Before turning to a specific mechanism, there are various questions to be asked and elements to be considered:
Who is causing the harm and what are its causes?
First of all, information on the company which is causing the harm is needed. In many cases, companies change their legal names which creates confusion amongst local affected groups. Groups such as NGOs can offer assistance in identifying the company structure. Once obtained, it is easier to determine the legal structure of the company.
Is the company owned by the State? Is the concerned company a subsidiary of a multinational corporation based abroad? Where is the parent company located? What link does the company have with the parent company and the subsidiary/ commercial partner?
What is the cause of the harm? Is the company the one breaching the law or is it due to the lack of proper regulation in the country? Or else, is it due to the unwillingness or inability of the government to apply the law? Can the acts of the local concerned corporate entity be attributed to the parent company?
Who is responsible for the commission of the violation? Who are the duty-bearers?
In addition to identifying the identity of the company , and the role it played, in order to be able to determine which mechanism can be seized it is important to identify which State has failed to fulfil its obligations. The host State holds the primary responsibility to ensure the protection of everyone’s human rights, thus if a violation occurs within its jurisdiction, the state’s responsibility is at stake, be it for its actions or omissions. However, home States (i.e. where the parent company is based) also have their share of responsibility (although more difficult to establish) to control “their” companies.
Assessing the context
Sometimes, a particular context may favour the choice of one type of mechanism over another. Various questions might in turn be helpful here:
- Are there other ongoing proceedings in relation to the same situation, in particular legal proceedings?
- Are there other groups affected that have denounced the behaviour of the company?
- Are there ongoing social campaigns? Who could be your allies?
The corporate context
- Who is funding the project or the concerned company?
- Is it a company listed on stock exchanges? If yes, who are the shareholders of the company?
- Has the company received funds from public institutions such as a regional development bank or an export-credit agency? If yes, what stage is the project at?
- Has the project started? Has the project received full financing?
- What are the CSR commitments of the company?
- Has it already engaged in a dialogue process with other stakeholders? If yes, was the process deemed satisfactory?
What can be expected from a mechanism? What are its inherent limitations?
Identifying the risks for victims
What are the risks that victims or their representatives face? Are there risks of reprisals?
If desirable, and to ensure protection, is it possible when seizing a mechanism to ensure the confidentiality of the victims’ identity throughout the process? What types of guarantees are available? Are victims aware that the process can sometimes take years? Can they take on the risk of eventual costs and fees related to judicial proceedings?
Finally, victims and their representatives should evaluate whom they can obtain assistance from to file a case. Globally, civil society networks are expanding and are being strengthened. Groups in home and host States may share similar interests and objectives and can collaborate with each others in order to obtain justice for victims.
The answers to these questions will help to ensure that affected individuals and their representatives opt for the most appropriate mechanism(s).
This guide does not claim to be exhaustive. Rather, it is meant to be a dynamic tool that is accessible and can be updated and improved. It is intended to help rights-holders claim their rights and to encourage civil society actors involved to share and exchange strategies on the outcomes using these mechanisms with one overarching objective: to ensure that victims of human rights violations can obtain justice, regardless of who committed the violation.