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American Courts and Corporate Global Accountability

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The first time I gave a book talk about Out of Sight, there was someone in the audience who worked on these issues and couldn’t get past that I was calling on the American government to step in to solve the problems of out of control corporations. She noted, correctly, that the biggest problem with global corporate accountability is in fact the American government. This is absolutely true. The U.S. refuses to even do basic things such as pass International Labour Organization codes, not to mention ensure that it’s companies are never legally beholden in trade agreements. I totally agreed with her, but said that this was in fact the only way around the problem. You just aren’t going to fix the problems with global labor exploitation without the developed world nations leading the way by holding their own companies accountable through legal codes. It’s a huge challenge, but it’s also the only way forward.

But let’s be clear, the same American courts who are eviscerating labor rights in this country are by no means going to do anything for global workers.

The Supreme Court will consider ending a lawsuit that claims Nestle and Cargill facilitated the use of child slave labor on cocoa farms in Ivory Coast, a case that could further limit access to U.S. courts by victims of human rights abuses abroad.

The justices said Thursday they will review an appeals court decision that revived the lawsuit filed by former child laborers who say they were taken from Mali and held in slavery on cocoa plantations in Ivory Coast. Arguments will be held during the term that begins in October.

The court has been paring back a strategy begun in the 1970s by human rights lawyers to use an 18th-century law, the Alien Tort Statute, to pursue individuals who may be responsible for torture and other atrocities, as well as companies with operations in countries with poor records in the area of human rights.

The Alien Tort Statute, adopted in part to deal with piracy claims, went unused for most of American history. The Supreme Court cautiously endorsed the use of the law in 2004 but left unanswered precisely who could be held liable and in what circumstances.

In 2013, the justices ruled that people or entities sued under the Alien Tort Statute must have a real connection to the United States. Two years ago, the court held that foreign businesses cannot be sued under the law.

In the current case, the American arm of Switzerland-based Nestle and the agribusiness concern Cargill are asking the court to rule out suits against U.S. companies as well.

Lawyers for the workers who are suing say that slave labor remains an endemic problem in Ivory Coast and that Nestle and Cargill maintain “an unusual degree of control over the cocoa market” in the country because they buy so much cocoa.

This is terrible and inevitably John Roberts and friends will take another step to ensure the New Gilded Age continues unabated. But here’s the thing–it will probably be a 5-4 decision. Like everything else horrible about the Supreme Court, it doesn’t actually take that much to change the result. Now that liberals are finally starting to take the courts as seriously as the fascists do, there is some hope here. We can’t give up our strategies just because the Court destroys the Alien Tor Act. We just need better justices and a Corporate Accountability Act that lays out just what the law will be on this.

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