The Global Justice Clinic (GJC) and EarthRights International (ERI) today submitted a brief [“factum”] to the Supreme Court of Canada as interveners in Araya v. Nevsun, a case seeking to hold a Canadian corporation liable for human rights abuses at its mine in Eritrea. The case raises crucial issues regarding access to justice for victims of corporate human rights abuses in the transnational company’s home state. It tees up questions about whether Canadian courts should recognize civil claims against corporations based on violations of customary international law and whether foreign relations considerations should bar suits addressing corporate complicity in foreign states’ breaches of international law.

The plaintiffs in the case are Eritrean refugees who allege they were subjected to forced labor, slavery, torture and crimes against humanity at the Bisha copper-zinc mine in Eritrea, which is majority-owned by the Canadian company Nevsun Resources. They sued Nevsun in British Columbia, Canada in 2014. The company sought to have the case dismissed on grounds of forum non conveniens, under the act of state doctrine, and based on arguments that customary international law is not directly actionable through Canadian common law and does not apply to corporations. The Supreme Court of British Columbia decided that the plaintiffs’ suit should be allowed to proceed. Nevsun appealed to the British Columbia Court of Appeal, which dismissed the appeal and affirmed the lower court’s decision. Nevsun then appealed to the Supreme Court of Canada.

The parties in the suit have raised U.S. law and jurisprudence, particularly under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, in their arguments before Canadian courts. ERI and GJC intervened to address two limited issues regarding U.S. case law: First, GJC and ERI show that in the United States, the act of state doctrine does not bar consideration of cases raising violations of fundamental human rights. Second, GJC and ERI demonstrate that common law claims based on violations of fundamental human rights are actionable in the United States under the ATS, including against corporations. The brief by ERI and GJC, as well as briefs of other interveners and the parties, are posted on the website of the Supreme Court of Canada.

ERI and GJC are represented by Canadian attorneys Tamara Morgenthau (NYU LLM ’14) and Alison Latimer. Interveners will have oral argument before the Supreme Court of Canada on January 23, 2019. Morgenthau will argue on behalf of GJC and ERI.