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OPINION: U.S. Supreme Court in spotlight over child slavery case

by Martina E. Vandenberg | The Human Trafficking Legal Center
Friday, 4 December 2020 10:28 GMT

FILE PHOTO: The Supreme Court of the United States is seen in Washington, D.C., U.S., August 29, 2020. REUTERS/Andrew Kelly/File Photo

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Case centers on whether U.S. corporations including Nestle can be held liable for forced labor abroad

Martina E. Vandenberg is the president of The Human Trafficking Legal Center

In 2005, child slaves in Africa went to court. Cases filed in federal court in California alleged that U.S. chocolate companies aided and abetted horrendous abuses against children laborers on cocoa plantations in Cote d’Ivoire. Traffickers transported the children from Mali to Cote d’Ivoire, coercing them into forced labor. Far from their families and home, the children toiled on the plantations to produce cocoa for the U.S. market. According to the complaint, children who tried to run away from the plantation faced severe beatings. Guards whipped the children when they did not work quickly enough. After 14 hour days harvesting and cultivating cocoa, the children slept on the floor of a locked  room,  unable to escape.

The case presented compelling – and troubling – facts. But the Supreme Court, which heard oral argument in this case on December 1, heard little about the facts. Rather, the argument focused on narrow legal issues, such as whether corporate liability exists under international law, or whether any corporation can be held liable for aiding and abetting slavery under the Alien Tort Statute, a 1789 law providing a remedy for violations of the law of nations.

RELATED: U.S. Supreme Court justices question human rights claims against Nestle and Cargill

In the fifteen years since the children filed their case, the children have grown into adults. And, in the intervening fifteen years, corporate defendants have successfully hacked away at corporate liability under the Alien Tort  Statute. Attorney Neal Katyal, who argued the case for Nestle and Cargill, clearly sought to deliver the death knell to all corporate accountability under that law. He was joined in this project by the U.S. Solicitor General - the U.S. government’s lawyer - who argued before the Court in support of the corporate defendants. Advocates condemned the Trump Administration’s support for the corporate defendants’ attack on accountability. Some advocates hold out hope that the incoming Biden Administration might take the bold, but appropriate, step of withdrawing the Solicitor General’s brief in support of Nestle and Cargill.

The corporations and their U.S. government cheerleaders sought to portray the case as a simple and straightforward legal call: no liability for crimes aided and abetted by U.S. corporations abroad. But the justices’ questions indicated a level of squeamishness with that outcome. Justice Samuel A. Alito Jr. stated,  “Mr. Katyal, many of your arguments lead to results that are pretty hard to take.” Twice, Chief Justice Roberts raised the lack of any objections from foreign countries in this case, noting, “As far as we can tell, [foreign countries are] perfectly comfortable having U.S. citizens, U.S. corporations hailed into . . . U.S. courts.”

Justice Kagan bluntly challenged the notion that U.S. corporations should be immune: “If you could bring a suit against 10 slaveholders, when those 10 slaveholders form a corporation, why can’t you bring a suit against the corporation?” She continued, “What sense does this make?”

Likewise, Justice Breyer asked counsel for Nestle and Cargill, “What’s new about suing corporations?” He noted that as many as 180 Alien Tort Statute lawsuits have been filed against corporations. And Justice Thomas pointed out in his questioning that the U.S. Government had flipped its position from prior cases, and had previously argued “maybe even the opposite argument that [the U.S. government is] making now” on corporate liability.

The Supreme Court justices’ spirited questioning fed hopes that the children might eventually see the merits of their case tried in a U.S. court, despite the corporate defendants’ claims that this would disrupt U.S. foreign policy. As several justices pointed out -- and the Solicitor General was forced to concede -- no foreign country has objected to holding U.S. companies accountable in U.S. courts.

The legal sword-fighting of oral argument, catnip for lawyers, should not obscure the gruesome reality that forced child labor continues in West Africa. After twenty years of corporate voluntary efforts to eliminate these egregious human rights violations, children continue to harvest the cocoa we consume. That fact should elicit shame – and action – from the companies that profit from forced labor in the cocoa industry. Instead, they invest vast resources to undercut corporate accountability.

Forty years ago, bribes were ubiquitous in international commerce, just as forced labor is now. It was not corporate social responsibility that created a surge in anti-bribery action by corporations. It was corporate liability.

The time for voluntary plans and self-regulation is over for the chocolate industry. It is not clear whether this case will survive the concerted effort to eviscerate the Alien Tort Statute. But this case has revealed that if we are ever to eliminate forced labor in supply chains, the first step must be to hold those who profit accountable. Justice Breyer’s final statement to Nestle’s counsel is telling:  “I don’t see why [we must] exempt all corporations, including domestic corporations, from… the scope of the statute.”  Neither do we.



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