US court ruling in favour of Alphabet (Google), Apple, Dell, Microsoft and Tesla is a ‘profound disappointment’ for activists fighting for victims of child labour in DRC’s cobalt mining operations.
By Sheriff Bojang Jnr/The Africa Report
US court ruling in favour of Alphabet (Google), Apple, Dell, Microsoft and Tesla is a ‘profound disappointment’ for activists fighting for victims of child labour in DRC’s cobalt mining operations.
A federal appeals court in the US on 5 March dismissed a suit against five major tech companies over cobalt-mining deaths of children in the Democratic Republic of Congo (DRC).
The Court of Appeals for the District of Columbia Circuit refused to hold Alphabet (Google), Apple, Dell, Microsoft and Tesla liable over their alleged support for the use of child labour in cobalt-mining operations in the DRC.
The case was filed in December 2019 by rights NGO International Rights Advocates (IRAdvocates) on behalf of 16 plaintiffs – four former miners, seven legal representatives of former miners who are still children, and five representatives of child miners who were killed during cobalt-mining operations.
They sued the companies under the Trafficking Victims Protection Reauthorization Act (TVPRA), which prohibits anyone from knowingly benefitting “from participation in a venture” that has engaged in forced labour.
Cobalt is an essential metal for producing the lithium-ion batteries that power devices – including electric cars, smartphones and laptops – produced by the five tech corporations. Nearly two-thirds of the world’s cobalt comes from the DRC. Activists say the tech boom has caused demand for cobalt to explode in recent years, resulting in children being put to work under extremely dangerous conditions in the mines.
Failing to protect minors
The plaintiffs accused the tech giants of participating in a venture with their cobalt suppliers that profit from child labour in their global supply chains.
The federal appeals court ruled that purchasing an unspecified amount of cobalt through the global supply chain is not “participation in a venture”, affirming a November 2021 decision by a district court in Washington to dismiss the complaint.
We can’t let companies outsource abuses while continuing to profit
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IRAdvocates expressed “profound disappointment” in the ruling, and said it means these tech giants will not face liability for “failing to protect children forced into labour as artisanal miners” in the DRC, despite having policies that profess “zero tolerance” for child labour.
“This ruling not only emphasises the legal complexities in holding multinational corporations accountable for their supply chains but also signals a concerning incentive for these companies to diminish transparency, directly contravening their publicly stated commitments against child [labour],” the group said in a press statement.
READ MORE DRC: The cobalt corrective – will the market continue to adapt?
New avenues for accountability
Representing the plaintiffs, IRAdvocates head Terry Collingsworth has been fighting some of the world’s largest multinational corporations over the past two decades.
He describes the court ruling as a “setback in efforts to hold US-based multinationals accountable for human rights violations” within their supply chains, adding that his team will file a new case that accommodates the court’s “very narrow definition” of “venture”.
[The companies] will now seek to avoid disclosing details of how they monitor or enforce these so-called policies
Collingsworth says he will also work with lawyers in the EU to explore using their laws.
“We will redouble our efforts to spark a consumer revolt against the trillion-dollar tech companies that profit from killing and maiming child cobalt miners in the DRC.”
Collingsworth tells The Africa Report that the court’s ruling will likely have a “destructive and probably unintended consequence”, saying it may encourage the five tech companies “to be less transparent about their supply chain partners to prevent the public (especially public interest lawyers) from obtaining details that would allow them to allege a “venture” under the TVPRA.”
“These companies claim they have policies against child labour that apply to all supply chain partners but will now seek to avoid disclosing details of how they monitor or enforce these so-called policies,” Collingsworth says.
“This [court] decision, though disappointing, will not deter us from our mission to protect vulnerable children and ensure that multinational corporations do not benefit from forced labour and human trafficking.”
EV makers must lead the way
Good governance activists say the court’s ruling puts the ball in the court of cobalt users to do the right thing.
“Cobalt mines in the Congo continue to be rife with child labour, human rights abuses and corruption, and it’s high time that Tesla and other electric vehicle (EV) manufacturers take a real leadership role in fixing these supply chain issues,” says Sasha Lezhnev, a human rights and conflict analyst at investigative and policy organisation The Sentry.
READ MORE Samsung, Apple, BMW…those benefitting from DRC’s cobalt and coltan reserves
“It would cost them comparatively little, and they could make a huge difference on the ground. Fifteen years ago, Intel played a leading role in setting up systems to combat conflict minerals, and Apple and other companies led afterwards. Leading automotive companies like Tesla now need to do the same for cobalt, which they use in electric vehicles,” Lezhnev tells The Africa Report.
He calls on the US Congress to add cobalt to the Dodd-Frank legislation – also called Dodd-Frank Wall Street Reform and Consumer Protection Act – to spur company action.
Biden administration aware
The Joe Biden administration says it is aware of the cobalt ruling, adding that it is making efforts to tackle the use of child labour in the DRC mining industry.
“The US is actively supporting efforts in the DRC to address child labour in cobalt mining, with a labour memorandum of understanding (MOU) signed with the DRC in March 2022,” a State Department spokesperson tells The Africa Report. “These MOU efforts include a $3m project to build the DRC’s capacity to identify and address labour violations in mining and other sectors.”
READ MORE DRC provides Buenassa initial funding for domestic cobalt, copper refining project
But Allie Brudney, a senior staff attorney at Chicago-based Corporate Accountability Lab (CAL), says the US needs to do more to address the child labour issue.
“The US needs strong regulations and laws that hold companies accountable for human rights abuses, regardless of where in the world they take place,” she tells The Africa Report. “We can’t let companies outsource abuses while continuing to profit.”
Cold cocoa cases
The cobalt ruling is not the only case against multinationals about the use of child labour in Africa to be dismissed by a US court. In June 2021, the Supreme Court threw out a lawsuit brought against food giants Nestle and Cargill by a group of Malian citizens who sought to hold them liable for child slavery on cocoa farms in Cote d’Ivoire.
The plaintiffs – now adults – said they were taken from Mali as children and forced to work on cocoa farms in neighbouring Cote d’Ivoire, accusing the two food giants of aiding and abetting by knowingly buying cocoa beans from farms that used child slave labour. The case was dismissed twice.
READ MORE Côte d’Ivoire-Ghana: Should the ‘cocoa OPEC’ believe in Nestlé’s premiums?
In August 2023, IRAdvocates filed a federal lawsuit seeking to have the US government enforce a 1930s-era federal law that requires the government to ban products created by child labour from entering the US. That case is pending.
A November 2023 investigative report by CBS found that chocolate giant Mars used cocoa harvested by children as young as five in Ghana, in contrast to its pledge to bar the use of child labour in small subsistence farms in Africa.
About 70% of the world’s cocoa beans come from four West African countries: Cote d’Ivoire, Ghana, Nigeria and Cameroon. Cote d’Ivoire and Ghana are by far the two largest producers, accounting for more than 50% of the world’s cocoa.
Activists say to meet corporate demand for cheaply sourced cocoa, children are robbed of their childhood and right to education while working on Africa’s cocoa farms, in unsafe conditions. They blame multinational companies for child labour and other human rights abuses within the corporations’ supply chains.
READ MORE Côte d’Ivoire: Child labour on cocoa farms increasing despite regulations
“We remain steadfast in our commitment to seeking justice for the victims of these egregious human rights abuses and call upon people everywhere to join us in this fight,” Collingsworth says.
Brudney adds: “Unless companies take real steps to ensure that they are not importing cocoa produced with hazardous child labour – meaning they fully trace their supply chains down to specific farms, monitor them extensively, and pay farmers a living wage – there is a high risk of tainted cocoa entering the US.”
Additional reporting by Julian Pecquet in Washington, D.C.
