PART 1: CHILD SLAVERY IN THE COCOA INDUSTRY: AN OVERVIEW
Tenimba Djamoutene’s Story
Tenimba Djamoutene was just eleven-years old when a man named Brahima approached him near a bus station near his hometown of Kouroussandougou, Mali.1 Brahima promised Tenimba a well-paying job in Côte d’Ivoire and bought him a bus ticket. Tenimba boarded the bus with Brahima and five other children to head to the town of Zegoa, Mali, which sits on the border of Côte d’Ivoire. When they arrived in Zegoa, Brahima arranged for the children to travel over the border by motor bike to avoid the checkpoint. Once in Côte d’Ivoire, the boys boarded a bus to the town of Sinfra, where Brahima then brought Tenimba to Madou Kone, who gave him a place to rest for the night. The following morning, Madou’s brother took Tenimba to a plantation called Yofla, a major cocoa-producing region in Côte d’Ivoire.
Tenimba was promised CFA 25,000, about $46.00 per month, and told he would have Fridays off from work. He would soon learn he had been deceived. He was forced to work without pay or days off. For his first year of work, he was told he would be paid the following year. He never received this pay. Tenimba was served breakfast in the morning and worked through the day without food. If he refused to work, he was told he would not be fed at all.
Tenimba work involved tending to the cocoa plants, clearing brush with a machete, and applying highly toxic herbicides and pesticides without protective equipment or safety instructions. During the harvest season, he picked cocoa pods and opened them with a machete to remove the beans.
Tenimba could not leave the farm, because he had no money, did not know where he was, and could not communicate in the local language. After two years of unpaid, arduous work, Madou bought him a ticket back to Mali and he finally returned home.
Yofla, the region in which Tenimba worked, supplies cocoa to Nestlé.2 Chew on that the next time you eat a chocolate chip cookie.
Child Labor in the Cocoa Industry
Tenimba’s story is similar to the stories of tens of thousands of other children trafficked and forced to work on West African cocoa farms in hazardous conditions without pay. Traffickers approach boys, generally from Mali and Burkino Faso, at bus stations or farms, falsely promising them a well-paying job.3 The traffickers often tell these boys to board a bus immediately if they want to accept the offer, giving them only moments to decide, and no opportunity to consult their family.4
Farm owners put the children to work as soon as they arrive. Children must work daily from 6 am to evening.5 Plantation owners continuously promise to pay the children in the foreseeable future. They tell the children they will hand them their promised pay ‘next year’ or ‘once they have enough money.’6 Yet, many children are never paid at all.7 Other receive only a small fraction of what they were promised.8
The work is hazardous, involving dangerous equipment and highly toxic chemicals. Former child slaves have scars on their hands and arms from machete accidents and heavy exposure to highly toxic chemicals from applying pesticides without protective equipment. These activities are prohibited for children globally by an international labor treaty on the “Worst Forms of Child Labor,”9 which 187 countries have ratified, including the United States, Côte d’Ivoire, Ghana, Mali, and Burkina Faso.
Cocoa plantation owners punish the boys for refusing to work, working too slowly, or attempting to escape. They require other boys at the farm to witness these punishments to deter disobedience and escape attempts. Former child slaves have reported experiencing or witnessing plantation owners forcing boys to drink urine, whipping them with branches, and cutting the bottoms of their feet and rubbing the wounds with pepper.10
Some children are eventually released, others manage to escape. Some stay for just a few months, while others continue working on cocoa farms into adulthood.11 A cumulation of coercive factors keep them on the farm for up to a few years. Farm owners threaten the children with violent punishment for attempting escape. They continuously promise the children pay at a foreseeable day in the future. Moreover, escape is prohibitive because they rely on the plantation owner for food and shelter, have no money, do not know where they are or how to get back home, they do not have identification papers, and do not speak the local language. All of these variables are that much more coercive when used on children rather than adults.
The problem of child labor is widespread on cocoa farms in West Africa. According to studies, 1.56 million children worked in cocoa production in Côte d’Ivoire and Ghana in 2018-19.12 While not all of these children were trafficked, almost all of them are subject to hazardous work prohibited under international law. In 2018-19, 94.8 percent of children working on cocoa farms engaged in hazardous work.13
The cocoa industry relies heavily on West African farms that use child labor. Nestlé, Hershey, Mars, Cargill, Barry Callebaut, Olam, and other major cocoa companies source 70 percent of their cocoa from Côte d’Ivoire and Ghana.14
West African governments rely heavily on the cocoa industry. Cocoa represents 60 percent of Côte d’Ivoire’s export revenue and 40 percent of the country’s GDP.15 The governments officially set the prices.16 Experts believe the price-setting takes place after negotiations with cocoa industry actors.17 Industry actors are known to set prices in the cobalt industry, for example.18 Experts also estimate that prices are about 20 percent lower than they should be, based on the market rate.19
Ultimately, these prices are too low to allow farmers to pay workers a fair wage.20 Low prices drive farmers to use children to harvest the cocoa because they cannot afford to pay adult workers. This reality applies whether farmers obtain workers by trafficking children from Mali or “employing” their children.
This Article focuses on Nestlé as an example of a major industry actor in the cocoa sector. Nestlé’s practices broadly represent, but are not identical to those of other cocoa companies. Nonetheless, Nestlé’s practices can provide insights into the global cocoa industry more broadly, and even global supply chains.
Part 2 scrutinizes two misleading myths Nestlé tells to excuse its use of child labor in the global supply chain. Part 3 argues that various forms of distance in corporate law and a global supply chain facilitate the harm by mitigating actors sense of culpability. Part 4 proposes solutions to the problem.
PART 2: THE MYTHS NESTLÉ TELLS
Nestlé’s focus on family farms obscures reality in several ways. First, child labor on family cocoa farms is still hazardous. This labor is still formally categorized as one of the “Worst Forms of Child Labor.”
Next, Nestlé says it has only identified three cases since 2015. Yet, Nestlé only monitors the practices of one-third of its cocoa producers, those who fall within the Nestlé Cocoa Plan. Nestlé remains conveniently unaware of the practices of the other two-thirds of its cocoa sources, which comes from unregulated or monitored “free zone” plantations. Nestlé sources much of its cocoa from Grabo in the far Southwest of Côte d’Ivoire, an area known as the “wild west” of cocoa production for the abundance of free zone plantations.26 Child slavery is far more common in these areas. Thus, just because Nestlé has only identified three instances of forced child labor, does not mean its cocoa is practically slave-free.
The family farms narrative attributes the problem to West African society, depicting families and children as “sticks.” The narrative omits situational circumstances that shape their behavior, suggesting families and children may, in fact, be “balls.” This is no mistake. The cocoa industry creates and benefits from these situational factors. Nestlé buys cocoa at fixed prices that are so low that a cocoa farm owner cannot afford to hire adult workers or make a survivable income alone. That farmer has little choice but to put his children to work – or to pay other children very little or if at all. Actors in the cocoa industry understand this reality.
Myth: “We are tackling child labor in our cocoa supply chain.”
Nestlé has implemented the “Nestlé Cocoa Plan” to “eliminate child labor for good.” The company has published myriad marketing materials emphasizing these efforts.
The Nestlé Cocoa Plan targets families, children, and cocoa plantation owners to address the problem of child labor. Initiatives include increasing access to education and working with farmers to increase their efficiency. “When we help farmers improve how they farm,” Nestlé says, “they can improve their incomes.” Nestlé’s Plan uses the Child Labor Monitoring and Remediation System (CLMRS) to monitor and address the problem.
Nestlé says these efforts have been highly successful. Its website claims, “[w]e have helped over 87,000 children both within and outside our supply chain.” Nestlé says it expects further progress, so much so “that we will be sourcing all our cocoa for confectionery products through the Nestlé Cocoa Plan by 2025.
Nestle’s reform initiatives target families and children without reforming Nestlé’s business practices or targeting the cocoa industry as a whole. Through this piece of the narrative, Nestlé reinforces its attributional framing of West African actors as “sticks” and paints itself as an almost heroic human rights-promoter rather than a perpetrator.
Nestlé’s claims sound promising, but they miss the bigger picture. While Nestlé may have “helped” 87,000 children through the Nestlé Cocoa Plan, those figures do not even modestly offset the much larger increase in child labor in the cocoa industry over the same time period. Over 750,000 more children worked in the cocoa industry in Ghana and Côte d’Ivoire in 2018-19 than did when Nestlé launched the Plan in 2009. Recall that this Plan only encompasses about one-third of farms from which Nestlé sources cocoa, while majority of Nestlé’s farms remain unmonitored.
Nestlé’s claim that it will eliminate child labor from its supply chain represent a decades-long pattern of setting a deadline to eliminate child labor, failing to meet it, and quietly extending it. In 2001, Congress introduced legislation to ban the importation of cocoa and other products farmed by child workers. The bill passed 291-115 in the House. When it reached the Senate, Nestlé and other industry actors launched an intense lobbying campaign, that successfully halted the bill before the Senate moved to vote. Instead, the bill became the 2001 Harkin-Engel Protocol through which eight participating companies “voluntarily” agreed to phase out child labor by 2005.
When 2005, participants asked for three more years, promising to develop a certification system by 2008. In 2008, participants extended the deadline until 2010. In 2010, they extended the deadline to 2020 and lessened the scale of their promise, now aiming to reduce the use of child labor in the cocoa industry by 70 percent. In 2018, industry leaders admitted once again that they would not be able to fulfill their so-called “aspiration” by 2020. They once again extended and reduced their promise, now merely pledging to increase the coverage of the industry-created child labor monitoring system, CLMRS, by 2025. Given past patterns, it is difficult to believe Nestlé and other industry actors will meet even this relatively modest benchmark.
PART 3: DISTANCE AND THE ROLE OF CORPORATE LAW
The nature of the global supply chain, the competitive market, and obligations under corporate law and the legal profession create literal and figurative distance between harm-causing conduct and the effect of that conduct. The distance provides wrongdoers with rationalizing stories and dilutes their sense of culpability. Ultimately, this distance mitigates the sense of responsibility and feeling guilt they might experience if they were proximate to the problem.
Distance and psychology
The nature of a global supply chain and corporate law create distance between Nestlé and the harm. This distance facilitates the harm by limiting interaction with the effects of the harm and providing those responsible for it with rationalizing stories that mitigate their sense of culpability sufficiently to sustain their conduct. Stanley Milgram’s experiments indicate that increasing the physical distance between a perpetrator of harm and the victim of that harm increases the perpetrator’s willingness to inflict the harm. “Any means of breaking down or diluting the experienced meaning of the act” of inflicting pain on another person “makes the action easier to perform,” he found. “[T]hus, creating physical distance between the subject and victim, and dampening the painful cries of the victim, reduces strain.”27 Prominent criminal defense lawyer and author of Just Mercy Bryan Stevenson has argued that “when we isolate ourselves, when we allow ourselves to be shielded and disconnected from those vulnerable and disfavored, we sustain and contribute to [societal] problems.” For this reason, he calls on CEOs to embrace “the power of proximity” as a method of “creating…a healthier society.”28
Forms of distance in Nestlé’s global cocoa supply chain
Nearly 5,000 miles of ocean physically separates the Nestlé U.S.A. headquarters in Virginia from the children harvesting their cocoa in the Cote d’Ivoire. As a result, the harm is out of sight, out of mind. While Nestlé executives may be reminded of domestic inequality when passing a person experiencing homelessness on their way home from work, they are free to live their everyday lives without ever coming face-to-face with the children forced to farm the cacao in Nestlé products. This degree of physical separation makes it much easier to perpetrate the harm.
The structural nature of a global supply chain in a competitive industry creates distance that dilutes Nestlé’s sense of culpability as well. Nestlé employees do not directly traffic children or force them to farm cocoa without pay. By purchasing cocoa through distributors and intermediaries, Nestlé maintains several structural links separating itself from the harm. These links allow Nestlé to absolve itself of responsibility and place blame on others who are closer in the supply chain to the harm. However, these links distort the reality that many of the farms they source from have exclusive agreements with Nestlé, meaning they rely entirely on Nestlé for their income. Moreover, many of the farmers are in a situation where they rely on cocoa farming for their livelihood, but prices are set so low that paying adults a fair wage is untenable. Nestlé, in turn, benefits from low prices that could not be so low without free labor.
The competitive marketplace offers a rationalizing story that creates a palliating distance and allows corporate decisionmakers to defend their harmful decisions. According to this story, each of these companies shares the single goal of pursuing profit in the name of shareholder primacy. The competitive marketplace in which these corporate actors participate reinforces the drive to minimize costs. Doing so is not just about meeting the obligation of shareholder primacy, but also about surviving. If Nestlé sources cacao from farmers who hire and pay adults to harvest cacao, they will have to increase their prices and consumers will turn to the cheaper, and otherwise equivalent product sold by a competitor, driving Nestlé out of the marketplace. This story creates a situation in which corporate actors must act without agency at the whim of the market.
Market competition also spreads the blame among multiple actors. Nestlé is not alone in causing the problem. Nestlé is just one of multiple major companies in the cocoa industry. All of the major players – Hershey, Cargill, Mars, Barry Callebaut, and others – also source cacao from farms that use child labor. When Nestlé is singled out, it may point to these other actors and say Nestlé is just one of many involved. Nestlé alone cannot fix the problem. If Nestlé changes its behavior, while others remain the same, Nestlé will not survive in the market and other actors who are willing to maintain the status quo will take its place. The problem will persist as usual.
Like shareholder primacy, the corporate market place story is largely an illusion as well. As discussed previously, corporate actors “competing” in the industry have teamed up to block legislation that may have actually forced real change in the cocoa sector.
Like market competition and shareholder primacy, the principle of zealous advocacy provides the lawyers defending Nestlé with a rationalizing story. Like the executives, lawyers may say they are not culpable for perpetuating the harm; when they defend Nestlé for child slavery; they are just zealously advocating for their client in adherence to their ‘ethical’ professional responsibility. This rationalizing story serves to mitigate lawyers’ feelings of culpability for the harms they defend, perpetuate, and facilitate.
Nestlé v. Doe, a case currently before the Supreme Court, challenges Nestlé’s use of child labor in its supply chain. Put simply, Nestlé’s lawyers are tasked with defending corporate use of child slavery. The arguments these lawyers have posed in Nestlé’s defense illustrate the extent to which the principle of zealous advocacy frees lawyers to perpetrate harm.30
In the name of zealous advocacy, lawyers are emboldened to argue, without shame, that profit justifies child slavery. In its Brief to the Supreme Court, Nestlé’s attorney argued that allowing for such accountability would “place U.S. firms at a competitive disadvantage compared to companies in countries without” corporate accountability.31 As a consequence, “foreign ‘competitors that have no incentive to respect’ human rights norms” would displace U.S. corporations like Nestlé.
Lawyers defending Nestlé in litigation have made problematic arguments that not only defend Nestlé’s practices, but also call on courts to make law that would make it easier for corporations to commit severe abuses of human rights without a risk of liability. Nestlé’s lawyers have argued to gut one of the only tools available for holding corporations liable for human rights abuses abroad. They ask the Court to exempt corporations from liability, merely because they are corporations.
During oral argument, Neal Katyal, Nestlé’s lawyer responded to a series of questions from Justice Kagan. First, Kagan asked Katyal, “can a former child slave bring a case against an individual slaveholder?” “Yes,” responded Katyal. Kagan then asked, “can a former child slave can sue ten slaveholders as individuals?” “Yes,” Katyal repeated. Finally, Kagan asked, “can a former child slave sue those ten slaveholders if they form a corporation?” To this proposition, Katyal answered, “No.” Kagan: “I guess what I’m asking is, like, what sense does this make?” Kagan is right; this does not make sense. Yet, in the name of zealous advocacy, Katyal readily posed this illogical argument to protect a corporation’s ability to profit off the labor of child slaves.
Katyal’s arguments called on the Court to make law favorable to corporations that would apply well beyond Nestlé and the cocoa industry. In other words, under the cloak of zealous advocacy, Katyal went much farther than just defending his client. He posed arguments that protect any other U.S. corporation engaged in any other egregious human rights abuse.
These arguments show the power of the principle of zealous advocacy in absolving lawyers of their feelings of guilt when advancing arguments with potentially seriously harmful consequences.
Like shareholder primacy, zealous advocacy is an illusion. Some argue that zealous advocacy is important because “without able lawyers willing to represent both sides of a legal dispute, our legal system cannot function at its best.”32 Nestlé illustrates the flaw in using this argument to defend zealous defense of corporate clients. Here, the individuals on one side of the case worked as slaves to help the corporation on the other side profit. One side is represented pro bono, while the other pays for the most expensive and best-resourced attorneys available. That reality cannot possibly produce the fair, well-functioning legal system that zealous advocacy purports to promote.
PART 4: SOLUTIONS
The above analysis offers several key insights into what solutions may be effective in eliminating child slavery.
Clearly, Nestlé’s current approach of targeting local actors and increasing access to education will never be effective in eradicating child slavery without change at the industry level.
First, the industry should set higher prices for cocoa. Prices should be high enough that they allow farmers to pay adults a fair wage. Additionally, regulators should establish an independent monitor that is not captured by corporate power, as CLMRS is. This monitor should certify practices by cocoa companies and audit farms that supply cocoa. This monitor should also increase transparency in the industry. In cases challenging corporate abuses in global supply chains, including Nestlé v. Doe as well as a recently-filed complaint charging Nestlé for violating the Trafficking Victims Protection Act, courts should not accept arguments advocating for corporate exceptions.
Lifting illusions, promoting proximity
In light of this Article’s findings that distance facilitates the perpetuation of harm, solutions should seek to promote proximity and reduce the availability of rationalizing stories. Executives should visit farms themselves. Executives should visit farms in unregulated “wild west” and speak with child slaves face-to-face. Advocates should create media that brings fewers proximate to the harm from afar, calling on chocolate consumers to pressure the cocoa industry to change.
Advocates should lift and expose the illusions of shareholder primacy, the competitive market, and zealous advocacy should be lifted and exposed, such that executives and lawyers cannot rationalize their harmful decisions.
Courts should eliminate the principle of shareholder primacy, allowing corporate directors to seek other objectives, including socially good objectives, without masking these efforts as profit-seeking.
The legal profession should reform the principle of zealous advocacy. While the principle serves a valuable purpose in ensuring a right to council. It should no longer serve to justify egregiously unethical arguments on behalf of wealthy clients with no problem affording a lawyer.
The cocoa industry is just one of many that profit off abuses committed in their supply chains. From chocolate to our phone batteries, many products are tainted by forced child labor and other abusive corporate practices. These abuses are largely out-of-sight, out-of-mind to us as consumers. We can enjoy our candy and call our moms without having to grapple with the horrific harms caused in the service of our daily lives. Even more disturbing, however, is the notion that the executives leading these corporations have at their disposal multiple layers of distance-creating features and stories enabling them to feel but a drop of guilt when they make a decision that perpetuates a great deal of harm.
Many chocolate companies source their cocoa ethically. Click here for a list.