Canadian Supreme Court Permits Suit in Customary Int'l Law Case [1]
On February 28, 2020, the Supreme Court of Canada published its decision on jurisdiction in Nevsun Resources Ltd. v. Araya [3]. According to a case brief [4] published by the Court, the case involves a dispute between workers in the Bisha mine in Eritrea. The mine is owned by Bisha Mining Share Company, which is owned by Nevsun, a Canadian company and the appellant in the case. The workers allege that the harsh and dangerous working conditions in the mine violate customary international law. The issue in the case was whether the Canadian courts had jurisdiction over the case. Nevsun argued that they did not, citing state immunity under the act of state doctrine. The Supreme Court disagreed, holding that the act of state doctrine is not part of Canadian law. However, because customary international law is automatically part of the Canadian legal system, the Canadian courts have jurisdiction to determine whether Canadian companies have violated it. The Court held specifically: "A compelling argument can also be made . . . 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." The case against Nevsun will therefore proceed.