Judicial Restraint Cannot Justify Blatant Abuses of Prohibitions in International Law

We all have our views and preferences about how reforms to the legal system and the creation of laws should occur.

For example, despite being a regular participant in the justice system, I see the courts as a rather blunt instrument for the creation of law, and it is often ill-suited for dealing with complex social problems. The legislature, with all of the available expertise and resources of the state, is usually far better positioned to carefully examine, explore, and determine the most precise manner in which to create and modify laws.

Yet the legislature often moves slowly, and is also subject to enormous political pressures – not only from the public, but from broader economic interests. The regulation of mining investment is an example of this, with an estimated 59% of all mining financings around the world occurring on the TSX and TSXV in 2017. Toronto is even called by some the world’s mining investment capital.

This success doesn’t come with its share of problems. Many of the companies listed on Canadian exchanges have engaged in activities or operations abroad that would not resonate with Canadian values or with Canadian laws. A 2016 report by the Justice and Corporate Accountability Project at Osgoode Hall identified between 2000-2015 in Latin America alone:

•  incidents involving 28 Canadian companies;
•  44 deaths, 30 of which we classify as “targeted”;
• 403 injuries, 363 of which occurred in during protests and confrontations;
• 709 cases of “criminalization”, including legal complaints, arrests, detentions and charges; and
• a widespread geographical distribution of documented violence: deaths occurred in 11 countries, injuries were suffered in 13 countries, and criminalization occurred in 12 countries.

The report also found that these publicly listed companies underreported these incidents, disclosing only 24.2% of the deaths and 12.3% injuries they reviewed. This problem was particularly pronounced with the larger companies involved.

These problems haven’t been ignored in Canada, and in 2010 I wrote a joint piece at The Court with a fellow law student, where we discussed Piedra v. Copper Mesa Mining Corporation. He advocated for the creation of a statutory cause of action through the courts, where as I pushed for legislative reform and political oversight. Ultimately he ended up being right, acting as counsel for the responding party in the Supreme Court of Canada’s recent decision in Nevsun Resources Ltd. v. Araya.

Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, a private member’s bill, was going into Third Reading at the time, but the Standing Committee on Foreign Affairs and International Development requested on Oct. 19, 2009 additional time to study the bill and its impact. Richard Janda explains the outcome in the McGill Journal of Sustainable Development Law,

An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in
Developing Countries (Bill C-300) was not doomed to failure, but by galvanizing corporate resistance its adoption became a David vs. Goliath affair, and the result was not
biblical. The purpose of this Note is to recount the failure of this legislative initiative, which had a modest but significant objective. Bill C-300 aimed to render Canadian extractive sector corporations operating in developing countries and benefiting from the financial support of the Canadian federal government, subject to withdrawal of funding if their environmental and human rights performance abroad violated international standards. The proposed legislation was a Private Member’s bill put forward by Liberal MP John McKay. It was defeated by 140 to 134 because although it had the support in principle of three parties with a majority of votes—the Liberals, NDP and Bloc Québécois—twenty-five members of those parties, including Liberal leader Michael Ignatieff, chose not to attend the vote after a monumental business lobbying effort.

In contrast, Justice Abella’s decision in Nevsun delivers an opening salvo that is likely to resonate for many years, to come,

[1] This appeal involves the application of modern international human rights law, the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct that undermined the norms was to be identified and addressed.

Drawing extensively on peremptory norms from customary international law, Abella asserts the primacy of applying international human rights norms to private actors in a manner that evades any blanket exclusions from direct liability. Following other unsuccessful attempts, such as in Chevron Corp. v. Yaiguaje, it seemed unlikely that courts would be the proper venue for resolving these disputes.

The use of customary international law to prosecute a breach domestically in Canada is certainly a novel approach by the Court. Justice Abella explained why this was necessary in her view,

[125] Refusing to acknowledge the differences between existing domestic torts and forced labour; slavery; cruel, inhuman or degrading treatment; and crimes against humanity, may undermine the court’s ability to adequately address the heinous nature of the harm caused by this conduct…

[126] While courts can, of course, address the extent and seriousness of harm arising from civil wrongs with tools like an award of punitive damages, these responses may be inadequate when it comes to the violation of the norms prohibiting forced labour; slavery; cruel, inhuman or degrading treatment; or crimes against humanity. The profound harm resulting from their violation is sufficiently distinct in nature from those of existing torts that, as the workers say, “[i]n the same way that torture is something more than battery, slavery is more than an amalgam of unlawful confinement, assault and unjust enrichment”. Accepting this premise, which seems to be difficult to refute conceptually, reliance on existing domestic torts may not “do justice to the specific principles that already are, or should be, in place with respect to the human rights norm”.

[127] The workers’ customary international law pleadings are broadly worded and offer several ways in which the violation of adopted norms of customary international law may potentially be compensable in domestic law. The mechanism for how these claims should proceed is a novel question that must be left to the trial judge. The claims may well be allowed to proceed based on the recognition of new nominate torts, but this is not necessarily the only possible route to resolving the Eritrean workers’ claims. A compelling argument can also be made, based on their pleadings, for a direct approach recognizing that since customary international law is part of Canadian common law, a breach by a Canadian company can theoretically be directly remedied based on a breach of customary international law.
[citations omitted]

Because this case arose on a motion to strike the pleadings, which was denied at the trial and appellate levels, the merits of claims of this nature remain untested. It’s possible and even likely that any disposition at trial would return to the Court for further scrutiny, examination, and commentary.

For this reason, the dissents from the deeply split Court in Nevsun are also worth touching on briefly. The dissent by Justices Brown and Rowe also emphasize the important role of customary international law in Canada,

[164] The high bar established by the twin requirements of state practice and opinio juris reflects the extraordinary nature of customary international law: it leads courts to adopt a role otherwise left to legislatures; and, unless a state persistently objects, its recognition binds states to rules to which they have not affirmatively consented (Currie, at p. 187). And, if a rule becomes recognized as peremptory (i.e., as jus cogens) then even persistent objection will not relieve a state of the rule’s constraints.

[165] Once a norm of customary international law has been established, it can become a source of Canadian domestic law unless it is inconsistent with extant statutory law. This doctrine is called “adoption” in Canada and “incorporation” in its English antecedents…

[166] In our view, two features… are noteworthy: (1) that prohibitive rules of customary international law can be incorporated into domestic law “in the absence of conflicting legislation”; and (2) that adoption only operates with respect to “prohibitive rules of international custom”. Taken together, these elements respect legislative supremacy in the incorporation of customary international law into domestic law.

[citations omitted; emphasis in the original]

However, they provide their own three-part test for the development of private common law arising from a prohibitive norm in international law,

[175] How, then, to determine whether a statute prevents so amending the common law? We would suggest that courts should follow a three‑step process. First, precisely identify the norm. Second, determine how the norm would best be given effect. Third, determine whether any legislation prevents the court from changing the common law to create that effect. If no legislation does so, courts should implement that change to the common law. If any legislation does so, the courts should respect that legislative choice, and refrain from changing the common law. In such circumstances, judicial restraint respects both legislative supremacy and the superior institutional capacity of the legislatures to design regulatory schemes to comply with Canada’s international obligations. These are foundational considerations, going to the proper roles of courts, legislatures and the executive. The incorporation of a rule of customary international law must yield to such constitutional principles.
[emphasis added; citations ommitted]

They conclude that corporations cannot be directly liable in customary international law, and caution against prohibitions in customary international law requiring Canada to create domestic liability rules through adoption.

They also note that the need for a remedy does not necessarily mean a particular form of remedy, as Parliament could prefer judicial review or criminal sanction instead. The problem with this approach, as illustrated above, is that Parliament has demonstrated unable to do so.

The final dissent from Justice Côté agreed with the other dissent regarding the extension of customary international law, especially with its expansion in this manner to corporations. Where she seemed to feel the need to author her own opinion though was in the proper role of the courts,

[294] Justiciability is rooted in a commitment to the constitutional separation of powers. The separation of powers under the Constitution prescribes different roles for the executive, legislative and judicial orders. In exercising its jurisdiction, a court must conform to the separation of powers by showing deference for the roles of the executive and the legislature in their respective spheres so as to refrain from unduly interfering with the legitimate institutional roles of those orders. It is “fundamental” that each order not “overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other”. The doctrine of justiciability reflects these institutional limitations.

[296] A court has the institutional capacity to consider international law questions, and its doing so is legitimate, if they also implicate questions with respect to constitutional rights, the legality of an administrative decision or the interface between international law and Canadian public institutions. If, however, a court allows a private claim which impugns the lawfulness of a foreign state’s conduct under international law, it will be overstepping the limits of its proper institutional role. In my view, although the court has the institutional capacity to consider such a claim, its doing so would not be legitimate.

…

[305] In conclusion, although a court has the institutional capacity to consider international law questions, it is not legitimate for it to adjudicate claims between private parties which are founded upon an allegation that a foreign state violated international law. The adjudication of such claims impermissibly interferes with the conduct by the executive of Canada’s international relations. That interference is not justified without a mandate from the legislature or a constitutional imperative to review the legality of executive or legislative action in Canada. In the absence of such a mandate or imperative, claims based on a foreign state’s internationally wrongful acts are allocated to the plane of international affairs for resolution in accordance with the principles of public international law and diplomacy.
[citations omitted; emphasis added]

The distinctions between the majority and the dissents in Nevsun illustrate how deep the divide is on the proper role and place of the courts. One particular contemporary trend around the world suggest why the majority’s approach may in fact be desired in these circumstances.

On Feb. 29, 2020, Associate Chief Justice of the Ontario Court of Appeal, Alexandra Hoy, spoke at the Jessup Moot on the need to protect judicial independence in a time of growing populism. We are not “immune to such trends” being observed around the world, and this independence “ensures that judges are insulated from pressure” that could otherwise interfere in their roles.

It should be common sense that international business activities that profit off of forced labour, slavery, cruel, inhuman or degrading treatment and crimes against humanity, and seek to make their profit through Canadian institutions should have some form of accountability in our society. If our political institutions are unable to do so because of outside pressures, the courts may necessarily, albeit reluctantly, be forced to step in.