Could you patent the sun? – Polio vaccine inventor, Jonas Saulk 

By Harmit Sarai and Karen Segal

The World Health Organization (WHO) declared the COVID-19 outbreak a public health emergency of international concern on January 30, 2020, and a pandemic on March 11, 2020. At the time of writing, over 150 million people have been infected with SARS-CoV-2 (the virus which causes COVID-19) and the global death toll has exceeded three million people. Over the last two months, the number of new COVID-19 cases globally has almost doubled, nearing the pandemic’s peak infection rate. As the infection rate began multiplying faster, the epicentre of the pandemic shifted to developing countries like Brazil, Mexico, and India—all three countries have surpassed the United Kingdom and Italy in numbers of confirmed fatalities from the virus.

With the dangerous spike in new cases and deaths and fast-spreading SARS-CoV-2 variants, vaccines offer the best chances of ending this pandemic. The slow vaccine rollout and the unequal distribution of vaccines are unnecessarily prolonging the global pandemic and plunging the world’s population deeper into poverty. Further, vaccine distribution is marked by dramatic inequality between the world’s wealthy nations and the developing nations. Of the one billion vaccine doses administered globally, only 0.2% were administered in low-income countries. To drive down infection rates and death rates and protect fundamental human rights, including the right to health, greater and more equitable access to COVID-19 vaccines is imperative.

The most significant barrier to equitable distribution of vaccines globally is lack of supply, with wealthy countries dominating access to the limited available doses. Only a handful of pharmaceutical companies have developed successful vaccines, and these companies are incapable of producing a sufficient supply of vaccines to meet the demand worldwide. Of the vaccines that have been produced, the majority of the doses have been delivered to wealthy countries—many of whom have outstanding orders for far more vaccine doses than their countries could possibly use. In contrast, many developing countries are struggling to secure access to any vaccine or are only able to secure contracts for inadequate amounts.

By September of last year, 51% of the doses to be produced had already been reserved for a handful of countries with a combined population that is only 13% of the global population. By the end of 2020, 96% of the Pfizer-BioNTech vaccines had been bought by Western nations. By March 2021, Oxfam reports that rich countries were “vaccinating at a rate of one person per second,” while many poor countries will at best vaccinate only 20% of their population before the end of 2021. This problem is not limited to vaccines alone: a UN trade report indicates that middle-income and low-income countries have been priced out of access to COVID-19 related products, with “only a tiny fraction” of COVID-19 medical supplies reaching low-income countries. The same report describes the inequality in access to the vaccines as even more dire. 

Despite the current deficit in vaccine supply and the fact that there is untapped production capacity in developing nations, intellectual property laws continue to prevent developing countries from producing generic vaccines for their own populations. They remain dependent on the limited supply produced by big pharmaceutical companies, which is being accessed predominantly by wealthy nations—essentially, the world’s poor are at the end of the queue for access to this life-saving medication. This grim inequality is taking a severe toll on human life and human rights and casts into stark relief the inequality between wealthy Western nations and the Global South. As Dr. Tedros Adhanom states: “The world is on the brink of a catastrophic moral failure—and the price of this failure will be paid with lives and livelihoods in the world’s poorest countries.” 

In an attempt to increase vaccine access among developing nations, on October 2nd, 2020, India and South Africa petitioned members of the World Trade Organization (WTO) to waive intellectual property rights and patent laws—as set forth in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)—on all COVID-19 vaccines and treatments until herd immunity is achieved. This would increase access to vaccines, as pharmaceutical companies would be unable to enforce intellectual property rights, and consequently, low-income countries would be able to manufacture and administer generic COVID-19 vaccines, saving more lives.

India and South Africa argue that “an effective response to the COVID-19 pandemic requires rapid access to affordable medical products, including diagnostic kits, medical masks, other personal protective equipment and ventilators as well as vaccines and medicines for the prevention and treatment of patients in dire need.” They argue that pharmaceutical companies must be compelled to share data and expertise on COVID-19 vaccines and treatments—that would otherwise be protected by intellectual property rights—with other vaccine manufacturers, particularly those in low-income and middle-income countries.  

Regrettably, however, many wealthy WTO member states—including Canada, the United States, and the UK—have opposed  this measure. Consequently, the WTO has not yet agreed to waive intellectual property rights enforcement for COVID-19 vaccine patents. Unsurprisingly, countries opposing the waiver are the home countries of the patent-holding companies, where hundreds of pharmaceutical lobbyists are also actively opposing the proposition

These countries should understand that supporting the TRIPS Agreement waiver does not mean that pharmaceutical companies will go unrewarded. It is projected that the Pfizer-BioNTech COVID-19 vaccine will sell $15 billion worth of COVID-19 vaccines in 2021. Instead of only making billion-dollar companies richer, we also need to be vaccinating billions of people in developing countries, just as is being done in the developed countries of the world. As highlighted by South Africa at the April 22, 2021 TRIPS Council meeting, “If the opposition is just to protect the few more billions these companies will make, then the opposition is self-defeating and short sighted.” It is worth noting further that Pfizer BioNTech, Moderna, and Astra-Zeneca all received significant public funding for their research, causing advocates to argue that the results of this publicly funded research should also be publicly available.

Supporters of the proposal, including more than 100 countries in the developing world, argue that by issuing a waiver, the WTO would be enabling a rapid scale-up of vaccine production across the globe. Despite the tremendous success of the world’s wealthier countries in vaccinating their citizens, Oxfam reports that these “rich countries are siding with a handful of pharmaceutical corporations in protecting their monopolies against the needs of the majority of developing countries who are struggling to administer a single dose. It is unforgivable that while people are literally fighting for breath, rich country governments continue to block what could be a vital breakthrough in ending this pandemic for everyone in rich and poor countries alike.” Essentially, the purpose of this waiver is to prioritize saving human lives over protecting large corporate profit. Enforcing WTO intellectual property laws on pharmaceuticals and medical expertise during a global pandemic is a violation of human rights and is inimical to the global public interest. 

This proposal is not only about the supply but also about the affordability of the vaccines. As pointed out by a group of UN human rights experts, the rise in “supply and vaccine nationalism,” which has nations scrambling to secure the largest possible volumes of vaccines for themselves at the expense of poorer countries, will also exacerbate the poverty facing the Global South:

“Low and middle income countries will have to devote more resources for obtaining the various products, leading to more debt and further reducing fiscal space for measures and policies for acute needs on health, food and social security, all crucial elements to address the situation of their population.”

Because COVID-19 vaccines are currently the best way to prevent the disease and control the pandemic, availability and access to these vaccines are essential to the right to health of all people. The human right to health is recognized by multiple international instruments, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), which stipulates that all parties to the covenant “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

The covenant goes on to state that the steps to be taken to achieve this right include those necessary for the “prevention, treatment and control of epidemics…and other diseases” and “the creation of conditions which would assure to all medical service and medical attention in the event of sickness.” Everyone is entitled to “enjoy the benefits of scientific progress and its applications” toward attaining the highest standard of health, without discrimination. Access to pharmaceuticals in the context of the COVID-19 global pandemic is fundamental to achieving the right of every human to the highest attainable standard of health. 

Together with the ICESCR, a variety of other international instruments clearly protect the right of everyone to enjoy the highest attainable standard of health. The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly as the “common standard of achievement for all peoples and all nations.” The UDHR declares that human rights are universal and recognizes that all people have the right to medical care, a standard of living adequate for their health and well-being, and the benefits of scientific advancement. Additionally, the 194 member states of the World Health Organization formally recognize that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being, without distinction of race, religion, political belief, economic or social condition.”

By opposing the motion to temporarily waive intellectual property rights and patent laws for COVID-19 vaccines and treatments,  wealthy Western nations have failed to take all possible measures for the prevention, treatment, and containment of the COVID-19 crisis, and consequently, are in breach of international human rights laws. The COVID-19 pandemic is an unprecedented crisis, and it calls for unprecedented action.  

While Article 31 of the TRIPS Agreement grants governments the power to issue compulsory licences authorizing the national manufacturing of low-cost generic equivalents of patented medicines, these flexibilities for protecting public health are inadequate, given the urgency of the global pandemic. To issue compulsory licences, countries must follow a complex and time-consuming process. The rules permitting compulsory licensing apply only on a case-by-case and product-by-product basis, and unsurprisingly, this process is too limiting and slow for a worldwide crisis.

The TRIPS compulsory licensing regime also proved to be insufficient during the HIV/AIDS epidemic, which saw developing nations grappling simultaneously with a deadly outbreak of HIV/AIDS and the enormous costs of accessing remarkably expensive patented antiretroviral medications. One of the issues that exacerbated the problem is that Article 31(f) of the TRIPS Agreement stipulates that a country utilizing a compulsory licence must manufacture the product locally for its domestic market. To take advantage of this clause, the country must already have sufficient manufacturing capacity, but it can be challenging for some developing countries to set up pharmaceutical factories to manufacture products without the support of the international community.

In such circumstances, having a global coordinating body that assists these countries in scaling up their production infrastructure to produce COVID-19 vaccines, for example, would be a worthwhile initiative. A coalition of UN human rights experts, including the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, asserts that complying with their international human rights obligations requires states to ensure that technologies and intellectual property are widely shared to enable developing countries to scale up the development, manufacture, and distribution of vaccines. 

The HIV/AIDS epidemic also represented a clear example of the inequalities in access to health care between rich and poor countries. The Western world could afford antiretroviral medications to treat its populations, while essential drugs were priced beyond the reach of developing countries. Patent holders were granted exclusive rights to the manufacture of these medicines and proceeded to charge a premium significantly in excess of their marginal costs of production. By the time resource-poor regions were able to access the medicines, the death toll from the HIV/AIDS epidemic had exceeded 10 million in Africa alone. To avoid an exact repetition of history, today’s world leaders need to immediately address the problem faced by low-income countries regarding access to COVID-19 vaccines and treatments.

When examined from the perspective of the right to health, the TRIPS Agreement waiver proposal induced by the COVID-19 crisis is fundamentally a human rights issue. The intellectual property rights protected by the WTO provide pharmaceutical companies with a monopoly over the production of vaccines and medical supplies, which restricts access to life-saving medications for billions across the globe. With the current pandemic, it is impossible to simultaneously enforce intellectual property rights and protect the human right to health. In these circumstances, COVID-19 vaccines should be affordable and accessible to all, without discrimination. 

In pursuit of this goal, more than 140 world leaders and experts have signed an open letter requesting all governments to support a people’s vaccine for COVID-19. The letter demands that all vaccines, treatments, and tests be patent-free, mass-produced, fairly distributed and made available to every individual, in all nations, free of charge. As Helen Clark, former Prime Minister of New Zealand, phrases it: “The COVID-19 vaccine must not belong to anyone and must be free for everyone. Diplomatic platitudes are not enough—we need legal guarantees, and we need them now.” The Canadian government should join other world leaders and health advocates to support a people’s vaccine and ensure that human lives are prioritized over the profits of big pharmaceutical corporations. The world’s wealthy nations should not forget that, as long as there is COVID-19 anywhere in the world, it remains a threat to everyone on the globe. 

Many medical experts argue that the fight against COVID-19 is a struggle to vaccinate as many people as possible before deadlier or vaccine-resistant variants emerge. According to Dr. Tedros Adhanom, “the more transmission, the more variants. And the more variants that emerge, the more likely it is that they will evade vaccines. We could all end up back at square one.” The world has witnessed the death toll inflicted by the existing variants, variants that slipped across our borders with ease. This means that a slow vaccine rollout significantly threatens to undermine all the progress that has been made in the fight against this virus and puts everyone—not just those in regions with lower vaccine access—at risk of prolonged suffering: business closures, isolation, separation from family, sickness, and death. It is difficult to imagine a more pressing time to prioritize the fight against a disease over corporate profits.

Intellectual property rights should never supersede the human right to health—a truth made even more glaring in the context of a pandemic costing millions of human lives. It is critical that governments, including Canada, and companies across the globe protect the right to health of every individual by sharing medical technologies, proprietary data, and expertise on COVID-19 vaccines and other medical supplies. A global pandemic demands that countries and companies work together to develop a pandemic response that works for everyone, not just the wealthy few. Such an effort requires the sharing of the most advanced scientific knowledge to jointly mitigate the impact of the crisis and expedite access to vaccines and treatments.

By |May 3rd, 2021|Blog, Uncategorized|

Nevsun Resources Ltd. v. Araya: What the Canadian Supreme Court decision means in holding Canadian companies accountable for human rights abuses abroad

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.


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.

[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 |April 23rd, 2020|Blog|

Updates from the US-Mexico Border: A Week in the South Texas Family Residential Center

By Heather Cohen, CLAIHR Board Member

“Aren’t I human? Am I not the same as you?” my client asks.

She sits across the small, round table from me in the neon sweatsuit that marks her as an inmate of the South Texas Family Residential Center. Words do not seem enough, particularly when chosen in my second language. I want to reach across the table and take her hand to convey our shared humanity, but I cannot. Core Civic, the corporation that runs the jail, has decreed that we may never touch the thousands of women and children that the Dilley Pro Bono Project assists each year.

Before Dilley, I never imagined that I would need to touch a client. But before Dilley, I never had to stiff arm a client going in for a hug because she just received good news. I never watched a baby covered in rash, with a burning fever, repeatedly throw up all over his mom as she tries to complete some requisite forms. I never needed to so clearly articulate empathy.

I am taking my client’s advocacy declaration which will describe what she and her twelve-year-old daughter experienced in the hielera (ice box) when they crossed the border into the U.S. and were first detained. They were kept in their wet clothes for days. It was so cold in the three different hieleras they were moved to, that they had to huddle together for warmth. The officials they dealt with joked that they should be excited about their “NASA blankets.” My client was not amused. She learned how these officials truly felt when she was leaving one of the hieleras and was asked to pick up her trash. None of those detained were allowed to keep their belongings near them. There was nothing on the floor. Nothing that is, except my client’s daughter.

The following day, my client returns to the visitation trailer so that we can prepare her for her credible fear interview. Everyone is swamped and she waits three hours to meet with me and my partner, a social work student from UCLA. The credible fear interview stems from the expedited removal process that the U.S. has adopted. When an asylum-seeker arrives at the U.S. border, its not enough for them to seek asylum. They must first prove that their claim is credible and can pass some basic legal muster. Only then will they be released from detention on bond, although more likely by ankle monitor, and allowed to apply for asylum. Its a system that violates international law.

The Dilley Pro Bono Project, with a staff of only three lawyers, four paralegals, and four coordinators, represents every single woman and child who come through the South Texas Family Residential Center. They rely on volunteers to assist with the credible fear interviews and other related processes. The legal team oversees and offers the volunteers guidance. They also take over at the appeal stage and assist with immigration litigation around the country. They played a vital role in overturning Jeff Sessions’ pronouncements on domestic violence.

My client tells me she is fleeing gang violence in the Northern Triangle (of Guatemala, El Salvador, and Honduras). However, this is not enough to establish her claim for asylum. For a claim to succeed there must be what’s referred to as a “nexus” – that is, her fear of what would happen to her if she returned must be tied to a personal characteristic such as race, gender, or political opinion.

“She hasn’t mentioned the father of her daughter,” I tell my partner. “Let’s ask her about him.”

I have nightmares in which I repeatedly tell my clients that all that they have described suffering is not enough. That I need to hear about more for them to be let out of jail and just given a chance to live in this “land of the free.” In these nightmares, I am yelling this at them. While in waking life, we quietly ask our client about any abuse from her partner, from a re-traumatization perspective, we may as well be screaming.

Our client’s partner did abuse her. She once fled to another country in Central America. He found her and hit her so hard that she lost the baby she was carrying. His threats should she flee to the U.S. suggest that if she is deported, this time he will do much worse. My partner accompanies our client to her interview. She tells me that our client did well.

I am back in Toronto now, but no less anxious for my client’s positivo. I cannot imagine how she must feel. I can wait for her results safely at home, with my supportive partner. She awaits just the opportunity to be permitted to apply for asylum from jail. She is not fooled by the highlighter-coloured clothing. She and her twelve-year-old are in prison, awaiting a decision with results that could be even worse. I carry both her pain and her humanity with me, and I am thankful to the staff at the Dilley Pro Bono Project who will fight for her as long as she wants them to.

If you would like to hear more about the South Texas Family Residential Center and about opportunities to volunteer with the Dilley Pro Bono Project, whether in person or remotely, please reach out to Heather at

By |March 7th, 2019|Blog|

Nigeria: What Role for Canada in the Conflict With Boko Haram?

CEE-Hope Chibok Campaign

Wikicommons: #BringBackOurGirls

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.


By |May 10th, 2018|Blog|

UNDRIP: Canada, Indigenous Rights, and the Meaning of Endorsement

by Arron Chahal, JD Candidate, University of Toronto Faculty of Law

In May 2016, the Canadian government announced that it was a full supporter of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It remains unclear the extent that Canada’s pre-existing framework of indigenous law will be impacted through implementation of the declaration.

What is UNDRIP?

UNDRIP is an international declaration that sets out “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world (Article 43 of UNDRIP).” It is a legally non-binding document but it does outline norms and principles to guide state interactions with indigenous peoples. The 46 articles include recognition of the rights of indigenous peoples to self-determination, equality, protection of their respective cultures, a collective identity, and economic and social development. One key principle embedded throughout the document is “Free, Prior, and Informed Consent.

Canada’s Changing Position

UNDRIP was adopted by the UN General Assembly on September 13, 2007. At the time Canada was one of four states in opposition to the agreement: Canada, Australia, New Zealand, and the United States. In 2010, the Canadian Government issued a statement of support of the agreement but remained a listed objector. This statement of support outlined areas of the declaration that the Canadian Government was still concerned about, which included:

“… provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties.”

In May 2016, the Canadian government became a full supporter of UNDRIP and was no longer listed as an objector. Finally, in November 2017 the Liberal government announced its support of Bill C-262: “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.” The second parliamentary reading of Bill C-262 occurred on February 7, 2018.

Impacts on Canadian Law

Implementation of UNDRIP may have consequences for Canada’s statutory regime, administrative policies, and Canadian common law. That being said, since UNDRIP is a collection of broad principles and norms, which leave much room for interpretation, it is unclear whether implementation will have a significant impact on Canada’s status quo indigenous relations.

If Bill C-262 is to receive Royal Assent it will enact four different requirements:

  • Affirm UNDRIP as a universal international human rights instrument with application in Canadian law.
  • Require the Canadian Government to, in consultation and cooperation with indigenous peoples, ensure that the laws of Canada are consistent with UNDRIP.
  • Require the Canadian Government to, in consultation and cooperation with indigenous peoples, develop and implement a national action plan to achieve the objectives of the UNDRIP.
  • Require the Minister of Indigenous Relations and Northern Affairs to provide annual reports to Parliament on the implementation of UNDRIP.

Unrelated to Bill C-262, the Canadian Government has already begun a Review of Laws and Policies Related to Indigenous Peoples. A Working Group of ministers is to review all “relevant federal laws, policies, and operational practices” to ensure that Canada “is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards, including [UNDRIP]; and supporting the implementation of the Truth and Reconciliation Commission’s Calls to Action.” It is important to note that a broad interpretation of UNDRIP could result in finding many inconsistencies between Canadian statutes/policies and the declaration, while a conservative interpretation may result in finding little to none.

UNDRIP will influence the interpretation of domestic law in Canada. As outlined by the Supreme Court in R v. Hape (para 53), “It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.” First, in interpreting legislation, courts are to avoid a construction that would place Canada in breach of its international obligations. Second, [the] “legislature is presumed to comply with the values and principles of customary and conventional international law.” UNDRIP is a legally non-binding document but is a part of customary international law and has increased in its relevance to Canada once Canada became a full supporter of the declaration. Even before Canada adopted UNDRIP, Canadian courts already used the declaration to aid in the interpretation of domestic statutes as outlined in Nunatukavut Community Council Inc. v. Canada (Attorney General) (Nunatukavut) (para 96 and 103).

It is unclear whether UNDRIP will impact Canada’s obligations to aboriginal peoples set out under section 35 of the Constitution Act 1982. Including, whether courts will determine that Canada’s “duty to consult,” as defined by the Supreme Court in Haida Nation v. British Columbia (Minister of Forests), must be altered to better reflect the principle of free, prior, and informed consent that is embedded within UNDRIP. The Federal Court in the case of Nunatukavut, which occurred prior to Canada becoming a full supporter of UNDRIP, found that the declaration had no bearing on Canada’s constitutional obligations to aboriginal peoples. It will be important to continue to monitor the courts on this issue, especially if Bill C-262 receives Royal Assent and officially affirms that UNDRIP has application under Canadian law.


Implementation of UNDRIP could affect every sphere of Canadian and indigenous relations. The significance of these changes is yet to be determined as legislators, courts, and state administrators determine how the principles outlined in UNDRIP are to be integrated within Canada’s pre-existing legal regime for interacting with indigenous peoples.




By |May 2nd, 2018|Blog|

Google v Equustek: Are Courts Behind the Digital Revolution?

Equustek v Google on Google


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, 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.


By |April 18th, 2018|Blog|

Canada Gets Progressive With Its Trade Agenda

Bay St. at King St., in the heart of Toronto's financial district [Wikimedia]

Bay St. at King St., in the heart of Toronto’s financial district [Wikimedia]

By Cassandra Knapman, JD Candidate, University of Western Ontario

Canada has approached its recent trade negotiations with the goal of forming treaties that both benefit Canadians and advance its progressive trade agenda (hereafter, the “Agenda”). The Agenda integrates gender equality, labour standards, environmental protections, and human rights more broadly into Canada’s trade agreements.[1] Despite its potential human rights advantages, critics say the Agenda has presented a significant hurdle to Canada’s trade negotiations. It has been partly blamed for crippling trade negotiations with China, and for stalling the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP, formerly the TPP).[2] The Agenda is also becoming a contentious issue in the North-American Free Trade Agreement (NAFTA) renegotiation.[3] Critics have suggested that if Canada wishes to successfully negotiate trade deals, it will need to either abandon or loosen the requirements set forth in the Agenda.[4]

The Agenda’s Principles Are Based in Progressive Policy Measures

China, which has been involved in discussions about a possible Free Trade Agreement (FTA) with Canada, has been vocal in its criticism. Chinese embassy spokesperson Xiaozhong Zhu has said, “China always maintains that non-trade issues should not be brought in the FTA negotiation no matter in what kind of name.” However, contrary to China’s hard-line approach, gender, labour, and environmental concerns have been shown by research and other trade agreements to be intertwined with trade.

The relationship between gender, economies, and trade is a growing area of economic research and policy.[5] For example, sixteen per cent of global income is lost due to gender inequality.[6] Researchers have also identified 943 laws worldwide which have an impact on the economic advancement of women.[7] When considering trade treaties specifically, it is important to note that women tend to be concentrated in different industries from men, and primarily own small and medium-sized businesses.[8] Trade agreements rarely provide the same treatment to all industries: they affect businesses in different ways, depending on both the nature of the business and its size.[9] Recognizing gender as part of trade requires that treaties acknowledge and address the unequal impact on those industries and businesses in which women are most frequently involved.[10]

Preventing a Race to the Bottom

Trade similarly affects labour and the environment. Treaty clauses in these areas attempt to homogenize standards between trading states. While this may improve standards in some countries, there are serious concerns about domestic downward pressure on standards and on circumvention.[11] For example, weak labour and environmental protections are perceived to lower operating costs for businesses.[12] Under trade agreements, it becomes more feasible for businesses to relocate operations to take advantage of lower operating costs in foreign states.[13] This strong possibility of operation migration, when coupled with a lack of labour and environmental treaty clauses, can lead to a “race to the bottom.” In such cases, countries find they must reduce their more stringent standards so as to decrease operating costs and keep their workforce and market globally competitive.[14]

On the other hand, trade agreements may allow states to limit importation where the goods or their manufacturing processes do not comply with domestic laws, including environmental and labour standards.[15] This prevents goods manufactured in countries with lower labour and environmental standards from being imported into states with more stringent standards.[16] To maintain domestic environmental and labour protections, states with higher standards, such as Canada, have included clauses on these standards in their trade agreements.[17]

Criticism of the Agenda

Where Canada has been successful in incorporating the Agenda in its trade agreements, the resulting clauses have been criticized for being largely symbolic in nature with no real enforcement. Yet in cases where Canada has been less successful, bringing the Agenda to the negotiation table has created an impression of virtue signalling and arrogance.[18]

Canada’s own track record on the principles set out in the Agenda is spotty. On the environmental front, Canada has faced complaints before the North American Commission on Environmental Cooperation for failing to uphold its environmental laws. Canada has also been criticized for the possible Kinder Morgan Pipeline expansion. With respect to gender, inequality continues in the workplace, affecting female Canadian employees through such issues as gendered workplace violence and lack of childcare options. There has been increased non-compliance with labour law, due to low fines, lack of resources to address complaints, and the lack of a monitoring system.

Canada’s negotiating partners have also criticized Canada for imposing its values and regulations on them.[19] Many of these potential trade partners are embracing the values of the Agenda in their own ways. China is currently projected to meet its Paris Agreement goals ahead of its deadline. Mexico and the United States are party to the International Labour Organization, which sets labour standards and promotes decent work.[20] All but two states involved in the CPTPP supported the recent Buenos Aires Declaration on Women and Trade, aiming to improve economic conditions for women.[21] Canada’s efforts to include the Agenda in trade agreements, thus requiring particular action by the treaty parties, has been perceived as interference with state sovereignty.[22]


The Agenda is a statement of Canadian values and a somewhat vague effort to bring more human rights protections into Canada’s trade agreements. Critics argue that it has hindered Canada’s trade negotiations, and that it fails to provide meaningful protections. Nevertheless, it has set an important precedent for including environmental, labour, and gender standards in trade treaties, and has signalled Canada’s willingness to take these concerns seriously in future negotiations. Now, as Canada continues to promote the Agenda, it should endeavour to achieve mutual trade and human rights goals without alienating its potential trade partners.



[1] John Chipman and Willow Smith, “Trudeau’s ‘progressive’ trade agenda with China seen as arrogant, say critics”, CBC (December 8, 2017), online: [Chipman]

[2] Marie-Danielle Smith, “Discussions underway within Canadian government about reworking ‘progressive trade agenda’: former ambassador to China”, National Post (January 17, 2018), online: [Smith]

[3] Ibid.

[4] Chipman, supra note 1.

[5] Alicia Frohmann, “Gender Equality and Trade Policy” (December 2017). SECO/WTI Academic Cooperation Project Working Paper Series 2017/24. Available at SSRN:

[6] Ibid. Citing Ferrant, Gaëlle and Alexandre Kolev (2016), The economic cost of gender-based discrimination in social Institutions, OECD Development Center, Paris.

[7] Ibid. Citing World Bank (2015) Women, Business and the Law 2016

[8][10] Ibid.

[11] Richard H. Steinberg, “Trade-Environment Negotiations in the EU, NAFTA, and WTO: Regional Trajectories of Rule Development” The American Journal of International Law Vol. 91, No. 2 (Apr., 1997), pp. 231-267. Available at: [Steinberg]

[12][17] Ibid.

[18][19] Chipman, supra note 1.

[20] “About the ILO”, International Labour Organization, online:–en/index.htm.

“Alphabetical list of ILO member countries”, International Labour Organization, online:

[21] “Comprehensive and Progressive Agreement for Trans-Pacific Partnership” Government of Canada, online:

Buenos Aires Declaration on Women and Trade outlines actions to empower women”, World Trade Organization (December 12 2017) online:

[22] Chipman, supra note 1.

By |April 2nd, 2018|Blog|

Dispatches: Canadian International Law Students Conference 2018

CILSC logo


By Isabel Dávila, JD candidate, Osgoode Hall Law School (York University)

Photos by Sarah Cormack

On March 9, CLAIHR student chapters at Osgoode Hall Law School and the University of Toronto Faculty of Law co-hosted the annual Canadian International Law Students Conference (CILSC). CILSC provides a forum for law students, academics, practitioners, and other leaders in international law to exchange ideas in an open, engaging environment. As always, the event was a major success, generating fruitful discussion and insights on international human rights law. Here, we provide an overview of the main events, with a special acknowledgment and warm CLAIHR congratulations to:

Brenda Chang, Calum Agnew, Yinka Oyelowo, Christie McLeod, and everyone else who contributed to putting on such a great event!

Cynthia Khoo, founder and principal at Tekhnos Law

Cynthia Khoo, founder and principal at Tekhnos Law

Things kicked off with a panel on International Cyber Law featuring Cynthia Khoo, lawyer founder of Tekhnos Law, and Adam Kardash, Partner on Privacy and Data Management at Osler. The panelists talked about the rapidly changing nature of technology and the law, and the challenges of keeping apace with seemingly daily developments in the field. There is a fundamental ethical question here: Khoo and Kardash agreed that you cannot be a trusted adviser to your clients unless you truly are the most up-to-date in your area of law.

Mr. Kardash mentioned how when he first started working in cyber law, there was essentially no one practicing in this specific field. Today, working at Osler, he has a team of ten people who work on it exclusively. Ms Khoo in turn described her “unorthodox” experience in the legal world, having been involved in NGOs, regulation committees and now in her own legal practice. She highlighted how, in this line of work, a significant proportion of her time is devoted to policy and factual research, rather than traditional legal research.

The panelists then delved into ethics questions pertaining to internet companies – the panel coincidentally occurred just days before the Facebook/Cambridge Analytica story broke – and to what degree corporate ethical codes should be held accountable to government entities. They both worry that the internet’s dramatic changes are happening faster than policy is being developed. Mr. Kardash argued that the biggest challenge is the incalculable amount of data that exists today, while Ms Khoo focused on the question of transparency. She argues for a set of rights specific to the digital ecosystem, such as the right to an explanation when there is a decision that affects you in a major way. This is increasingly important as more decisions are made through automated process; as Ms Khoo asks, “should there be a right to human intervention in automated decision-making processes?”

Shin Imai, Justince and Corporate Accountability Project (York University)

Shin Imai, Justice and Corporate Accountability Project (York University)

The day’s keynote presentation on Treaties, Mining and International Law was presented by Professor Shin Imai of the Osgoode Hall Law School. Imai, an expert on human rights law, Aboriginal law, and clinical legal education, presented several cases of human rights violations by Canadian extractives companies in Latin America. Among other cases, Imai discussed the widely-disseminated allegations of sexual violence, environmental abuses, and civilian killings at Barrick Gold’s Porgera mine in Papua New Guinea.

For Imai, one of the major challenges in this field of law is how much it intersects with other domains. In order to do his job well, he needs to be versed in human rights law, public international law, corporate law, securities law, tax law, and more. His presentation continued with practical tips and advice for law students on how to get involved in these issues and in international legal advocacy in general. Imai concluded by discussing the Canadian Ombudsperson for Responsible Enterprise (CORE) (readers can find CLAIHR’s overview of CORE here), a new independent officer with the power of investigating human rights abuses linked to Canadian corporations operating abroad. Imai highlighted the importance of CORE’s ability to not only investigate corporate abuses abroad, but potentially recommend measures be taken against companies.

The third and final panel’s topic was Gender-Related Violence in Conflict. The speakers were Vasanthi Venkatesh (University of Windsor), an expert on marital rape laws, public international law, and refugee law; Paula Tenaglia, Director of Operations for Action against Hunger, and Jasteena Dhillon (Humber College/University of Windsor), an experienced NATO and UN advisor. The panelists began by reflecting on the progress and challenges that exist today, emphasizing that March 8th – International Women’s Day – cannot be the only day of the year to emphasize women’s rights or gender-based violence in conflict.

Professor Dhillon highlighted the way in which gender is not prioritized during conflict situations. While this may sometimes be justifiable in the most extreme and urgent circumstances, it is still a major and dangerous oversight. Too many services and structures are ill-designed to handle serious gender-based concerns in conflict. Next, Professor Venkatesh highlighted the intersection between international law and domestic laws or customs. This can often represent a problem for a gender-based approach, with practitioners needing to learn how to leverage laws to find common ground. Inevitably, the panel turned to the Oxfam scandal – in which aid workers stand accused of sexual misconduct while on duty – which Ms Tenaglia described as a long-overdue wake-up call for the sector. She is optimistic that change is coming, given the pressures now being brought to bear on Oxfam and other organizations. Many actors in the not-for-profit world are going to have to revise their policies on sexual misconduct, design altogether new ones, or implement ideas that have been sitting on paper for far too long.

Gender-Based Violence panel; L-R: Vasanthi Venkatesh, Paula Tenaglia, Jasteena Dhillon discuss

Gender-Based Violence panel; L-R: Vasanthi Venkatesh, Paula Tenaglia, Jasteena Dhillon

International law today is facing a series of challenges in several respects. For the packed audience at the 2018 CILSC, key among those included the development of online technologies, accountability for corporate violations of human rights, and the behaviour of not-for-profits in conflict situations. Based on the day’s discussions, there are a number of highly prepared and enthusiastic lawyers – and lawyers-to-be! – ready to take on these challenges.

See you next Spring for CILSC 2019!


By |March 23rd, 2018|Blog|

CORE Mandate: Canada’s Responsible Enterprise Ombudsperson

Pictured: Khaleda, a survivor of the Rana Plaza collapse, in her new job as dressmaker

Pictured: Khaleda, a survivor of the Rana Plaza collapse, in her new job as dressmaker. [Wikicommons]

By Madeline Torrie, JD candidate, University of Toronto Faculty of Law

On April 24, 2013, Rana Plaza, an eight-storey garment factory in Bangladesh, collapsed, killing an astonishing 1,138 people. Aid workers searching through the wreckage found labels for Canadian brand names, including Joe Fresh apparel linked to the Canadian company Loblaw’s. Five years on, the collapse ranks as the deadliest garment factory accident ever, and one of the deadliest industrial accidents of the 21st century.

Since Rana Plaza, companies have scrambled to improve the transparency of supply chains with mixed results. For example, Canadian Tire still refuses to publish information on its supply chain. While there has been intense public pressure for greater transparency from Canadian companies, activist groups such as Amnesty International have demanded a government response.

The federal government recently announced the creation of the Canadian Ombudsperson for Responsible Enterprise, or CORE, to replace the Office of the Extractive Sector Corporate Social Responsibility, on January 17th, 2018. The latest incarnation of the corporate responsibility watchdog will have the authority to investigate Canadian companies abroad, and the power to recommend federal sanctions, such as withdrawal of consular services and services from Export Development Canada. The mandate of CORE will focus on the mining, oil, and gas, and garment sectors, and later expand to other industries. Furthermore, its advisory body will include members from civil society and industry backgrounds.

Among those who welcomed the announcement were Oxfam, Amnesty International, mining company Barrick Gold (itself subject to repeated accusations of human rights violations), and the Federal New Democrats. However, others have raised a range of criticisms. Writing in the Toronto Star, Jenifer Wells wonders whether CORE will be much better than its poorly funded and ineffectual predecessor, and expresses concern about the pace of choosing an ombudsperson. In the Financial Post, Neil Hindra expressed scepticism about CORE’s power to serve as both investigator and judge, and claims the only benefit of the new ombudsperson will go to the legal community who will profit from “frivolous lawsuits.”

Globally, other countries are experimenting with similar solutions to supply chain transparency, but Canada is one of the first countries in the world to propose such strong measures, including the power to investigate corporate conduct abroad and publish its findings. In 2013, as part of the Modern Slavery Act, Britain appointed an anti-slavery commissioner. Businesses with a turnover of more than £36 million are required to comply with the transparency requirements in the Modern Slavery Act, by publishing a slavery and trafficking statement prominently on their websites which sets out the steps the company has taken to ensure there is no slavery or trafficking in its supply chain. The commissioner does not have the same enforcement and investigative power as the proposed mandate for CORE.

Corporate Responsibility and Canadian Law

This announcement comes as the Supreme Court of Canada considers hearing Araya v Nevsun (readers can find CLAIHR’s overview of the case here). In Nevsun, two Eritrean refugees have alleged they were subject to forced labour at a mine indirectly owned by Vancouver-based Nevsun Resources. The British Columbia Court of Appeal considered that “international law is in flux” and held that Canadian corporations could be liable in tort damages for breaches of jus cogens norms committed abroad.[1] This marks growing development in the law to hold corporations liable for infringements of human rights overseas. Some legal experts believe that the Ombudsperson is a better way to seek resolutions than lawsuits against Canadian Companies by the disadvantaged few who are affected.

Increasingly, companies have started self-reporting their supply chains. Pressure from advocacy groups, such as USW Canada’s No More Operating in the Dark and the Follow the Thread coalition, have worked to pressure Canadian Companies which are not being transparent with their supply chains. However, critics are skeptical that self-reporting can ever be enough.

Internationally, the situation is not much better, with only 7% of publicly listed companies reviewed by The Guardian newspaper disclosing labour problems in their supply chains. Canada currently has no legislation requiring companies to report their supply chains, and advocates have encouraged them to adopt transparency measures, like the United Kingdom’s Modern Slavery Act and the California Transparency in Supply Chain Act.

At the time of writing, the government has not released CORE’s full mandate. Time will tell whether its introduction will usher in meaningful change to enforce corporate responsibility for Canadian companies abroad.




[1] Araya v. Nevsun Resources Ltd., 2017 BCCA 401, Newberry J, at para 197.

By |March 14th, 2018|Blog|

Forum Non Conveniens and Judicial Corruption: Key Developments at BCCA

Legal Gavel (27571702173)

By Arron Chahal, JD candidate, University of Toronto Faculty of Law

A pair of 2017 decisions by Canadian courts have made it harder for Canadian companies to avoid liability for human rights violations allegedly committed by their subsidiaries in foreign jurisdictions.

When actions are brought against corporations on this basis, the corporation will often argue that the case should be heard in the jurisdiction in which the alleged human rights violation occurred. Two recent decisions by the British Columbia Court of Appeal (BCCA) suggest that judicial corruption in the foreign jurisdiction will play a significant role in determining how successful this argument will be.

The doctrine of forum non conveniens “is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction”, where another forum is better suited to hear the case.[1] International corporations have used forum non conveniens to avoid having complaints against them heard in Canadian courts. This approach benefits corporations where the judicial system of the relevant foreign jurisdiction is not independent, particularly where the state’s interests align with those of the corporation. Therefore, corporate defendants subject to allegations of international harm may seek to stay a claim on the grounds of forum non conveniens.

The current test to stay an action on the basis of forum non conveniens comes from the Supreme Court of Canada in Van Breda v. Village Resorts Ltd and its companion decision Black v. Breeden. This test provides that the defendant has the burden to show that another jurisdiction must be “clearly more appropriate,”[2] and in weighing the evidence, the court must consider “all relevant concerns and factors.”[3]

Before, the 2017 decisions of the BCCA in Garcia v. Tahoe Resources Inc. (“Tahoe”) and Araya v. Nevsun Resources Ltd. (“Nevsun”) “there [was] no binding authority” on how judicial corruption was to be incorporated into a forum non conveniens analysis.[4] In those cases, the BCCA rejected applications to stay the actions on the basis of forum non conveniens. In doing so, the Court explained how judicial corruption factors into the forum non conveniens analysis, concluding that judicial corruption in Guatemala and Eritrea was significant enough as to justify refusing to stay the proceedings on the grounds of forum non conveniens.

Background: Tahoe and Nevsun

In Tahoe, seven Guatemalan men are suing the Canadian mining company for injuries they allegedly suffered during a violent suppression of a protest at a mine in Guatemala that is wholly owned by one of Tahoe’s subsidiaries.[5] The BCCA overturned the lower court’s decision granting Tahoe’s application to stay the action on the basis of forum non conveniens.

In Nevsun, the plaintiffs claim that they were subject to forced labour at the Bisha Gold Mine in Eritrea, which Nevsun Resources partially owns.[6] A detailed overview of the facts has been provided in a previous blog post. The BCCA upheld the British Columbia Supreme Court’s ruling, rejecting an application to stay the action on the basis of forum non conveniens.

BCCA Accepts General Evidence of Judicial Corruption

In each case, the plaintiffs introduced general evidence of judicial corruption in the host countries – Guatemala for Tahoe and Eritrea for Nevsun – that was accepted by the BCCA, demonstrating a new willingness to admit less tailored proof of judicial corruption abroad. In Tahoe, the Court found that the evidence of the expert witnesses on Guatemala’s judicial system was only “general in nature,” as the “appellants ha[d] not produced detailed evidence showing instances where the Guatemalan judiciary ha[d] been corrupted by the power of foreign corporations.”[7] In spite of this weakness, the Court found that the evidence was sufficient to establish that “corruption in the Guatemalan justice system is widespread.”[8] However, the Court tempered this finding by noting that “broad assertions of corruption should be given limited weight, whereas detailed and cogent evidence of corruption should attract significant weight.”[9]

In Nevsun, the BCCA again admitted general evidence of judicial corruption. The plaintiffs submitted secondary reports by organizations such as Human Rights Watch to show that they would not receive a fair trial in Eritrea. The Court found that these reports, despite their general nature, could be used “for the limited purpose of providing a social, historical and contextual framework.”[10] The Court further explained that even though the reports did not allow for testing of “the facts and opinions expressed through cross-examination or otherwise,” they could be admitted to establish judicial corruption because they were the only means of adducing the necessary “social” evidence.[11] Recognizing how difficult it is for plaintiffs to provide detailed, first-hand evidence of corruption by state actors, the BCCA was flexible in the evidence it would accept to establish judicial corruption.

The Weight Given to Judicial Corruption

Before Tahoe and Nevsun, it was unclear how judicial corruption would factor into the forum non conveniens test. In Tahoe, the BCCA found that evidence of judicial corruption only has to show that there is “a real risk that the alternate forum will not provide justice.[12]” Furthermore, this factor is to be considered alongside all other relevant factors “with the overall burden on the defendant to establish that the proposed alternate forum is in a better position to dispose fairly and efficiently of the litigation.”[13]

The BCCA in Nevsun not only endorsed this test, but found that judicial corruption in Eritrea outweighed “the expense, inconvenience and practical difficulties of mounting a trial in British Columbia” when deciding not to grant a forum non conveniens action. The Court explained that “the cost, inconvenience and expense that would be involved must be looked at in the light of the grave allegations that the plaintiffs’ claims comprehend.”[14]


The Tahoe and Nevsun decisions demonstrate a new, flexible approach to the types of evidence that will be admitted to establish judicial corruption in a foreign court and the significance of this evidence to the forum non conveniens analysis. This flexibility will make it easier for plaintiffs to combat stays on the grounds of forum non conveniens. In this way, the BCCA’s decisions in Tahoe and Nevsun have made it significantly more difficult for Canadian companies to use forum non conveniens to avoid liability for the actions of their subsidiaries in allegedly corrupt foreign states. With this procedural hurdle weakened, international corporations that disregard human rights abroad will have more difficulty avoiding liability for their actions.




[1] Van Breda v. Village Resorts Ltd, 2012 SCC 17 at paras 103 and 104, [2012] 1 S.C.R. 572 [Van Breda].

[2] Van Breda, supra at 108.

[3] Van Breda, supra at 109.

[4] Garcia v. Tahoe Resources Inc, 2017 BCCA 39 at para 124, [2017] 5 WWR 631 [Tahoe].

[5] Tahoe, supra at 1.

[6] Araya v. Nevsun Resources Ltd, 2017 BCCA 401 at paras 2-3, 285 ACWS. (3d) 847 [Nevsun].

[7] Tahoe, supra at 109.

[8] Tahoe, supra at 113.

[9] Tahoe, supra at 125.

[10] Nevsun, supra at 113.

[11] Nevsun, supra at 98.

[12] Tahoe, supra at 124.

[13] Tahoe, supra at 120.

[14] Nevsun, supra at 118.

By |February 20th, 2018|Blog|