capability approach;human rights violation;transnational litigation;multinationals;offshoring;Alien Tort Claims Act
International Journal of Human Rights
post-print allowed with link to publisher's website
In the last few years, a growing number of individuals whose basic rights are violated have filed transnational human rights claims in foreign countries. By placing the individual as a holder of basic rights at the core of the process of development, the capability approach, as put forward by Amartya Sen and Martha Nussbaum, provides a fertile theoretical framework to assess translational human rights litigation.
The paper shows that transnational claims are problematic in two regards:
1) They undermine development by discouraging foreign companies from investing in countries that are sources of transnational claims and by weakening local governments and judiciaries;
2) The conflict resolution process is inadequate because financial and practical constraints prevent stakeholders from directly participating in the process, and because assessing damages and enforcing award judgments will likely be unfair.
The paper then suggests that the path to be taken involves developing a stronger rule of law, stronger local institutions and independent judiciaries in those developed countries where the violations of basic human rights take place.