Chocolate and the International Prohibition on Child Slavery

A blog post by Megan Coppa, Junior Associate.

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply.[1] Côte d’Ivoire, also known as the Ivory Coast, is the largest cocoa producing country within West Africa.[2] Currently, the Ivory Coast employs approximately 6 million farmers on its cocoa farms; 2.3 million of which are children. [3] These children exposed to extremely dangerous working environments, which involve exposure to hazardous dust, flames, smoke, and chemicals as well as the utilization of tools, without proper training, and various forms of physically demanding work—they are child slaves.[4]

In the early 2000’s, the Ivorian Government, along with 182 other countries, ratified the International Labour Organization’s Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Convention 182), which provides that “any member shall take immediate and effective measures to secure the prohibition and elimination of child labour as a matter of urgency.”[5] In addition to Convention 182, the Harken-Engel Protocol was implemented to further Convention 182’s purpose specifically with the child labor epidemic on cocoa farms.[6] This protocol designated a timeline of goals and standards to be met by all corporations operating in any of the participating regions who knowingly receive their cocoa beans from farms that utilize child labor.[7]

Despite the international efforts to cease child slavery on cocoa farms, several international food and beverage corporations ignored the required deadlines and goals of the Harken-Engel Protocol and Convention 182.[8] As a result, the International Labour Rights Forum (ILRF) brought an Alien Tort action against those corporations, on behalf of three Malian child-slaves, asserting liability of child slavery under the theory of aiding and abetting.[9] The Alien Tort Statute (ATS) is a United States statute that provides a federal forum to aliens for tort actions in violation of the law of the nations; thus, allowing these child-slaves the opportunity to seek U.S. intervention.[10]

The ATS’s lack of legislative history has presented several unanswered questions for our courts, which has simultaneously resulted in a fifteen-year rollercoaster of litigation between the ILRF and these corporations. In 2005, when the lawsuit was commenced, it had not been determined whether the ATS applied extraterritorially or whether it extended to corporate liability.[11] This posed a problem for the ILRF because they labeled both domestic and international corporations as defendants and relied on conduct that occurred outside the United States. Moreover, while the prohibition of child slavery might seem like an obvious international norm, it was not the type of violation of the law of nations that the drafters of the ATS likely intended to fall within its scope.[12] Between 2005 and 2018, the Supreme Court has explored the mysterious territory that is the ATS and attempted to define it. Ultimately, the Court concluded that the statute does not extend extraterritorially, but that it does extend to corporate liability.[13] In light of these holdings, the Ninth Circuit has directed the ILRF to amend their complaint accordingly—their fourth amendment to their initial complaint.[14]

Unfortunately, this case has no end in sight as Nestle, USA has recently petitioned for certiorari in September of 2019 on the issues of whether an aiding and abetting claim brought under the ATS can overcome the extraterritoriality bar since the ILRF cannot trace the alleged harms, which occurred abroad at the hands of cocoa farm owners, to the general corporate activity in the United States and whether the judiciary even has the authority under the ATS to impose liability on domestic corporations.[15] The ILRF submitted their response in December of 2019 and, in January of 2020, the Court invited the Solicitor General to file a brief to express the views of the United States on the issue.[16] It is presently unclear whether our world’s chocolate supply will ever be slave-free.

Photograph:

Creator: Daniel Rosenthal/laif

Copyright: Hollandse-Hoogte

Death By Chocolate

[1] Marius Wessel & P.M. Foluke Quist-Wessel, Cocoa Production in West Africa, A Review and Analysis of Recent Developments, 74-75 NJAS – Wageningen J. of Life Sci. 1, 2 (2015).

[2] Id.

[3] A Story Map Created by Erica Yock, Cocoa Industry in the Côte d’Ivoire, (last visited Mar. 5, 2020), https://www.arcgis.com/apps/Cascade/index.html?appid=dd19d4b6444e492da5b069d62d2c3ecb.

[4] Id.

[5] Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, June 17, 1999, http://www.un-documents.net/c182.htm.

[6] The Harkin-Engel Protocol, Slave Free Chocolate, http://www.slavefreechocolate.org/harkin-engel-protocol.

[7] Id.

[8] Peter Whoriskey & Rachel Siegel, Cocoa’s child labor, The Wash. Post (June 5, 2019), https://www.washingtonpost.com/graphics/2019/business/hershey-nestle-mars-chocolate-child-labor-west-africa/.

[9] Id.

[10] 28 U.S.C. § 1350.

[11] Doe I v. Nestle USA, Inc., 799 F.3d 1013, 1021 (9th Cir. 2014).

[12] William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int’l & Comp. L. Rev. 221, 222 (1996).

[13] Doe v. Nestle, S.A., 929 F.3d 623, 642–43 (9th Cir. 2018).

[14] Id.

[15] Nestle USA, Inc. v. John Doe I, No. 19-416 (U.S. Sept. 25, 2019) (referring to the questions presented in petitioner’s Petition for a Writ of Certiorari).

[16] Nestle USA, Inc. v. Doe, No. 19-416, 2020 WL 129527 (U.S. Jan. 13, 2020).

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