By SÁRA KENDE
In their ruling on June 17th, US Supreme Court justices decided 8-1 in favour of Nestlé and Cargill against a group of six Malian citizens who were allegedly forced to work as slaves on cocoa farms in Ivory Coast as children. The lawsuit claimed that the food giants knowingly bought cocoa beans from West-African farms using forced child labour.
In a majority opinion for the Court, Justice Clarence Thomas wrote, “although respondents’ injuries occurred entirely overseas, the Ninth Circuit held that respondents could sue in federal court because the defendant corporations allegedly made ‘major operational decisions’ in the United States. The Ninth Circuit erred by allowing this suit to proceed.” The US Court of Appeals for the Ninth Circuit is the largest federal court of appeals, which the Supreme Court now believes has made a mistake by letting the Malian group’s lawsuit go forward.
The case is made ambiguous by a law enacted by Congress in the 18th century, the Alien Tort Statute, which permits foreign nationals to sue in US courts for human rights violations. The Supreme Court ruled that the group’s case does not stand because the abuses they suffered happened outside the United States, however, the justices have not made a definitive ruling about whether the Statute could potentially be used in other cases to hold US-based companies accountable for abuses committed in their supply chains abroad. The Malian group argued that US-based Cargill and the American arm of Swiss Nestlé assisted in their exploitation as child slaves by buying the products of their labour.
The ruling has failed to move the issue of child labour in the chocolate industry into its next phase. The issue of child slavery on West-African cocoa farms first entered into public discourse two decades ago, when a series of news reports surfaced about the gross violation of human rights in the chocolate industry. At the time, US lawmakers, led by Representative Eliot Engel and Senator Tom Harkin put extensive pressure on the industry to change its methods of sourcing the cocoa beans by mandating a labelling system to testify that their products are child labour free. However, due to intense lobbying from the chocolate industry, a law could not be pushed through, and instead the Harkin-Engel Protocol (or Cocoa Protocol), a voluntary pledge to end the “worst forms of child labour”, was accepted. These are defined by the ILO as practices “likely to harm the health, safety, or morals of children”, including the use of hazardous tools, and work that interferes with schooling.
The protocol did not lead to tangible improvements; findings by Tulane University suggest that there are still more than 1 million children aged 5-17 working on cocoa farms in Ivory Coast and Ghana. UNICEF estimates that more than 35,000 of them had been trafficked from impoverished neighbouring countries, such as Mali and Burkina Faso. The children work in hazardous conditions, for example using machetes and agricultural toxins without protective gear. Many of them do not attend school or receive compensation for their labour at all.
Although chocolate companies have taken some tentative steps to eliminate child labour in their supply chains, such as Nestlé’s introduction of a Child Labour Monitoring and Remediation System, more needs to be done, and the change should be spearheaded by those Western countries where the biggest chocolate producing companies are based. Additionally, paying the cocoa farmers living wages, instead of wages as low as $2 per day, could ensure that they stop employing child slaves at their farms. However, chocolate companies are reluctant to do so, as this would raise the price of chocolate to consumers in the Western world. Moreover, following the accusations of widespread exploitation of children, many chocolate companies reacted by being increasingly secretive about their suppliers.
Court cases, such as the one against Nestlé and Cargill, should be used to hold food companies accountable for human rights violations in their supply chains and to ensure that they are transparent about where they source their cocoa. Despite decades of scandals and promises, the biggest chocolate companies still cannot ensure that their products are free from slavery. Sadly, Fair Trade labels and Rainforest Alliance Certifications are not an absolute guarantee either, as a 2011 case demonstrates where Danish journalists filmed illegal child labour on farms in Western Africa from which major chocolate companies buy their cocoa, including some certified by UTZ and the Rainforest Alliance.
As consumers, we all have a responsibility to avoid chocolate that was made by exploited children in another part of the world. Due to the widespread use of modern slaves on cocoa farms in Ghana and Ivory Coast, the only way to be 100% sure that our chocolate is definitely slavery-free is to avoid cocoa sourced in West Africa altogether. However, there are also lists compiled by various organisations, such as the Food Empowerment Project, which make recommendations based on research into the origins of cocoa to help us consume ethically.
The West has a moral responsibility to ensure that chocolate companies prioritise human rights over profits; the right to education and freedom from enslavement are basic human rights, cheap chocolate is not.
Image: Flickr (CIAT)