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By James Yap, CLAIHR President

This post originally appeared on the blog of the Business and Human Rights Resource Centre (BHRRC).

Momentum continues to gather for transnational human rights litigation brought in Canadian courts against Canadian corporations, with the release on February 28 2020 of the Supreme Court of Canada’s decision in Nevsun Resources Ltd. v. Araya.

The key legal takeaways from the decision can be summarized as follows:

• There is no independent act of state doctrine[1] in Canadian common law (unanimous)

• Violations of customary international law may be civilly actionable in Canadian courts (5-4 majority)

• Rules of customary international law that are binding on individuals are also binding on corporations (5-4 majority)

The decision looks to be foundational in terms of the treatment of customary international law in Canadian common law courts. This and certain other aspects of the decision, notably the ruling on corporate liability under international law, may also have implications further afield.

Background

The claim was filed in November 2014 in the Canadian province of British Columbia by Eritrean nationals who have fled Eritrea and are living abroad as refugees. They allege that as part of a collaboration between the defendant Canadian mining company, Nevsun Resources, and the Eritrean government, they along with a large number of compatriots were forced to work on the construction of the Bisha mine in Eritrea. They alleged that perceived disobedience was often met with severe punishments such as arbitrary detention and torture.

The situation at the Bisha mine has received attention from international organizations, with Human Rights Watch and a United Nations Commission of Inquiry both reporting on the use of forced labor there. The company denies all allegations.

The plaintiffs plead various conventional common law torts such as negligence, conspiracy, and battery.  But in a novel argument, the plaintiffs also plead that the company’s actions are civilly actionable as breaches of customary international law rules prohibiting slavery, forced labor, torture, crimes against humanity, and cruel, inhuman, and degrading treatment. Customary international law is said to be automatically incorporated into domestic law through the common law, and so the plaintiffs argue that breaches of these international law rules must give rise to a civil remedy under domestic common law.[2]

The company filed a motion to strike the novel claims. It also filed two other motions to dismiss the lawsuit in its entirety: the first on the basis of the forum non conveniens doctrine, arguing that Eritrea was a more appropriate forum for the litigation than Canada, and the second on the basis of the act of state doctrine. The act of state doctrine is a rule that prevents courts from ruling on matters that engage the lawfulness of another sovereign state’s conduct. Although recognized in other common law jurisdictions such as the UK, the US, and Australia, it has never been applied in Canada.

The company lost all three motions at the British Columbia Supreme Court, and appealed to the British Columbia Court of Appeal, where it lost again. The company then appealed to the Supreme Court of Canada on the act of state and customary international law motions. It did not seek leave to appeal the forum non conveniens decision, the lower courts having concluded that there was a real risk of an unfair trial in Eritrea on the evidence, inter alia, of several former Eritrean judges who had fled their country and were living abroad as refugees.

The Decision

The Supreme Court of Canada dismissed both motions under appeal in February 2020. A five-judge majority, led by Justice Abella, noted a line of British cases identifying the act of state doctrine as consisting of two distinct components: a choice of law rule requiring courts to recognize the validity and effect of foreign laws in foreign territory, and a rule of judicial restraint from adjudicating matters intruding too far into the realm of interstate relations (para. 35). The majority simply reasoned that Canadian law already had equivalent rules governing choice of law and judicial restraint. The act of state doctrine was thus superfluous and had no place in Canadian law, and therefore posed no bar to the plaintiffs’ claims (paras. 44-59).

On the customary international law claims, the majority affirmed that customary international law forms part of the law of Canada (paras. 94-95), and that the norms invoked by the plaintiffs are part of customary international law, and perhaps even jus cogens[3] (paras. 100-03). The majority also affirmed that rules of customary international law can also bind corporations (paras. 104-13, 185).

The majority further accepted that existing conventional common law torts may be inadequate to redress wrongs so severe that they breach core norms of customary international law (para. 129). For instance, an award of punitive damages under conventional tort law may be an inadequate response where serious international law violations such as those alleged here are concerned (para. 126).

The majority thus accepted that the plaintiffs’ argument to recognize new nominate torts based on customary international law claims could very well succeed at trial. Further, they also observed that in the alternative to recognizing new nominate torts, a case could be made for “a direct approach recognizing that since customary international law is part of Canadian common law, a breach by a Canadian company can theoretically be directly remedied based on a breach of customary international law.” (para. 127) The claim was therefore allowed to proceed (para. 132).

Two other judges led by Justice Brown issued a partial dissent, in which they agreed with the majority’s conclusions on the act of state doctrine, but would have dismissed the customary international law claims.

Among other things, Justice Brown would have held that corporations cannot be bound by international law (paras. 188-91). Justice Brown criticized Justice Abella’s majority reasons, inter alia, for citing only one authority on this point. However he himself cited only two, which themselves offered weak support. His first authority cautioned that it was only a result of “preliminary research” concerning corporate liability in a specific subfield of international law, and explicitly recognized elsewhere in the text that certain other international law norms, including some of the ones invoked in the Nevsun case, may well apply to corporations. His second authority cited the first.

It is nevertheless true that Justice Abella did not cite as much authority as she could have, particularly as there were plenty of authorities cited on this question throughout the proceedings. The Court of Appeal’s reasons, for instance, cited several authorities on the topic (paras. 190-94), while the original motion judge’s reasons made special note of the copious volumes of authorities that had been referred to him on the question (para. 470).

A further dissent was delivered by two judges led by Justice Côté. She agreed with the majority that the principles underlying the act of state doctrine were essentially subsumed into existing Canadian law (paras. 285, 293). She also agreed with Justice Brown’s reasons that the customary international law claims should be dismissed (paras. 267-69, 313). However, she would also have dismissed the entire case based on act of state principles as applied through the existing Canadian legal rules of non-justiciability (paras. 293-313).

What Happens Next

Because of the Supreme Court’s ruling on act of state, the claim may now proceed to trial. Because of the Supreme Court’s ruling on the customary international law claims, those novel arguments may also now be advanced at the trial. It bears emphasizing that the Supreme Court’s ruling goes no further than this, and it is left to the trial process to make the final determination of whether the plaintiffs’ customary international law claims are indeed possible under common law, and if so what they look like (apart from the question of whether the claims are established on the evidence in the first place).

The Supreme Court’s guidance in Nevsun does set certain parameters for the analysis. The customary international law claims will proceed on the basis that the international law rules invoked here are indeed rules of customary international law, and the majority’s reasons also seem to confirm that many if not all are jus cogens as well. The analysis will also proceed on the basis that rules of international law can be binding on corporations. What is more, determining whether a particular rule of international law is binding on corporations is merely a matter of determining whether or not it is of a strictly interstate character (para. 105). The implication seems to be that, at the very least, any rule of international law that is binding on individuals is also binding on corporations.

Other questions, however, remain to be answered. Of particular interest is the majority’s commentary that a “direct approach” that creates civil liability for customary international law violations without the recognition of new nominate torts may be possible. It is unclear what the majority envisions here. It may be that they were inspired by the substantial US jurisprudence developed around the Alien Tort Statute[4] (ATS), which also seems to provide civil actions for violations of international law somewhat outside the realm of conventional tort law. Indeed, the pioneering work done in the US around the ATS will inevitably loom large in the Canadian discussion, as courts weigh questions of whether recognizing domestic civil liability for violations of customary international law is feasible, and if so how it would operate.

Impact in Canada

Nevsun looks to be a transformative moment in the narrative of Canadian courts’ engagement with international law. In substance, much about the decision is neither new nor surprising: the Supreme Court did little more than reach the same decision as both lower courts, and the ruling on customary international law is preliminary anyway. Moreover, Canadian courts have long declared that customary international law is part of the common law. But the difference is that up until now, customary international law has typically been treated more like an incidental afterthought or abstract curiosity, whereas the approach in Nevsun seems to recognize it as something much more substantive and consequential. In particular, international legal norms protecting human rights are “not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities” (para. 1). The overall message is clear and unmistakable: if such customary international law norms form part of Canadian law then Canadian law must affirmatively uphold them, and lower courts have a broad licence to be creative in using them to fashion civil remedies.

As a result, Canadian corporate legal departments, as well as their outside counsel and insurers, will begin paying much closer attention to international law – particularly given the majority’s suggestion that conventional measures of damages in Canadian tort law may not be a sufficiently strong response to grave violations of customary international law.

Following its usual practice in such circumstances, the Supreme Court only set out broad principles, leaving the details to be filled in subsequently by lower courts. Canadian corporations will no doubt bemoan the lack of certainty this creates. Practically speaking, however, such uncertainty will have little if any negative impact. The common law has always been inherently uncertain by design, and ultimately if they truly desire certainty they need only avoid committing grave violations of international law such as slavery and torture.

Nevsun also seems to herald the triumph of a more globally-minded and expansive outlook on a Canadian court’s role in adjudicating disputes featuring a significant extraterritorial connection. Interestingly, it came a week after the Supreme Court’s decision in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), which raised the question of whether a Quebec court could hear a lawsuit against a mining company arising from a dispute concerning land in part situated across the provincial border in Newfoundland and Labrador. The same five-judge majority as in Nevsun joined to affirm the Quebec court’s jurisdiction over the claim, while the same four-judge minority dissented.

This more global outlook is a key development for transnational human rights litigation against Canadian companies in Canadian courts, as the traditional judicial attitude towards such claims has been more inward-looking and restrictive. The first string of such cases failed as Canadian courts initially adopted a narrow approach to their jurisdiction over such claims. As recently as a decade ago, as ATS litigation in the US was thriving, it was a commonly held view that such claims were simply impossible in Canadian courts. However, the tide has since turned. Notably, the Supreme Court’s decision in Nevsun follows two 2017 decisions of the British Columbia Court of Appeal – including the one in the same Nevsun litigation, mentioned above – rejecting attempts to dismiss human rights lawsuits against Canadian companies on the grounds of jurisdiction. Canadian corporations will begin scrutinizing the human rights implications of their activities more closely, if they haven’t already.

Implications Abroad

The impact of this decision may also reverberate beyond Canada in various ways.

First, as a decision from a top common law court it is a persuasive authority elsewhere in the common law world, notably in countries such as the UK and Australia. For instance, other courts have found the act of state doctrine notoriously difficult to define with clarity, yet it serves no discernible purpose that is not already covered by other rules. For these reasons, there has been a recent trend across the common law world to restrict its scope: the UK Supreme Court imposed important constraints on the doctrine’s application in Belhaj v. Straw, and the Australian High Court’s ruling in Moti v. The Queen has been described as “tantamount to the abolition” of the doctrine. Up to now common law courts have stopped short of outright abolition, likely out of deference to established precedent. However, the Nevsun decision may prove to be the “emperor’s new clothes” moment for the act of state doctrine, emboldening common law courts elsewhere to take the logical next step.

It is also possible that other common law courts will take up and build on the Canadian court’s suggestion that violations of customary international law may be civilly actionable in domestic law. It seems early at this stage to speculate on what other common law countries might do in this regard, as Canada itself has still only taken preliminary steps in this direction. However, the highly developed US case law built around the ATS may further embolden other common law countries contemplating doing so, as it provides a detailed and convenient road map for how it can be done. Finally, the Supreme Court in Nevsun did not just issue rulings on Canadian law, it also decided several questions of customary international law that are applicable around the world. Nevsun may thus impact the decisions of other courts and tribunals considering the same legal questions. Perhaps most notable in this regard is the ruling on corporate liability under international law. Corporate defendants have for many years been attempting to argue that they are immune from the application of international law, and while these efforts have mostly failed, they have been successful in some courts (not to mention the dissent in the Nevsun decision).  The Supreme Court of Canada’s rejection of this argument moves international law closer to a global consensus resolving the question.

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[1] Unlike in the US, Canada’s Supreme Court sets the common law throughout the country. Nevsun is thus controlling precedent everywhere in Canada.

[2] In the common law, a plaintiff must typically invoke one of an established category of civil wrongs with set requirements. However, a plaintiff can also argue that the common law should recognize a new, previously unrecognized civil wrong, which is what the plaintiffs did here.

[3] A jus cogens norm of international law is one that is so fundamental that no derogation is permitted.

[4] A 1789 federal provision granting US federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” It has been used extensively as the basis of civil claims rooted in alleged violations international law.

By William Onyeaju, JD candidate, Osgoode Hall Law School

As the Western gaze has shifted away from the conflict in the Lake Chad region of Nigeria, Boko Haram’s assault on the Nigerian state has continued unabated. On 19 February 2018, 110 schoolgirls were abducted by Boko Haram in a repeat of the Chibok kidnapping which shocked the world and led to the social media campaign to secure their release, #BringBackOurGirls. Following negotiations with the Boko Haram faction which seized the schoolgirls, the Nigerian government secured the release of 101 girls, except those who allegedly died and another schoolgirl (Leah Sharibu) who defied Boko Haram by refusing to renounce her Christian faith. The rescue of over 100 girls has been met with statements of relief by the Nigerian state and the families of the rescued schoolchildren. However, this tragic incident marks another sad reminder of the human cost of Nigeria’s war with Boko Haram. A cost which is brought to bear with statements from victims of Boko Haram such as Leah Sharibu’s father, Lathan, who says, “I expect the federal government to bring her back to me the way they brought the others home.”

The crisis in North-East Nigeria requires significant international attention if we truly desire to see a betterment of the human rights situation in the region. Canada could play a significant role in improving the conditions of the people who have been horribly affected by nearly ten years of war.

 

The Boko Haram Insurgency

Beginning in 2009, ‘The Islamic State in West Africa’ or Boko Haram has terrorized Northern Nigeria and has become one of the deadliest militant groups in the world. The group began as a religious sect under the leadership of Mohammed Yusuf in the early 2000s. Yusuf preached that it was forbidden (haram) for Muslims to participate in activities associated with the Nigerian state and Westernization, including Western education.

Following clashes with Nigerian security forces, Yusuf was killed in 2009 and the surviving members of the group went into hiding only to re-emerge as a terrorist group, under the leadership of Abubakar Shekau, which aspired to destroy the Nigerian state and replace it with their version of an Islamic society. Led by Shekau, Boko Haram began a campaign of terror characterized by suicide bombings, assassinations, kidnappings and the targeting of minority groups in Northern Nigeria such as Christians.

In 2014, Boko Haram gained enough strength to start seizing control of territory in North-East Nigeria and by the middle of that year it had kidnapped more than 200 Chibok Girls, declared a caliphate and expanded its attacks to the neighbouring countries of Chad and Cameroon. Furthermore, the group had declared its allegiance to the so-called ‘Islamic State’, prompting the name change to the ‘Islamic State in West Africa’. The following year, Nigeria, Chad, Cameroon and Niger formed a coalition to recapture the territory that had been seized by Boko Haram and to defeat the group’s insurgency. The coalition was successful in recapturing territory from the militant group, starting in 2015, but at a grave cost for the civilians living in the region.

 

The Humanitarian Cost of Boko Haram’s War

The Boko Haram insurgency has led to horrific consequences for the people of the Lake Chad region in the countries of Chad, Cameroon, Niger and especially Nigeria. According to the Council on Foreign Relations’ ‘Global Conflict Tracker’, more than 20,000 people have died since 2011. Approximately 2.4 million people have been displaced in the Lake Chad region. An additional 7.2 million people have been left food insecure because of the conflict. There are over 200,000 Nigerian refugees in neighbouring countries such as Cameroon and Chad.

There have been additional consequences from the Boko Haram insurgency that has significantly harmed human rights in the Lake Chad region. Boko Haram’s attacks, especially their violent acts towards students and schools, have deprived hundreds of thousands of children from accessing the human right of education.

Concerning gender dynamics of the conflict, female survivors of Boko Haram have given detailed accounts of their sexual abuse and forced marriages to Boko Haram militants. Moreover, Boko Haram fighters have also become notorious for enslaving their kidnap victims. Dozens of women and girls have been exploited as suicide bombers for the militant group. Regarding male victims of Boko Haram, the group has reportedly kidnapped 10,000 boys during the insurgency. Many of these children are forced to become child soldiers for the group. Boko Haram recruited up to 2,000 child soldiers in 2016 according to UNICEF.

Boko Haram is not the only actor who has contributed to the human rights crisis in North-East Nigeria. The Nigerian state has been accused of harming Nigerian citizens in their pursuit of ending the insurgency and in their treatment of Boko Haram survivors. Nigerian government officials have allegedly abused Boko Haram survivors in internally displaced persons (IDP) camps and some officials have been accused of stealing food aid, creating double-victimization for the survivors of Boko Haram. Furthermore, Amnesty International has repeatedly stated that the Nigerian Army should be investigated for its abuses of suspected Boko Haram fighters, which led to the deaths of 8,000 people in detention centres. Its report, Stars on their Shoulders, Blood on their Hands: War Crimes Committed by the Nigerian Military accuses the Nigerian military of extrajudicially killing more than 1,200 Nigerian citizens. Thousands of suspected Boko Haram militants have been subjected to mass trials which, the Nigeria Ministry of Justice itself has pointed out, suffer from poor investigation techniques and an over-reliance on confessions to confirm guilt. The tragic bombing of an IDP camp in January 2017 by the Nigerian Air Force, killing over 100 people, highlights the extreme danger faced by civilians in the conflict zone.

The people of North-East Nigeria find themselves in an extremely precarious situation. On one hand, Boko Haram has sparked a humanitarian crisis which has left millions of people in a destitute state. However, the Nigerian government, which has a mandate to protect its people, is contributing to a deadly cycle of violence, harming inhabitants of a region who have already suffered greatly.

 

What Canada can do for the people of North-East Nigeria?

Canada could play an effective role in mitigating the gross harms done by Boko Haram and the Nigerian government by advocating on behalf of the people of North-East Nigeria. Already, Canadian-Nigerian bilateral relations have seen millions of dollars in development assistance flow to Nigeria. In 2015-2016, over $100 million of aid was provided to Nigeria from Canada. In 2017, over $27 million of humanitarian assistance was contributed to the Nigerian government by the Canadian government in relation to the Boko Haram insurgency. Moreover, increasingly the Canadian Armed Forces are involved in operations in West Africa aimed at combating militant groups which have links to Boko Haram. Canada’s significant involvement with Nigeria’s development and humanitarian needs (as well as West African regional security) necessitates that Canada press upon its Nigerian partners to not engage in action which worsens the conflict for Nigeria’s citizens.

There are several things that Canada could do to help Nigerian civilians in the conflict zone. First, the Canadian government could increase its international assistance funds to the millions of IDPs and food insecure individuals in the region. Moreover, it can help the Nigerian government in developing tracking tools that would ensure that funds and desperately needed items, such as food aid, are not stolen by public officials.

Additionally, the Canadian government could press upon Nigeria, and its President & Commander-in-Chief Muhammadu Buhari, to have the country’s security forces observe proper rules of engagement with enemy combatants, and to respect the rights of Nigerian citizens in the Lake Chad region. This is especially pertinent now that Canada is involved with training West African militaries. Moreover, Canada should warn against impunity for Nigerian security forces who violate the human rights of suspected militants and civilians alike, and inform Nigeria that such impunity worsens the conflict and creates popularity for Boko Haram among aggrieved Nigerians.

Finally, the Canadian government (in its efforts to help Nigeria) should recognize that Boko Haram’s actions will leave the North-East region scarred for years to come. A great deal of effort will be required of the Nigerian state and international partners to rebuild the lives of Boko Haram survivors. To aid this rebuilding process, the Canadian state must go beyond offering assistance to IDPs. In addition to that important endeavour, Canada should consider funding the rehabilitation for Boko Haram fighters (some of whom may have been forced to fight for the group) so that ex-fighters are not incentivized to re-join Boko Haram or other militant groups in West Africa. Also, suspected Boko Haram fighters who have allegedly committed crimes should have their rights to a fair trial upheld by the Nigerian state, with support from the Canadian government. Furthermore, Canada should play a role in mending relations between the multi-faith communities in the region which have been torn apart because of violent sectarianism.

The Nigerian state has been severely challenged by the Boko Haram insurgency. Africa’s most populous country, of over 190 million people, and its largest economy will struggle for years to repair the damage which has been done by Boko Haram. Additionally, the structural assistance that Canada can provide to Nigeria will be fraught with difficulties regarding implementation and the generation of beneficial outcomes. However, with the assistance of partners such as Canada, Nigeria’s recovery from Boko Haram could successfully integrate the restoration of human dignity and flourishing for all the peoples of the Lake Chad region.

WO

 

By Isabel Dávila, JD Candidate, Osgoode Hall Law School

On June 28, 2017, the Supreme Court of Canada (SCC) released its judgement in Google Inc. v Equustek Solutions Inc. The SCC outlined what remedies are available when there is a clash between one party’s legitimate intellectual property rights (here, Equustek) and a third party’s (Google’s) role in accessing the information that is infringing the other party’s IP rights. Ultimately, the SCC’s decision in the case may set a potentially concerning precedent regarding access to information online, by enabling domestic courts to effectively censor the internet’s content.

Overview of the Case

On April 12, 2011, Equustek, a small technology company, launched an action against Datalink, a former distributor of Equustek’s products, alleging a violation of its intellectual property rights. Equustek claimed that while acting as a distributor, Datalink began to pass a product off as its own, using confidential information and trade secrets it had acquired from Equustek to design and manufacture the competing product. After having submitted its statement of defence in 2012, Datalink then abandoned the proceedings and left the province. After Equustek communicated with Google, the internet giant agreed to voluntarily de-index 345 individual web-pages from its Canadian search engine, google.ca. However, Google refused to de-index all web domains from its international search engines. Equustek then obtained an interlocutory injunction forbidding Google from displaying any part of Datalink’s websites on any of its global search results.

The SCC’s Findings

At the SCC, Google argued that the injunction was not effective in preventing irreparable harm and that a global injunction violates international comity. Google argued that the order may clash with the laws of foreign jurisdictions, particularly as it might impinge freedom of expression. The SCC dismissed both arguments, stating that, “[t]he interlocutory injunction in this case is necessary to prevent the irreparable harm that flows from Datalink carrying on business on the internet, a business which would be commercially impossible without Google’s facilitation.” The SCC further found that Google lacked evidence for its claim that complying with such an injunction would require it to violate the laws of another jurisdiction.

Shortcomings in the SCC’s Reasoning

The majority’s reasoning appears to misunderstand a key feature of search engines, specifically, their role as functional intermediaries, rather than owners of online content. The Court failed to grasp that by compelling Google to de-index certain websites, the content does not cease to exist, nor does it become inaccessible in other ways. As Google set out in its submissions, which were also recognised in the dissent of Justices Côté and Rowe, Datalink’s websites can still be found using other search engines, such as Yahoo or Bing, or through links from other websites, bookmarks, emails, social media, printed material, word-of-mouth, or other indirect means. While Google is generally a dominant search engine, the injunction is largely an ineffective remedy because Datalink’s websites are still accessible on the internet regardless of whether Google lists them or not.

Furthermore, the SCC’s decision is worryingly overbroad. While Equustek’s intellectual property claims are valid, by dismissing Google’s arguments of the possible ramifications on freedom of information and the right to freedom of speech, the majority failed to adequately address the subtle but fundamental issue of competing rights. As explained by the Electronic Frontier Foundation, an intervenor in the case, by mandating that Google de-index entire websites, the SCC is not only restricting access to Datalink’s illegal content, but also to its legitimate content which users around the globe arguably have a right to access. Imagine that an Amazon or eBay seller engaged in certain illegal practices, and Google was mandated to de-index those entire websites from its search engine. Such de-indexing would essentially block all consumers from seeing the seller’s other completely legal content or products.

New Evidence and the Future of Internet Governance

Furthermore, new evidence is available to demonstrate that the injunction would be incompatible with the laws of another jurisdiction. In November 2017, a California federal judge granted Google’s request for a preliminary injunction against the original SCC order and stated that, “[b]y forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals […] and threatens free speech on the global internet.” It remains to be seen what Google will do with the US judgement, but it is important to understand that not all internet actors or intermediaries have access to the resources that Google does. Hopefully, future Canadian court decisions will better identify how important it is for individuals to access information online and the fundamental role of the internet in facilitating freedom of speech and expression.

ID