"Crossing the Rubicon: Major Developments on the Human Rights Obligations of Corporations" 12 March 2020

Two significant legal developments in the Americas — a Canadian Supreme Court judgment issued last week, and a report of the Inter-American human rights system — will shape how we understand international law’s imposition of direct obligations on corporations...

Often, despite a diligent State effort to protect human rights, corporations are able to get away with abuses, thanks largely to inadequate human rights protections in applicable domestic commercial law regimes...In such circumstances, the State in question may not have breached any of its own human rights obligations, making it difficult or even impossible for those affected to make claims before international human rights supervisory bodies. Nonetheless, regardless of whether a State did or did not breach its human rights obligations, victims remain deeply affected. Additionally, even in those circumstances wherein a State is found to be responsible for relevant rights violations, reparations provided by the State may remain insufficient, as apologies or other actions required of business entities that participated in the relevant rights violations may be necessary for reparations to be meaningful...

The Supreme Court of Canada adopted a similar approach in its February 28 decision in Nevsun Resources Ltd. v. Araya concerning allegations of forced labor and inhumane working conditions at the Bisha mine in Eritrea operated by Canadian mining company Nevsun (a helpful overview of the case and facts is available, here). The Court found that custom and peremptory law must be taken into account in order to resolve questions of corporate accountability for human rights violations...