UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW

CFL – Atty. Ismael Sarangaya

Nevsun Resources, Ltd. v. Araya

2020 SCC 5

Facts:
Three Eritrean workers sued Nevsun Resources before a Canadian court for damages arising from
violations of customary international law in the form of forced labor, slavery, cruel, inhuman, or degrading
treatment, and crimes against humanity. They claimed that they were forced to join Eritrea’s military services
where they experienced violent, cruel, inhuman, and degrading treatment arising from a forced labor regime.
Nevsun filed a motion to strike on the pleadings on the basis of the act of state doctrine that bars domestic
courts from reviewing the sovereign acts of a foreign government. Nevsun charged that the claims based on
customary international law had no reasonable prospect of success. The lower court judge dismissed the motion,
which was affirmed by the Court of Appeals.

Issue/s:
Whether or not the Eritrean workers have the standing to claim violation of customary international law.
Whether or not the claims of the Eritrean workers are barred by the acts of state doctrine.

Ruling:
I.
Yes. While states were historically the main subjects of international law, it has long since evolved from
this state‑centric template.
The past 70 years have seen a proliferation of human rights law that transformed international law and
made the individual an integral part of this legal domain, reflected in the creation of a complex network of
conventions and normative instruments intended to protect human rights and ensure compliance with those
rights.
The rapid emergence of human rights signified a revolutionary shift in international law to a
human‑centric conception of global order. The result of these developments is that international law now works
not only to maintain peace between states, but to protect the lives of individuals, their liberty, their health, and
their education.
The context in which international human rights norms must be interpreted and applied today is one in
which such norms are routinely applied to private actors. It is therefore 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.

II.
No. The act of state doctrine has played no role in Canadian law and is not part of Canadian common law.
 Whereas English jurisprudence has reaffirmed and reconstructed the act of state doctrine, Canadian law
has developed its own approach to addressing the twin principles underlying the doctrine: conflict of laws and
judicial restraint.
Both principles have developed separately in Canadian jurisprudence rather than as elements of an
all‑encompassing act of state doctrine. As such, in Canada, the principles underlying the act of state doctrine have
been completely subsumed within this jurisprudence.
Canadian courts determine questions dealing with the enforcement of foreign laws according to ordinary
private international law principles which generally call for deference, but allow for judicial discretion to decline
to enforce foreign laws where such laws are contrary to public policy, including respect for public international
law.

NOTES:
While this has been the ruling of the Supreme Court of Canada, the act of state doctrine is still a well-respected
doctrine in international law. It is a viable defense to a foreign court’s attempt to review the acts of a sovereign
and independent state on the basis of international comity.
The decision of the Supreme Court of Canada on this issue must be taken to be applicable only to Canada,