In 2014, three Eritrean miners decided to file a class action suit  against Canadian company Nevsun Resources Ltd. Nevsun owned 60% of the Bisha Mining Share Company, which operated the Bisha Gold Mine in Eritrea. The plaintiffs alleged violations of human rights under customary international law (CIL), accusing the corporation of being complicit in the perpetuation of forced labour, torture, inhumane and degrading treatment, and slavery. 

Fast-forward to 2020 and the Canadian Supreme Court, in a landmark decision, rules a mass tort claim for modern slavery admissible, setting a historic precedent for domestic corporate liability claims for breaches of international human rights law. The gates are thus opened—or, at the very least, unlocked—to a widening of the jurisdiction in transnational human rights litigation against private businesses operating through overseas partner companies. 

The plaintiffs are three former Eritrean citizens, now refugees, who had been conscripted indefinitely in the Eritrean military. Through its National Service Program, the Eritrean Military exploits conscripts to provide labour for several foreign companies. Whilst on the surface the program consists of mandatory military service of a fixed duration of 12 months, the reality sees draftees facing forced labour for up to six and a half years (on average). They are held captive and often subject to being tied and beaten up, and in extreme temperatures. Regularly left with little or no food, and housed in unsuitable huts lacking bedding and electricity, conscripts are subject to detention and torture if caught attempting to flee.

Nevsun is a Canadian company that owns the majority of the Bisha Mine shares, with the remaining 40% owned by the Eritrean National Mining Company. Nevsun is the “mother” company, exercising full and effective operational control over the mine. Its local sub-contractors are owned by Eritrea’s ruling party. 

The widespread use of forced labour in Eritrean mining was reported as early as 2013 by Human Rights Watch and the UN Commission of Inquiry on Human Rights in Eritrea . The heart of the dispute centred on Nevsun’s complicity in hiring Eritrean-owned sub-contractors accused of forced labour.

The legal question arose as to whether:

i) a customary international law (CIL) claim is actionable in Canadian common law; and

ii) a Canadian Court could have jurisdiction to hear such a claim without encroaching upon fundamentals of international law, such as the Act of State doctrine (according to which an act of state is sovereign and must be respected by the jurisdictions of the other states). 

The plaintiffs lodged a claim before the British Columbia Supreme Court, seeking legal redress in the following:

i) damages for domestic torts; and

ii) damages for breaches of CIL prohibitions involving non-derogable human rights (those rights that can never be revoked, like the right to life and the right to be free from slavery). 

The defence argued that the conduct of the Eritrean sub-contractors cannot be subject to civil action before Canadian courts. Nevsun tried to quash the plaintiffs’ claims with a motion to strike, which is a procedural tool barring admissibility of a claim, on grounds of the latter’s lack of any reasonable prospect of success on the merits. The motion was dismissed, because the court found the novelty of the plaintiffs’ claim was not far-fetched, and the area in which legal redress was sought is not settled. This set a precedent on the availability of judicial remedies to victims of corporate international law violations, albeit with many legal questions yet to be answered—such as the limits and scope of liability. 

INTERNATIONAL AND DOMESTIC LEGAL DIFFERENCES

In the same way as domestic law regulates the conduct of natural and legal persons, international law was originally designed to regulate state conduct. Traditionally, only states can be subject to international law rights and obligations, and whatever the state does—if consistent with its own state practice—must be respected as a sovereign and inviolable act of that state. The Nevsun ruling challenged that assumption by clarifying that there is no enforceable Act of State doctrine at Canadian common law, finding that  breaches of certain norms of CIL are actionable in Canadian courts. The ruling also means that private companies, although in principle governed by domestic law, are subject to the same international law standards binding upon individuals, at least insofar as jus cogens norms (that is, certain fundamental, overriding principles of international law protecting fundamental human values) are concerned. 

PUBLIC RESPONSE TO THE DECISION

Human rights activists welcomed the decision as an advance towards greater human rights protection under Corporate Social Responsibility (CSR). It comes with far-reaching implications for companies in the resources, technology, and armaments sectors. At present, there is no specific, universal, and obligatory norm of corporate accountability for human rights violations. However, the Nevsun ruling upholds non-derogable principles of fundamental justice and ethical labour practices without escaping into empty legalistic considerations or exploiting legal loopholes to bolster impunity. It follows an emerging trend in litigation against companies employing local subsidiaries who are found in breach of human rights and international law standards (for more insight, check the Vedanta decision and compare it against the limits re-affirmed in African Minerals).

Modern slavery remains a vivid reality in our society, and outdated legal frameworks often prevent justice from taking its due course. The Nevsun ruling should be taken as a model to crystallise a fairer regime for corporate violations internationally. 

Diana is a law graduate, legal advisor and research assistant. She has worked in the fields of immigration, asylum and equality law. She strongly advocates for minority rights, social welfare and the rule of law. Diana holds an LL.B. in European and Comparative Law from Maastricht University and is currently studying the accelerated LL.B. at the University of Glasgow to qualify as a solicitor-advocate.

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