All Posts By

Catherine Savard

Scholarship to attend the “International Justice and Victims’ Rights Summer School”: Call for applications

By | Funding Opportunities, Student News

$ 2,000 scholarship (Master’s or Ph.D. student)

Purpose of the scholarship

The Canadian Partnership for International Justice (CPIJ) is offering a $ 2,000 scholarship to graduate students from developing countries to attend the International Justice and Victims’ Rights Summer School (see also here). Under the direction of Jo-Anne Wemmers, Professor at the School of Criminology, the summer school will be held on May 31 to June 8, 2019 at the Montreal Centre for International Studies, University of Montreal (CÉRIUM). As the school is bilingual (French-English), students are expected to be fluent in French or English and to have at least a passive understanding of the other language. The scholarship will be used to help pay tuition, travel expenses, and stay of the student.

Application

Please send a file containing:

  • A short CV (use this format), including the list of academic and professional achievements (e.g. education, scholarships, publications, presentations at conferences);
  • A letter of motivation specifying your research interests and justifying the benefit of participating in the summer school for the advancement of your project;
  • A copy of the grades obtained in your current program;
  • A proof of current enrolment in a postsecondary institution.

Filing the application

Complete files must be emailed by Friday, March 15, 2019 at 5:00 PM to valerie.meehan@umontreal.ca as a single file in PDF format. Only complete files will be taken into account.

Siracusa International Institute’s Specialization Course in International Criminal Law: Funding available

By | Funding Opportunities, Student News, Upcoming Events

This year again, the Canadian Partnership for International Justice (CPIJ) sponsors 2 to 3 students’ attendance to the Siracusa International Institute for Criminal Justice and Human RightsSpecialization Course in International Criminal Law for Young Penalists. The 19th edition of this world-renowned course, themed “Human Rights and Criminal Justice”, will take place from June 2 to 10, 2019, in Siracusa (Italy). The program is available here. It should be noted that the course is in English.

Students of the 18th Specialization Course in International Criminal Law for Young Penalists. Photo: Siracusa Institute.

Nature of the funding

Selected students can claim funding for the following admissible expenses:[1]

  • Transportation (e.g. plane, train or bus ticket, gasoline receipts);
  • Housing;
  • Catering;
  • Registration to the course.

Application process

To apply, candidates should complete both of the following steps before March 31st, 2019:

  1. First, applicants should apply directly to the Siracusa Institute through the online application form;
  2. Second, applicants should fill the following form to seek CPIJ funding.
    1. The application must include the applicant’s resume, transcripts, passport copy as well as a motivation letter explaining how the application meets the evaluation criteria listed below.

Evaluation criteria

  • Link between the applicant and a team member or organization involved in the Partnership;
  • Link between the course and the field of study, the professional goals and the other academic/scientific activities of the applicant;
  • Fluency in English;
  • Previous funding received from CPIJ: priority is given to applicants who have never received funding from the Partnership;

Selected students will be informed promptly after the deadline of March 31st, 2019.

[1] An expense is admissible when it complies with the administrative requirements of the Social Science and Humanities Research Council of Canada (SSHRC) and of CPIJ’s host institution, Université Laval (www.sf.ulaval.ca). CPIJ could refuse to reimburse an expense that is not admissible or that subsequently becomes inadmissible after CPIJ initially accepted to fund the project. It is the student’s responsibility to verify the admissibility of the expenses. It is strongly encouraged to have all planned expenses pre-approved by CPIJ. Additional information can be provided on demand.

Sorry John McCallum, extradition doesn’t neatly divide the courts from the politicians

By | CPIJ in the Media

The ambassador and the Prime Minister stress the role of judges in the Meng case, but experts say extradition is ultimately about political decision-making

Even after all the coverage of John McCallum’s unorthodox remarks about the strong arguments he says Meng Wanzhou’s lawyers will be able to marshal to stop the Huawei executive from being extradited to the U.S., it’s still worth looking closely at exactly what Canada’s ambassador to China actually said earlier this week when he mused aloud about the sensitive case to Chinese-language media gathered near Toronto.

The overlap of law and politics: Meng Wanzhou’s extradition explained

By | CPIJ in the Media

When John McCallum, Canada’s ambassador to China, said this week that Chinese business executive Meng Wanzhou has “quite good arguments on her side” in her fight against extradition to the United States, he ignited a political storm. The Globe and Mail’s Sean Fine set out to explore the overlap between law and politics in a case that has set China and Canada on a collision course.

International Justice and Victims’ Rights Summer School

By | News, Upcoming Events

The School

The International Justice and Victims’ Rights summer school brings together internationally renowned experts, and human rights organizations in order to discuss and reflect on issues surrounding victims’ rights and international justice. In recent years, developments like the International Criminal Court, have catapulted victims’ rights into criminal justice. In order to ensure that as they evolve, victims’rights remain linked to the reality of victims and not develop into empty legal concepts that are detached from victims’ needs, it is important to have an understanding of the impact of victimization, victims’ needs and the effects of the law.

This course serves to train and engage students and professionals in the areas of law, criminology, and related disciplines in key issues regarding the rights of victims of crime and abuse of power. Organized in collaboration with the School of Criminology, the CÉRIUM, and the International Centre for Comparative Criminology, this course is an activity of the Canadian Partnership for International Justice (CPIJ), which is funded by the Social Science and Humanities Research Council of Canada.

Topics include reparation of victims of crimes against humanity, addressing the needs of victims of sexual violence in the courts, how courts handle victims who at the same time are perpetrators, as well as the place of victims in transitional justice.

This week long course consists of daily lectures by experts. Each day there are two lectures: one in the morning and one in the afternoon. Lectures are one hour and thirty minutes and are followed by a break and a discussion period. In addition, a visit to the Raoul Wallenberg Center and a meeting with a representative from the Canadian Center for International Justice are scheduled.

The school will take place from June 3 to 8, 2019. Students who will be credited are invited to attend to a welcome session on May 31st, 2019.

CPIJ is offering a $ 2,000 scholarship to a graduate student from a developing country to attend this school. See here for more information. 

Language

The school is bilingual (French-English). Students are expected to be fluent in French or English and to have at least a passive understanding of the other language. Students may submit their work in French or English.

Speakers

  • Jo-Anne Wemmers, Course Leader, Professor, School of Criminology, Université de Montréal. Researcher at the International Centre of Comparative Criminology (CICC), Head of the research team Victims, Rights and Society. Contact : jo-anne.m.wemmers@umontreal.ca
  • Fannie Lafontaine, Professor, Faculty of Law, Laval University. Canada Research Chair in International Criminal Justice and Fundamental Rights
  • Valerie Oosterveld, Associate Professor, Western Law. Associate Director, Western University’s Center for Transitional Justice and Post-Conflict Reconstruction
  • Mylène Jaccoud, Professor, School of Criminologie, Université de Montréal
  • Luke Moffett, Senior Lecturer, School of Law, Queen’s University Belfast. Researcher at The Senator George J Mitchell Institute for Global Peace, Security and Justice
  • Mark A. Drumbl, Alumni Professor of Law and Director, Transnational Law Institute, School of Law, Washington and Lee University
  • Frédéric Mégret, Associate Professor, Faculty of Law, McGill, William Dawson Scholar
  • Amissi Manirabona, Associate Professor, Faculty of Law, Université de Montréal
  • Isabelle Daignault, Associate Professor, School of Criminology, Université de Montréal. Co-director of the Centre d’étude sur le développement et l’adaptation desjeunes (CEDAJ).
  • Amanda Ghahremani Legal Consultant: International Criminal Law, Universal Jurisdiction & Redress for Survivors of Atrocity Crimes

Social activities

Participants are invited to attend an opening cocktail, as well as a closing cocktail on Saturday, where certificates of participation will be presented. Exchanges between professors, professionals and students will be encouraged in order to allow participants to expand their networks.

Registration details

The course is intended for graduate and exceptional undergraduate students in the areas of law, criminology, and related disciplines at the Université de Montréal, as well as other universities in Quebec, Canada and abroad. It is also intended for interested professionals, including lawyers working in the field of international criminal law.

Professionals will receive a certificate of participation rather than credits. Members of the Ordre des criminologues du Québec and the Barreau du Québec may be credited with this course by their professional order (conditions may apply).

Undergraduate students are required to have the authorization of their program director, an average of 3.5 out of 4.3 and have completed at least 60 university credits before enrolling.

Students can choose either to obtain 3 credits (meeting all the requirements) or obtain 1.5 credits (attending lectures and doing only part of the assignments).

Students who will be credited are invited to attend to a welcome session on May 31st, 2019.

Registration information will be updated at: https://cerium.umontreal.ca/en/programs-of-study/

Registration fees

• Government and business employees: CA $ 1,200
• General public (employees, retirees, self-employed): CA $ 1,000• NPO and NGO: CA $ 500
• Uncredited or outside Quebec students: CA $ 475
• Daily rates: CA $ 350

(Rates may change)

CPIJ is offering a $ 2,000 scholarship to a graduate student from a developing country to attend this school. See here for more information. 

Arrival

Participants from outside of Canada may require a visa to visit Canada. In order to know the steps to obtain a visa, please visit: http://www.cic.gc.ca/english/visit/tourist.asp

If required, participants can receive a letter of invitation from CÉRIUM by contacting the course leader.

Montreal-Pierre Elliott Trudeau International Airport is located on the Island of Montreal. The Montreal Transit Corporation (STM, http://www.stm.info/en) offers bus and metro service. Bus 747 runs between Trudeau Airport and the Lionel- Groulx Metro Station. The rate of this express line is $ 10, payable in exact change on the bus. At the Lionel-Groulx station, you can take the metro to get to the Université de Montréal (blue line, Université de Montréal and Côte-des-Neiges stations). To access the metro map, please visit: http://www.stm.info/en/infos/reseaux/metroTaxis are also available. Expect to pay approximately $40 for a taxi from the airport to the university.

Accommodation

It is the responsibility of participants coming from outside Montreal to find and book their accommodation. The Hotel Studios is located very close to the university (Metro station Université de Montréal) and offers the possibility of renting a single or double room for the week.

For more information and to make your reservations, please visit: http://www.zumhotel.ca/en/tariffs/

For other options, please visit: http://www.logement.umontreal.ca/trouver/temporaire.htm

Tourist activities

Montreal is a cosmopolitan and multicultural city of 4 million people from 120 different countries. Just a few steps from the university, you will find Côte-des- Neiges street where you will have access to supermarkets, pharmacies, restaurants, cafés, bookstores, among others.

The university is a short walk from Saint Joseph’s Oratory. It has easy access to the city center, the Old Port, Mount-Royal, as well as the Le Plateau and Mile-End neighborhoods, where you will find a wide offer of restaurants, cafés, boutiques, and other tourist attractions.

For more information about what to do in Montreal, please visit the Tourisme Montréal website: https://www.mtl.org/en

Looking forward to seeing you in Montreal!

The Nevsun case is heard before the Supreme Court of Canada

By | News, Press Releases

January 2019 – On 23 January 2019, co-researchers of the Canadian Partnership for International Justice intervened before the Supreme Court of Canada during the hearing of the Nevsun case. This groundbreaking case has great potential significance for human rights and corporate accountability in Canada as it is the first lawsuit whose claims are based directly on violations of international law.

The case questions whether a Canadian mining company should be held accountable for human rights violations perpetrated abroad. The British Columbia mining company Nevsun Resources Ltd. faces charges of forced labour, a form of slavery, related to the construction of the Canadian owned Bisha gold mine in Eritrea. Plaintiffs are former mine workers who have been granted the refugee status in Canada.

Jennifer Klinck, Paul Champ and Penelope Simons at the hearing. (Photo: Twitter)

In appeal before the Supreme Court of Canada, Nevsun sought immunity for its conduct based on the common law doctrine of act of state. The respondents pleaded the absence of a doctrine of corporate immunity in international law and claimed that jus cogens norms of customary international law should serve as a source for development of the Canadian common law.

CPIJ is proud that its co-researchers Penelope Simons and François Larocque intervened, together with Jennifer Klinck and Paul Champ, as representatives of Amnesty International and the International Commission of Jurists. Co-researcher Amanda Ghahremani and the Canadian Center for International Justice (CCIJ), a CPIJ partner organization, were also part of the legal team for the respondents.

The webcast of the hearing is available here, and the parties’ factums on appeal can be accessed here. Further documentation is available on CCIJ’s website.

What did Canadian mining executives know about possible human rights violations in Eritrea?

By | CPIJ in the Media

Scott Anderson | CBC News

Executives at Vancouver-based mining firm Nevsun Resources have denied direct knowledge of human rights violations at their gold and copper mine in the Bisha mining district in northern Eritrea, adjacent to Sudan. (CBC)

For years, Vancouver-based mining firm Nevsun Resources has dismissed allegations that forced labour was used to build its mine in the repressive east African country of Eritrea.

Nevsun executives have denied direct knowledge of human rights violations at their Bisha mine site in a CBC interview and during an appearance before a parliamentary committee.

But company documents filed in the Supreme Court of British Columbia last November and reviewed by CBC’s The Fifth Estate show executives at the highest level appear to have been informed of issues of forced labour at their mine site a decade ago.

Former Bisha mine workers are suing Nevsun in B.C. for alleged human rights violations — including forced labour, slavery and torture.

The company denies the allegations and has appealed the matter of whether the case can be heard in B.C. to the Supreme Court of Canada. Nevsun argues that the case should be adjudicated in Eritrea. The Supreme Court is scheduled to hear the matter on Wednesday.

The court’s decision could have a far-reaching impact on Canadian corporations operating abroad.

“The Supreme Court of Canada will be asked to rule on whether in fact it is possible in our legal system to hold a corporate citizen of Canada to account for decisions made in Canada, by a Canadian corporation, in how it will engage in business in Eritrea,” said law professor Audrey Macklin, counsel for the University of Toronto’s International Human Rights Program, which has intervener status in the Supreme Court matter.

Mass exodus

In recent years, there has been a mass exodus of hundreds of thousands of people from Eritrea, a small country of six million in the Horn of Africa. They have fled in part because of the country’s controversial national service program, which the United Nations and human rights groups have charged involves lengthy military conscription and forced labour.

“Eritrea is a human rights pariah and the use of indeterminate conscription and forced labour has been widely reported,” said Macklin. “The question would be what kind of due diligence did Nevsun do prior to its foray into Eritrea?”

Nevsun is partners with the government of Eritrea through the Bisha Mining Share Company (BMSC). The mine is 40 per cent owned by the Eritrean National Mining Corporation (ENAMCO).

The Bisha mine opened in 2011 and has produced hundreds of millions of dollars’ worth of gold, copper and zinc. For years, the mine was the only major source of revenue for the regime of President Isaias Afwerki.

But back in 2009, Nevsun was seeking financing during the construction phase of the mine when the issue of forced labour in Eritrea was raised by potential lenders.

One email filed in court, dated March 4, 2009, and written by then Nevsun CEO Cliff Davis, is headlined “Private and Confidential due to Sensitivity.”

Workers and visitors walk within the processing plant at the Bisha Mining Share Company in Eritrea on Feb. 18, 2016. (Thomas Mukoya/Reuters)

Davis writes that the lenders “have placed another obstacle in the road to finance. They assert that the country practises involuntary labour (forced labour) and before they can lend to the project, BMSC must demonstrate that the Bisha mine will not be a benefactor in any way of such labour, either directly or via any of its contractors.”

In the same email, Davis notes “we understand there are currently some National Service people working for a key contractor working at site” and that “we are in the process of determining whether the terms of employment would constitute forced labour.” Davis suggests BMSC could hire the workers directly or offer them contracts “where they could leave on their own free will.”

But Davis goes on to say “None of these solutions are palatable to the Eritreans because: 1. another Westerner telling the Eritreans how to run their country; 2. potential disruption to the national development campaign. Politically a very sensitive topic.”

‘Permeates the whole region’

As part of its due diligence, according to the documents filed in court, Nevsun and the lenders brought in U.S. social development expert Kerry Connor to review the operation. Connor is based in Washington, D.C., and has done risk reviews for mining operations around the world.

In a March 25, 2009, email from Connor to then Nevsun vice-president Trevor Moss, she refers to a conversation she had with Stan Rogers, the manager of the mine at the time.

“Just spoke with Stan,” she writes. “He recognizes it’s forced labour and says it permeates the whole country with nearly everyone in some way associated with the “program.”

“Also says no one understands the scope of the issue viz a viz project employment of program people — so we need to concentrate on this before we can determine what can be done.”

Connor later concluded in an April 2009 report, also part of the court filing, that “the project is at risk for contravention of the prohibition on the use of forced labour, as represented by the use of NS workers.”

A truck arrives to ferry excavated gold, copper and zinc ore from the main mining pit at the Bisha Mining Share Company on Feb. 17, 2016. (Thomas Mukoya/Reuters)

The workers in question were provided by an Eritrean state-owned subcontractor called Segen.

Connor also reported that “Segen, the only project sub-contractor, indicates that its project workforce is composed primarily of longtime Segen employees, complemented by some expatriates with special skills, and that no NS workers have been employed on the project.  A rapid assessment by BMSC social staff, however, found evidence of approximately 23 NS workers employed by Segen at various times on the project.”

“[Nevsun] were not avoiding it. They were very much aware of it,” Connor said in a recent interview. “They were somewhat aware of it in the beginning and the initial question was: ‘Well, is it even possible to employ a contractor who isn’t government?’ ”

‘No corroborating claims’

While the company documents filed in court would suggest Nevsun had been informed of possible forced labour at their mine site in 2009, company officials have not disclosed this information in the past.

In a 2016 documentary about the Bisha mine by The Fifth Estate, host Mark Kelley asked Todd Romaine, then Nevsun’s vice-president of corporate social responsibility: “You don’t believe there was any conscripted labour that was ever used in the development or operation of your mine?”

“We’ve done extensive investigations to date inside Eritrea and at the Bisha mine,” Romaine said. “There’s no corroborating claims to support any of the allegations being made.”

Todd Romaine, who was vice-president of corporate social responsibility at Nevsun Resources in 2016, told The Fifth Estate at the time that the company had done extensive investigations in Eritrea and at its Bisha mine. (CBC)

Romaine, who is no longer an official at the company since China’s Zijin Mining Group made a successful bid for it in December, declined to comment for this story.

In 2012, testifying in front of the parliamentary subcommittee on international human rights in Ottawa, Davis, then the company’s CEO, was asked by Liberal MP Irwin Cotler: “So you are not aware yourself of any human rights violations in Eritrea?”

Davis responded: “I’m certainly not directly aware at all. All I have is the same access that you have with respect to the internet, and postings on the internet, and articles.”

When Cotler asked again: “So you have received no reports of any human rights violations while you have been in Eritrea?” Davis replied: “No.”

Now retired from Nevsun, Davis did not return calls for comment.

Longstanding skepticism

The Eritrean plaintiffs have made an application to the B.C. Supreme Court to join Davis personally as a defendant in the lawsuit.

Davis’s lawyer, Stephen Schachter, said “the matter is before the court and Mr. Davis will simply advise you that that’s the case. He’s not going to be commenting on a matter before the court.”

In 2013, Human Rights Watch published a report on alleged human rights violations at the Bisha mine.

In a meeting with Human Rights Watch, “Nevsun did not acknowledge that Segen had used conscript labourers at Bisha, but neither did it rule out the possibility,” the report said.

In a January 2013 media release, Nevsun said that the company “expresses regret if certain employees of Segen were conscripts four years ago, in the early part of the Bisha Mine’s construction phase.”

But Human Rights Watch has always been skeptical of Nevsun’s position.

“It defies belief that Nevsun did not know that a state contractor would be using national service labour,” Felix Horne, senior researcher at Human Rights Watch, said in a recent interview.

“The Nevsun experience is an important lesson for the other international mining companies that are operating in Eritrea, that unless proper procedures are put in place from the beginning, you will likely be using national service labour for the development of your mine.”

More investigation

Nevsun has maintained that it screens for military conscripts — requiring proof that their workers are no longer in the national service program.

In response to concerns raised by the United Nations, Nevsun also conducted further investigation by another social responsibility expert.

“I am very confident that there’s no forced labour, there’s no national service used either in the direct workforce or in the Eritrean contractors that provide labour or transportation or security guards to the Bisha mine,” Montreal human rights lawyer Lloyd Lipsett told The Fifth Estate in 2016.

But according to the company documents filed in court last November, forced labour at its mine site was not the only possible human rights violation Nevsun executives became aware of early on. Eritrean officials were also arresting workers off their mine site without clear cause.

In a June 28, 2010, email under the subject line “Staff Arrests,” mine manager Stan Rogers writes to Davis: “Cliff, I think that brings the number to seven or eight!! We of course have no idea why they have been taken away.” Rogers signs off on the email: “Great Country…:-)”

A general view shows the sag mill and ball mill within the processing plant at the Bisha Mining Share Company. (Thomas Mukoya/Reuters)

An Aug. 5, 2010, memorandum from a company executive to Nevsun’s audit committee reviewed “allegations of fraud” that the Eritreans apparently provided as the reason for the arrests.

“Over the past three months, five BMSC staff have been arrested by Eritrean authorities,” the memo said. “According to BMSC senior management, the Eritrean state has alleged the employees were involved in various frauds including the theft of food and fuel inventories and kickbacks on purchasing.”

But the memo goes on to report that it “should be emphasized that no evidence of fraud has been uncovered by BMSC management or received from the Eritrean state. However, ENAMCO personnel have confirmed to BMSC management that the employees have confessed to having a role in the frauds.”

At the time of publication, Nevsun had not officially responded to a request for comment.

Source: https://www.cbc.ca/amp/1.4980530

The sovereignty of states and multinational corporate accountability

By | CPIJ in the Media

Justin Ling | The National

In 1897, a U.S. citizen living in Venezuela, George F. Underhill, brought a suit in a New York court to recover damages against the revolutionary Venezuelan General Hernandez, who had occupied part of the country and had effectively tried to nationalize his business.

Damage was done, the American claimed, and he wanted to be made whole.

The U.S. Supreme Court ultimately ruled against Underhill, in a decision that would enshrine the Act of State Doctrine as a general rule of thumb for modern Western legal systems.

“Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory,” U.S. Chief Justice Melville Fuller then wrote.

Later this month, the Supreme Court of Canada will hear Nevsun Resources v Gize Yebeyo Araya, a case that will put the Act of State Doctrine to its first test in a Canadian court.  The case will serve to gauge the extent to which international human rights law has a footing in the Canadian legal system.

Abuse, torture, conscription

To read Nevsun Resources’ profile of its Bisha mine, nothing sounds amiss at all. The mine is located in the middle of Eritrea, on Africa’s northeast coast. A joint project between Nevsun and the government of Eritrea, it extracts copper, zinc, gold, and silver.

“The government of Eritrea continues to show its strong support to the development of mining as an important sector of its national economy,” Nevsun’s website reads. It reports that the country is a “single party state,” without mentioning that Eritrea is one of the most repressive states in the world.

A 2018 Human Rights Watch report concluded that the country functions as a “one-man dictatorship” and that “it has no legislature, no independent civil society organizations or media outlets, and no independent judiciary.”

What’s more, the NGO reports, “every Eritrean must serve an indeterminate period of ‘national service’ after turning 18, with many ending up serving for well over a decade.” Often, that amounts to “work as forced laborers on private and public works projects.”

The three litigants bringing the case before the Supreme Court are refugees from Eritrea — two currently living in the United States, and one a permanent resident of Canada.

The three allege they were pressed into “national service.”

A factum filed in advance of the January 23 hearing reads: “They allege that during the construction of the mine, they were forced to work in inhumane conditions and under the constant threat of physical punishment, torture, and imprisonment.”

Those claims have not been proven in court.

Torts, existing and novel

In light of the alleged abuses visited on its workers, the three refugees sought to bring a claim against Nevsun in a B.C. court.

Their factum lays out their argument that Nevsun was complicit in “assault, battery, conversion, unlawful confinement, and negligence.” Those are, they note, existing torts in Canadian common law.

And this is where the argument gets interesting. The claim is seeking to enter in an array of other claims, based in customary international law. They’re alleging not just that Nevsun is guilty of allowing forced labour, slavery, crimes against humanity, and cruel, inhuman, or degrading treatment, but that such actions are actionable in Canadian courts.

François Larocque is a law professor at the University of Ottawa and serves as counsel with Power Law and has written the book — in fact, several books — on how international human rights can be incorporated into Canadian law. He is also serving as co-counsel for Amnesty International, who has been granted leave to intervene on the Nevsun case.

“There is a definitely a tort here,” he argues. The real question, he says, is whether this case, should it be allowed to proceed, should rest only on “garden-variety torts,” or whether it can enter in these new torts rooted in international law.

“I have long held the view that Canadian courts can and should use their inherent jurisdiction to recognize new categories of liability based on customary international law,” he says. He cites R v Hape, from 2007, a case in which the majority concluded that “customary international law should be incorporated into domestic law in the absence of conflicting legislation.” Says Larocque: “Our side believes that Nevsun is such a case.”

The Act of State Doctrine

Nevsun sought to have the case dismissed at its first stage.

The company countered that the Act of State Doctrine protects it from such claims; that the torts based in customary international law could not be litigated; that Canadian courts were not the appropriate forum; and that the suit could not be considered a representative action.

At trial, Nevsun failed in its effort to have the case dismissed either on the basis of the Act of State Doctrine or on the basis that the torts being alleged couldn’t be entered into Canadian common law. The British Columbia Court of Appeal also rejected Nevsun’s appeal to dismiss the suit.

Nevsun’s claim of forum non conveniens was rejected by both courts and isn’t being appealed to the top court. The respondents abandoned their claim that the suit is a representative action and have instead added 80 plaintiffs, over 10 separate actions.

Nevsun’s invocation of the Act of State Doctrine is novel in Canadian courts, but — as the 1897 suit against the Venezuelan general shows — it’s a very old concept. The company contends in its written arguments that the case can’t even be heard, as “adjudicating those claims will inevitably require a Canadian court to rule on the lawfulness of the official acts of the State of Eritrea.” It’s an argument, Nevsun says, that is central to international comity. Ruling on the lawfulness of Eritrea’s national conscription service would turn Canadian courts into “arbiters of foreign states’ international and domestic obligations.”

Nevsun also invokes R. v Hape, in which the majority court wrote that “to preserve sovereignty and equality, the rights and powers of all states carry correlative duties, at the apex of which sits the principle of non-intervention.”

And non-intervention is the best policy here, Nevsun says.

At the Supreme Court of British Columbia, that application of the doctrine was labelled as “draconian” by the presiding justice.

“I think it’s going to be a hard road for them,” says Penelope Simons, an associate professor of law at the University of Ottawa who is Larocque’s co-counsel representing Amnesty International at the Supreme Court later this month. “It’s not something the Canadian courts have ever applied.”

Larocque also figures there is little judicial appetite for the doctrine. Frankly, he says, it’s not crucial to Canadian law. “Most cases in which it can potentially be said to arise can be dealt with under the law of state immunity, which is a much more established framework.”

What’s more, as the respondents point out, the United Kingdom and Australia have already limited the doctrine in almost precisely the manner that is being requested here.

Open the floodgates?

Should the Supreme Court take the same view, limiting the application of the Act of State Doctrine, the conclusion would be that torts based in customary international human rights law can be tried in Canadian courts. This would represent a significant shift in the law, especially for the mining companies that call Canada home.

The outcome of two other cases before the courts could be affected, depending on how the court finds in Nevsun — one against Tahoe Resources, and another against Hudbay Resources.

Should the respondents carry the day, it will represent one of the first times that a case of this nature will actually proceed to the merits.

“It would be important because it could potentially eliminate some of the obstacles in bringing some of these cases to Canada,” Simons says.

If those obstacles are to be dismantled, Nevsun argues, it should be up to Parliament to decide. Even recognizing those torts based in international law is “a major and complex revision to domestic common law.”

Simons pushes back on this reasoning. “Not all cases of corporate misdemeanour can be turned into civil suits,” she told CBA National. “You’re not going to have the facts for some of these types of cases.” Never mind that the prohibitive cost of bringing these cases forward before they can even be argued on the merits.

According to Larocque, it’s not going to be a free-for-all if the plaintiffs win. He adds that a lot will be determined by the top court’s phrasing. If they craft an opening for these new, international, torts, “I expect they will do so cautiously and with clear parameters for the future.”

Even then, there are limitations on what types of international law could be deployed in Canadian common law. Not every UN treaty can be wedged into a tort, Larocque says. To be employed in such a way, a prospective litigant would need to establish that, “the treaty has been fully implemented by Canada through legislation; the treaty contemplates the possibility of civil remedies through the courts; and the treaty applies [to] the specific alleged violation.”

Also, limiting the scope of the Act of State Doctrine and entering those torts into the common law doesn’t necessarily mean a flood of cases are on the way.

“There are legal obstacles, but there are also practical obstacles,” Simons says.

Daniel Baum, a lawyer with Langois in Montreal, says Nevsun v Araya may not be one-of-a-kind — but it’s pretty close. “The facts here are quite specific,” he says. Finding these kind of situations are like “catching lightning in a bottle.”

A blinking radar

Ultimately, what the court says, and how it says it, is going to mean a lot for Canadian-based companies operating abroad.

If the court allows the case to proceed on its merits, virtually every Canadian company carrying on business in states with poor human rights records may have to significantly reassess their liability.

“The radar is already blinking,” Baum says. “Now it’s a matter of waiting for how the court is going to pronounce itself, so companies can have a better sense on how to react to this.” He emphasizes that it’s not a matter of will companies react to the decision, it’s how.

Even if the litigants lose, companies will need to start preparing. Short of the court writing a unanimous decision endorsing the Act of State Doctrine — an unlikely scenario —the courts appear to be leaning towards some integration of international human rights law into Canadian common law.

Liability will drive companies to draft guidelines, policies, and procedures to minimize that risk, Baum expects. But could also dictate how, and where, companies pursue new ventures.

“Right now, uncertainty is at its height.”

Source: http://www.nationalmagazine.ca/Articles/January-2019/The-sovereignty-of-states-and-multinational-corpor.aspx

Valérie Meehan

By | Uncategorized

Valérie Meehan is completing her Master degree on reconciliation between indigenous and non-indigenous people in Canada, at the School of Criminology in Montreal. Her research interests include law enforcement, transitional justice and indigenous issues. She is also teaching assistant of the summer school International Justice and Victim’s Rights directed by Professor Jo-Anne Wemmers. She is also working part-time at the Institut universitaire sur les dépendances, Montreal, as a research assistant on studies addressing harm reduction and services offered to people living with opioid addictions. Prior to starting her Master, she obtained a Bachelor degree with distinction in Security and Police Studies from the School of Criminology, Université de Montréal. She also worked several years for the Royal Canadian Mounted Police’s criminal intelligence analysis, focusing on national and international level investigations.