Corporations are not immune from the prohibitions on slavery.

This Alien Tort Statute case was filed in 2005 on behalf of six formerly enslaved children who were trafficked from Mali to Côte D’Ivoire and forced to harvest cocoa for plantations that sourced for Nestlé and Cargill.

The case has a particularly complex litigation history and was argued in the Supreme Court on December 1, 2020 against Nestle and Cargill. That case was heard by the U.S. Supreme Court on December 1, 2020. Nestlé and Cargill argued to the Supreme Court that corporations are immune from liability for child slavery under international law.

The one certainty is that eight Justices agreed that the operative complaint did not satisfy the Supreme Court’s standard set in the Kiobel case for extraterritorial application of the ATS. Kiobel requires that the allegations “touch and concern” the territory of the United States. Justice Alito dissented saying the Court should not have even reached the Kiobel question and instead should have remanded the case. Justice Thomas’s majority opinion found that the current complaint alleging Nestlé and Cargill made major operational decisions from the United States that supported the system of child slavey harvesting cocoa in Cote D’Ivoire were not sufficient.

The case was remanded to the trial court, where Plaintiffs intend to seek leave to amend their complaint to satisfy the majority’s articulation of the Kiobel standard. Plaintiffs maintain that virtually all specific decisions that established, maintained, supported, and preserved Nestlé and Cargill’s system of cocoa production that is dependent upon the cheap labor of child slaves were made at the company’s corporate offices in the United States.  

There appeared to be a majority consensus that corporations can be sued under international law, with conservative Justices Gorsuch and Alito explicitly making this point. Only two Justices, Gorsuch and Kavanaugh, joined Justice Thomas in holding that Plaintiffs have not stated a cause of action for aiding and abetting child slavery because such a claim did not exist in 1789 when the ATS was enacted. Terry Collingsworth, Executive Director of International Rights Advocates stated that “out of this divided opinion, we still hold hope that Plaintiffs will get their day in Court. None of the Justices and none of parties deny that children like the Plaintiffs continue to suffer the horrors of trafficking and slavery. We do hope that rather than fight this for several more years and spend additional millions of dollars on lawyers, lobbyists and public relations firms, Nestlé and Cargill decide to use their power and resources to finally stop relying on child labor, as they promised to do so when they signed the Harkin-Engel Protocol in 2001.”

Nestlé and Cargill’s legal argument that they could freely use enslaved children to harvest cocoa sharply conflicts with their public claims that they are committed to ending their reliance on child labor. They—along with leading chocolate and cocoa companies including Mars, Hershey, Mondelēz, Olam, and Barry Callebaut—have repeatedly admitted that child labor is persistent in their cocoa supply chains, and acknowledge the problem is getting worse, not better.

A recent study commissioned by the U.S. Department of Labor, shows an estimated 1.56 million children work in cocoa production in Ivory Coast and Ghana. In Ivory Coast, the country where these Plaintiffs were trafficked, nearly 40 percent of children are engaged in hazardous work. Children as young as 5 years of age face direct exposure to toxic chemicals, the use of sharp tools, handling heavy loads of cocoa, and working long hours and at night.

Since 2001, when big chocolate manufacturers and cocoa producers signed the Harkin-Engel Protocol, they have promised to voluntarily end their use of enslaved children but, as The Washington Post and numerous other reports have shown, they have failed to do so, even after extending deadlines the companies themselves set.