Introduction
An International Labour Organisation (ILO) global estimate reports that approximately 21 million people are victims of forced labour. In the private economy alone this industry generates around US$150 billion in illegal profits annually. This year, the ILO launched the 50forFreedom Campaign which aims to mobilize public support and influence in at least 50 countries to ratify the 2014 ILO Forced Labour Protocol by 2018. This Protocol was, inter alia, the subject of discussion at the International Expert Meeting to address labour exploitation in the fishing sector in the Atlantic Region held in Oslo, Norway. This 2 day meeting took place on the 25 to 26 November 2015 and was organised by the ILO in collaboration with the Norwegian National Advisory Group against Organised Fisheries Crime and IUU-Fishing (FFA).
A 2015 background paper prepared by the ILOs Fundamental Principles and Rights at Work Branch reports that from the period 1990 to 2012, the growth of employment in the fisheries sector has outpaced that of the world’s population. In parallel with this growth is the increasing global presence of forced labour on board fishing vessels – largely attributable to human trafficking in this sector. These workers find themselves in a uniquely precarious set of circumstances, their workplace being the wide expanse of ocean which in and of itself makes any form of regulation and its enforcement particularly challenging. These workers at many times find themselves with little to no legal protection from exploitative practices and there have been increasing reports of inhumane conditions suffered by fishers, most of them migrant workers, on board fishing vessels. Serious human rights abuses occur on a daily basis and fishers have described disturbing accounts concerning illness, physical injury, psychological and sexual abuse, the death of crewmates, long work hours and no pay for months on end. These are merely a few of the commonplace practices.
The organisers of the ILO meeting thus recognised that combatting labour exploitation on board vessels demands an innovative, complex and multidisciplinary response and thus invited a host of participants, many of whom work at the coalface of the struggle to combat labour exploitation and human trafficking on boards fishing vessels. In attendance were representatives of governments, trade unions and employer organisations; experts on fisheries crime and illegal, unreported and unregulated (IUU) fishing; experts on forced labour and trafficking in the fishing sector; observers from international organisation and other interested stakeholders. At the centre of discussions were good practices and innovative solutions developed by various stakeholders to tackle labour exploitation in the fishing sector. The recommendations emerging from meeting will inform GAPfish, an ILO project proposal currently underway to tackle forced labour and human trafficking in the fisheries sector.
In the main, the issues addressed at the meeting touched on the following aspects: the ILOs normative framework; measures to prevent and protect workers on board vessels; recruitment; the legal framework for flag, port and coastal state control to address labour exploitation in the fishing sector; managing sustainable global supply chains; remedies for victims of labour exploitation and human trafficking; and international and regional multi-stakeholder cooperation. Below is a brief summary of the key points of discussion.
Summary of Discussion
Background and regulatory framework
Labour exploitation in the fishing sector is not a recent phenomenon. With currently 60 million workers in the fishing industry, legislating for this sector is particularly cumbersome given both the nature of the different types of workplaces found in the fishing industry, as well as the demands placed on the sector. With respect to the latter factor, the pressure is in part attributable to the overconsumption of fish over the course of the last few years and with the simultaneous decline in fish stocks, there has been an increase in competition amongst businesses in the fishing industry. The competitive nature of the industry drives the exploitation of fishers, particularly migrant workers, who are paid below the standard industry wage and who are deprived of the decent work conditions on board errant fishing vessels.
Regulating labour conditions on board vessels presents a unique set of challenges exacerbated by the following issues: governments’ uncertainty as well as that of the relevant inspecting authorities with respect to legal jurisdiction over labour law issues on board vessels; globalisation; the overconsumption of fish worldwide leading to fierce competition amongst business; an increase in complex, global seafood supply chains in the fishing industry; and increased ease of mobility. Coupled with low trade union density and the visible absence of collective agreements providing workers with decent terms and conditions of employment, these features have further served to weaken capacity for the adequate safeguarding and protection of vulnerable workers. The global need to create regulated environments to combat labour exploitation has never been more dire. In this regard, three key focus areas were highlighted. The first related to the role of states in combatting forced labour. Participants repeatedly emphasised that the primary responsibility ought to lie with the state as laws and policies are the first step towards compliance. The second focus area concerns sustainable supply chain management. Critical interventions are needed particularly with regards to the traceability of fish by suppliers particularly given the increased interested by business and consumers in the source of the fish supplied. Thirdly, worker empowerment ought to be at the centre of the solution as these parties should be seen as agents of change.
In the discussion on the ILOs normative framework, the participants emphasised the importance of state ratification of the international instruments which is said to represent a key first step in collective and concerted action to combat the global challenge at hand. The centrepiece of discussion on the international legal framework was the 2014 ILO Forced Labour Protocol. The panellists were unanimous in their support for increased state ratification of the 2014 Protocol. To date, only two states have ratified the Protocol, namely, Niger and Norway. The Protocol compliments existing international instruments such as the ILO Convention No. 29 on Forced Labour, the United Nations (UN) Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children), the ILOs 2007 Work in Fishing Convention (No. 188) (C188), and the 2006 Maritime Labour Convention (MLC). The 2014 Protocol, which includes forced labour in the fishing sector within its scope of application, seeks to further build on this developing legal framework. Innovative provisions are introduced by the Protocol which direct members to take effective measures in supporting due diligence by both public and private sectors to prevent and respond to risks of forced and compulsory labour; developing measures for effective victim protection as well as providing for other forms of assistance and support; and providing appropriate and effective remedies for all victims.
To date, only six states have ratified C188 and the Convention requires ten member states, eight of which are coastal states, before it can come into force. The real challenge, it appears, is getting buy-in from the fishing sector that tends to be resistant to regulation. In part, this intransigence is due to the potential inordinate costs associated with compliance particularly as fishing companies are at present increasingly vulnerable to global competition. Even in the few countries where applicable international instruments have been ratified and targeted domestic legislation exists, enforcement of preventative and punitive measures remain a major challenge given the secluded and temporary nature of most fishing operations.
With the list of international instrument growing, it was stressed that where ILO instruments intersect, they ought to be harmonised with a view to developing a comprehensive legal framework regulating labour practices in the fishing industry. While state ratificaton of these international instrument is slow, at a domestic level there have been efforts to curb exploitative labour practices on board vessels. In this regard, various countries have introduced innovative changes to their legal frameworks in addition to the development of soft law initiatives in collaboration with social partners. Of particular note is New Zealand and the United Kingdom (UK). In New Zealand, new laws require the re-flagging of foreign charter vessels to New Zealand flag when operating within its waters. The state therefore has the power to exercise full and exclusive jurisdiction over all maritime safety and employment matters on board vessels in the New Zealand Exclusive Economic Zone (EEZ).
In July 2015, the UK promulgated the Modern Slavery Act (MSA) which, as the title suggests, introduces a modern slavery offence as well as a human trafficking offence. Various provisions in the MSA provide for the imposition of penalties, compensation for victims of, inter alia, forced labour and human trafficking in the form of a reparation order, and moreover, allow a court to issue risk and prevention orders. The MSA furthermore creates a national referral mechanism to protect and safeguard victims. From January 2016, law enforcement will have the power to board vessels and will be able to command these vessels back to port. In addition, they will have the power to respond on behalf of other countries when a vessel comes to port from the high seas. Information sharing is thus important in bolstering the effectiveness of this provision. Once again, multi-agency collaboration was emphasised as being key in giving full effect to the MSA. This point was reiterated by the head of INTERPOL Trafficking in Human Being and Migrant Smuggling Sub-directorate, who keenly noted that INTERPOL does not have the monopoly on the investigation of human trafficking cases. Labour exploitation and human trafficking is also not exclusively a fisheries management issue, but should involve the criminal justice system of countries to combat human trafficking as part of a wider effort to combat all crimes pertaining to the industry. Collaboration was once again stressed particularly with border police, immigration officers, environmental police and even tax officials.
Recruitment, information and use of technology
Labour exploitation in the fishing sector is driven by a rogue system of recruitment which muddles the identification of the true employer of the worker and has made it exceedingly problematic to determine whom to hold legally responsible for non-compliance with contracts of employment, applicable laws and standards. A proposal was put forward that fishing vessel owners ought to recruit from a single recruitment agency, preferably one based in the country where the worker is a resident. Ultimately, the primary responsibility for terms and conditions of employment, as well as compliance with regulation and these contracts of employment, ought to lie with the fishing vessel owner and not the recruitment agency. Collective bargaining agreements between the workers and the owner were also highlighted as being crucial in ensuring decent work and imposing responsibility on the owner for non-compliance. Notably, Regulation 1.4 of the MLC places the burden on the owners of vessels to check that recruitment agencies comply with the applicable standards. C188 does not however contain an equivalent provision. Another related and pressing concern is the need to crack down on irregular recruitment agencies and processes to ensure that all recruitment agencies are registered. A nefarious practice that takes place globally is where fishing companies use these agencies to escape legal responsibility. The position of these workers is aggravated by the fact that neither the ship owner nor the agency shoulders responsibility for these workers. A common pre-condition of recruitment required by these recruitment agencies is that workers sign disclaimer forms which serves to exempt these agencies from paying repatriation costs when forced labourers are discovered by law enforcement. This practice, along with many others, deprives workers of any form of legal recourse against both the ship owner and these recruitment agencies.
In the modern world, information technology and social media have been both a source of praise and criticism. The key role they play in both furthering and incidentally combatting labour exploitation was a key point of discussion. The use of social media by rogue recruitment agencies to lure people into forced labour is hugely problematic. One panellist noted that while social media is used as a tool to further this illicit trade, it has however made the fact of labour exploitation more visible. The benefit of social media is that it can be used as a tool to empower workers and to use technology to their advantage. What is needed is that these workers are sensitized about useful information and safe behaviour, thus education and awareness creating initiatives are of critical importance. One panellist noted that a clear indication of exploitation is the isolation of the worker and it is this isolation that needs to be broken – technology can provide a solution to this disconnect between the worker and the rest of the world. Some concerns were however raised about the efficacy of social media for workers who are at high sea and whether connectivity is indeed a viable solution.
It was furthermore highlighted that responses at sea should be strengthened. In this regard, educated and empowered coastguards, labour inspectors and fisheries control officers carrying out standard inspections in ports also form an important part of the solution as they will be better equipped to identify signs of labour exploitation. International agreements must be used effectively to empower inspections at sea and to bolster international coastguard co-operation. Access to information was also viewed as critical to the effective work of these law enforcers. In this regard, an evidence-base needs to be built in order to successfully intercept rogue vessels. Intelligence gathering and information/data sharing with non-governmental organisations, military and intelligence services was seen as key in bringing about sound intervention strategies. Aside from these parties, the communities affected by labour exploitation and trafficking were seen as key agents of change as most returnees are better equipped to educate their communities on the indicators of forced labour. Community based solutions must therefore take centre stage in the discussions on curbing illicit practices.
In sum, there was a tangible sense that a greater need exists for the development of an integrated policy and strategy in order to create proactive measure to combat labour exploitation and trafficking. The importance of training law enforcement officers in order to support multi-agency collaboration and the sharing of information from tax officials, to labour directorates, coastguards, local police, fisheries directorate, and other government agencies was highlighted. Thus, there is work to be done on both the domestic and international fronts. In this regard, states should encourage support inter-agency co-operation. Moreover, an international fisheries crime working group should be created to develop multi-disciplinary solutions.
Managing global seafood supply chains
The role of auditing and built in diagnostic business reporting processes were seen as crucial in ensuring sustainable supply chains. The overarching question is determining how to incentivise the adoption of ethical business practices. A panellist suggested that solutions must come from workers and in order to facilitate this, workers must be allowed to mobilise and organise. Certain corporates hinder workers from exercising their right to freedom of association. The challenge furthermore lies in gaining access to unorganised workers. Organised workers are able to open channels of communication with these workers, and this was viewed as a more effective means of identifying labour exploitation. Workers are important watch dogs and will be able to establish a proper communication channel between the various stakeholders.
Regarding the question of developing an ethical supply chain, various levels of intervention are required from the source workers all the way through to the customers. Companies must leverage their internal resources to exert pressure to ensure a sustainable supply chain. With respect to developing traceability in a complex supply chain, it was suggested that an audit be created from the feed vessel level and traceability ought to become the norm. In improving labour conditions in the industry, business must join a coalition of retailers to ensure transparency in the supply chain. The role and support of suppliers was also stressed and, in the view of the panelist, they too ought to form part of the solution in developing a sustainable supply chain. Task forces should also be set up to create vessel level code of conduct and auditing standards.
Lastly, it was noted that broader structural change needs to be effected with the support of multi-agency parties, including business and states. Recognising and developing solutions that link human rights to responsible fishing will be pivotal in effecting this change. In this regard, while businesses have the responsibility to do what they can, for instance, respecting and giving effect to human rights through due diligence and sharing their corporate social responsibility (CSR) footprint, primary responsibility lies with states to protect the rights of these workers.
Remedies
Two major gaps have been identified as obstacles in providing adequate remedies to victims of labour exploitation and human trafficking. The first gap lies in identifying the worker as a victim of trafficking where various barriers present problems in identification. The first is structural in that legislation in a number of countries does not include trafficking as a crime when officially there are skills available to identify trafficking victims. The second is a practical barrier, namely language and the inability to communicate with victims. The second gap is the lack of capacity to provide assistance once the person in question has been identified as a victim of trafficking. With respect to assistance in destination and origin countries, a one size fits all approach was seen as inappropriate and not a long term solution to addressing the needs of the victim. Instead a comprehensive legal framework that establishes improved national and international victim support, complaints and monitoring mechanisms would need to be developed. To bolster the efficacy of these mechanisms the following measures, amongst others, ought to be taken. Firstly, local law enforcement officers would need to be trained in order to be able to identity possible trafficked victims. Once identified, national prosecution processes would need to be adjusted where necessary. In this regard, panellists noted that in many instances criminal justice systems, more specifically the prosecution process itself, are ill-suited to deal with trafficking cases. Problems furthermore arise in the enforcement of court orders relating to repatriation costs and compensation for trafficked victims.
The position of the trafficked victim was also at the centre of discussions, particularly concerning issues relating to access to financial assistance once they return home and the likelihood of their continued involvement in the prosecution process prior to their return. It was stressed that the best interest of the victim must always be the overriding consideration during this process. Another question closely linked to this concerned repatriation costs, specifically, identification of the party best suited to bear the costs, particularly where a country that a victim needs to be repatriated from has minimal resources. A proposal was put forward that fishing companies should pay for repatriation and that it is the role of local police to ensure that the owner of the fishing vessel complies. However, the difficulties in ascertainig the identity of the owner of the fishing vessel, as is currently the case, will most likely present obstacles in this regard.
One panellist was at pains to note that the real causes driving this illegal industry should not be overlooked; these are, inter alia, poverty and the profit-driven mentality of many businesses. A solution addressing this challenge must take account of these underlying causes and must provide solutions that are context-specific. Aside from legal regulation, market driven initiatives are key in driving change and thus private sector investment is crucial. A recurrent proposal echoed throughout the meeting was that all stakeholders, including the private sector, must collaborate and co-ordinate in order to develop concrete solutions. Linked to this is the importance of data-sharing and intelligence gathering. Efforts to close the information gap must be strengthened by providing an information technology based platform to supply and integrate knowledge. There was also a sense of a knowledge gap that exists regarding the different legal framework and procedures. In order to resolve this knowledge deficit, it was suggested that emerging legal agreements, procedures and good practices should be collated and this information ought be disseminated amongst the various stakeholders. Furtermore, training programme would alo need to be established which include human rights issues in discourses on the regulation of the fisheries sector. There is thus a greater need for capacity building and knowledge creation.
Conclusion
The nature of the global fishing industry presents challenges of Herculean proportions in the context of addressing human trafficking in the fisheries sector which demand innovative solutions that can only be realised through concerted and collective efforts on the part of all the social partners. Change however will be slow and halting in the absence of political will and it is pivotal that discussions emanating from such meetings translate to high level engagement with those able to effect real change. Legal and policy frameworks must furthermore integrate a human rights based approach that will deal with forced labour, child labour, freedom of association, discrimination, collective bargaining and other related issues. Resources must also be allocated to combat trafficking. More importantly however is that the real challenge to the elimination of labour exploitation and human trafficking in the fishing sector lies in addressing, the root causes driving this illicit trade, viz. corruption, poverty, high levels of income inequality, climate change and decent work deficits – all factors presently listed in the UNs 2030 Agenda for Sustainable Development. Developing a comprehensive solution that includes measures addressing the root causes of this exploitation is thus an essential and necessary step towards ensuring decent working conditions for all workers, particularly those most vulnerable to exploitation.
