This chapter introduces the central research agenda, methodology, and scope of the book, centring the concept of grievance formation. Discussing the legal foundations and modalities of remedies in international law, the chapter poses the question of state remedial responsibilities in relation to the passage of time. This is a central question in the globally emerging discussions on whether states ought to remedy sterilisation or castration practices in their past. Furthermore, the chapter lays down the theoretical framework for the book’s use of the concept of grievance formation. As employed in social movement theory, this concept describes the process of people starting to address harmful experiences as common grievances. In this chapter, the concept is initially introduced into legal research by linking it with rights mobilisation: how victims of rights violations redefine traumatic experiences as individual or common grievances, rights violations, and legal harm to be remedied. As such, the concept offers a theoretical framework to understand how and why some victims of rights violations begin to conceptualise themselves as such and demand state responsibility, while others might not; why victims are publicly and institutionally recognised and redressed to different extents.

Chapter 3 presents the Corporations and Human Rights Database by exploring patterns and trends with descriptive data to illustrate the variation in access to remedy. The CHRD includes over 1,300 allegations of corporate human rights abuse between 2000 and 2014. Chapter 3 explains how my students and I created the CHRD, which is the first systematic database on corporate human rights abuses and access to remedy. This chapter discusses the data collection process and includes descriptive statistics on the type of claim, corporate responses, and associated judicial and non-judicial remedy efforts included in the database. This chapter familiarizes the reader with the data, discusses verification processes, and provides a basic landscape of how the CHRD informs business and human rights in Latin America.

Chapter 2 takes a deeper dive into the literatures on pragmatism and agonism to illustrate how, when combined, they provide the intellectual framing and underpinnings of the varieties of remedy approach. While pragmatism highlights the need to analyze the dynamics between local actors, their advocates, and the firms involved in the abuse, agonism opens us to the notion that non-violent contestation and confrontation could have a potentially positive role. With this foundation, I develop the varieties of remedy approach, exploring how contestation (e.g. claim making) shapes governance outcomes (e.g. access to judicial or non-judicial remedy mechanisms). Three pathways are discussed in greater depth in Chapter 2 – Institutional Strength, Corporate Characteristics, and Elevating Voices – and tested empirically in subsequent chapters.

Chapter 8 deals with the potential remedies available to protesters when their constitutional rights are violated. It focuses on damages remedies intended to make protesters whole for such injuries. The law of public protest severely restricts such remedies. Under principles of “qualified immunity,” the law generally immunizes all but the most incompetent officers from civil liability. Empirical evidence shows that in protesters’ First Amendment and Fourth Amendment cases, defendants’ qualified immunity claims are granted 60 percent of the time. Protesters also face nearly insurmountable obstacles in terms of holding municipalities liable for constitutional violations. The Supreme Court has recently limited protesters’ ability to bring First Amendment “retaliation” claims. Finally, the Court has all but sounded the death knell for First Amendment damages claims against federal officials. The chapter joins the chorus calling for qualified immunity reform. It also encourages states and localities to restrict officers’ ability to invoke qualified and other immunities, and to create causes of action against officials for violations of state constitutional law.

A successful claim against the fiduciary may result in an award of compensation for loss, disgorgement of gain or restitution of property misappropriated by the fiduciary. But it will sometimes be impossible for the plaintiff to obtain complete relief, particularly if the fiduciary is insolvent or beyond the jurisdiction of the court. In some of these cases, the plaintiff may be able to pursue third parties who participated in the breach of duty. The principles governing the imposition of liability on participants are discussed in this chapter. This chapter principally examines the liability of third parties under the so-called ‘two limbs’ of Barnes v Addy. Liability under the first limb arises when the defendant has knowingly received property in breach of fiduciary duty. Liability is imposed under the second limb on a defendant who knowingly assists the commission of a breach of fiduciary duty. But, as the cases make clear, third parties can be held accountable on other equitable grounds. Finally, a common law claim can sometimes be brought in unjust enrichment against the third party which does not require proof of a breach of fiduciary duty.

Chapter 3 investigates the problematic beginnings of the 2011 Dear Colleague Letter (DCL) issued by the Department of Education Office for Civil Rights (OCR) under President Obama. It explaina how the DCL misrepresented existing data, violated the Administrative Procedure Act by changing the law without going through notice and comment, and flouted existing norms. In the process, the chapter provides an in-depth discussion of the changes brought about by the DCL, including mandating a lower standard of proof in sexual assault hearings.

Despite their outward differences, all modern legal systems share a number of fundamental features. One of these features is the availability of remedies for injuries that are proven to an adequate legal standard. As explained by Douglas Laycock, one of the preeminent scholars of common law remedies: “The choice of remedy and the measure and administration of the remedy chosen pose a distinctive set of questions – logically separate from the liability determination and usually considered subsequent to that determination – focused on what the court will do to correct or prevent the violation of legal rights that gives rise to liability.”1

I start with reference to refugee journeys and how they are rarely linear but are instead ‘fragmented’ because of poor conditions in many places of ostensible refuge and states’ containment mechanisms. I highlight that there has been little consideration of the role litigation plays in refugee journeys. This is despite refugees increasingly turning to courts to seek protection, not from persecution in their home country, but from a place of ‘refuge’. While there are myriad studies of how courts interpret refugee definitions, in this first global and comparative study of protection from refuge jurisprudence, I examine how judges approach the remedy: refuge. Using feminist approaches to international law,I also consider whether these judicial approaches assist or hinder refugees’ (or particular refugees’) journeys towards a safe haven with a particular focus on gender but also intersectional factors such as youth, disability, sexuality and parenthood. I argue that when protection from refuge claims first come before decision-making bodies, judges adopt rich and robust ideas of refuge. However, most of these victories have been ephemeral. Decision-makers reverse or dilute initial successes and adopt rudimentary understandings of refuge. This trajectory transforms these judgments from refugee protection to migration management decisions.

This chapter draws an outline how scholars from myriad disciplines (including law, anthropology, political science, history, geography, international relations, philosophy, psychology and economics), UN institutions and refugees approach and understand the notion of refuge. I also highlight the discrepancies between these ideas and the reality. I ask the gender question by exploring what women are seeking when they search for refuge as well as the nature of refuge sought by children and refugees with disabilities. I show that the concept of refuge is a robust one. There are different approaches to theorising refuge, but there is a shared understanding that it has restorative, regenerative and palliative functions that address refugees’ past, present and future. Refuge operates as a response to the particular dilemmas of those in need of protection and is variously expressed as a remedy, right, duty, process and status. It has a broad and flexible scope that responds to the specific needs of women, children and refugees with disabilities. The threshold for adequate refuge is a high one, encompassing much more than mere survival. However, many people who seek protection find themselves in places where the conditions may be comparable to or worse than the places they fled.

Chapter 3 addresses the main controversies related to the interpretation and application of declaratory judgments as a remedy of international law before the International Court of Justice. The definition of the declaratory judgment and its availability, as a veritable remedy of international law, are preliminary issues clarified through this chapter. The categorisation of this remedy into declarations of rights, declarations of applicable law and declarations of responsibility and the effects of its interaction with other remedies of international law, such as satisfaction or specific performance, are relevant for addressing its application. The subject matters of disputes influence the reasons for which states request, and the Court grants, declaratory judgments. As such, certain arguments exist for the disputes regarding sovereignty rights or territorial delimitation, and different arguments exist for other disputes. Further, the manner in which states seize the International Court of Justice is also relevant for determining the applicability of declaratory judgments before the judicial body.