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."
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."
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).
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.
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
Trained as a lawyer, I now focus on legal business development, corporate social responsibility (CSR), and business & human rights. My past experience includes work on complex commercial litigation, international human rights advocacy, education policy, pro bono legal representation, and analysis of CSR challenges in both the private and public sectors.