The potential Nestle Cargill Supreme Court case is a fascinating legal battle, with implications regarding slave labor abroad, the power of international law abroad, who has standing to file a lawsuit in such cases and legal roots that go back all the way to the time of the founding of the American republic.
Nestle and Cargill are 2 of the largest chocolate producers in the world and currently they are defending themselves against lawsuits on behalf of former child slaves at their factories in West Africa’s Ivory Coast. The lawsuits were filed under the Alien Tort Statute, passed in 1789 that gives foreign nationals standing in U.S. courts for violations of the laws of nations.
At issue in the Nestle Cargill case is whether the fact that, even though they are a U.S. company, the conduct occurred in a foreign country and thus should be litigated there. Thus far, lower courts have upheld the plaintiffs’ right to bring suit in U.S. federal court. The chocolate producers are hoping the Supreme Court will reverse that.
To understand the case, it’s necessary to understand the history of chocolate, its ties to slave labor and the U.S. efforts to protect human rights around the world. Here is a complex history in a nutshell:
- Cocoa plantations in the Ivory Coast produce 60 percent of the world’s chocolate supply and rely on at least 2 million children working in hazardous conditions and often for no pay.
- Two members of the U.S. Congress introduced legislation to subject the chocolate industry to penalties. Tom Harkin (D-IA) in the Senate and Eliot Engel (D-NY) in the House of Representatives were the sponsors. Their bill was not passed, but a voluntary international agreement—the Harkin-Engel Protocol—was named after them and set up a series of guidelines that the major chocolate producers agreed to abide by. The Protocol relied on legal definitions of child labor and forced labor as defined by the International Labor Organization (ILO) and also dealt with horrors such as child involvement in porn, prostitution and drugs.
- The industry generally failed to meet the benchmarks outlined and another public declaration was passed in 2010 recommitting to a reduction in child exploitation and gaining pledged monies from the U.S. government, the ILO and the chocolate producers to meet that goal.
- In spite of this, a report this year from the U.S. Department of Labor said child labor is up 14 percent in these poor countries, mainly because the chocolate business is booming.
It is in this context that the plaintiffs against Nestle and Cargill have filed suit. They charged the chocolate producers with violating agreed-upon international norms. They further believe that because these companies are headquartered in the United States, the ATS law gives legal standing to bring suit. The Supreme Court will decide who is right.