Alison Qi is a freshman at Columbia University who is passionate about international human rights and public health. She is currently a writer for the Columbia Undergraduate Law Review and a member of the Health and Policy Analysis Team, where she hopes to continue exploring the intersections between the law and health. In her spare time, she enjoys cooking, art, and spending time outdoors.
From Hershey’s Kisses to gourmet chocolate confections, the chocolate industry has a highly lucrative market, valued at around $130.56 billion in 2019 and projected to grow even more within the next decade. To supply this industry, millions of tons of cocoa are produced on cocoa farms every year to be turned into products and sold to consumers. Despite the high market revenue and company profits, the average cocoa farmer makes less than one dollar a day. Even more shocking, however, is the industry’s infamous use of child labor in its supply chains.
An estimated 168 million children between the ages of 5-17 are currently engaged in some form of slavery globally, with millions subjected to bonded labor, child soldiering, and sexual exploitation. Of those, 1.48 million children work under dangerous conditions on cocoa farms in Ghana and Cote d’Ivoire, two countries that supply a combined 60% of the world’s cocoa beans, alone. Furthermore, between 2013 and 2017, over 1,000 children working in cocoa agriculture in areas of medium and high cocoa production were victims of forced labor at the hands of someone outside their family, often as victims of child trafficking. Still, this number fails to account for the thousands of children forced into labor by their parents and other relatives. Working on plantations that supply transnational companies such as Nestlé, Mars, Cargill, and Hershey, children in the cocoa industry are overworked, brutally treated, and often deprived of their education.
Previous efforts and initiatives have aimed to eliminate the use of child slavery in chocolate supply chains. In 2001, the Harkin-Engel Protocol aimed to incrementally reduce these human rights violations through a collaboration between US Senator Tom Harkin and major stakeholders in the cocoa industry. Eight major chocolate companies –including Hershey Food Corporation, Mars, Inc, and Nestlé– pledged to assume primary responsibility for eradicating the worst forms of child labor from cocoa production and removing the use of child labor from their supply chains by 2005. The Protocol followed in the footsteps of the 1999 International Labour Organization’s (“ILO”) Convention C182, a largely ineffective measure which ordered member nations like the United States to remove children from laborious situations, assist with rehabilitation, and provide free basic education. However, nearly 20 years after the Protocol’s signing, the task of eradicating the use of child labor from the chocolate industry remains far from finished.
Multiple factors have contributed to the shortcomings of the global movement against child labor, such as a failure to report cases and the lack of clear geographical constraints to each country’s responsibility. The primary factor, inaction, whether it be amongst ILO member nations or chocolate companies, can be largely attributed to the fact that there is no way to hold a company or country accountable to international law. However, Nestlé USA v. Doe I (consolidated with Cargill v. Doe I), a case that was heard by the Supreme Court in December of 2020 and is currently pending for decision, has the potential to change this.
The story of Nestlé USA v. Doe I began in 2010, when a group of anonymous Malian citizens living in the United States sued Cargill, Inc. and Nestlé USA under the Alien Tort Statute (“ATS”) for child slavery they endured while working on cocoa farms affiliated with the American companies in Cote d’Ivoire. The Alien Tort Statute gives American federal courts authority in civil lawsuits brought by foreign citizens on US entities for violations of US treaties or international law, yet the statute has never been successfully used by foreign nationals to prosecute US corporations for their involvement in human rights violations.
As such, the US District Court for the Central District of California initially dismissed the case. According to the court, Nestlé USA and Cargill, Inc. had not done anything outside of “ordinary” business transactions with the cocoa farms in question, and it could not be proven that the companies had acted with the intention of perpetuating child slavery. However, this decision was later reversed by the US Court of Appeals for the 9th Circuit and the case went back to the district courts in 2016 where it was dismissed again. This time, the district court ruled that because the child slavery occurred overseas, Nestlé and Cargill could not be held liable under the ATS. It was then, for the second time, brought to the court of appeals, who again, vacated the lower court’s decision, stating that the claims were “sufficiently” focused in the US. Finally in 2019, defendants Nestlé USA and Cargill, Inc. petitioned for an appeal to the US Supreme Court. The 2020 hearing concerned two main questions: Are US courts able to hold domestic corporations liable under the Alien Tort Statute? And can a domestic corporation be held liable for a claim against an action that occurred under unidentified foreign entities and that cannot be traced back to that corporation?
Since the late 20th century, the ATS has been used by non-US Citizens to attempt to hold individual perpetrators of human rights violations accountable within the United States. In the 1990s, these cases began to expand and question corporate accountability, but none have been successful to date. The ruling of Nestlé USA v. Doe I will set a precedent for corporate accountability in the United States. If it is ruled that the ATS is applicable towards domestic corporations, an added layer of responsibility would be placed on both US corporations to follow and the US government to enforce international law as it is currently unenforceable. Additionally, Nestlé USA v. Doe I could potentially create a way for disenfranchised foreign people to finally find justice through the Alien Tort Statute – those held under oppressive systems sustained by US corporations would have a means of retribution inaccessible to them before.
For too long, large corporations have been able to avoid legal culpability in unethical practices by resorting to passive pledges for change while perpetuating the very systems that allowed those injustices to occur in the first place. In the writ of certiorari, the petitioner repeatedly pointed to Nestlé’s past statements condemning child slavery and the company’s “extensive efforts” to counteract it as a reason for why Nestlé USA should be absolved of guilt. However, if the Harkin-Engel Protocol and ILO Convention 182 are any indication, child slavery and other human rights violations at the hands of large corporations will not cease unless companies are legally held accountable. What would a world post-corporate accountability look like? For the chocolate industry, consumers can expect slightly higher prices, but this increase is not without reason. In conjunction with other initiatives aimed at ending child labor, up to millions of children who are currently deprived of an education and made to work under a dangerous environment would potentially be able to leave those conditions in pursuit of a better future.
