Nevsun Resources Ltd. v. Araya

Nature of the Case

Supreme Court of Canada decision upholding lower courts’ dismissal of Nevsun Resources Ltd.’s motion to strike a claim by mine workers in Eritrea for damages for violations of customary international law by a Canadian corporation on the grounds that the ‘act of state’ doctrine prevents a domestic court from adjudicating on extra-territorial human rights obligations and that customary international law does not apply to private actors. The Court held that the ‘act of state’ doctrine does not apply as an all-encompassing doctrine in Canada and that international law has evolved so as not to preclude the possibility of direct liability of private corporations for violations of obligatory, definable, and universal norms. Even if the international human rights norms at issue are of a strictly inter-state character, courts must consider whether the common law should evolve so as to extend the scope of those norms to bind corporations.

Enforcement of the Decision and Outcomes

Nevsun’s appeal was dismissed, and the case is ongoing.

Significance of the Case

This represents a significant advance in Canadian jurisprudence that will be helpful in other countries in which courts have been reluctant to provide remedies to violations of international law that has not been directly incorporated.  The Supreme Court affirms in its decision that international human rights are “not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities.” This statement should be helpful in combatting arguments that social and economic rights can be treated by courts as mere aspirations rather than enforceable rights. The decision eloquently affirms the obligations of domestic courts to become active participants in the evolution of international human rights norms in response to current challenges related to transnational corporations and extra-territorial obligations. While the merits of the claim have yet to be determined, this decision sends a message to Canadian corporations that they can potentially be held liable for violating international customary law regardless of where the violations take place.

For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University and the Social Rights Advocacy Centre.

Groups Involved in the Case

• Amnesty International