Chocolate elicits some of our sweetest memories, of childhood moments and Valentine’s Day celebrations. It has come to symbolize love, happiness, and comfort, occupying an elevated place in the public imagination. Yet shrouded behind this veil of sweet nothings is a much harsher reality. 

Tracing the journey of chocolate from the gift box to its source takes us to West Africa, home to 70% of the world’s cocoa industry. Far from any idyllic conceptions we might harbor, harvesting cocoa beans involves hazardous and back-breaking work, such as carrying heavy loads, swinging machetes, and spraying pesticides.

This picture is bleaker when we consider that children conduct a substantial part of this work. A 2020 Department of Labor study estimated that 1.56 million children harvest cocoa in West African, with 95% performing dangerous work. Their injuries include cuts from machete accidents, musculoskeletal disorders, lacerations, and dehydration. Moreover, the abusive labor relationship between them and plantation owners inflicts “long-term mental and physical trauma.”

Further east in Mali and Burkina Faso, human traffickers roam city bus stations in search of children to abduct and funnel into these plantations. Terry Collingsworth, a lawyer with the International Rights Advocates who represents these children in U.S. courts, describes the deception. “They’re approached by a labor-broker type guy, and he says, ‘Do you want a great job in Côte d’Ivoire harvesting cocoa? we’ll pay you 100 at the end of the harvest, all you have to do is get in the truck now.’” When they arrive in Côte d’Ivoire, they lack money, documents, and language skills. Captured and without means, the children are condemned to servitude in plantations until adulthood. 

Their labor contributes to 2.1 million tons of cocoa beans that Côte d’Ivoire produces annually. The biggest customers? Many of the world’s largest chocolate companies, such as Nestlé, Hershey, and Mars. These conglomerates continue to fund child slavery in West Africa by importing from these plantations. When confronted, they claim ignorance or inability, asserting that they cannot properly identify the source of these abuses. Being pawns on the chessboard that is the free market and moved by an invisible hand they cannot control, these multinationals present themselves as powerless to stop the abuse.

Even with overwhelming evidence of the corporations’ role in perpetuating child slavery, the Court handed them a resounding victory.

Lawyers like Collingsworth, however, challenge this narrative by taking Nestlé and Cargill to court in 2005, accusing them of contributing to slavery by sourcing from these supply chains. Yet legal efforts have fallen short in recent years. Despite the clear evidence of child labor in cocoa, confirmed by the Department of Labor, every member of the Supreme Court ruled in Nestlé and Cargill’s favor in 2021, sixteen years after the initial complaint. Even with overwhelming evidence of the corporations’ role in perpetuating child slavery, the Court handed them a resounding victory.

To understand how we got here, we must understand the history of supply chain accountability in the U.S. and how legal avenues of redress have narrowed steadily over time.

Remarkably, there was once an era when holding corporations accountable for international abuses was a realistic prospect, lurking in an old provision passed by the very first Congress in 1789, known as the Alien Tort Statute (ATS). 

The ATS gives U.S. courts jurisdiction over “civil claims by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute enables non-Americans to sue for a violation of international law, which includes widely embraced bans on torture, slavery, and genocide. This violation is treated as a “tort”, a kind of civil wrong where victims can get monetary compensation. 

The text of the ATS suggests that anyone is on the hook: public officials, organizations, corporations — the whole spectrum of actors who could conduct supply chain abuses. Without clear exceptions, this law seemingly gives unprecedented freedom for foreigners to sue anyone for the most heinous crimes against humanity, a potentially very powerful legal tool. 

Although leveraged in its first decades to punish assaults on foreign diplomats, the ATS’ potential for wider human rights protection surfaced in the 1980s, when former public officials from Latin America were being sued successfully in U.S. courts for crimes like abduction and torture, enabling victims to finally get redress. Indeed, in this period it seemed that the ATS would possess the earth-shattering reach that its unbounded text implies,

For example, in Filartiga v. Peña-Irala, a former police inspector had to pay $10.4 million to the father of a boy whom he abducted and tortured to death in Paraguay. Neither party was American, nor did the crime occur in America. Usually, procedural minutiae prevent cases from being brought in a venue that has no relation to the crime, so the fact that an incident without U.S. ties could enter the courthouse door in the first place was extraordinary, all owing to the wide reach of the text. If a former state official could be sued, why not corporations? As Paul Hoffman, an experienced ATS litigator, said, “After the Filartiga case there was a roadmap for courts to follow.” 

Inspired by this early success, in 1996 a group of lawyers at Earthrights International, bolstered by local contacts in Myanmar, lodged the first case against a corporate entity. Myanmar had recently opened its borders after years of isolation, and with this openness came knocking a slew of corporations eager for business, one of which was Unocal, a gas company still in operation today (acquired by another fossil fuel giant, Chevron).

Unocal contracted with the Burmese military government to build a pipeline transporting gas from the Yadana offshore oil field, in a project worth $1.2 billion. Documents showed that Unocal employed forced labor during the construction, while the Burmese military used widespread sexual violence, mass village relocation, and torture to bring the workers into line.

Credit: Pixabay

Professor Tyler Giannini, founder of Earthrights and now a Clinical Professor at Harvard Law School, recounted how non-legal efforts to counter this abuse, “like public shaming and human rights reporting … [were] not working.” Seeking an alternative route and spurred by the Filartiga case, Earthrights filed a lawsuit against Unocal in California, representing those subjected to forced labor in Burma. 

Although Unocal denied the allegations, the plaintiffs had evidence from years of investigations in local communities, convincing the court to hear the case. Upon the discovery of more evidence during trial, such as a document establishing coerced labor for 463 people by the military, Unocal felt the pressure and settled in 2003, paying the plaintiffs in exchange for avoiding legal liability. 

Naturally, the success of the Burmese plaintiffs against an American corporation triggered alarm bells throughout the corporate world and across industries. If liable for their actions abroad, what of the windfalls promised by cheap and trafficked labor in developing nations? 

Although Unocal was ultimately settled, corporations coalesced to launch a concerted assault on the ATS whenever a lawsuit was on the table. Their efforts culminated in the 2013 Kiobel v. Royal Dutch Shell case, concerning the violent repression of peaceful resistance against oil development in Nigeria. Forming a rank-and-file, corporations barraged the Supreme Court with a whopping 86 “amicus briefs” (briefs by non-parties interested in the case) in support of Shell. As Collingsworth, who also litigated Kiobel, noted, “the U.S Chamber of Commerce, the Council for International Business, the entire National Association of Manufacturers, an entire lineup of U.S. capitalism said to the Supreme Court, ‘you can’t do this’ because it will interfere with global businesses.” According to Giannini, they exploited the fear of “opening the floodgates,” warning that expanding the ATS would destroy the competitiveness of American companies.

And corporations were not alone. Aiding their crusade against the ATS was none other than the U.S. government. The Attorney-General submitted a brief to the court stressing that the ATS has been “commandeered and transformed into a font of causes of action,” and warning of the “potential for serious interference with the important foreign policy interests of the United States.” An alliance of vested interests, buttressed by Big Law firms, rallied to reject the aspirations of a small and under-resourced coalition of non-government organizations. 

The corporations succeeded. In a 5-4 decision, the Supreme Court ruled that a claim could only arise under the ATS if the violations “touch and concern” the territory of the United States. In profound tension with the ATS’ all-encompassing text, the Supreme Court confined its reach to incidents closer to home or involving American parties. As powerfully explained by Collingsworth, three Supreme Court justices – Scalia, Thomas, and Alito – were “voting to add more language to the ATS than was already there … these ‘textualists’ were willing to completely bastardize their judicial philosophy because they wanted to give a free pass to corporations.” 

Textualism is a mode of legal interpretation that privileges, as its name suggests, the “text” of a statute. It stands in opposition to purposivism, which focuses on the objectives of the legislators in writing the law. Unlike purposivists, textualists view statutes like the ATS as a product of a “legislative compromise”, where the rough-and-tumble of the political process reflects the closest indicator of legislative will. Only the one thing that everyone in Congress voted on – the text – speaks for the collective. 

“these ‘textualists’ were willing to completely bastardize their judicial philosophy because they wanted to give a free pass to corporations.” 

Textually, the ATS should have no problem encompassing torts committed on foreign soil because the statute lacks any express indication that corporations were excluded from liability. Yet, despite the zealous commitment to textualism proclaimed by justices like Scalia and Alito, they completely disregarded it here. Their fickleness shows that corporate concerns successfully pierced the Supreme Court’s reasoning, apparently dispelling any commitment to legal philosophy. This characterization seems especially clear when both the liberal and conservative, purposivist and textualist, wings of the court all converged to hand Nestlé a 9-0 victory in Nestlé v. Doe.

Complementing their interventions in the judicial system, corporations sought to alter legislation itself in their favor. Some of their supported initiatives fizzled, like Dianne Feinstein’s proposed bill to prevent the ATS from covering forced labor and crimes against humanity. Other initiatives addressing global supply chains took a more subtle and indirect approach to boosting corporate power. 

In 2001, chocolate companies successfully lobbied to prevent a bill that would outlaw cocoa imports produced by child labor. The bill was promoted by the International Rights Advocates, following their investigations in Côte d’Ivoire uncovering child labor in cocoa plantations. Although it passed the house, a swift corporate reaction rallied sufficient legislative opposition, led by Bob Dole and George Mitchell, to severely slash the bill.

Instead of creating a system of regulatory oversight, obliging companies to stamp out child labor in the system, the cocoa sector created and signed the voluntary Harkin-Engel Protocol in 2001. Through this Protocol, chocolate companies like Mars, Nestlé, and Hershey Food Corporation pledged to end the reliance on child labor in their supply chains by July 2005. The Protocol expressly derived its goals from the International Labor Organization’s (ILO) Convention 182 to End the Worst Forms of Child Labor, ratified by most nations.

Predictably, these companies failed to meet their pledge. A 2020 Department of Labor study found that child labor in cocoa production had in fact increased to 1.56 million children in West Africa, with 95% performing hazardous work (lifting heavy weights, using machetes, and spraying pesticides), in violation of ILO Convention 182. Instead of discharging their reliance by 2005, chocolate companies gave themselves extensions until 2025, to reduce their use of child labor by 70%. 

To Collingsworth, these measures testified to how “cold and calculating” these companies were, using promises to placate public attention. “Much like the tobacco industry, they’ve hired public relations firms and lawyers … trying to delay as long as possible and protect this highly profitable system that relies upon, is dependent upon, the cheap labor of children.” Indeed, according to Collingsworth, this same corporate playbook replicates itself across industries.

This combination of judicial and legislative attacks on supply chain accountability places a protective halo around any industry that relies on abusive labor practices in developing countries.

This combination of judicial and legislative attacks on supply chain accountability places a protective halo around any industry that relies on abusive labor practices in developing countries.

For example, cocoa is not the only plantation industry reliant on child labor. Palm oil, universally present in everything from Nutella to shampoo, also comes out of plantations in countries like Indonesia, Liberia, and Nicaragua. The abuses resemble that of cocoa, with extensive human trafficking into slavery, and with children being exposed to toxic chemicals and working long hours.

Unsurprisingly, and perhaps because giant conglomerates like Nestlé and Hershey participate in both the chocolate and palm oil industries, the corporate response to public scrutiny also mirrors that of cocoa. For example, a non-governmental initiative, known as the Roundtable on Sustainable Palm Oil (RSPO), was set up to certify palm oil sources as “sustainable” and free from labor abuses. Like the Harkin-Engel Protocol created by Big Chocolate, the RSPO functions as a self-regulatory mechanism promising to improve global palm oil production standards.

Who are the board members? Representatives from the world’s largest palm oil importers and producers, such as Procter and Gamble, Unilever, Wilmar International, and the Malaysian Palm Oil Association. “The companies that are being monitored are paying the outfit that’s doing the monitoring, so it’s kind of corrupt from top to bottom,” says Jocelyn Zuckerman, a journalist and author who has documented palm oil abuses from Nicaragua to Indonesia. The fact that their website reads like an ad for palm oil, describing its “smooth and creamy texture” and posting a tantalizing picture of someone spreading butter on toast, exposes the blatant conflict of interest that such a laissez-faire approach portends. 

The palm oil industry’s connections with Big Chocolate and even the ATS become increasingly eerie as Zuckerman describes how they employ the Washington-based DCI Group to handle lobbying and public relations. Representing the Malaysian Palm Oil Council on a $1 million dollar budget, DCI spun a narrative where boycott movements in the West are committing “ecocolonialism” and racism, threatening to jeopardize Southeast Asian livelihoods by stunting their local palm oil industry. “Meanwhile,” Zuckerman continues, “there are these Republican Americans in Washington, DC, saying ‘pretend this is a grassroots campaign’ when in fact this was a highly compensated corporate plan.” 

Different strings trace back to the same puppeteers, a constellation of corporate actors that rely on the same brokers, such as lobbyists like DCI and the Republican Party, to manipulate the legal framework in their favor.

The icing on the cake? DCI also worked for the Burmese junta, the very same government that committed forced labor and extrajudicial killings in the 1990s, whose corporate partner Tyler Giannini and Earthrights fought with some success. Earthrights did, in fact, sue the junta itself, but courts dismissed this prong of the case due to concerns about suing sovereign nations. DCI managed the junta’s public relations in 2003, the very same year that Unocal settled. Although DCI’s project focused more on allegations of mass sexual violence against minorities elsewhere in Myanmar, it is clear that certain actors in the U.S. have become reliable sanitizers of foreign rights abuses. 

The case of palm oil illustrates how we cannot treat supply chain abuses across different industries separately. Different strings trace back to the same puppeteers, a constellation of corporate actors that rely on the same brokers, such as lobbyists like DCI and the Republican Party, to manipulate the legal framework in their favor.

And why stop at plantation industries? We can leap further afield to a completely different sector, like Big Tech, to really see how every industry takes a page out of the exact same corporate playbook when challenged on their global supply chain practices. 

Recently, companies like Google, Apple, Dell, and Microsoft have been exposed for purchasing cobalt from suppliers who use child labor. Cobalt is essential for powering the rechargeable lithium batteries present in millions of their products. 60% of their cobalt comes from the Democratic Republic of Congo, where labor violations are rampant, with children being paid $2 a day to enter tunnels in search of the mineral, knowing that the tunnel was always at risk of collapsing. As Collingsworth describes, “they know that that tunnel is going to collapse. The only question is, ‘will it collapse while I’m in it?’” The work is so dangerous that one boy became “completely paralyzed from his chest down” after slipping and falling from a mine.

We might expect that technology companies, being at the forefront of innovation and catering to a digitally savvy generation, resonate more with “woke” ideals. At the very least, we might expect them to use advanced technologies to monitor supply chains. Because cobalt mines are close to the surface, they are easier to monitor than mines for other resources like coal. Tech companies can “have eyes on those mines 24/7 … if you had a drone parked above a major mine, you can see who’s there all day long.”

Pexels, photo by Vlad Chetan.

However, the response from Big Tech has been no different from that of Big Chocolate. First, they deny any reliance on child labor. Dell asserts, “We have never knowingly sourced operations using any form of involuntary labor, fraudulent recruiting practices or child labor.” Upon being presented with insurmountable evidence, they invoke a generic internal commitment. For example, Google responded to the allegations by saying, “Our Supplier Code of Conduct strictly prohibits this activity. We are committed to sourcing all materials ethically.” Collingsworth notes that even though “it’s just a paper policy, some consumers will say ‘well, look, they got a good policy, good on them.’”

More insidiously, some companies point to a “model program,” one factory or mine that does adhere to labor standards to suggest that labor violations are not widespread. For example, companies like Apple, Dell, and Microsoft support the Mutoshi mine in the DRC, an experimental mine run partly by an NGO, aimed at more tightly regulating slave labor. This mine “allows them to take journalists and politicians there to say, look … we’re making progress,” even though the vast majority of their own operations remain unsupervised. Again, this bears disturbing resemblance to the cocoa industry, which supervises around 10% of their supplier plantations.

Ultimately, whether the final product is highly complex like a MacBook, or as simple as the palm oil in our toothpaste, corporations use the exact same tactics to avoid liability for slavery in their supply chains.

Ultimately, whether the final product is highly complex like a MacBook, or as simple as the palm oil in our toothpaste, corporations use the exact same tactics to avoid liability for slavery in their supply chains. Even with decisive evidence of labor violations, they undertake the same crisis control mechanisms, like adopting anti-slavery rhetoric, to weather the storm of public opposition.

The prevalence of supply chain abuses in different industries illuminates a wider issue: an absence of laws forcing corporations to monitor and disclose information about their supply chains, and the imprecision of current U.S. law to solve the problem. Indeed, U.S. Congressmen have introduced such laws separately in 2011, 2014, and 2015, but these have all failed to pass.

Weak transparency laws make it difficult for lawyers to get a case running because of a lack of public information about a corporation’s activities. For a case to enter the “discovery” stage, where litigants can force the other side to cough up potentially revealing documents, the accusers must already have substantial evidence about the corporation’s activities. Without transparency laws, this initial evidence is hard to find. According to Hoffman, “Companies don’t disclose a lot of information unless they have to. They’re secretive entities to begin with.” Although parties can rely on a corporation’s public filings, website information, reports by human rights groups, or whistleblowers, the information provided by these are limited. Hoffman says that plaintiffs are in a contradictory position, where accusers cannot get crucial evidence through discovery unless they have the evidence in the first place. 

This information drought impedes efforts to bring cases under laws like the ATS, especially as the Supreme Court’s narrowed understanding of the ATS forces litigants to connect supply chain abuses to their American office, a much more difficult task. “We were forced to get creative in trying to demonstrate that the cocoa companies did enough in the United States to ‘touch and concern’ the territory of the United States,” lamented Collingsworth. As Hoffman confirms, “there’s no way to find out what companies have done on U.S. soil” that sufficiently relates to their activities abroad, and “if you don’t have the information, you lose.”

The deficiencies in U.S. corporate law are especially clear when compared to other legal systems. For example, the United Kingdom in 2015 passed the Modern Slavery Act, which requires companies to reveal human trafficking risks in the supply chain, and make that information available on their website and on request. In France, the 2017 “duty of vigilance” law requires companies to keep detailed and updated records of supply chain human rights risks, appropriate actions to reduce those risks, and a monitoring scheme to guarantee effective implementation. Compared to the U.S. system, these laws demand a much higher level of transparency, disclosing information exploitable by those seeking to take corporations to court. Although implementation is hard and data about the overall effect of these laws is unclear, the fact that the U.S. does not even have these mechanisms demonstrates the gaps in its system. 

The corporate butchering of the ATS and the general frailty of U.S. law in responding to supply chain abuse might leave us feeling hopeless. But even with a neutered ATS, lawyers like Hoffman and Collingsworth have resisted pessimism, continuing to identify creative legal strategies to take corporations to task.

First, they have identified other laws to sue corporations under, like the Trafficking Victims Protection Act (TVPA), passed in 2000, and reauthorized multiple times since. One provision makes someone liable if they “knowingly benefit … from participation in a venture” that utilizes human trafficking. The “venture” aspect suggests explicitly that corporations are liable (although whether their supplier relations counts is under question). Meanwhile, the “knowingly benefits” prong is a low bar to meet. The corporation simply needs awareness that human trafficking occurs in the supply chain (instead of some malicious intent to make workers suffer, for example), to get sued successfully. Collingsworth and Hoffman have both launched a new case against Nestlé and a case against Big Tech under the TVPA.

Indeed, Collingsworth sees the “knowingly benefits” aspect as a stronger weapon against the corporate playbook. Responding to a documentary that Collingsworth released on child slavery in Côte d’Ivoire, Nestlé stuck to the classic line of feigning ignorance, likening themselves to any ordinary purchaser of cocoa. If they are held liable, so too should consumers and retailers. Yet simultaneously, their website reveals a unique and heightened knowledge of conditions on the ground, claiming to work closely with cocoa farmers to achieve a sustainable future. Collingsworth asserts, “they’re bragging about how they’re helping the farmers … you can’t have it both ways …” Despite continuing difficulties, avenues like the TVPA leave Collingsworth with a tenor of optimism. “I think we got ‘em, I really think they went too far in assuming that the court isn’t going to notice that they’re lying.”

Secondly, even the ATS itself is not down for the count. Hoffman observes that, “Even in this hyper-conservative court, Nestlé could have been a lot worse decision than it was … it leaves open the possibility that at least some cases could go forward.” Crucially, the Supreme Court did not close the doors on suing corporations generally, and five Justices suggest that they would support putting corporations on the hook. For example, Justice Gorsuch questioned that “If early Americans assaulted or abducted the French Ambassador, what difference would it have made if the culprits acted individually or corporately?” As long as their U.S. activities have an unquestionable connection to foreign abuses, redress is possible, albeit difficult to prove.

Ultimately, litigation must harmonize with a wider social movement to hold corporations accountable. Paul Hoffman urges, “you gotta build a movement, and it’s gotta be strong enough to get companies to change their practices.” Regarding Nestlé and Cargill, Hoffman observes that certain factions within the corporations supported a human rights position. “There are people inside Cargill that would want to change, and there are people inside that don’t … the people that don’t, won.” If movements reach the right interest groups within corporations, they could start pulling the levers of power the same way that corporations do when they identify key government actors to take up their cause.

When activists coalesce with watchdog organizations and journalists, that is when the prospects for accountability reach their apex. 

Zuckerman shares this sentiment. Although corporations will embrace environmental concerns on their own, since sectors like palm oil depend on fertile land for profit, supply chain labor concerns differ because of the unavoidable competitive advantages gained in lowering costs as much as possible. “They would get away with it to the extent that they can, and pay people cheap … I think it’s really an issue of people continuing to call them into account.” Thus, any movements addressing labor must be especially driven. According to Zuckerman, when activists coalesce with watchdog organizations and journalists, that is when the prospects for accountability reach their apex. 

Credit: Pixabay

Similarly, once we understand the common threads unifying different supply chains, we can address the contagion at its source through legislation. This approach has already worked during Unocal, when public outcry prevented legislative maneuvers: Dianne Feinstein’s proposed act to gut the ATS was “withdrawn in milliseconds.”  

But playing defense is not enough. The consumer movement must now focus on passing accountability legislation. Most notably, the Slave-Free Business Certification Act, introduced just this March, would oblige corporations “to audit their supply chains for labor practices or human trafficking activities that violate specified national or international standards,” reporting to the Department of Labor. Similarly, the FOREST Act currently under consideration would oblige importers in designated industries, like cocoa and palm oil, to submit detailed information about “all possible points of origin” in countries deemed to have high rates of deforestation and human rights abuse. Zuckerman fears that corporations will fight to derail the bill, so activists must respond decisively to prevent the same watering down that became the Harkin-Engel Protocol in the 2000s.

Ultimately, it remains unclear whether victims of supply chain slavery can use American courts to find redress in the short term, especially if corporations continue to pressure the judicial and legislative systems in their favor. Although bills like the Slave-Free Business Certification Act are on the table, experience with the Harkin-Engels Protocol confirms the susceptibility of Congress to lobbying, transforming a bill with strong oversight to one wholly reliant on voluntary self-reporting.

Given that corporations unify around a playbook to protect supply chain abuses, the success of stronger legislative initiatives requires more than one tool of social change. Indeed, it requires coalition-building on the consumer and non-governmental organization side, recognizing that the common thread underlying abuse across different industries is the absence of effective corporate legislation. 

As Hoffman aptly summarizes, “This is not a permanent condition … the struggle legally for human rights and civil rights, it’s unending.” To effectively stem the tide, pessimism must give way to grit and strategic adaptability. Only if legal and non-legal strategies harmonize can we start loosening the strictures of the supply chain. 

From The [F]law:

• Julio Colby, Brave New Work: The Resurgence of Organized Labor in the U.S.
• Shao Chang, Gig Economy and the Future of Work.
• Austin Nielsen-Reagan, The Profitability of Inhumanity.

From The Systemic Justice Journal:

• Breanne Parker, Fast Fashion, Consumer Complicity, & Corporate Accountability.
• Chloe Warnberg, Private Contracts in “Public” Prisons: How Corporate Power Allows for The Exploitation of Incarcerated People and Their Loved Ones

From Tort Report Videos:

• Fast Fashion, Full Fraud
• Consumer Culture: Fast Fashion
• Who’s Getting Green?