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Violations of customary international law are actionable, SCC rules

Updated: Aug 4, 2020

Eritrea is a country in east Africa. It has a “National Service Program,” where all Eritreans have to do military training and military or other public service when they turn eighteen. But people in this program are forced to work for years and years on projects supported by military or political party officials.

The Bisha mine was built starting in 2008. It is owned by the Bisha Mining Share Company. Workers from the National Service Program were used to help build it. They were forced to work under harsh and dangerous conditions for years. They weren’t allowed to leave. They were beaten and punished in many ways.

Three workers said they arrived at the Bisha mine between 2008 and 2010. They said they were forced to work at least twelve hours a day, six days a week, in temperatures close to 50ºC. They escaped Eritrea between 2011 and 2013 and became refugees.

Nevsun is a Canadian company based in British Columbia. It owns the Bisha Mining Share Company. The workers sued Nevsun, saying it was responsible for slavery; forced labour; cruel, unusual, or degrading treatment; and crimes against humanity. They said these were violations of “customary international law.” They said customary international law was part of Canadian law. They said that meant Canadian courts should be able to hold Nevsun responsible for the harm they suffered.

Nevsun said British Columbia courts didn’t have the power to rule on the workers’ lawsuit. It said it was immune because of something called the “act of state doctrine.” This doctrine says courts in one country aren’t allowed to rule on what another country does. It had never been applied in Canada before. Nevsun also said it couldn't be sued for violating customary international law.

The lower courts said the workers’ lawsuit could go forward.

The majority of judges at the Supreme Court of Canada said the act of state doctrine wasn’t part of Canadian law.

The majority said that customary international law is part of Canadian law, though. It said customary international law becomes part of Canadian law automatically. This is different than treaty law, which needs Parliament to pass a law to bring it into force. Because customary international law is part of Canadian law, courts could, in the right cases, find Canadian companies responsible for violating it.

The majority held: "modern international human rights law [is] the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct that undermined the norms was to be identified and addressed."

Alison Latimer was counsel for EarthRights International and the Global Justice Clinic at New York University School of Law (jointly), together with Tamara Morgenthau.

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