Global Regulation of IUU Fishing: The Need for Affirmative Labor and Safety Regulations

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The economic significance of the global fish and fish product market should not be underestimated. The oceans add $1.5 trillion in annual value to the economy. Fisheries and aquaculture employ approximately 60 million people around the world. Globally, fish and fish product exports have increased 245% since 1976, and the value of these exports increased from $8 billion in 1976 to $143 billion in 2016. Developing countries have seen their exports increase at a much faster rate than developed countries have. In terms of value, fish and fish products are among the most traded animal protein commodities.

The World Bank estimates poor fisheries management squanders $80 billion worth of economic potential. Elements of fisheries mismanagement include allowing overfishing, the destruction or compromising of marine habitats, pollution, inefficient methods, and uncontrolled by-catch. The international community has recently redoubled efforts to improve fisheries regulation and management due to the economic importance of fisheries and the sustainability threats that overfishing and climate change pose to their long-term viability. These efforts focus on environmental elements like ensuring marine biodiversity, preventing or mitigating ocean temperature increases, potential regulatory responses to climate change, and protecting small-scale fisheries to ensure food security in coastal communities.

The international community has also focused on addressing the impacts of Illegal, unreported, and unregulated (“IUU”) fishing. IUU fishing poses one of the greatest threats to fishery sustainability, conservation and management. Broadly, IUU fishing occurs when fishers (independent or commercial) operate in contravention of national or international fisheries regulations or management schemes. This may include catching protected species, ignoring catch quotas, or mislabeling catch. IUU fishing undermines efforts to rebuild depleted fish stocks while contributing to overfishing. In addition, it places fishers who comply with regulations at an economic disadvantage. The difficulties inherent in enforcing international maritime agreements, the difficulty ports face in distinguishing legally and illegally caught seafood, and high demand for seafood contribute to increasing IUU fishing globally. Currently, estimates indicate that illegal catch could account for 15%  to 30% of the total global catch. Areas with the highest concentrations of IUU fishing have experienced some of the steepest declines in fishing stocks.

Both international and state bodies have made combatting IUU fishing a priority. The UN  Agreement on Port-State Measures (“PSMA”) focuses on developing port-state measures to prevent illegal catch from entering the stream of commerce. Catch documentation schemes (“CDS”) focus on preventing food fraud and other problems. Individual states and multi-state Regional Fisheries Management Organizations (“RFMO”) have also adopted measures to combat IUU fishing. However, the majority of these regulatory efforts focus on addressing management, traceability, and sustainability issues and mitigating their economic effects,  ignoring the critical human rights issues associated with IUU fishing.

Forced labor, trafficking, and other human rights violations frequently occur coextensively with IUU fishing, and fishers on vessels engaged in IUU fishing are at a much greater risk for abuse. In the South China Sea, migrant laborers become forced laborers, staying at sea for months at a time. Thailand’s efforts to minimize IUU fishing have done little to protect seafarers from human rights abuses at the hands of vessel owners and captains. Belarusian and Ukrainian men have also been trafficked into forced labor at sea. Agencies in the Philippines mislead workers into conditions of forced labor. Though most forced laborers come from developing nations, the seafood they catch frequently makes its way into the supply chains of developed nations. Indicators show that forced labor at sea is increasing, as dwindling fishing stocks press producers to seek cheaper labor sources and sail into the high seas.

Efforts to prevent forced labor and enforce labor standards have often been ineffective, as they tend to focus on a particular region, or fish stock, rather than aiming to address the broader system of commercial fishing. While the United Nations Convention on the Law of the Sea (“UNCLOS”) and the PSMA both include rules to prevent forced labor, those rules reflect only a small portion of much larger regulatory efforts. Even the International Convention for Safety of Life at Sea fails to address labor and seafarer safety standards, instead only focusing on vessel construction. The Pew Charitable Trust’s comparison of the three major IUU fishing treaties demonstrates the extent of state reluctance to directly engage with issues of forced labor at sea.

The PSMA, which focuses on sustainability, traceability, and management, has been ratified by 57 Member States, including the U.S., the largest seafood importer in the world. However, the Cape Town Agreement and C188 Work in Fishing Convention, which both focus on seafarer rights, have only been ratified by a handful of countries. The International Maritime Organization’s (“IMO”) Cape Town Agreement (“CTA”) sets out labor and safety standards for that signatories’ commercial fishing operations must adopt. Currently, the CTA falls far short of the 22 signatories and 3,600 fishing vessels it needs to enter into effect. Only 10 nations have ratified the CTA. The International Labor Organization’s Work in Fishing Convention No. 188 sets out basic labor decency standards for commercial fishing operations. Though it entered into force in 2017, only 13 nations have signed the treaty.

However, recent events provide hope that a sharper focus will be placed on the role of forced labor in commercial and IUU fishing. After languishing with relatively little promotion and few signatories for seven years, the IMO recently announced a fall 2019 conference to promote the CTA. NGOs increased their efforts to engage the commercial fishing industry in efforts to combat forced labor and IUU fishing. Finally, the Monterey Bay Aquarium Seafood Watch Program has introduced its Seafood Slavery Risk Tracker Tool, a companion to their Seafood Watch environmental sustainability tracker. The Seafood Slavery Risk Tracker provides a powerful tool for consumers to gain knowledge about the widespread problem of forced labor in commercial fishing and to make informed choices about their seafood intake. The importance of consumer voices cannot be understated, as demonstrated by the successful consumer-driven effort to eliminate tuna nets that were posing a safety risk to dolphins.

However, reducing or eliminating forced labor and human rights violations in commercial and IUU fishing cannot occur unless two critical issues are addressed. First, transshipment provides “cover” for otherwise-legitimate fishing enterprises to engage in IUU fishing and forced labor. Catches from smaller ships get offloaded to transshipment stations, which become the initial point of traceability. In addition, the ability of small boats to offload their catch at sea prevents them from docking in a port, thus avoiding any port-state measures and violations. Transshipment allows people coerced into forced labor to remain at sea with no off-ship contact for months at a time, preventing escape or any opportunity to report their conditions. The Food and Agriculture Organization (“FAO”) recently undertook and presented its first significant study of transshipment, which confirmed transshipment’s role in facilitating IUU fishing. The results indicated that while most States and RFMOs do regulate and attempt to monitor and control transshipment, these efforts do not effectively or adequately regulate transshipment. However, the next steps proposed in an FAO-sponsored Expert Workshop provides hope that transshipment regulation will strengthen. These include updating the definition of transshipment and redefining the vessels and operations excluded from transshipment. Perhaps most importantly, the Expert Workshop proposed conducting additional regional and fishery-level quantitative studies to increase available information and transparency. The results would provide the foundation for developing minimum regulatory control standards. Currently, the lack of transparency and effective regulation of transshipment enables IUU fishing and forced labor. Carrying out the Expert Workshop’s proposals have the potential to significantly reduce the opportunities for IUU fishing. Hopefully, these efforts will extend beyond economic impacts and addressed the

Finally, forced labor at sea will continue to occur until nations and businesses directly engage with the problem. As illustrated above, nations are reluctant to engage with efforts specifically directed at ensuring basic human rights and labor safety at sea. The U.S. and EU, two of the largest seafood importers, have implemented stronger traceability requirements, which can help identify forced labor. Port-state measures such as these create disincentives for IUU fishing, but they primarily serve to protect U.S. and EU consumers from IUU products. Port-states need to create measures aimed at identifying and preventing forced labor directly. This requires creating regulations mandating full traceability from the point of the catch’s origin—including full disclosure of all utilized vessels and laborers for each step in the chain of production. Such stringent regulations would face considerable backlash from a variety of stakeholders, including commercial corporations and port-states themselves. To lobby for these changes, consumers and NGOs should partner to pressure corporations and port-states to increase traceability and affirmative efforts to prevent the continued use of forced labor in global fisheries industries.

 

Amelie Hopkins is a 2L at Columbia Law School and holds a B.A. from Bates College. A native New Orleanian, she is particularly interested in issues relating to maritime litigation and regulation.