Isabel Davila Pereira*

Versión en español aquí.

On February 28, 2020, the Supreme Court of Canada (‘SCC’ or ‘the Court’) issued a landmark decision opening the path to hold corporations civilly liable for violations of international human rights law. The majority of the Court held that customary international law is part of Canadian law[1] and that international human rights law must be understood today as applying to corporations as well as to states.

Background

In Nevsun Resources Ltd. v. Araya, three Eritrean workers claimed that they were   conscripted through Eritrea’s military service which turned into a forced labour regime. The Eritrean workers started proceedings in the province of British Columbia in Canada against Nevsun seeking damages for breaches of customary international law norms against forced labour, slavery, cruel, inhuman, or degrading treatment, and crimes against humanity.

The Bisha mine is owned by Bisha Mining Share Company, which is in turn 40% owned by Eritrean National Mining Corporation and 60% owned by Canadian company, Nevsun Resources Ltd. In 2002, the period of military conscription in Eritrea was extended indefinitely and conscripts were forced to provide labour at subsistence wages. The claimants submitted they were forced as a part of the conscription system to provide labour in harsh and dangerous conditions for years and that, as a means of ensuring obedience punishments were used. They say these punishments included “being ordered to roll in the hot sand while being beaten with sticks until losing consciousness” and the ‘“helicopter’ which consisted of tying the workers’ arms together at the elbows behind the back, and the feet together at the ankles, and being left in the hot sun for an hour”.

Key Issues

Act of State Doctrine

The act of state doctrine is a rule applied in England and Australia, which holds that a domestic court is incompetent to judge the lawfulness of the sovereign acts of a foreign state. The SCC found that this English doctrine does not apply because it   has been incorporated into Canadian law in a modified form. Citing past jurisprudence, the Court confirmed in Nevsun that courts can make determinations about the validity of foreign laws where it is incidental to the resolution of the legal issue facing the courts and it emphasized the importance of fundamental justice and human rights when such determinations must be made. It also found that the Court is entitled to consider evidence on the general human rights situation in a foreign state.

International Human Rights Law

“This appeal involves the application of modern international human rights law, the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. […] Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities.”[2]

The key question the SCC answered in this case was whether customary international law is part of Canadian law. The Court found that, as a result of the doctrine of adoption – a doctrine mandating how norms of international law are incorporated domestically –  norms of customary international law are fully integrated into, and form part of, Canadian domestic common law, absent conflicting legislation.

Corporate immunity

Nevsun argued that even if the Court found customary international law to be part of the common law, it is immune because it is a corporation and these norms apply to states rather than corporations. The SCC disagreed with them and found that they misconstrued modern international human rights law. First, it found that in today’s context, international human rights norms are routinely applied to private actors. For example, human rights law prohibits violations by private actors in fields as diverse as discrimination, children’s rights, crimes against peace and security, and privacy. Second, it agreed with academic commentaries from Professor Koh in that since “non-state actors like corporations can be held responsible for violations of international criminal law […] it would not “make sense to argue that international law may impose criminal liability on corporations, but not civil liability”.

Conclusion

The SCC decision in Nevsun is a landmark decision for those attempting to bring claims against Canadian companies operating abroad and breaching international human rights law. It shows a willingness from the Court to enforce rules of international human rights law against Canadian corporations when they are involved in human rights abuses in their foreign operations, and by their subsidiaries and partners.

However, some caution must be exercised. The decision   addressed a preliminary procedural issue on whether the case could proceed. This was not a decision on the merits of the case, and the Court left the mechanism for how these claims should proceed to be decided by the trial judge. The case will now go back to the Supreme Court of British Columbia for a substantive decision. Additionally, the decision focused on customary international law and ius cogens norms which are automatically incorporated into Canadian law. This may not be the case for all the body of law under international human rights and therefore some breaches may not fall under the protection granted by this decision.

Finally, this type of claim can face a number of accessibility obstacles due to costs and time. A claim like this can cost millions of dollars in Canada and more than 10 to 15 years may pass without a final resolution. This means that communities must either find financing or a lawyer willing to take the case on without charge or for a contingency fee. The issue with financing is further complicated by the fact that a number of big law firms who are usually capable of taking on cases with no charge already represent clients in the extractive industry, making them unwilling to take claims similar to the one in Nevsun. To this day, only three firms have accepted similar cases.

*Isabel Davila Pereira is a graduate of Osgoode Hall Law School, York University, Toronto and a volunteer for the Justice and Corporate Accountability Project.

[1] Nevsun Resources Ltd v Araya, 2020 SCC 5, para 94 [Nevsun].

[2] Ibid, para 1.

Photo: Bisha mine in Eritrea, Martin Schibbye / Wikimedia Commons