Transnational Law: Law 261.003 Student #: 18065086 10 April 2022 Part A: Memo To: The Honourable Jasvinder Basran From: Student #: 18065086 Date: 10 April 2022 RE: Relevance and effect of plaintiffs’ evidence on domestic Canadian law A. FACTS The plaintiffs are suing a Canadian garment company in Sri Lanka alleging forced labour, slavery, and human rights violations, contrary to Canadian domestic law and customary international law. They argue that the defendant committed violations of domestic and international law. The evidence that the plaintiffs led includes (1) international treaties ratified by Canada, (2) publications by the United Nations concerning international labor standards, (3) Statements by government officials and documentary evidence concerning involuntary labor, and (4) Canadian legislation on modern slavery and involuntary labor. You have asked me to prepare a memo addressing the relevance and value of this evidence in light of the rules and principles governing the intersection of Canadian domestic law and international law. B. ISSUES 1. What is the impact of the identified conventions on Canadian domestic law? 2. What is the relevance of the evidence led by the plaintiff to establishing a norm of customary international law that is actionable in a Canadian court? C. ANALYSIS 1. What is the impact of the identified conventions on Canadian domestic law? Law Treaties are a primary source of international law. The two ways treaty obligations have an impact on Canada’s domestic law is either through the implementation in domestic legislation, or through the presumption of conformity.1 Treaties are international agreements between subjects of international law, including corporations, that are formed to create a binding obligation. Article 38(1)(a) of the ICJ Statute codifies treaties as a principal source of international law.2 In North Continental Shelf, the Court asserted that the ratification of treaties is the preferred form of a state’s expression of consent. 3 (a) Implementation of Canada’s Treaty Obligations Treaties must be implemented through domestic legislation to have formal legal effect in Canada.4 For a treaty to be law in domestic Canadian courts, there must be legislation either implementing or transforming the treaty in part or in hole within Canadian law. (b) Presumption of Conformity Nevsun affirms that Canadian law is presumed to conform with Canada’s international obligations.5 Lawyer and scholar Gib van Ert describes the presumption of conformity as “a rule of legal interpretation whereby domestic law is read, wherever possible, consistently with international law and comity”.6 This presumption is rebuttable by conflicting language expressed 1 Ghebremusse, “Treaties”, (17 January 2022). Ibid. 3 North Sea Continental Shelf, Germany v Denmark, Merits, Judgment, [1996] ICJ Rep 3, 20 February 1969 at para 20 [North Continental Shelf]. 4 Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 159 [Nevsun]. 5 Ghebremusse, “Transnational Tort Claims Part I”, (28 February 2022) (Justice Abella’s lecture). 6 Ghebremusse, “Use of International Law in Canadian Court”, (14 February 2022). 2 by the legislature.7 The Court in Hape held that “as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations” except where a statute expressly conflicts with the obligation.8 This harmonization is to ensure Canada’s domestic law adheres to its international obligations. This presumption applies both to treaty law and customary international law.9 In National Corn Growers, the Supreme Court of Canada (SCC) stipulated that international treaty law can act as an interpretive aid.10 The SCC held in GreCon Dimiter that “the interpretation of [domestic] provisions in issue, and the resolution of the conflict between them, must necessarily be harmonized with the international commitments of Canada”. 11 This was affirmed in B010.12 To meet its international obligations, particularly with respect to international human rights law, Canada has generally relied on its domestic legislation and the presumption of conformity.13 (c) Exceptions Some states may express reservation to specific treaty provisions. Non-parties to treaties are expressing their intent not to be bound by the terms.14 The ICJ held that reservations are permissible provided they are compatible with the treaty’s object and purpose. 15 7 Ghebremusse, “Use of International Law in Canadian Court”, supra note 6. R v Hape, 2007 SCC 2 at para 53 [Hape]. 9 Hape, supra note 9 at para 39. 10 Ghebremusse, “Use of International Law in Canadian Court”, supra note 6. 11 GreCon Dimiter Inc v JR Normand Inc, 2005 SCC 46 at para 39 [GreCon Dimiter]. 12 B010 v Canada, 2015 SCC 58 at para 48. 13 Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paras 59 [Suresh]. 14 Ghebremusse, “Use of International Law in Canadian Court”, supra note 1. 15 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 1951 ICJ 485. 8 Application The plaintiffs rely on four treaties in support of their claim: (1) Forced Labour Convention, 1930; (2) Protocol of 2014 to the Forced Labour Convention; (3) Abolition of Forced Labour Convention, 1957; and (4) the Convention to Suppress the Slave Trade and Slavery (Slavery Convention). Canada has ratified all four of these conventions, indicating its consent and intent to be bound by their content. Canada has not made any reservations with respect to these conventions. Canada has enacted the Modern Slavery Act and Fighting Against Forced Labour and Child Labour in Supply Chains Act (Forced Labour Act), both are currently in force. The titles suggest harmonization with Canada’s international obligations under the relevant treaties, but it would be important to examine whether they implement the obligations in part or in whole. Only those obligations that are implemented through domestic legislation have the force of law. Courts must consider Canada’s obligations under the treaties when interpreting domestic law. It is likely that the overlap in content between both the Modern Slavery Act and the Forced Labour Act with the named treaties would result in their provisions being interpreted as to conform to the treaties. Both the Modern Slavery Act and Forced Labour Act offer remedy to victims by Canadian companies operating abroad. 2. What is the relevance of the evidence led by the plaintiff to establishing a norm of customary international law that is actionable in a Canadian court? Law Customary international law is derived from common international practices by states. The ICJ Statute defines customary international law in Article 38(1)(b) as "a general practice accepted as law."16 Customary international law does not require legislative implementation to be binding.17 Jus cogens is a fundamental principle of international law. The Vienna Convention on the Law of Treaties recognizes jus cogens as binding on members of the international community as a norm from which no derogation is ever permitted and any laws conflicting with it should be considered null.18 (a) How Customary International Law is Established Two elements must be established to identify a norm of customary international law: state practice and opinio juris.19 State practice refers to the objective requirement that there be evidence of widespread practice by States of similar international acts over time, and not rejected by a significant number of States. State practice consists of the actual behaviour of states and requires an analysis of generally accepted state practice, the uniformity of state practice, and the duration of the practice.20 Opinio juris, a subjective component, requires that the acts occur out of the State’s belief that such acts are legally obligatory. In relation to opinio juris, the International Court of Justice held 16 United Nations, Statute of the International Court of Justice, 24 October 1945, as cited in Ghebremusse, “Treaties”, supra note 1 [ICJ Statute]. 17 Ghebremusse, “Customary International Law”, (24 January 2022). 18 Ibid. 19 Ibid. 20 Ibid. in North Sea Continental Shelf, that "not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it ... The States concerned must therefore feel that they are conforming to what amounts to a legal obligation." 21 This was confirmed in Nicaragua v United States of America.22 Multiple forms of evidence may establish State practice and opinio juris. General Assembly Resolutions, documentary evidence on laws and policies, and statements made by State parties’ organs in the press can all serve as evidence of state practice and opinio juris.23 Resolutions adopted by international organizations may be evidence of customary international law or contribute to its development; they cannot, in and of themselves, constitute it.24 The UN General Assembly is the forum where all states can gather to discuss and vote on issues of importance. These votes and the subsequent resolutions are illustrations of state views and opinions on those various issues. Given these resolutions are not binding, however, it is helpful to consider the specific content of the resolution, and the number of states voting in favour of the resolution. Strong voting support among states for a resolution, especially if it is unanimously passed, can evince opinio juris by creating the sense that its content is binding.25 The language used can point to an evolving law or a sense of legal obligation. The ascension and ratification of treaties by states may serve as evidence of both state practice and opinio juris, especially where this is widespread.26 When an obligation arising from a treaty 21 North Continental Shelf, supra note 3 at para 77. Ghebremusse, “Customary International Law”, supra note 17. 23 Ibid (Citing Ian Brownlie). 24 Ibid. 25 Ibid. 26 Ibid. 22 is crystallized as a norm, customary international law parties that have not ratified said treaty are bound by the norm.27 Because there is no principle of stare decisis at the international level, judicial decisions of the International Court of Justice (ICJ) may serve as a means for the identification of rules of customary international law. This is codified in Article 59 of the ICJ Statute, which states that “The decision of the Court has no binding force except between the parties and in respect of that particular case”. The ICJ’s decisions are still considered persuasive, or determinative of the law, based on the rule in Article 38(1)(d) of the ICJ Statute. The ICJ advisory opinion on the Legality of the Threat or Use of Nuclear Weapons is an example of evidence of state practice adopted by the international community.28 ICJ advisory opinions are significant pieces of evidence as the ICJ is the only UN judicial organ.29 (b) Adoption into Domestic Law Nevsun affirms that customary international law is automatically adopted into Canada’s common law.30 The main requirement for customary international law to be incorporated is that there is no conflicting legislation. Jus cogens were at issue in Suresh.31 Amnesty International argued that the prohibition against torture is a jus cogens norm. The court confirmed that prohibition against torture is a peremptory norm that cannot be derogated from. As evidence, they pointed to the prohibition against slavery as an international norm.32 27 Ibid. Ibid. 29 Ghebremusse, “Treaties”, supra note 1. 30 Nevsun, supra note 4 at para 28; Hape, supra note 9. 31 Suresh, supra note 13 at para 61 at paras 46, 61. 32 Ibid at para 61. 28 In Nevsun, the Eritrean workers claimed damages under customary international prohibitions on forced labour. The majority found that these prohibitions amounted to state practice and opinio juris. Forced labour is considered a jus cogens norms of fundamental importance, and is nonderogable.33 Justice Abella reasoned that since customary international law was a part of the Canadian common law, Canadian courts could adjudicate on these human rights prohibitions.34 Application The evidence strongly supports the existence of a norm of customary international law that is automatically adopted within Canada. The documentary evidence supports the objective element of a customary norm consistent with a prohibition on forced labour. The evidence indicates the passing of laws and policies on minimum labour rights for precarious and low-wage workers by 146 states. Assuming States’ practices adhere to such laws and policies, this indicates that combating modern slavery is an issue of importance among the vast majority of the world’s nations, providing strong evidence of substantial uniformity of practice and belief that such practices are legally obligatory. Substantially uniform state practices in line with these policies would support recognizing the existence of a norm prohibiting involuntary labour. Universality of practice is not necessary, “substantial uniformity” is sufficient.35 The evidence of statements by the Canadian government would support the subjective element of opinio juris with respect to Canada. However, this is minor for the purpose of establishing state practice and opinio juris at an international level as it only reflects the beliefs of a single State. 33 Nevsun supra note 4 at para 101. Ibid at para 94. 35 Case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), [1986] ICJ Rep 14. 34 The treaty evidence led by the plaintiffs weighs in favour of a prohibition on forced labour under customary international law. The fact that these treaties were adopted in the early 1900’s confirm a long commitment to this practice among State parties. While Canada has ratified these instruments, it would be necessary to assess whether the treaties reflect widespread State practice. The Slavery Convention, in particular, reflects an understanding among State parties that slavery and forced labour should be suppressed. The recent Protocol of 2014 demonstrates enduring adherence to the content of the Forced Labour Convention. Advisory opinions of the ICJ are not binding but states often recognize the content of the opinion as representing international law. The evidence informs us that the issues were “addressed” amongst the states; it is important to ascertain the finding of the ICJ opinion about state responsibilities on the violations. Support for prohibiting the use of involuntary labour seems to be present in the ICJ Advisory opinion. Although not binding on States, such evidence supports State’s viewing such would recognize the normative views expressed as mirroring international law. The General Assembly resolution may also provide support for the existence of an important norm prohibiting the use of forced labour by multinational companies. Following Nevsun, the proposed prohibition on involuntary labour by multinational corporations would be automatically adopted into Canada’s common law, absent domestic legislation displacing the norm. While it would be necessary to look for domestic legislation that may conflict with a prohibition on involuntary labour, the evidence of statements by Canadian government officials suggest otherwise. Additionally, the enactment of the Modern Slavery Act and Forced Labour Act indicates Canada does not have conflicting legislation. Canadian courts would not interpret domestic legislation in a manner that would displace a prohibition. D. CONCLUSION Evidence led by the plaintiff supports substantial state practice and opinio juris regarding a prohibition on forced labour. However, in-depth investigation of the content of the sources is required to determine the specific characteristics of such a norm. Through the doctrine of adoption, the jus cogens norm on the prohibition against modern slavery and forced labour are now considered part of Canadian common law. Since the Modern Slavery Act and Forced Labour Act are in force and provide remedy to the plaintiffs, and assuming that their provisions are consistent with their titles, they are highly relevant pieces of evidence for making the case. Part B: Question 2 – Transnational Tort Litigation Transnational tort claims involve litigation of multi-jurisdictional disputes, where the harm occurs in one jurisdiction and the defendant is domiciled in another jurisdiction. In Canada, transnational tort proceedings are determined by common law principles of tort, and rules of civil procedure. Given the lack of accountability mechanisms governing corporations abroad, those corporations complicit in human rights abuses, until recently, operated with impunity. In light of recent developments in Canadian common law, however, it is in the interest of the victims of such violations to seek justice and redress against corporations in Canadian courts. Despite the procedural hurdles, if the alleged violations amount to peremptory norms of fundamental importance (jus cogens), the claim is actionable based on customary international law. The Governance Gap The governance gap both domestically and internationally refers to the absence of legislation and judicial institutions governing powerful corporations whose activities inflict harm on local communities.36 This gap serves multinational corporations as they often benefit from the legal systems and corrupt political regimes in less developed countries. Violations range from slavery and forced labour to rape and other atrocities. Victims often resort to litigation in the “home” state of these multinational corporations, seeking justice and redress. Two attempts were made in Canada to fill in this gap. First, Bill C-300, which concerned the regulation of mining, oil, and gas extraction by companies in developing 36 Ghebremusse, “Transnational Tort Claims Part I”, (28 February 2022). countries, which was defeated in 2009. A more recent attempt is the Canadian Ombudsperson on Responsible Enterprise (CORE), whose process is voluntary. The CORE is not a form of regulation. It can independently investigate, report, recommend remedy and monitor implementation, however it has yet to hear any cases.37 Obstacles to Transnational Tort Litigation Bringing Tort claims against corporations abroad is not hurdle-free for victims. The first procedural challenge that the claimants face in the home state is factors pertaining to jurisdiction. Home states have automatic jurisdiction over multi-national corporations domiciled there. In Canada this is called jurisdiction simpliciter (presumptive jurisdiction). However, this is discretionary, and courts can still decline jurisdiction to hear claims if there is no real and substantial connection to the home state or the court finds the jurisdiction where the harm occurred is the more appropriate forum. Because of the multi-jurisdictional nature of these disputes, the court and the proper law to apply must be considered by the home state’s court. Furthermore, based on judicial comity, courts avoid hearing claims that could be properly adjudicated in the foreign jurisdiction. Some of the factors that a reviewing court in British Columbia may consider when making that determination are codified in section 11 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA),38 while courts in other Canadian provinces rely on the common law. The common law rule of forum non conveniens has been a common defense tactic. Defendants often bring pre-trial motions to stay proceedings based on the argument that a 37 38 Ghebremusse, “Transnational Tort Claims Part I”, supra note 36. SBC, c 28, s 11. Canadian court is not the proper jurisdiction and that the foreign jurisdiction is the proper one.39 Both in Nevsun and Tahoe, the defendant brought forth several procedural objections seeking to dismiss the plaintiffs’ claims, contesting the jurisdiction of British Columbian courts on the basis that the host country was the more appropriate forum. However, all motions to stay those proceeding were denied on appeal.40 The test for forum non conveniens was outlined in the SCC’s Van Breda decision. First, claimants only need to establish that they have an arguable case. The burden then switches to the defendant to establish that the host country is the proper jurisdiction by identifying the forum and demonstrating that it has a real and substantial connection to the matter. The defendant must also demonstrate why that alternative forum is preferred. Van Breda establishes that Canadian courts will exercise jurisdiction over Canadian corporations unless fairness and efficiency dictate otherwise.41 The fair and efficient working of the Canadian legal system as a whole, perhaps, is the most significant factor for victims to consider in pursuing justice in a Canadian court and be assured a fair trial. Victims of these crimes face severe barriers to justice in the host state, as pointed out by Joe Fiorante.42 The plaintiffs in Tahoe put forth the argument that the Guatemalan judicial system is weak, corrupt and lacks judicial independence, resulting in a “pervasive problem of impunity” for powerful actors.43 Evidence was led showing that the State itself had been condemned internationally over the ineffectiveness of its institutions in investigating, trying and bringing to justice those complicit in human rights 39 Ghebremusse, “Transnational Tort Claims Part I”, supra note 36 (Lecture by Jospeh Fiorante). Ibid. 41 Ibid. 42 Ibid (Lecture by Joe Fiorante). 43 Garcia v Tahoe, 2017 BCCA 39 [Tahoe]. 40 abuses. This condemnation is directed at the various ways used to provide impunity, such as the obstruction of justice (including the use of violent means), the covering up of perpetrators by agents of the State, deficient investigations (particularly regarding the handling of evidence), lack of impartiality and independence of judges, and unjustified delays or inaction by the justice institutions. The Court held that “where a plaintiff presents evidence of corruption and injustice in the defendant’s proposed alternate forum, the court must ask whether the evidence shows a real risk that the alternate forum will not provide justice”.44 If the plaintiff’s evidence discloses a real risk of an unfair trial, this factor weighs strongly against a Canadian court granting a stay. Moreover, the plaintiffs faced serious obstacles in Guatemala to accessing significant sources of proof and in bringing lawsuits against corporations; claimants are required to identify their evidence at the outset of the proceeding but have no real mechanisms for discovery.45 The ends of justice would not be served by staying these proceedings in favour of a foreign jurisdiction whose procedural rules hinder the pursuit of the truth. Other barriers have both practical and legal implications. First, parties may have a practical difficulty with adducing witness testimony in a Canadian court. The defendant in Tahoe made this argument as all the evidence was in Guatemala and Nevada; bringing the witnesses to Canada would be a significant expense. Moreover, under both s 11 of the CJPTA and forum non conveniens, this practical difficulty will weigh in favour of the Court staying the proceedings. Second, assuming there is a likelihood that the action succeeds, if the defendant corporation does not have assets within Canada, claimants 44 45 Tahoe, supra note 43 at para 124. Ghebremusse, “Transnational Tort Claims Part I”, supra note 36. would not be able to enforce a judgement. This will likewise contribute to the Court potentially dismissing the action. Third, courts seek to avoid multiple and conflicting legal proceedings. Not only due to accompanying costs for courts and litigants, but also because a Canadian court strives not to contradict a judicial decision made in the host country.46 Development in the Law Despite all these barriers to transnational tort litigation, Nevsun has opened the door for Canadian courts to hear and rule on the liability of Canadian corporations alleged to be complicit in human rights abuses in foreign jurisdictions.47 Following the Supreme Court of Canada’s (SCC) unprecedented decision in Nevsun, Canadian courts can now adjudicate the merits of those claims based on customary international law. This essentially fills in part of the governance gap for transnational tort litigation. A narrow majority at the SCC concluded that customary international law is part of Canadian common law, allowing Canadian courts to apply it to the actions of transnational Canadian corporations.48 In Nevsun, the plaintiffs claimed damages under customary international prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. The Majority found most of those prohibitions to be considered peremptory norms of fundamental importance (jus cogens) from which there can be no derogation.49 Justice Abella argued that since customary international law was a part of the Canadian common law, Canadian courts could adjudicate on these human rights prohibitions. 46 SBC, c 28, s 11. Nevsun v Araya, 2020 SCC 5 [Nevsun]. 48 Nevsun, supra note 47 at para 159. 49 Ghebremusse, “Transnational Tort Claims Part I”, supra note 36. 47 In summary, gaps in legal and institutional mechanisms have allowed multinational corporations to act with impunity. Transnational tort litigation has developed to play a significant role in remedying this gap. While there are still practical and legal barriers facing claimants when bringing actions in companies’ home jurisdictions, Nevsun is a breakthrough in Canadian law, providing a strong basis for clients seeking remedy for violations under customary international law. Justice Abella’s argument on corporate liability is a strong message to corporations engaging in human rights violations. These violations are legally unacceptable and actionable under customary international law in a Canadian court.
