Last Friday, the Canadian Supreme Court announced its decision on jurisdiction in Nevsun Resources Ltd. v. Araya, in which a Canadian company is being sued for alleged violations of Customary International Law (CIL) in the East African country of Eritrea.
Global human rights and international law advocates are applauding this major decision, finding that CIL is part of Canadian law, even where the legislature has taken no action to codify it domestically. This was one of the first cases filed in Canada where plaintiffs based their claims directly on international law, rather than citing domestic statutes.
Here we examine this landmark case and its implications. While the decision only allows the case to move forward and does not provide remedy for the victims at this stage, it has big implications for these victims and others who may bring cases in Canada against Canadian companies. Comparing this decision to obstacles that plaintiffs in a similar case would have faced in the United States, we also show how the Nevsun decision highlights the differing approaches to holding corporations to account for overseas human rights abuses.
Background
Canadian mining company Nevsun Resources Ltd., which has now been acquired by Zijin Mining Group Company Limited, owns 60% of the Bisha Mining Share Company in Eritrea. Gize Yebeyo Araya, Kesete Tekle Fshazion, and Mihretab Yemane Tekle, Eritrean refugees in Canada, filed a class action in 2014 in British Columbia on behalf of more than 1,000 individuals against Nevsun. The plaintiffs claim that they were conscripted to work in the Bisha mine between 2008 and 2012 as part of the Eritrean government’s obligatory “national service program” that places people in direct military service or working on construction projects for the national interest.
The types of abuses that Araya, Fshazion, and Tekle pled are egregious. They claim that they were indefinitely conscripted into forced mining and, as part of that work at Bisha, were subjected to violent, cruel, inhuman, and degrading treatment. They were forced to work thirteen hour days six days a week, in temperatures up to 120°F. They allege that their subsistence pay was docked if they became ill, which was common given the conditions. The plaintiffs say that punishments for failure to obey over the course of their employment included physical torture in the form of being ordered to roll in hot sand while being beaten with sticks and having their arms and legs tied together while being left in the hot sun for an hour. The named plaintiffs escaped Eritrea and became refugees in Canada between 2011-2013.
The workers pled breaches of CIL prohibitions on forced labor, slavery, cruel, inhuman, or degrading treatment, and crimes against humanity (and domestic torts including conversion, battery, false imprisonment, conspiracy, and negligence.)
While Nevsun argued that the Eritrean courts are the appropriate venue because the harms took place in Eritrea, the Court previously denied the company’s forum non conveniens application, finding that there was a high risk of an unfair process Eritrean courts, especially since the Eritrean government is, at least in part, behind these abuses.
The SCC Decision
On February 28, 2020, the Supreme Court of Canada (SCC) ruled on the classic, narrow jurisdictional question: can these plaintiffs bring these claims in this court?
Indeed, they can. On the CIL question, the SCC held that the particular harms alleged here rise to the level of jus cogens, which are norms from which there can be no derogation (there is no discretion here, and any laws that conflict must be preempted).
The Court wrote, “Canada has long followed the conventional path of automatically incorporating customary international law into domestic law via the doctrine of adoption, making it part of the law of Canada” (page 8). This assertion that CIL is common law (without the need for legislative action to adopt it), is a profound affirmation of international law. And while this suggests that this decision is consistent with Canadian jurisprudence, the decision is significant because the plaintiffs plead violations of international law directly, without relying on any domesticating statute. The question of where international law violations can be adjudicated is a complicated one, but here the SCC provides at least one relatively simple answer: for violations of CIL, if there is jurisdiction over the defendant, Canadian courts are one option on the table.
Outcomes
This decision does not grant relief, but it allows the Eritreans who were conscripted into forced labor to move forward with their case in Canadian courts. The Eritrean workers must now show that Nevsun is responsible for the harms they suffered--often a daunting task even where significant evidence of wrongdoing exists.
In its analysis, the Court’s majority found that the act of state doctrine (which would have prevented Canadian courts from deciding a case concerning activities of a sovereign government within its sovereign territory based on its own law) is not part of Canadian law; CIL is automatically incorporated into Canadian law and CIL violations are civilly actionable in Canadian courts; and that corporations can violate CIL and be held liable in Canadian courts when they do.
The SCC offered a logic for future cases: the CIL norms raised by the workers are part of Canadian common law, and Nevsun is a Canadian company bound by Canadian law, so the claims of the workers against Nevsun for breaches of customary international law ought to be allowed to proceed.
Following this decision, Canadian companies operating internationally (including but not limited to Nevsun) can be held accountable in Canadian courts for many human rights abuses that they commit outside of Canada. Especially following the demise of the Alien Tort Statute (ATS) in the United States (see more below), that’s a big deal.
(The SCC’s “Case in Brief” on this is a model of how courts should communicate to the public. Was this description a little technical? Let the Supreme Court of Canada break it down for you.)
Nevsun draws clear distinction from US on corporate liability for international human rights abuse
Had this case been brought in the US against a US company, the jurisdictional question would have, in all likelihood, come out differently. Here’s why:
Unlike in Canada, the act of state doctrine applies in the US, although courts have recently applied it only where it would be “outcome determinative.” In a case like Nevsun where state actors are involved, the act of state doctrine analysis would likely be incorporated into the question on jurisdiction.
Like in Canada, in the US, CIL norms that have attained “the general assent of civilized nations” are part of US law. However, judges have divergent views on the status that CIL norms have in the US legal system (especially around whether or not CIL norms require implementing legislation), and to have a chance of success, plaintiffs have needed to plead allegations of CIL violations through statutes. For a couple of decades, the ATS played that role.
Now that the Supreme Court has all but done away with the possibility of holding corporations accountable for human rights abuses committed overseas under the ATS, a similar fact pattern to Nevsun would in all likelihood fail in US courts.
In its 2013 Kiobel decision, the Supreme Court held that the presumption against extraterritoriality applies to the ATS, and claims must present a close nexus (more than a defendant’s “mere corporate presence” in the US) in order to overcome the presumption and thereby be applicable to conduct that occurred overseas.
Then, in 2018, in Jesner, the Supreme Court foreclosed the possibility of corporate liability for violations of international law committed abroad-- definitively for foreign corporations, and likely for domestic entities as well. Although the Supreme Court recognized that the conduct alleged in the case (financing terrorism) violated a well-established CIL norm for which corporate personnel could be held liable, the Court found no well-established norm on corporate liability for violations of international law, which it used to justify its finding that the ATS does not grant jurisdiciton over foreign corporate defendants. Although the Court decided this was the case for foreign corporations, the logic extends to all corporations.
Currently the ATS only provides jurisdiction over international law violations with a close connection to the US. And even for the atrocious abuses the plaintiffs allege they suffered in Nevsun (which amount to jus cogens norms), and even if the court didn’t apply the act of state doctrine, it’s hard to imagine a way in which even the most sympathetic US court could find jurisdiction given the current ATS precedent.
The Supreme Court of Canada’s jurisdictional decision in Nevsun points to the absurdity of the US Supreme Court’s loophole for corporate liability for violations of international human rights. As Jesner dissenting Justice Sotomayor said, this precedent “allows these entities to take advantage of the significant benefits of the corporate form and enjoy fundamental rights … without having to shoulder attendant fundamental responsibilities.” (page 34).
Kaitlyn Filip is a legal intern, Avery Kelly is a Staff Attorney, and Charity Ryerson is CAL’s Founder and Executive Director.
The above photo of the Bisha mine was taken by Martin Schibbye and is licensed under the Creative Commons Attribution-Share Alike 4.0 International license.
