Modern Day Slavery: Nestlé and Cocoa Plantations
As one of the world’s largest chocolate companies producing delicious chocolatey treats, Nestlé is well known for putting smiles on the faces of millions of children and adults, who clamber for the sweet taste of its chocolates. However, in the last decade the Swiss company’s “[g]ood food, good life”[1] motto has come under increased scrutiny in federal court after reports of child slavery emerged at the heart of its cocoa harvesting efforts.[2] At the center of Nestlé’s legal troubles are the allegations of child slavery in the Ivory Coast[3] and the implication of the Alien Tort Statute, 28 U.S.C. §1350 [hereinafter “ATS”].The ATS addresses a “narrow set of violations” under the laws of nations, limiting when individuals can bring claims against third parties for alleged crimes.[4] Crimes like slavery, genocide, extrajudicial killing, and a handful of others, are sufficiently definite to support a cause of action under the ATS.[5] However, while child slavery undoubtedly seems to establish a cause of action and may be within the spirit of a liberal judiciary to “provide such remedies [as] are necessary to make” the ATS effective, the chocolate giant will likely face no legal ramifications—even under the aiding and abetting standard before the Court.[6]
Generally speaking, corporations cannot be held liable under the ATS—but the precedent did not stop the Ninth Circuit from holding Nestlé accountable for its domestic conduct in creating an environment where slavery existed throughout its African supply chain.[7] The case against Nestlé stems from a newer interpretation under the ATS, where the former-child slaves alleged that Nestlé “aided and abetted” those who violated the law of nations. Thus, as the plaintiffs allege, Nestlé’s focus on profit over human welfare helped drive the company to act with the purpose of obtaining the cheapest cocoa possible—even if that meant facilitating child slavery.[8] And while aiding and abetting is not entirely new to the judicial history of the ATS, Nestlé’s case differs because of (1) its financial motivation to keep costs down, and (2) its awareness of those slavery allegations embattling the Ivory Coast.[9] However, even though Nestlé retains significant purchasing power in the Ivory Coast’s cocoa market—providing financial and technical assistance—the biggest weakness in the plaintiffs’ case is history: the presumption against extraterritoriality.[10]
Individuals bringing a suit against a corporation under the ATS face a nearly insurmountable mountain of legal issues.[11] Beyond the plaintiffs’ legal challenges argued before numerous courts, corporations like Nestlé can employ the best and most prestigious law firms, who are “more than willing to use their legal talents and creativity to make sure that human rights victims” do not see their day in court. Moreover, text of the ATS only grants jurisdiction to federal courts for “all causes when an alien sues for a tort only in violation of the law of nations or a treaty of the United States,” and does not create a private cause of action to hold companies like Nestlé accountable.[12] Here, the text strictly limits the ATS to jurisdictional claims alone, and because (1) the actual violation of international norms occurred abroad in the Ivory Coast, (2) by foreign parties operating a cocoa plantation, and (3) against foreign nationals—there is little a court can do to regulate conduct or grant relief.[13]
Should the Supreme Court decide to add aiding and abetting to the list of violations against the law of nations, it will need to create a new private right of action. Thus far the only legislation ending slavery is the Thirteenth Amendment, so between the Constitution and the ATS, the Court would need to do some interstitial lawmaking in order to connect the crime of aiding and abetting to a violation of customary international law, like slavery. And in this regard, the Court needs to balance and fashion federal common law with its primary function of effectuating congressional policy.[14] But, with a Supreme Court bench that shifted heavily to a conservative majority and thus conservative interpretations of the Constitution in 2017 and 2020, the limits on the ATS’s applicability narrowed considerably.[15]
With the Court’s shift to a conservative bench, the original purpose of the ATS may indicate the Court’s eventual decision—expected in June—to be a refocusing on claims concerning violations of international law committed by American citizens. After the disastrous legacy of the Articles of Confederation, Congress drafted the ATS as a defensive obstacle to prevent a war from breaking out between the United States and other nations “if [the United States] failed to redress injuries by its citizens upon the citizens of another nation.”[16] Because the ATS does not clearly indicate an application for aiding and abetting with a corporation’s foreign conduct and is likely not what Congress intended to regulate when it drafted the ATS, Nestlé will not be liable for those claims argued before the Court. Even if Nestlé’s domestic conduct became the Court’s focus for the slavery allegations—enough to satisfy an argument under a touch and concern test—it runs into the “corporate presence” test the Court ultimately rejected in Kiobel.[17]
There is no doubt that Nestlé’s production of chocolate benefited from the Ivory Coast’s child-slavery practices. But going forward, a decision against Nestlé would create further justiciability issues for any subsequent allegations against corporations under the ATS.[18] Questions like what conduct would satisfy an allegation for aiding and abetting would prove difficult for a court to decide when it reviews a 25,000 employee corporation’s mens rea.[19] In those cases, should the Court weigh or regard the moral gravity of circumstances in order to differentiate the scope and depth of responsibility for each individual action? Or, should the Court consider a corporation’s intent and the means it uses to achieve its goal or purpose?[20] Since the allegations against the Ivory Coast emerged, Nestlé has released multiple press statements to limit the blowback and reinforce its commitment to anti-slavery practices—but at the same time, Nestlé has not reduced its reliance on a country that produces roughly seventy percent of the global supply and where child slavery has only increase in the last decade.[21]
Most concerning, while Nestlé purports to pledge its commitment to eradicating the abhorrent practice of slavery from one side of its mouth, it argues against FDA regulations to crack down on the chocolate industry from the other.[22] Nestlé’s half-hearted attempts to limit child slavery has only increased the calls around the globe for the chocolate conglomerate to be held responsible for its disgusting practices. Nestlé’s argument appears to be “we know the cocoa producers we contract with and provide technological resources to are involved with slavery—we’ve admitted as much. But we shouldn’t have to admit that we’re benefiting from slavery in court.” For the courts and Congress, the saying “Good Thoughts, Good Words, Good Deeds” may be the best measure of Nestlé’s handling during its almost two-decade long Ivory Coast slavery debacle. At some point, absent any actual “Good Deeds,” Nestlé is only perpetuating the terrifying realities found in Willy Wonka’s chocolate factory on a scale no blockbuster movie could fathom.
Sean Camperson is a staff member of Fordham International Law Journal Volume XLIV.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] Nestle, http://www.Nestle.com (last visited Feb. 7, 2021).
[2] See generally Doe I v. Nestle S.A., 929 F.3d 623 (9th Cir. 2019).
[3] See Peter Whoriskey & Rachel Siegel, Cocoa’s Child Laborers, Wash. Post (June 5, 2019), https://www.washingtonpost.com/graphics/2019/business/hershey-nestle-mars-chocolate-child-labor-west-africa/.
[4] See Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004).
[5] See generally Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). See, e.g., Blackstone, Blackstone’s Commentaries on the Laws of England (1765-1769).
[6] See J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964); Tabatha Halleck Chapman, What Should a Showing of Intent or Purpose Require in a Case of Corporate Accessory Liability for Child Slavery under the Alien Tort Statute?, 50 Ind. L. Rev. 619 (2017).
[7] See supra note 2; Compare Jesner v. Arab Bank, 138 S. Ct. 1386, 1405 (2018) Individuals cannot use other statutes like the Anti-Terrorism Act to bring a private cause of action to a statute that otherwise only provides jurisdiction) with Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013) (The ATS is strictly jurisdictional and does not directly regulate conduct or afford relief; instead, it allows courts to recognize certain kinds of causes of action based on definite norms of international law).
[8] See 766 F.3d at 1025-26; Chapman, supra note 5 at 639.
[9] See Azis v. Alcolac, Inc., 658 F.3d 388, 398 (4th Cir. 2011); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 262 (2d Cir. 2009).
[10] See Morrison v. National Australia Bank, 561 U.S. 247, 248 (2010) (the court stating that “when a statute gives no clear indication of an extraterritorial application, it has none”).
[11] See generally Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) (typical cases under the ATS involve rape, torture, forced labor, and extrajudicial killing).
[12] See Martin. S. Flaherty, Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs 234 (2019).
[13] See Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108 (2013).
[14] See Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (Alito, J., concurring); see also American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2727 (2011) (The court held that because Congress displaced any common law right to seek abatement through the detailed requirements in the Clean Air Act, enforced by the Environmental Protection Agency, it was counselled to “readily find that Congress has displaced federal common lawmaking power.”).
[15] See Justice Gorsuch, for example, believed that the pinnacle case Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) was incorrectly decided because the ATS does not recognize corporate liability through a textual reading of the its language, Congress’s original purpose in drafting the statute, and the Court’s application of the statute through the centuries.
[16] See Jesner, supra note 14 at 1416.
[17] See generally 569 U.S. 108 (2013). Compare RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100-01 (2016) (The Court held that Congress’s incorporation of extraterritorial predicates in the RICO statute gave a clear and affirmative indication that §1962 applied to foreign racketeering) with Licci v. Lebanese Canadian Bank, SAL, 834 F.3d 201 (2d Cir. 2016) (Under the ATS, a district court did not have jurisdiction for claims brought by a domestic and foreign individual against a foreign party for allegations of aiding and abetting a terrorist organization’s acts of genocide, or crimes against humanity.).
[18] If the Court rules against Nestlé, future cases will be subject to precedent established by common law instead of an express application through a narrow reading of the ATS; See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 799 (D.C.Cir. 1984) (Bork, J., concurring) (“Neither the law of nations nor any of the relevant treaties provides a cause of action that appellants may assert in courts of the United States.”).
[19] See generally Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) (Corporations engaging in tactics to circumvent established sanctions demonstrate intent and knowledge sufficient for a court to displace the presumption against extraterritoriality under the ATS).
[20] See Chapman, supra note 5 at 643.
[21] See id. at 619. See also Whoriskey & Siegel, supra note 2.
[22]See Nestle, Modern Slavery and Human Trafficking Report 2018: Advancing Human Rights at Nestle, https://www.nestle.co.uk/sites/g/files/pydnoa461/files/2019-12/modern-slavery-report-2018.pdf (last visited Jan 24, 2021).