By Grace Davis
New York City, New York
Nestlé USA v. Doe I: On December 1, 2020, the Supreme Court will issue a judgment to clarify the breadth of the Alien Tort Statute (ATS) in response to accusations of child slavery against major US chocolate corporations, including Nestlé and Cargill. A group of Malian citizens said that, as children, they were enslaved by Nestlé and Cargill on cocoa plantations in Côte D’Ivoire (the Ivory Coast), a former French colony that produces approximately two-fifths of the world’s cocoa. The chocolate industry has a long history of human rights violations and child slavery on cocoa farms in West Africa, many of which are in the Ivory Coast. Over two million West African children comprise the cocoa labor force.
The Alien Tort Statute (ATS) is a provision of the 1789 Judiciary Act. According to Just Security, the statute grants federal courts jurisdiction over “any civil action by an alien for a tort [civil wrong resulting in legal liability for the person who commits the act] only, committed in violation of the law of nations or a treaty of the United States.” In simpler terms, this means that federal courts have the power to rule on any act committed by a non-citizen for a tort only if that act violates international treaties of which the United States is a member.
The Supreme Court dismissed the citizens’ case last June after the Trump administration reversed its position on corporate liability under the ATS. The Trump administration urged the Supreme Court to hold that domestic corporations, as opposed to foreign ones, are not subject to suit for human rights violations under the ATS.
The U.S. Court of Appeals for the Ninth Circuit reversed the Supreme Court’s dismissal of the case on the grounds of corporate liability for aiding and abetting slavery, the prohibition of which is “universal,” according to Oyez, the unofficial archive of the Supreme Court. Still, the justices in Nestlé v. Doe, who initially ruled against the case, will only clarify the scope of the ATS as opposed to prosecuting Nestlé and Cargill.
Both domestic corporations, Nestlé USA, Inc. and Cargill, Inc., effectively monopolize cocoa production in the Ivory Coast. The companies function “with the unilateral goal of finding the cheapest source of cocoa in the Ivory Coast.” Per Oyez, many accounts of the corporations’ labor practices posit that Nestlé and Cargill’s quest for cheap chocolate results in a “system built on child slavery to depress labor costs.”
Slave Free Chocolate, a “coalition to bring an end to child slavery and the worst forms of child labor in the cocoa industry,” states that child slavery in West Africa is still a problem in spite of the eight largest chocolate companies’ legal commitment to abolish child slavery under the Harkin-Engel Protocol of 2001. Introduced by Congressman Eliot Engel (NY-17), the Harkin-Engel Protocol originally called for a “no child slavery” label for chocolate products sold in the United States. Former Senator Tom Harkin (D-IA) modified the amendment to be a contract for the growing of cocoa beans “in a manner that complies with…the elimination of the worst forms of child labor” and adult forced labor on cocoa farms in West Africa.
The citizens allege that the defendants, Nestlé and Cargill, knowingly provide financial and agricultural support to farmers who employ forced child labor. An unnamed Ivory Coast farmer admitted to the Washington Post in 2019 that the companies’ labor practice “is a kind of slavery… But they bring them here to work, and it’s the boss who takes the money.”
End Slavery Now, an organization that “believes we all have a role in ending slavery,” claims that children on Ivorian plantations work from dawn until night, using machetes and chainsaws to harvest the cocoa. Children are either sold into enslavement by their families, trafficked from comparatively poorer countries including Mali and Burkina Faso, or kidnapped under the guise of there being better economic and educational opportunities in the Ivory Coast. Physical violence prevails on the plantations—workers are whipped for working too slowly or trying to escape. Many enslaved children never see their families again.
In a recent video narrated by British actor Idris Elba, Dutch ethical chocolate brand Tony’s Chocolonely called for the abolition of slavery in the cocoa industry. Tony’s Chocolonely aims to, in its words, “fight against systematic inequality and exploitation in the chocolate industry. The company has also started a “Petition for 100% Responsibility” that outlines its goal of making “100% slave-free chocolate the law” by petitioning governments to “pass new EU legislation and enforce serious consequences for those who break the existing US law and UK Slavery Act.”
Advocates of change in the chocolate industry believe that individuals can make a difference. Slave Free Chocolate asserts that “Chocolate consumers have real power. Let’s use it together to help these children.”