This article explores some aspects of the Canadian Supreme Court’s decision on Nevsun Resources v Araya in the light of its exposition on the act of state doctrine and application of core human rights as an integral aspect of international customary law and common law. It examines the Nevsun decision in the context of recent statutory developments in France and the Netherlands, the promised law reform in the European Union, and the proposed business and human rights treaty. I argue that it is high time to abandon the doctrinal fossil that human rights obligations do not apply to corporate governance and operations. It is hoped that COVID-19 contexts, and a post-pandemic world, will expeditiously result in the willing adoption of a treaty on business and human rights.

In early 2018, the Polisario Front and the Saharawi Arab Democratic Republic (SADR) obtained a favourable ruling from the South African Courts, granting the SADR ownership over a cargo of phosphate aboard the NM Cherry Blossom originating from a mine in the Moroccan-controlled part of the Western Sahara. Although hitherto largely unnoticed in legal circles, the Cherry Blossom case raises important questions concerning the outer bounds of State immunity and the scope of the act of State doctrine. In addition, the case holds potentially far-reaching ramifications for the international legal order if other domestic courts were to follow suit.

This article examines the extent to which state officials are shielded from foreign jurisdiction by functional immunity when they stand accused of committing international crimes. It argues that the development of the principle of individual responsibility for international crimes should be understood as posing a limit to the operation of the rule of functional immunity. States have agreed that international crimes, even when committed within the context of the ostensible exercise of state authority under international law, do not qualify as official acts for functional immunity purposes since they can no longer be solely attributed to the state and not to the official personally. The article thereby takes issue with the increasingly popular conceptualization of functional immunity in terms of an act of state immunity, in which attribution, rather than exclusive attribution, is the controlling notion. It does acknowledge that international law may pose limits on the competence of national courts to establish jurisdiction in certain circumstances, but proposes to undo the discussion of the shackles of immunity law and to recognize the operation of an alternative, less far-reaching legal principle.

In these three breach-of-contract actions, United States federal courts considered the liability of home offices of U.S. banks for obligations of their foreign branches in the event of foreign governmental expropriation or exchange control measures. In each decision the court of appeals did not apply the act of state doctrine and gave no effect to the foreign governmental action, largely on the ground either that the situs of the debt was not within the exclusive jurisdiction of the foreign state carrying out the governmental measure at issue or that the law governing the obligation was not that of the foreign state.

The former majority shareholders of Industria Nacional de Clavos y Alambres de Puas, S.A. (INCA), a large Nicaraguan steel company, sought to recover from Harlow & Jones, Inc. (H & J), a U.S. steel company, the purchase price of a shipment of undelivered steel billets. Following the Sandinista revolution, the Nicaraguan Government had “intervened” in INCA and it, too, demanded the funds that H & J interpleaded into the court. The district court rejected the claim of the Sandinista Government and allocated the funds to the benefit of all parties who held shares in the company prior to the intervention. On cross-appeals by the claimants, a panel of the United States Court of Appeals for the Second Circuit (per Kaufman, J.) affirmed in part and reversed in part, and held: the act of state doctrine does not bar judicial resolution of the dispute over the funds; the actions of the Sandinista Government amounted to a taking without compensation that will not be enforced by the U.S. courts; and the district court’s allocation of pro rata shares for all of the preintervention stockholders, including minority interests, was equitable.

Act of State — !Whether Open to Question in Local Courts.

Treaties — Operation of — Peac1e Treaty — Treaty of Lausanne — Act of State — Whether Open to Question in Local Courts — Palestine.

Treaties — Interpretation of — Travaux Preparatolres — Article 60 of Treaty of Lausanne — Meaning of Term “Subrogated”.

State Succession — Succession into Rights — Act of State — Nature of — Respect of Private Rights — Private Property in Palestine of the Sultan Abdul Hamid — Transfer of Property to Ottoman State by Imperial Decree (Iradeh) — Treaties — Interpretation of — “Subrogation” — Travaux Préparatoires — Article 60 of the Treaty of Lausanne — Palestine — Rectification of Land Register.

Recognition — As an Ally — The Fighting French Committee — Effect of Recognition.

Act of State — Foreign Relations — Conduct of — Statements by the Executive Department — French National Committee during the Second World War — Recognition by Commonwealth of Australia.

Act of State — French Practice — Assistance given by the Allied Powers from 1918 to 1921 to the Government of Admiral Koltchak — Agreement of March 14, 1919, on the Creation of an Interallied Railway Committee — Requisitioning of Coal by the Koltchak Government — Lack of Competence of the French Courts

Act of State — Jurisdiction of Consular Officials — Treaty of Tien-Tsin of June 27, 1858, between China and France — Judicial Powers Granted to French Consuls in China by Article 35 of the Treaty — French Administrative Courts — Competence to Hear Cases concerning the Legality of Decisions Taken by French Consuls in the Exercise of these Powers

Act of State — International Bodies — Reparation Commission — Legal Status of the French Agents of the Commission — Lack of Competence of the French Courts

Act of State — Decisions of International Authorities — Occupation of the Territories on the Rhine by the Allied Armies (1919–1930) — Validity of the Measures of the Interallied High Commission for the Occupied Territories

Act of State — Power to Proclaim Martial Law — Right to Question before Courts.

Capitulations — Whether Affecting the Right to Proclaim Martial Law — British Protectorate over Egypt.

British Protectorate in Egypt — Recognition by Foreign Powers — Power of British Commander-in-Chief to Declare Martial Law — Act of State — Capitulations.