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Nevsun: A Ray of Hope in a Darkening Landscape?

Published online by Cambridge University Press:  03 August 2020

Upendra BAXI
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Abstract

This article explores some aspects of the Canadian Supreme Court’s decision on Nevsun Resources v Araya in the light of its exposition on the act of state doctrine and application of core human rights as an integral aspect of international customary law and common law. It examines the Nevsun decision in the context of recent statutory developments in France and the Netherlands, the promised law reform in the European Union, and the proposed business and human rights treaty. I argue that it is high time to abandon the doctrinal fossil that human rights obligations do not apply to corporate governance and operations. It is hoped that COVID-19 contexts, and a post-pandemic world, will expeditiously result in the willing adoption of a treaty on business and human rights.

Keywords

act of statebusiness and human rights treatycorporate liabilityinternational customary lawjus cogens
Type
Scholarly Article
Information
Business and Human Rights Journal , Volume 5 , Issue 2 , July 2020 , pp. 241 - 251
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

Emeritus Professor of Law, University of Warwick, UK; Emeritus Professor of Law, University of Delhi, India. The author declares no conflict of interest.

References

1 Nevsun Resources Ltd v Araya, 2020 SCC 5. The-International Human Rights Program, University of Toronto Faculty of Law, Earth Rights International, Global Justice Clinic at New York University School of Law, Amnesty International Canada, International Commission of Jurists, Mining Association of Canada and Mining Watch Canada were the Interveners. The well-recognized technique of intervention embodies, and creatively modifies, the spirit of Article 38(1)(d) of the Statute of the International Court of Justice, which recognises ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’.

2 Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013). Ingrid Wuerth discusses this decision in an excellent analysis: Ingrid Wuerth, ‘The Supreme Court and the Alien Tort Statute: Kiobel v Royal Dutch Petroleum Co.’, Vanderbilt University Law School Public Law and Legal Theory Working Paper No 13–26, http://ssrn.com/abstract_id=2264323 (accessed 2 August 2015). See also Grear, Anna and Weston, Burns H, ‘The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a Post-Kiobel Lawscape’ (2015) 15 Human Rights Law Review 21CrossRefGoogle Scholar; and Baxi, Upendra, ‘Human Rights Responsibility of Multinational Corporations, Political Ecology of Injustice: Learning from Bhopal Thirty Plus?’ (2016) 1 Business and Human Rights Journal 21CrossRefGoogle Scholar. See also, for a different genealogy of human rights, Grear, Anna, ‘“Framing the Project” of International Human Rights Law: Reflections on a Dysfunctional “Family” of the Universal Declaration’, in Gearty, Adam and Douzinas, Costas (eds), The Cambridge Companion to Human Rights Law (Cambridge: Cambridge University Press, 2012) 17CrossRefGoogle Scholar.

3 Jesner v Arab Bank 138 S Ct 1386 (2018).

4 Stephens, Beth, ‘The Rise and Fall of the Alien Tort Statute’ in Deva, Surya and Birchall, David (eds), Research Handbook on Human Rights and Business (Cheltenham: Edward Elgar, 2020) 46Google Scholar.

5 BHRRC, ‘Companies & Investors in Support of Mandatory Human Rights Due Diligence’, https://www.business-humanrights.org/en/mandatory-due-diligence/companies-investors-in-support-of-mandatory-human-rights-due-diligence (accessed 5 June 2020).

6 See, for example, ‘Joint Business Response to the Revised Draft UN Treaty’ (October 2019), https://www.ioe-emp.org/index.php?eID=dumpFile&t=f&f=145680&token=9dbcc1f8414128d575cd6bef9f36b84ec106a386 (accessed 5 June 2020).

7 See Lawrence O Gostin et al, ‘Harnessing the Power of Law for Global Health and Sustainable Development’ (2019) 393:10183 Lancet 1857; António Guterres, ‘We Are All in This Together: Human Rights and COVID-19 Response and Recovery’ (23 April 2020), https://www.un.org/en/un-coronavirus-communications-team/we-are-all-together-human-rights-and-covid-19-response-and (accessed 5 June 2020).

8 See, for example, Coalition for Human Rights in Development, Uncalculated Risks: Threat Against Human Rights Defenders and the Role of Development Financiers (May 2019), https://www.ciel.org/wp-content/uploads/2019/06/Uncalculated-Risks.pdf (accessed 5 June 2020). The UN Working Group on Business and Human Rights is developing guidance for states and businesses to protect human rights defenders: ‘Human Rights Defenders and Civic Space – The Business and Human Rights Dimension’, https://www.ohchr.org/EN/Issues/Business/Pages/HRDefendersCivicSpace.aspx (accessed 5 June 2020).

9 See Baxi, note 2.

10 Human Rights Commission, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).

11 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011). The expression ‘business and human rights’ has now become a term of art. Surya Deva has recently proposed that it ‘can be analysed in terms of three broad eras each with a distinct thrust: the “business or human rights” era, the “business and human rights” (BHR) era and the “business of human rights” era.’ Surya Deva, ‘From “Business or Human Rights” to “Business and Human Rights”: What Next?’ in Deva and Birchall (eds), note 4, 1.

12 Nevsun, note 1, paras 3–4.

13 Ibid, para 16.

14 Ibid, paras 17–25.

15 See Baxi, Upendra, The Future of Human Rights, 3rd edn (Delhi: Oxford University Press, 2013)Google Scholar. The 4th edition is due in 2020.

16 The majority judgement of CJ Wagner and Abella, Karakatsanis, Gascon and Martin was delivered by J Abella.

17 Nevsun, note 1, para 1.

18 For the examination of this judicial doctrine (primarily in the UK and Australia), see Nevsun, note 1, paras 29– 44.

19 Ibid, especially para 42 invoking the gentle admonition of J Jabot (in Habib v Commonwealth of Australia [2010] FCAFC 12) that the doctrine of act of state is ‘a common law principle of uncertain application’.

20 Ibid, para 38 (italics removed).

21 Ibid.

22 Ibid (italics removed).

23 Ibid.

24 Ibid, para 45.

25 Ibid.

26 Ibid, para 50.

27 Ibid, para 52 (underlining in original).

28 Ibid, para 43.

29 Ibid, para 273.

30 Ibid, para 276.

31 Ibid, para 300. Similar concerns were voiced in Sosa, where the Court said the separation of powers and conduct of foreign policy entail ‘vigilant doorkeeping’. Sosa v Alvarez-Machain 542 U.S. 692 (2004) at 729 and generally 730–731. The Court in Kiobel said that judicial caution ‘guards’ against ‘our courts triggering … serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches’, Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013) at 124 and added that the ‘Congress, not the Judiciary’ is the branch with ‘the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain’. Ibid at 116. In Jsener, the Court was most explicit: ‘If Congress and the Executive were to determine that corporations should be liable for violations of international law, that decision would have special power and force because it would be made by the branches most immediately responsive to, and accountable to, the electorate’, Jesner v Arab Bank 138 S Ct 1386 (2018) at 1407.

32 Kiobel v Royal Dutch Petroleum Company, 642 F 3d 111 (2nd Cir. 2010) at 119.

33 Ibid at 131.

34 Paust, Jordan J, ‘Nonstate Actor Participation in International Law and the Pretense of Exclusion’ (2011) 51 Virginia Journal of International Law 977Google Scholar at 978.

35 Ibid. He also alerts us to the question:

Did individuals and other groups from such areas play little or no role in the formation of customary international law, treaties, and normative content more generally? I suspect that our research into roles played by actual participants in international agreement processes and customary international law during the seventeenth, eighteenth, and nineteenth centuries has been remarkably incomplete, and that our awareness of the history of international law is growing but is still imperfect.

Ibid at 997. See also on the same page the interesting reference to the work by Professor Christiana Ochoa recalling the theme of Marten’s Clause and for the further references to ‘laws of humanity’.

36 Nevsun, note 1, para 80.

37 Ibid, para 164.

38 Ibid.

39 Ibid, para 269 (per Justice Côté, also on behalf of J Moldaver). On the complexities of these entailments, see Baxi, Upendra, ‘Sources in the Anti-Formalist Tradition: “That Monster Custom, Who Doth All Sense Doth Eat”’ in Besson, Samantha and d’Aspremont, Jean (eds), The Oxford Handbook of the Sources of International Law (Oxford: Oxford University Press, 2017) 228Google Scholar. I develop what I consider a vital distinction between ‘Empire-centric’ and UN-‘charter centric’ approaches.

40 Nevsun, note 1, para 190.

41 Crawford, James, Brownlie’s Principles of Public International Law, 9th edn (Oxford: Oxford University Press, 2019)CrossRefGoogle Scholar.

42 General Principles to the UNGPs, note 10. See also Deva, Surya and Bilchitz, David (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect ? (Cambridge: Cambridge University Press, 2013)CrossRefGoogle Scholar; Deva, Surya, ‘Multi1nationals, Human Rights and International Law: Time to Move beyond the “State-Centric” Conception?’ in Černič, Jernej Letnar and Van Ho, Tara (eds), Human Rights and Business: Direct Corporate Accountability for Human Rights (The Hague: Wolf Legal Publishers, 2015) 27Google Scholar.

43 UNGPs, note 10, Principle 17.

44 This vigilance plan has to include ‘reasonable vigilance measures to adequately identify risks and prevent serious violations of human rights and fundamental freedoms, risks and serious harms to health and safety and the environment’. Lomenie, Tiphaine Beau de, Cossart, Sandra and Morrow, Paige, ‘From Human Rights Due Diligence to Duty of Vigilance: Taking the French Example to the EU Level’ in Bonafanti, Angelica (ed), Business and Human Rights in Europe: International Challenges (New York: Routledge, 2019) 133Google Scholar at 134. The plans shall contain: (i) a risk mapping that identifies, analyses and ranks risks; (ii) procedures to assess the situation of subsidiaries, subcontractors or suppliers with whom ‘established commercial relationships’ are maintained; (iii) actions to prevent and mitigate risks and serious harms; (iv) an alert mechanism; and (v) a monitoring scheme. See also Adriana Espinosa González and Marta Sosa Navarro, ‘Corporate Liability and Human Rights: Access to Criminal Judicial Remedies in Europe’ in Bonafanti (ed), ibid at 223.

45 Beau de Loménie et al, note 44, 138.

46 See Anneloes Hoff, ‘Dutch Child Labour Due Diligence Law: A Step Towards Mandatory Human Rights Due Diligence’ (10 June 2019), https://ohrh.law.ox.ac.uk/dutch-child-labour-due-diligence-law-a-step-towards-mandatory-human-rights-due-diligence/ (accessed 5 June 2020).

47 Ibid.

48 Ibid.

49 Ibid.

50 Ibid.

51 See BHRRC, ‘National and Regional Developments on Mandatory Human Rights Due Diligence’, https://www.business-humanrights.org/en/mandatory-due-diligence/national-regional-developments-on-mandatory-human-rights-due-diligence (accessed 5 June 2020); and essays in Part II of Deva and Birchall (eds), note 4.

52 Sharon Burrow and Phil Bloomer, ‘Something for Europeans to Celebrate: A New Social Contract Begins to Emerge?’, Open Democracy (4 May 2020), https://www.opendemocracy.net/en/can-europe-make-it/something-for-europeans-to-celebrate-a-new-social-contract-begins-to-emerge/ (accessed 5 June 2020).

53 The European Parliament’s Responsible Business Conduct Working Group has issued a letter on what ought to be the shape of possible future due diligence legislation. The main principles are that the legislation: (i) applies to all business undertaking of all sizes across the EU; (ii) includes the obligation to respect human rights and the environment in their own domestic and international activities, and to ensure such respect throughout their global value chains, products, services and business relationships; (iii) ensures that business enterprises have an obligation to identify, prevent, mitigate, monitor and account for potential and actual human rights abuses and environmental harm in their entire global value chains; (iv) is supplemented by more specific standards and guidance that provide clarity and certainty to business and stakeholders about the processes and topics expected to be covered; (v) establishes civil liability for human rights abuses and environmental harm and provide access to remedy for victims; and (vi) provides authorities with effective instruments to monitor compliance and ensure enforcement, including through penalties and sanctions. Heidi Hautala, ‘EU is Well Placed to Show Leadership with its Future Due Diligence Legislation’ (27 May 2020), https://heidihautala.fi/en/eu-is-well-placed-to-show-leadership-with-its-future-due-diligence-legislation/ (accessed 4 June 2020).

54 Human Rights Council, ‘OEIGWG Chairmanship Revised Draft 16.7.2019’, https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf (accessed 5 June 2020).

55 The dissenting justices perceive ‘the approach of treating international law as law and new norms of international law as fact as creating unwieldly hybridization of law and fact’, Nevsun, note 1, para 178.

56 The following offences are listed:

  1. a.

    a. War crimes, crimes against humanity and genocide as defined in articles 6, 7 and 8 of the Rome Statute for the International Criminal Court;

  2. b.

    b. Torture, cruel, inhuman or degrading treatment, as defined in article 1 of the UN Convention against Torture and other cruel, inhuman or degrading treatment or punishment;

  3. c.

    c. Enforced disappearance, as defined in articles 7 and 25 of the International Convention for the Protection of All Persons from Enforced Disappearance;

  4. d.

    d. Extrajudicial execution, as defined in Principle 1 of the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions;

  5. e.

    e. Forced labour as defined in article 2.1 of the ILO Forced Labour Convention 1930 and article 1 of the Abolition of Forced Labour Convention 1957;

  6. f.

    f. The use of child soldiers, as defined in article 3 of the Convention on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour 1999;

  7. g.

    g. Forced eviction, as defined in the Basic Principles and Guidelines on Development based evictions and displacement;

  8. h.

    h. Slavery and slavery-like offences;

  9. i.

    i. Forced displacement of people;

  10. j.

    j. Human trafficking, including sexual exploitation;

  11. k.

    k. Sexual and gender-based violence.

Note 54, art 6(7).

57 Gauthier, David, Morals by Agreement (Oxford: Oxford University Press, 1986)Google Scholar.

58 See Donaldson, Thomas and Dunfee, Thomas W, Ties that Bind: A Social Contract Approach to Business Ethics (Cambridge, MA: Harvard University Press, 1999)Google Scholar.