The litigation that gave rise to the new Canadian Supreme Court decision has its roots in the politics of the East African state of Eritrea. In its 2019 report, Human Rights Watch notes that forced conscription into Eritrea’s ‘national service’ was prolonged ‘indefinitely’, despite a theoretical 18-month limit. The UN Human Rights Council has further described the ‘systematic, widespread and gross human rights violations’ in Eritrea, committed ‘in a climate of generalised impunity’.
Younger people, conscripted into ‘national service’, find themselves effectively enslaved, sometimes for as long as 18 years. According to the 2016 report of the UN commission of inquiry into Eritrea, some 400 000 people had been effectively enslaved as part of this ‘national service’ programme. The HRW report quotes Eritrea’s information minister, speaking in a 2018 interview, as acknowledging that conscripts attached to government-owned construction firms ‘work on building infrastructure at foreign-owned mineral mines.’
Three such miner/conscripts have now won the right to sue the foreign-owned mineral mine where they worked in Eritrea. They may bring their action, in Canada, where the mining company is based. The three initially launched their action in British Columbia, but when the supreme court of that province ruled that the claim could go ahead as they were unlikely to get a fair trial in Eritrea, Nevsun appealed.
Nevsun lost that challenge and then took the matter to the Canadian supreme court which has now finally ruled on the issue.
In its judgment, the court quoted Nevsun’s argument: even if customary international law norms formed part of the common law in Canada, the company was immune from the application of these international law norms ‘because it is a corporation.’
The court said that argument misconceived modern international law.
Some norms of customary international law like making treaties, had no application to corporations, but others prohibited conduct whether or not the perpetrator was a state.
International law had so fully expanded that there was no longer any tenable basis for restricting the application of customary international law to relations between states. ‘The past 70 years have seen a proliferation of human rights law that transformed international law and made the individual an integral part of this legal domain, reflected in the creation of a complex network of conventions and … instruments intended to protect human rights and ensure compliance with those rights.’
Customary international law was now ‘also the law of Canada’. Justice Rosalie Abella, writing for the majority, said the appeal involved the application of modern international human rights law, ‘the phoenix that rose from the ashes of World War II and declared global war on human rights abuses.’
In its reaction to the judgment, ‘Canadian Lawyer’ said there were implications for other Canadian companies with operations abroad. The journal quoted one of the lawyers involved in the case, Cory Wanless, as saying the new judgment’s findings were important ‘because there are a number of corporate accountability lawsuits proceeding in Canadian courts right now.’
Another commentator quoted by ‘Canadian Lawyer’, Hassan Ahmad from the University of Toronto’s faculty of law, said the decision meant that corporations could be held to account in cases involving ‘grave human rights violations.’
‘And what they can be liable for under Canadian law is to pay compensation to victims [who] allege that they have been treated unjustly by these corporations.’
Wanless warned corporations doing business in a country like Eritrea, ‘particularly if you’re partnering with the government’. In such a case ‘you’re entering into an extremely high-risk zone’, and corporations would need to exercise ‘a high level of diligence’ to ensure that the corporation is ‘not implicated in human rights abuses.’
In Ahmed’s view, the decision was a ‘landmark, watershed moment’ in Canadian law. It signified the ‘increasing globalisation of our world, and how trade and commerce cross national frontiers. I think the law is finally catching up to that.’
In other reaction, the Human Rights Hub, Winnipeg, said the Canadian government championed human rights rhetoric in the international arena, while the behaviour of some Canadian businesses were at odds with this rhetoric. It was a particular problem in Canada’s mining sector, but the new judgment had the potential ‘to completely change the way that Canadian businesses operate abroad.’