NEVSUN V. ARAYA: A BLUEPRINT FOR PROTECTING HUMAN RIGHTS THROUGH TORT LAW.

• Author: Isaacs, Ezra

INTRODUCTION

An important issue affected by the globalization of the world's economy is the distribution of worldwide labor through outsourcing of production. (1) Political discourse related to this issue has focused on its impact on employment for many working class citizens who have experienced less demand for their services. (2) Indeed, many politicians have campaigned on promises to bring jobs back home. (3) Another concern is that corporate wage savings are facilitated by the lower leverage and protection for workers in countries with lax employment laws. (4) Even though domestic corporations may not intend to incorporate forced labor or other human rights abuses into their supply chains, it is important to hold corporations accountable for indifference to such practices.

There are several potential solutions, but each involves sensitive considerations because of the multinational nature of modern industry. Traditionally, international law has centered around notions of state sovereignty, which limits the scope of feasible approaches to human rights issues in the global supply chain, since they occur abroad.'' Governments are measured and careful in their rebuke of foreign governments even for offences that could be considered outrageous if they occurred domestically. (6) However, over the past century, state sovereignty has come into tension with universal human rights, which has arguably transformed international law, placing constraints on sovereigns' powers and their agents when conducting war or otherwise engaging in conflict. (7) Indeed, treaties and international agreements have paved the way for international criminal proceedings against individuals, (8) shaping international attitudes in favor of prosecuting agents of sovereign powers who previously were immune from punishment. (9) A key aspect of this evolution was the recognition that human rights transcend the relationship between citizens and their governments, and that governments cannot be allowed to deprive any person of universal rights, regardless of state sovereignty. (10)

That international law has shown itself to be amenable to change in the criminal sphere brings hope that it could also develop to recognize civil remedies for those who have suffered the deprivation of their human rights by private actors. Common law jurisdictions pose promising venues for such claims, because judges have the power to alter the law to recognize new torts or extend existing ones to new situations. (11) In the United States, the Alien Tort Statute ("ATS") provides a statutory framework for tort victims to bring suit for claims arising under international law. (12) The United States Supreme Court has yet to find liability for domestic corporations employing forced labor abroad, but has supported a relatively expansive construction of the types of international law violations that would be actionable under the ATS. (13)

In contrast, in 2020, Canada's Supreme Court issued a landmark decision in Nevsun v. Araya, which authorized Canadian courts to recognize new torts for violations of customary international law. (14) The case presented a framework and rationale for providing tort victims an avenue for civil redress that could be influential in other common law jurisdictions, including the United States. (15) However, a vigorous dissent opposed the majority's decision and echoed the views of American jurists and commentators opposing common law remedies against domestic corporations, including arguments of judicial restraint and executive dominion over foreign relations matters. (16)

Evaluating the strengths and weaknesses of such arguments involves several considerations, including the nature and formation of customary international law; the conditions under which advocates have successfully persuaded judges to recognize new torts; and the feasibility of applying criminal law to corporate directors in lieu of civil redress. Different legal systems, as well as diverse litigants, also factor into the viability of incorporating customary international law into domestic tort law in a given legal system. Overall, however, tort law seems to provide an appropriate avenue for holding domestic corporations accountable in their global operations.

1. BACKGROUND

   International law has two primary means of being created: treaties and custom. (17) Treaties are multilateral agreements by which nations bind themselves voluntarily and expressly, while customary international norms are the subject of "tacit" agreement among nations (18) and become binding upon two conditions: widespread and consistent state practice and opinio juris, or the subjective belief in a legal obligation. (19) Because custom is premised upon tacit consent, nations may try to remove themselves from being bound by a particular norm through the concept of persistent objection. (20) However, there is a subset of customary international norms called jus cogens from which no State may derogate (21) (for example, the prohibition of torture). (22) However, identifying customary norms beyond juy cogens is more contentious because of their lack of formal substantive definition and reliance on similarly amorphous agreement among States.

   It is uncontested that customary international law evolves over time. (23) Norms, by definition, invoke notions of currency and change, but the identification of new norms by judges is not always straightforward. (24) One way that norms are identified is through consulting national court decisions or scholarly literature, (25) but this affords discretion to domestic judges who may not give much weight to judges in other States. (26) It also seems inevitable that judges considering claims under customary international law are often operating with minimal legislative guidance. (27) Judges may be reticent to operate without statutory backing in areas that are international in nature, (28) cognizant that their decisions may have extraterritorial effect. (29)

   Conversely, tort law provides an appropriate means for redressing injuries suffered from breaches of customary international law. Unlike criminal penalties, which have thus far been the primary modern means for holding non-state entities liable for violations of international law, civil remedies focus more on compensating victims. Furthermore, tort law is largely a creature of common law. (30) Therefore, redressing civil wrongs through tort law seems to be appropriate, provided it is consistent with the underlying conditions for creating new torts and for enforcing international law.

   In Nevsun v. Araya, the Canadian Supreme Court set out a rationale for why private claims under customary international law are viable in Canadian courts, (31) at least when brought against a Canadian corporation for human rights abuses committed against foreign laborers abroad. (32) The plaintiffs were Eritrean refugees who immigrated to Canada and filed suit in British Columbia against Nevsun Resources, a Canadian corporation who owned the Bisha mine in Eritrea through a local subsidiary, the Bisha Company. The Bisha Company hired a South African company to construct the mine, who subcontracted with the Mereb Construction Company, which was controlled by the Eritrean Military, and Segen Construction Company, which was owned by Eritrea's only political party. (33) These latter two companies conscripted Eritrean nationals through the country's National Service Program. Under the Program's original enactment in 1995, conscripts were to serve an eighteen-month term in military service or to assist in public projects. However, the period of conscription was extended indefinitely in 2002, and the plaintiffs were conscripted and forced to work in the Bisha mine. (34) They claimed that they were subjected to punishments including being ordered to roll in hot sand while being beaten with sticks, having their arms and legs tied together and being left in the hot sun, and being barred from leaving without permission, with those who left without authorization being severely punished and their families threatened. (35)

   When the case came before the supreme court, the majority began by tracing the modern history of human rights law after World War II, and concluded that human rights are not meant to be aspirational and idealistic, but real and enforceable. (36) After establishing the philosophical grounds for their position, the majority turned to doctrine holding, via the doctrine of adoption, that customary international law is automatically incorporated into Canadian common law. (37) They found that the claims pled by the plaintiffs constituted jus cogens norms of customary international law. (38)

   Four justices disagreed with the majority's position in two separate opinions. The justices first contested the notion that customary international law recognizes civil liability for human rights abuses. (39) They drew a sharper distinction between acts and remedies, arguing that for a customary norm to become binding, the international community must not only recognize that certain conduct is prohibited, but also that a particular remedy follows from its violation. (40)

   They also stressed the importance of incrementalism in judicial lawmaking, (41) setting forth a three-part approach to guide judges in determining whether to amend the common law to incorporate customary international law. (42) Under this analysis, the dissent argued that criminal law is the optimal avenue for addressing violations of jus cogens norms such as those pled by the plaintiffs. (43) Further weighing against allowing novel tort claims under customary international law was that they perceived the proposed torts to be either covered by pre-existing ones or too ill-defined for judicial recognition. (44) The justices further reasoned those torts that were specific or novel enough to qualify should not be recognized based on conduct that occurred abroad. (45) The dissenters...