13.01.20 |
Apple, Google (through its parent company Alphabet, Inc), Dell, Microsoft and Tesla have been named as defendants in what could be a landmark case pertaining to the use of child labour in the mining of cobalt in the Democratic Republic of Congo (DRC).
The case, which is a class complaint for injunctive relief and damages has been brought by the US based International Rights Advocates (IRA) on behalf of children injured in the mines and families whose children have died in mines. They accuse the companies of “knowingly benefiting from and aiding and abetting the cruel and brutal use of young children in Democratic Republic of Congo (“DRC”) to mine cobalt.”
The DRC has faced and continues to face calamity including war, deadly outbreaks of Ebola, debilitating corruption and instability to name but a few of the challenges. The nation is also blessed and cursed (depending on how one looks at it) with vast mineral wealth including cobalt.
Cobalt is required to manufacture the rechargeable lithium-ion battery used in all of the smart phones, laptops, tablets and other electronic devices many of us have come to rely on, and approximately two-thirds of the global supply of cobalt is mined in the so called “copper belt” region of Haut-Katanga and Lualaba Provinces in the DRC.
According to IRA, the defendants use cobalt from the DRC that is sourced from mines that use child labour. The IRA explain that the connection is as follows: the companies Glencore/Umicore and Zhejiang Huayou Cobalt Company Ltd (Huayou Cobalt) are two of the biggest companies in the cobalt supply industry. Glencore mines the cobalt, allegedly with the use of child labour and Umicore processes cobalt mined by Glencore. The processed cobalt from Glencore is then sent to the defendants. In the case of Dell and Tesla, LG Chem is supplied by Glencore then it in turn supplies Dell and Tesla, according to IRA’s research. Huayou Cobalt allegedly supplies cobalt to Apple, Dell and Microsoft.
IRA indicate that during the refining process, Umicore deliberately mixes cobalt allegedly mined by children with other cobalt and “takes other steps to impair the traceability of the DRC cobalt to give Defendants Apple, Alphabet, Dell, Microsoft and Tesla plausible deniability as to the source of the cobalt they purchase from Umicore.”
How do the defendants know where the cobalt comes from ?
IRA argue that the defendants had “specific knowledge from public reports that the DRC cobalt that they were buying within their ventures with Glencore/Umicore and/or Huayou Cobalt, as well as other sources, was mined in significant part by young children performing hazardous work for 2-3 U.S. dollars per day and, remarkably, in many cases even less than that.”
The 79-page submission details the horrific and painful stories of children who have had no choice but to work in artisanal mines, or creuseurs as they are known in the DRC. According to an Amnesty International Report, the children mine using very primitive tools, and their bare hands to search for rocks containing cobalt. They are also tasked with cleaning the ore before it is sold. Not only are they being exploited but they also face great risks in unsafe tunnels. Many have been maimed and killed.
The IRA submission includes chilling photos of the injuries sustained by plaintiffs. Their faces have been obscured to protect their identities but the horrors of their injuries are clearly visible. One only has to go as far as the third page of the submission to find a photo of John Doe 5 whose leg was crushed whilst working in a mine for Congo Dongfang Mining which is a wholly owned subsidiary of Huayou Cobalt, one of the aforementioned companies that sells its cobalt to the mighty Apple and Microsoft.
A few pages later there is a photo of 17-year-old John Doe 3 who, according to the submissions, was working for a Huayou Cobalt owned mine. In July 2019 he was transporting 210 kgs of cobalt on a motorbike and was hit by a large cobalt transport truck. His injuries were severe, including having his leg amputated because it was so badly destroyed.
According to the submission, John Doe 3 is the sole breadwinner for his mother and six siblings and he is reportedly in constant pain. In addition to being unable to work, he received no financial assistance from his “employer” and according to IRA, he still owes the hospital large amounts of money. This is one of many accounts in the submission exposing the exploitation of children and reckless endangerment of their lives.
According to IRA, who are conducting additional research expecting to add more defendants to the case, the “defendants know and have known for a significant period of time the reality that DRC’s cobalt mining sector is dependent upon children…”
IRA also point out that cobalt sourced from the DRC is listed on the U.S. Department of Labor’s International Labor Affairs Bureau’s List of Goods Produced with Forced and Child Labor.
So what are the plaintiffs seeking?
The plaintiffs “assert claims for forced child labour in violation of the Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. § 1595 et. seq” furthermore they “seek relief based on common law claims of unjust enrichment, negligent supervision, and intentional infliction of emotional distress.’’
They have also requested that the Court order the defendants to, “create a fund, in an amount to be determined at trial, to fund appropriate medical care for plaintiffs and members of the class who were injured while mining cobalt for defendants, conduct medical monitoring for negative health impacts for plaintiffs and members of the class who were exposed to cobalt and other toxic chemicals while mining cobalt for defendants, and clean up the environmental impacts caused by defendants’ use of suppliers for cobalt that failed to take any steps to protect the environment where they were mining for cobalt…”
The relief they are requesting is quite far reaching and very comprehensive. It could go a long way towards helping them rebuild their lives and communities.
Why litigate in the US?
The IRA submits that there is no appropriate legal forum in the DRC as currently there is no law in DRC that would allow the plaintiffs to seek civil damages against the end users of cobalt who operate outside of the DRC. They also state that the corruption in the DRC judicial system, and the danger the lawyers and the plaintiffs could face given the “civil unrest in DRC and the demonstrable hostility in the DRC” against anyone who is critical of the government or anyone who is perceived to be “attacking the mining industry” are prohibitive factors. Using the Trafficking Victims Protection Reauthorization Act (TVPRA) the plaintiffs submit that the US is the appropriate forum as there is a legal basis for extraterritorial jurisdiction.
The IRA bolster their jurisdictional argument by stating that, “the policymaking that facilitated the harms Plaintiffs suffered was the product of decisions made in the United States by Defendants…This case is brought under the TVPRA, 18 U.S.C. § 1596, for violations of 18 U.S.C. §§ 1581, 1584, 1589, and 1590, and the offenders are nationals of the United States or present in the United States, irrespective of nationality, providing this Court with federal question jurisdiction pursuant to 28 U.S.C. § 1331. 18 U.S.C. § 1596 explicitly grants United States courts extraterritorial jurisdiction for Plaintiffs’ TVPRA claims, all of which accrued after December 23, 2008, the effective date of § 1596.
This Court also has jurisdiction pursuant to 28 U.S.C. § 1332 (a)(2) based on diversity of citizenship. All Plaintiffs are foreign nationals and citizens and residents of DRC and each of their claims for damages exceeds $75,000. All Defendants are U.S. corporations headquartered in the United States.
Under §§ 1589 and 1595 of the TVPRA, Defendants Apple, Alphabet, Dell, Microsoft and Tesla are liable if they (1) participated in a venture; (2) knowingly “receiv[ed] anything of value” from the venture; and (3) knew or should have known that the venture had engaged in forced labour as defined by § 1589…”
The submission goes on to explain that even if the defendants did “not have specific knowledge of forced child labour in their cobalt supply chain ventures, then this is an extreme form of willful ignorance and they certainly ‘should have known’ that their supply chain ventures are dependent upon the cheap labour of forced child labor.”
What do the defendants have to say about the allegations?
The Guardian Newspaper approached the defendants for comment and a representative from Glencore said that Glencore “notes” the allegations levelled against them and that they respect human rights in accordance with the universal declaration of human rights. They also pointed out that they do not tolerate any form of child “forced or compulsory labour” and that the, “production of cobalt in the DRC is a by-product of our industrial copper production. Glencore’s operations in the DRC do not purchase or process any artisanally mined ore.”
Apple’s response was, “Apple is deeply committed to the responsible sourcing of materials that go into our products. We’ve led the industry by establishing the strictest standards for our suppliers and are constantly working to raise the bar for ourselves, and the industry.”
According to the Guardian, Dell said: “Dell Technologies is committed to the responsible sourcing of minerals, which includes upholding the human rights of workers at any tier of our supply chain and treating them with dignity and respect…We’re currently investigating these allegations, and have informed the Responsible Minerals Initiative as part of their grievance mechanism.”
Umicore said: “Umicore has been addressing ethical supply for 15 years, ensuring no issues related to human rights, child labour, safety conditions and environmental impact related to cobalt extraction. We contest any allegations to the contrary.”
The Guardian said that they approached Microsoft, Huayou, Google and Tesla but by the time of publication no response had been received.
Microsoft told The Telegraph that they are “committed to responsible and ethical sourcing…If there is questionable behaviour or possible violation by one of our suppliers, we investigate and take action. We recognise that global raw material supply chains are vast and complex systems involving millions of entities that we cannot impact alone. It’s why we continue to work with suppliers, NGOs and the larger industry to improve things on the ground and address these important issues.”
If the IRA’s case is successful and they receive a judgement in their favour, it could set an important precedent that will significantly change the face of Business and Human Rights. When giant companies like these defendants are sanctioned for complicity in human rights violations, and when they take steps to genuinely ensure that at all levels of the supply chain there is the strictest compliance with laws designed to protect and uphold human rights, only then will there be sustainable change.
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