Forms Of Redress Research Articles

Canada’s Ontological Transition? Learning from Indigenous-Led Interactions with Truth and Reconciliation

ABSTRACT This exploratory case study presents ‘ontological agility’ as crucial for settler Canadians to understand and appropriately redress historical and contemporary Indigenous-specific atrocity violence. Using thematic analysis of public-facing Indigenous-led interactions with ‘truth and reconciliation’, findings show that Indigenous activists implicitly and explicitly reinforce skills that can foster ontological agility in settler Canadians. This dynamic plays out in how Indigenous activists approach diverse views and contestation in discourse about truth and reconciliation and other forms of redress. Consequently, there is value in settler Canadians leaning into focal interactions as sites for learning how to become ontologically agile in transforming Indigenous-settler relations.

Revisiting the Chorzów Factory Standard of Reparation – Its Relevance in Contemporary International Law and Practice

Abstract The Chorzów Factory standard of reparation has been consolidated in the mind-set of international actors since the International Law Commission’s Articles on State Responsibility were adopted in 2001. This article analyses to what extent the recent case law of the International Court of Justice and other international practice concerning injury to aliens and property rights, especially expropriations, reflect the Chorzów Factory standard. It does so by considering whether ‘full reparation’ is the central issue in international disputes that involve state responsibility, if restitutio in integrum prevails over other forms of redress, and if the amount of compensation is established in light of the principle of ‘full reparation’. The interaction between the secondary rules of state responsibility and the primary rules of expropriation will be considered in investor-state disputes. In addressing these questions, the role that adjudicating bodies understand they play in international law and the interests pursued by stakeholders – states and private investors – are examined.

Illegible Allegations

Laws that shield men from punishment if they marry their victims are so ubiquitous that their genesis is impossible to identify. Rather than attempting to trace the colonial or pre-colonial “origins” of so-called marry-your-rapist laws in Algeria, this article examines particular moments within this thick history. It posits that Algerian colonial courts were sites of confrontation, misrecognition, and occasional confluence between local remedies for unlawful sex and modern legal conceptions of rape inextricable from medicalized methods of detection. Algerian litigants approached French courts in rape cases demanding forms of redress based in vernacular ontologies of equitable restitution and social cohesion. In turn, colonial authorities inferred equivalences between indigenous normative codes, Islamic textual prescriptions, and the French Code Pénal that reshaped the legal and social meaning of rape.

IDEOLOGICAL, LEGAL AND PROCEDURAL ASPECTS OF THE SEARCH FOR EFFECTIVE WAYS OF COMPENSATION FOR HARM CAUSED BY THE CRIME

The level of public confidence in the law enforcement and judicial system leaves much to be desired from year to year, citizens are increasingly showing contempt for the laws and refuse to promote justice. This is due to a number of reasons that lie not only in the plane of this discussion. Meanwhile, it is obvious that punitive measures of influence do not have the proper effect in the absence of concern on the part of the state about its citizens who have been subjected to criminal influence. Analysis from the point of view of the prospects of the article subjected to all the existing forms of redress. As a result, the authors came to the conclusion that it is necessary to simplify the methods of compensation of harm on the way to the construction of restorative criminal justice in our country. The interests of the individual and the state in modern criminal proceedings are increasingly consistent with the two most promising in the opinion of the authors of the article forms of compensation for harm: voluntary compensation for harm to the accused and/or state compensation.

International Protection of Human Rights and the Activity of Transnational Corporations.

INTRODUCTION. This study analyzes available remedies for victims who have suffered harm from business activity of transnational corporations. The goal of this study is to evaluate the effectiveness of available remedies for the protection human rights of individuals from adverse impacts of the business activity of TNCs. To achieve the goal, it is necessary to fulfill the following tasks: to consider the obligations of TNCs in modern international law, the role of states in the protecting human rights against the business activities of TNCs, examine the content of the right to an effective remedy, and characterize the existing remedies for the individuals.MATERIALS AND METHODS. During the research the latest theoretical studies of leading Western scholars was analyzed, as well as the regulatory documents, recommendations and reports of the human rights treaty bodies, international human rights treaties and extensive court practice of the ECHR. For this study formal logical, general scientifi , comparative legal and private scientific methods has been applied. RESEARCH RESULTS. In recent years, the importance of soft law in the field of international business and human rights has been increasingly strengthened. The UN Guiding principles on Business and Human Rights have become the basis for a draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations. It should be noted that the latest innovations in the draft related to the introduction of environmental rehabilitation as one of the mandatory forms of redress. Indeed, when considering mass violations of human rights by transnational corporations, we oft n encounter with serious damage to the environment, as a result of which environmental rights are violated. Increasing cases of such violations have led to the need to improve international and domestic remedies.DISCUSSION AND CONCLUSIONS. The study concluded that a remedy would be effective if it would be affordable, acceptable, adequate and timely. An effective remedy against the activities of TNCs should provide an adequate compensation or the leveling of the damage caused and bring TNCs to account for human rights violations in order to ensure such compensation. In turn, access to remedies consists of two interrelated elements: the existence of a grievance mechanism that provides a redress for business-related damage and the availability to the mechanism by aff cted persons. Access to remedies should be provided without discrimination on any of the prohibited grounds and should take into account the situation of vulnerable groups. The approach to the calculation of compensation or the choice of remedy should be individualized, taking into account the social and legal status of the victim.

Decriminalisation, Apology and Expungement: Sexual Citizenship and the Problem of Public Sex in Victoria

This article examines two instances when the relationship between homosexuality and the state was contested and redrawn in Victoria. It traces how the spectre of sex in public haunted the edges of public debate in both the moment when male homosex was ostensibly decriminalised at the beginning of the 1980s and during more recent moves to offer forms of redress to individuals convicted of sex crimes in the past that would now be considered legal acts. In both instances the spectre of sex in public unsettled a neat liberal solution. By focusing our attention on the less ‘respectable’ elements of these histories, we can see the ways in which claims for sexual citizenship retain an unruly and unpredictable edge.

Corporate illegal conduct and directors’ liability: an approach to personal accountability for violations of corporate legal compliance

ABSTRACTCorporations increasingly face penalties and other sanctions for legal compliance violations. Accordingly, there is a growing tendency to seek redress against directors and officers to compensate for the resulting losses. This phenomenon is dealt with differently by the various legal systems. Whereas some corporate laws seem to openly embrace a high level of personal liability to compensate for losses due to non-compliance, other jurisdictions express clear misgivings about such forms of redress. This article examines the paradigms of executive liability for corporate non-compliance under common law and civil law. It lays out the foundations of executive liability for corporate compliance violations and develops a notion of directors’ duties for compliance management systems and the monitoring process. In order to avoid excessive liability, it examines to what extent well-established instruments of corporate law can be employed as defences, in particular, the business judgement rule and the liberating effects of delegation.

Redress, the International Protection of Privacy and National Security and Intelligence Agencies: The Role for an Ombudsperson

The term Ombudsman (Ombudsperson) is used in various ways in a wide variety of jurisdictions and organizational settings, but there is no consensus on its definition. The institution of the ombudsperson does not make binding decisions, mandate policies or formally adjudicate issues; it supplements other formal investigative or adjudicative institutions. It is the absence of regulatory power that tends to give the institution its identity. The classical (legislative) ombudsperson responsible for remedying maladministration in an entire jurisdiction is far more common in parliamentary systems than in the U.S., where “executive,” “organizational” or “advocacy” ombudspersons are more typical. The “ombuds” function has always played a central role in the governance of privacy. However, in the context of national security and intelligence, neither ombudspersons nor data protection authorities (DPAs) have played significant roles, to date. The institution of the ombudsperson offers several advantages over judicial forms of redress. However, for any such institution, such as the new ombudsperson established under the EU-US Privacy Shield, some difficult questions of institutional design always need to be resolved on: independence and autonomy; the relationship with other oversight offices; the submission and handling of complaints; powers to force compliance; remedies; and the standards for evaluation and assessment. As these institutions have proliferated, national and international ombudsman associations have promulgated guidelines for the establishment and operation of these offices. These standards offer important international lessons for the effective operation of these offices and the building of trust.

Monetising constitutional rights: the award of damages in constitutional claims

This article aims to chart the development of the law on the award of damages as a form of relief for the breach of constitutional rights. First it will examine the jurisprudence of the Judicial Committee of the Privy Council in relation to the forms of redress under the Constitution, ranging from the seminal case of Maharaj v Attorney General to the recent decision in Alleyne v Attorney General. The Privy Council jurisprudence can be analysed along a spectrum ranging from cautious gradualism on the lower end, routine dispensation towards the middle and finally tapering off with restrained awards in recent times. The award of damages under Caribbean constitutions can be useful contrasted with the approach of courts in the UK to awards of damages under the Human Rights Act 1998. The Privy Council appears much more willing to grant damages in constitutional claims than their English counterparts in cases of alleged human rights violations. The article will end with a panoramic overview of the case law of other jurisdictions, most notably from New Zealand, South Africa and Canada in an effort to determine to what extent those jurisdictions ascribe to the Privy Council or the UK approach to damages.

Transnational Cyber Age: Private Law Cyber Solutions for Individuals and Corporations

Specifically, this article argues for the adoption of a transnational court to adjudicate claims arising from cyber-violations between non-State actors on private law matters. This proposed court seeks to establish a legal middle ground between national criminal laws and international laws of war in order to combat transnational cyber-violations through the development and promulgation of legal norms. The proposed solution advocates a unique jurisdictional hook to replace traditional territoriality based rules on jurisdiction: the “territory” of the Internet. It also advocates the adoption of the court within an umbrella organization such as the United Nations or under its own treaty. The rulings of the court are to be enforced by the State Parties to the treaty. This paper argues further that through the promulgation of legal norms from national, international, criminal, civil, and private and public organizations, the court’s resulting case law will reflect internationally accepted values with regard to the Internet. In turn, the case law from the proposed court will influence domestic law and customary international law.Part I of the article describes the state of the problem in the Cyber Age: corporate and financial institutions face major threats from cyber attacks exacerbated by the current legal landscape's lack of adequate forms of redress. In Part II, the article argues cyber-violations are transnational in nature; therefore, the international community bears responsibility and should develop a substantive body of transnational law to combat violators. The article uses the concept of a transnational legal process as the basis of establishing a forum for interaction, internalization, and refinement of transnational cyber-violation legal norms. Part III advances the position of this paper and Part IV addresses the impact this new approach to transnational cyber-violations has on public policy and the balancing between international and domestic values.

Benefiting from Climate Geoengineering and Corresponding Remedial Duties: The Case of Unforeseeable Harms

AbstractMany have argued that that it is morally wrong to benefit from an agent's culpable wronging of a third party. This thought has formed the basis of some arguments that agents can have duties to make up for wrongful acts by others that they could not have stopped, or that occurred before they were born. For example, it has been argued that those who benefited from slavery, colonialism and other shameful events in their nation's history should surrender those benefits, their equivalent value, or provide other forms of redress. Some have also argued that it is morally wrong to benefit from unjust situations caused by third parties even where there is no culpable element. These ideas have potential to be a principle of redress for harms that are caused by the working of very complex systems, such as the global climate system. Geoengineering, the intentional manipulation of the global climate, is a new development in climate science and policy — and one which raises many normative challenges. This article focuses on one specific challenge. The global climate is very complex and there is a real possibility that the best available science will not be able to account for all the consequences of deploying a geoengineering technique. Therefore, any governance regime that allows deployment will have to consider how to organise compensation or redress for any adverse impacts that could not have been predicted at the time of deployment. This article proposes that, with some modification, the principle that agents should surrender benefits that have accrued to them from using geoengineering techniques, can be a good basis for such a scheme.

Can service firms overdo service recovery? An assessment of non-linearity in service recovery satisfaction

Owing to the human nature of service delivery service failures occasionally occur. Persistently poor service delivery will, however, have a harmful impact on the survival and growth prospects of service firms. Service failure thus calls for remedial action, better known as service recovery. A variety of remedies have been proposed over the years. These remedies or tactics include fixing the problem, apologising, compensation (financial compensation or other forms of redress), a timely response and offering an explanation. A general theme in the service recovery literature is that ‘more is better’. The validity of this contention has, however, not been adequately considered. In other words, in a service recovery context, is more always better? Can service recovery be over-done (known as ‘over-benefitting’)? If so, what are the consequences? Based on the results of two field-type experimental studies involving a sample of 12 800 respondents the conclusion is that over-benefitting can be counter-productive. Over-benefitting consistently produced satisfaction scores lower than service recovery that was more moderate in nature.

'Broken down by race ...': questioning social categories in redress policies

Arguing that choices have to be made between forms of redress, on the one hand, and progress towards a non-racial society and social cohesion and avoidance of group-based social conflict on the other, I propose the 'necessity of utopian thinking' for debate. It is not redress (or 'transformation') that it at issue but the form that it takes. Redress, in its several necessary forms , cannot be constricted by a narrow focus on race. Nor can the consequences of such a near-exclusive focus be ignored: consequences of exclusion or marginalisation of certain factors such as class, ethnicity and gender; consequences of strengthening race thinking; consequences of failure in effectively addressing inequality and poverty; consequences of weakening moves to ensure social cohesion.

Meto Disputes and Peacemaking: Cultural Notes on Conflict and its Resolution in West Timor

Customary practices of dispute mediation and resolution have long provided informal and locally legitimate forms of redress and justice for Timorese communities. Drawing on the ethnography of Meto society in West Timor, this paper explores a range of cultural approaches surrounding conflict resolution among constituent smallholder farming communities. Case studies of warfare, marriage and land disputes are presented. Consideration is given to adapting forms of customary dispute resolution within state regulatory procedures.

Confidentiality and security of information

Doctors have a duty to preserve patient confidentiality. Increased use of information technology has made it necessary to introduce new codes of practice relating to the handling of confidential patient information. The 1998 Data Protection Act defines what is legal and appropriate regarding the use of such information and defines the responsibilities of those who record and use that information. The Act describes the rights of subjects who have information recorded about them and their forms of redress. National codes of practice on patient confidentiality are based on the legal requirements of the Act. Access to patient information systems needs to be controlled to prevent unauthorized access. Much of the process of information security is managed at Trust level, but all doctors need a basic knowledge of computer system security. As well as access control, security measures must try to ensure that stored information remains intact and yet available to all users who have authorization. This is the triad of confidentiality, integrity and availability. In attempting to achieve these aims some compromise is necessary because there is some degree of mutual incompatibility. The actual measures taken in each case depend on the sensitivity and importance of the information. The Act only states that appropriate security measures should be taken, they are not defined. Information security does not relate solely to computer systems; paper records, telephone messages and faxes are equally important. There are many technological aids to improving security that the NHS must consider, though for most doctors the essential issues are of awareness and a cultural change of practice.

The Guilt of Nations?

“What responsibility do ordinary people bear for atrocities committed in their names? According to modern democratic sensibilities, responsibility is an individual affair. The idea, as in Exodus (20:5), that the sins of the fathers could be delivered unto the third and fourth generations goes against the grain. It seems to be part of the collectivistic thinking that characterizes modernity off its rails, a pre-modern remain that produces outbursts of racism, nationalism, and genocide. That is not to say that we are not interested in accountability for political crimes. International human rights entrepreneurs have pressed for holding dictators accountable and have supported efforts to obtain reparations and other forms of redress. But we are very careful to avoid charges of “collective guilt,” which often sound more like the problem than the solution. We don't want to start a culture war or clash of civilizations!…In contrast to the Mitscherlichs, Sebald is thus very much a man of his times, free of the older orthodoxies of the West German memory wars. For decades, the politics of memory in West Germany was divided between those who feared “too much” memory and those, like Jung and the Mitscherlichs, who believed Germans needed to work through their (collective) guilt if they were to overcome the symptoms of repression. Sebald does indeed pose a strong ethical and political-cultural imperative to remember, but his lecture was controversial because the lost memory it laments is that of German suffering, which heretofore has been the rallying cry of the extreme right. In this regard, Sebald is only one example of a surprising recent interest in the memory of German suffering from the left…. How legitimate is this new interest in German suffering, previously associated with nationalist revanchism and discreditable positions? The answer depends on the purpose…”

Racial discrimination and forms of redress in the military

Since passage of Title VII of the Civil Rights Act of 1964, employers have been required to eliminate race as a criterion for virtually all job decisions. Because of a series of legal rulings, however, the U.S. military has more or less been exempt from complying with the requirements of Title VII. The reason for this exemption has been the prevailing belief that the ability to address grievances to civilian courts would undermine the discipline necessary for accomplishment of the military mission. Such an assumption is unsupported by empirical evidence. Uniformed military personnel who feel they are victims of racial discrimination must use the military justice system, which provides less protection for the individual. This paper argues that allowing uniformed military personnel access to civilian courts for redress of Title VII grievances may improve military morale and efficiency.

GRIEVANCES, REMEDIES AND THE STATE

Administrative law is the legal growth industry of the i98os. Almost every week the courts deliver judgments on complaints by individuals against some branch of government or adjudicate disputes between public authorities, central and local, metropolitan and district. In the course of this activity new concepts have been developed, such as 'fairness' and 'legitimate expectations', which in their turn are used to push back the frontiers of judicial review. Yet perhaps a little curiously this phenomenon is treated with some reserve by many commentators. Attention is rightly drawn to the alternative avenues for redress open to aggrieved citizens: complaint to Ombudsmen (Parliamentary, Health Service or Local), appeal to tribunals, appearance at planning inquiries, or employment of the numerous complaints procedures, formal and informal, set up by the public authorities themselves or by watch-dog councils and complaints authorities. The courts have, to use the fashionable word, been 'marginalized' as fora for remedying the abuse of administrative power. Administrative lawyers should, therefore, now concentrate on the variety of different procedures for controlling government and evaluate their relative effectiveness. This is the thesis of Patrick Birkinshaw's book, Grievances, Remedies and the State.' It examines the numerous forms of redress, some of which have been virtually ignored by standard works on administrative law; significantly judicial review is relegated to the final chapter. There is a great deal of valuable information in the book. The discussion of informal methods of complaint against public authorities is particularly stimulating. Birkinshaw rightly points out that these procedures may be used disproportionately by the articulate and cantankerous. Moreover, informal consultation processes will be of benefit to well-organized pressure groups and may preclude any effective participation by ordinary members of the public in the administrative process.2 (Of course, there are similar drawbacks to the most formal procedures, e.g., litigation in the courts, but it is useful to have discovered that things are little better with (at least) some alternatives.) This review, however, is primarily concerned with one or two of the genefal themes, stated in the opening chapter of Birkinshaw's book and developed at points throughout the text. The first is that administrative law, broadly understood, is concerned with both the redress of individual grievances and achieving the accountability of