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. Nevsun Resources Ltd. v. Araya

In Nevsun Resources Ltd. v. Araya (SCC, 2020) the Supreme Court of Canada considered a seminal international private law case where foreign nationals sued a Canadian mining company in tort, both domestic and international. It involved the use of members of Eritrea's armed forces as forced labour for the company's purposes. It firstly examined whether the 'act of state doctrine' applied in Canada (that acts of a foreign state were immune from action) [para 27-59]. The bulk of the majority's ruling was directed at whether customary international law is part of Canadian common law, and whether it's breaches are actionable in Canadian courts. This little-litigated and now very important law bears a full reading:
Customary International Law

[60] The Eritrean workers claim in their pleadings that customary international law is part of the law of Canada and, as a result, a “breach of customary international law . . . is actionable at common law”. Specifically, the workers’ pleadings claim:
7. The plaintiffs bring this action for damages against Nevsun under customary international law as incorporated into the law of Canada and domestic British Columbia law.

. . .

53. The plaintiffs seek damages under customary international law, as incorporated into the law [of] Canada, from Nevsun for the use of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity.

. . .

56. The plaintiffs claim:

(a) damages at customary international law as incorporated into the law of Canada;

. . .

60. The use of forced labour is a breach of customary international law and jus cogens and is actionable at common law.

. . .

63. Slavery is a breach of customary international law and jus cogens and is actionable at common law.

. . .

66. Cruel, inhuman or degrading treatment is a breach of customary international law and is actionable at common law.

. . .

70. Crimes against humanity are a breach of customary international law and jus cogens and are actionable at common law.
[61] As these excerpts from the pleadings demonstrate, the workers broadly seek damages from Nevsun for breaches of customary international law as incorporated into the law of Canada.

[62] As the Chambers Judge and the Court of Appeal noted, this Court is not required to determine definitively whether the Eritrean workers should be awarded damages for the alleged breaches of customary international law. The question before us is whether Nevsun has demonstrated that the Eritrean workers’ claims based on breaches of customary international law should be struck at this preliminary stage.

[63] Nevsun’s motion to strike these customary international law claims was based on British Columbia’s Supreme Court Civil Rules permitting pleadings to be struck if they disclose no reasonable claim (rule 9-5(1)(a)), or are unnecessary (rule 9-5(1)(b)).

[64] A pleading will only be struck for disclosing no reasonable claim under rule 9-5(1)(a) if it is “plain and obvious” that the claim has no reasonable prospect of success (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at para. 17; Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 263, at paras. 14-15). When considering an application to strike under this provision, the facts as pleaded are assumed to be true “unless they are manifestly incapable of being proven” (Imperial Tobacco, at para. 22, citing Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 455).

[65] Under rule 9-5(1)(b), a pleading may be struck if “it is unnecessary, scandalous, frivolous or vexatious”. Fisher J. articulated the relevant considerations in Willow v. Chong, 2013 BCSC 1083, stating:
Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court’s time and public resources: Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, 1999 CanLII 5860 (BC SC), [1999] BCJ No. 2160 (SC (in chambers)); Skender v. Farley, 2007 BCCA 629. [at para. 20 (CanLII)]
[66] This Court admonished in Imperial Tobacco that the motion to strike
is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. . . . Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. [para. 21]
[67] The Chambers Judge in this case summarized the issues as follows:
The proceeding raises issues of transnational law being the term used for the convergence of customary international law and private claims for human rights redresses and which include:

(a) whether claims for damages arising out of the alleged breach of jus cogens or peremptory norms of customary international law such as forced labour and torture may form the basis of a civil proceeding in British Columbia;

(b) the potential corporate liability for alleged breaches of both private and customary international law. This in turn raises issues of corporate immunity and whether the act of state doctrine raises a complete defence to the plaintiffs’ claims.
He concluded that though the workers’ claims raised novel and difficult issues, the claims were not bound to fail and should be allowed to proceed for a full contextual analysis at trial.

[68] In the British Columbia Court of Appeal, Newbury J.A. also believed that a private law remedy for breaches of the international law norms alleged by the workers may be possible. In her view, recognizing such a remedy may be an incremental first step in the development of this area of the law and, as a result, held that the claims based on breaches of customary international law should not be struck at this preliminary stage.

[69] For the reasons that follow, I agree with the Chambers Judge and the Court of Appeal that the claims should be allowed to proceed. As the Chambers Judge put it: “The current state of the law in this area remains unsettled and, assuming that the facts set out in the [notice of civil claim] are true, Nevsun has not established that the [customary international law] claims have no reasonable likelihood of success”.

[70] Canadian courts, like all courts, play an important role in the ongoing development of international law. As La Forest J. wrote in a 1996 article in the Canadian Yearbook of International Law:
[I]n the field of human rights, and of other laws impinging on the individual, our courts are assisting in developing general and coherent principles that apply in very significant portions of the globe. These principles are applied consistently, with an international vision and on the basis of international experience. Thus our courts — and many other national courts — are truly becoming international courts in many areas involving the rule of law. They will become all the more so as they continue to rely on and benefit from one another’s experience. Consequently, it is important that, in dealing with interstate issues, national courts fully perceive their role in the international order and national judges adopt an international perspective.

(Hon. Gérard V. La Forest, “The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996), 34 Can. Y.B. Intl Law 89, at pp. 100-1)
[71] Since “[i]nternational law not only percolates down from the international to the domestic sphere, but . . . also bubbles up”, there is no reason for Canadian courts to be shy about implementing and advancing international law (Anthea Roberts, “Comparative International Law? The Role of National Courts in Creating and Enforcing International Law” (2011), 60 I.C.L.Q. 57, at p. 69; Jutta Brunnée and Stephen J. Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002), 40 Can. Y.B. Intl Law 3, at pp. 4-6, 8 and 56; see also Hugh M. Kindred, “The Use and Abuse of International Legal Sources by Canadian Courts: Searching for a Principled Approach”, in Oonagh E. Fitzgerald, ed., The Globalized Rule of Law: Relationships between International and Domestic Law (2006), 5, at p. 7).

[72] Understanding and embracing our role in implementing and advancing customary international law allows Canadian courts to meaningfully contribute, as we already assertively have, to the “choir” of domestic court judgments around the world shaping the “substance of international law” (Osnat Grady Schwartz, “International Law and National Courts: Between Mutual Empowerment and Mutual Weakening” (2015), 23 Cardozo J. Intl & Comp. L. 587, at p. 616; see also René Provost, “Judging in Splendid Isolation” (2008), 56 Am. J. Comp. L. 125, at p. 171).

[73] Given this role, we must start by determining whether the prohibitions on forced labour; slavery; cruel, inhuman or degrading treatment; and crimes against humanity, the violations of which form the foundation of the workers’ customary international law claims, are part of Canadian law, and, if so, whether their breaches may be remedied. To determine whether these prohibitions are part of Canadian law, we must first determine whether they are part of customary international law.

[74] Customary international law has been described as “the oldest and original source of international law” (Philip Alston and Ryan Goodman, International Human Rights (2013), at p. 72). It is the common law of the international legal system — constantly and incrementally evolving based on changing practice and acceptance. As a result, it sometimes presents a challenge for definitional precision.

[75] But in the case of the norms the Eritrean workers claim Nevsun breached, the task is less onerous, since these norms emerged seamlessly from the origins of modern international law, which in turn emerged responsively and assertively after the brutality of World War II. It brought with it acceptance of new laws like prohibitions against genocide and crimes against humanity, new institutions like the United Nations, and new adjudicative bodies like the International Court of Justice and eventually the International Criminal Court, all designed to promote a just rule of law and all furthering liberal democratic principles (Philippe Sands, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (2016), at pp. 361-64; Lloyd Axworthy, Navigating A New World: Canada’s Global Future (2003), at pp. 200‑1).

[76] The four authoritative sources of modern international law, including customary international law, are found in art. 38(1) of the Statute of the International Court of Justice, Can. T.S. 1945 No. 7, which came into force October 24, 1945:
. . .

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Professors Brunnée and Toope have described art. 38 as the “litmus test for the sources of international law” (Brunnée and Toope (2002), “A Hesitant Embrace”, at p. 11).
[77] There are two requirements for a norm of customary international law to be recognized as such: general but not necessarily universal practice, and opinio juris, namely the belief that such practice amounts to a legal obligation (United Nations, International Law Commission, Report of the International Law Commission, 73rd Sess., Supp. No. 10, U.N. Doc. A/73/10, 2018, at p. 124; North Sea Continental Shelf, Judgment, I.C.J. Report 1969, p. 3, at para. 71; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (CanLII), [2014] 3 S.C.R. 176, at para. 38; Harold Hongju Koh, “Twenty-First Century International Lawmaking” (2013), 101 Geo. L.J. 725, at p. 738; Jean-Marie Henckaerts, “Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict” (2005), 87 Int’l Rev. Red Cross 175, at p. 178; Antonio Cassese, International Law (2nd ed. 2005), at p. 157).

[78] To meet the first requirement, the practice must be sufficiently general, widespread, representative and consistent (International Law Commission, at p. 135). To meet the second requirement, opinio juris, the practice “must be undertaken with a sense of legal right or obligation”, as “distinguished from mere usage or habit” (International Law Commission, at p. 138; North Sea Continental Shelf, at para. 77).

[79] The judicial decisions of national courts are also evidence of general practice or opinio juris and thus play a crucial role in shaping norms of customary international law. As the Permanent Court of International Justice noted in Case concerning certain German interests in Polish Upper Silesia (Germany v. Poland) (1926), P.C.I.J. Ser. A, No. 7, legal decisions are “facts which express the will and constitute the activities of States” (p. 19; see also Prosecutor v. Jelisić, IT-95-10-T, Judgment, 14 December 1999 (ICTY, Trial Chamber), at para. 61; Prosecutor v. Krstić, IT-98-33-T, Judgment, 2 August 2001 (ICTY, Trial Chamber), at paras. 541, 575 and 579-89; Prosecutor v. Erdemović, IT-96-22-A, Joint separate opinion of Judge McDonald and Judge Vohrah, 7 October 1997 (ICTY, Appeal Chamber), at paras. 47‑55).

[80] When an international practice develops from being intermittent and voluntary into being widely accepted and believed to be obligatory, it becomes a norm of customary international law. As Professor James L. Brierly wrote:
Custom in its legal sense means something more than mere habit or usage; it is a usage felt by those who follow it to be an obligatory one. There must be present a feeling that, if the usage is departed from, some form of sanction will probably, or at any rate ought to, fall on the transgressor.

(James L. Brierly, The Law of Nations: An Introduction to the International Law of Peace (6th ed. 1963), at p. 59, cited in John H. Currie, et al., International Law: Doctrine, Practice, and Theory (2nd ed. 2014), at p. 116)
[81] This process, whereby international practices become norms of customary international law, has been variously described as “accretion”, “crystallization”, “ripening” and “gel[ling]” (see, e.g., Bruno Simma and Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988), 12 Aust. Y.B.I.L. 82, at p. 104; The Paquete Habana, 175 U.S. 677 (1900), at p. 686; Jutta Brunnée and Stephen J. Toope, “International Law and the Practice of Legality: Stability and Change” (2018), 49 V.U.W.L.R. 429, at p. 443).

[82] Once a practice becomes a norm of customary international law, by its very nature it “must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour” (North Sea Continental Shelf, at para. 63).

[83] Within customary international law, there is a subset of norms known as jus cogens, or peremptory norms, which have been “accepted and recognized by the international community of States as a whole . . . from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (entered into force 27 January 1980), art. 53). This Court acknowledged that “a peremptory norm, or jus cogens norm is a fundamental tenet of international law that is non-derogable” (Kazemi, at para. 47, citing John H. Currie, Public International Law (2nd ed. 2008), at p. 583; Claude Emanuelli, Droit international public: Contribution à l’étude du droit international selon une perspective canadienne (3rd ed. 2010), at pp. 168‑69; Vienna Convention on the Law of Treaties, art. 53).

[84] Peremptory norms have been accepted as fundamental to the international legal order (Ian Brownlie, Principles of Public International Law (7th ed. 2008), at pp. 510-12; see also Andrea Bianchi, “Human Rights and the Magic of Jus Cogens” (2008), 19 E.J.I.L. 491; Evan J. Criddle and Evan Fox-Decent, “A Fiduciary Theory of Jus Cogens” (2009), 34 Yale J. Intl L. 331).

[85] How then does customary international law apply in Canada? As Professor Koh explains, “[l]aw-abiding states internalize international law by incorporating it into their domestic legal and political structures, through executive action, legislation, and judicial decisions which take account of and incorporate international norms” (Harold Hongju Koh, “Transnational Legal Process” (1996), 75 Neb. L. Rev. 181, at p. 204 (emphasis in original)). Some areas of international law, like treaties, require legislative action to become part of domestic law (Currie, et al., International Law: Doctrine, Practice, and Theory, at pp. 160-61 and 173-74; Currie, Public International Law, at pp. 225‑26).

[86] On the other hand, customary international law is automatically adopted into domestic law without any need for legislative action (Currie, Public International Law, at pp. 225-26; Hape, at paras. 36 and 39, citing Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529 (Eng. C.A.), per Lord Denning; Hersch Lauterpacht, “Is International Law a Part of the Law of England?”, in Transactions of the Grotius Society, vol. 25, Problems of Peace and War: Papers Read Before the Society in the Year 1939 (1940), 51). In England this is known as the doctrine of incorporation and in Canada as the doctrine of adoption. As Professor Brownlie explains:
The dominant principle . . . is that customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decisions of final authority. [p. 41]
[87] The adoption of customary international law as part of domestic law by way of automatic judicial incorporation can be traced back to the 18th century (Gib van Ert, Using International Law in Canadian Courts (2nd ed. 2008), at pp. 184-208). Blackstone’s 1769 Commentaries on the Laws of England: Book the Fourth, for example, noted that “the law of nations . . . is here adopted in it[s] full extent by the common law, and is held to be a part of the law of the land”, at p. 67; see also Triquet v. Bath (1764), 3 Burr. 1478, (K.B.)). Similarly, in the frequently cited case of Chung Chi Cheung v. The King, 1938 CanLII 468 (UK JCPC), [1939] A.C. 160 (P.C.), Lord Atkin wrote:
The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. [p. 168]
[88] Direct incorporation is also far from a niche preserve among nations. In a study covering 101 countries over a period between 1815 and 2013, Professors Pierre-Hugues Verdier and Mila Versteeg found widespread acceptance of the direct application of customary international law:
[P]erhaps the most striking pattern that emerges from our data is that in virtually all states, CIL [Customary International Law] rules are in principle directly applicable without legislative implementation. . . . [M]ost countries that require treaty implementation do not apply the same rule to international custom, but rather apply it directly.

(Pierre-Hugues Verdier and Mila Versteeg, “International Law in National Legal Systems: An Empirical Investigation” (2015), 109 Am. J. Intl L. 514, at p. 528)
[89] In Canada, in The Ship “North” v. The King (1906), 1906 CanLII 80 (SCC), 37 S.C.R. 385, Davies J., in concurring reasons, expressed the view that the Admiralty Court was “bound to take notice of the law of nations” (p. 394). Similarly, in Reference as to Whether Members of the Military or Naval Forces of the United States of America are Exempt from Criminal Proceedings in Canadian Criminal Courts, 1943 CanLII 31 (SCC), [1943] S.C.R. 483, Taschereau J., drawing on Chung Chi Cheung, held that the body of rules accepted by nations are incorporated into domestic law absent statutes to the contrary (pp. 516-17).

[90] As these cases show, Canada has long followed the conventional path of automatically incorporating customary international law into domestic law via the doctrine of adoption, making it part of the common law of Canada in the absence of conflicting legislation. This approach was more recently confirmed by this Court in Hape, where LeBel J. for the majority held:
Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law. [Emphasis added; para. 39.]
It is important to note that he concluded that rules of customary international law should be automatically incorporated into domestic law in the absence of conflicting legislation. His use of the word “may” later in the paragraph cannot be taken as overtaking his clear direction that, based on “a long line of cases”, customary international law is automatically incorporated into Canadian law. Judicial decisions are not Talmudic texts whereby each word attracts its own exegetical interpretation. They must be read in a way that respects the author’s overall intention, without permitting a stray word or phrase to undermine the overarching theory being advanced.

[91] Justice LeBel himself, in an article he wrote several years after Hape, explained that the Court’s use of the word “may” in Hape was in no way meant to diverge from the traditional approach of directly incorporating customary norms into Canadian common law:
Following [Hape], there was some comment and concern to the effect that the [statement that “courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law” (para. 39)] left the law in a state of some doubt. These comments pointed out that this sentence could be read as holding that prohibitive norms are not actually part of the domestic common law, but may only serve to aid in its development. In my view, this was not the sense of this passage, for at least three reasons. First, the sentences immediately preceding this last sentence stated, without reservation, that prohibitive rules of customary international law are incorporated into domestic law in the absence of conflicting legislation. Second, the entire discussion of incorporation was for the purpose of showing how the norm of respect for the sovereignty of foreign states, forming, as it does, part of our common law, could shed light on the interpretation of s. 32(1) of the Charter. Third, the majority reasons also explicitly held that the customary principles of non-intervention and territorial sovereignty “may be adopted into the common law of Canada in the absence of conflicting legislation”. The gist of the majority opinion in Hape was that accepting incorporation of customary international [law] was the right approach. In conclusion, the law in Canada today appears to be settled on this point: prohibitive customary norms are directly incorporated into our common law and must be followed by courts absent legislation which clearly overrules them. [Emphasis added.]

(Louis LeBel, “A Common Law of the World? The Reception of Customary International Law in the Canadian Common Law” (2014), 65 U.N.B.L.J. 3, at p. 15)
[92] As for LeBel J.’s novel use of the word “prohibitive”, we should be wary of concluding that he intended to create a new category of customary international law unique to Canada. In the same article, LeBel J. clarified that “prohibitive” norms simply mean norms that are “mandatory”, in the sense that they are obligatory or binding (LeBel, at p. 17). As Professor Currie observes, the word “prohibitive” is a “puzzling qualification [that] does not figure in any of the authorities cited by LeBel J. for the doctrine, nor is it a feature of the doctrine of adoption that operates in the United Kingdom” (John H. Currie, “Weaving a Tangled Web: Hape and the Obfuscation of Canadian Reception Law” (2007), 45 Can. Y.B. Intl Law 55, at p. 70; see also Armand de Mestral and Evan Fox-Decent, “Rethinking the Relationship Between International and Domestic Law” (2008), 53 McGill L.J. 573, at p. 587).

[93] The use of the word “prohibitive”, therefore, does not add a separate analytic factor, it merely emphasizes the mandatory nature of customary international law (see van Ert, Using International Law in Canadian Courts, at pp. 216-18). This aligns with LeBel J.’s statement in Hape that the “automatic incorporation” of norms of customary international law “is justified on the basis that international custom, as the law of nations, is also the law of Canada” (para. 39 (emphasis added)).

[94] Therefore, as a result of the doctrine of adoption, 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, absent conflicting law (Oonagh E. Fitzgerald, “Implementation of International Humanitarian and Related International Law in Canada”, in Oonagh E. Fitzgerald, ed., The Globalized Rule of Law: Relationships between International and Domestic Law (2006), 625, at p. 630). Legislatures are of course free to change or override them, but like all common law, no legislative action is required to give them effect (Kindred, at p. 8). To suggest otherwise by requiring legislative endorsement, upends a 250 year old legal truism and would put Canada out of step with most countries (Verdier and Versteeg, at p. 528). As Professor Toope noted, “[t]he Canadian story of international law is not merely a story of ‘persuasive’ foreign law. International law also speaks directly to Canadian law and requires it to be shaped in certain directions. International law is more than ‘comparative law’, because international law is partly our law” (Stephen J. Toope, “Inside and Out: The Stories of International Law and Domestic Law” (2001), 50 U.N.B.L.J. 11, at p. 23 (emphasis in original)).

[95] There is no doubt then, that customary international law is also the law of Canada. In the words of Professor Rosalyn Higgins, former President of the International Court of Justice: “In short, there is not ‘international law’ and the common law. International law is part of that which comprises the common law on any given subject” (Rosalyn Higgins, “The Relationship Between International and Regional Human Rights Norms and Domestic Law” (1992), 18 Commonwealth L. Bull. 1268, at p. 1273). The fact that customary international law is part of our common law means that it must be treated with the same respect as any other law.

[96] In other words, “Canadian courts, like courts all over the world, are supposed to treat public international law as law, not fact” (Gib van Ert, “The Reception of International Law in Canada: Three Ways We Might Go Wrong”, in Centre for International Governance Innovation, Canada in International Law at 150 and Beyond, Paper No. 2 (2018), at p. 6; see also van Ert, Using International Law in Canadian Courts, at pp. 62-69).

[97] Unlike foreign law in conflict of laws jurisprudence, therefore, which is a question of fact requiring proof, established norms of customary international law are law, to be judicially noticed (van Ert, “The Reception of International Law”, at p. 6; van Ert, Using International Law in Canadian Courts, at pp. 62‑69). Professor Higgins explains this as follows: “There is not a legal system in the world where international law is treated as ‘foreign law’. It is everywhere part of the law of the land; as much as contracts, labour law or administrative law” (p. 1268; see also James Crawford, Brownlie’s Principles of Public International Law (9th ed. 2019), at p. 52; Robert Jennings and Arthur Watts, Oppenheim’s International Law (9th ed. 2008), vol. 1, at p. 57; van Ert, Using International Law in Canadian Courts, at p. 64).

[98] And just as the law of contracts, labour law and administrative law are accepted without the need of proof, so too is customary international law. Taking judicial notice — in the sense of not requiring formal proof by evidence — is appropriate and an inevitable implication both of the doctrine of adoption[3] and legal orthodoxy (Anne Warner La Forest, “Evidence and International and Comparative Law”, in Oonagh E. Fitzgerald, ed., The Globalized Rule of Law: Relationships between International and Domestic Law (2006), 367, at pp. 381‑82; van Ert, Using International Law in Canadian Courts, at pp. 42-56 and 62-66).

[99] Some academics suggest that when recognising new norms of customary international law, allowing evidence of state practice may be appropriate. While these scholars acknowledge that permitting such proof departs from the conventional approach of judicially noticing customary international law, they maintain that this in no way derogates from the nature of international law as law (Anne Warner La Forest, at pp. 384 and 388; van Ert, Using International Law in Canadian Courts, at pp. 67‑69). The questions of whether and what evidence may be used to demonstrate the existence of a new norm are not, however, live issues in this appeal. Here the inquiry is less complicated and taking judicial notice is appropriate since the workers claim breaches not simply of established norms of customary international law, but of norms accepted to be of such fundamental importance as to be characterized as jus cogens, or peremptory norms.

[100] Crimes against humanity have been described as among the “least controversial examples” of violations of jus cogens (Louis LeBel and Gloria Chao, “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law” (2002), 16 S.C.L.R. (2d) 23, at p. 33).

[101] The prohibition against slavery too is seen as a peremptory norm. In 2002, the Office of the United Nations High Commissioner for Human Rights confirmed that “it is now a well-established principle of international law that the ‘prohibition against slavery and slavery-related practices have achieved the level of customary international law and have attained “jus cogens” status’” (David Weissbrodt and Anti-Slavery International, Abolishing Slavery and its Contemporary Forms, U.N. Doc. HR/PUB/02/4 (2002), at p. 3).

[102] Compelling authority also confirms that the prohibition against forced labour has attained the status of jus cogens. The International Labour Organization, in a report entitled “Forced labour in Myanmar (Burma)”, I.L.O Official Bulletin: Special Supplement, vol. LXXXI, 1998, Series B, recognized that, “there exists now in international law a peremptory norm prohibiting any recourse to forced labour and that the right not to be compelled to perform forced or compulsory labour is one of the basic human rights” (para. 203). To the extent that debate may exist about whether forced labour is a peremptory norm, there can be no doubt that it is at least a norm of customary international law.

[103] And the prohibition against cruel, inhuman and degrading treatment has been described as an “absolute right, where no social goal or emergency can limit [it]” (Currie, et al., International Law: Doctrine, Practice, and Theory, at p. 627). This is reflected in the ratification of several international covenants and treaties such as the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 (entered into force March 23, 1976), art. 7; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can T.S. 1987 No. 36 (entered into force June 26, 1987), art. 16; the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 3; the American Declaration of the Rights and Duties of Man, April 30, 1948, art. 26; the American Convention on Human Rights, 1144 U.N.T.S. 123, art. 5; the African Charter on Human and Peoples’ Rights, 1520 U.N.T.S. 217, art. 5; the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 37; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1561 U.N.T.S. 363; and the Inter-American Convention to Prevent and Punish Torture, O.A.S.T.S. No. 67 (Currie et al., International Law: Doctrine, Practice, and Theory, at p. 627).

[104] Nevsun argues, however, that even if customary international law norms such as those relied on by the Eritrean workers form part of the common law through the doctrine of adoption, it is immune from their application because it is a corporation.

[105] Nevsun’s position, with respect, misconceives modern international law. As Professor William S. Dodge has observed, “[i]nternational law . . . does not contain general norms of liability or non-liability applicable to categories of actors” (William S. Dodge, “Corporate Liability Under Customary International Law” (2012), 43 Geo. J. Int’l L. 1045, at p. 1046). Though certain norms of customary international law, such as norms governing treaty making, are of a strictly interstate character and will have no application to corporations, others prohibit conduct regardless of whether the perpetrator is a state (see, e.g., Dodge; Harold Hongju Koh, “Separating Myth from Reality about Corporate Responsibility Litigation” (2004), 7 J.I.E.L. 263, at pp. 265‑267; Andrew Clapham, Human Rights Obligations of Non-State Actors (2006), at p. 58).

[106] While states were classically the main subjects of international law since the Peace of Westphalia in 1648 (Cassese, at pp. 22-25; Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017), at p. xix), international law has long-since evolved from this state-centric template. As Lord Denning wrote in Trendtex Trading Corp.: “I would use of international law the words which Galileo used of the earth: ‘But it does move’” (p. 554).

[107] In fact, international law has so fully expanded beyond its Grotian origins that there is 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 normative instruments intended to protect human rights and ensure compliance with those rights.

[108] Professor Payam Akhavan notes that “[t]he rapid emergence of human rights signified a revolutionary shift in international law, from a state-centric to a human-centric conception of global order” (Payam Akhavan, “Canada and international human rights law: is the romance over?” (2016), 22 Canadian Foreign Policy Journal 331, at p. 332). The result of these developments is that international law now works “not only to maintain peace between States, but to protect the lives of individuals, their liberty, their health, [and] their education” (Emmanuelle Jouannet, “What is the Use of International Law? International Law as a 21st Century Guardian of Welfare” (2007), 28 Mich. J. Int’l L. 815, at p. 821). As Professor Christopher Joyner adds: “The rights of peoples within a state now transcend national boundaries and have become essentially a common concern under international law” (Christopher C. Joyner, “‘The Responsibility to Protect’: Humanitarian Concern and the Lawfulness of Armed Intervention” (2007), 47 Va J. Int’l L. 693, at p. 717).

[109] This represents the international law actualization of Professor Hersch Lauterpacht’s statement in 1943 that “[t]he individual human being . . . is the ultimate unit of all law” (Sands, at p. 63).

[110] A central feature of the individual’s position in modern international human rights law is that the rights do not exist simply as a contract with the state. While the rights are certainly enforceable against the state, they are not defined by that relationship (Patrick Macklem, The Sovereignty of Human Rights (2015), at p. 22). They are discrete legal entitlements, held by individuals, and are “to be respected by everyone” (Clapham, Human Rights Obligations, at p. 58).

[111] Moreover, as Professor Beth Stephens has observed, these rights may be violated by private actors:
The context in which international human rights norms must be interpreted and applied today is one in which such norms are routinely applied to private actors. Human rights law in the past several decades has moved decisively to prohibit violations by private actors in fields as diverse as discrimination, children’s rights, crimes against peace and security, and privacy. . . . It is clear that individuals today have both rights and responsibilities under international law. Although expressed in neutral language, many human rights provisions must be understood today as applying to individuals as well as to states.

(Beth Stephens, “The Amorality of Profit: Transnational Corporations and Human Rights” (2002), 20 B.J.I.L. 45, at p. 73)
There is no reason, in principle, why “private actors” excludes corporations.

[112] Canvassing the jurisprudence and academic commentaries, Professor Koh observes that non-state actors like corporations can be held responsible for violations of international criminal law and concludes that it would not “make sense to argue that international law may impose criminal liability on corporations, but not civil liability” (Koh, “Separating Myth from Reality”, at p. 266). He describes the idea that domestic courts cannot hold corporations civilly liable for violations of international law as a “myth” (Koh, “Separating Myth from Reality”, at pp. 264-68; see also Simon Baughen, Human Rights and Corporate Wrongs: Closing the Governance Gap (2015), at pp. 130-32). Professor Koh also notes that
[t]he commonsense fact remains that if states and individuals can be held liable under international law, then so too should corporations, for the simple reason that both states and individuals act through corporations. Given that reality, what legal sense would it make to let states and individuals immunize themselves from liability for gross violations through the mere artifice of corporate formation? [Emphasis in original.]

(Koh, “Separating Myth from Reality”, at p. 265)
[113] As a result, in my respectful view, it is not “plain and obvious” that corporations today 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 what Professor Clapham calls “complicity offenses” (Koh, “Separating Myth from Reality”, at pp. 265 and 267; Andrew Clapham, “On Complicity”, in Marc Henzelin and Robert Roth, eds., Le Droit Pénal à l’Épreuve de l’Internationalisation (2002), 241, at pp. 241-75). However, because some norms of customary international law are of a strictly interstate character, the trial judge will have to determine whether the specific norms relied on in this case are of such a character. If they are, the question for the court will be whether the common law should evolve so as to extend the scope of those norms to bind corporations.

[114] Ultimately, for the purposes of this appeal, it is enough to conclude that the breaches of customary international law, or jus cogens, relied on by the Eritrean workers may well apply to Nevsun. The only remaining question is whether there are any Canadian laws which conflict with their adoption as part of our common law. I could not, with respect, find any.

[115] On the contrary, the Canadian government has adopted policies to ensure that Canadian companies operating abroad respect these norms (see, e.g., Global Affairs Canada, Doing Business the Canadian Way: A Strategy to Advance Corporate Social Responsibility in Canada’s Extractive Sector Abroad, last updated July 31, 2019 (online); Global Affairs Canada, Minister Carr announces appointment of first Canadian Ombudsperson for Responsible Enterprise, April 8, 2019 (online) (announcing the creation of an Ombudsperson for Responsible Enterprise, and a Multi-stakeholder Advisory Body on Responsible Business Conduct)). With respect to the Canadian Ombudsperson for Responsible Enterprise, mandated to review allegations of human rights abuses of Canadian corporations operating abroad, the Canadian government has explicitly noted that “[t]he creation of the Ombudsperson’s office does not affect the right of any party to bring a legal action in a court in any jurisdiction in Canada regarding allegations of harms committed by a Canadian company abroad” (Global Affairs Canada, Responsible business conduct abroad — Questions and answers, last updated September 16, 2019 (online); Yousuf Aftab and Audrey Mocle, Business and Human Rights as Law: Towards Justiciability of Rights, Involvement, and Remedy (2019), at pp. 47-48).

[116] In the absence of any contrary law, the customary international law norms raised by the Eritrean workers form part of the Canadian common law and potentially apply to Nevsun.

[117] Is a civil remedy for a breach of this part of our common law available? Put another way, can our domestic common law develop appropriate remedies for breaches of adopted customary international law norms?

[118] Development of the common law occurs where such developments are necessary to clarify a legal principle, to resolve an inconsistency, or to keep the law aligned with the evolution of society (Friedmann Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34 (CanLII), [2000] 1 S.C.R. 842, at para. 42; see also Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210, at para. 93; Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750). In my respectful view, recognizing the possibility of a remedy for the breach of norms already forming part of the common law is such a necessary development. As Lord Scarman noted:
Unless statute has intervened to restrict the range of judge-made law, the common law enables the judges, when faced with a situation where a right recognised by law is not adequately protected, either to extend existing principles to cover the situation or to apply an existing remedy to redress the injustice. There is here no novelty: but merely the application of the principle ubi jus ibi remedium [for every wrong, the law provides a remedy].

(Sidaway v. Board of Governors of the Bethlem Royal Hospital, [1985] 1 A.C. 871, at p. 884 (H.L.))
[119] With respect specifically to the allegations raised by the workers, like all state parties to the International Covenant on Civil and Political Rights, Canada has international obligations to ensure an effective remedy to victims of violations of those rights (art. 2). Expounding on the nature of this obligation, the United Nations Human Rights Committee — which was established by states as a treaty monitoring body to ensure compliance with the International Covenant on Civil and Political Rights — provides additional guidance in its General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, May 26, 2004. In this document, the Human Rights Committee specifies that state parties must protect against the violation of rights not just by states, but also by private persons and entities. The Committee further specifies that state parties must ensure the enjoyment of Covenant rights to all individuals, including “asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party” (para. 10). As to remedies, the Committee notes:
[T]he enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. [para. 15]
[120] In the domestic context, the general principle that “where there is a right, there must be a remedy for its violation” has been recognized in numerous decisions of this Court (see, e.g., Kazemi, at para. 159; Henry v. British Columbia (Attorney General), 2015 SCC 24 (CanLII), [2015] 2 S.C.R. 214, at para. 65; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3, at para. 25; R. v. 974649 Ontario Inc., 2001 SCC 81 (CanLII), [2001] 3 S.C.R. 575, at para. 20; Great Western Railway v. Brown (1879), 1879 CanLII 2 (SCC), 3 S.C.R. 159, at p. 179).

[121] The right to a remedy in the context of allegations of human rights violations was discussed by this Court in Kazemi, where a Canadian woman’s estate sought damages against the Islamic Republic of Iran for torture. The majority did not depart from the position in Hape that customary international law, including peremptory norms, are part of Canadian common law, absent express legislation to the contrary. However, it concluded that the State Immunity Act was the kind of express legislation that prevented a remedy against the State of Iran for the breach of the jus cogens prohibition against torture, which it agreed was part of domestic Canadian law. LeBel J. for the majority noted that “[w]hile rights would be illusory if there was never a way to remedy their violation, the reality is that certain rights do exist even though remedies for their violation may be limited by procedural bars” (para. 159). In effect, the majority in Kazemi held that the general right to a remedy was overridden by Parliament’s enactment of the State Immunity Act. However, the State Immunity Act protects “foreign states” from claims, not individuals or corporations.

[122] Unlike Kazemi, there is no law or other procedural bar precluding the Eritrean workers’ claims. Nor is there anything in Kazemi that precludes the possibility of a claim against a Canadian corporation for breaches in a foreign jurisdiction of customary international law, let alone jus cogens. As a result, it is not “plain and obvious” that Canadian courts cannot develop a civil remedy in domestic law for corporate violations of the customary international law norms adopted in Canadian law.

[123] Nevsun additionally argues that the harms caused by the alleged breaches of customary international law can be adequately addressed by the recognized torts of conversion, battery, “unlawful confinement”, conspiracy and negligence, all of which the Eritrean workers have also pleaded. In my view, it is at least arguable that the Eritrean workers’ allegations encompass conduct not captured by these existing domestic torts.

[124] Customary international law norms, like those the Eritrean workers allege were violated, are inherently different from existing domestic torts. Their character is of a more public nature than existing domestic private torts since the violation of these norms “shock[s] the conscience of humanity” (M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes” (1996), 59 Law & Contemp. Probs. 63, at p. 69).

[125] Refusing to acknowledge the differences between existing domestic torts and forced labour; slavery; cruel, inhuman or degrading treatment; and crimes against humanity, may undermine the court’s ability to adequately address the heinous nature of the harm caused by this conduct. As Professor Virgo notes, in the context of allegations of human rights violations, the symbolism reflected by the characterization or labelling of the allegations is crucial:
From the perspective of the victim . . . the fact that torture is characterized as a tort, such as battery, will matter — simply because characterising torture in this way does not necessarily reflect the seriousness of the conduct involved. In the context of human rights . . . symbolism is crucial.

. . .

[In this context, accurately labelling the wrong is important] because the main reason why the victim wishes to commence civil proceedings will presumably be to ensure public awareness of the violation of fundamental human rights. The remedial consequence of successfully bringing a case is often, or even usually, only a secondary concern.

(Graham Virgo, “Characterisation, Choice of Law, and Human Rights”, in Craig Scott, ed., Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (2001), 325, at p. 335)
[126] While courts can, of course, address the extent and seriousness of harm arising from civil wrongs with tools like an award of punitive damages, these responses may be inadequate when it comes to the violation of the norms prohibiting forced labour; slavery; cruel, inhuman or degrading treatment; or crimes against humanity. The profound harm resulting from their violation is sufficiently distinct in nature from those of existing torts that, as the workers say, “[i]n the same way that torture is something more than battery, slavery is more than an amalgam of unlawful confinement, assault and unjust enrichment”. Accepting this premise, which seems to be difficult to refute conceptually, reliance on existing domestic torts may not “do justice to the specific principles that already are, or should be, in place with respect to the human rights norm” (Craig Scott, “Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms”, in Craig Scott, ed., Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (2001), 45, at p. 62, fn 4; see also Sandra Raponi, “Grounding a Cause of Action for Torture in Transnational Law”, in Craig Scott, ed., Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (2001), 373; Virgo).

[127] The workers’ customary international law pleadings are broadly worded and offer several ways in which the violation of adopted norms of customary international law may potentially be compensable in domestic law. The mechanism for how these claims should proceed is a novel question that must be left to the trial judge. The claims may well be allowed to proceed based on the recognition of new nominate torts, but this is not necessarily the only possible route to resolving the Eritrean workers’ claims. A compelling argument can also be made, based on their pleadings, 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.

[128] The doctrine of adoption in Canada entails that norms of customary international law are directly and automatically incorporated into Canadian law absent legislation to the contrary (Gib van Ert, “What Is Reception Law?”, in Oonagh E. Fitzgerald, ed., The Globalized Rule of Law: Relationships between International and Domestic Law (2006), 85, at p. 89). That may mean that the Eritrean workers’ customary international law claims need not be converted into newly recognized categories of torts to succeed. Since these claims are based on norms that already form part of our common law, it is not “plain and obvious” to me that our domestic common law cannot recognize a direct remedy for their breach. Requiring the development of new torts to found a remedy for breaches of customary international law norms automatically incorporated into the common law may not only dilute the doctrine of adoption, it could negate its application.

[129] Effectively and justly remedying breaches of customary international law may demand an approach of a different character than a typical “private law action in the nature of a tort claim” (Vancouver (City) v. Ward, 2010 SCC 27 (CanLII), [2010] 2 S.C.R. 28, at para. 22, citing Dunlea v. Attorney-General, [2000] NZCA 84). The objectives associated with preventing violations of jus cogens and norms of customary international law are unique. A good argument can be made that appropriately remedying these violations requires different and stronger responses than typical tort claims, given the public nature and importance of the violated rights involved, the gravity of their breach, the impact on the domestic and global rights objectives, and the need to deter subsequent breaches.

[130] As Professor Koh wrote about civil remedies for terrorism:
Whenever a victim of a terrorist attack obtains a civil judgment in a United States court, that judgment promotes two distinct sets of objectives: The objectives of traditional tort law and the objectives of public international law. A judgment awarding compensatory and punitive damages to a victim of terrorism serves the twin objectives of traditional tort law, compensation and deterrence. At the same time, the judgment promotes the objectives of public international law by furthering the development of an international rule of law condemning terrorism. By issuing an opinion and judgment finding liability, the United States federal court adds its voice to others in the international community collectively condemning terrorism as an illegitimate means of promoting individual and sovereign ends.

(Harold Hongju Koh, “Civil Remedies for Uncivil Wrongs: Combatting Terrorism through Transnational Public Law Litigation” (2016), 50 Tex. Intl L.J. 661, at p. 675)
[131] This proceeding is still at a preliminary stage and it will ultimately be for the trial judge to consider whether the facts of this case justify findings of breaches of customary international law and, if so, what remedies are appropriate. These are complex questions but, as Wilson J. noted in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959:
The fact that a pleading reveals “an arguable, difficult or important point of law” cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law . . . will continue to evolve to meet the legal challenges that arise in our modern industrial society. [pp. 990-91]
[132] Customary international law is part of Canadian law. Nevsun is a company bound by Canadian law. It is not “plain and obvious” to me that the Eritrean workers’ claims against Nevsun based on breaches of customary international law cannot succeed. Those claims should therefore be allowed to proceed.


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Last modified: 07-02-23
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