The United States (“U.S.”) Supreme Court’s 2021 decision in Nestlé USA, Inc. v. Doe et al. (Nestlé v. Doe) significantly limits the jurisdiction of U.S. courts over human rights violations that occur outside the country, even when they involve corporations with an American presence.[1] This restriction, imposed on the Alien Tort Statute (“ATS”),[2] severely harms vulnerable individuals and gives corporations that capitalize off foreign slave labor more room to evade accountability and can lead to setbacks in ending slavery and exploitation.
In Nestle v. Doe, six Malian individuals filed a lawsuit against Nestlé U.S.A (“Nestlé”) under the ATS for aiding and abetting child slavery.[3] The individuals allege they were trafficked as child slaves for the production of cocoa in Côte d’Ivoire.[4] While Nestlé, a U.S.-based company, does not own or operate any farms within Côte d’Ivoire, it does buy cocoa from farms located within the country.[5] Initially filed in 2005 in the Central District of California, the case was litigated for about fifteen years before reaching the U.S. Supreme Court.[6] The case reached the U.S. Supreme Court after the U.S. Court of Appeals for the Ninth Circuit ruled against Nestlé, holding it liable.[7] However, in an 8-1 decision, the Supreme Court reversed the Ninth Circuit’s holding, ruling in favor of Nestlé on the grounds that Nestle’s corporate operations in the U.S. did not establish a sufficient domestic link to apply the ATS to the extraterritorial activity in question.[8] The Court, applying the framework from RJR Nabisco, Inc. v European Community[9] reinforced the opinion that the ATS applies only to domestic issues, even when a corporation that has a large U.S. presence is involved.[10]
The ATS was initially passed in 1798 as a single sentence granting federal district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[11] However, the statute did not become a relevant issue within the courts until the 1980s when individuals began bringing forth suits against other individuals and the 1990s for multinational companies.[12] In 1996, Doe v. Unocal[13] established legal liability for corporations who “commit the most serious abuses or if they ‘aid and abet’ abuses’” under the ATS.[14] Unfortunately, since this ruling, companies have sought to limit the ATS’s jurisdiction.[15] In 2013, the court in Kiobel v. Royal Dutch Petroleum concluded that allowing any presence within the U.S. to suffice to bring a suit under the ATS would “reach too far,”[16] creating the condition that the issues must “‘touch and concern’ the United States.”[17] A few years later, in 2019, Jesner v. Arab Bank further pushed the narrative to protect corporations and concluded “that foreign corporations may not be defendants in suits brought under the ATS.”[18] The court looks to other international tribunals to support their reasoning, stating how international statutes limit liability to “natural persons.”[19] These limitations not only allow large corporations operating within the U.S. to find ways to circumvent the law but also shield international companies from any liability.[20] Opinions remain split over the interpretation of the ATS.[21] Some international law experts have commented on how the U.S. Supreme Court continues to keep the possibility of a suit very narrow, arguing that this approach does not align with the “originalist” interpretation of the U.S. Constitution.[22]
The U.S. Supreme Court’s decision not only sparked widespread dispute within the U.S., but it also contradicted the growing international push to end slavery and impose stronger punishments on those who contributed.[23] In December 2024, the International Criminal Court (“ICC”) published a new policy on Slavery Crimes.[24] The policy defines slavery under the Rome Statute[25] and “[i]t will guide the Office to properly investigate and prosecute the full character of enslavement and sexual slavery as crimes against humanity, and sexual slavery as war crimes while acknowledging that slavery crimes can take myriad forms.”[26] The recognition of slavery as a war crime in recent cases,[27] along with the new policy, could lead those in the U.S. who have shown to keep slavery alive to face future legal challenges. While the U.S. is not a Member State to the Rome Statute, a member state could still attempt to bring forth a suit.[28] The United Nations, which the U.S. is a member of, has also for years spoken about slavery and the impacts they have on people while pushing to abolish it entirely[29] could also decide to bring forth a recommendation.[30] Countries around the world continue to pass laws to end slavery, including Australia in 2018, where they passed the Modern Slavery Act requiring “companies that have a consolidated revenue of over AU$100 million (approximately US$67 million) per annum to report on the actions they are taking to respond to modern slavery.”[31] While the U.S. Constitution has the thirteenth amendment,[32] notorious for its action to end slavery within the country, the country still shows through legal actions, including the court rulings previously discussed, demonstrating the prevalence of slavery in our society and how there is still a long way to go before it can end for good.
The U.S. Supreme Court’s decision enables corporations that rely on foreign labor to avoid individuals and exploit individuals in other countries that lack the means to protect themself. People like the six Malian individuals who brought forth this suit and others in similar situations will continue to struggle and have minimal legal help from the U.S. legal system. By reversing the Ninth Circuit’s ruling in a near unanimous vote and stating that Nestlé’s U.S. operations were insufficient to establish jurisdiction over the issue,[33] the Court sent an implicit message to corporations and those wronged by them that it condones such practices and that the ATS will not help them seek justice according to recent interpretations by the U.S. judicial system.
Even with rising global and domestic conversations over the issue of child labor in the cocoa market, there has been minimal evidence of improvement.[34] Over the years, public criticism has grown over companies’ cocoa sourcing practice.[35] In response, Nestlé promised to improve the working conditions from where they source their cocoa.[36] However, this promise is hard to follow, and there seems to be minimal proof that the company has followed through on its plan.[37]
Despite efforts to search for data from third-party sources to balance any biases a direct source from the company may pose, most of the available information comes from Nestlé’s own website.[38] The lack of independent, credible resources to verify Nestle’s cocoa resourcing allows the company to make any statements they wish without being held accountable, which frustrates consumers who seek honesty and accountability from corporations.[39] The information found when researching Nestlé gave positive feedback on the Cocoa Plan, Nestlé’s plan of action to source ethical cocoa and aid exploited workers and farmers financially and educationally.[40] However, they still seem to lack specific detailed statistics to back up the company’s statements, such as first-hand accounts of those positively affected by Nestlé’s efforts.[41] Even with Nestle’s promises and efforts to release products made exclusively from ethical cocoa, change has been slow to come and continues to provide holes in the reputability of facts.[42] While slavery has been publicly condemned for centuries, the Nestlé case demonstrates it is not truly eradicated from society. Not only does slavery and other forms of exploited labor still exist, but they still struggle to gain proper legal standing within the U.S. court system as illustrated through the past thirty years and harm society’s efforts to move away from such inhumane practices.
[1] See Nestlé USA, Inc. v. Doe et al., 593 U.S. 628 (2021) [hereinafter Nestlé].
[2] 28 U.S.C.§1350.
[3] Nestlé v Doe: United States Supreme Court overturns Nestlé’s liability for child slavery in cocoa supply chains, insufficient ‘domestic conduct’ to invoke the Alien Tort Statute, HRLC (June 17, 2021) [hereinafter HRLC], https://www.hrlc.org.au/human-rights-case-summaries/2021/8/30/nestl-v-doe-united-states-supreme-court-overturns-nestls-liability-for-child-slavery-in-cocoa-supply-chains-insufficient-domestic-conduct-to-invoke-the-alien-tort-statute.
[4] Nestlé, supra note 1.
[5] Id.
[6] David J. Scheffer, U.S. Supreme Court Assesses Corporate Complicity in Child Slavery, CFR (Dec. 9, 2020 8:30 am), https://www.cfr.org/article/us-supreme-court-assesses-corporate-complicity-child-slavery.
[7] HRLC, supra note 3.
[8] Id.
[9] See RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325 (2016) (court concludes that “Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries”).
[10] Id.
[11] The Alien Tort Statute: Holding Human Rights Abusers Accountable, EarthRights International,
https://earthrights.org/litigation-and-legal-advocacy/legal-strategies/alien-tort-statute/#:~:text=Torture%20victims%20can%20bring%20claims,the%20ATS%20claims%20after%20Kiobel (last vistited Feb. 24, 2025) [hereinafter EarthRights].
[12] Id.
[13] Doe v. Unocal – The First Case of its Kind: Holding a U.S. Company Responsible for Rape, Murder, and Forced Labor in Myanmar, EarthRights International, https://earthrights.org/case/doe-v-unocal/ (last visited Feb. 24, 2025).
[14] EarthRights, supra note 11.
[15] Id.
[16] Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) (Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required).
[17] Scheffer, supra note 6.
[18] Jesner v. Arab Bank, PLC, 584 U.S. __, 27 (2018), https://www.supremecourt.gov/opinions/17pdf/16-499_1a7d.pdf.
[19] Id. at 6, 14-15
[20] Scheffer, supra note 6.
[21] See William Roberts, International Law Experts Discuss Implications of Nestlé Decision, DCBAR (Sept. 1, 2021), https://www.dcbar.org/news-events/news/international-law-experts-discuss-implications-of-.
[22] Id.
[23] See ICC Office of the Prosecutor publishes new Policy on Slavery Crimes: Statement by Prosecutor Karim A.A. Khan KC, ICC (Dec. 2, 2024), https://www.icc-cpi.int/news/icc-office-prosecutor-publishes-new-policy-slavery-crimes-statement-prosecutor-karim-aa-khan [hereinafter Khan]; Commonwealth Modern Slavery Act (May 2023), 2018 https://modernslaveryregister.gov.au/resources/Commonwealth_Modern_Slavery_Act_Guidance_for_Reporting_Entities.pdf [hereinafter CMSA]; Practice relating to Norma 94. Slavery and Slave Trade, ICRC, https://ihl-databases.icrc.org/es/customary-ihl/v2/rule94 (last visited Feb. 24, 2025).
[24] Policy on Slavery Crimes, ICC (Dec. 2024), https://www.icc-cpi.int/sites/default/files/2024-12/policy-slavery-web-eng.pdf.
[25] Rome Statute of the International Criminal Court, ICC (2021), https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
[26] Khan supra note 23.
[27] See id. (Landmark historical legal decisions from the Nuremberg and Tokyo judgements to more recent cases of the ICC including Ntaganda (Situation in the Democratic Republic of the Congo) and Ongwen (Situation in Uganda) have recognised slavery crimes as war crimes and as crimes against humanity).
[28] See How the ICC Works, ABA-ICC Project, https://www.ohchr.org/en/instruments-mechanisms/instruments/slavery-convention; https://www.un.org/en/observances/slavery-abolition-day; https://www.un.org/en/observances/decade-people-african-descent/slave-trade (last visited Feb. 10, 2025). See also Understanding the International Criminal Court, ICC 11 (2020), https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf.
[29] See How the ICC Works supra note 28.
[30] Understanding the International Criminal Court supra note 28 at 36.
[31] Global Findings, Walk Free, https://www.walkfree.org/global-slavery-index/findings/global-findings/ (last visited Feb. 24, 2025); CMSA, supra note 23.
[32] U.S. Const. amend. XIII.
[33] HRLC, supra note 3.
[34] See Child Labor in the Production of Cocoa, Bureau of International Labor Affairs, https://www.dol.gov/agencies/ilab/our-work/child-forced-labor-trafficking/child-labor-cocoa (last visited Feb. 24, 2025); Forced labour: Chocolate’s hidden ingredient, Walk Free, https://www.walkfree.org/global-slavery-index/findings/spotlights/chocolates-hidden-ingredient/ (last visited Feb. 24, 2025); CFR supra note 6 (A 2020 report sponsored by the U.S. Department of Labor found that the proportion of children in Ghana and the Ivory Coast who work on cocoa farms increased from 31 percent to 45 percent [PDF] between 2008–2009 and 2018–2019).
[35] See Simon Harvey, Nestlé, Mars among chocolate makers criticised in cocoa-sourcing report, JustFood (Dec. 4, 2023), https://www.just-food.com/news/nestle-mars-among-chocolate-makers-criticised-in-cocoa-sourcing-report/.
[36] How is Nestlé tackling child labor risk?, Nestlé, https://www.nestle.com/ask-nestle/human-rights/answers/nestle-child-labour-supply-chains (last visited Feb. 24, 2025).
[37] Bethan Grylls, Nestlé’s big cocoa plans for full segregation and fair wages, Food Manufacture (July 3, 2024, 5:19 GMT), https://www.foodmanufacture.co.uk/Article/2024/07/03/Nestle-programme-looks-to-close-cocoa-living-income-gap/.
[38] See The Nestlé Cocoa Plan, Nestlé, https://www.nestlecocoaplan.com/ (last visited Feb. 24, 2025).
[39] Id.
[40] Id.
[41] Id.
[42] Nestlé Sustainably Sourced Cocoa – Does Good. Tastes Great, Nestlé, https://www.nestlecocoaplan.com/latest-news/nestle-sustainably-sourced-cocoa-travel-retail#:~:text=Nestl%C3%A9%20Sustainably%20Sourced%20Cocoa%20%2D%20Does%20Good*.,partnership%20with%20the%20Rainforest%20Alliance (last visited Feb. 24,2025).
