What if companies that source seafood from vessels where human rights are abused could be characterized a pirates? And what if they could be held liable for piracy?
Piracy may seem like historical fiction, but pirates remain active around the world today. For example, criminal organizations in Somalia looting commercial vessels have recently gained global attention. However, piracy, as it is understood in international law, is also prevalent in fishery operations that engage in forced labor, human trafficking, and other human rights abuses. US companies source seafood from these violent fishery vessels and sell them to American consumers every day.
This blog post presents a hypothesis about how corporations could be held accountable for sourcing seafood tainted by human rights abuses. The post begins with a brief history of the Alien Tort Statute (ATS), detailing how piracy was an original claim under the statute. Next, it describes how modern-day pirates operate in fisheries around the world and how companies sourcing from these enterprises could also be categorized as pirates under international law, and theoretically subject to liability under the ATS in certain circumstances. Finally, this blog post explains that if the Supreme Court finds against the plaintiffs in the upcoming case, Nestlé v. Doe, the decision would effectively preclude claims against such modern-day pirates, thereby undermining an original purpose of the ATS.
The Alien Tort Statute was Designed to Address Piracy
The ATS is primarily a jurisdictional statute, created in 1789 by the First Congress, that grants non-US citizens access to US courts and an implied private right of action to bring claims for violations of certain well-established international law norms. According to the Supreme Court’s analysis in the 2004 case Sosa v. Alvarez-Machain, the First Congress passed the ATS to create a private right of action for foreigners who were victims of violations of international norms, including offenses against ambassadors, violations of safe conduct, and piracy.
For about twenty years, human rights lawyers used the ATS as a tool to hold corporations accountable for grave human rights abuses committed abroad. However, over the past eight years, the Supreme Court has repeatedly narrowed the ATSby limiting the types of claims plaintiffs can bring, where the harm that forms the basis of the claim can take place, and the types of actors that can be sued under the statute. Despite these limitations to ATS claims, the Supreme Court has held that the international impacts of their crimes makes pirates “a category unto themselves,” maintaining that piracy (and equally well-established international norms like genocide and slavery) is a foundational, original, and viable claim under the ATS.
Furthermore, early English and American laws consistently condemned private actors that purchased, held, sold, or transported goods procured by pirates. In 1569, Queen Elizabeth I’s Proclamation against the Maintenance of Pirates explicitly outlawed purchasing pirate goods. This mentality was upheld and reinforced throughout several centuries of English law, which deemed recipients of pirate goods accessories to pirate crimes. Early American criminal statutes similarly declared that the purchase of pirate goods was an intentional act of aiding and abetting piracy, and federal law still criminalizes the receipt of pirate goods.
The Supreme Court is now set to review two key ATS issues: whether the statute provides for liability for US corporations and if aiding and abetting liability exists under the statute. A negative holding on either issue would effectively preclude suits for piracy, a cause of action for which the ATS was originally created.
Human Rights Abuses in the Fishing Industry can be Defined as Modern-Day Piracy
Modern US courts use the United Nations Convention on the Law of the Sea (UNCLOS) and the Geneva Convention on the High Seas (Geneva Convention) to determine what constitutes piracy. Under both international agreements, piracy is defined as acts of violence, detention, or depredation, committed for private ends, by the crew of a private ship, directed against persons or property on board another ship on the high seas.
Fishery operations around the world are riddled with human rights abuses. Unfortunately, the international nature of the fishing industry often prevents governments from regulating labor conditions or stopping human rights abuses that occur in fishery operations on the high seas. This lack of oversight creates an environment in which fishery vessels engage in forced labor, torture, and murder while catching fish – sometimes just miles off the nearest coast and sometimes hundreds of miles off shore. These fishery vessels also often steal fish products and assault resisting fishermen from smaller operations. Many of the fishing vessels that engage in forced labor and commit other human rights abuses also engage in violent conduct against other ships, targeting local fishermen, innocent vessels passing by, or national law enforcement authorities.
These violent acts and human rights abuses within fisheries can be legally characterized as piracy under US law to support an ATS piracy claim. Under international standards to which the courts turn, fishing vessels that utilize forced labor, torture, murder, theft, and trafficking against smaller fishery communities, are engaging in piracy because they are private ships, often committing violence, detention, and depredation, for private ends, against persons and property aboard other ships on the high seas.
Corporations Sourcing from Pirate Operations Could be Held Accountable as Independent Pirate Actors
Violent fishing vessels are not the only actors that can be defined as pirates under international standards. In fact, any actor that facilitates or supports piracy operations can also be characterized as a pirate. US courts interpret “intentional facilitation” of piracy as equivalent to aiding and abetting. And international law on piracy does not limit what types of actors can be considered pirates. In fact, international law has crystalized a customary norm that any actor that aids and abets piracy is also deemed to have engaged in piracy.
A US seafood importer could be shown to have facilitated piracy by having provided kick-backs, tools, or logistical support to fisheries or directly sourced from abusive operations. There’s a high possibility that this could be shown. In 2015, the Associated Press reported on an investigation they had done that directly linked US companies to factories that had sourced from fishery operations notorious for human rights abuses. This investigation determined that “virtually all companies sourcing seafood in the Thai seafood sector are exposed to the same risks.” Some companies, like Nestlé, have investigated their own sourcing practices and found forced labor and other human rights abuses throughout their supply chains. Since these investigations uncovered systemic abuses, many US companies have attempted to implement measures to reduce the risk of human rights abuses in their supply chains. However, follow-up reports have found these efforts to be ineffective.
Since actors that facilitate piracy can be categorized as pirates themselves, and fishing vessels upon which human rights violations take place could meet the piracy standard under international law, US companies facilitating piracy could be theoretically be held liable under the ATS as pirates themselves—at least as the statute stands now. The potential of legal liability for facilitating the human rights abuses committed on fishing vessels in seafood supply chains could put major pressure on the fishing industry to reform.
Bringing an ATS suit against a US corporation for committing piracy by sourcing directly from pirate operations would fall squarely within the original purpose of the statute according to the Sosa Court. International law has a specific, universal, and obligatory norm that any actor, including companies, found to facilitate pirates, is independently found to be engaging in piracy. Though the corporate structure did not exist at the time of the ATS, historical jurisprudence condemning any private enterprise selling or distributing pirate goods shows that the ATS was designed to remediate this exact type of international harm. Based on the Supreme Court’s repeated support for piracy claims under the ATS, this type of suit could provide a remedy for victims of human rights abuses around the world.
The Supreme Court’s Coming Nestlé Decision Risks Undermining the Original Design of the ATS
Even if this hypothetical strategy for corporate accountability under the ATS seems possible at the moment, the looming Nestlé v. Doe case not only jeopardizes the viability of this theory but also the very purpose of the ATS.
Of course, if the Court rules that domestic companies cannot be defendants under the statute, piracy claims could not be brought against companies engaging in piracy through sourcing pirate goods. Furthermore, if the Court holds that aiding and abetting does not exist as a theory of liability under the ATS, the “intentional facilitation” standard under international customary law could not be used to link US companies to the initial pirate acts.
It is easy to see the gravity and impact the Nestlé case bears on the future of the ATS. The upcoming decision in Nestlégives the Court the power to remove the heart of the ATS, clearly limiting its applicability in defiance of what this same Court has held the First Congress intended for the statute.
Mallory Miller is a former CAL intern and member of CAL’s Brain Trust.
