As a student with an interest in international human rights law and international criminal law, I spend a lot of time in this course thinking about regulation of corporations domestically and on an international level. The Eritrea mining case happening in BC currently gives me some hope regarding the potential corporate accountability for Canadian corporations and the human rights violations they perpetrate in other countries. The success the plaintiffs have had so far is in part probably due to the seriousness of the allegations, which include forced labour, crimes against humanity, torture, and other human rights violations. Perhaps this case will open the doors for potential litigation against corporations that are complicit in environmental crimes as well. However, in light of the restrictive path the US Supreme Court has recently taken with respect to the Alien Tort Claims Act, I am somewhat disillusioned.
I think it is important to note that this is a civil lawsuit. As major as this case may seem, even if the corporation is ultimately held liable, the result is only a fine. And this is a case of modern slavery. It’s a great start, but I believe that the only effective way to enforce respect for human rights internationally is to proceed with criminal prosecutions against corporations. But then of course we run into the problem we have been discussing since the beginning of this course: which individual do we hold responsible? And we also run into the problem of scapegoating.
The prosecution of Van Anraat is an example of enforcement of international human rights law through the mechanism of criminal law. Van Anraat, a Dutch businessman who, through a number of companies, sold chemical weapons to Sadam Hussein’s government (which ultimately led to a genocide), was sentenced to 15 years imprisonment for his actions. However, this was an exceptional case, as there was enough evidence for the prosecution to link Van Anraat directly to the selling of the chemical weapons. I am hoping for a day when Canada takes a similar step and potentially prosecutes directors or management of corporations such as Nevsun.
My final thought on this case relates to the topic of director competence and the training they receive. Perhaps if we required our directors and management to be trained on the topic of human rights, we might start to see a slow process of acculturation within the Canadian corporate world. There are many criticisms relating to the effectiveness of this, but I don’t see why it wouldn’t be worth trying.
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Great post, Floriana! I too am interested in the same areas of law as you and have been thinking a lot about holding corporations accountable domestically for their international actions. I was quite excited by the BCSC being the first Canadian court to hear a civil claim against a domestic corporation for modern-day slavery.
I agree with you that it is important to think of criminal liability, but that this raises the problems you have noted. However, I think even just a civil lawsuit is major and important, even if it is just a fine. It allows, possibly, for victims to get compensation and at least get recognition that they were indeed wronged and that it is this corporation that is responsible for wronging them. A civil lawsuit, though it is not a criminal prosecution, could also have impact on a liable corporation’s image and public relations. So, it could still have deterrent effects.
I wholeheartedly agree with you that it would be an awesome thing to try to have directors and management trained on the topic of human rights, especially international human rights – because of the globalized nature of our current business world. Maybe cases like Nevsun would encourage companies to have directors trained on these things?
I really enjoyed your post and I thought you made some very interesting points throughout. Your last paragraph dovetails nicely with what we spoke about in class today regarding the qualifications (or lack thereof) that are required of directors to serve on boards. Perhaps I’m more of a cynic than you are, but I don’t believe that the issues we see in the Nevsun case can be traced back to a lack of education on part of the directors and officers. More times than not, I would imagine that directors and officers of companies that take part in human rights abuses are well aware of their supply chain, but are willing to do business despite it.
Rather, I think your earlier point about being more aggressive with criminal (and civil) suits would more effectively force officers and directors to do their due diligence and steer their companies away from facilitating human rights abuses. As you alluded to, though, holding those directors and officers liable is no easy feat.
Just some random thoughts about corporate criminal responsibility at international law: Garcia v Tahoe Resources is another ongoing case similar to Nevsun which may or may not proceed in BC (the other option being Guatemala). I thought it was interesting that Guatemalan law (as explained in Garcia) allows a claimant to attach themselves to a filed criminal claim, in order to seek civil reparation. I wonder if that kind of system is preferable in the context of corporate crim liability by providing for penal liability and reparations for victims at the same time?
Secondly, the theory of command responsibility (superior responsible for the actions of his/her subordinates) seems like the international criminal law version of vicarious liability. Yet vicarious liability as we’ve learned does not apply in the criminal context. I wonder if it ought to? As an example, a corporation is held vicariously liable for the crimes committed by its agents and thus receives the ‘death penalty’, i.e. the corporation is forcibly dissolved. I don’t believe this is currently possible as the BCBCA and CBCA both require that an appropriate person apply to the court, on specified grounds, to obtain court-ordered dissolution of the corporation.
Araya v Nevsun Resources Ltd., 2016 BCSC 1856 marks the first time that foreign claimants have been able to proceed to trial in a Canadian court against a Canadian company for alleged violations of customary international law with respect to human rights abuses in overseas business activities. I expect that the plaintiffs will face major obstacles in the trial process ahead, but I agree with my colleagues that decision—showing the willingness of the BC Supreme Court to expand its jurisdictional reach to hold Canadian multinational corporations accountable in Canadian courts where there is “real risk” justice would not be provided elsewhere (para 258)—is a positive step forwards.
After this decision, Canadian multinational corporations would be wise to re-examine their current business activities, particularly their supply chains and due diligence processes, and work towards implementing human rights policies, supplier codes of conduct, etc. in effort to minimize legal risk.
However, I do want to highlight a potential cause for concern not yet addressed by my colleagues: by relying on crimes against humanity as a basis for civil recovery, damage awards could become simply a “cost of doing business” for companies like Nevsun. In saying this, I mean that corporations might choose to continue engaging in these types of wrongs, knowing that in the unlikely case they are held civilly responsible, they can just pass these costs onto consumers in a way not possible if they were prosecuted criminally. In other words, corporations might become inclined to “buy” human rights violations.