(Mar. 4, 2021) On February 12, 2021, the Washington, D.C.-based nongovernmental organization International Rights Advocates (IRAdvocates) filed a federal class action lawsuit on behalf of eight former child workers who allege they were trafficked from Mali and forced to harvest cocoa in Côte d’Ivoire beginning in 2011. The lawsuit accuses several multinational chocolate producers of aiding and abetting the illegal enslavement of children by purchasing cocoa from suppliers who used forced child labor.
While the lawsuit is primarily based on the U.S. Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. § 1595 et. seq., it also relies on the Harkin-Engel Protocol, signed by the defendants 20 years ago in 2001. The protocol was a historically significant agreement to combat child slave labor in the cocoa industry, signed by the leaders of the cocoa industry, the International Labour Organization (ILO), and the international union representing the workers in the cocoa industry, the IUF. While explicitly acknowledging that cocoa beans should be grown and processed in a manner that complies with ILO Convention No. 182 on prohibiting and taking immediate action to eliminate the worst forms of child labor, the protocol also outlined an action plan for the cocoa industry. Côte d’Ivoire ratified Convention No. 182 in 2003, and the ILO Committee of Experts on the Application of Conventions (CEACR) has repeatedly noted its concern about the high number of children engaged in hazardous types of work in agriculture, including the cocoa sector.
The Harkin-Engel Protocol Action Plan and Deadlines
The 2001 protocol outlined a multistep action plan that included
- a public acknowledgment of the problem of forced child labor in West Africa;
- the formation of a multisectoral advisory group to investigate labor practices in West Africa, including the formulation of appropriate remedies;
- a joint statement on child labor, to be signed at the ILO;
- a binding memorandum of cooperation;
- the establishment of a joint international foundation to oversee and sustain efforts to eliminate the worst forms of child labor in the growing and processing of cocoa beans; and
- a commitment that by July 1, 2005, the industry would develop standards of public certification that cocoa beans were not grown and/or processed with any of the worst forms of child labor.
However, the protocol’s action plan targets were missed, repeatedly postponed, and adjusted in 2005, 2008, and 2010. The revised 2010 target to reduce child labor in the cocoa sector in West Africa by 70% by 2020 was also missed. According to a 2020 study by the National Opinion Research Center (NORC) at the University of Chicago, the use of child labor in the cocoa sector in West Africa has actually increased over the period.
Regional Agreements to Eliminate the Worst Forms of Child Labor
In addition to ILO Convention No. 182 and the Harkin-Engel Protocol, there are also regional efforts to eliminate the worst forms of child labor in West Africa. For example, the Economic Community of West African States (ECOWAS) has adopted a regional action plan to meet United Nations Sustainable Development Goal 8.7 to end all forms of child labor by 2025, and forced labor, trafficking, and modern slavery by 2030. Furthermore, article 15 of the African Charter on the Rights and Welfare of the Child provides that “every child shall be protected from all forms of economic exploitation and from performing any work that is likely to be hazardous.”
The former child workers’ lawsuit follows the December 2020 oral arguments in the U.S. Supreme Court in the consolidated case of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, which also concerned alleged child slavery, forced labor, and trafficking in the cocoa industry. However, the Nestlé and Cargill case is focused on whether the Alien Tort Statute (ATS), 28 U.S.C. § 1350—which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law—applies to U.S. corporations or to alleged violations that occurred outside the U.S. While a decision in the Nestlé and Cargill case is expected this summer, Chief Justice John Roberts noted in oral arguments that Congress had enacted TVPRA to address international law violations such as this, and that the ATS may not apply.