CPIJ in the Media

Canadian Partnership for International Justice wins SSHRC 2022 Partnership Award

By CPIJ in the Media, News, Press Releases

Today, December 1, 2022, the Social Sciences and Humanities Research Council (SSHRC) will present the 2022 Partnership Award to the Canadian Partnership for International Justice (CPIJ) during a televised ceremony at the Canadian War Museum in Ottawa.

The award recognizes the contribution of a SSHRC-funded partnership that, through mutual co-operation and shared intellectual leadership and resources, has demonstrated impact and influence within or beyond the social sciences and humanities research community. The award is one of five Impact Awards which recognize the achievements of Canada’s top researchers in social sciences and humanities.

Led by Professor Fannie Lafontaine (Université Laval), the CPIJ is a pan-Canadian partnership of 25 researchers from 8 universities, 4 university-based legal clinics and 3 non-governmental organizations, which aims to strengthen access to justice for victims of international crimes such as genocide, crimes against humanity and war crimes.

CPIJ’s activities emphasized the urgency of addressing violent crisis to prevent atrocities, punish perpetrators, reconcile victims and perpetrators, and identify the root causes of these crisis in order to achieve a stable peace. Everywhere, in specialized forums or in the field, close to the fieldworkers, CPIJ has brought together, trained, informed, connected and sensitized thousands of people.

In addition to contributing to the defence of human rights and the construction of a just and inclusive society, CPIJ changed the way research is done by establishing a cross-sectoral collaboration between universities, legal clinics, NGOs and international organizations which provides cross-sectional views on the challenges of the fight against impunity, where each person’s expertise is shared and nourished by those of others.

Through this collective and inclusive approach, CPIJ promoted access to justice for victims of serious human rights violations. Its work was a milestone in the fight against systemic racism and discrimination in Canada and beyond. By organizing more than 60 events of all kinds and producing more than 200 scholarly texts that have been disseminated in several languages, including to civil society, through media articles, blogs and interviews, CPIJ increased knowledge on international justice and raised awareness about the fight against impunity.

In particular, it helped to create a multinational cohort of students (600 of whom were trained in legal clinics) with the knowledge, practical training and diverse network who are the future of international justice.

The award, which comes with a $50,000 grant, will enable CPIJ to continue and promote its research.

Lost in the SNC-Lavalin controversy are the Libyan victims

By CPIJ in the Media, News

Joanna Harrington | Policy Options | 21 August 2019 |

Any financial penalties would be paid in Quebec. But prosecutors need to find a way to provide redress for the foreign victims of economic crime.

The SNC-Lavalin affair is about many things. It’s about conflict of interest, pressure from the prime minister and whether to split the roles of the attorney general and the minister of justice. It’s also about the collateral impact of a corporate prosecution on employees, pensioners and shareholders. And it’s about corporations lobbying to change the Criminal Code and retaining former judges whose star power gets them a chat with a minister’s officials. All of these themes can be found in the Ethics Commissioner’s report of August 14, 2019.

SNC-Lavalin case shows why we should review foreign corruption laws

By CPIJ in the Media, News

Joanna Harrington | The Conversation

26 February 2019 – The controversy in Canada involving Québec-based corporate giant SNC-Lavalin highlights the need for a parliamentary review of the legal scheme for fighting foreign corruption.

Underpinning the scandal is a corporate criminal prosecution for the alleged bribery of Libyan officials by SNC-Lavalin officials and the question of a plea deal. Since corporations cannot do jail time, a fine is the obvious punishment. But how large should the fine be, and with what consequences? Should SNC-Lavalin be barred from consideration for future government contracts?

The SNC-Lavalin headquarters in Montreal. THE CANADIAN PRESS/Paul Chiasson

It was only in 1999 — almost 20 years to the day of the Globe and Mail‘s report about allegations that Canada’s former attorney general felt pressured to help SNC-Lavalin — that the bribery of a foreign public official became a crime under Canadian law.

Until then, paying a bribe or kickback to secure a contract abroad was seen as the cost of doing business in a foreign land.

Pushed as a fast-tracked initiative, with all-party support, passage of the Corruption of Foreign Public Officials Act was a foregone conclusion. Introduced in the Senate in December 1998, the law received only two days of parliamentary consideration, before it was brought into force in February 1999.

Speedy passage, however, meant that Parliament had not set aside any time to consider the more delicate details, such as the role of plea deals to save court time. And parliamentarians had failed to consider the question of who are the victims of foreign corruption, because plea deals are likely to involve the payment of a victim surcharge to fund victims assistance programs.

Why was Canada so keen to rush this new law into place? The answer lies in international pressure.

The OECD Anti-Bribery Convention

In mid-1998, Canada and other G8 states made a commitment to ratify the Organisation for Economic Co-operation and Development’s (OECD) Anti-Bribery Convention before the year’s end. The OECD is the international club of countries with advanced economies.

It was this keenness to join that led Canadian parliamentarians to accept the Corruption of Foreign Public Officials Act, the legislation that put into motion the OECD convention’s terms. Those terms include a provision that the investigation and prosecution of foreign bribery “shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

Canada also accepted the supply-side focus of the OECD’s approach — often called active bribery — as it focuses on the conduct of the one offering the bribes. But the demand side of foreign bribery isn’t always passive if an individual recipient encourages a corporate payment, and so the demand-side aspect is worthy of further parliamentary review in Canada.

Indeed, after a study in 2008, the Law Commission of England and Walesconcluded there should be two general offences of bribery, one for the conduct of the payer and the other for the conduct of the recipient.

Illegal to offer rewards to foreign officials

Corruption takes a variety of forms, with bribery being the standard offence for addressing corruption in the public sphere.

With the Canadian Corruption of Foreign Public Officials Act in place, it is illegal to offer undue rewards to foreign public officials to obtain improper advantages in the conduct of international business. The act has created work for business lawyers offering compliance advice.

There have been few convictions under Canada’s anti-rbribe. Shutterstock

But the act has also fostered disappointment. In 20 years, there have only been four convictions. Three convictions, secured by guilty pleas, have involved Alberta-based companies in the oil-and-gas sector, while the fourth concerned an Ottawa-based individual in the technology sector.

There’s rarely any mention of the tally of closed investigations, acquittals and stayed proceedings. That tally includes the 2017 acquittal of several people associated with SNC-Lavalin and a bridge development project in Bangladesh; the same bridge project that led to SNC-Lavalin’s negotiated acceptance of World Bank debarment in 2013.

Critiques lead to amendments

Criticism of Canada’s performance under the act has resulted in amendments in 2013. And in 2014, new transparency measures were imposed on the natural resources sector.

In 2017, the law’s reach was extended, at last, to cover all forms of bribes, and in 2018, a Canadian version of the deferred prosecution agreement, pioneered in the United States, was added to prosecutors’ toolboxes.

But Canada’s legislative scheme has not kept pace with the multi-jurisdictional realities of fighting foreign corruption.

In its 2018 annual report to Parliament, Global Affairs Canada continued to hail the $10.3 million fine paid by Griffiths Energy International as “the largest to date under the CFPOA.” But no mention is made of the English Court of Appeal’s assessment that this was a “relatively modest sum” given the surge in share value for the successor company in the United Kingdom.

Corruption violates integrity

It is often said that “corruption is not a victimless crime.”

And no less a body than the Supreme Court of Canada has opined that: “Corruption … undermines confidence in public institutions, diverts funds from those who are in great need of financial support, and violates business integrity.”

But more work is needed from Parliament on the definition of a victim. Past plea deals have included the payment of sizeable victim surcharge fees into provincial victims-of-crime funds.

But how do these funds offer assistance to the victims of foreign bribery in, say, Bangadesh or Chad, or to a company’s employees in Canada?

Lastly, there is the larger question, now ripe for review, about the hope placed on using criminal law to secure the often-stated goal of securing a level playing field for Canadian companies operating abroad.

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.

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.


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.”


Penelope Simons on getting companies to respect human rights

By CPIJ in the Media, News

Yves Faguy | CBA National

This week, the Corporate Human Rights Benchmark (CHRB) published its 2018 report, concluding that most of the 100 companies reviewed are failing to live up to their duties under the UN Guiding Principles on Business and Human Rights.  Prior to the report’s release, CBA National interviewed Professor Penelope Simons of the University of Ottawa and the recipient of the 2018 Walter S. Tarnopolsky Award, recognized for her contribution to human rights, domestically and internationally, about how to address corporate complicity in human rights abuses.

CBA National: Can you give us a sense first of where we’re at in terms of corporate accountability for human rights violations?

Penelope Simons: This issue has been debated globally for decades. But in the early 2000s, the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises which were submitted to what is now the Human Rights Council. The HRC rejected them. The Norms were drafted in mandatory language and were essentially a blueprint for a treaty that would impose binding legal obligations on business actors. Both states and businesses were strongly against the development of such obligations. However, the HRC did appoint, Harvard professor John Ruggie, as the Special Representative of the Secretary General on Business and Human Rights. He developed a policy framework and the United Nations Guiding Principles on Business and Human Rights (UNGPs) to operationalize the policy framework. In 2011 the Human Rights Council unanimously endorsed the Guiding Principles. This was an important step forward, to have widely accepted document addressing business and human rights. However, the UNGPs are also flawed in a number of ways.

N: How so?

PS: They did not significantly alter the status quo, in the sense that they outline the binding human rights obligations of states to protect individuals and groups from violations of human rights by business actors. At the same time the “obligations” delineated in the Guiding Principles for businesses to respect human rights are based in social not legal responsibility. In order to demonstrate that they are fulfilling this obligation to respect human rights, businesses are supposed to engage in human rights due diligence, among other things. But unless this is mandated by a state, or mandated by international law, then they may or may not do so. In other words, their social obligation is self-regulation. Additionally, the Guiding Principles articulated a very conservative view of the obligation of home states to regulate the transnational activities of their corporate nationals beyond their territory.

N: So home states – and not just host states – should be enforcing these as legal obligations?

PS: Yes, home states should be taking action to regulate corporate nationals to ensure that they do not violate human rights when operating in other countries.

N: So how is Canada faring in all of this compared to other countries?

PS: I don’t think there is any country that is doing enough. France probably has the most progressive law, where companies of a certain size have an obligation to prepare a vigilance plan and implement it within their corporate group and their supply chain. In Canada, we’ve had 20 years of advocacy and UN bodies calling on Canada to regulate its extractive industry and to provide access to justice in Canadian courts and other non-judicial fora. This year, the Liberal government announced the creation of the Canadian Ombudsperson for Responsible Enterprise. This is an important step forward. People claiming to be victims of corporate-related human rights violations by Canadian extractive and garment companies operating abroad will be able to bring a complaint to this ombudsperson. The Ombudsperson is supposed to have the power to compel witnesses and documents. However, the office hasn’t been established, and so we still don’t know whether or not it will have those powers. Without those powers, it will not be a credible and effective complaint mechanism. Another point is that, Canada continues to use the same 2014 policy for corporate social responsibility in the extractive sector that it inherited from the previous government. The policy is vaguely worded, and is based on self-regulation. It encourages businesses to “align their practices as applicable” to a range of intergovernmental and multistakeholder initiatives. And it doesn’t meet the requirements of the Guiding Principles on Business and Human Rights. We need to deal with that.

N: How?

PS: There are many ways in which the government supports business abroad — through the Canada Pension Plan, through support by Export Development Canada, through corporate law rules that facilitate the creation of complex corporate structures and allow corporate groups to minimize their exposure to liability, even where such liability arises from serious human rights violations. We also support our companies through trade missions, and by negotiating international investment agreements with countries, including those in which Canadian extractives operate. These latter agreements create strong protections for investors and allow them to avoid domestic courts and to take host states directly binding international arbitration. If we’re supporting businesses in all of these ways without regard for their behaviour, then as a country we are complicit in those human rights violations.

N: So governments should exercise more leverage over those companies?

PS: Yes, there are many ways to do this. For example, as a condition of support EDC should require companies to engage in rigorous human rights due diligence and should itself undertake a human rights impact assessment of a proposed project. If it’s clear that that a project cannot be undertaken without violating human rights, then should we actually be supporting that company?

N: So what needs to change for governments – here in Canada or elsewhere – to decide they need to incentivize companies in this manner?

PS: That’s the big question. How do we develop political will for this? The Intergovernmental Panel on Climate Change’s recent report is a wake-up call. The IPCC has called on us to change the way we live and do business if we want to avoid a temperature rise of 1.5 degrees Celsius. The report notes that sustainable development is key and that “[s]ocial justice and equity are core aspects of climate-resilient development pathways … as they address challenges and inevitable trade-offs, they widen opportunities, and ensure that options, visions and values are deliberated between and within countries and communities, without making the poor and disadvantaged worse-off”. The action that we take has to be focused on that. Here in Canada we have to think about how extractive companies contribute directly to climate change, particularly oil and gas and coal, but also how they contribute to indirectly. Many of them operate in a way that is unsustainable, through their impacts on the environment and on the human rights of individuals and communities.

N: What would be a first good step to ensure better corporate accountability?

PS: The first step would be for Canada to adopt a comprehensive legislative framework that requires companies to respect human rights and to engage in human rights due diligence, and the latter should be overseen by an independent monitoring body. It should also include a range of incentive mechanisms —we’ve talked about some already. We also need to establish parent company or even enterprise liability in Canadian courts for companies that violate human rights abroad, and maybe certain reporting obligations. Finally, where companies commit or are complicit in criminal activity — like slavery, torture, forced labour, gang rape – then we need criminal sanctions to allow prosecution of corporations and the senior officers responsible for decisions that led to such conduct.

The Tarnopolsky Award is given by the Canadian Section of the International Commission of Jurists each year to a Canadian resident who has made an outstanding contribution to human rights, domestically or internationally. The selection committee is comprised of one representative from the Canadian Bar Association, the Canadian Judges’ Conference, the Canadian Society of Law Teachers and the ICJ.


News Release – Canadian Human Rights Commission welcomes new part-time Commissioner

By CPIJ in the Media, News

Press release of the Canadian Human Rights Commission

November 22, 2018 – Ottawa, Ontario – Canadian Human Rights Commission

The Canadian Human Rights Commission (CHRC) is pleased to announce the appointment, by Order in Council, of a new part-time Commissioner, Dr. Joanna Harrington, effective immediately.

Dr. Harrington has been a career law professor for almost 20 years, having taught at the University of Nottingham, Western University and the University of Alberta, where she currently serves as a Full Professor within the Faculty of Law.

Her teaching and research activities focus on topics at the intersection of constitutional law and international law, with her published work examining matters of foreign relations law, the law of international organizations, the interplay between national bills of rights and international human rights law, and issues of international and transnational criminal law.
A former Scholar-in-Residence with Canada’s Department of Foreign Affairs, she has also participated in the negotiation of new international instruments at the United Nations, the Organization of American States, and the Assembly of States Parties to the Rome Statute of the International Criminal Court.

She is well published on a variety of topics and is an award-winning legal scholar, having received the Canadian Association of Law Teachers Prize for Academic Excellence in 2018. Dr. Harrington has also worked as a consultant with international and national institutions, participated in outreach programs with NGOs, and contributed to training programs in international law for judges, diplomats and military officers.

She holds a B.A. from the University of British Columbia, a J.D. from the University of Victoria, and a Ph.D. in Law from the University of Cambridge. Dr. Harrington was called to the bar of British Columbia in 1995 and the bar of Ontario in 2002.