The Supreme Court Must Hold Nestle and Cargill Accountable

Can Nestle and Cargill be held responsible for the child labor in their supply chains? That is the question in front of the U.S. Supreme Court this week. This case, Nestle USA and Cargill v. Doe has been making its way through the courts since 2005. The six “John Doe” plaintiffs bringing the suit were trafficked from Mali when they were children and forced to work on cocoa farms in Cote d’Ivoire. There they worked, without pay, for grueling 12-14 hour days, with minimal food and shelter in abusive conditions. The question in front of the court is whether Nestle USA and Cargill can be held responsible for these abusive practices under the U.S. Alien Tort Statute.

The facts laid out in the case are awful. And what’s equally awful is that Nestle and Cargill have been pouring resources into arguing against accountability for fifteen years now.

Nestle & Cargill Know There’s Child Labor in Cocoa

None of the lawyers before the Supreme Court are claiming that there is no child labor in the cocoa farms of Cote d’Ivoire where Cargill and Nestle get their cocoa. Indeed, a new report from the National Opinion Research Center (NORC) at the University of Chicago released this fall confirms that 1.5 million children are currently harvesting cocoa in Ghana and Cote d’Ivoire, where 70% of the world’s cocoa is produced. And that proportion of child labor has gone up 14% in the past decade.

Nestle, Cargill, and the chocolate industry as a whole, are well aware that child labor is endemic in West African cocoa farming. Indeed, nearly 20 years ago, they pledged to take action to reduce child labor. That pledge, Harkin-Engel Protocol, aimed to eliminate the worst forms of child labor through an agreement bringing together the chocolate industry, NGOs, and government. The agreement was voluntary and non-binding—and contained multiple deadlines for progress that have passed over the years. Meanwhile, the problem remains. And, as the report released this fall shows, the problem is getting worse.

Child labor is just one symptom of a much bigger problem in the chocolate industry—poverty. While millions of children over generations continue to miss out on childhood and education, Nestle and Cargill continue to pay ultra low prices to the people who grow their cocoa. And if these massive multinational corporations won’t pay a fair price for cocoa, who’s stuck making up the difference? As we’ve detailed before, it’s the farmer—and our planet.

Corporations Must Be Held Accountable

The argument at stake in the case Nestle USA vs Doe is whether Nestle and Cargill “aided and abetted” the forced labor that the plaintiffs endured through their cocoa purchasing practices. The Alien Tort Statute (ATS) that the case cites dates all the way back to 1789—because, yes, that’s how long we’ve known that there needs to be accountability under law for violations of human rights. The law grants federal jurisdiction over wrongful acts, or torts, “‘committed in violation of the law of nations or a treaty of the United States‘ and brought by non-US citizens. The ATS applies only to the most egregious and widely recognized human rights violations: slavery (and forced labor), torture, crimes against humanity, and similar crimes,” explains Corporate Accountability Lab.

Nestle and Cargill are arguing that they cannot be held liable for these appalling incidents of forced child labor as the law should only apply to individuals, not corporations. Further, they claim that the cases are too far removed from the U.S. for the Supreme Court to have jurisdiction. In both cases, the sum total of their argument boils down to a position that would allow U.S. corporations a free pass. In the words of Terry Collingsworth of International Rights Advocates, a non-profit representing the plaintiffs, “It is virtually impossible to imagine how we could get enough evidence to sue any individual at these corporations … so this would effectively allow [some companies] to continue using child slaves with impunity.”

Further, if Nestle and Cargill argue that U.S. courts are not the place to address harms inflicted by U.S. corporations doing business, they are essentially making the case that there is nowhere they should be held accountable. We know corporations already act as if distant supply chains are out of sight and out of mind. Now they’re making the case they should be outside the law as well.
 

Corporations Must Be Held Accountable

Nestle and Cargill are desperately trying to build themselves a legal loophole. So desperately in fact that part of their brief includes the argument, “Even the firm that supplied Zyklon B gas, which the Nazis used to kill millions, was not indicted—the prosecutions were instead against the owner and two employees.”  If your argument hinges on comparing yourself to Nazis, it is clear that you have lost the moral high ground. 

The reality is that Nestle and Cargill are guilty—and so is their entire business model. The conventional chocolate trade is built on exploiting the people who grow cocoa and paying prices well below the cost of production. Nestle has put plenty of money into voluntary sustainability initiatives. They have even instituted child labor monitoring and remediation systems (CLMRS) in the years since the suit was first filed. Yet by continuing this suit, they seem to claim that they should be the ultimate judges of their own behavior—even as they demonstrate how immoral their judgment is.  

Voluntary corporate initiatives cannot take the place of actual accountability. Nor does the impact reporting of sustainability programs count as redress for real harms done.
 
One of the many briefs filed in support of the formerly enslaved child workers was on behalf of 18 small- to mid-sized chocolate companies, including fair trade companies Alter Eco and Theo Chocolate. In that amicus, or “friend of the court” brief, they argue, “Like Petitioners, amici have made commitments to ensure their supply chains are free of forced child labor. Unlike Petitioners, amici use effective business models to ensure compliance with these commitments.” By paying higher prices for cocoa and building transparent supply chains, these companies are reasonably well assured that they are not relying on forced child labor for their cocoa—or, if their efforts at due diligence have failed, they support legal steps to hold them responsible. 

These companies demonstrate that it is possible to make chocolate without depending on the exploitation of the people who grow it—not only is it possible, it’s really the only ethical choice. Corporate social responsibility can’t just be a feel-good marketing exercise, it must be coupled with real accountability.

Human Rights Must Come Before Profits

Even as Nestle and Cargill are arguing for a pass on human rights abuses in their supply chains, the rest of the world is moving on. In Europe, multiple countries and the European Union are weighing mandatory Human Rights Due Diligence laws. In fact, in Europe, Nestle even pays lip service to supporting such legislation. 

Nestle is one of the most boycotted companies in the world. Cargill was awarded “The Worst Company in the World” by the NGO Mighty Earth. Their arguments in front of the Supreme Court this week highlight the threat this case poses to their “competitive advantage.” Which is to say that they are conceding what we already know: Their business model is built on the exploitation of people–and our planet. It’s high time that our legal structures put human rights ahead of obscene corporate profit. A Supreme Court decision in favor of human rights and corporate accountability would be a good step in that direction.
 

Photo Credit: “Cocoa Pods” by Frank Kehren is licensed under CC BY-NC-ND 2.0
“Cargill Cocoa Bags” – International Rights Advocates