ARAYA V. NEVSUN AND THE CASE FOR ADOPTING INTERNATIONAL HUMAN RIGHTS PROHIBITIONS INTO DOMESTIC TORT LAW

By Farkas, E. Samuel | University of Toronto Faculty of Law Review, Winter 2018 | Go to article overview

ARAYA V. NEVSUN AND THE CASE FOR ADOPTING INTERNATIONAL HUMAN RIGHTS PROHIBITIONS INTO DOMESTIC TORT LAW


Farkas, E. Samuel, University of Toronto Faculty of Law Review


I     INTRODUCTION: OUTLINING THE SCOPE OF THE PROBLEM             132 II    ROADMAP AND RECOMMENDATION: RECOGNIZING NOVEL CIL TORTS      134 III   ARAYA VNEVSUN: A GLIMMER OF HOPE FOR TORTS       BASED ON INTERNATIONAL LAW                                   134 IV    CIL AND JUS COGENS NORMS: ARA YA VIOLATIONS MEET       THE JUS COGENS THRESHOLD                                     136 V     EXISTING APPROACHES IN THE TRANSNATIONAL CONTEXT:       THE NEED FOR CIL TORTS PERSISTS                              138       A. Choc v Hudbay                                             139       B. Tahoe v Garcia                                            141       C. The Propriety of CIL Torts Persists                       142 VI    PROPOSED AVENUE FOR SEEKING REDRESS: THE CREATION OF       CIL TORTS                                                    145 VII   U.S. ALIEN TORTS STATUTE JURISPRUDENCE: A RESPONSIVE,       APPROPRIATE APPROACH TO CIL TORTS                            146       A. Overview                                                  146       B. The Alien Torts Statute                                   146       C. Recognized CIL Torts in the U.S.                          147 VIII  CORPORATE LIABILITY IN THE US: THE POSSIBILTY       OF CORPORATE LIABILITY FOR CIL TORTS                         148       A. Overview                                                  148       B. Majority of U.S. Jurisprudence Endorses Corporate          Liability for CIL Torts                                   149       C. Domestic Law Should Create the Parameters of a CIL Tort   150 IX    ACADEMIC SUPPORT FOR CIL TORTS IN CANADA:       THE WORDS OF JUSTICE BINNIE                                  151 X     THE CANADIAN LAW OF ADOPTION: THE DOOR OPENED FOR CIL TORTS  153       A. Overview                                                  153       B. Foundations of Adoption                                   155       C. Contemporary Adoption Cases                               155       D. The Shortcomings of the Kazemi Argument: Permissive          and Prohibitive Norms                                     158 XI    SHORTCOMINGS: AN INSUFFICIENT SOLUTION       AND THE OUTSTANDING NEED FOR LEGISLATION                     160       A. The Limited Role of the Judiciary and Public Policy          Counterarguments                                          161       B. Remaining Hurdles to Bringing Claims for Transnational          Wrongdoing                                                164 XII   CONCLUSION: COURTS" AUTHORITY TO MAKE       A USEFUL CONTRIBUTION                                        165 

I INTRODUCTION: OUTLINING THE SCOPE OF THE PROBLEM

Canadian companies maintain operations in a multitude of countries around the world. Disappointingly, a growing number of studies and legal cases demonstrate that these companies' foreign operations are failing to meet internationally accepted standards for human rights. By way of example, the Justice and Corporate Accountability Project at Osgoode Hall reported that from 2000 to 2015 Canadian companies' operations in Latin America contributed to 44 deaths and over 400 non-workplace injuries. (1) Further, Canada stands out even amongst other large mining nations for its harmful impact on foreign countries; it contributed to more than four times the amount of mining-related transgressions perpetrated by the next worst states, Australia and the United Kingdom, between 1999 and 2009. (2)

Holding Canadian corporations legally accountable for wrongs committed in foreign countries is difficult for a myriad of reasons. This paper focuses on one of these reasons; namely, the fact that Canadian courts have yet to recognize private causes of action for breaches of international legal norms. (3) More specifically, plaintiffs have not yet been able to bring civil actions for internationally recognized human rights violations such as enslavement and torture. There are other barriers to successfully holding Canadian corporations liable for their conduct abroad, such as jurisdictional competency and the corporate veil doctrine. …

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ARAYA V. NEVSUN AND THE CASE FOR ADOPTING INTERNATIONAL HUMAN RIGHTS PROHIBITIONS INTO DOMESTIC TORT LAW
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