Ratified treaty;¹ Non-ratified treaty;² Work of international supervisory bodies;³ Report of the International Labour Office⁴

Alleged violations of international law on forced labour and child labour/ Dismissal of adult workers’ claim of forced labour on the basis of international law/ Dismissal of defendant’s motion asserting lack of jurisdiction under national law for the action of Liberian child plaintiffs /Clarification on the nature of ILO Convention No. 182 as sufficiently specific, universal, and obligatory/ Direct resolution of a dispute on the basis of international law 

The complaint was brought by adult and child workers on the Firestone Rubber Plantation in Liberia. It alleged violations of international law, including forced labour and child labour, under the Alien Tort Statute (ATS). 

Concerning the allegations relating to forced labour, the Court found that the plaintiffs had not alleged that the defendants failed to pay them, or used physical force or legal constraints, but instead alleged that they were being kept on the job by the effects of poverty, fear and ignorance. The court also stated that: “[t]his basic distinction between harsh conditions for which an employer is or is not responsible is recognized in the ILO definition of forced labor dating back to ILO Convention No. 29 in 1930. Forced labour is “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.⁵

The Court cited the ILO Global Report “A global alliance against forced labour” to the effect that “[f]orced labour cannot be equated simply with low wages or poor working conditions. Nor does it cover situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives”.⁶ The Court also looked at the list of factors identifying forced labour in practice, included in the above-mentioned Global Report, and contended that “[n]either ILO report nor plaintiffs explain how a threat of dismissal from current employment is a ‘menace of a penalty’ that forces labour in the same job. It would seem that the expressed fear of losing one’s current employment is a clear indicator that the current employment is not forced labour.”⁷ 

The Court accepted that although there was “a broad international consensus that at least some extreme practices called ‘forced labour’ violate universal and binding international norms”,⁸ the labour practices at issue on the plantation lay “somewhere on a continuum that ranges from clear violations of international law ... to more ambiguous situations involving poor working conditions and meagre or exploitative wages”.⁹ 

The Court ultimately found the defendants’ arguments more compelling and granted the motion to dismiss the adult workers’ claim of forced labour. 

Concerning the allegations relating to child labour, the defendants moved to dismiss the action by Liberian child plaintiffs under ILO Conventions Nos. 138 and 182, asserting lack of subject matter jurisdiction under the ATS on the basis that they did not allege violation of international norms that are sufficiently specific, universal and obligatory to meet the ATS standard. Dismissing the motion, the Court noted that while ILO Convention No. 138 is a flexible instrument and permits member States at different stages of economic development to establish their own minimum ages, ILO Convention No. 182 is very specific in prohibiting slavery, forced or compulsory labour (etc.), as well as “work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”. He concluded: “In light of ILO Convention No. 182, the Court believes that the allegations of child labour meet the (Sosa) standard for ATS claims. It would not require great “judicial creativity” to find that even paid labour of very young children in these heavy and hazardous jobs would violate international norms”.¹⁰