Introduction<\/p>\n\n\n\n
<\/p>\n\n\n\n
\u2018Human rights are inextricably linked to our shared future and a key element of the just transition to regenerative food systems. By respecting and advancing them in our value chain, we are building a foundation that contributes to a resilient future for our planet and its people.\u2019<\/em><\/a>[1]<\/strong><\/em><\/a><\/em><\/p>\n\n\n\n This is the first statement displayed on the Nestl\u00e9 website under \u2018Sustainability\u2019 and \u2018Human rights.\u2019 However, its turbulent past with human trafficking and child slavery across its multiple supply chains in Western Africa indicates otherwise. In 2005, six Malian children alleged that they were trafficked into the Ivory Coast to work on cocoa farms for Nestl\u00e9 and Cargill\u2019s chocolate and confectionery business.[2]<\/a> They worked fourteen hours a day, received minimal food and no shelter.[3]<\/a> The Plaintiffs argued that Nestl\u00e9 worked with farm owners to establish a supply chain while providing the necessary resources such as money, fertilizer and tools for cocoa production, aiding and abetting child enslavement in the Ivory Coast.[4]<\/a> However, in an 8 \u2013 1 majority, the Supreme Court dismissed the suit against Nestl\u00e9 in 2021, citing the absence of a jurisdictional nexus based on the presumption against extraterritoriality.[5]<\/a> This decision aligns with the Supreme Court\u2019s recent trend of excessively restrictive judgments on corporate accountability against human rights violations, creating a shield against liability for large corporations.<\/p>\n\n\n\n The plaintiffs filed an action under the Alien Tort Statute (ATS), which provides jurisdiction to district courts \u2018[over] 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.\u2019[6]<\/a> Since the 1980s, the ATS has been a vehicle for litigation against foreign human rights violations. foreign soil. In Fil\u00e1rtiga v. Pe\u00f1a-Irala<\/em>, a Paraguayan minor was tortured and killed by another Paraguayan citizen residing in the United States.[7]<\/a> The Second Circuit ruled that torture fell within the ambit of the ATS, describing the defendant as \u2018an enemy of all mankind.\u2019[8]<\/a> This progressive interpretation was replicated in 1996 when the Unocal Corporation was found guilty of extending its support to Myanmar\u2019s military coup.[9]<\/a> The corporation \u2018directly or indirectly subjected the villagers to forced labor, murder, rape and torture when the Defendants constructed a gas pipeline through the Tenasserim region.\u2019[10]<\/a><\/p>\n\n\n\n In 2004, the Supreme Court shifted to a more restrictive construction of the ATS caused by diplomatic tensions due to an increasing number of extraterritorial suits against foreign entities.[11]<\/a> In Sosa v. Alvarez-Machain, <\/em>the \u2018violation of the law of nations\u2019 under the ATS was restricted to three categories of transboundary torts: violations of safe conduct, infringements on the rights of ambassadors, and piracy.[12]<\/a> In Jesner v. Arab Bank<\/em>, foreign corporations were precluded from the jurisdiction of the ATS.[13]<\/a> Finally, Kiobel v. Royal Dutch Petroleum Co. <\/em>laid down the presumption against extraterritoriality as a precondition for a suit under the ATS.[14]<\/a> A combined reading of the restrictions outlined in the above cases has significantly raised the burden of proof under the ATS, creating a paradigm shift since Fil\u00e1rtiga.<\/em> The Supreme Court\u2019s decision in Nestl\u00e9 <\/em>reiterates this shift by further restricting ATS jurisdiction against corporations, stating that \u2018general corporate activity\u2019 is insufficient to disprove the presumption against extraterritoriality.[15]<\/a><\/p>\n\n\n\n I. Corporate Accountability<\/p>\n\n\n\n There is an absence of clarity in the Supreme Court\u2019s position on corporate accountability. The decisions in Kiobel <\/em>and Jesner<\/em> indicate a precautious stance on the extension of liability to corporations. In Kiobel, <\/em>the Second Circuit stated that \u2018corporate liability is not a discernible\u2014much less universally recognized\u2014norm of customary international law.\u2019[16]<\/a> Jesner <\/em>followed with identical reasoning, stating that \u2018charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach.\u2019[17]<\/a> This conclusion emanates from the Nuremberg Trials, which established that \u2018[c]rimes against international law are committed by men, not by abstract entities. . . .\u2019[18]<\/a> This statement was referenced by the Second Circuit and the Supreme Court in Kiobel<\/em>[19]<\/a> and Jesner<\/em>[20]<\/a> respectively<\/em> to imply that corporate accountability did not fall within the walls of international law. The absence of cases against corporations by international tribunals was perceived as evidence of its unenforceability. However, this notion is entirely misguided.<\/p>\n\n\n\n I.G. Farbenindustrie<\/em> (I.G. Farben<\/em>) was a German conglomerate that supplied the Zyklon B gas used to kill over a million prisoners at Auschwitz.<\/em>[21]<\/a> The Allies dissolved the corporation after World War II during the Nuremberg Trials and the members behind it were subsequently sentenced.[22]<\/a> As opposed to prosecution against the corporation itself, criminal proceedings were initiated against individual members after I.G. Farben\u2019s <\/em>dissolution.[23]<\/a> This was justified as protective measures so that \u2018Germany will never again threaten her neighbors or the peace of the world.\u2019[24]<\/a> It was not because the Court lacked the jurisdiction to act against corporations. Rather, corporate accountability in Germany\u2019s legal framework at the time was an unknown concept.<\/a>[25]<\/a> The Nuremberg judgement ordered for its dissolution so that I.G. Farben <\/em>would no longer threaten global peace.[26]<\/a> However, Kiobel <\/em>and Jesner<\/em> misinterpret the intentions behind Nuremberg to arrive at the conclusion that a cause of action does not arise against corporations under international law.[27]<\/a> The Nuremberg case against I.G. Farben<\/em> is simply an extension of \u2018piercing the corporate veil,\u2019 where the individuals behind the atrocities could not hide behind the juristic personality of the corporation. Although the Supreme Court in Nestl\u00e9<\/em> did not distinguish between individual persons and corporations under the ATS, it failed to adequately address the requirement to trace corporate liability under international law as a norm of conduct, once again leaving the door open for future judgments to adopt the Kiobel <\/em>standard.[28]<\/a><\/p>\n\n\n\n II. The Presumption Against Extraterritoriality<\/p>\n\n\n\n The narrow interpretation of the presumption against extraterritoriality is another restriction on the human rights of underrepresented communities. While the rationale behind this presumption was to restrict the \u2018abundance of litigation\u2019 post Fil\u00e1rtiga, <\/em>the high threshold of what is and is not \u2018conduct\u2019 on foreign soil has placed an undue burden on plaintiffs alleging violations of customary international law by domestic corporations.<\/a>[29]<\/a> In the existing framework, the victim must rebut this presumption by proving that a corporation\u2019s conduct was relevant to the territorial extent of the United States.[30]<\/a> However, there is no uniform way to determine this.<\/p>\n\n\n\n Kiobel<\/em> laid down the \u2018touch and concern\u2019 test where \u2018claims [that] touch and concern the United States would displace the presumption against extraterritoriality.[31]<\/a> Morrison v. National Australian Bank<\/em> substantiated the \u2018touch and concern\u2019 test with the \u2018focus\u2019 test, which stated that when \u2018conduct relevant to the focus of the provision occurred in the United States, then the application of the provision is considered domestic and is permitted.\u2019<\/a>[32]<\/a> Finally, RJR Nabisco Inc. v. European Community <\/em>merged Kiobel\u2019s <\/em>\u2018touch and concern\u2019 test and Morrison\u2019s <\/em>\u2018focus\u2019 test to establish a two-step framework.[33]<\/a> Here, the court examines whether the statute provides a clear rebuttal to the presumption against extraterritoriality and further inquires whether the conduct relating to the focus of the provision took place within the United States.[34]<\/a><\/p>\n\n\n\n The majority in Nestl\u00e9<\/em> held that the Plaintiffs failed to satisfy the Nabisco <\/em>test, with the Court ruling that the operational and financial decisions made by Nestl\u00e9 in the United States were insufficient to establish a nexus with child slavery in the Ivory Coast. However, the focus of the tort was not the act of child slavery itself. Instead, the Court should have examined Nestl\u00e9\u2018s aiding and abetting <\/em>of child enslavement in the Ivory Coast as a violation of customary international law. This interpretation would have satisfied the Nabisco <\/em>test because the conduct of Nestl\u00e9\u2019s complicity in child slavery occurred within the jurisdiction of the United States.<\/p>\n\n\n\n A. Aiding and Abetting<\/p>\n\n\n\n Secondary liability is an actionable claim under international law and the ATS.[35]<\/a> The Nuremberg Principles state that \u2018complicity in the commission of a crime . . . against humanity . . . is a crime under international law.\u2019[36]<\/a> The International Law Commission\u2019s Draft Code of Crimes Against the Peace and Security of Mankind also list \u2018complicity\u2019 as a crime.[37]<\/a> There are two elements in establishing complicity in the commission of a crime: mens rea<\/em> and actus reus.<\/em>[38]<\/a><\/p>\n\n\n\n Since the ATS focuses on \u2018tort[s] [only] committed in violation of the law of nations or a treaty of the United States<\/em>,\u2019[39]<\/a> it is necessary to examine the elements of complicity using international law. In Prosecutor v. Tadi<\/em>\u0107, mens rea <\/em>was defined as \u2018knowledge that the acts performed by the aider and abettor assist[ed] the commission of a specific crime by the principal.\u2019[40]<\/a> This knowledge may be inferred from the aider\u2019s and abettor\u2019s broader awareness[41]<\/a> and relevant circumstances.[42]<\/a><\/p>\n\n\n\n The Ivory Coast is responsible for 40% of global cocoa production.<\/a>[43]<\/a> It is estimated that 800,000 children work on cocoa farms in the Ivory Coast.<\/a>[44]<\/a> Furthermore, child slavery in Ivory Coast and Ghana has risen by 14% in the last decade because of the increased demand for cocoa-based products.[45]<\/a> Earlier this year, Nestl\u00e9 initiated a program to grant up to 500 Swiss francs ($543) annually to families engaged in cocoa farming in the Ivory Coast and school enrolment for their children.[46]<\/a><\/p>\n\n\n\n The timing of its welfare initiatives amidst public outcry in light of the above statistics is implicative of its knowledge of the principal crime, i.e. child slavery. Nestl\u00e9also regularly sent its employees from its U.S. Headquarters to Ivorian cocoa farms to inspect its infrastructure and operation.[47]<\/a> This implies that Nestl\u00e9 possessed the requisite knowledge of the engagement of child laborers in their cocoa farms to satisfy the mens rea <\/em>in aiding and abetting child slavery.<\/p>\n\n\n\n Concerning the actus reus of complicity, the Extraordinary Chambers in the Courts of Cambodia required acts or omissions to have a \u2018substantial effect on the commission of [a] crime . . . .\u2019[48]<\/a> The International Criminal Tribunal for Rwanda clarified that \u2018substantial effect\u2019 need not be in the form of a causal relationship with the principal crime.[49]<\/a><\/p>\n\n\n\n The Ninth Circuit discovered that Nestl\u00e9 provided \u2018kickbacks\u2019 or \u2018personal spending money\u2019 to the farm owners outside their ordinary business contracts to ensure that Nestl\u00e9 received cocoa at competitive prices that required the employment of child laborers.[50]<\/a> These decisions were made by Nestl\u00e9\u2019s corporate offices in the United States.[51]<\/a> However, the majority opinion described this as \u2018general corporate activity\u2019 within the United States, insufficient to create jurisdiction under the ATS.[52]<\/a> It failed to consider that the operational and financial decisions by Nestl\u00e9 had a discernible effect on the commission of the principal crime because of the incentives provided to the farm owners to supply cocoa at low prices.<\/p>\n\n\n\n Nestl\u00e9 \u2018s conduct within the United States had a material impact on the employment of children in cocoa farms, satisfying the actus rea in aiding and abetting child slavery. The Court should have used this reasoning to conclude that Nestl\u00e9 violated norms of international conduct on aiding and abetting from within the United States. This would have unequivocally rebutted the presumption against extraterritoriality by satisfying Nabisco\u2019s <\/em>two-step test and Morrison\u2019s <\/em>focus test.<\/p>\n\n\n\n Conclusion<\/p>\n\n\n\n The restrictive construction of the ATS threatens the fundamentality of customary international law and human rights. Congress enacted the Act in 1789 to uphold the United States\u2019 obligations to the international community. However, with an increasing number of businesses outsourcing their supply chains to foreign countries, corporate accountability must be enforced against global human rights transgressions. The imposition of arbitrarily narrow restrictions on the ATS impedes this process. The Supreme Court\u2019s decision in Nestl\u00e9<\/em> was a missed opportunity to \u2018pierce the corporate veil\u2019 and keep businesses accountable for their actions. Instead, it has set forth a dangerous precedent.<\/p>\n\n\n\n <\/a> [1]. Nestl\u00e9, INC., https:\/\/www.nestle.com\/sustainability\/human-rights<\/a> (last visited Oct. 20, 2022).<\/p>\n\n\n\n <\/a> [2]. Nestl\u00e9 USA, Inc. v. Doe I, 141 S. Ct. 1931, 1935 (2021).<\/p>\n\n\n\n <\/a> [3]. Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1017 (9th Cir. 2014).<\/p>\n\n\n\n <\/a> [4]. Nestl\u00e9 USA, Inc. v. Doe I, 141 S. Ct.at 1937.<\/p>\n\n\n\n <\/a> [5]. Id.<\/em> at 1936.<\/p>\n\n\n\n <\/a> [6]. 28 U.S.C. \u00a7 1350.<\/p>\n\n\n\n <\/a> [7]. Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980).<\/p>\n\n\n\n <\/a> [8]. Id. <\/em>at 890.<\/p>\n\n\n\n <\/a> [9]. Doe v. Unocal, 395 F.3d 932, 936 (9th Cir. 2002).<\/p>\n\n\n\n <\/a> [10]. Id<\/em>. at 937.<\/p>\n\n\n\n <\/a> [11]. See<\/em> Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004).<\/p>\n\n\n\n <\/a> [12]. Id. <\/em>at 724.<\/p>\n\n\n\n <\/a> [13]. See <\/em>Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402\u201303 (2018).<\/p>\n\n\n\n <\/a> [14]. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013). The presumption against extraterritoriality is defined as a principle where domestic statutes do not apply to foreign jurisdictions unless there is an express and affirmative indication to the contrary. Restatement (Fourth) of the Foreign Relations Law of the United States, \u00a7 404 (Am. L. Inst. 2018). <\/p>\n\n\n\n <\/a> [15]. Nestl\u00e9 USA, Inc. v. Doe I, 141 S. Ct. 1931, 1937 (2021).<\/p>\n\n\n\n <\/a> [16]. Kiobel v. Royal Dutch Petroleum, Nos. 06-4800-cv, 06-4876-cv, slip op. at 2 (2d Cir. Sept. 17, 2010).<\/p>\n\n\n\n <\/a> [17]. Jesner<\/em>, 138 S. Ct. 1386, 1400 (2018).<\/p>\n\n\n\n <\/a> [18]. Judge Philippe Kirsch, President of the International Criminal Court, Applying the Principles of Nuremberg in the ICC, Keynote Address at the \u201cJudgement at Nuremberg\u201d Conference (Sept. 30, 2006).<\/p>\n\n\n\n <\/a> [19]. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 119 (2d Cir. 2010).<\/p>\n\n\n\n <\/a> [20]. Jesner, <\/em>138 S. Ct. 1386, 1402 (2018).<\/p>\n\n\n\n <\/a> [21]. Allie Brudney, The I.G. Farben <\/em>Trial: Evidentiary Standards and Procedures and the Problem of Creating Legitimacy, 61 Harv. Int\u2019l L.J. 245, 253 (2020), https:\/\/harvardilj.org\/wp-content\/uploads\/sites\/15\/61.1-Brudney.pdf<\/a>.<\/p>\n\n\n\n <\/a> [22]. Id. <\/em>At 256.<\/p>\n\n\n\n <\/a> [23]. Tyler Giannini & Susan Farbstein, Corporate Accountability in Conflict Zones:<\/em> How <\/em>Kiobel Undermines The Nuremberg Legacy and Modern Human Rights<\/em>, 52 Harv. Int\u2019l L.J. Online 119, 131 (2010), https:\/\/harvardilj.org\/wp-content\/uploads\/sites\/15\/2010\/11\/HILJ-Online_52_Giannini_Farbstein1.pdf<\/a>.<\/p>\n\n\n\n <\/a> [24]. Id. <\/em>at 123.<\/p>\n\n\n\n <\/a> <\/em>[25]. <\/em>Id.<\/em><\/p>\n\n\n\n <\/a> [26]. Id.<\/em><\/em><\/p>\n\n\n\n <\/a> [27]. Id. <\/em>at 122.<\/p>\n\n\n\n <\/a> <\/em>[28]. <\/em>See<\/em> Lindsey Roberson & Johanna Lee, The Road to Recovery After Nestl\u00e9: Exploring the TVPA as a Promising Tool for Corporate Accountability, <\/em>Colum. Hum. Rts. Rev. , Nov. 9, 2021, at 10, https:\/\/hrlr.law.columbia.edu\/files\/2021\/11\/11_9-Nestle-HRLR-Online.pdf<\/a>..<\/p>\n\n\n\n <\/a> [29]. See<\/em> Stephen P. Mulligan, The Rise and Decline of the Alien Tort Statute, <\/em>Congressional Research Service (2018) https:\/\/sgp.fas.org\/crs\/misc\/LSB10147.pdf<\/a>.<\/p>\n\n\n\n <\/a> [30]. See <\/em>Desir\u00e9e LeClercq, Nestl\u00e9 United States, Inc. v. Doe. 141 S. Ct. 1931, <\/em>115Am. J. Int\u2019l. L. 694, 695 (2021).<\/p>\n\n\n\n <\/a> [31]. Kiobel<\/em>, 133 S. Ct. at 1669.<\/p>\n\n\n\n <\/a> [32]. Roberson, supra <\/em>note 28,at 11.<\/p>\n\n\n\n <\/a> [33]. RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090, 2101 (2016).<\/p>\n\n\n\n <\/a> [34]. Id.<\/em><\/p>\n\n\n\n <\/a> [35]. Roberson, supra <\/em>note 28,at 14.<\/p>\n\n\n\n <\/a> [36]. Int\u2019l Law Comm\u2019n, Principles of Int\u2019l Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, Principle VII, Rep. of the Int\u2019l Law Comm\u2019n on the Work of Its Second Session, U.N. Doc. A\/1316 (1950).<\/p>\n\n\n\n <\/a> [37]. Int\u2019l Law Comm\u2019n, Draft Code of Offences against the Peace and Security of Mankind, art. 2(13)(iii), Rep. on the Work of Its Sixth Session, U.N. Doc. A\/2693 (1954).<\/p>\n\n\n\n <\/a> [38]. See generally <\/em>Oona A. Hathaway et al., Aiding and Abetting in International Criminal Law<\/em>, 104 Cornell L. Rev. 1593 (2019).<\/p>\n\n\n\n <\/a> [39]. 28 U.S.C. \u00a7 1350.<\/p>\n\n\n\n <\/a> [40]. Prosecutor v. Tadi\u0107, Case No. IT-94-1-A, Appeals Judgement, \u00b6 229 (Int\u2019l Crim. Trib. for the Former Yugoslavia July 15, 1999).<\/p>\n\n\n\n <\/a> [41]. Prosecutor v. Aleksovski, Case No. IT-95-14\/1-A, Appeals Judgement, \u00b6 162-64 (Int\u2019l Crim. Trib. for the Former Yugoslavia Mar. 24, 2000).<\/p>\n\n\n\n <\/a> [42]. Prosecutor v. Luki\u0107 and Luki\u0107, Case No. IT-98-32\/1-T, Trial Judgement, \u00b6 902 (Int\u2019l Crim. Trib. for the Former Yugoslavia July 20, 2009).<\/p>\n\n\n\n <\/a> [43]. Ivorian Cocoa: A Bittersweet Disposition,<\/em> Gro Intelligence (Nov. 11, 2014), https:\/\/gro-intelligence.com\/insights\/ivory-coast-cocoa-production<\/a>.<\/p>\n\n\n\n <\/a> [44]. Humphrey Hawksley, Cocoa farms in Ivory Coast still using child labour<\/em>, BBC News (Nov. 10, 2011), https:\/\/www.bbc.com\/news\/av\/world-africa-15686731<\/a>.<\/p>\n\n\n\n <\/a> [45]. Santadarshan Sadhu et al., NORC Final Report: Assessing Progress in Reducing Child Labor in Cocoa Production in Cocoa Growing Areas of C\u00f4te d\u2019Ivoire and Ghana 62 (2020).<\/p>\n\n\n\n <\/a> [46]. Silke Koltrowitz & Maytaal Angel, Nestle to give cocoa farmers cash to keep children in school<\/em>, Reuters (Jan. 27, 2022), https:\/\/www.reuters.com\/business\/sustainable-business\/nestle-pay-cocoa-growers-keep-children-school-2022-01-27\/<\/a>.<\/p>\n\n\n\n <\/a> [47]. Doe v. Nestle, <\/em>S.A.,906 F.3d 1120, 1126 (9th Cir. 2018).<\/p>\n\n\n\n <\/a> [48]. Prosecutor v. Guek Eav, Case No. 001\/18-07-2007\/ECCC\/TC, Trial Judgement \u00b6 533 (Extraordinary Chambers in the Cts. of Cambodia July 26, 2010).<\/p>\n\n\n\n <\/a> [49]. Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-A, Appeals Judgement, \u00b6 2083 (Int\u2019l Crim. Trib. for Rwanda Dec. 14, 2015).<\/p>\n\n\n\n <\/a> [50]. Doe v. Nestle, <\/em>S.A.,906 F.3d at 1126.<\/p>\n\n\n\n
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