Can the Tariff Act Combat Endemic Child Labor Abuses? the Case of Cote d'Ivoire*
Ellenbogen, Marc, Texas Law Review
On May 30, 2002, the International Labor Rights Fund (ILRF), a Washington D.C.-based nongovernmental organization (NGO), filed a petition with the United States Customs Service alleging and outlining evidence of trafficking in children and the "pervasive use of forced child labor in cocoa harvesting in Ivory Coast."1 Cote d'Ivoire is the world's largest producer of cocoa, accounting for an estimated 43% of total global production.2 There are over 450,000 cocoa plantations in the country, and approximately half of the population depends upon the industry for income.3 The ILRF called upon the Customs Service to initiate an investigation into the existence of such labor violations in Cote d'Ivoire and to enforce the relevant provisions of the Tariff Act of 1930.4 The Tariff Act,5 which was designed to protect against unfair competition created by labor abuses in foreign industries,6 provides for a ban against the importation of all goods into the United States that are produced with "convict labor or/and forced labor or/and indentured labor."7 The 1997 Sanders Law clarified the Act to include products made with "forced or indentured child labor."8
In June of 2003, the ILRF filed suit against the Customs Service for its failure to initiate any investigation or enforcement action.9 Yet despite the legal demands stated in the petition to the Customs Service and complaint filed in the U.S. District Court for the District of Columbia, the ILRF has publicly commented that its intention is not to achieve an outright ban of all cocoa produced in Cote d'Ivoire,10 as would be the ultimate result of a successful enforcement action under the Tariff Act.11 The ILRF seeks only to instigate an investigation by the Customs Service, which it believes will "provide a strong incentive to the Cote d'Ivoire government and to the cocoa exporters to solve the problem of forced child labor."12 The complex condition of child labor in West Africa, the legislative and political limits of the domestic customs mechanism at issue, and the economic realities of child labor suggest that while the Tariff Act can potentially serve as a useful tool in the promotion of labor rights abroad, the import ban that it contemplates is not a desirable outcome in this context. The problem of forced child labor in Cote d'Ivoire requires a regional and local approach that includes local governments, companies, and nongovernmental and international organizations and recognizes the need for a gradual solution in light of the entangled reasons for and consequences of child labor.
This Note provides an illustrative case study of the problem of child labor and attempts to offer insight into the difficulties of using unilateral trade action as a means of enforcing international human rights. Part II provides a brief discussion of child labor, generally, and an overview of the economic, social, and political factors that contribute to its prevalence. Part II examines trafficking of children from neighboring countries into bonded child labor on cocoa farms in Cote d'Ivoire, and analyzes the measures that the governments of Cote d'Ivoire and other West African countries, as well as U.S. chocolate manufacturing companies, have taken to deal with the problem. Part III focuses on the process, issues, and obstacles involved in invoking the Tariff Act for the purpose of combating labor abuses. Part IV discusses the drawbacks that an import ban on cocoa from Cote d'Ivoire would present for the issue of child labor if a Tariff Act enforcement action were imposed, in light of the economic and political situation in the region. Part V concludes with a discussion of the potential effect of a Customs Service investigation, and argues that an investigation would create incentives for the development of appropriate measures for combating bonded child labor in Cote d'Ivoire. Such measures would need to address wages, social values and awareness, and cross-border collaboration. …