There’s a dirty secret about the chocolate industry: it profits from child labor and enslavement. The Supreme Court just made it harder for six abused laborers to seek redress.
Chocolate bars. They evoke happiness and the sweet pleasures of childhood. Which made for bitter irony when the Supreme Court declined to hold chocolate makers accountable for their links to child and slave labor.
Many cocoa farmers in West Africa—source of around 70% of the world’s cocoa—engage in human trafficking and child labor, including child slavery. Consumers may not be aware, but no one familiar with the industry disputes it. A key driver is that cocoa prices do not cover the cost of production—and no wonder: farmers only earn 6.6 percent of the price of a chocolate bar and many are themselves living in poverty.
Nestlé USA and Cargill—the defendants in the case that went before the Supreme Court—use terms like “unacceptable,” “egregious,” and “heartbreaking” to describe the cruel labor practices, yet they have failed to use their economic might to end them or even root them out of their own supply chains.
When six Malians brought suit against the two corporations in 2005, alleging they had been enslaved as children to work in the cocoa plantations, they described working long hours without pay, suffering hunger, hazardous working conditions, and brutal beatings. They claimed that the companies—while not owning or operating the plantations where they worked—had knowingly aided and abetted human-rights abuses by providing slave-holding farmers with tools and technical and financial resources, and by purchasing their produce.
They based their suit on the Alien Tort Statute (ATS), which allows foreigners to bring lawsuits in US courts for violations of international law. At issue from the outset has been whether or not that statute applies in this case; in other words, rather than acknowledge and legally address their role in driving child slavery, the companies argued that there should be no liability for US companies whose practices contribute to human-rights abuses.
The companies won the battle but not the wider war they were waging: the court deemed the connection between these particular companies and these particular laborers too tenuous, but it affirmed that companies can still be held liable for such abuses under the ATS statute. However, by establishing a high bar for eligibility, the Supreme Court decision signals that people who have suffered human rights abuses will find it harder than ever to seek remedies for US corporate misdeeds through the ATS.
The Supreme Court decision coincides with the 10th anniversary of the UN Guiding Principles on Business and Human Rights—a framework that lays out the duty of states to protect human rights, the responsibility of businesses to respect those rights, and the access to remedy to which victims of business-related abuses have a right. The third element of the framework—access to remedy—has been dubbed the “lost pillar,” as targets of business-related abuses around the world struggle to find redress.
In an Orwellian feat of doublespeak, Nestlé and Cargill have committed to the Guiding Principles yet have filed briefs arguing that allowing lawsuits such as this one could damage American competitiveness.
In the story of chocolate, the echoes of colonialism are unmistakable. The companies involved try to project modern-day sensibilities with slick publications about their dedication to combatting child labor, but the trafficked, enslaved children that harvest the cocoa beans for their chocolate bars might as well be living two centuries ago. Is this the “American competitiveness” that corporations should be fighting for and our highest court defending?
The Malians will get a chance to strengthen their case and put it forward again, but the question remains: why are companies that agreed on the principle of remedies fighting so hard to stop remedy-seekers in their tracks?
Corporations need to acknowledge the harms they’ve caused, take action to fix them, and commit to trading practices that enable cocoa farmers to achieve a living income.
Only then can we hope for an end to labor practices that risk and ruin the lives of children.