By Michael Kourabas
Guess what? It turns out that Valentine’s Day chocolate you recently enjoyed might have been the product of child slave labor. If that’s true, and if the multinational corporations responsible for producing that chocolate ignored or unwittingly aided the use of child labor in their foreign supply chains, can they be held liable in U.S. courts? For now, the answer appears to be a resounding (and perhaps encouraging) “maybe.”
Chocolate and human rights
First, a few words about chocolate. Until the Ninth Circuit Court of Appeals made news with its December 2013 opinion in Doe v. Nestle, I was mostly in the dark regarding the chocolate industry’s exploitative underbelly. I was keenly aware that my coffee habit perpetuates barely-livable wages for farmers in South America and East Africa; that my affordable clothing probably came from a Bangladeshi factory that may have recently burned to the ground (with the workers trapped inside, of course); and that my steak can likely be traced back to a corn-fed, hormone- and antibiotic-laden cow who once lived on a farm that spewed feces into the water supply. But chocolate? Surely that is produced by well compensated, humanely treated and unionized farmers, yes?
As it turns out, no. Chocolate is just like everything else, and we should all now feel doubly guilty when we indulge.
According to the World Cocoa Foundation, West African countries like Cote d’Ivoire supply more than 70 percent of the world’s cocoa market, and much of that cocoa is farmed by children. Some of the children end up farming cocoa because they need work; others are sold by their families to traffickers or farm owners. The slave and child labor practices of the cocoa industry have been well documented, and legislation aimed at clarifying the sources of consumer chocolate even made its way to the Senate back in 2001 (where, to nobody’s surprise, it died). The aborted U.S. legislation, introduced by Democratic Congressmen Harkin and Engel, led instead to the creation of the well-meaning but toothless Harkin-Engel Protocol (aka the “Cocoa Protocol”) — a voluntary agreement among the world’s major chocolate producers to end the worst forms of child labor in their supply chains. Yet, years after the Cocoa Protocol’s adoption, UNICEF estimated that as many as “200,000 children are [still] involved in the worst forms of child labor on cocoa farms throughout Ivory Coast.”
Chocolate in the courts
Which brings us back to Doe and the real point of this post. Nearly a decade ago, three former cocoa farmers from Mali (the “Doe Plaintiffs”) filed a class action lawsuit in the U.S. District Court for the Central District of California, against Nestle, Archer Daniels Midland (“ADM”) and Cargill (together, the “Chocolate Defendants”) under the Alien Tort Statute (“ATS”). The Doe Plaintiffs alleged that they were trafficked into Cote d’Ivoire from Mali at young ages (between 12 and 14 years old); spent years working on Ivorian cocoa farms that supplied the Chocolate Defendants; were never paid for their often grueling work; and were frequently beaten. Further, they claimed that the Chocolate Defendants were liable for aiding and abetting the forced labor, cruel and inhuman treatment, and torture they suffered at the hands of the Chocolate Defendants’ Ivorian cocoa suppliers.
How did the chocolate defendants “aid and abet” human rights violations?
Mostly by implication. According to the Doe Plaintiffs, the Chocolate Defendants had especially close relationships with their Ivorian suppliers and, as a result, exercised significant control over the suppliers’ operations and conduct.
Moreover, “[a]s part of Defendants’ ongoing and continued presence on the cocoa farms, Defendants had first hand knowledge of the widespread use of child labor on said farms, in addition to the numerous, well-documented reports of child labor by both international and U.S. organizations.” Doe v. Nestle, 2009 WL 2921081, at para. 45 (C.D. Cal. July 22, 2009) (Plaintiffs’ first amended complaint).
Put another way, the Chocolate Defendants had to know about the abusive conduct and, despite having the power to change that conduct (or sever the relationships), the Chocolate Defendants did nothing and instead continued to rely on these suppliers for cheap labor and cocoa.
Wow. Yet, as compelling as those allegations may sound, the California District Court threw the case out because–and I’m oversimplifying a bit here–the aforementioned Alien Tort Statute “does not recognize an international law cause of action for corporate violations of international law” in the first place. Doe, 748 F. Supp. 2d 1057, 1124 (C.D. Cal. 2010) (my emphasis).
But I thought that was the whole point of the ATS…
Well, you thought wrong! Over time, the ATS has generated a rich and confusing body of law, and the question of the statute’s application to corporations was recently addressed in the landmark 2013 Supreme Court decision, Kiobel v. Royal Dutch Petroleum (where Nigerian citizens alleged that Shell and other oil companies aided the Nigerian government in violently suppressing resistance to drilling operations). Plenty of smarter people have opined on Kiobel and the evolution of the ATS, but suffice it to say that, as of the end of last year, the prospect of successful ATS claims against corporations (at least for conduct occurring outside the U.S.) appeared dismal.
Yet, the Doe Plaintiffs appealed anyway and the Ninth Circuit, playing David to Kiobel’s Goliath, reversed (!). In December of last year, the court held that Kiobel actually supported ATS liability against corporate defendants like Nestle, et al., and granted the Doe Plaintiffs leave to replead. (Don’t bother asking how or why the Ninth Circuit reached this conclusion, but it was probably right.) An unexpected victory for the plaintiffs and international human rights lawyers around the world, to say the least.
Access to justice
So, that’s great, right?
Well, Ninth Circuit-inspired hope aside, the prospect of corporate liability for human rights abuses still looks pretty grim. The truth is that many U.S. courts remain hostile to claims like those pursued in Doe, and even if the Doe Plaintiffs wind up prevailing in the Ninth Circuit, it is hard to imagine such a decision holding up on appeal to the Roberts Court.
Of course, local courts — to the extent they even exist — are unlikely to be any help to plaintiffs alleging human rights violations against multinationals. As Human Rights Watch observed of Cote d’Ivoire in 2010: “The [Ivorian] judicial system remains plagued by corruption, a lack of independence, and insufficient resources.” Unfortunately, those are traits shared by many states on the African continent and beyond, particularly in regions with cheap labor and abundant resources.
It seems to me that the ATS exists for these very reasons; otherwise, what are foreign victims to do when a major corporation contributes to international human rights violations? Access to effective remedies is the third pillar of the UN Guiding Principles on Business and Human Rights, and the current realities have led some nations to call for a binding treaty on business and human rights. Yet, it is hardly clear that such a treaty would solve the access-to-justice problem.
So what is the way forward? First, we can hope for a well-reasoned, positive outcome in Doe, and for (favorable) clarification from the Supreme Court regarding the application of the ATS to corporations. In the meantime, we can work toward strengthening the rule of law and encouraging multinationals to continue to take seriously and work to implement the Guiding Principles. It may be a dim light, but it’s there.
Image credit: Flickr/little*star