On Tuesday, the Supreme Court heard arguments in the consolidated cases Nestlé Inc, USA v. Doe and Cargill, Inc. v. Doe. In these cases, six Malian nationals allege that they were trafficked and used as slaves on cocoa plantations in the Ivory Coast.
As I wrote about last month, child slavery and forced labor are a real problem in the chocolate supply chain. In Tuesday’s case, the Supreme Court considered whether the Alien Tort Statute can be used to convict global corporations like Nestlé and Cargill for aiding and abetting in human rights violations.
I’m not a lawyer (yet), so I won’t attempt to explain every aspect of the case. But there are a few important things to consider here to help us understand how the justice system can address human trafficking and human rights violations in global supply chains.
What is the Alien Tort Statute?
The Alien Tort Statute (ATS) was passed by the first Congress in 1789 and was signed into law by President George Washington. Its original purpose was to address diplomatic relations and piracy. The ATS reads:
“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
Basically, this means that foreign nationals can bring cases against Americans in US federal courts for violations of international law. Since the 1980s, the ATS has been used to bring redress for victims of human rights abuses committed in other countries. For example, courts have allowed ATS lawsuits for human rights violations such as torture and war crimes committed by Americans abroad.
What is the Role of the ATS in Nestlé USA, Inc. v. Doe?
In these cases, the six Malian nationals brought lawsuits against American corporations– Nestlé and Cargill. They alleged that they were trafficked and sold to cocoa plantations in Ivory Coast. There, they were forced to work and were beaten if they didn’t work. The former child slaves accuse Nestlé and Cargill of aiding and abetting these human rights abuses by buying cocoa from these plantations and otherwise supporting them.
The central question in this case is whether U.S. corporations can be sued under the ATS. While a previous case determined that foreign corporations cannot be held liable for human rights abuses under the ATS, there is no existing precedent for the liability of U.S. corporations.
In questioning the corporations’ lawyers, Supreme Court justices seemed hesitant to completely exempt corporations from being held liable under the ATS. For example, Justice Kagan asked, “if you could bring a suit against 10 slaveholders, when those 10 slaveholders form a corporation, why can’t you bring a suit against the corporation?”
Her line of questioning is more complicated than this single question that it comes down to, but it shows the central question of the argument: why shouldn’t U.S. corporations be held liable for their actions under the ATS?
The Supreme Court is likely to allow corporations to be held accountable under the ATS with its decision. But this lawsuit particularly is unlikely to survive, based on the weakness of the allegations presented and the lack of evidence that the companies directly acted to commit human rights abuses.
Listen to the oral arguments or read the transcript.
Here’s Where the Trafficking Victims Protection Act Comes In
Several justices questioned the role of the judiciary in defining the scope of the ATS. Noting that the ATS was intended to cover a narrow set of international norms, Chief Justice Roberts suggested that any expansion of the ATS to include corporate liability should come from Congress, not the courts.
The Trafficking Victims Protection Act (TVPA), passed by Congress in 2000 and reauthorized in 2008, gives the federal government tools to fight the trafficking of persons domestically and globally. For example, it created the Trafficking in Persons (TIP) Office within the State Department.
Several justices noted that they see the TVPA as evidence that Congress has acted in the area of international human trafficking, so the Court shouldn’t rule to expand the ATS by confirming that it includes corporate liability. They emphasized that the Court’s role is limited here.
Where Human Rights Violations in the Chocolate Supply Chain Stand Today
A study released this year, conducted by the University of Chicago and funded by the U.S. Department of Labor, shows that child labor continues to be prevalent in the cocoa growing regions of Ivory Coast and Ghana. Major chocolate companies have failed to meet the benchmarks to eradicate slavery and child labor from their supply chains.
While the case before the Supreme Court this week alleges human trafficking and slavery, not all children working on cocoa plantations are trafficked and held as slaves. Some are tricked into working on these plantations by the promise of well-paying work. Some are victims of forced labor, and some work willingly. But the vast majority are not earning a living wage. And all of these children working on cocoa plantations are working as child laborers in conditions that American consumers would never permit for their own children.
Your Role in Eradicating Child Slavery and Child Labor
It will be months before we read the Supreme Court’s decision in Nestlé. But you can act before then.
Educate yourself about chocolate supply chains. Watch The Chocolate Case and The Dark Side of Chocolate. Read more about this topic in my previous article and in this Washington Post story.
Buy slave-free chocolate. If you read my last article, you know about Tony’s Chocolonely, a chocolate brand that specializes in slave-free chocolate. They guarantee their cocoa growers a living wage and encourage other chocolate companies to do the same. They even submitted an amicus brief supporting the Malian nationals in Nestlé. Know who’s growing and making your chocolate– if it’s difficult to find out, that’s a red flag.
Tell your elected representatives to take action. Like Chief Justice Roberts said, there is room for Congress to act. Tell your elected representatives that you support legislation like the TVPA and the Harkin-Engel Protocol.
Be an educated consumer. Globalization, and more specifically, global supply chains, have helped to hide human rights abuses, unsafe working conditions, and unfair compensation. When you’re purchasing physical goods, make sure you know who made them and how they were compensated for their work.
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