ARAYA v. NEVSUN AND THE CASE FOR ADOPTING INTERNATIONAL HUMAN RIGHTS PROHIBITIONS INTO DOMESTIC TORT LAW.

Author:Farkas, E. Samuel
 
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I INTRODUCTION: OUTLINING THE SCOPE OF THE PROBLEM 132 II ROADMAP AND RECOMMENDATION: RECOGNIZING NOVEL CIL TORTS 134 III ARAYA VNEVSUN: A GLIMMER OF HOPE FOR TORTS BASED ON INTERNATIONAL LAW 134 IV CIL AND JUS COGENS NORMS: ARA YA VIOLATIONS MEET THE JUS COGENS THRESHOLD 136 V EXISTING APPROACHES IN THE TRANSNATIONAL CONTEXT: THE NEED FOR CIL TORTS PERSISTS 138 A. Choc v Hudbay 139 B. Tahoe v Garcia 141 C. The Propriety of CIL Torts Persists 142 VI PROPOSED AVENUE FOR SEEKING REDRESS: THE CREATION OF CIL TORTS 145 VII U.S. ALIEN TORTS STATUTE JURISPRUDENCE: A RESPONSIVE, APPROPRIATE APPROACH TO CIL TORTS 146 A. Overview 146 B. The Alien Torts Statute 146 C. Recognized CIL Torts in the U.S. 147 VIII CORPORATE LIABILITY IN THE US: THE POSSIBILTY OF CORPORATE LIABILITY FOR CIL TORTS 148 A. Overview 148 B. Majority of U.S. Jurisprudence Endorses Corporate Liability for CIL Torts 149 C. Domestic Law Should Create the Parameters of a CIL Tort 150 IX ACADEMIC SUPPORT FOR CIL TORTS IN CANADA: THE WORDS OF JUSTICE BINNIE 151 X THE CANADIAN LAW OF ADOPTION: THE DOOR OPENED FOR CIL TORTS 153 A. Overview 153 B. Foundations of Adoption 155 C. Contemporary Adoption Cases 155 D. The Shortcomings of the Kazemi Argument: Permissive and Prohibitive Norms 158 XI SHORTCOMINGS: AN INSUFFICIENT SOLUTION AND THE OUTSTANDING NEED FOR LEGISLATION 160 A. The Limited Role of the Judiciary and Public Policy Counterarguments 161 B. Remaining Hurdles to Bringing Claims for Transnational Wrongdoing 164 XII CONCLUSION: COURTS" AUTHORITY TO MAKE A USEFUL CONTRIBUTION 165 I INTRODUCTION: OUTLINING THE SCOPE OF THE PROBLEM

Canadian companies maintain operations in a multitude of countries around the world. Disappointingly, a growing number of studies and legal cases demonstrate that these companies' foreign operations are failing to meet internationally accepted standards for human rights. By way of example, the Justice and Corporate Accountability Project at Osgoode Hall reported that from 2000 to 2015 Canadian companies' operations in Latin America contributed to 44 deaths and over 400 non-workplace injuries. (1) Further, Canada stands out even amongst other large mining nations for its harmful impact on foreign countries; it contributed to more than four times the amount of mining-related transgressions perpetrated by the next worst states, Australia and the United Kingdom, between 1999 and 2009. (2)

Holding Canadian corporations legally accountable for wrongs committed in foreign countries is difficult for a myriad of reasons. This paper focuses on one of these reasons; namely, the fact that Canadian courts have yet to recognize private causes of action for breaches of international legal norms. (3) More specifically, plaintiffs have not yet been able to bring civil actions for internationally recognized human rights violations such as enslavement and torture. There are other barriers to successfully holding Canadian corporations liable for their conduct abroad, such as jurisdictional competency and the corporate veil doctrine. Still, the lack of torts based on internationally recognized human rights prohibitions is one issue in this area worthy of discussion and rectification. (4)

Detractors believe that recognizing torts for enslavement and torture would be duplicative since relevant conduct can be sufficiently addressed under existing torts such as false imprisonment and battery. (5) However, the need for Canada to recognize new torts based on international law was emphasized in the Talisman case from the United States. In Talisman, a District Court judge expressed skepticism as to whether Canada had an adequate judicial landscape for bringing claims for torture, slavery, genocide and war crimes. He criticized Canada's lack of torts based on international human rights violations, noting that the categories of tort currently recognized in Canada do not sufficiently reflect the gravity of certain misconduct, stating,

The concern is that the causes of action available [in Canada] do not reflect the gravity of the alleged offenses, and in particular, the universally-condemned nature of these acts.... Genocide may quantitatively be the same as a large number of murders, but it is qualitatively different, and this difference is recognized by the fact that the act enjoys special status under international law. (6) As of now, Canadian legislators have not directly addressed this issue. (7) Though the 2012 Justice for Victims of Terrorism Act created a private cause of action for the internationally recognized wrong of terrorism, (8) no such legislation has been enacted in regard to other international law prohibitions. Therefore, plaintiffs who have suffered as victims of breaches of international law have, to this point, been left without adequate remedies through the Canadian justice system. However, the recent decisions from the British Columbia courts in Araya indicate that Canadian judges may finally be prepared to recognize novel categories of tort based on international legal norms.

II ROADMAP AND RECOMMENDATION: RECOGNIZING NOVEL CIL TORTS

This paper argues that the expansion of tort doctrine to cover breaches of customary international law ("CIL") would be an appropriate incremental development for the Canadian common law given the mass of international human rights violations currently being perpetrated by Canadian corporations around the world. Canadian courts should take a proactive approach in recognizing civil causes of action for breaches of CIL prohibitions. Intentional torts should be developed by courts to allow parties to sue for violations of CIL norms such as the prohibitions on slavery and torture. Notably, these types of causes of action have already been recognized by courts in the United States. It is argued that Canadian courts have authority to recognize CIL torts and that it is now time for the Canadian judiciary to invoke this authority in order to deal with contemporary transnational issues. Canadian and U.S. case law and legal articles on the topics of transnational civil liability and the doctrine of domestic adoption of CIL norms were relied on in writing this paper, as was a review of relevant international conventions, statutes and International Court jurisprudence.

First, this paper summarizes the key facts and outcomes of the recent Araya case out of the B.C. Courts, which has left open the possibility of recognizing new torts based on CIL prohibitions. Second, a brief summary of CIL and the concept of jus cogens norms is presented. Third, the paper outlines existing legal approaches to dealing with transnational wrongdoing in Canada, such as pleadings of negligence and recognized intentional torts such as battery. Fourth, the U.S. approach to recognizing CIL torts is discussed. Finally, Canadian academic opinion and existing Canadian jurisprudence on the doctrine of adoption are analyzed in concluding that Canadian courts should employ the U.S. approach to recognizing CIL torts. This section seeks to update the work of previous scholars in the wake of Araya and the Supreme Court of Canada's decisions in Hape and Kazemi.

III ARAYA V NEVSUN: A GLIMMER OF HOPE FOR TORTS BASED ON INTERNATIONAL LAW

In Araya, the British Columbia Supreme Court considered a corporate defendant's applications to strike plaintiffs' civil claims based on breaches of international legal norms for failing to disclose a reasonable cause of action. While the court acknowledged that such claims had never succeeded in Canadian courts, the application was dismissed and the claims were allowed to advance to trial. The case centred around the alleged use of forced labour at the Bisha mine in Eritrea. The mine was owned and operated by BMSC, effectively a subsidiary of Canadian corporation Nevsun. The plaintiffs, now refugees in Canada, alleged that they were forcibly conscripted into a government program for national and military service and, as a result of agreements between Nevsun and the Eritrean government, were forced to work at the Bisha mine in inhumane conditions. The plaintiffs brought their action directly against Nevsun on numerous grounds, including breaches of international law norms. (9)

Abrioux J's refusal to strike the plaintiffs' claims based on Nevsun's breaches of customary international law implies a willingness to expand the reach of domestic tort law to breaches of international law. The plaintiffs pleaded that Nevsun's active use, or acquiescence in the use by the Eritrean government, of forced labour and torture were breaches of jus cogens or "higher order" (10) international legal principles. They further asserted that, based on the doctrine of "adoption", jus cogens prohibitions should be adopted into domestic Canadian law and breaches thereof should ground private actions for damages. Abrioux J relied on a passage from Hope to explain how CIL norms could become adopted into the common law of Canada: "[a]bsent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the... development of the common law." (11) In total, the plaintiffs sought the recognition of four new torts based on the CIL prohibitions against torture, slavery, forced labour and crimes against humanity. (12)

Nevsun argued that CIL applies only to states and not to corporations, and that the adoption doctrine could not go so far as to automatically create new private law remedies. (13) Nonetheless, Abrioux J felt that the issues raised surrounding the CIL claims would be best determined after "a contextual analysis" at a full trial and therefore dismissed Nevsun's motion to strike. (14) This paper takes the position that the contextual analysis that takes place at the impending trial should point to the necessity of recognizing new torts based on jus cogens principles of CIL. An analysis of the nature of CIL, the existing jurisprudence on the adoption doctrine and case law from other...

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