On Wednesday, October 21, 2020, eighteen groups submitted amicus briefs to the Supreme Court in the Nestlé USA v. Doe I case in support of Respondents – a group of Malian plaintiffs who allege they were trafficked as children into Cote d’Ivoire and forced to work without pay on cocoa farms. The Supreme Court granted cert on the case on two questions: whether US corporations can be liable under the Alien Tort Statute (ATS) and whether US corporations can be liable for knowingly aiding and abetting crimes that occur outside the US from their US corporate headquarters.
The eighteen briefs demonstrate the breadth of support for Respondents. In addition to two amicus briefs that CAL filed (on behalf of cocoa and chocolate companies that support corporate liability), NGOs, research centers, law professors, members of Congress, foreign lawyers, and former US government officials all filed amicus briefs supporting Respondents. (You can find the briefs here). The briefs cover a wide array of policy issues and legal questions. Several briefs analyze international law principles. Others focus on US legal history and on the Supreme Court’s past decisions. Still others emphasize the factual and political situation in Cote d’Ivoire and the pressing issue of trafficked children from Mali and Burkina Faso. Finally, ethical chocolate companies and “environmental, social and governance” (ESG) investors defend ATS liability as promoting better investments and benefiting businesses. All briefs come to the same conclusion: Nestlé USA and Cargill, as well as all corporations that participate in violations of human rights, should be held accountable under US law.
Below, the post summarizes each of the eighteen briefs. Taken together, they present a powerful argument that Nestlé USA and Cargill should be exposed to liability for child trafficking and that the United States is an appropriate forum for such a dispute.
The Case: Nestlé USA v. Doe I
Nestlé USA v. Doe I was brought in 2005 by a group of Malian plaintiffs alleging that they had been trafficked into Cote d’Ivoire and forced to work without pay on cocoa farms as children. In addition to being forced to work, the plaintiffs allege that they were locked into rooms when not working and suffered physical abuse. They argue that Nestlé USA and Cargill aided and abetted the forced labor they endured by purchasing cocoa from and providing logistical support to farms and cooperatives that the companies knew or should have known used forced child labor.
Nestlé USA v. Doe I is the most recent case to reach the Supreme Court about the ATS, a 1789 statute that grants federal jurisdiction over torts “committed in violation of the law of nations or a treaty of the United States” and brought by non-US citizens. The ATS applies only to the most egregious and widely recognized human rights violations: slavery (and forced labor), torture, crimes against humanity, and similar crimes. While the ATS has been a useful tool for human rights litigation against corporations, over the past eight years the Supreme Court has greatly limited its scope. Claims under the ATS can now be brought only against US corporations (not against foreign corporations) about claims that “touch and concern” the United States. Depending on how the Court rules, the ATS could be limited even further. It could exclude all corporations -- including US corporations -- from its jurisdiction and could limit what qualifies as activities that “touch and concern” the United States, making it all but impossible to bring claims against corporations.
The Briefs
Small & Mid-Sized Cocoa & Chocolate Companies
In this brief, CAL argues that eighteen small and mid-sized cocoa and chocolate companies that source slave-free cocoa are at a competitive disadvantage to corporations like Nestlé USA and Cargill that source cheap cocoa produced with forced child labor. The brief first argues that amici’s higher production costs to comply with international human rights norms require them to sell their chocolate at higher prices. Amici support liability for US corporations under the ATS because it creates a level playing field for all companies. Second, the brief explains that it is possible to source slave-free cocoa, even from regions with human rights risks. Doing so simply requires companies to pay higher prices for cocoa, have transparent supply chains, and implement due diligence. Third, the brief argues that the Harkin-Engel Protocol, a voluntary initiative signed in 2001, has failed to reduce the incidence of child labor in West Africa. Moreover, the political branches intended the Harkin-Engel Protocol to be one of many tools to fight child labor in the West African cocoa industry—it was never intended to shield the cocoa industry from liability. The brief ends by responding to amici who support Petitioners and argue that corporate liability would reduce Foreign Direct Investment (FDI), thus harming communities in developing countries. On the contrary, this brief argues that only FDI that is rights-based and not exploitative will improve the living standards for communities.
CAL also filed a brief on behalf of amicus Tony’s Chocolonely, a Dutch chocolate company that sources cocoa from Cote d’Ivoire and Ghana and has demonstrated that it is possible to source cocoa from West Africa without relying on a system of farmer poverty and forced child labor. This brief has two main arguments. First, companies like Tony’s, that carry out legitimate due diligence programs and pay farmers a higher wage for their cocoa, lower their risk and therefore are not scared of liability under the ATS. Second, an increasing number of countries are implementing binding due diligence legislation, while courts around the world are broadening parent company liability and the extraterritorial application of tort law. Without corporate and aiding and abetting liability under the ATS, the US will become a safe haven for corporate human rights abusers. At the same time, companies like Tony’s that comply with international human rights norms will be forced to compete on an uneven playing field.
Grant & Eisenhofer ESG Institute
The Grant & Eisenhofer ESG Institute argues that corporate liability under the ATS incentivizes companies to establish strong, responsible, and humane supply chain practices. The brief has two main arguments. First, it explains that there has been an exponential growth in environmental, social, and governance (ESG) investing, and that investors have an increasing interest in upholding ATS liability since ESG transgressions harm investors by decreasing the value of their stocks. Second, the brief argues that the threat of legal liability under the ATS forces companies to clean up their supply chains, providing a safeguard to investors in all US companies.
Amici believe that the outcome of this case will have profound implications for millions of Internet users around the world, given that many technologies licensed and sold by US companies “can facilitate horrific human rights abuses.” Amici argue that, when companies put profits over human rights and people in foreign countries are seriously harmed or killed, companies should be held liable under the ATS. Although amici do not believe US technology companies should be held liable solely because their technologies are misused, they argue that the ATS should be available for victims of serious human rights abuses enabled by such technologies. Though amici recognize this case is not about technology, they argue in favor of maintaining the ATS as a viable option to hold US companies accountable.
Joseph E. Stiglitz and Geoffrey M. Heal, Professors of Economics at Columbia University, joined Oxfam America to argue that companies are incentivized to prevent human rights abuses in their supply chains by a combination of civil liability under the ATS, federal, civil, and foreign laws, and marketplace and reputational pressures. Amici’s expertise allows them to demonstrate that, where local regulatory systems and judicial enforcement mechanisms are weak, the ATS promotes long-term economic development and foreign investment. Like amicus Grant & Eisenhofer ESG Institute, this brief explains that the growth of ESG investing gives corporations incentives to prevent human rights abuses. Additionally, amici argue that Nestlé USA and Cargill’s argument that US companies will be left at an economic disadvantage compared to foreign competitors is not evidence-based. In fact, many foreign corporations already face pressure to comply with human rights, and complying with international law could give companies a competitive advantage.
Members of Congress Senator Blumenthal, Representative Smith et al.
In this brief, twenty-one members of Congress respond to Petitioners’ argument that the Court should defer to Congress’ choices about foreign policy by limiting the scope of the ATS. Amici explain that Congress has already made clear policy choices about modern slavery by passing the Trafficking Victims Protection Reauthorization Act (TVPRA). The TVPRA imposes criminal and civil liability on corporations that knowingly benefit from participating in ventures that use forced labor, as well as on corporations that aid and abet these practices. The TVPRA “intended to cast a wide net” by extending liability to anyone who knowingly benefits from forced labor; it applies to extraterritorial conduct, and to both domestic and foreign corporations. Recognizing aiding and abetting liability for forced labor under the ATS is in line with Congressional policy choices under the TVPRA. Since eradicating human trafficking is a “bipartisan congressional priority,” the Supreme Court should acknowledge that Congress already has a policy in place that addresses these violations. Therefore, the Ninth Circuit’s decision to permit jurisdiction in this case is in line with Congress’ foreign policy decisions, and “Petitioners’ warnings about Respondents’ lawsuit interfering with Congressional prerogatives are misplaced.”
In this brief, EarthRights International starts by explaining that, in previous ATS cases, the acting Solicitor General argued against a bar on extraterritorial claims and corporate immunity –the opposite of what the government now argues. The brief has three parts. First, it argues that the ATS’s purpose is to ensure redress for international law violations, which the US is obligated to prevent and punish. Second, the brief argues that Supreme Court decisions such as Kiobel v. Royal Dutch Petroleum (2013) directed courts to evaluate whether ATS claims “touch and concern” US territory with sufficient force to displace the presumption against extraterritoriality. This directive aims at what courts may do: they may only hear cases that “touch and concern” the US. However, it does not direct courts to look to the statute’s “focus,” a different test created by the Supreme Court in Morrison v. National Australia Bank (2010), a case that – contrary to Petitioners' arguments – does not apply to the ATS. The Morrison “focus” test looks at the focus of a statute, or what its “overriding purpose” is. Therefore, even if the "focus" test applies, claims against US nationals are within the ATS’s focus: Nestlé USA and Cargill are the type of defendants for which foreign countries would deem the US responsible for failing to provide redress. Third, contrary to Nestlé USA and Cargill’s argument –that victims of human rights abuses cannot sue US corporations, “no matter how horrific the abuse,”– federal common law allows corporate civil liability for torts. Indeed, if there is any doubt regarding whether corporations can be sued, the ATS, Supreme Court decisions, the structure of international law, and the historic practice of federal courts indicate that federal common law applies –and federal common law provides for corporate liability.
Constitutional Accountability Center
The Constitutional Accountability Center first argues that Nestlé USA and Cargill's argument that corporations cannot be sued under the ATS is not supported by the ATS’s text or purpose. Congress passed the ATS in order to provide a federal forum to redress violations of international law. Holding US citizens, including US corporations, accountable for violations of international law furthers the ATS’s objective “to avoid foreign entanglements by ensuring the availability of a federal forum where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen,” as interpreted by the Supreme Court in Jesner v. Arab Bank (2018). Second, US law has long recognized corporate personhood, which is key to corporations conducting business, but also allows corporations to be sued for their wrongdoing. Third, specific, universal, and obligatory norms of international law forbid the enslavement of individuals and there is no exemption for corporations from these international norms.
In this brief, the Center for Global Justice presents three arguments. First, it argues that, while US courts lack authority to police foreign actors, “it is decidedly within the powers of the federal judiciary to hold US actors liable for trampling on human rights in developing nations.” It emphasizes that defendants Nestlé USA and Cargill are not foreign, but are US nationals, and therefore US courts have jurisdiction under the ATS. Second, although Nestlé USA and Cargill allege that ATS liability for domestic corporations risks “embroiling” the US in international controversies, no foreign state has come forward to warn of potential diplomatic friction – in contrast to prior ATS cases to which foreign states had objected. Third, echoing other amici’s concerns, this brief argues that failing to provide a forum to litigate human rights violations risks encouraging further abuse and exploitation.
International Human Rights Organizations
Amici, a group of international human rights organizations based in Peru, Canada, Ukraine, India, and other countries, argue that corporate liability for egregious human rights violations is a recognized “general principle of law,” which is a source of international law. All legal systems in the world, including the US system, recognize this principle. The brief next argues that corporate aiding and abetting is also a “general principle of law,” presenting numerous examples of cases, codes, international statutes, and jurisprudence that support this assertion. Given that both corporate and aiding and abetting liability for human rights violations are “general principles of law,” the International Human Rights Organizations conclude that the Ninth Circuit was correct in finding that aiding and abetting conduct must be assessed to determine whether there was a violation of international law.
The Yale Law School Center for Global Legal Challenges
Like several other amici, the Yale Law School Center for Global Legal Challenges underscores the fact that the First Congress enacted the ATS to provide a federal forum in which foreigners could recover for injuries perpetrated by US citizens, since failure to allow for relief could provide “just cause for reprisals or war.” This brief argues that, in Sosa v. Alvarez-Machain (2004), the Supreme Court held that to be actionable under the ATS, the violation must “rest on a norm of international character accepted by the civilized world.” The brief then explains that, for over a century, both natural and juridical persons have been bound by norms prohibitting slavery, forced labor, and human trafficking, international norms accepted around the world. Since corporations have been held liable for their participation in the slave trade for centuries, their participation in forced labor and human trafficking should not now be exempted.
A group of professors of legal history from Columbia, Harvard, Texas Tech, Fordham, NYU, New Hampshire, Princeton, and Yale argues that the text and history of the ATS indicate that it was passed to address violations of the law of nations in situations that involved US subjects or territory. To comply with international obligations and to avoid international conflict, nations had to penalize the violations. Second, the brief argues that multiple sources, including recently discovered historical sources dating to President George Washington’s first administration, demonstrate that the ATS was an actionable remedial tool for foreigners whose rights were violated under the law of nations. Like the Yale Law School Center for Global Legal Challenges, this brief asserts that the First Congress understood the risks of failing to provide redress for such violations. It also provides a historical account showing that throughout the 1790s, US courts understood that the ATS provided redress for non-US citizens. Finally, the brief argues that the Framers would have expected juridical entities to be defendants under the law of nations.
A group of law, history, and political science professors with deep knowledge about Nuremberg-era jurisprudence argue that an accurate understanding of the Nuremberg trials is critical to holding corporations accountable under international law. During the Nuremberg trials, judges considered German corporations to be actors capable of violating international law and responsible for many of the harms from the Nazi period. The brief argues that the absence of German corporations in the Nuremberg trials should not be understood as a lack of authority under international law to hold corporations accountable. On the contrary, simultaneous trials were conducted in Berlin –where judges also applied international law– and industrialists that headed or assisted German corporations were tried at Nuremberg. Therefore, finding that private corporations should not be held liable under customary international law is “erroneous” and ignores actions taken under customary international law against corporations and organizations, even if they were outside the courtroom.
Like the Nuremberg Scholars, this eminent group of international legal scholars argue that customary international law permits the US to recognize a cause of action against domestic corporations for human rights violations. Whereas doctrines of limited immunity sometimes apply to states, corporations do not enjoy immunity under international law. Customary international law protects certain fundamental human rights and creates obligations for persons other than states -- which apply both to natural and juridical persons. Although customary international law does not provide a means of enforcement, enforcement is left to the states, which have developed different mechanisms. The US is free under international law to recognize a cause of action against domestic corporations for torts that violate customary international law norms, and it has done so by passing the ATS. The fact that there are limitations on the enforcement of customary international law does not mean that there are limitations on the human rights norms themselves --like the prohibition of genocide and the prohibition of torture.
International Law Scholars, Former Diplomats, and Practitioners
Amici are scholars of international law, former diplomats, and practitioners with expertise in modes of secondary liability under international law. This brief was written in response to the acting Solicitor General’s brief on behalf of Petitioners, which argues that the Court should abolish aiding and abetting liability under the ATS. Amici argue that, if the Supreme Court concludes that aiding and abetting liability is not actionable under the ATS, it would position the US as an outlier among the nations of the world, which “universally recognize accomplice liability” for internationally tortious behavior and criminal conduct. Since World War I, international criminal tribunals have had jurisdiction over secondary modes of liability, such as aiding and abetting. Similarly, modern international law continues to hold that complicity liability exists under customary international law when accomplices knowingly provide substantial assistance to the principal offender. The ATS has encompassed aiding and abetting since its enactment in 1789, it is sufficiently specific, universal, and obligatory as required by Jesner, and international jurisprudence recognizes that domestic conduct may give rise to international law violations.Therefore, the Court should not bar a cause of action permitted by the ATS and international law.
A group of foreign lawyers from Australia, Canada, France, Germany, the Netherlands, and the UK filed a brief analyzing the impacts of international law on citizens’ conduct. They argue that principles of international law allow states to assert jurisdiction over corporations for extraterritorial harms, including over conduct committed in their states of domicile that result in injuries abroad. Additionally, amici provide examples of states that routinely assert jurisdiction over domestic corporations – like Australia, England, and Canada – regardless of their place of operation. Finally, like the briefs by the Constitutional Accountability Center and the Legal History Professors, this brief warns about the political and security-related dangers for states for failing to hold nationals accountable.
Like EarthRights International’s brief, a group of former government officials point to the fact that previous administrations, as well as the Trump Administration in 2018, supported liability for US corporations under the ATS. This brief argues that the current acting Solicitor General presented the “historically aberrant argument” that US corporations can never be subject to liability, no matter how severe the human rights violation. This shift is not supported by a sudden change in circumstances, new foreign policy harm, or a foreign policy injury. In fact, it contradicts the Administration’s own policy decisions that earlier this year warned US businesses about the legal risks they faced for engaging in human rights abuses in Xinjiang, China. Clear norms against slavery, forced labor, and human trafficking are well-established rules of human rights that every modern administration has supported and expected of US citizens, including corporations, regardless of where they operate. Therefore, US corporate liability under the ATS reflects US policy and complements other tools, like the TVPRA and the Foreign Corrupt Practices Act (FCPA).
Center for Justice & Accountability and Human Rights First
The Center for Justice & Accountability and Human Rights First focus on a separate human rights statute: the Trafficking Victims Protection Act of 2000 (TVPA). The brief argues that Congress enacted the TVPA to supplement and extend -- not to restrict -- the ATS and the remedies articulated in Filártiga v. Peña-Irala (1984). Decades after Filártiga, courts have continued to confirm the availability of aiding and abetting liability under the ATS (i.e., in Yousuf v. Samantar (2010), Mohamad v. Palestinian Authority (2012), and Cabello Barrueto v. Fernandez-Larios (2005)). The brief then explains that, contrary to the acting Solicitor General’s claim, the TVPA expressly extends liability “beyond the direct perpetrators of torture and extrajudicial killing, including to those who aid and abet the violations.” Amici agree with the International Law Professors’ brief that aiding and abetting under the law of nations had already been well established prior to the TVPA’s enactment. Because aiding and abetting liability is explicitly listed in the TVPA, the legislature’s view at the time of passing it was that the ATS permitted claims against those who “aid and abet violations of the law of nations.”
Isabella Ariza is a Legal Fellow at CAL.
