Where Can I Take Legal Action?

(a) What Are Courts?

A court is a formal institution that adjudicates or decides on legal disputes. In other words, a court is the body that hears legal claims between people and organisations.

Key characteristics of a court include:

• They hear legal disputes. Courts hear disputes that are based on the law. The claims must be arguing a law has been broken;
• They issue binding decisions between the parties in the case. This means the person who brought the case (the claimant) and the person who the case is brought against (the defendant) have to follow the decision or judgment of the court;
• They have formal rules of procedure and evidence;
• They are independent of politics and government;
• They generally have public hearings where the court hears evidence and argument from both sides; and
• Decisions are made by judges.

The most common place to bring a legal claim is before national courts are courts that are based in your country. However, there are usually many different types of courts that hear different types of cases. Below are some of the main examples.

(b) Civil Courts

Civil courts hear civil claims between private parties, such as individual persons or companies. A civil claim involves arguing a person or corporation violated your private rights (e.g. by breaking a contract or causing you personal injury).

Normally a civil court can;

• Order a party to pay compensation, or
• Issue an order (often called an ‘injunction’) to stop certain conduct, or
• Issue an order (often called ‘specific performance’) to undertake an action, or
• Issue a declaratory order or judgement stating that a certain action is lawful or unlawful
• A civil court cannot send people to prison

Each of these can be powerful remedies. Private law actions are often brought in civil courts, as they usually involve allegations of wrongful conduct such as polluting or causing damage to property or health, violent conduct or wrongful taking of land.

Example: Texaco/Chevron Cases in Ecuador

In Ecuador, the supreme court ordered Texaco/Chevron to pay damages of $9.5bn to a range of claimants for severe environmental contamination caused by the company.

The claimant is generally responsible for bringing the case and gathering evidence.

(c) Criminal Courts

Criminal courts hear cases against persons or corporations that are accused of a crime. Criminal offenses are most commonly defined in criminal (penal) code of the country. Usually the case is brought by a representative of the State, such as a public prosecutor or state attorney. In some countries, a private individual or legal entity, usually the victim of a crime, can bring a criminal case. This is called a ‘private prosecution’.

A criminal court can:

• Impose sanctions such as a fine or imprisonment.
• In some countries, it can also award compensation to victims of the crime. However, as this is generally not the case, civil cases are better suited if compensation is the primary purpose of litigation.

Remember, criminal and civil cases are not mutually exclusive, but can be brought simultaneously. They pursue different purposes and have different parties. In some jurisdictions, individual cases can be partly criminal and partly “civil” in nature.

Example: Vale & BHP Biliton Cases in Brazil

After the destruction of communities by a dam collapse in Brazil, caused by the negligence of Vale & BHP Biliton, Brazilian prosecutors filed a $44bn civil lawsuit alongside criminal homicide charges against the company’s top executives.

(d) Administrative Courts

Administrative courts hear complaints against public bodies, such as a state department or ministry, a municipal council, or a licensing or regulatory body. A typical complaint challenges an action (such as a decision to grant a licence or a subsidy) or failure to act, (such as a failure to take action against an unauthorised industrial project).

Example: Kedar Nath Yedav v State of West Bengal & Others

In the Indian Supreme Court, local farmers successfully challenged the West Bengal government’s decision to acquire farmers’ land for the building of a car manufacturing plant on the grounds it was not for a valid public purpose. This protected their land rights and livelihood.

In many countries, it is not possible to challenge a decision or action by a public body simply because you disagree with it. It is generally necessary to go further, and show that the decision was unlawful, irrational or unreasonable.

(e) Constitutional Courts

In some countries, if your complaint is that a law made by the country’s legislative body violates the country’s constitution, you may be able to bring your claim to a constitutional court. This is a court of last resort after all the other courts have been used, but, in some countries, cases can be fast-tracked to the constitutional court if they clearly raise issues of clear constitutional significance.

In some countries, you can challenge a piece of legislation as a preventative measure, without having any concrete case (this is called abstract norm control).

In several countries, the Supreme Court does this work, as opposed to having a separate constitutional court.

Example: Grootboom v South Africa

In South Africa, the constitutional court has a history of successfully protecting human rights protected under the constitution. For example, in response to the government’s eviction of squatters from an informal settlement, the court ruled the government violated the right to housing and ordered them to implement a co-ordinated program to house those in need.

(f) Court Hierarchy

In most systems, there is something called a «court hierarchy». The court hierarchy identifies higher and lower courts. The decisions of lower courts can often be appealed before higher courts and the decisions of higher courts are binding on lower courts. A court hierarchy will often look something like this:

Some national laws in other countries have extraterritorial effect. This means that they can apply to activities beyond the borders of that country. In practice, this means the activities of a company operating outside the country in which it is headquartered could be held accountable in that country. Therefore, the solution to a problem that the company has caused in Uganda or Honduras may lie in bringing an action in New York or Amsterdam.

Example: The US Alien Tort Claims Act 1789

In the US, the Alien Tort Claims Act 1789 has enabled courts to hear civil cases against persons and companies who have committed grave human rights abuses abroad.

This has been used by Paraguayan citizens to obtain reparations against a former Paraguayan police chief who had tortured and murdered a member of their family.

This has been used by Burmese villagers to obtain reparations from a US coal company regarding its alleged complicity in practices of forced labour, violence and exploitation relating to the construction of a pipeline in Myanmar. See the video below for further details.

However, following recent judgments in the US, it has become increasingly difficult to bring claims under the Alien Torts Statute for actions that take place in other countries.

Similar possibilities also exist in the Netherlands, the UK, and Australia, among others.

Bringing your claim in a court in another country can be beneficial when;

• The legal system in your home country is unable to provide for justice in your case. This can happen when the courts are inaccessible, too weak to hold powerful actors to account, or are susceptible to corruption, and
• The courts in the other country are stronger and more independent, and
• The courts in the other country are financially and legally accessible (i.e. there are national laws with extraterritorial effect, you meet the standing requirements, and you have sufficient finances to fund the often expensive and time-consuming process of bringing claims in another, often more developed country).

If these conditions exist, bringing your claim in another country can be an effective way to get a desirable solution to your claim. It will require a good mix of creative thinking, and lots of help from international networks.

To find out more about this possibility, see How Can I Bring a Civil Claim Against a Business in Another Country? in the A4J Business and Human Rights Guide.

Going to a regional or international court 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) International Courts

International courts hear disputes on matters of international law. Disputes generally involve claims that a country has breached its obligations under international law.

Example: The Wall Case (Palestine)

The International Court of Justice has ordered Israel to stop building walls and settlements in the West Bank, considering it a violation of its obligations under human rights and humanitarian law.

However, most international courts are open only to complaints filed by a country against another country. This applies to the International Court of Justice, the World Trade Organization’s Dispute Settlement Body and the International Tribunal for the Law of the Sea, among others.

(b) Regional Human Rights Courts and Commissions

Regional human rights courts and commissions can enforce regional human rights treaties when available domestic mechanisms (courts or other) have failed to protect your human rights. Individual complaints to regional human rights bodies are like bringing human rights or constitutional claims before national courts (they are legal complaints).

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: The Ogiek Case

The African Court on Human and Peoples Rights recently ruled that Kenya violated indigenous people’s right to their land through practices of forced evictions.

When Could I Bring a Complaint to a Regional Human Rights Court or Commission

Firstly, regional or international human rights bodies can only hear cases being brought against the government.

Secondly, these complaints are only relevant to claims where you are arguing your human or constitutional rights have been violated.

Thirdly, your country must have signed and ratified a regional human rights treaty which gives a regional human rights court or commission jurisdiction to hear human rights complaints regarding your country. For example:

• If in Europe, you could go to the European Court of Human Rights which enforces the European Convention on Human Rights;
• If in the Americas, you could go to the Inter-American Commission on Human Rights or the Inter-American Court of Human Rights to enforce your rights under the American Convention on Human Rights.
• If in Africa, you could go to the African Commission on Human and Peoples’ Rights or the African Court of Human and Peoples’ Rights to enforce your rights under the African Charter on Human and Peoples’ Rights.
• If in West Africa, you could enforce the same rights before the ECOWAS Community Court of Justice.

Fourthly, your claim is considered admissible by the regional human rights court or commission. For your claim to be admissible, 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). This is similar to proving “standing” in national courts (see Who Can Take Legal Action?)
• That you have some evidence to back up your claim (see How Can I Prove My Case?)
• That you have first tried to bring your claim before national courts – this is often referred to as the “exhaustion of local remedies«

Focus Points: The ECOWAS Community Court of Justice

There is no exhaustion of local remedies rule before the ECCJ. This means that cases can be taken directly to the ECCJ without having to go through national courts.

(c) UN Human Rights Bodies

There are a number of ways UN human rights bodies can be used as ways to advocate for human rights. Sometimes these can be instead of going to court or they can be used to support litigation. None of these processes are legally binding but they can put pressure on your government to act.

(i) Individual Complaints to UN Human Rights Treaty Bodies

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

While these aren’t courts, they have individual complaints mechanisms which hear individual complaints like a court.

To access these bodies, your country must:

• Be a party to the relevant international human rights treaty; AND
• Have accepted the competence of the treaty body to receive complaints against the state; this may be in the optional protocol to the treaty

Key Resource: OHCHR Website

Here you can find information on:

• What countries have signed and ratified different human rights treaties
• The different treaty bodies that exist
• Guides for how to submit a complaint
• Past cases and examples

(ii) Advocacy in the Reporting Processes of UN Human Rights Bodies

UN Treaty Bodies have a role in monitoring the human rights compliance of countries under UN human rights treaties. As part of this role, UN Treaty Bodies issue concluding observations every few years about each country’s human rights record. Concluding observations are general assessments of countries’ compliance with specific UN human rights treaties. They identify failings and achievements of countries and make recommendations on how to improve their human rights record.

The concluding observations are based on:

• The country’s own reporting of its human rights record;
• Shadow reports of civil society organisations; and
• Questioning of countries by the UN Treaty Body.

A similar process also exists at the UN Human Rights Council regarding its Universal Periodic Review process. Find out more information here.

Civil society organisations can influence these reporting processes by submitting reports to highlight issues in their country.

(iii) Complaints to UN Special Rapporteurs

UN Special Rapporteurs are independent experts which focus on specific human rights issues. As part of their mandate, they can receive complaints from individuals. This is not a legal process and the outcome is not binding on countries but can be used to put pressure on your country to take more climate action.

(d) International Criminal Courts

Certain international courts are open to individuals. These are international criminal courts and tribunals. These courts decide cases brought against individuals concerning allegations of «international crimes» such as genocide, crimes against humanity and war crimes.

Example: The ICC Cambodia Investigation

Currently, the International Criminal Court is investigating a claim by Cambodian villagers that Cambodian elites have been systematically grabbing their land.

An alternative to taking legal action in court is to make a complaint before a non-judicial complaints mechanism. These are non-binding dispute settlement bodies. In other words, these are bodies which can hear a complaint, but that can only issue a non-enforceable recommendation or opinion on how to solve the dispute, rather than a binding ruling. This can be helpful for the parties, but it means that the eventual resolution of the dispute still depends on the goodwill of the parties.

Some examples of non-binding dispute settlement bodies that exist in many countries are:

(a) Complaints to an Ombudsman

An Ombudsman (sometimes called a citizens’ advocate, people’s defender) investigates complaints about the functioning of government bodies, often in response to a complaint from a member of the public or a non-governmental organisation. Examples include police ombudsman bodies that hear complaints about police misconduct, and anti-corruption agencies that hear complaints into corruption and can start investigations.

A complaint to an ombudsman can often achieve some of the wider aims you are seeking to achieve:

• An ombudsman can review the practice of an entire public body, leading to possibilities of addressing structural issues generally, rather than solely dealing with the specific complaint received.
• The public nature of the ombudsman’s reports can also help raise public awareness about the problems addressed.

(b) Complaints to National Human Rights Institutions

NHRIs are independent institutions which have responsibility for the protection, monitoring and promotion of human rights in a country.

Key Resources:

For more details on such organisations, see the Asia-Pcific Forum’s Fact Sheet on NHRIs.

A list of the names of the NHRIs in different countries can be found on the OHCHR website.

NHRIs do not make legally binding judgments like a court but can launch inquiries into human rights issues. The publicity from NHRI complaints and inquiries can raise awareness and put pressure on governments and corporations to change their actions.

Example: Zimbabwe Human Rights Commission
A working example is the Zimbabwean Human Rights Commission, which receives hundreds of human rights complaints annually, resolving issues such as land and labour disputes through mediation.

(c) Complaints to OECD National Contact Points

An OECD National Contact Point, to which complaints can be filed about multinationals that do not comply with the OECD Guidelines for Multinational Enterprises.

Example: Rana Plaza Complaint
The Danish NCP recently held a Danish clothing company accountable for failing uphold health and safety standards in its manufacturing plant in Rana Plaza, Bangladesh. Such supply chain irresponsibility contributed to the death of over 1000 workers in the Rana Plaza fire.

For more information, see How Can I Make a Complaint to International Corporate Accountability Mechanisms in the A4J Business and Human Rights Guide.

(d) Industry Regulatory Bodies

In certain industries, there are regulatory bodies that can hear complaints against corporations in that industry. These complaints can relate to human rights abuse, environmental damage or labour exploitation. For more information, see How Can I Make a Complaint to International Corporate Accountability Mechanisms? in the A4J Business and Human Rights Guide.

A related possibility involves making a complaint to an advertising standards body that hears complaints about advertising which is misleading or otherwise problematic.

Key Resource: OECD Guidelines for Multinational Enterprises

An overview of such bodies around the world can be found in these guidelines. OECD National Contact Points can also hear complaints when they have been breached in certain countries.

(e) Internal Corporate Grievance Mechanisms

You may also be able to make complaints under a code or complaints procedure of a company you are complaining about, or its parent company or its stakeholders or a trade body or association of which it is a member. Sometimes a company makes claims about ethical standards it adopts, which differ from what is actually does.

Researching this can be worthwhile. If you can publicly point out differences between reality and what is said in advertising or public relations material, you may secure changes in behaviour which can be helpful in achieving your objective.

For more information, see Can I Make a Complaint to an Internal Grievance Mechanism in a Business? in the A4J Business and Human Rights Guide.

(f) Complaints to International Financial Institutions

Most international financial institutions, such as the World Bank or the Inter-American Development Bank, have accountability mechanisms. These have their own codes of practice for assessing projects for environmental sustainability and human rights compliance. If the relevant principles have not been observed, a complaint may be made with the object of getting the IFI to withdraw funding or for appropriate changes to be made to the project

Example:  The World Bank Grievance Redress Service
This allows communities affected by a World Bank funded project to complaint if it has affected or will affect them. This mechanism was used by community leaders in India whose land was being polluted and who were being forcefully resettled due to a World Bank development project. Upon complaining to the World Bank’s inspection panel, they succeeded in changing World Bank policy and forcing them to implement additional safeguards within the project.

The following questions should help you decide where is the right place to take legal action:

(a) Do I Want a Binding or Non-Binding Settlement?

First, it’s important to consider whether you want a binding settlement (i.e. a legal decision from a court) or would be happy with a non-binding settlement. The table below can help:

Pros and Cons of Binding and Non-Binding Settlements

After thinking about these advantages and disadvantages, if you think that a non-binding settlement would be suitable for your case, consider using a non-judicial complaints mechanism. If you think a binding decision would be necessary, you will need to take legal action in a court. The questions below will help you decide which court would be appropriate.

(b) What Type of Law do I Want to Enforce?

The type of law you want to enforce will often decide what type of court you need to bring your case. For example, on the national level:

• If you want to enforce a criminal law, you will need to take your case in a criminal court;
• If you want to enforce your private rights, you will need to take your case in a civil court; and
• If you want to enforce human or constitutional rights, you will need to take your case in an administrative or constitutional court.

For more information on these types of laws, see What Laws Can I Enforce?.

(c) Can I Meet the Procedural Requirements?

Once you have identified the courts that could hear your case, you need to consider whether you have or will be able to meet the procedural requirements for a case to be brought to that court. This could include ensuring that:

• You will have standing to bring the case (see Who Can Take Legal Action?);
• You have brought the case within the time limit and followed the procedural rules of that court (see What Procedural Steps do I Have to Follow?).

For example, if you want to bring a case to a regional human rights court, it’s a procedural requirement that you have already brought the case before national courts.

(d) Will I Have Access to Justice?

You also have to consider a number of practical issues that could influence the feasibility of bringing a case to different courts or complaints bodies. Consider the following questions when you are deciding what court or body is best for you:

• What is the cost involved?
• How independent is the court?
• Is the court influenced by corruption?
• Will the court be able to enforce the judgment against the defendant?

For example, while it will usually be more expensive to take legal action in the courts of another country, this may be necessary if courts in your country are weak, corrupt or unable to enforce a judgment against a defendant that’s based in another country.

(e) Taking Legal Action in Multiple Places

Sometimes there will be more than one option that could be right for your case. It is recommended that you discuss these options with a lawyer or a supporting organisation before making your decision.

Also, in some cases, claimants have to use multiple courts or legal mechanisms to secure justice.

Case Study: The Shell Oil and Niger Delta Cases

In the oil rich region of the Niger Delta, Nigeria, Shell Oil have been alleged of systematically engaging in human rights abuses against local peoples and destroying their livelihoods through severe environmental destruction.

Due to the immense economic power of Shell and their close relationship with the corrupt Nigerian government, attempts to achieve justice domestically have failed, with rulings requiring Shell to pay compensation and change their behaviour being ignored by the oil giant.

Therefore, local communities have had to use other legal systems to achieve justice. Despite initial success, the possibility of bringing claims in the USA has been closed by the Supreme court, who require the activities to have a clear link to US territory.

In the Netherlands, claims are allowed to be brought, but have had mixed success.

In the UK, a recent case has succeeded in procuring a £55m settlement from Shell for their abuses.

Through a combination of political activism and the legal pressure placed on Shell in Nigeria and abroad, Shell have now decided to cease operations in the Niger Delta, a victory for local communities.

This shows that often a combination of political and legal actions at home and in other countries must be used to achieve the wider objectives of a case. To employ such a strategy successfully, it will require a good mix of creative thinking, and lots of help from international networks.