On December 1, 2020, the Supreme Court heard oral arguments in the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill, Inc. v. Doe I. Depending on how the court rules, these cases could mark the end of the Alien Tort Statute (ATS) as a means of holding corporations accountable in U.S. federal courts for human-rights abuses committed abroad. For victims of such abuses, particularly those in Africa, ATS has, until now, provided an opportunity to seek relief in the only jurisdiction where they can obtain an enforceable judgment, and where such a judgment is most likely to influence the future behavior of the offending corporations and their shareholders. While much of the world’s attention was focused last fall on whether the Supreme Court would find a way to meddle in the U.S. presidential election, human-rights lawyers and activists were paying close and anxious attention to the Nestlé and Cargill cases.
The ATS, which was part of the Judiciary Act of 1789, gives federal courts jurisdiction to hear civil claims brought by foreigners for torts “committed in violation of the law of nations or a treaty of the United States.” For most of its history the ATS lay dormant, but forty years ago courts began interpreting it as a way for victims of human-rights abuses that took place abroad to seek redress. Over the past couple of decades, however, the U.S. Supreme Court has made such redress more difficult by progressively narrowing the scope of the statute. At stake in the Nestlé and Cargill cases is the question of whether U.S. domestic corporations can be held liable under the ATS for their conduct in foreign countries and, if so, whether those corporations can be held liable for “aiding and abetting.”
These are not mere legal technicalities. Ruling that U.S. corporations cannot be held liable under the ATS would make it much easier for them to act with impunity abroad. Without a way to sue U.S. corporations in U.S. courts, victims of human-rights abuses committed by those corporations in other countries would effectively be left without a remedy. It is notoriously difficult to get American courts to honor judgments from the countries where the abuse took place. This has particular importance for Africa: both the Nestlé and Cargill cases involve claims of child slavery in cocoa production in the Ivory Coast, and several of the landmark cases that have narrowed the scope of the ATS have involved African plaintiffs suing for conduct in Africa.
According to the International Cocoa Organization (ICCO), West Africa accounts for 73 percent of global cocoa production. Ivory Coast alone produced 45 percent of the world’s cocoa in the 2019–2020 crop year. Chances are that the chocolate bar by the checkout counter and the syrup swirling in your café mocha began their journey to you on a West African cocoa plantation.
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