Week of 6 July 2020
The U.S. Supreme Court agrees to hear appeals by Nestlé and Cargill to dismiss allegations of complicity in child labor and slavery in cocoa supply chains in Côte d'Ivoire; the Supreme Court’s decision will have significant implications on the use of the Alien Tort Statute to bring U.S. companies to court for violations of international human rights law abroad (John Doe I et al v. Nestlé et al)
The U.S. Supreme Court has agreed to hear appeals by Nestlé and Cargill sued for alleged complicity in forced labour and child labour in cocoa supply chains in Côte d’Ivoire. Reuters reports that the U.S. subsidiary of Swiss-based Nestlé S.A. and Cargill Inc. filed appeals “asking the nine justices to reverse a lower court ruling that allowed the lawsuit, filed on behalf of former child slaves from Mali who worked on the farms” to proceed under the Alien Tort Statute. The outcome of the Supreme Court decision will be an important barometer for access to remedy in the United States.
Here are a few more details about this case:
- In 2005, legal advocacy organization International Rights Advocates (IRA) worked with former Malian child slaves to file a lawsuit in a California federal court against cocoa producers Nestlé S.A, Cargill Inc., and Archer Daniels Midland Company and their subsidiaries. The lawsuit alleged that the companies were complicit in the use of trafficked slave and child labour on cocoa farms in Côte d’Ivoire that supplied cocoa to the three companies.
- The plaintiffs filed the suit under the aegis of the U.S. Alien Tort Statute (ATS) – which is a U.S. legislation that has been used by foreign plaintiffs to sue U.S.-based companies in American courts for violations of international law that occurred abroad. The plaintiffs alleged that they had been subjected to slavery, cruel, inhumane or degrading treatment, and torture, and that the purchasing companies were aware of the abuses occurring in their supply chains and did not take sufficient action to address them, thereby benefiting economically from slave labour.
- An overview of key events since 2005 produced by the Business & Human Rights Resource Centre is available here. Some of the key events include a dismissal of the case in 2010, which was overturned by a federal appeals court in 2013. The federal appeals court indicated that the plaintiffs had “standing to bring their Alien Tort case because of the universal prohibition against slavery.” In 2015, the companies petitioned the Supreme Court, asking it to decide if they could be subject to liability under the Alien Tort Claims Act – but the Supreme Court declined. After some back and forth, the 9th Circuit Court of Appeal allowed the lawsuit against Nestlé and Cargill under the Alien Tort Statute to proceed in 2018. And this week, the U.S. Supreme Court changed its 2015 position and agreed to hear the appeal by Nestlé and Cargill.
This Supreme Court decision is significant because of the importance of the U.S. Alien Tort Statute (ATS) in business and human rights-related lawsuits in the U.S. In short, the Supreme Court’s decision will determine whether companies can be prosecuted in U.S. courts for international human rights violations.
- U.S. businesses are paying close attention to the outcomes of this case: Reuters reports that the U.S. Chamber of Commerce, The Coca-Cola Company and Chevron have all filed amicus briefs asking the court to hear the appeals.
- Legal advocacy organization Corporate Accountability Lab states that “[u]pon review of this case, the Supreme Court may further chip away at the ability for corporations to be sued for human rights abuses abroad under the ATS by eliminating aiding and abetting liability and/or corporate liability altogether.” The organization views the Supreme Court’s decision to hear the case as “deeply concerning for advocates and victims who look to the ATS as an accountability tool for US companies,” citing the Supreme Court’s previous decisions “narrowing corporate liability under the ATS, the government’s switch in view, and the [current] conservative leaning bench.” Corporate Accountability Lab also points to the Supreme Court’s focus on the narrow question of corporate liability rather than the question of whether companies are subject to international human rights laws.