October 21, Washington, D.C.–Less than two months before the U.S. Supreme Court hears oral arguments in Nestlé USA, Inc.v John Doe 1 and Cargill Inc. v. John Doe 1, EarthRights International this week filed an amicus brief in support of plaintiffs, former child slaves who are suing Nestlé and Cargill under the Alien Tort Statute (ATS) for enabling and profiting from their slave labor on cocoa farms in the Ivory Coast. Both corporations argue that because the abuse took place outside the United States, and because they are corporations, they are immune from liability. EarthRights is one of many organizations filing amicus briefs in support of the plaintiffs.
The First Congress passed the ATS to give foreign victims of international law violations a path for pursuing possible legal remedies, at least where the United States might be held responsible if it did not provide a remedy. Under international law, where a U.S. national is responsible for violating universally-recognized human rights, the United States is also responsible. Therefore, the claims, in this case, are exactly the kind the Framers wanted courts to hear.
“These corporations expect the same rights as people, but only when it’s convenient for them,” said EarthRights General Counsel Marco Simons. “Nestlé and Cargill are claiming that because they’re companies, they cannot be held responsible for human rights abuses. They can’t have it both ways–with legal personhood comes obligations. ATS claims are federal common law claims, and federal common law universally allows for lawsuits against corporations.”
Nestlé and Cargill have both pledged to eliminate slave labor from their supply chains but admit they have not met that goal. Neither company has compensated the victims. The majority of the world’s cocoa supply–70 percent–is grown in West Africa, supplying vast amounts to companies like Nestlé and Cargill, leading chocolate manufacturers. The U.S. State Department, the International Labor Organization, and UNICEF, among others, have documented the existence of child slavery in the Ivory Coast. A 2019 report by the Washington Post confirmed that forced child labor is still pervasive among area cocoa farms. A recent report by the University of Chicago’s NORC researchers for the Department of Labor found that child labor among agricultural households in cocoa-growing areas of Ivory Coast and Ghana increased from 31 percent to 45 percent between 2008 and 2019.
According to the plaintiffs, the companies knew that plantations in their supply chains used child slave labor and abetted that practice. The plaintiffs allege that they were trafficked as children (ages 12-14) from Mali to the Ivory Coast, enslaved and forced to work without pay for up to 14 hours a day, six days a week, beaten, whipped, given scraps to eat, and locked up at night. Plaintiffs also allege that because Nestlé and Cargill were major buyers of cocoa from these plantations, holding exclusive contracts and regularly providing logistical support, training, and supplies, the companies had the power to stop the abuse.
“This case will affect future plaintiffs. If Nestlé and Cargill prevail, it will close a door to justice for countless other victims of corporate human rights abuses. The court should deny Nestlé and Cargill’s blatant attempt to eviscerate the ATS,” concluded Simons.
In 2005, with the help of the U.S. NGO International Rights Advocates (IRA), the plaintiffs–who have remained anonymous for safety reasons–sued Nestlé USA and Cargill in U.S. courts. The U.S. Court of Appeals for the Ninth Circuit ruled in October 2018 that Nestlé and Cargill couldn’t avoid the lawsuits. In July 2020, The U.S. Supreme Court agreed to hear the cases at the request of the two companies, the Trump administration, and the U.S. Chamber of Commerce, among others. The Court is expected to hold oral arguments on December 1 of this year. In addition to IRA, the plaintiffs are represented by Paul Hoffman of Schonbrun Seplow Harris Hoffman & Zeldes LLP.