Akshay Aurora, York University
In February 2020, the Supreme Court of Canada (hereinafter “SCC”) broke ground with its decision in Nevsun Resources Ltd. v Araya (hereinafter “Nevsun”). In Nevsun, four Eritrean nationals (hereinafter “Nationals”) brought a claim against Nevsun, a Canadian company, which owned a mine in Eritrea. The Nationals claim they were made to undergo forced labour in this mine. The Eritrean nationals sought damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. At issue was whether customary international law could ground a claim for damages in Canadian law and whether it was “plain and obvious” that such a claim would not succeed in Canadian courts. The majority opinion, authored by Abella J, found that customary international law was automatically adopted within Canada’s domestic law through “automatic judicial incorporation.” Abella J observed that absent conflicting law, “norms of customary international law — those that satisfy the twin requirements of general practice and opinio juris — are fully integrated into, and form part of, Canadian domestic common law” (emphasis in original). Accordingly, Abella J held that it was not “plain and obvious” that the Eritrean workers’ claims against Nevsun based on breaches of customary international law could not succeed.
On the question of recognizing customary international law, Abella J held that incontrovertible norms of customary international law must be judicially noticed i.e., accepted without proof of their existence. Such norms included norms relating to crimes against humanity, the prohibition of slavery, the prohibition against forced labour, and other such norms that had attained the status of being jus cogen or peremptory norms.
While the subjects of customary international law norms have traditionally been states, Abella J found that there was no reason that international law must remain state-centric. She observed that corporations did not enjoy a blanket exclusion under customary international law from direct liability for violations of “obligatory, definable, and universal norms of international law”, or indirect liability for their involvement in complicity offences.
Ultimately, the majority finds that it is not “plain and obvious” that a claim for breach of customary international law could not be remedied in domestic law. While Abella J recognizes that bringing a claim for breaches of customary international law is different from the tort claims under Canadian common law, she is vague to address the manner in which such a claim may be brought before a Canadian court. Abella J holds that “the mechanism for how these claims should proceed is a novel question that must be left to the trial judge.”.
The decision in Nevsun is in line with a global movement towards increasing corporate accountability for violations of human rights norms. In 2011, the Human Rights Council of the United Nations endorsed the “UN Guiding Principles on Business and Human Rights” (hereinafter “UNGP”). The UNGP codifies existing international obligations on States into what is described as a “Protect, Respect and Remedy” framework. Key elements of the UNGP include an obligation on states to exercise oversight in order to meet their international human rights obligations when they contract with businesses (UNGP 5), the obligation of all businesses to respect internationally recognized human rights (UNGP 11, 12, 14), the obligation of business to have policies that respect human rights (UNGP 15), obligations to conduct a human rights due diligence (UNGP 17) and several others provisions.
However, Nevsun is important because it affirms the possibility of enforcing international law obligations directly in domestic courts. While Abella J’s decision does not discuss the actual success of the Eritrean workers’ case against Nevsun, the decision opens up the doors to holding corporations accountable under a novel basis – norms of customary international law. Nevsun, thus tackles the common criticism of international law – that it is merely conceptual – by giving its practical implementation more teeth. Moreover, it affirms that the orthodox notion of international law as applying only to States no longer holds true, and that legal persons can also be the subject of principles of international law. In the United States, the Supreme Court in Jesner v Arab Bank plc left open the question of whether international law imposes obligations upon corporations. In contrast to the decision in Jesner, Nevsun makes an affirmative determination of this key question, the first of its kind in common law jurisdictions around the world. Nevsun now has the potential to cause a ripple effect across the world, leading to more and more jurisdictions following the path it has set.
Abella J’s attempt to strengthen mechanisms to ensure corporate accountability is laudable, but would a Nevsun-type decision be practical in India?
Like Canada, India has also recognized the automatic adoption of customary international law into Indian law. In Vellore Citizen Welfare Forum v Union of India, Kuldip Singh J affirmed that “the rules on customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law.”. However, unlike Nevsun, India has not seen any enforcement action based on the principles of customary international law. Moreover, India is also in the process of implementing the UNGPs through a “National Action Plan”, but it is unlikely that the obligations under this Plan will be enforceable as law.
While the SCC was fortunate that the norms that were being discussed in Nevsun were jus cogens norms and therefore beyond dispute, it is almost always necessary to establish that a particular norm has reached the status of customary international law, no matter how obvious it may seem. For example, despite there being 191 parties to the Nuclear Non-Proliferation Treaty, it can be argued that nuclear disarmament is not a norm of customary international law because the “specially affected” States i.e. India, Pakistan, North Korea, and Israel possess (or are suspected to possess) nuclear weapons and do not consider the obligation to disarm as customary (see for example Pakistan’s counter-memorial in the Marshall Island’s case). Making a claim based on a norm of customary international law which has not attained the status of being a jus cogens norm is complex, and involves copious amounts of evidence to be adduced and a deep understanding of public international law, which domestic judges are usually not trained in. It may, however, be possible to restrict common law claims to simply jus cogens norms, that do not warrant any adjudication on the trial judge’s part.
While India is following the global trend of holding corporations accountable by incorporating the UNGPs into a National Action Plan, it is important that India must provide a concrete remedy for the failure to comply with such principles. It is essential to develop an effective corporate accountability mechanism for violations of human rights. In that regard, India may want to look at Nevsun for inspiration on providing an effective enforcement mechanism for violations of international obligation.
Akshay Aurora is a lawyer practicing at the High Court of Judicature, Bombay, India. He can be reached here.
Photo Credits: JENNY VAUGHAN/AFP
Photo Description: A gauge at Bisha Mine, Eritrea’s first major international mine.