On the 4th of September 2014 a United States (US) Federal Appeals Court decided that three former child slaves who were forced to work on cocoa plants in Ivory Coast can bring a class action under the Alien Tort Statute (ATS) against chocolate producers Nestlé, Cargill, and Archer Daniels Midland. The decision is the outcome of a long process that already started in July 2005 when the former slave labourers, with the help of local human rights organizations, filed suit against the abovementioned companies. The three plaintiffs, who wish to remain anonymous, allege that they were trafficked from Mali and were subsequently forced to work on cocoa plants in Ivory Coast. The plaintiffs argued that the actions of the companies violated international labour law conventions, the law of nations and customary international law.
Ivory Coast remains the most important country in the chocolate industry as it produces seventy percent of the world’s cocoa. The Court noted that Nestlé, Cargill, and Archer Daniels Midland dominate the Ivorian cocoa market and their dominance gives them control over the production of cocoa. The companies even offer economic and technical assistance to support cocoa agriculture. The Court stated that “[t]he defendants are well aware of the child slavery problem in the Ivory Coast” because “[t]hey acquired this knowledge first hand through their numerous visits to Ivorian farms.” The problem of slavery was furthermore known to the companies because of the reporting by domestic and international organizations. The Court concluded that despite the alarming (first hand) knowledge of child slavery and the control they have over the cocoa market, the defendants operate in the Ivory Coast “with the unilateral goal of finding the cheapest sources of cocoa.”
While the companies financially benefit from this cheap cocoa, the three plaintiffs had to work under terrible circumstances. The plaintiffs had to work 14 hours a day, six days a week and they had to live of scraps of food, while being flogged and beaten by those who oversaw the “work”. The Court notes that such slave labour not only contributes to poverty, it also degrades its victims as they are treated as commodities. The Court furthermore added that such conditions and treatment caused both lasting mental and physical trauma. The Court held that the prohibition against slavery is universal, and in the present case, it could be asserted against Nestlé, Cargill, and Archer Daniels Midland. With regard to the question as to whether the required elements for aiding and abetting such slavery were present, the Court noted that “a myopic focus on profit over human welfare drove the defendants to act with the purpose of obtaining the cheapest cocoa possible, even if it meant facilitating child slavery.”
Oxfam (Tamir 2014) notes that the claim might have implications for how chocolate producers will develop their business model in the future:
Food companies have long placed burden on the suppliers in agriculture supply chains. They typically dictate the terms for which they will purchase commodities, including price and quality. As a result, farmers and cooperatives take on nearly all of the risk in terms of climate impacts, labour issues, and changes to the quality of a commodity for whatever reason. The UN Guiding Principles on Business and Human Rights require companies to take account of human rights impacts in their supply chain. The John Doe decision suggests that companies can face legal threats from neglecting that responsibility.
Although this decision is certainly a victory in the fight against slavery in the chocolate industry, the plaintiffs still have a long way to go. The decision of the Court namely only stipulated that they could bring the action under the United States Alien Tort Statute (ATS). The plaintiffs now have to proceed with their claim under the ATS which, due to a Supreme Court decision in 2013, restricts the possibilities for foreign citizens to bring claims under the Statute. Since the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum, the plaintiffs have to prove that some of the activity underlying their claim actually took place in the US (Bouboushian 2014). The Kiobel case involved a claim brought by Nigerian citizens who alleged that oil corporations from the Netherlands and Britain had aided and abetted the Nigerian Government in crushing the resistance against the oil production in the Ogoni Niger River Delta. The violent actions against the protesters resulted in human rights violations and the death of several activists including Ken Saro Wiwa. Due to the fact that one requirement to trigger the ATS is that some of the activities have to take place within the US, the Supreme Court closed the door on many lawsuits and as a result only a narrow opening for filing a suit remains. The three plaintiffs now face the task of showing that some of the actions, which they accuse Nestlé, Cargill, Archer Daniels Midland of, indeed took place on US soil. How strong the US “connection” exactly must be, however, remains unclear and has to be determined during the litigation process. Despite this daunting task, Oxfam notes that the Court decision is ground-breaking when it comes to its findings on “aiding and abetting” because:
Just knowing about the abuses, coupled with the close business connection the farms shared with the defendants and their push to drive up profits regardless of the human toll, may be enough to infer that the corporations “purposefully” assisted other actors to engage in slavery. If in fact the defendants are found culpable, this could have a real impact on how wages and working conditions factor into companies’ business models. (Tamir 2014)
The Court decision is already an important acknowledgment of the problem of slavery that is haunting the chocolate industry and which is structurally denied by the abovementioned corporations, but it could even turn into an even more powerful acknowledgement if the claim of the three plaintiffs is granted. Sadly, the problem of slavery is not limited to the chocolate industry, actually many of our luxury items, such as clothing or electronic devices, that we use daily, leave a ‘slavery footprint’ because such products are produced under questionable conditions or contain resources that have been extracted under deplorable circumstances. On the website www.slaveryfootprint.org you can check how many slaves are working for you. Confront your ignorance, raise your awareness and visit the abovementioned website.
This blog was published earlier 2014 on the website of the Denialism and Human Rights conference that was organized at the Faculty of Law of Maastricht University.