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How Can I Bring a Claim Against My Government for Business Abuses?

It may also be possible to bring a claim against the government or a public body in relation to human rights abuses committed by businesses.

While the state bodies may not be directly responsible for the corporate human rights abuse, they may have violated their human rights obligations to prevent, investigate, punish and remedy the human rights abuse of a business.

If your government fails to do these, it may be possible to hold them accountable in national or international courts.


Consider the following questions if you’re interested in bringing a claim against the government:


Action4Justice - Public Law Checklist
1

What Type of Claim Could I Bring Against a Government?

If you are bringing a claim against the government for failing to regulate business activity, you will usually bring a claim under national human rights, constitutional or public law claim. The specific content of these laws will change in different countries.

In some countries, national courts can enforce human rights recognised in international law directly.

Example: Enforcing International Human Rights Law in Kenya
In December 2010, over 1000 people living in Garissa, Kenya, were forcibly evicted from their homes and their personal goods were destroyed. They were not consulted or given an opportunity to challenge the eviction. As a result, many became homeless and lost access to their livelihood opportunities and their children had to leave school.

The High Court of Kenya held that when Kenya ratified the International Covenant on Economic, Social and Cultural Rights the government became bound to respect, protect and enforce the covenant rights, including the right to adequate housing and the prohibition of forced evictions.


(a) The Obligation to Protect under Human Rights Law


Under international human rights law, states have an obligation to protect people from human rights abuses committed by private persons.

UNGPs Principle 1:
“States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.”

Where a state fails to carry out this duty, it may be exposed to legal claims. This is known as the “horizontal effects” principle. This means the state has to regulate the risk of human rights abuses perpetrated by one non-state actor against another.

This obligation has been reinforced in different regional and international human rights courts.

Example: Obligation to Protect in the Inter-American Human Rights System
This obligation was outlined in Velásquez Rodríguez v Honduras, where the Inter-American Court of Human Rights held that:

An illegal act which violates human rights BUT for which the state is not directly responsible, can lead to the state being held responsible. This is not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it.

These obligations cover the actions of businesses. To meet its obligations, the state must:

i) Take measures to prevent businesses from committing human rights abuses

This involves making laws prohibiting businesses from committing human rights abuses, monitoring their activities and enforcing regulations. If a business has committed human rights abuse, but there are no laws or regulations preventing its activities, the state may have violated this duty.

Example: SERAC v Nigeria
Private oil companies caused major pollution and other human rights abuses against people in the Niger Delta.

The African Human Rights Commission held that the Nigerian government had failed to protect the rights of the Ogoni people:

“Governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties… This duty calls for positive action on [the] part of governments in fulfilling their obligation under human rights instruments.”

The Nigerian government was ordered to stop the human rights violations and establish suitable investigative and remedial measures including against the national oil company and private companies.

In addition, proper environmental and social impact assessments should be made for future conduct of the operations whose safe operation should be guaranteed through effective and independent oversight bodies for the petroleum industry.

ii) Investigate human rights abuses committed by businesses

If you provide convincing evidence that a business has committed a human rights violation and law enforcement agencies do nothing to investigate, the state may have violated this obligation.

Example: Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia
In cases where private corporations are accused of human rights abuses the Inter-American Court expects the state to ensure that an adequate investigation takes place and that those responsible are prosecuted.

iii) Punish businesses when they have found to have committed human rights abuses

If it is proven a business has committed human rights abuse and the state does nothing to punish the business, it may have violated this duty.

Example: IHRDA v DRC
In a case before the African Commission on Human and Peoples’ Rights found the DRC government responsible for violating provisions of the African Charter on Human and Peoples’ Rights.

The Commission criticised the DRC military trial held in 2006 which had dropped charges against the TNC mining staff implicated in the abuses and acquitted the commanding officer in charge of the soldiers.

The Commission called on the government to “take all diligent measures to prosecute and punish State’s agents and Anvil Mining personnel involved in the violations established”.

iv) Provide access to remedies for people to ensure people whose human rights have been impacted by business activities

This involves providing for the possibility of judicial (i.e. courts) and non-judicial (e.g. corporate grievance mechanisms) mechanisms. If there are no ways for you to complain about business human rights abuse in your country and and seek a remedy, the state may have violated its duty.

UNGPs Principle 25
According to the UNGPs states must, “take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.”


(b) Proving a Violation of the Obligation to Protect


To prove a violation of these obligations, you have to show:

 

i) A business has abused your human rights (see “How Can Businesses Impact Human Rights?” for examples)

  • This means you will have to gather evidence that a particular business activity has caused a negative impact on one of your rights.

AND

ii) The government did not take reasonable measures to prevent, investigate, punish or provide access to remedies.

  • The key is what is reasonable or whether the government acted with due diligence.
    • This depends on the capacity of your government, the power it had over the business, whether they knew or should have known of the risk of interference, and how much harm was caused to you.

Example: SERAC v Nigeria
The African Commission on Human and Peoples’ Rights found a violation of the obligation to protect the right to health. This was because, instead of regulating private oil companies and making sure their operations were safe, the Nigerian government helped them cover up oil spills and used violence to stop local communities from protesting in violation of its obligation to protect the rights of local communities.

2

Who Can Bring a Claim?

To be able to bring a constitutional, public law or human rights 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.


(a) Affected Individuals


Claims can generally only be brought by the person who has been harmed when a national law is broken.


(b) Bringing a Group Action


Some jurisdictions permit multiple affected individuals to be represented collectively by a claimant.

These actions may be called a “group”, “collective” or “class” action.


(c) Public Interest Groups


In some countries, groups that have an interest in a particular area can bring a case that involves their area of interest even if they aren’t personally affected.

  • For example, an environmental group could bring a claim challenging pollution.

For more information, see “Who Can Take Legal Action?

3

Who Can I Bring a Claim Against?

Constitutional, human rights and public law claims have to be brought against a “public body“, government or any body that works on behalf of the state or performs a public function.

Before you bring a case, it’s important to determine:

  • Is a public body responsible?
  • What public body should I bring my case against?

It could be one of the following options:


(a) Public Bodies and Authorities


Public bodies or authorities include:

  • government departments and ministries
  • courts and tribunals
  • local authorities
  • police, prison and immigration officers
  • public schools
  • public prosecutors
  • public hospitals and
  • other organisations set up by law to perform a public function (e.g. a government environmental agency or a tax authority)

Public authorities must follow constitutional, public and human rights law.


(b) Private Bodies Performing Public Functions


Businesses, private organisations or charities that carry out public functions could include, for example:

  • privatised service providers for water, gas and electricity
  • a business providing public services
  • a security company running a private prison
  • housing associations that act as social landlords
  • private care homes providing care on behalf of a local authority, and
  • private hospitals providing care on behalf of the government.

These organisations when they carry out their public functions.


(c) Central Government and the State


When smaller public law judicial review claims are brought, it is generally the above bodies and organisations that the case is brought against.

BUT, when you are challenging either:

  • Something that happens on a national scale;
  • Something that goes right to the top; or
  • Are bringing a case in the highest courts (inc international courts)

The cases will be brought against the government or the state as a whole.

4

Have I Gathered Evidence?

Like all claims, you need to gather evidence. You need to have a set of facts that describes what happened and supports what you are arguing.

When you’re bringing a claim against the government for failing to regulate corporate abuses, you will generally need evidence to support two different things:


(a) Evidence of the Business Activity’s Impact on Your Rights


First, you need to show that the actions of a business have impacted you. The evidence you need to gather at this stage is no different to when bringing a civil claim against a business directly.

Key Considerations:
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?

For more information, see “How Can I Bring a Civil Claim Against a Business in National Courts?


(b) Evidence of Government Failures to Regulate the Business


Second, you need to show the government hasn’t done enough to prevent, punish, investigate or remedy the abuses of a business.

This could involve showing that:

  • There are no laws regulating/preventing business abuses
  • The police refused to investigate the abuses
  • There are no avenues for you to enforce your rights against a business

Essentially, this is evidence showing the government has failed its obligations.

5

What Procedural Steps Do I Need to Take?

If you think a government has violated its obligation to protect you from corporate human rights abuses, the first place to enforce your rights is under national constitution and human rights laws.

This usually done in national administrative or constitutional courts.

  • In some countries, this process is called “judicial review” or a “constitutional petition”.
  • In many Latin American countries, this process is called “amparo proceedings”.

The law in your country will outline a judicial review or amparo process, so that you can bring a claim to the courts and the court may review the situation and provide a remedy.

Generally, you will have to meet the following requirements to bring a constitutional or administrative claim:

(i) You have to notify the public body involved and the court where you are bringing a case.

(ii) 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).

    • In some countries this can be as short as a few months for judicial review or amparo proceedings.

(iii) You have to present the basis of your claim and your argument to the court, which will be shared with the defendants.

    • This legal document may be called a “statement of claim”, “statement of case”, “a plaint”, “particulars of claim”, “complaint” or similar.
    • You will need to set out the facts relevant to your claim and the legal basis of your claim (the “causes of action” or “legal claims”).
    • In some countries, the court will decide whether you have permission to take the case further after reading your statement of claim.

(iv) The defendants will then have a chance to explain their position.

    • They may say that your version of events is wrong, argue the acts complained of were not illegal, or argue that you cannot bring the case on procedural grounds.
      This document is the “defence”.

(v) The next stage is often for the parties to give each other the evidence upon which they rely, which supports their respective positions.

    • The evidence may be in documentary form, in electronic form or in the form of oral testimony from witnesses.
    • If are using witnesses, it will usually be necessary for the main parts of that evidence to be set out in writing, in a document called a witness statement.
    • The witness will often need to appear in person at the trial, in order to answer any questions on his or her evidence.

(vi) Once evidence has been exchanged, the court generally notifies the parties of a date for the main court hearing (sometimes called the “trial”).

(vii) 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.

(viii) 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.

6

What Happens if I Win?

If you bring a successful case against the government in human rights, constitutional or public law, you could get one or more of the following remedies:


(a) Compensation


Compensation for the harm caused by the government’s failure to protect your human rights.

Example: Challenging a Port’s Construction in Kenya
In 2012, local community members in Lamu, Kenya, brought a case against their government arguing that the construction of Lamu port had multiple negative environmental impacts on them and the marine ecosystem.

The High Court of Kenya ruled that the construction process failed to protect constitutional and legal principles, including sustainable development, transparency and public participation, and violated the local community’s constitutional rights to earn a livelihood, a clean and healthy environment, cultural rights and the right to information.

The court ordered the state bodies involved in the Lamu port project to pay compensation to the claimants.

But not all the harm caused by the business may have been caused by the government’s failures so the level of compensation may not be as high as in a civil claim against the business itself.


(b) A Legal Order Requiring the Government to Do Something


If a court finds that the government has violated its obligation to protect, it may order the government to do the things it should have done.

For example, to:

  • start an investigation into the abuses and punish perpetrators; and
  • regulate business activities in a certain sector better.

Example: Challenging Mining in Ecuador
In August 2018, the Azuay Provincial Court of Justice in Ecuador ordered the suspension of all mining activities in the Rio Blanco region.

The judge referred to several constitutional rights including ‘sumak kawsay’ (Good Living), human rights provisions, territorial and community rights and the Rights of Nature. It held that the state had failed to guarantee the right to free, prior and informed consultation of the Indigenous Waorani Peoples.

The government was ordered to stop granting mining licences located within 200,000 hectares of rainforest in the north-east of the country.


(c) Law Reform


In some countries, courts have ordered the government to pass new laws or change existing laws. In other countries, the court can directly change the law.

If it is found there are not sufficient laws that protect your human rights against business, this remedy could be ordered.

Example: Indigenous Land Rights in Guatemala
In 2011, the Constitutional Court of Guatemala issued a landmark decision ordering the government to issue land titles to the Indigenous Maya Q’eqchi’s Peoples and formally recognise their collective property rights to their lands.

Claims against governments can then have widespread impacts beyond your case.

7

Can I Go to a Regional or International Human Rights Court?

Going to a regional or international court to hold your government accountable for failing to regulate business could be helpful in the following cases:

  • You have tried and failed to hold the government accountable in national courts (up to the highest level);
  • The national courts in your country are ineffective;
  • The judgment from a national court hasn’t been enforced or followed by the government; or
  • You want to take a case against another country’s government

These are not replacements for national courts but can be useful in any of these situations.


(a) Regional Human Rights Courts and Commissions


These bodies can enforce regional human rights treaties when available domestic mechanisms (courts or other) have failed to protect your human rights.

For example:

These bodies can launch investigations into your case, facilitate negotiations between you and the government, declare that your government has violated your human rights, and order the government to give you a remedy and change its laws or policies.

Example: Indigenous Rights Protection in Ecuador (IACtHR)
In 2012, the Inter-American Court ruled against the government of Ecuador in a case brought by the Sarayaku Indigenous People. Allegations included that the government had granted an oil exploration licence to a company on Sarayaku lands without the Sarayaku’s free, prior and informed consent and had committed human rights violations (including detaining and torturing community leaders).

The court’s order for reparations included that the government clear the Sarayaku’s lands of explosives, consult with the Sarayaku before other projects, organise a public act to recognise its responsibility, and pay compensation for material and non-material damages.

 

Example: Challenging Mining in the DRC (ACommHPR)
Anvil Mining Limited, an Australian-Canadian company, operated a copper mine near Kilwa in the Democratic Republic of Congo, through subsidiary companies. In 2004, government soldiers entered the town to supress a small rebel group. Anvil provided logistical support to the soldiers, who arrested, killed and tortured local community members. The community argued that Anvil was complicit in the human rights abuses.

In 2005, police in Australia investigated whether Anvil was complicit in war crimes and crimes against humanity. The inquiry stopped when a DRC military court acquitted the former Anvil employees who were tried on criminal charges.

In November 2010, a class action claim was filed against Anvil in Canada. The Québec Court of Appeal did not accept jurisdiction and the claim failed.

In November 2010, three NGOs brought a complaint to the African Commission on Human and Peoples’ Rights on behalf of eight of the victims. In June 2017, the Commission found the DRC government responsible for violating provisions of the African Charter on Human and Peoples’ Rights.

The Commission demanded that the victims be awarded 2.5 million USD as compensation, among other remedies including to build a memorial and provide psychosocial support to victims and other Kilwa residents. It also called on the government to “prosecute and punish” Anvil Mining staff who helped the army.

To access these courts and bodies, you generally have to show:

  • That you are a “victim” of your government’s actions or omissions (i.e. that your health has been negatively impacted by their actions or omissions).
  • That you have some evidence to back up your claim.
  • That you have first tried to bring your claim before national courts – this is often referred to as the “exhaustion of local remedies
    • The exception to this rule is the ECOWAS Community Court of Justice.

(b) UN Human Rights Treaty Bodies


There may also be the possibility to enforce your state’s human rights obligations before UN human rights treaty bodies.

To access these bodies, your country must:

(i) Be a party to the relevant international human rights treaty

AND

(ii) Have accepted the competence of the treaty body to receive complaints against the state; this may be in the optional protocol to the treaty

Check these on the OHCHR website.

Key Resource: OHCHR Website

Here you can find information on:

  • The different treaty bodies that exist
  • Guides for how to submit a complaint
  • Past cases and examples

(c) Extraterritorial Human Rights Obligations


It may also be possible to bring a case against another country in a regional or international body.

Area to Watch: Extraterritorial Human Rights Obligations
There is growing acceptance that governments human rights obligations extend to persons outside their borders.

Where businesses are involved, this means that a government in the country where a TNC is based may have obligations to prevent it from committing human rights abuses in other country – if it has the power to do so.

It may therefore be possible to initiate a human rights claim against a government of another country that is linked to, complicit in or failed to prevent the relevant corporate abuse.

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