5.2 The necessity for recourse to remedies 41 5.3 The mandate for remedies under the Framework 42 5.4 Possible remedies and their implications 43 5.5 Due diligence in determining responsibility 47 Chapter 6: Conclusion and Recommendation 48 6.1 Chapter overview 48 6.2 Findings of the study 48 6.3 Conclusion 50 6.4 Recommendations 50 Bibliography 52 Chapter 1: Introduction 1.1 Chapter overview This first chapter lays the groundwork for the entire dissertation.

It defines the research problem and provides the context within which the problem should be viewed. A background of the problem situates the dissertation’s perspective of the problem prior to the statement of the problem and research questions. Five research questions are specified that will guide the discussion of the various issues leading to the conclusion. A description of the methodology explains the type of data the. Transnational companies transacting across borders may circumvent the framework of governance imposed by national law, because the parties to the contract or transaction are not totally within the rule of one nation.

Thus, a gap in governance exists, between the scope and influence of economic actors and the market forces on the one hand, and the capability of societies to address and manage the harmful effects created by globalization, on the other hand. John Ruggie, former Special Representative of the Secretary General for Business and Human Rights, takes the position that ‘governance gaps’ created by the speed of globalization and the failure of states to keep pace in their capacities to provide the necessary regulatory frameworks enable the ‘permissive environment’ that allows for the ‘wrongful acts by companies of all kinds without adequate sanctioning or reparation.

’ There is also a need to clearly define the standards against which the actions of transnational corporations are to be assessed, and the process in addressing perceived violations. It is necessary, prior to enforcement of sanctions, to identify the elements which determine the culpability of the accused corporation. In many cases, there is a lack of precedent according to which the new cases are to be judged. There is likewise uncertainty about the legal procedure to be followed, the vesting of jurisdiction in the proper authority, even the identification of the tribunal to hear the case.

Light also needs to be shed on the protocol as to how claim may be made and the party with the personality to make it, and the protections which the accused corporation may avail itself of in warding off false claims and accusations