The Domestic Application of International Human Rights Law: Canada Supreme Court’s Decision on the Abuse of Eritrea’s Mine Workers

Yıl 2020, Cilt: 2 Sayı: 2, 153 - 173, 31.12.2020

Eronmwon Joyce Irogue

Öz

On February 28, 2020, the Supreme Court of Canada gave a majority decision which may change the face of corporate liability for human rights violations perpetrated outside Canada. In the past, claimants had brought actions of human rights violations such as forced labor, slavery and torture against corporations using tort law but, with the recent decision which emanated from an appeal on a motion to dismiss by Nevsun Resources Limited in Nevsun v Araya, claimants now have a shot at bringing their actions under Customary International Law per the Supreme Court’s decision that Customary International Law is a part of the Canadian Common Law so long as the law does not contradict the existing law in Canada. The plaintiffs in this case claimed several human rights violations against Nevsun including forced labor and slavery. While Nevsun sought for the matter to be struck out under the ground that the alleged acts occurred outside the jurisdiction of Canada therefore, Canada was not the proper forum to hear the case. The majority reasoned that the human rights norms said to have been violated belonged to the class of Customary International Law that permitted no derogation (Jus Cogens) hence; it was automatically incorporated into the law of Canada. But the dissenting opinion held that the acts alleged where acts of a foreign state (Eritrea) because, Nevsun was acting in agreement with the Eritrean government and Canada cannot sit over the act of another state. The facts, decision and argument of the case led this research to explore the mass exodus and trafficking of women including children whereby, women were subjected to sexual exploitation and torture both within Eritrea and on the road to a supposed promised land, as a result of the hostile political situation in Eritrea. Researching this case has not been without challenges as there were conflicting data on the state of women in the Eritrean due to state fed data provided by the Eritrean government or the lack of it therefore, this research is not conclusive in that aspect.

Anahtar Kelimeler

Human Rights, Torture, Slavery, Trafficking, Forced Labor

THE DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS LAW: Canada Supreme Court’s Decision on the Abuse of Eritrea’s Mine Workers

Öz

On February 28, 2020, the Supreme Court of Canada gave a majority decision which may change the face of corporate liability for human rights violations perpetrated outside Canada. In the past, claimants had brought actions of human rights violations such as forced labor, slavery and torture against corporations using tort law but, with the recent decision which emanated from an appeal on a motion to dismiss by Nevsun Resources Limited in Nevsun v Araya, claimants now have a shot at bringing their actions under Customary International Law per the Supreme Court’s decision that Customary International Law is a part of the Canadian Common Law so long as the law does not contradict the existing law in Canada. The plaintiffs in this case claimed several human rights violations against Nevsun including forced labor and slavery. While Nevsun sought for the matter to be struck out under the ground that the alleged acts occurred outside the jurisdiction of Canada therefore, Canada was not the proper forum to hear the case. The majority reasoned that the human rights norms said to have been violated belonged to the class of Customary International Law that permitted no derogation (Jus Cogens) hence; it was automatically incorporated into the law of Canada. But the dissenting opinion held that the acts alleged where acts of a foreign state (Eritrea) because, Nevsun was acting in agreement with the Eritrean government and Canada cannot sit over the act of another state. The facts, decision and argument of the case led this research to explore the mass exodus and trafficking of women including children whereby, women were subjected to sexual exploitation and torture both within Eritrea and on the road to a supposed promised land, as a result of the hostile political situation in Eritrea. Researching this case has not been without challenges as there were conflicting data on the state of women in the Eritrean due to state fed data provided by the Eritrean government or the lack of it therefore, this research is not conclusive in that aspect.

Anahtar Kelimeler

Human Rights, Trafficking, Slavery, Forced labor, Torture

Kaynakça

• Abdi Latif Dahir, Africa is Again the World Epicenter of Modern-Day Slavery, https://qz.com/africa/1333946/global-slavery-index-africa-has-the-highest-rate-of-modern-day-slavery-in-the-world/
• Andrew Findlay, Canadian Mining Companies Will Now Face Human Rights Charges in Canadi-an Courts, https://thenarwhal.ca/canadian-mining-companies-will-now-face-human-rights-charges-in-canadian-courts/
• Araya v. Nevsun Resources Ltd., 2016 BCSC 1856 (CanLII), <http://canlii.ca/t/gv11z>, retrieved on 2020-03-15. See also 408 DLR (4th) 383 — [2016] CarswellBC 2786 — [2016] BCJ No 2095 (QL).
• Atelier Aftab, “The Radical Implications of Nevsun: Corporate Responsibility and Liability un-der Customary International Law” https://atelieraftab.com/insight/the-radical-implications-of-nevsun-corporate-responsibility-and-liability-under-customary-international-law#_ftn2 accessed 10 May, 2020
• Canadian Human Rights Commission, Human Rights In Canada, https://www.chrc-ccdp.gc.ca/eng/content/human-rights-in-canada#:~:text=
• Canadian Human Rights Commission, Human Rights In Canada, https://www.chrc-ccdp.gc.ca/eng/content/human-rights-in-canada#:~:text=
• Cornell Law School, Legal Information Institute, https://www.law.cornell.edu/wex/forum_non_conveniens