Panelists on child labor describe accountability efforts

Schoolchildren play at a Goboué, Côte d'Ivoire, school
built by Nestlé and cocoa partners. Nestlé via Flickr CC BY 2.0.

Liability for child labor and child trafficking was the subject of an informative continuing legal education program from the International Law Section of the American Bar Association in January.

The program contemplated various legal vehicles for liability, including the alien tort statute (ATS) and the Trafficking Victim Protection Act (TrVPA). And don't count out ordinary, common law tort, said Terry Collingsworth, executive director of the International Rights Advocates. 

The program description set the alarming scene:

There is no childhood for boys and girls who are trafficked as sex slaves or for imperiled cobalt miners in the Democratic Republic of the Congo working without protective gear, or for children who are forced to fight as soldiers or girls conscripted into forced marriages. Nor is there a childhood for enslaved young boys as young as five who are sold to human traffickers and made to work as fishermen for up to 12 hours a day, seven days a week.

Despite a range of UN protocols and statutory accountability mechanisms, abusive child labor practices persist.

The reach of the 1789 ATS has been limited in recent years by Supreme Court rulings requiring that a matter "touch and concern" the United States. Collingsworth—whose commentary I found most informative, and a fellow Duke Law alum—criticized this interpretation of the ATS as reading non-extraterritoriality into the statute, "as if it should only apply if the kids were kidnapped from the United States."

The "read in" did contradict decades of federal court precedent, dating to the 1980s. At the same time, statutory interpretation recognizes a presumption against extraterritoriality, so the courts arguably strayed from first principles.

Even with the knowledge requirement, " sadly, there's enough of that to keep us busy for the rest of eternity," Collingsworth said.

Provided jurisdiction and venue can be managed in U.S. courts, ordinary, common law tort theories can be helpful: assault and battery, infliction of emotional distress, and unjust enrichment. The challenge there, Collingsworth explained, is that "it takes years." He said a pre-2001 case against Exxon is going to trial only now.

"It shouldn't be that hard to enforce internationally agreed norms prohibiting the abuse of children," he said.

Another angle of attack on the problem panelists said, is section 307 of the U.S. Tariff Act, which prohibits the import of goods "mined, produced, or manufactured wholly or in part in any foreign country by convict labor or[] forced labor or[] indentured labor." In a related vein, I myself have seen certifications on products, and I wouldn't mind seeing more.

At the international level, the problem with abundant human rights instruments is a lack of enforcement mechanism, panelists said. Without enforcement, agreements and treaties "only offer cover for companies," Collingsworth said. 

A virtual attendee asked about defensive claims that child labor is culturally normal or provides a worthwhile avenue of economic opportunity. Collingsworth said that child advocates hear those arguments "all the time: ... someone says it’s always been that way, that’s how they learn a skill or trade." The speaker, he said, "is usually a rich guy benefiting from the labor.

"If you ask the kids if they’d rather work or go to school, that’s an easy one."

The ABA International Law Section hosted the panel "Childhood Denied: A Lifetime Lost: Conventions and Cases" on January 25. International law and gender consultant Elizabeth Brand moderated. Other panelists, besides Collingsworth, were Shandra Woworuntu, chair of the International Survivors of Trafficking Advisory Board; Jo Becker, advocacy director for the children's rights division at Human Rights Watch; Will Lathrop, field office director of the Ghanaian International Justice Mission.

Child labor still plagues chocolate supply chain in West Africa, despite decade of distressing documentaries

From our dining room table, a chocolate bunny left over from the weekend is staring me down.  Two things are keeping me from biting off its smug head.  First, I just got back from a run of only a couple miles, and I feel like I'm breathing through a straw.

Second, earlier today, I watched Chocolate's Heart of Darkness, a study of child labor in the chocolate supply chain.  The 42-minute piece is free on YouTube, posted September 2020.

This English version is credited to German public broadcaster Deutsche Welle (DW), though the film originated with French independent documentary firm Premieres Lignes in 2019.  French journalist and filmmaker Paul Moreira directed.  On YouTube, Chocolate's Heart of Darkness appears as "Bitter Chocolate," which risks confusion, because that is the title of an equally disturbing but different project on the same subject: s2e05 of the Netflix documentary series, Rotten, directed by Abigail Harper and also released in 2019.

Both of these Bitter works update, with precious little progress to report, the sorry state of affairs captured in the 2010 documentary The Dark Side of Chocolate, which was co-directed by Danish journalist Miki Mistrati and American U. Roberto Romano, a photojournalist and human rights activist who passed away in 2013.

Cocoa I photographed in Ghana in 2020.
The DW film depicts industry reliance with some success
in certification tracking in Ghana, but not in Côte d'Ivoire.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

In the last decade, I've refrained from recommending the 2010 docko to students or colleagues, because it's one of those films in which the makers' agenda so powerfully muscles in on the narrative that the viewer is left with reservations over objectivity.  But now, with two more projects in the same vein and all compasses pointing in the same direction, I think it's fair to discount nuanced indications of bias and say that Big Chocolate has a real mess on its hands.

Litigation against American agri-giant Cargill, a key broker in the global chocolate trade, and against Swiss-based multinational Nestlé, over child labor—practically, slavery—sits presently in the U.S. Supreme Court (Cargill, Nestlé at SCOTUSblog).  A decision, due any day, seems likely to kick the claims out for lack of U.S. jurisdiction under the alien tort statute, however much some Justices might have been troubled by what they heard in oral argument in December.

Even if the suits were to proceed in U.S. courts, or in any courts, Chocolate's Heart of Darkness gives a flavor of how hard the claims would be to prosecute.  Abusive child labor is so entrenched in West African forests, and nations such as Côte d'Ivoire so utterly incapable of establishing rule of law in these remote places, that it is scarcely imaginable that cocoa could be harvested any other way.  This is to say nothing of rampant deforestation to meet demand.

The film shows that the certification and tracking mechanisms set up with, let's give the benefit of the doubt, the best of intentions by the corporations to make good on sustainability pledges are so riddled with corruption as to be farcical.  It strains credulity to suppose that transnational companies do not know the reality.  But knowledge is not necessarily culpability.  And this is hardly the only supply chain that leads from Western fancy to catastrophic human toll in the developing world.

I don't think that my chocolate bunny is going to last the week.  But it's going to make me sick in more ways than one.

Peace, power at stake in elections around the world

Pres. Ouattara
(s t CC BY 2.0)

With the U.S. election looming, it's easy to miss crucial elections going on elsewhere in the world, such as Ivory Coast and Moldova, with potential ramifications for global peace.

Votes are being counted now in the Ivory Coast presidential election.  Incumbent Alassane Ouattara is hoping for a third term despite vigorous opposition.  A 78-year-old economist, Ouattara has been president since 2011, after the disputed 2010 election resulted in civil war.  The Ivory Coast constitution limits a president to two terms, but the Ouattara side claims that a constitutional revision in 2016 reset the term clock.

The Sahel
(Munion CC BY-SA 3.0)

An especially sensitive issue in the West African context, the dispute over term limits gives Ouattara's run an uncomfortable overtone of authoritarianism.  Ivory Coast is a key commercial player in West Africa, so stability or instability there ripples throughout the region.  One way or the other, the influence of Ivory Coast's outcome could be especially impactful as Mali, Burkina Faso, Niger, and western Nigeria all struggle to get a grip on lawlessness and violence in the western Sahel.

Frmr. P.M. Sandu
(Accent TV 2015 CC BY 3.0)

Meanwhile, voters are at the polls today in Moldova to choose between starkly different visions for the country's future.  Former socialist party leader Igor Dodon, president since 2016, faces former prime minister Maia Sandu in the country's fourth election since 1991 independence.  Dodon carries the endorsement of Russian President Vladimir Putin and resolves to look eastward for Moldova's future.  Sandu thinks the best hope to pull Moldova out of chronic economic stagnation lies westward, in the European model of development.  

Pres. Dodon
(Russian Pres. Press & Info. Ofc. CC BY 3.0)

I wrote last year about my visit to the "breakaway state" of Transnistria, which embodies the depth of divide over Moldova's future.  Yet so much more is at stake; Moldova stands as a bellwether for the region, indicative of future European or Russian influence.  And with Brexit occurring on Europe's opposite border, the continental union's prospects for eastern growth might speak to the future of the union itself.

Both elections, in Ivory Coast and Moldova, are plagued with reports and denials of poll tampering and improper influence over voters.  And people in both countries fear for the peace in the wake of an outcome favoring any side.

Protestors in Algiers, March 2019
(Khirani Said CC BY-SA 4.0)

Even these elections are not the only ones in the world right now.  The "Georgian Dream" party looks to have won third-term control of Georgia's parliament, lengthening a long-term one-party rule there that opponents say has failed to deliver economic prosperity for working people.  And today, voters in Algeria, where I also visited in 2019, opine on anti-corruption constitutional reforms hoped to quell protests that persisted after the 2019 election of presidential challenger Abdelmadjid Tebboune failed to deliver the prompt changes that the street wanted.

The American election is only one among many in the world this fall in which prosperity and peace might hang in the balance.  I'm hoping that whatever happens here on November 3, we model order and rationality.