By: Anna Aseeva
Just before most industrialized countries came to a standstill due to the 2020 Coronavirus (“COVID-19”) pandemic, two domestic courts in the United Kingdom (“UK”) and Canada issued groundbreaking judgments, which somewhat passed under the “radar” of public opinion relative to their importance in global sustainability. The two rulings were issued within 24 hours between February 27 and 28, 2020. These rulings outlined the foundation for sustainability obligations, including new obligations under international customary law. These obligations under international law concern environmental and human rights due diligence.
A rising number of voices suggest that the response to COVID-19 is bound to offer a dress rehearsal for global approaches to climate change and global inequalities. I cannot join those enthusiasts, for such a dress rehearsal might be mitigated in distributional terms, especially for people and regions outside the privileged bubbles of the Global North, for whom that dress rehearsal is not a matter of choice. Therefore, I submit that, while the primary role of domestic courts has not changed as such, their part in what I would call “sustainability litigation” is likely to positively influence the existing approaches to climate change and global inequalities in international law. In this post, I elaborate on that by analyzing the two most recent, crucial examples of such litigation.
R v. Secretary of State for Transport (the Heathrow Ruling)
In its decision on February 27, 2020, already baptized as “the Paris Agreement ruling,” the United Kingdom Court of Appeal (“UKCA”) ruled that climate change is a crucial concern before a state authority could consent to a climate-sensitive national policy. The environmental campaign groups Plan B and Friends of the Earth brought the case to the court arguing that the expansion of Heathrow Airport would jeopardize the UK’s ability to substantively reduce the greenhouse gas (“GHG”) emissions necessary to meaningfully fight climate change.
In ¶ 284 of its judicial review of the lower court’s ruling, the UKCA reaffirmed the unlawfulness in the conduct of the UK Secretary of State for Transport. The court found that the Secretary breached UK’s international obligations and domestic law, when he agreed to the expansion of Heathrow in the government’s 2018 Airports National Policy Statement described in ¶ 283.
This judgment puts the obligations of the UK, and also of all parties to the Paris Agreement, to significantly reduce GHG emissions at the forefront of global and local sustainability policymaking. The ruling that the relevant authority’s administrative appraisal of the planned activity was not produced as the law required (¶ 283) drew on different sources. Those included national law, such as UK Strategic Environmental Assessment Directive, and the UK Government’s policy and international commitments on climate change, notably the obligations under the Paris Agreement, according to ¶¶ 222–238, 242–261.
Given that unincorporated treaties do not ordinarily produce direct binding effect in UK law, the Paris Agreement became relevant to the decision under UK law in a rather circuitous, yet pragmatic way. The UKCA refrained from identifying specific national planning or types of administrative assessment that may give rise to public authorities’ duties and accountability in case of lack of due diligence and/or other lacunae in the authority’s administrative appraisal of the planned activity. The ruling allows for its findings to be applied in a number of broad contexts, including climate change. The UKCA’s flexible and pragmatic approach is likely to allow future claimants, including climate advocates and broader civil society, to request that the planning procedures ensure that the dedicated authorities assess the climate impacts that are likely to result from the activities it approves in relevant national policies.
It is difficult to overestimate the court’s verdict in the context of Brexit. The judgment timely reaffirms the UK’s climate obligations under international law as the UK is leaving the European Union (“EU”). At the same, the ruling may have both short-term national and long-term global consequences for infrastructure and fossil fuel projects, since the global political economy still heavily relies on extraction. As Heathrow airport is a “bastion of the global fossil fuel economy,” the court’s stance may imply the UK Government’s obligation to reassess related national policies to ensure they are in line with the Paris Agreement. These could include revisiting subsidies offered to UK extractive and energy companies, or even reviewing and/or revoking licenses for the exploration for fossil fuel.
Last but not least, the ruling also arguably adds to the debate on establishing a particular obligation under customary international law for states to conduct a climate assessment. The climate assessment may differ from, or alternatively make part of, an environmental assessment invoked above, which is a proceeding to measure possible environmental consequences of relevant activities of national planning.1Jane Holder, Environmental Assessment: The Regulation of Decision Making 8–16 (2004). While in a transborder context, the obligation to carry out an environmental assessment is currently recognized as a general obligation under customary international law,2Philippe Sands, Principles of International Environmental Law, 800–807 (2003); Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 I.C.J. 14, ¶¶ 204–205; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Judgment, 2015 I.C.J. 665, ¶ 145. a similar obligation concerning climate assessment in the context of a global environmental harm, namely GHG emissions, does not seem to have been accepted as law. For example, unlike the rather clear states’ duties to perform environmental assessment, in the case of conducting climate assessment, one needs to first determine who owes such duty to whom and why. Following relevant international case law, climate change—plainly a global common concern—may make the duty to conduct climate assessment an erga omnes obligation owed to the international community as a whole (South China Sea, ¶ 927; Whaling in the Antarctic, ¶ 226). This erga omnes option is though far from undisputable (ILC 2018, conclusion 3, ¶ 4).
Nevsun v. Araya (the Nevsun Ruling)3I am grateful to Penelope Simons for her insightful comments on my analysis of this case.
Across the pond, the Supreme Court of Canada (“SCC”) released its long awaited decision in Nevsun Resources Ltd. v. Araya (“Nevsun”) on February 28, 2020. Note that the numerous interveners in this case consisted almost exclusively of academia and civil society, including scholars, law clinics, and human rights litigation advocates. The suit was initiated in November 2014 in British Columbia by three Eritrean nationals, refugees in Canada, who sued Nevsun Resources Ltd., a Vancouver-based mining company, for its complicity in violent, cruel, inhumane, and degrading treatment at Bisha Mine, owned and operated by the Bisha Mine Share Company (“BMSC”) (Araya v.Nevsun Resources Ltd. (“Araya”), ¶ 33), where Nevsun held an indirect majority of a 60% interest and the other 40% being held by the national mining company, an arm of the Eritrean government (Nevsun, ¶ 7).
BMSC subcontracted the construction of the Bisha Mine to the Engineering, Procurement, and Construction Manager (“EPCM”), and the EPCM then further outsourced to other subcontractors owned by members of the Eritrean military (Araya, ¶ 26). The former workers claimed that the subcontractors forced Eritreans conscripted into the country’s National Service Program (“NSP”) to provide their labour at the mine in degrading and inhumane conditions (Araya-Appeal, ¶¶ 3–4). They also sought damages on behalf of all Eritreans that had been forced to provide their labour at that mine since September 2008 (Araya, ¶ 48). Their claims were based on violations of peremptory norms of customary international law, namely, forced labour, slavery, cruel, inhumane or degrading treatment, and crimes against humanity (Araya, ¶ 2).
In its appeal to the SCC, Nevsun argued in part that the court should strike the portion of the respondents’ claim based on customary international law, as it did not on its own create a cause of action. Rather, the respondents’ claims would require the development of new torts, which is a task for the legislative, not the judiciary. (Araya, Appellant’s Factum, ¶ 61). In January 2019, the appeal ended up before the SCC.
On February 28, 2020, the SCC decided that, to the extent customary international law norms have been adopted into Canadian law, they bound Nevsun as a Canadian corporation (Nevsun, ¶ 132).
In a 5 to 4 landmark judgment, the majority of the SCC recognized Canada’s international human rights obligation to provide an effective remedy (Nevsun, ¶ 119) and ruled that “it was not plain and obvious” that Canadian courts cannot develop a civil remedy in domestic law for corporate violations of customary international law that is part of Canadian law (Nevsun, ¶ 122). Moreover, this could be done either through the development of new torts or through a direct remedy for violations of customary international law (Nevsun, ¶¶ 127–128).
The SCC held that the civil lawsuit could go forward and that the British Columbia Supreme Court would have to decide in September 2021 whether Nevsun breached customary international law and, if so, how such harm should be remedied (Nevsun, ¶ 131). This decision opens the door for more cases to be brought in Canadian courts for violations of human rights or failure to engage with environmental due diligence against Canadian extractive corporations operating transnationally.
While Nevsun is a seminal judgment in terms of opening Canadian courts to these types of claims, it may also be persuasive in other common law jurisdictions. It is in many ways a landmark ruling that will surely be referred to in relevant future decisions. In that regard, it has the potential to take the international community where the Supreme Court of the United States’ Kiobel v. Royal Dutch Petroleum 2013 ruling was hoped to take it: to a creation of extraterritorial tort liability of corporations for serious environmental, fundamental rights, and related abuses. If more states recognize such new torts based on customary international law or direct liability in customary international law, it will contribute to state practice and opinio juris on this issue. That would make it much more difficult for states and businesses to contest the idea that corporations have international environmental and human rights obligations.
Both rulings demonstrate that if a state (the Heathrow ruling) or a company (Nevsun) breaches the sustainability norms of international law, it may now be held liable under domestic law. Here, however, an important reservation is in order: whether international law—custom or treaty—may require obligations for states or corporations in domestic law is subject to each specific national jurisdiction. On the other hand, the participation and input made by non-state actors in both cases (environmental campaign groups in Heathrow; workers, local populations, and human rights advocates, including academia and non-governmental organizations, in Nevsun) may activate necessary developments in interstate practice that can end up generating custom.
What to Expect Next
Both rulings are expected to have significant implications in international law, in particular, international investment law and arbitration. Regarding the Heathrow decision’s climate change law dynamics, since the Maffezini v. Spain award, international investment arbitration has presented a heterogeneous set of precedents on domestic measures relating to environmental assessment. Overall, environmental assessment is likely to “inevitably be of great relevance for many kinds of major investments in modern times” (Bilcon v. Canada, ¶ 597). A customary obligation to conduct a climate assessment is about to emerge. Yet its complete acceptance faces scepticism that GHG emissions represent a global cumulative environmental harm, and thus, that the obligation to protect the atmosphere is an erga omnesobligation.
In the specific Heathrow case, the court did not explicitly mention anything related to the debate whether there was a clear obligation under customary international law to conduct a climate assessment. Nor has the UKCA relied on customary international law or said anything that would contribute to an opinio juris that such an assessment was required. However, if the Heathrow ruling activates the relevant preexisting decisions of domestic courts (Gray v. Minister for Planning; Greenpeace New Zealand v. Northland Regional Council), supports the ongoing climate lawsuits, such as Zoubek et al. v. Austria or Notre Affaire à Tous and Others v. France, and triggers new ones, I suggest that that would arguably create the necessary amount of evidence of acceptance of climate assessment as law through the element of the formation of international custom through the rulings of national courts (ILC 2018, conclusion 10, ¶ 2).
As to international human rights obligations of corporations, in the paradigmatic 2016 Urbaser v. Argentina (“Urbaser”) counterclaim, the investment tribunal held that, while the norms of customary international law provide for a duty to perform for certain rights, jus cogens norms lay down a universal obligation of “the international community of states in its entirety” to abstain from committing certain acts under Article 53 of the Vienna Convention on the Law of Treaties (“VCLT”). In Urbaser, the human right to water was determined as an obligation to perform, implying a state obligation to provide its population with water (¶ 1208). The arbitrators ruled that the situation would have been different in a case where an obligation to abstain, such as a prohibition against acts violating human rights, would have been at stake. Such an obligation can be immediately applied, not only on states, but equally on individuals and other private parties (¶ 1210). This assertion, it is argued, extends beyond human rights norms framed as customary international law to those human rights framed as prohibitions—jus cogens. While in Urbaser, the arbitrators did not specify which norms bound foreign investors, in the Nevsun ruling, the judges were quite clear that these prohibitions could apply to foreign private companies.
Although not in contradiction with the Urbaser tribunal’s reasoning, in Nevsun, the SCC goes far beyond regarding the obligations of companies under international law. It plainly concludes that there is no reason for customary international law (with no distinction between positive and negative obligations) to not directly apply to corporations for violations of obligatory, definable, and universal norms of international law (Nevsun, ¶ 113). It is even argued that, had the Urbaser tribunal followed Nevsun’s interpretation, the investor would have clearly been in violation of its duty to perform—a positive obligation to ensure citizens’ international human right to water. Nevsun’s logic would make it a direct obligation under international law instead of a mere contractual obligation.
To conclude, the two rulings offer an alternative dress rehearsal to the one promoted by the proponents of the “COVID-19 dress rehearsal.” These judgments show how different actors and society at large deal with the conflicts of jurisdictions and clashes of norms regarding sustainability issues today. The rulings will shape how we understand state and corporate direct liability of human rights and environmental due diligence under international law.
More broadly, these rulings underline the importance, and, indeed, ways of going beyond a plain, unitary boundary to capture the different legalities in the global order, yet involving modern international law properly through the use of its primary sources. Besides, the two rulings offer a more balanced system that better integrates strategic litigation, aspirations for local participation and pluralistic legal representation, as well as concrete sustainability considerations. In sum, such law allows a less hierarchical and unequal, more horizontally applicable and definitely a more inclusive model of a “post-national” law that could be seen as emerging global sustainability law.
Editors: Natasha Nicholson Gaviria; Beier Lin