Six citizens of Mali sued Nestle USA and Cargill more than a decade ago, saying the two companies were complicit in child trafficking and profited when they were enslaved on the cocoa farms as children.
The plaintiffs filed their lawsuit under the Alien Tort Statute, a law enacted by the very first Congress in 1789 that allows federal courts to hear civil actions filed by foreigners regarding offenses "committed in violation of the law of nations or a treaty of the United States."
The high court in recent years has limited the use of that law. In 2018, the court ruled that foreign businesses cannot be sued under the law. Under that premise, the court rejected an attempt by Israeli victims of attacks in the West Bank and Gaza to use U.S. courts to sue Jordan-based Arab Bank, which they said helped finance the attacks.
The Supreme Court ruled 8-1 against the plaintiffs, saying they had not proven the companies' activities in the U.S. were sufficiently tied to the alleged child trafficking.
Justice Clarence Thomas, writing for the majority, said that the companies "did not own or operate farms in Ivory Coast. But they did buy cocoa from farms located there. They also provided those farms with technical and financial resources – such as training, fertilizer, tools and cash – in exchange for the exclusive right to purchase cocoa."
Thomas wrote that the flaw in the plaintiffs' case was its failure to tie the companies' asserted conduct to their activities in the U.S. According to Thomas, that failure meant that they could not sue under the Alien Tort Statute.
In Kiobel v. Royal Dutch Petroleum in 2013, the high court rejected a suit against a foreign corporation accused of aiding and abetting atrocities by Nigerian military and police forces against Ogoni villagers.
Chief Justice John G. Roberts Jr., writing for the majority in that case, said that minimal contact with the U.S. would not be sufficient to overcome the presumption. "Even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application," Roberts wrote.
Thomas wrote that the same kind of reasoning banned the suit against Nestle and Cargill. "Nearly all the conduct that they say aided and abetted forced labor – providing training, fertilizer, tools and cash to overseas farms – occurred in Ivory Coast," Thomas wrote.
Lawyers for the plaintiffs argued that Nestle and Cargill have total control over the production of cocoa in Ivory Coast, where child labor is widespread and where the men said they were forced to work long hours and to sleep in locked shacks at night. (Related: SHOCK: Amnesty International Blasts Kellogg's for Using Child Labor-Produced Ingredients.)
The Department of Labor recently reported that the use of child labor on family farms in cocoa-growing areas of Ivory Coast and Ghana increased from 31 percent to 45 percent between 2008 and 2019.
The corporations "should be held accountable for abetting a system of child slavery," said Paul Hoffman, a lawyer for the plaintiffs.
Neal Katyal, former acting solicitor general under the Obama administration, represented the two companies. He argued that the companies could not be sued for complicity in child trafficking because they are corporations, not individuals. He also argued that the companies could not be sued in the U.S. for activities that took place in West Africa.
EarthRights International, which filed an amicus brief with the court on behalf of the plaintiffs, called the ruling "a giant step backward for U.S. leadership on international law and protecting human rights."
"The ruling implies that U.S. corporations whose executives decide, from comfortable American boardrooms, to profit from murder, torture, and slavery abroad cannot be sued in U.S. federal courts for violating international law," said Marco Simons, general counsel for the organization.
"This ruling has disturbing implications for future victims of human rights abuses seeking justice against businesses in U.S. courts. This ruling also sets a dangerous precedent, giving corporations impunity for profiting from human rights abuses." (Related: Human rights alert: Coca-Cola suppliers buy materials from El Salvador companies that practice child labor.)
Celebrity activist Bree Newsome noted the irony of the ruling on the day the Congress passed legislation recognizing Juneteenth – the day Union soldiers arrived in Texas and informed Black people who had been enslaved that slavery had ended with the Civil War.
"We're celebrating 'the end of slavery' but American companies are still profiting off of slave labor," Newsome tweeted.
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