Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

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Author: Olga Ganina, Vera Rusinova

DOI: 10.21128/2226-2059-2021-2-25-39

Keywords: companies, customary international law, human rights, legal persons, responsibility

Abstract

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

About the authors: Vera Rusinova – Doctor of Legal Sciences, LL.M. (Goettingen), Professor, Head of the School of International Law of the Law Faculty, Leader of the Fundamental Research Project Group “Expansion of International Human Rights Law in the Corporate Sphere”, Higher School of Economics, Moscow, Russia; Olga Ganina – MA Student, “Law of International Trade, Finance and Economic Integration” Programme, Higher School of Economics, Member of the Fundamental Research Project Group “Expansion of International Human Rights Law in the Corporate Sphere”, Moscow, Russia.

Citation: Rusinova V., Ganina O. (2021) Postanovlenie Verkhovnogo suda Kanady ot 28 fevralya 2020 goda po delu “Nevsun” protiv Arayi: “tikhaya revolyutsiya” v otsenke statusa korporatsiy po mezhdunarodnomu publichnomu pravu? [Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?]. Mezhdunarodnoe pravosudie, vol. 11, no. 2, pp. 25–39. (In Russian).