Accountability in the Global Business Environment
Chapter 7: Bringing the TNC Under the Jurisdiction of International Law: Institutional Avenues
INTRODUCTION A. The third pillar of the Special Representative of the Secretary-General (SRSG)’s Framework for business and human rights points to the need for greater access for victims to effective remedies, both judicial and non-judicial. So far, this is the area where recommendations from the SRSG have been most tentative in nature.1 This is understandable as the issues involved are highly controversial and political in nature. Within the boundaries of principles governing state jurisdiction (discussed above), international law has long recognized that states are free to exercise discretion in determining the scope of their own criminal and civil laws and procedures.2 While there is a clear state duty to take appropriate steps to investigate, punish and redress corporate abuses of human rights occurring within their jurisdiction, the content of that duty remains unclear. Many states currently lack adequate policies and regulatory arrangements for effectively managing the complex business and human rights relationship. While some are moving in the right direction, overall state practices exhibit substantial legal and policy incoherence and gaps, which often entail significant consequences for victims, companies and states themselves.3 So far as judicial mechanisms are concerned, significant barriers to accessing effective remedies persist throughout even the most advanced legal systems – as demonstrated in Chapters 3 to 5. Furthermore, these legal and practical access barriers are often accentuated for ‘at risk’ or vulnerable groups, particularly in the case of transnational claims. Non-judicial mechanisms thus play an important part in providing more immediate, accessible, affordable and adaptable points...
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