Taste of child labor not so sweet: a critique of regulatory approaches to combating child labor abuses by the U.S. chocolate industry.

Author:Mustapha, Kemi

    United States chocolate manufacturers, (1) including Hershey's (2) and Mars, (3) received unwelcomed media attention in 2001 as reports of the use of child labor on West African cocoa farms surfaced. (4) Investigations revealed that children harvest cocoa beans5 under conditions that qualify as the "worst forms of child labor" (6) as defined in International Labour Organization (ILO) (7) Convention 182. Under ILO Convention 182, (8) ratifying countries commit themselves to eliminating the worst forms of child labor. (9)

    The child labor abuses on West African cocoa farms have far-reaching consequences as Cote d'lvoire (also known as the Ivory Coast), Ghana, Cameroon, and Nigeria produce 70% of the world's cocoa, with Cote d'lvoire alone accounting for almost 40% of that supply. (10) With the United States importing 20% of Cote d'lvoire's exports of cocoa products, (11) and that number representing almost half of the United States' supply, (12) child labor likely produced much of the chocolate products that United States' consumers enjoy. (13)

    The United States Department of State estimates that approximately 109,000 children in Cote d'Ivoire's cocoa industry work under "the worst forms of child labor." (14) Among other hazards, children carry heavy loads of cocoa beans, (15) apply pesticide and fertilizer without protective gear, (16) and use machetes to clear underbrush and cut open cocoa beans. (17) Many child workers are underfed and beaten on a regular basis, (18) and most do not attend school. (19) One study estimates that up to 10,000 of these children are victims of trafficking. (20)

    Media reports accused United States chocolate manufacturers of complicity in child labor practices on West African cocoa farms, but chocolate manufacturers denied responsibility, stating that they neither owned the cocoa farms nor controlled the labor practices of local farmers. (21) Initially, industry representatives even denied that child labor existed on the cocoa farms. (22) The chain of production for chocolate products is long and complex, with chocolate products reaching consumers only through several intermediaries, (23) which include local farmers, (24) local middlemen, exporters, and international traders and manufacturers. (25) To complicate matters further, cocoa beans from various farms are combined together before being exported, making it impossible to discern their source; cocoa beans originating from farms that use child labor are indistinguishable from the cocoa beans originating from farms that do not. (26)

    Lawmakers struggled to reach solutions that would require chocolate manufacturers to ensure that their cocoa products do not contain cocoa beans harvested by child labor. (27) Most notably, Representative Eliot Engel (28) proposed an amendment to the 2002 Agriculture Appropriations Bill that would have earmarked $250,000 for the Food and Drug Administration to develop a "slave free" label for chocolate products. (29) The Chocolate Manufacturers Association (CMA) hired former Senators Bob Dole (30) and George Mitchell (31) to lobby against the provision, knowing that their products would not qualify for the "slave free" label. (32) Although the provision passed in the House of Representatives, (33) a companion provision was never introduced in the Senate. (34)

    Amid threats of boycotts and calls for other punitive measures by the general public, the chocolate industry met with various stakeholders, including NGOs, labor organizations, government officials and politicians, to propose alternative solutions to the child labor problem, eventually leading to a compromise in September 2001. (35) In exchange for Congress withdrawing the provision for a mandatory "slave free" label, the CMA reached an agreement with the stakeholders to voluntarily remedy the child labor problem. (36) The agreement is commonly referred to as the Harkin-Engel Protocol, (37) named after Senator Tom Harkin (38) and Representative Eliot Engel, (39) both of whom played major roles during the negotiations.

    The Harkin-Engel Protocol (Protocol), signed September 19, 2001, is a voluntary, nonbinding, and nonlegislative document that outlines six steps for the chocolate industry to take in order to eliminate the worst forms of child labor in its supply chain in compliance with international labor standards. (40) However, because of the Protocol's voluntariness, it has been largely unsuccessful in eliminating child labor practices on West African cocoa farms. (41) This Note argues that proposed solutions must be removed from the hands of industry leaders and situated within state regulatory frameworks to be effective.

    This Note examines how the United States government can effectively prevent the importation of cocoa products produced by child labor on West African cocoa farms into the United States. Part II addresses the application of internationally recognized labor standards to transnational corporations (TNCs) through both international law and national legislation and why these efforts have been inadequate. Part III provides an overview of the debate regarding the use of voluntary initiatives in place of legally binding state regulation to curb labor violations by transnational corporations. Part IV details the six steps of the Protocol and comments on the Protocol's effectiveness. Part V highlights recently enacted legislation addressing child labor in the agricultural industry and distinguishes it from the Protocol. Finally, Part VI argues that this new legislation should be applied to the child labor problem on West African farms and proposes provisions that would make its implementation more effective.


    The view credited to economist Milton Friedman that the only social responsibility of business is to increase profits has largely been abandoned. (43) Current society no longer seriously questions the notion that corporations have duties beyond profit making; (44) corporations must also act ethically and responsibly. (45) However, with the advance of globalization, the concern is that corporations will take advantage of lenient regulations in foreign countries (46) and commit violations of international human rights and labor standards in pursuit of profit making. (47) While commentators now accept that TNCs should be held directly accountable for human rights violations, (48) most international standards are binding on states, and not on corporations or individuals. (49) Generally, international law is ill suited to hold TNCs responsible for human rights compliance, (50) and past attempts to impose international human rights obligations directly on corporations have failed. (51) Similarly, national legislation has been repeatedly inadequate. (52)

    1. Failed Attempts at Creating International Law Binding on TNCs

      The United Nation's efforts to set standards for TNCshave proven ineffective. For example, the U.N. Code of Conduct on Transnational Corporations (Code of Conduct) (53) would have regulated for the first time on the international level various corporate practices, including those implicating child labor. (54) Arguments as to whether the Code of Conduct should be legally binding or voluntary hindered negotiations, with developing nations advocating for the former and developed nations advocating the latter. (55) Under pressure from developed countries, including the United States, the U.N. abandoned its efforts after almost fifteen years, (56) and the Code of Conduct was never adopted. (57) The U.N. later adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (Norms). (58) However, the Norms merely contain recommendations that can be used as bases for treaties and other sources of binding international law. (59) Like the Norms, the U.N. Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (Tripartite Declaration) (60) addresses the labor activities of TNCs, but again only provides recommendations for TNCs to adopt on a voluntary basis. (61) Although the Tripartite Declaration references ILO labor standards, (62) again, these obligations bind only states and not corporations directly. (63)

    2. National Legislation and Its Limitations

      Aside from the U.N.'s attempts, efforts to directly require TNCs to comply with internationally recognized labor standards through national legislation have also been unsuccessful. Two well-known examples of these failures are the Child Labor Deterrence Act (CLDA) (64) and the Corporate Code of Conduct Act (CCCA). (65) The CLDA of 1999, (66) introduced by Senator Harkin, would have prohibited the importation of manufactured goods that are found to be produced by abusive child labor into the United States. (67) Importantly, the Act would have imposed civil and criminal penalties directly on companies that violated the prohibition against the importation of these products. (68) The Act also explicitly referenced ILO Convention 182. (69) However, the CLDA stalled in Congress and was never enacted. (70) Similarly, the CCCA attempted to directly impose internationally recognized labor standards on corporations and was never enacted. The CCCA would have required U.S. corporations that employ more than twenty persons in a foreign country to adopt and implement a Corporate Code of Conduct in compliance with "internationally recognized worker rights and core labor standards." (71) However, like the CLDA, the CCCA was never enacted. (72)

      Even those acts that have been passed by Congress have been inadequate in dealing with child labor abuses due to their lack of enforcement. The Tariff Act of 1930 states that "[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and...

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