The Canadian Supreme Court has ruled, by majority, that three former Eritrean nationals can rely on customary international law to bring a claim against a Canadian mining company for human rights abuses allegedly perpetrated at a copper, zinc and gold mine in Eritrea.

The Claimants are three refugees and former Eritrean nationals who claim that they were indefinitely conscripted through their military service into a forced labour regime at the Bisha mine in Eritrea.

They claim that they were subjected to violent, cruel, inhuman and degrading treatment, which included punishments such as "being ordered to roll in the hot sand while being beaten with sticks until losing consciousness" and the "helicopter", which consisted of tying the workers' arms together at the elbows behind the back, and the feet together at the ankles, and being left in the hot sun.

The Canadian company, Nevsun Resources Ltd owns a 60 per cent stake in the Bisha mine.

In addition to their claims for damages in tort, the Claimants contend that their treatment was so egregious as to amount to slavery and crimes against humanity, which, they say, are breaches of customary international law and are actionable at common law.

Nevsun sought to have the claims struck out on two primary bases: Firstly, the claims engaged the doctrine of foreign act of state (the doctrine that a court will "not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states"1) because it was Eritrea's National Service Program that had conscripted the Claimants.

Secondly, the claims based on customary international human rights law were bound to fail because there was no basis in Canadian law upon which a private individual could properly rely upon such law to found a claim at common law against a corporation.

On the first issue, by a majority of seven to two, the Court found that the doctrine is not part of Canadian common law and "neither it nor its underlying principles as developed in Canadian jurisprudence are a bar to the Eritrean workers’ claims." [59]

The second issue proved the thornier. However, by a majority of five to four, the Court held that customary international law is also the law of Canada and "it is not 'plain and obvious' that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of 'obligatory, definable, and universal norms of international law." [113]

Nevsun's appeal was therefore dismissed and the claims will now proceed to a full trial.

Nevsun's appeal on the first issue never got off the ground as far as the majority were concerned, Canadian common law having developed differently from that of, for example, the UK, where the doctrine of foreign act of state is recognised.

It is, however, worth noting that even if these claims were shown to require adjudication on the lawfulness of a foreign state's action, the doctrine would arguably not bar claims such as these from proceeding in the UK.

That is because, in its 2017 Belhaj judgement the UK Supreme Court affirmed that the doctrine was subject to an exception in respect of claims relating to violations of fundamental human rights.

On the second issue, any judgment that references such diverse authorities as the 1648 Peace of Westphalia and the 2017 Sunday Times Bestseller East West Street [Philippe Sands QC] is almost bound to be of particular interest. However, the Court's judgment is all the more eye-catching for its support of the claims under customary international human rights law.

The majority could not have been clearer in their view that customary international law, where it exists, ought not to be confined to the courtrooms of the ICJ and its application restricted to relations between states. Rather, it should be invoked where necessary to protect the rights of individuals.

In one of the more emotive passages, the Court declared that "modern international human rights law is 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." [1]

As the Court acknowledged, this case is at a preliminary stage and the Claimants will still need to prove their claims. Nevertheless, the judgment is a bold message to corporations that find themselves facing allegations of complicity in human rights abuses.

Not only could they face more traditional claims in tort, but also potentially claims for breaches of international customary human rights law.

As to how such claims might be remedied, we will have to wait and see, but an indication could be taken from the Court's suggestion that "appropriately remedying these violations requires different and stronger responses than typical tort claims, given the public nature and importance of the violated rights involved, the gravity of their breach, the impact on the domestic and global rights objectives, and the need to deter subsequent breaches." [129]

For now, the Court's judgment should be welcomed as a bold endorsement of the use of customary international law in seeking to hold corporations to account for their activities overseas.