National laws and courts are the main way for seeking justice when business activities negatively impact your human rights:
The most common type of claims are civil claims. A civil claim involves arguing the business violated your private rights.
Practical Tip: Know the Facts of Your Case
The first step you need to do in any case is be clear about the facts of your case. This means thinking about the things that happened which are relevant to your case.
Ask yourself:
- What happened?
- Who did it?
- How did it happen?
- Where did it happen?
- What effects has it had on you?
Write down answers to these questions on a document with as much detail as you can.
Put the information in a chronological order. This means arranging the things that happened, starting with the first thing that happened and finishing with the last thing.
This section takes you through some of the key steps required to bring a civil claim against businesses and what you should think about before you start a claim.
Civil claims are brought by private individuals in civil (i.e. not criminal) courts known as “claimants” or “plaintiffs”.
To be able to bring a civil claim, you must have “standing” (i.e. the legal right to bring a claim).
The following types of people can often have standing to bring civil claims. But you have to check this in your country’s legal system.
Civil claims can generally only be brought by the person who has been harmed when a national law is broken.
For more information, see “Who Can Take Legal Action?”
Some jurisdictions permit multiple affected individuals to be represented collectively by a claimant.
Example: Gold Miner Silicosis and TB Litigation (South Africa)
In 2006, a former gold miner suffering from the lung disease silicosis sued AngloGold Ashanti in the South African courts for failing to provide employees with a safe and healthy work environment and failing to meet its law duty of care (this legal duty is discussed below).Under South African law, he had to take his claim to the compensation commission. He challenged the constitutionality of the scheme.
The case reached the South African Constitutional Court which ruled in his favour in 2011.
The ruling allowed a class action for damages to be brought by other miners suffering from silicosis and tuberculosis (TB) who had worked for various mining companies, including AngloGold Ashanti.
In 2013, the High Court of South Africa confirmed that thousands of affected gold miners could join a class action against 30 gold mining companies. The ruling meant that miners who had worked in different mines and over different periods of time could join a single legal action. This was the first class action case in South Africa.
Although claimants represented in a group action may share an interest in the case, their expectations and accepted level of risk (both financial and personal) may be different.
You also need to identify the “defendant”. This is the business that you will be bringing the claim against.
In the “Introduction”, we outlined a range of different types of corporations, ranging from sole traders to big TNCs which operate in many countries.
Often business activities that lead to human rights abuse involve many different businesses that have different roles in directly committing, supporting or profiting from the human rights abuse.
This section will outline the main types of corporate defendant that you could bring a case against in your national courts for human rights abuse.
The corporation directly responsible is the corporation whose actions or omissions have directly impacted your human rights.
If the human rights abuse is caused by a TNC, you can bring a claim against the local subsidiary that committed the physical acts that directly led to the human rights abuse AND a claim against the foreign parent company, potentially in its home court (see “How Can I Bring a Civil Claim Against a Business in Foreign Courts?”)
Example: OK Tedi Pollution Case (Papua New Guinea)
Local communities in Papua New Guinea who were affected by a local mining operation brought two types of cases:
- First they brought cases in Papua New Guinea against OK Tedi (the Papuan subsidiary);
AND- Second they brought cases in Australia against BHP Billiton (the Australian parent company involved in the mine)
While bringing a legal action against a local company or subsidiary can be the simplest option, it might not always be the best option.
For the reasons above, it may be best to include a claim against the parent company in the TNC as a joint defendant.
But this has been possible in some cases:
Example: Challenging Abuses in Diamond Mines in Sierra Leone
A local community challenging the operation of the Koidu diamond mine in Sierra Leone relied on documents disclosed in the Panama papers to argue before the High Court of Sierra Leone that they could serve their claim on the corporate group (including the parent company Octéa Mining Limited registered in the British Virgin Islands) at the address of the local subsidiary, Koidu Limited.The court accepted that Octea and Koidu operate as a single enterprise and held that the claimants could serve their claim on all defendants at Koidu’s address. This ruling is important as it brought the parent company into the claim. The parent company is more likely to have funds to cover a compensation claim.
If this isn’t possible, you may be able to bring a claim in the foreign courts where the parent company is based. We will discuss how to do this in “How Can I Bring a Civil Claim Against a Business in a Foreign Court?”
Businesses that are not directly responsible for the actions that harmed your human rights could also be held accountable for their role in the business activity if they somehow “help” the actions that lead to the harm.
Generally, you would need to show that the business knew that its actions or omissions (e.g. failing to prevent the harmful activities) would facilitate, legitimise or help the business causing the harm.
This could be:
Example: Banks Involved in the Darfur Genocide
In 2016, Sudanese refugees in the US filed a complaint in a US federal court against BNP Paribas over the bank’s alleged complicity in the Darfur genocide.The complaint alleges that BNP Paribas supplied funds to the Sudanese government that were used to purchase tanks, bombs, ammunition and other military hardware. The claimants allege that BNP knew that the Sudanese government intended to engage in human rights violations.
So far, we have talked about taking cases against businesses or companies as legal entities. Sometimes claims can also be brought against individuals in a business.
Claims are usually brought against persons high up in the business that are in charge of making important decisions:
Generally, corporate directors, shareholders and employees are protected from personal liability where they contribute to harms caused by corporate actions.
However, there is little chance of a personal civil action against a director and/or manager will be more successful than a civil case being brought against the company as a whole. Unless there are laws in your country to hold directors/managers liable in civil actions, this probably isn’t your best option.
To bring a claim, there has to be a law that you can enforce. You will be arguing that the business has acted unlawfully through the activities you are complaining about.
There are many different areas of civil law. Each area prevents businesses from doing certain things and provides consequences when laws are broken. If you want to enforce civil law, you will do this in national civil courts.
Once you have outlined the facts of your case, look at the areas below and see which most closely relates to your situation. Then check your national law to see what the law is in your country.
Remember:
Your legal analysis has to be supported by the evidence you have gathered. You may wish to seek legal advice. A lawyer should be able to provide advice on the options available to you and advise on your chances of success.
One key type of civil claim is a claim in tort for personal injuries or injury to property.
Where a business activity results in a human rights abuse, this often can mean the business also committed a tort.
A key tort is negligence. A business will commit the tort of negligence where its actions fall below the standard of care they owe you, and this causes harm.
To hold a business liable in negligence in common law countries, you usually have to show that:
Example: Chandler v Cape Plc
An employee of Cape Ltd, an asbestos manufacturer, discovered he had contracted asbestosis but only after Cape Ltd was dissolved. He brought a claim of negligence against the parent company, Cape plc.The UK courts held that Cape plc owed a duty of care to its subsidiary’s employees and that this duty had been breached, finding that Cape plc exercised control over (or assumed responsibility for) the health and safety aspects of Cape Ltd’s business.
To reach this finding, the court applied a four-part test:
(1) The businesses of the parent and subsidiary are in a relevant respect the same;
(2) The parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry;
(3) The subsidiary’s system of work is unsafe as the parent company knew, or ought to have known; and
(4) The parent company knew or ought to have foreseen that the subsidiary or its employees would rely on it using its superior knowledge for the employees’ protection.Relevant factors included Cape plc’s “practice of issuing instructions about the subsidiary’s products” and common company policies which were subject to Cape plc’s direction. These indicated that the parent intervened directly in its subsidiary’s operations.
In civil law countries, the definition of negligence and other torts will be set out in the country’s civil code.
Example: Chisso Corporation Mercury Disease Case
For decades, the Minamata plant of the Japan Chisso Company (Chisso) released mercury into a nearby bay during its production process. The mercury entered the food chain and poisoned people eating contaminated fish.In 1969, a group of victims sued Chisso for negligence under Japan’s Civil Code. The court found Chisso to owe the claimants a high degree of care given its use of polluting substances. The court also held that pollution cases create a presumption of liability for the defendant and so the plant was presumed to be the source of the harm.
The company was found liable and ordered to pay compensation.
In some cases, a business may be vicariously liable for the acts of a person or group if they are acting on behalf of the business. This is a form of “no fault” liability.
Example: Harassment Claim Against Microsoft Nigeria
An employee of Microsoft Nigeria lost her job when she complained about being sexually harassed by the country manager. She brought a claim against the country manager, Microsoft Nigeria, Microsoft Corporation and her line manager.
The national industrial court in Nigeria held that the companies, by not investigating her complaint, allowed the abuse and were vicariously liable for the sexual harassment.
The court also held that the termination of her employment because she refused to accept the sexual harassment constituted a violation of her human dignity and freedom from discrimination.
The court ordered the companies to pay compensation.
Where a business undertakes ultra-hazardous or very dangerous activities, a business may be held strictly liable for harm caused.
Example: Bhopal Case (India)
In 1984, the release of a highly toxic gas following an explosion at a pesticide plant in Bhopal resulted in mass injury and death. Union Carbide Corporation (UCC), a US company, had a majority shareholding in the company operating the plant, Union Carbide India Limited (UCIL).Claims were brought against the companies in the US and India. The courts in India decided that the principle of “absolute liability” applied to UCC given the hazardous nature of the commercial activities.
UCC were then ordered to pay a high amount of compensation. No defences could be raised.
Other possible tort actions include the common law torts of assault, battery, false imprisonment, trespass and nuisance.
Where a business has committed, paid for or encouraged acts of violence to be committed, the torts of assault, battery and trespass against the person could be the basis of your claim.
Example: Kalma v African Minerals Limited (UK)
A local community from Sierra Leone brought a claim against UK TNC African Minerals Limited and its two subsidiaries in the UK courts.The companies operate the Tonkolili iron mine. The community complained that the companies encouraged the police to use violence (including beatings and sexual assault) to stop protests against land-clearing to make way for the mine.
The claimants argued that the defendant companies oversaw the actions of the police and were vicariously liable for the torts of assault, false imprisonment, battery and trespass and that they were negligent in failing to prevent the torts.
The claim was ultimately unsuccessful because the court doubted that the company controlled the actions of the police. But the possibility exists for other people to make a similar claim.
If a business has polluted or interfered with your land, the torts of nuisance and trespass could be the basis of your claim.
Example: OK Tedi Pollution Case (Papua New Guinea)
OK Tedi (a subsidiary of BHP) polluted rivers in Papua New Guinea by dumping waste from their mining operations. This damaged the local environment and the food and water supply of local communities.Local communities brought claims against OK Tedi based on the torts of nuisance and trespass to stop the company dumping waste, to force it to clean up its pollution, and to seek compensation.
In 2014, a court in Papua New Guinea ordered OK Tedi to stop dumping waste. Cases have also been brought in Australia.
Where workers’ rights are infringed by the business, the workers may have a remedy through local employment tribunals.
Example: Uber Cases in Nigeria and Brazil
Taxi drivers have brought legal claims against the taxi hailing company Uber in countries including Nigeria and Brazil arguing that they should be classified as employees and have access to legal protections, including pensions and health insurance.This followed the successful cases against Uber in the UK and the USA.
For more information on seeking justice for unsecure working conditions, see the Business and Human Rights Resource Centre info on workers rights.
Consumer protection laws may be used by individuals harmed by a product.
Example: Consumer Cases Against Pharmaceutical Companies
Individuals who had acquired or ingested Pradaxa (a pharmaceutical blood thinning drug) filed a class action file in the Canadian courts against a Canadian distributer of the drug. The plaintiffs alleged that the defendants had breached various consumer protection laws.
Consumer claims have also been brought against businesses alleging that their responsible sourcing standards are misleading or fraudulent.
Example: Nike Case in the US Supreme Court
The US Supreme court dismissed a consumer lawsuit against Nike (it was argued that labour conditions in Nike suppliers’ factories constituted deceptive practices). However, Nike settled the case by agreeing to pay 1.5 million USD to strengthen workplace monitoring and factory worker programmes.
For more information on consumer action claims, see the US3 Campaign Info on Consumer Rights.
Where businesses have harmed the environment through their business activities, there will often be environmental laws (e.g. requiring businesses to conduct environmental impact assessments) that have been broken and can be enforced.
For more information on enforcing environmental laws, see “Environmental Rights”
As we discussed in “Do Businesses Have Human Rights Responsibilities?”, businesses may have an obligation under national law to carry out human rights due diligence and to prevent and address negative human rights impacts in their supply chains.
These laws could then be enforced against businesses that fail to make and carry out effective due diligence plans and as a result cause harm to human rights.
Example: Claims Under the French Due Diligence Law
NGOs from France and Uganda are bringing a claim against the French TNC Total under France’s Devoir de Vigilance Law alleging that Total failed to make and implement an effective human rights and environmental vigilance plan relating to its oil project in Uganda.
In civil law actions, it’s the claimant who has the “burden of proof”. This means the person bringing a civil claim needs to prove their case.
One of the first things you need to do then to bring a successful claim is gather evidence that will be accepted in court.
You need to have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened).
There are many different forms of evidence. What evidence you need will depend on the facts of your case.
Key Points:
You will need to have evidence that shows:
- What: What was the nature of the harm (e.g. pollution or physical injury)?
- Where: Where did the harm take place (e.g. the town, river, region)
- When: when did the harm occur, or is it still happening?
- How: How was the harm caused?
- Who: What businesses or individuals were involved in the activity that caused the harm?
Examples of the type of evidence you might need are:
Key Resource: The Business and Human Rights Resource Centre Checklist
The Business and Human Rights Resource Centre has a checklist to help communities document corporate human rights abuses.
The facts that you find will influence what type of civil claim you bring, who can bring the case, and the possible defendant/s.
You may want to engage a law firm or an NGO to help with the evidence gathering process. Indeed, you may consider it too difficult or risky to collect evidence without assistance.
Key Resource: The Business and Human Rights Resource Centre Directory
The Business and Human Rights Resource Centre has a directory of business and human rights lawyers that you can use to find a lawyer that could help you.
For more information on gathering evidence, see “How Can I Gather Evidence?”
Once you have identified WHO is responsible for the harm, you will need to gather evidence to prove that the business or individuals acted unlawfully. To do this, you may need to access company documents.
The difficulty that claimants can face in accessing company documents relevant to their case can be a barrier to justice. BUT some countries have laws you can use to request information on business activities in some contexts.
If you are bringing a case against a business in local courts but it or its parent company is based in a different country, it can be difficult to gather evidence about the business as its documents and records are in a different country.
However, if the company or relevant business individuals are located in the US, one way you could overcome this difficulty, is by requesting “foreign legal assistance”.
Key Resource: Earth Rights International’s Guide on Foreign Legal Assistance
The NGO Earth Rights International has published a guide (in English and Spanish) on how to use the U.S. Foreign Legal Assistance (FLA) Statute.Under the FLA Statute, any “interested person” can ask the US federal district courts to order a company or individual residing or “found” in the court’s district to provide evidence (testimony or documents) that are relevant to legal proceedings in other countries.
This has been used to help groups bring cases in other countries.
Example: Using Foreign Legal Assistance in Tanzania
Villagers in Tanzania were helped by Earth Rights International to use the FLA Statute to request evidence from a US federal court to support their claim in the Tanzanian courts that a US-based safari company had obtained their land illegally, and to claim damages for violent abuses and property destruction.In April 2014, the court ordered Thomson Safaris and its owners to turn over documents and provide testimony about the sale of Sukenya Farm, alleged human rights abuses, and the conversion of the land from Maasai grazing territory to a deluxe private reserve.
The law in some countries gives individuals the right to access information held by a public or private body if this information is necessary for the protection of their rights.
Key Resource: Freedom Info Database
Check the Freedom Info Database to find out whether your country has such a law.
You may also be able to use environmental laws to request publicly held information that is necessary to protect your right to a healthy environment. In some cases, the government may hold information about a company’s activities.
Example: Information Request About Coal Mines in Malawi
A community in Malawi filed a petition with their government asking for access to documents relating to harmful uranium and coal mining in their region.Their request including documents relating to the government’s environmental and safety inspections of the mining area and the amount of money allocated for the relocation and compensation of displaced villagers.
To find out more about access to information, see our page on “Access to Information“
When you have collected your evidence and conducted your legal analysis, you should then be able to start the court claim.
The procedure that you have to follow will depend on your country, the type of claim, the court you choose, and on the procedural rules of that court.
Here are some general points of procedure that you may have to follow to pursue a civil claim:
(1) You have to notify the business involved and the court where you are bringing a case.
(2) You have to bring your case within a certain time period after the activity has occurred i.e. there may be a deadline for taking legal action
(3) You have to present the basis of your claim and your argument to the court, which will be shared with the defendants.
(4) The defendants will then have a chance to explain their position.
(5) The next stage is often for the parties to give each other the evidence upon which they rely, which supports their respective positions.
(6) Once evidence has been exchanged, the court generally notifies the parties of a date for the main court hearing (sometimes called the “trial”).
(7) At the trial, each of the parties has an opportunity to explain their case, and to provide more detail that the court may request. Witnesses attend and are asked questions on their testimony.
(8) Once the first trial is over and the judge has made a decision, the losing party generally has the right to appeal the judgment before a higher court.
A key part of the above process is creating a statement of claim that:
This can seem overwhelming. You will usually need legal advice to help you create a statement of claim.
We have included some example cases filed against companies where you can access the statement of claim or complaint filed with the relevant court.
The style and format of these examples could help you create your statement of claim:
Example: Gold Miner Silicosis and TB Litigation (South Africa)
Former gold miners in South Africa brought a class action legal claim against a number of mining companies on the basis of negligence (see above):
Example: Gold Metals Mine Claim (Malawi)
The Kanyika Community in Malawi is bringing a claim for compensation against Globe Metals and Mining (Africa) Limited and the Malawi Government for damages to their land, water source and religious and cultural sites.
The Community was not consulted before Globe Minerals begin exploration and extraction activities in the community’s area.
Example: Koidu Mine Claim (Sierra Leone)
A local community in Sierra Leone is challenging the operation of the Koidu diamond mine in their area (see above).
At the end of your trial, the judge will issue a decision on the claim.
If the claim is successful, the judge will generally award a “remedy” (i.e. a court order designed to make amends for something wrong that has happened).
Civil or private law remedies include:
Example: Gold Miner Silicosis and TB Litigation (South Africa)
In this case (this above) former miners suffering from occupational lung diseases who had worked for various mining companies secured compensation from their employers. The case settled in 2018 and a fund will be established to distribute the compensation claims.
Example: Court Order to Stop Mining Activities (India)
The Dongria Kondh people contested an order granted by the Indian Ministry of Environment and Forests permitting land clearance by the TNC Vedanta Resources for mining activities in Orissa, India. The proposed mining site included mountains held sacred by the Dongria Kondh.Following various legal actions, the Supreme Court of India upheld a ban on mining in the region and held that the rights of the Dongria Kondh people must be taken into account in deciding whether the mining project could proceed.
In 2016, the Supreme Court blocked the attempt by Odisha’s state government to begin mining in region.
Example: Court Order to Stop Mining Activities (Ecuador)
In July 2018, a local court in Cuenca, Ecuador, held that mining activities by the Chinese mining company Ecuagoldmining were illegal and had to be stopped.The judge ruled that the company had failed to consult with local communities as required by Ecuador’s Constitution and by the UN Declaration on the Rights of Indigenous Peoples.
For more information, see “What Remedies Are Available?”