Case Note: Case of Araya v. Nevsun Resources Ltd in the Canadian Courts

Canadian courts hear claims that violate Canada's domestic law.But what happens when a corporation violates fundamental human rights enshrined in customary international law, such as the prohibition against slavery, forced labor, and torture?Can the victims of these human rights violations bring a claim against the corporation in Canadian courts?Will Canadian courts hear this customary international law claim?These questions are at issue in Araya v Nevsun Resources Limited.If the answer is yes, this case could open the door to judicial remedies for victims of a corporation's customary international law violations. Case BackgroundThe Plaintiffs in this case are Eritrean refugees, Gize Yebeyo Araya, Kesete Tekle Fshazion, and Mihretab Yemane Tekle.They allege they were conscripted into the Eritrean National Service Program and forced to work in the Bisha gold mine. 1 Nevsun Resources Limited is a British Columbia mining company that contracted with the Eritrean government to develop the Bisha gold mine. 2 The Plaintiffs allege Nevsun is directly liable for the mine's forced labor practices.Eritrea introduced compulsory military service in 1995, requiring every person under the age of 50 to serve in its National Service Program. 3 This Program provides labor for various companies.4 By rule, the Program requires each Eritrean citizen to serve 18-months-six-months of military training and 12-months of military service.5 But, in reality, military conscripts are enlisted in the program indefinitely, serving an average of six and a half years.6 The Plaintiffs allege Nevsun used Eritrean National Service Program laborers to build infrastructure and mine facilities at the Bisha Gold Mine.They assert Nevsun forced them to work 12-hour days, six or seven days a week, fully exposed to the sun, in temperatures reaching 47 degrees Celsius.7 The Plaintiffs also claim they were tied up and beaten, received little food, and were housed in huts without beds or electricity.8 Human rights groups reported that laborers who attempted to flee these egregious working conditions were detained and tortured.9 The Plaintiffs brought a claim against Nevsun for damages under both Canadian domestic law and customary international law. 10 Issue: Will a Canadian Court Hear a Claim for Damages under Customary International Law?The Plaintiffs allege their treatment as laborers for Nevsun violates customary international law prohibitions against forced labor; torture; slavery; and cruel, inhuman, and degrading treatment.11 Customary international law is a binding source of international law rooted in widespread and consistent state practice with opinio juris-a state's belief it has a legal obligation to conform with the widespread and consistent practice.12 Once a rule attains customary international law status,

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