The connection between forced labour and human trafficking and fisheries, particularly illegal, unregulated and unreported fishing, is vile and highly profitable, and may be found in most parts of the world. A fishing vessel can be a place of abuse more extreme than any other onshore. At sea, it is out of sight for long periods of time, with little or no opportunity for fishers to escape. The working and living conditions on board are often simply described as inhumane. Combating labour exploitation in fisheries raises many complex multijurisdictional challenges, most of which, if not all, could be circumvented if States were serious about addressing this phenomenon. This article examines these challenges and the relevant international legal framework, particularly the 2007 Work in Fishing Convention and the 2014 Protocol to the Forced Labour Convention, against the background of the law of the sea and international human rights law.
The link between forced labour and human trafficking and fisheries and, in particular illegal, unregulated and unreported fishing (IUUF),1 can be seen in most parts of the world,2 even though it is not possible to determine the precise number of fishers and other workers involved in IUUF, or of those forced to work in this activity.3 It is generally estimated that IUUF represents approximately US$4.2 billion to US$9.5 billion revenue/year, which corresponds to roughly 20 per cent of the total catch. Of this revenue, US$1.25 billion relates to IUUF on the high seas with the remainder occurring in exclusive economic zones (EEZ), 50 per cent of which is in developing countries.4
Consequently, the combination of forced labour and human trafficking at sea and IUUF benefits from a high degree of impunity and reward. This is the result of important governance gaps and the general lack of rule of law in the fishing industry, where corruption, bribery and the association with other criminal activities are frequent.
It is also generally acknowledged that victims of forced labour and human trafficking at sea endure greater abuse than those onshore. At sea, a fishing vessel is the prison and place of abuse for victims, being out of sight of any authority for long periods of time, months and even years, with little or no opportunity for escape. This is possible through the use of bunkering and of support vessels to unload catch, amongst other tasks, which allow vessels not to enter into port and therefore elude controls.
A study carried out by the United Nations Office on Drugs and Crime sought to identify the presence of transnational organised crime and other criminal activity in the fishing industry, with a focus also on trafficking in persons. It found that there is a connection between the two and that fishers trafficked were subject to ‘a cruel and inhumane treatment in the extreme’, and that children are frequently trafficked in the fishing industry. It also concluded that there is a connection with IUUF and that fishing vessels are used for a wide range of criminal activities, such as smuggling migrants, illicit traffic in drugs and weapons and acts of terrorism.5 Further, there are other aspects that should not be overlooked, namely that forced labour and human trafficking at sea also constitute a threat to the safety of the vessel and for all those persons on board, as well as potentially to the marine environment.
Likewise, when dealing with human trafficking and IUUF it is also necessary to recognise the particular risks faced by women and girls in fishing communities, both traditional and commercial.6 Indeed, while the overwhelming majority of those forced to work on board fishing vessels engaged in IUUF are men, women and girls are trafficked and forced to work in the processing of the unloaded catch. Confined in closed fishing communities, they are frequently trapped in a cycle of sexual abuse or what has been referred to as ‘fish-for-sex’. There have also been reports of women being forced to work on board a vessel engaged in IUUF. In most cases these women were also subjected to sexual abuse.7
The Legal Framework and Its Limitations
The traditional response to forced labour and human trafficking at sea is based on the principle of flag State pre-emption. This places the fate of victims first and foremost in the effective exercise of jurisdiction by the relevant flag State, with all the intricacies and shortcomings that this implies. This can be generally summarised in a single phrase: ‘out of sight, out of mind’.8
In order to combat labour exploitation in fisheries and improve the working and living conditions on board fishing vessels, the International Labour Organization (ILO) adopted the Work in Fishing Convention, 2007 (Convention No. 188)9 and the Protocol of 2014 to the Forced Labour Convention, 1930 (the Forced Labour Protocol).10 Yet, despite of their importance, the number of ratifications of these international legal instruments is still low.11 Other relevant international legal instruments are the United Nations Convention against Transnational Organized Crime (UNCATOC)12 regarding States’ obligations to prevent and combat transnational organised crime, and, in the case of human trafficking, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol).13
The ILO has taken significant steps to increase the number of ratifications of Convention No. 188 and the Forced Labour Protocol and to achieve their effective implementation, particularly in regions more vulnerable to the presence of forced labour and human trafficking in fisheries. This was the case of the ILO project focused on assessing the compliance of the regulatory framework on labour protection in fisheries in Indonesia, the Philippines and Thailand.14 One of the objectives was seeing that Indonesia and the Philippines ratify Convention No. 188 and the Forced Labour Protocol, because Thailand had already ratified the Forced Labour Protocol and was in the process of ratifying Convention No. 188, which it eventually did.
While working as an independent consultant for the ILO on this project, it was possible to experience first-hand the legal and practical difficulties in combating forced labour and human trafficking in fisheries. The main task was to examine the legal and practical performance of these States as port, flag and coastal State, and as transit and labour-sending States. This entailed two fieldwork missions in Jakarta and Manila, to hold discussions with government officials and other relevant national authorities and agencies, and with representatives of employers and fishers.
During the fieldwork missions the discrepancy between reality and national laws, and between these and Convention No. 188 and the Forced Labour Protocol were both obvious and overwhelming. Overall, there was a general lack of protection of national fishers at home, as well as of those working abroad and on board foreign-flag vessels. The protection of foreign fishers working in these countries and on board ships flying their flags was also wanting. There was an absence of efficient complaint and reporting mechanisms, which are essential to alert national authorities to situations of abuse. This resulted in a significant lack of information on the number of victims and situations of forced labour and human trafficking in fisheries, which is also familiar in most parts of the world where this phenomenon takes place. Also noted was the need for stakeholder participation regarding the development and implementation of legislation and policies, particularly to encourage compliance, self-regulation and legally binding due diligence efforts by stakeholders.
The connection between forced labour and human trafficking in fisheries, particularly IUUF, is vile and highly profitable, and no State can claim that its nationals or its territory are immune from it, or its consequences, namely the sale and purchase of fish resulting from this practice. Yet, States seem reluctant to seriously tackle and combat this phenomenon by addressing the many complex multijurisdictional challenges that it poses and bridging the existing enforcement gaps that prevent the effective protection of fishers. The existing situation could also be greatly improved if States would ratify and effectively implement Convention No. 188 and the Forced Labour Protocol. Yet, thus far, most States have chosen not to do so, despite bold statements condemning IUUF and the presence of forced labour and human trafficking in fisheries.
The Work in Fishing Convention, 2007 (No. 188)
The ILO adopted Convention No. 188 and the non-binding Work in Fishing Recommendation (No. 199)15 in order to codify and integrate the existing labour standards applicable to fishers in one international instrument and to develop new and minimum standards for working and living conditions.16 Fishers had been excluded from important legal protections applicable to seafarers, such as the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers17 and the 2006 Maritime Labour Convention.18
Convention No. 188 codified the minimum labour standards applicable to fishers and reversed the tendency of competitive lowering of working and living conditions between domestic legal regimes.19 It promotes decent work in fisheries, in conditions of freedom, equity, security and human dignity,20 and allows for progressive implementation of the ILO standards.
The Convention is applicable to all fishers and all fishing vessels engaged in commercial fishing operations.21 It covers small-scale fishers and fishing vessels, as well as industrialised commercial maritime fishing vessels.22 It imposes stricter standards for vessels of 24 metres in length and over, and those that remain at sea for more than three days or that navigate at a distance exceeding 200 nautical miles, or beyond the ‘outer edge of the continental shelf’.23 Vessels that fall outside these criteria are subject to more flexible standards.
Convention No. 188 allows a State to exclude limited categories of fishers or fishing vessels from its requirements. However, such exclusions should only be used ‘where the application of the Convention raises special problems of a substantial nature in the light of the particular conditions of service of the fishers or of the fishing vessels’ operations concerned’. In such cases, the State must take measures to progressively extend the requirements to all categories of fisheries and fishing vessels.24
Under Convention No. 188, several obligations for regulation and enforcement rest with the ‘competent authority’ as stipulated in national law, namely the ‘minister, government department or other authority having power to issue and enforce regulations, orders or other instructions having the force of law’.25 Consequently, States must clearly identify which is the competent authority in every situation in order to avoid overlaps and gaps.
A key provision of Convention No. 188 was the definition of sixteen years old as the minimum age for working on board a fishing vessel, with the possibility of a lowered minimum age of fifteen years old for those who are no longer subject to compulsory schooling and who are engaged in vocational training in fishing.26 If the nature of the activities assigned to the worker, or the circumstances in which they area carried out, are likely to jeopardise the health, safety or morals of young people, then the Convention stipulates a minimum age of eighteen years old.27 Compliance with this provision beyond the letter of national law may not be a straightforward matter, since it is common to see children working in fisheries in many parts of the world. Moreover, there will not necessarily be a valid birth certificate available to verify the age of the fisher. As such, it is necessary that States adopt measures to ensure compliance with this important rule.
Indeed, ensuring access to documentation and avoiding document fraud are keys to the effective implementation of the Convention. This is the case, for example, of the requirement that fishers have a medical certificate attesting their fitness,28 or that all fishing vessels carry a crew list that is provided or communicated ashore.29 In these cases, mechanisms should be in place to ensure authenticity and that documents are kept updated, particularly in the case of crew lists.
Other relevant provisions include the obligation for flag States that vessels are manned for safe operation and navigation, and that fishers are given rest of sufficient length to ensure safety and health.30 In this regard, each State must adopt laws, regulations or other measures addressing occupational safety and health and accident prevention.31
Flag States must also legislate to ensure that fishing vessels have accommodation on board that is of sufficient size and quality and appropriately equipped for the service of the vessel and the duration fishers have to spend living on board.32 Although fishing vessel owners must provide fishers with sufficient nutritious food and potable water at no cost to the fishers,33 there are documented situations where fishers have been made to pay for the accommodation and food. Likewise, under the pretext that there is some form of partnership between employers and fishers, fishers have been made to cover these costs.
Other advances of Convention No. 188 are the express recognition of the right of fishers to medical treatment ashore and the right to be taken ashore, as well as the requirement that fishing vessels carry appropriate medical equipment and supplies.34 The Convention also acknowledges the right of every fisher (ordinarily resident in the territory of one State) to social security benefits.35
Regarding specifically the fisher’s work agreement, Convention No. 188 expressly determines that flag States must adopt laws, regulations and other measures requiring fishers to have the protection of a work agreement that is comprehensible and consistent with the provisions of the Convention. Accordingly, fishers must be given the opportunity to review and seek advice on the terms and conditions of the work agreement and be provided with a copy of the same. A fisher’s work agreement must also be carried on board the fishing vessel and be available to the fisher and to other concerned parties.36
The express reference to a fisher’s work agreement is extremely relevant, since, in many parts of the world, the relation between employers and fishers is often perceived as a form of partnership. In these cases, it is important to ensure that there is a ‘real’ fisher’s work agreement and that fishers are fully aware of their rights. In some cases fishers are paid with part of the catch, creating an economic incentive for working longer hours with limited periods of rest. In addition to the breach of the fishers’ rights, these situations constitute a serious threat to the safety of operations on board and to navigation.
Convention No. 188 also includes rules applicable to the recruitment and placement of fishers, private employment agencies and the payment of fishers,37 and safeguards the right of fishers to repatriation in certain circumstances.38 These obligations are also relevant in the context of labour originating States with respect to the recruitment and placement of migrant fishers to avoid fraudulent practices. Indeed, recruitment and, in particular, the fair recruitment of migrants, in connection with fisheries is at the forefront of the international agenda, particularly in some parts of the world, for example, Southeast Asia.39 For instance, in Thailand, there were reports of practices such as the use of labour brokers and formal, informal and unregistered intermediaries who often required workers to pay a recruitment fee or enter into debt bondage.40
Overall, Convention No. 188 emphasizes the responsibilities of flag States to effectively exercise its jurisdiction and control, establishing a system for ensuring compliance with the requirements of the Convention, as well as all other relevant legislation.41
The Convention also reinforces the role of port State control. A port State party, upon receiving a founded complaint or obtaining evidence that a ship does not conform to the requirements of the Convention, may prepare a report addressed to the flag State, with a copy to the Director-General of the ILO, and may take measures necessary to rectify any conditions on board that are clearly hazardous to safety or health.42 Consequently, the port State may take measures against a vessel voluntarily calling into one of its ports, including vessels flying the flag of a State that is not party to the Convention, without prejudice of the aforementioned safeguards. In this regard, there is no distinction if the vessel calling into port is flying the flag of a State party or a non-State party. Any such distinction would result in granting more favourable treatment to flag States that have not ratified Convention No. 188. Thus, on the one hand, Convention No. 188 does not make mandatory the preparation of said report or the adoption of measures by port States, having due regard for flag States;43 on the other hand, it seeks to prevent the situation whereby more favourable treatment is granted to flag States that have not ratified the Convention.44
It should be recalled that inspections of vessels are essential to ascertain the working and living conditions on board. Accordingly, fishing vessels remaining at sea for more than three days, which are 24 metres in length (and over), or normally navigate in maritime areas beyond the national jurisdiction of the respective flag State, must carry a valid document stating the vessel has been inspected and complies with the prescribed living and working conditions on board.
States parties must adopt laws, regulations or other measures to implement the Convention’s provisions and enforce them pursuant to the exercise of their own jurisdiction. For this reason, in examining the compliance of national laws with Convention No. 188, it is first necessary to evaluate the compliance and implementation of the prescriptive standards set out in the Convention, as well as the progressive implementation within a foreseeable timeline of the flexible standards.
Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29)
The concept of forced labour is defined in Convention No. 29 as ‘all 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’. The key elements set out are coercion and lack of consent.45
Human trafficking, on the other hand, means
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.46
This long and broad definition includes three constituent elements: action, means and purpose.47
There are, of course, situations where there might be an overlap of legal concepts, such as, for example, with human trafficking and debt bondage, which has been described as the ‘most extensive form of slavery in the world today’.48 Although not every person subjected to forced labour is a victim of human trafficking, every victim of human trafficking is likely to be subjected to forced labour or some other form of violence, such as sexual abuse. Above all, people subjected to human trafficking, forced labour or debt bondage should be perceived as victims, not criminals.
Building on the efforts that led to Convention No. 29, the Forced Labour Protocol underlines the ‘urgency of eliminating forced labour and compulsory labour in all its forms and manifestations’ and recalls in the Preamble that States have the obligation ‘to make forced or compulsory labour punishable as a penal offence, and to ensure that the penalties imposed by law are really adequate and are strictly enforced’. It also refers expressly in the Preamble to human trafficking as a ‘subject of growing international concern and [one that] requires urgent action for its effective elimination’.
The Forced Labour Protocol requires States to undertake measures to prevent forced labour and protect victims and ensure their right of access to justice and remedies, including compensation. It recognises the important role of international cooperation and national coordination with stakeholders, such as employers’ and workers’ organisations, in preventing and eliminating forced labour.
It is important to criminalise forced labour and human trafficking, and to implement effective measures for the identification, release, protection, recovery and rehabilitation of victims.49 Since situations of lack of effective protection of labour rights can easily be mistaken for forced labour, it is important for all States (source, transit and destination) to provide education and information on preventing and identifying situations of forced labour or human trafficking. Likewise, it is crucial to create efficient complaint mechanisms and to adopt effective law enforcement measures.50
Similar to Convention No. 188, the Forced Labour Protocol also makes reference to the ‘competent authority’ in connection with the protection of victims. It mentions that States shall take the necessary measures to ensure that the competent authorities are entitled not to prosecute or impose penalties on victims for their involvement in unlawful activities, such as IUUF.51 The reference to ‘competent authority’ is also found with regard to the determination of the regulations that implement the measures pursuant to the Forced Labour Protocol, which must be based on consultation with employers’ and workers’ organisations.52
The Forced Labour Protocol further addresses the protection of migrant workers from possible abusive and fraudulent practices during recruitment and placement process.53 It also refers to due diligence measures to prevent and respond to the risks of forced labour, both for the public and private sectors. Therefore, the issues of recruitment and placement of fishers set out in Convention No. 188 must also be integrated in the context of the Forced Labour Protocol, as part of the measures adopted by States (as source, transit and destination States) to prevent forced labour, namely through education and providing information against fraudulent practices.
Also in connection with Convention No. 188, inspections of fishing vessels can help identify possible situations of forced labour or human trafficking, pursuant to the Forced Labour Protocol. The Protocol recognises the importance of States making efforts to ensure the strengthening of labour inspection services and other services responsible for the implementation of the Protocol.54 Indeed, the Protocol recognises the importance of the principle of cooperation between States for the prevention and elimination of all forms of forced labour.55 In the case of fisheries, this obligation must be understood as encompassing flag, port and coastal States, as well as labour-sending, transit and destination States. Similar to Convention No. 188, repatriation is also relevant in the context of the Forced Labour Protocol as part of the measures for the protection and recovery of victims of forced labour and to provide assistance and support.56
Lastly, it should be noted that the measures put forward by the Protocol are not exhaustive and that States may adopt additional measures in order to fulfil the obligation to take effective measures to prevent and eliminate the use of forced labour.57 These measures should address the root causes and factors that heighten the risks of forced labour, including education and information sharing, particularly for those most at risk, as well as for employers.58
The Law of the Sea
Under the United Nations Convention on the Law of the Sea (LOSC),59 the sea is divided into areas that are subject to some measure of jurisdiction by coastal States, and areas that cannot be claimed by or allocated to any State. The first group comprises the territorial sea, internal waters, international straits, archipelagic waters, contiguous zone, EEZ and the continental shelf.60 The measure of jurisdiction enjoyed by States in these areas varies. In some cases (for example, the territorial sea and internal waters) they have rights of sovereignty; in others (such as the continental shelf, the EEZ and, where established, the contiguous zone) they may exercise only limited sovereign and jurisdictional rights. The second group of maritime zones, which are beyond the national jurisdictional reach of any State, comprises the high seas and the Area.61
The rights of foreign ships or vessels – terms not defined and used interchangeably in the LOSC – vary from one maritime zone to the other. Most importantly, a foreign ship enjoys the right of innocent passage through the territorial sea and archipelagic waters on condition that passage is innocent;62 that is, that passage is not prejudicial to the peace, good order or security of the coastal State and that the ship does not engage in any threat or use of force against its sovereignty, territorial integrity or political independence, or in any other manner in violation of the principles of international law embodied in the United Nations Charter.63 There is no general right of innocent passage in internal waters; there, the coastal State may board a foreign ship and enforce its laws against the vessel and those on board.64
Notwithstanding certain limited rights of coastal States, such as sovereign rights to explore, exploit, conserve and manage the living resources in the EEZ, and sovereign rights for the purpose of exploring the continental shelf and exploiting its natural resources, the EEZ and the continental shelf are still mostly subject to the two key principles that define the high seas: freedom of navigation and the jurisdiction of the flag State. These principles are subject to exceptions,65 the most established of which is the universal jurisdiction to seize ships engaged in piracy. Although States must cooperate in the repression of piracy, there is no obligation, only a right, to intercept and board foreign ships on suspicion of being engaged in piracy.66 In cases of slavery – a concept that it has been argued is not sufficiently broad to include human trafficking67 – and unlawful broadcasting, States have jurisdiction to arrest the ship.68 In the event of illicit traffic in narcotic drugs and psychotropic substances, the lawful interdiction of trafficking ships depends on the request of the respective flag State.69 Warships have a general right of visit in respect of ships without nationality.70
In the case of pollution or threat of pollution on the high seas, the principle is also that of flag State jurisdiction. Port and coastal States may adopt some measures with respect to foreign ships, but only in certain circumstances and provided that the relevant safeguards are adopted.71 Another exception to the principle of exclusive flag State jurisdiction on the high seas allows a State to pursue a foreign ship suspected of having violated its laws and regulations.72 The limited right of hot pursuit gives teeth to coastal States’ jurisdictional prerogatives as non-abiding ships might otherwise find refuge upon reaching the high seas.73
Historically, port State jurisdiction is closely connected with access to ports and the legal regime on the protection and preservation of the marine environment included in Part XII of the LOSC.74 The negotiations on this important part of the Convention were particularly concentrated on vessel-source pollution as a result of increased environmental awareness in the wake of the 1967 Torrey Canyon and 1978 Amoco Cadiz disasters. It was clear that there was a need for the improvement and enforcement of preventive measures in the light of a rapidly expanding shipping sector and new developments in the field of marine pollution control. This called for the adoption of more stringent requirements for ships entering or nearing States’ waters in order to eliminate substandard ships. The LOSC reflects the compromise reached between flag State pre-emption and the enlargement of port and coastal States’ enforcement powers. Before the LOSC entered into force, flag State pre-emption was the prevailing aspect regarding the exercise of powers of enforcement with respect to ships.75
There have been significant developments since the LOSC regarding IUUF. Sadly, these developments do not focus on forced labour or human trafficking at sea.76 Notwithstanding the absence in the law of the sea of provisions dealing specifically with the protection of human rights at sea, including those of fishers, reinforces the importance of Convention No. 188, particularly regarding the compliance and enforcement powers of flag and port States.
Other Relevant Legal Instruments
Despite the absence in the law of the sea of provisions dealing specifically with the protection of human rights at sea, the law of the sea, and in particular the LOSC, is not a self-contained regime and is certainly not impermeable to other legal regimes. Therefore, in order to address any lack of action by flag States and strengthen measures to combat forced labour and human trafficking and bridge the existing enforcement gap, it is necessary to go beyond the law of the sea.77 In this case, the relevant legal instruments addressing transnational crime, in particular human trafficking, are UNCATOC and the Trafficking Protocol.
The purpose of UNCATOC is to promote cooperation in order ‘to prevent and combat transnational organised crime more effectively’.78 It addresses matters concerning liability, prosecution, adjudication and sanctions, and confiscation, seizure, disposal of confiscated proceeds of crime or property.79 It also includes several elements concerning judicial cooperation, such as extradition, transfer of sentenced persons, mutual legal assistance, joint investigations, transfer of criminal proceedings, protection of witnesses and victims, and encouraging criminals to cooperate with law enforcement authorities.80
Pursuant to UNCATOC, States must criminalise participation in an organised criminal group, including the laundering of the proceeds of crime.81 This is particularly relevant in relation to the implementation of measures to combat organised crime based on the principle ‘follow the money’. This is extremely pertinent given that States often fail to act when criminal groups use their territory to harbour assets and proceeds from human trafficking. UNCATOC also provides for international cooperation between States for the purpose of confiscating the proceeds of crime, property, equipment or other instrumentalities used in or destined for use in offences covered by the Convention.82 UNCATOC further establishes the obligation for States to criminalise and adopt measures against corruption.83
In relation to human trafficking, State parties must criminalise ‘trafficking in persons’ under national law84 and establish policies, programmes and other measures to prevent and combat human trafficking and to prevent re-victimisation, with an emphasis on women and children, among other relevant provisions.85 The Trafficking Protocol also sets out in some detail the extent of the assistance and protection and status that States must grant victims of human trafficking86 and rules on the repatriation of victims.87 Similar to the UNCATOC, the Trafficking Protocol provides for cooperation between States, namely through information exchange and training.88 Other aspects include the use of border controls to prevent and detect human trafficking, security and control of documents.89
Importantly, the Trafficking Protocol does not include specific enforcement measures addressing trafficking in persons by sea. By contrast, the Protocol against the Smuggling of Migrants by Land, Sea and Air,90 which also supplements UNCATOC, includes measures to prevent the smuggling of migrants by sea and stipulates that a flag State that reasonably suspects that a vessel is engaged in the smuggling of migrants by sea may request the assistance of other States in suppressing the use of the ship for that purpose.91 A State that reasonably suspects that a vessel is engaged in the smuggling of migrants by sea may so notify the flag State, request confirmation of the vessel’s registry and, if confirmed, request authorisation from the flag State to take appropriate measures with regard to that vessel.92 In these cases, the flag State may authorise the requesting State to board and search the vessel and take appropriate measures with respect to the ship and persons and cargo on board, as authorised by the flag State. These actions are without prejudice to State responsibility for lawful conduct.93
In the light of the particular risks faced by women and girls in fishing communities, the special protection afforded by international human rights law concerning gender-based violence against women is also relevant, namely the United Nations Convention on the Elimination of All Forms of Discrimination against Women.94 This requires States to take into account the risks women face in fisheries, including the significant threat of being trafficked and the role women play in the support of their families, and to take all appropriate measures to ensure the application of the Convention.95 Also relevant are the United Nations Convention on the Rights of the Child96 and the ILO Worst Forms of Child Labour Convention, 1999 (No. 182), which expressly includes in the term ‘the worst forms of child labour’ the trafficking of children.97
In fishing, apart from the spatial sovereignty in the territorial sea,98 coastal States have sovereign rights regarding the exploration and exploitation, and conservation and management of living marine natural resources in the EEZ, and may allow other States to have access to fish in certain circumstances and subject to its laws and regulations.99 In their EEZs, coastal States enforce their laws and regulations, including boarding and inspecting ships, arresting ships and crews, and undertaking judicial proceedings with respect to its sovereign rights to explore, exploit, conserve and manage the living resources.100 Coastal States also have the right of hot pursuit in the case of violations in their EEZ of its laws and regulations.101
However, the increasing number of vessels at sea and the growing facilitation of movement of persons and goods across borders, present a serious challenge to individual flag States in regulating and monitoring all vessels flying its flag. Indeed, the law of the sea requires that there is a ‘genuine link’ between the flag State and the vessel, thus rejecting the notion of ‘flags of convenience’, whereby no such link or real connection exists as flag States are unwilling or unable to exercise effective jurisdiction.102 These challenges for all States are conversely opportunities for human traffickers and unscrupulous operators who exploit fishers.
The obligations as generally provided in UNCATOC and specifically in the Trafficking Protocol are also applicable on board vessels flying the flag of a State party. Flag States that are parties to UNCATOC and the Trafficking Protocol must exercise jurisdiction, adjudicating and enforcing claims regarding human rights abuses or violations on board ships. They must also safeguard the right of victims to obtain reparation through civil litigation and take appropriate measures to investigate and offer remedies for wrongful conduct. Flag States must also recognise that the serious violation of a particular human right and the gross or systematic failure by a non-state actor to comply is actionable directly in domestic courts for breach of international law. Indeed, the lack of recognition under national law is not a justification for violations or failure to protect human rights.
Yet, under the current international regime, other States have very limited powers of enforcement when a flag State fails to fulfil its obligations under the Trafficking Protocol. In these cases, should a State fail to safeguard human rights under domestic law, or failed to protect them, the principle of State responsibility to protect should be applicable. Indeed, the basis of the responsibility to protect lies in the obligations inherent to the concept of sovereignty, which in turn embraces the responsibilities to prevent and to react. The concept of sovereignty must be viewed both as control and responsibility and taken into account in the context of international accountability.103 As such, States remain responsible for lack of due diligence and for allowing a permissive environment that gives rise to human rights abuses.104
The multijurisdictional nature of forced labour and human trafficking in fisheries at sea raises difficult legal challenges due to the limits of flag and coastal State jurisdictions. There is a vacuum in enforcement when a coastal State or a flag State with jurisdiction is unable to enforce their jurisdiction.105
Yet, the existing fragmentation of legal regimes applicable to the protection of people at sea should not hinder their effectiveness. Although the law of the sea and international human rights law are essential, neither is sufficient on its own. Thus, promoting the ‘systemic integration’ will help to avoid gaps and to maximise efficiency of the existing fragmented legal rules.106
For example, a coastal State with jurisdiction to intercept a vessel suspected of forced labour and human trafficking or IUUF in its territorial sea, or to enforce its laws and regulations relating to living resources in the EEZ, would be unable to exercise its enforcement powers if the relevant flag State claims to exercise its jurisdictional pre-emption but fails to do so in practice.107 Likewise, a flag State of a vessel engaged in human trafficking or IUUF in the territorial sea or EEZ of a coastal State cannot intervene if such conduct is tolerated, because any enforcement action in the territorial sea or EEZ of the coastal State without its authorisation would be a breach of the rights of the coastal State. In both situations, the result is that international law is ineffective, despite existing legal rules allowing for the exercise of jurisdiction and enforcement powers. For this reason, international cooperation is essential to protect human rights at sea.
Overall, there is a lack of coordination and joint efforts by flag, port and coastal States to effectively tackle the threat of forced labour and human trafficking at sea, as well as, between source, transit and destination States of victims of human trafficking and the States of the nationality of operators/human traffickers or States where these harbour their assets. In order to achieve efficient and comprehensive cooperation between States, it is of the utmost importance that States adopt and fully implement Convention No. 188 and the Forced Labour Protocol in order to improve living and working conditions on board fishing vessels. Further, States should criminalise, prosecute and convict those who benefit from forced labour and human trafficking, including of children, in fisheries and those who take advantage of the existing enforcement gaps.
Obligation to Protect
The exercise of jurisdiction and enforcement by flag States is the most effective system for ensuring compliance and protection. Consistent with Convention No. 188 and the Forced Labour Protocol, flag States are responsible for the lack of due diligence and for allowing the permissive environment that gives rise to human rights abuse.108 Therefore, flag States must adopt the necessary measures to protect the rights of fishers and stop potential harm, as previously mentioned.109 The rights of national and migrant fishers under international law must be fully recognised and protected, and victims must not be criminalised.
In most cases, failure to comply with these obligations is generally attributed to the lack of means to conduct investigations and for effective adjudication. Non-compliant States are frequently reluctant to enforce the law and to act.110 In some instances, States may resort to certain procedures or limitations that restrict the effective protection of human rights against abuses by non-State actors.111 In this regard, it should be noted that attempts have also been made to recognise the existence of corporate responsibility to respect human rights in all situations and independently of States’ duties or capabilities.112
Nonetheless, flag States cannot justify the violation of international human rights or their failure to protect them based on the lack of means or on the fact they are committed by non-nationals. States are ultimately responsible for the protection of such rights, even when means are not in place to do so,113 or when perpetrators are of a different nationality.114
However, despite flag State pre-emption and responsibility, the multijurisdictional challenges facing the effective implementation of Convention No. 188 and the Forced Labour Protocol require cooperation between flag, port and coastal States, as well as between source, transit and destination States. Indeed, all are subject to the responsibility to protect.
Obligation to Cooperate
Cooperation is essential to combat forced labour and human trafficking in fisheries. Consequently, cooperation must be intensified between States and national agencies – particularly regarding law enforcement operations and the timely sharing of information and intelligence – as well as between the aforementioned and stakeholders, and between the stakeholders themselves. In this regard, the organisation of stakeholder representation is the key to maintaining a constructive dialogue and ultimately achieving the implementation at the regional level of the working and living conditions set out in Convention No. 188 and to preventing and combating situations of forced labour, as provided for in the Forced Labour Protocol.
Cooperation also avoids the race to the bottom between different jurisdictions that will ultimately create the conditions favourable to those benefiting from deteriorating living and working conditions or forced labour or human trafficking in fisheries. Indeed, cooperation is indispensable to address the circumstances that are favourable to organised crime, such as the presence of corruption, bribery and obstruction of justice. Law enforcement cooperation and the sharing of investigative tools and evidence and intelligence are particularly important, for the purpose of enforcement and prosecution. These include understating the financial circuit (‘follow the money’) and establishing cooperation between the relevant entities, as well as developing capacity building, sharing technology and ensuring that States commit the necessary resources. Most significant would be the undertaking of joint efforts to strengthen port State control and implement measures and undertake inspections that include the verification of living and working conditions or the use forced labour and human trafficking in fisheries.
Another important element is establishing regional cooperation between supply and destination countries. Regional cooperation must also be aligned with measures concerning the management of international fish stocks and to combat IUUF adopted by regional fisheries management organisations, as well as with actions developed by other international bodies and agencies, including those dealing with law enforcement.115
In addition to combating the root causes of forced labour and human trafficking in fisheries, which is a legal obligation but also an international commitment,116 the ratification of Convention No. 188 and the Forced Labour Protocol is essential to ensure adequate and dignified working and living conditions for fishers, and to combat the tendency towards competitive lowering of labour standards for fishers between domestic legal regimes. It also allows for the indispensable harmonisation between States and regions.
Yet, ratification must be followed by effective implementation, compliance and enforcement, in order to eliminate the discrepancy between reality and national laws, and tackle the existing multijurisdictional challenges and enforcement gaps.
Fundamentally, ensuring adequate and dignified working and living conditions for fishers is a crucial aspect for safeguarding the rule of law at sea and protecting human rights against transnational crime in the fishing industry. In this respect, the adoption of corporate and consumer responsibility measures can be effective and complement States’ efforts, as they can help reduce the economic incentive of IUUF and of maintaining inhumane living and working conditions on board fishing vessels. Indeed, it is time that all parties of the food supply chain got serious about combating forced labour and human trafficking in fisheries.
The definition of illegal, unregulated and unreported fishing (IUUF) can be found in Section 3.1 of the Food and Agriculture Organization of the United Nations (FAO), International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 2001 (IPOA-IUUF) available at http://www.fao.org/3/a-y1224e.pdf; all websites accessed 27 October 2020 unless otherwise noted.
US Department of State, Trafficking in Persons Report (June 2019) available at https://www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons-Report.pdf.
United Nations General Assembly (UNGA), Res 64/72 (4 December 2009), Sustainable fisheries, UN Doc A/RES/64/72, 12, para 61; UNGA, Res 67/79 (11 December 2012), Sustainable fisheries, UN Doc A/RES/67/79, 12–15, paras 48–68; UNGA, Res 68/71 (9 December 2013), Sustainable fisheries, UN Doc A/RES/68/71, 12–15, paras 49–72. These resolutions recognise the link between IUUF and transnational organised crime. Also see United Nations Office on Drugs and Crime (UNODC), Commission on Crime Prevention and Criminal Justice, Outcome of the 2nd International Symposium on Fisheries Crime, 10–11 October 2016, Yogyakarta, Indonesia, UN Doc E/CN.15/2017/CRP.3, 17 May 2017. The report stated that ‘fisheries crime should be treated as a transnational organized crime as long as it carries the elements of: (i) a structured group, (ii) committing serious crime – an offence punishable by a maximum deprivation of liberty of at least 4 years or more, (iii) gaining material/financial benefit or profit-oriented, (iv) activities done in more than one country’ (4, para 13). See Eve de Coning and Emma Witbooi, ‘Towards a new ‘fisheries crime’ paradigm: South Africa as an illustrative example’ (2015) 60 Marine Policy 208–215, at pp. 210–211. Also see INTERPOL, ‘INTERPOL warning on human trafficking links to the fishing industry’, 4 May 2017, available at https://www.interpol.int/fr/Actualites-et-evenements/Actualites/2017/INTERPOL-warning-on-human-trafficking-links-to-the-fishing-industry.
High Seas Task Force, Closing the Net: Stopping Illegal Fishing on the High Seas, Final report of the Ministerially-led Task Force on IUU Fishing on the High Seas (Governments of Australia, Canada, Chile, Namibia, New Zealand and the United Kingdom, WWF, IUCN, and the Earth Institute at Columbia University, 2006) 3, 18, available at https://www.oecd.org/sd-roundtable/papersandpublications/39375276.pdf. See also, Marine Resources Assessment Group (MRAG), Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries: Final Report (MRAG, London, July 2005) available at http://webarchive.nationalarchives.gov.uk/20090422181306/http://www.dfid.gov.uk/pubs/files/illegal-fishing-mrag-report.pdf. The latter study estimates that the total first sale value of IUUF worldwide was US$2.4–9.5 billion in the period 2003–2005 (at p. 16).
UNODC, Transnational Organized Crime in the Fishing Industry (United Nations, Vienna, 2011) 3, Chapter 2, available at https://www.unodc.org/documents/human-trafficking/Issue_Paper_-_TOC_in_the_Fishing_Industry.pdf. See also, INTERPOL, Global Fisheries Enforcement (INTERPOL, Lyon, 2018); North Atlantic Fisheries Intelligence Group (NA-FIG) and INTERPOL, Chasing Red Herrings: Flags of Convenience, Secrecy and the Impact on Fisheries Crime Law Enforcement (NA-FIG, Oslo, 2017) 13–14, both available at https://www.interpol.int/Crimes/Environmental-crime/Fisheries-crime.
V Becker-Weinberg, ‘Human trafficking and illegal, unreported, unregulated fishing: Legal and gender implications’ in I Papanicolopulu (ed), Gender and the Law of the Sea (Brill/Nijhoff, Leiden, Boston, 2019) 229–259. See also FAO, Promoting Gender Equality and Women’s Empowerment in Fisheries and Aquaculture (FAO, Rome, 2016) 8, available at http://www.fao.org/3/a-i6623e.pdf. See also, Committee on the Elimination of Discrimination against Women (CEDAW), Report of the Committee on the Elimination of Discrimination against Women, Eleventh Session, UN Doc A/47/38(Supp), 19 February 1993, General recommendation No. 19 violence against women, para 14, available at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19.
‘Fish-for-sex is a phenomenon that has been observed in many different developing countries but particularly in sub-Saharan Africa. It is an arrangement between female fish traders and fishermen, whereby women secure their supply of fish by making (part of) the payment in sexual services’. FAO and International Labour Office (ILO), Guidance on Addressing Child Labour in Fisheries and Aquaculture (FAO and ILO, 2013) 20, available at http://www.fao.org/3/i3318e/i3318e.pdf. See also, K Stoebenau, L Heise, J Wamoyi and N Bobrova, ‘Revisiting the understanding of “transactional sex” in sub-Saharan Africa: A review and synthesis of the literature’ (2016) 168 Social Science & Medicine 186–197; C Béné and S Marten, ‘Women and fish-for-sex: Transactional sex, HIV/AIDS and gender in African fisheries’ (2008) 36(5) World Development 875–899.
International Transport Workers’ Federation, Out of Sight, Out of Mind: Seafarers, Fishers and Human Rights (ITWF, London, 2006).
Convention (No. 188) concerning work in the fishing sector (Geneva, 14 June 2007, in force 16 November 2017) reg no I-54755 (6 December 2017).
Protocol of 2014 to the Forced Labour Convention, 1930 (Geneva, 11 June 2014, in force 9 November 2016) 53 ILM 1227 [Forced Labour Protocol].
As of October 2020, only 18 States had ratified Convention No. 188, and 45 States had ratified the Forced Labour Protocol. The list of ratifications of Convention No. 188 is available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312333:NO; the list of ratifications for the Forced Labour Protocol is available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:3174672.
United Nations Convention against Transnational Organized Crime (Palermo, 15 November 2000, in force 29 September 2003) 2225 UNTS 209 [UNCATOC].
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Crime (Palermo, 15 November 2000, in force 29 September 2003) 2237 UNTS 319 [Trafficking Protocol].
The SEA Fisheries Project, sponsored by the United States Department of State and the International Labour Organization, available at https://seafisheriesproject.org.
ILO, R199 – Work in Fishing Recommendation, 2007 (No. 199), available at http://www.ilo.ch/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:R199.
ILO, The Work in Fishing Convention, 2007 (No. 188): Getting On Board (ILO, Geneva, 2013). See also ILO, Conditions of Work in the Fishing Sector: A comprehensive standard (a Convention supplemented by a Recommendation) on work in the fishing sector (ILO, Geneva, 2003).
International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (London, 7 July 1978, in force 28 April 1984) 1361 UNTS 190, Article 3(b).
Maritime Labour Convention, 2006 (Geneva, 23 February 2006, in force 20 August 2013) 2952 UNTS 3, Article 2(4). On international standards, compliance and enforcement mechanisms of seafarers’ rights, see D Fitzpatrick and M Anderson (eds), Seafarers’ Rights (Oxford University Press, Oxford, 2005) 39–161.
L Carballo Piñero, International Maritime Labour Law (Springer, Heidelberg, 2015) 12–13, 57–58.
ILO, Toolkit for Mainstreaming Employment and Decent Work (ILO, Geneva, 2007), available at http://www.ilo.org/wcmsp5/groups/public/---dgreports/---exrel/documents/publication/wcms_172609.pdf.
Convention No. 188 (n 9), Article 2.
ILO, Guidelines for Port State Control Officers Carrying Out Inspections under the Work in Fishing Convention, 2007 (No. 188) (ILO, Geneva, 2012); ILO, Guidelines on Flag State Inspection of Working and Living Conditions On Board Fishing Vessels (ILO, Geneva, 2017).
Convention No. 188 (n 9), Article 4(2).
Ibid., Article 3.
Ibid., Article 1(b).
Ibid., Article 9. There is, however, no definition of vocational training in the Convention.
Ibid., Articles 9(3) and (4).
Ibid., Articles 10, 11, 12.
Ibid., Article 15.
Ibid., Articles 13, 14. For any fishing vessel, Convention No. 188 provides that the minimum hours of rest shall be no less than ten hours in any 24-hour period and 77 hours in any seven-day period. For vessels 24 metres in length and over, the competent authority shall establish a minimum level of manning for the safe navigation of the vessel, specifying the number of fishers required and their qualifications.
Ibid., Articles 31–33.
Ibid., Articles 25, 26, 28 and Annex III.
Ibid., Articles 25, 27. Articles 2 and 3 of Annex III of Convention No. 188 provide that these requirements are only applicable to new, decked vessels and not the existing fleet. Variations to Convention No. 188 requirements can also be made if the vessels generally remain at sea for less than 24 hours and fishers do not live on board the vessel in port.
Convention No. 188 (n 9), Articles 29, 30.
Ibid., Articles 34–39. The Convention refers to the following key principles: fishers and their dependants are entitled to benefit from social security protection; there should be no distinction between national and migrant fishers (as long as they are ordinarily resident in the territory of the relevant State), and between fishers and other workers (employed/self-employed); all fishers should have progressive comprehensive social security protection and protection of acquired (or in the course of acquisition) social security rights; and there should be international cooperation between States.
Ibid., Articles 16, 17, 18, 20. Fishers’ work agreements must include the particulars specified in Annex II of Convention No. 188. However, Annex II mentions at the outset that certain particulars may be excluded from a fisher’s work agreement if it is considered unnecessary because that specific matter is regulated in another manner by national laws or regulations, or a collective bargaining agreement. The purpose of this exception should be perceived as the avoidance of duplication, and not the easing of the requirements of the terms and conditions of fishers’ work agreements.
Ibid., Articles 22, 23, 24.
Ibid., Article 21. The Convention mentions the following circumstances: expiration or termination by the fisher or the fishing vessel owner for justified reasons of the fisher’s work agreement; if the fisher is no longer able to carry out the duties or cannot be expected to carry them out in the specific circumstances; and in case of transferred fishers for the same reasons from the vessel to the foreign port.
ILO, Work in Fishing in the ASEAN Region: Protecting the Rights of Migrant Fishers (ILO, Bangkok, 2014) 4–5. See also Asia Development Bank Institute (ADBI), Organisation for Economic Co-operation and Development (OECD), and ILO, Safeguarding the Rights of Asian Migrant Workers from Home to the Workplace (ADBI, Tokyo; OECD, Paris; ILO, Bangkok, 2017) 23–35.
S Chantavanich, S Laodumrongchai and C Stringer, ‘Under the shadow: Forced labour among sea fishers in Thailand’ (2016) 68 Marine Policy 2.
Convention No. 188 (n 9), Articles 40–44.
Ibid., Article 43(2). Such a complaint may be brought forward by a fisher, a professional body, an association, a trade union or generally any person with an interest in the safety of the vessel, including an interest in safety or health hazards to the fishers on board. See Article 43(4) of Convention No. 188.
Ibid., Article 43(3).
Ibid., Article 44.
Convention concerning Forced or Compulsory Labour (ILO No. 29) (Geneva, 28 June 1930, in force 1 May 1932) 39 UNTS 55, Article 2.
Trafficking Protocol (n 13), Article 3(a).
AT Gallagher, The International Law of Human Trafficking (Cambridge University Press, Cambridge, 2010) 29–42.
Siddharth Kara defines slavery as ‘a system of dishonoring and degrading people through the violent coercion of their labor activity in conditions that dehumanize them’. S Kara, Modern Slavery: A Global Perspective (Columbia University Press, New York, 2017) 8, 177.
Forced Labour Protocol (n 10), Article 3.
Ibid., Articles 1(1), 4(1).
Ibid., Article 4(2).
Ibid., Article 6.
Ibid., Article 2(d).
Ibid., Article 2(c)(ii).
Ibid., Article 5.
Ibid., Articles 1(1), 3.
Ibid., Article 1(1).
Ibid., Articles 1(1), 2, 5.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 3 [LOSC].
Ibid., Articles 2, 8, 34, 46, 33, 55, 76.
Ibid., Articles 1(1), 86.
Ibid., Articles 17, 18, 24(1), 52(1), 54. Similarly, Articles 38, 39 and 45 of the LOSC recognise the rights of all ships to enjoy transit passage in straits used for international navigation.
Ibid., Articles 19(1), 19(2)(a).
The exception is provided in Article 8(2) of the LOSC, ibid.
Ibid., Articles 92(2), 58(1), (3), 78(2), 87(1)(a) and (2). See also The Case of the SS Lotus (France v. Turkey), 1927, PCIJ Series A, No. 10, paras 64–65.
LOSC (n 59), Article 105.
D Guilfoyle, ‘Article 99’ in A Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (CH Beck Verlag, Munich, 2017) 732; see also Gallagher (n 47) 177–191.
LOSC (n 59), Articles 99, 109(3), 110. The slavery exception emerged in the nineteenth century and had been definitively accepted by the beginning of the twentieth century. It played an important role in the emergence of modern humanitarianism, see G Verdirame, The UN and Human Rights (Cambridge University Press, Cambridge, 2011) 36–47.
LOSC (n 59), Article 108(2); United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna, 20 December 1988, in force 11 November 1990), 1582 UNTS 95, Article 17 (cfr. Article 27(1)(d) of the LOSC). See WC Gilmore, ‘Drug trafficking by sea: The 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances’ (1991) 15 Marine Policy 183.
LOSC (n 59), Article 110(1)(d).
Ibid., Articles 19(2)(h), 21(1)(f), 25, 27(5), 42(1)(b) and (2), 56(1)(b)(iii) and (2), 87(2), 94(3)(a), 194(3)(b) and (4), 211, 218, 220, 224–227. See V Becker-Weinberg, ‘Article 223’ to ‘Article 233’, in Proelss (ed) (n 67) 1527–1566.
LOSC (n 59), Article 111(1).
RC Reuland, ‘The customary right of hot pursuit onto the high seas: Annotations to article 111 of the Law of the Sea Convention’ (1992–1993) 33 Virginia Journal of International Law 557, 589; see also CH Allen, ‘Doctrine of hot pursuit: A functional interpretation adaptable to emerging maritime law enforcement Technologies and practices’ (1989) 20 Ocean Development and International Law 309, 312–321; N Klein, Maritime Security and the Law of the Sea (Oxford University Press, Oxford, 2011) 109–114. On the origin and development of the doctrine of hot pursuit, see CJ Colombos, The International Law of the Sea (David McKay Co, New York, 1967) 168–175.
LOSC (n 59), Article 218.
UNCLOS III, Memorandum by the President of the Conference on Document A/CONF.62/WP.10 (UN Doc A/CONF.62/WP.10/ADD.1) (1977), OR VIII, 65; see also Third Committee UNCLOS III, 31st Meeting (UN Doc A/CONF.62/C.3/SR.31) (1976), OR VI, 100; Third Committee UNCLOS III, 32nd Meeting (UN Doc A/CONF.62/C.3/SR.32) (1976), OR VI, 106.
These include the Agreement for the Implementation of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 4 August 1995, in force 11 December 2001) 2167 UNTS 3 [1995 Fish Stocks Agreement]; Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Rome, 24 November 1993, in force 24 April 2003) 33 ILM 968 [Compliance Agreement]; Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Rome, 22 November 2009, in force 5 June 2016) reg no. I-54133 (26 January 2017); Code of Conduct for Responsible Fisheries, 31 October 1995, available at http://www.fao.org/docrep/013/i1900e/i1900e.pdf. On flag State compliance under the FAO Code of Conduct for Responsible Fisheries, see FAO, Voluntary Guidelines for Flag State Performance (FAO, Rome, 2015) 1–13, available at http://www.fao.org/3/a-i4577t.pdf. See also, 2005 Rome Declaration on Illegal, Unreported and Unregulated Fishing, Rome, 12 March 2005, available at http://rpoaiuu.org/wp-content/themes/modality/images/pdf/regulation/non_legally/roma_declarations.pdf; and The Rome Declaration on the Implementation of the Code of Conduct for Responsible Fisheries, adopted by the FAO Ministerial Meeting on Fisheries, Rome, 10–11 March 1999, available at http://www.fao.org/docrep/005/X2220E/X2220E00.HTM. Although not a legally binding instrument, the FAO Code of Conduct is supplemented by the measures provided in the LOSC, the FAO Compliance Agreement, the 1995 Fish Stocks Agreement and the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUUF), see FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (FAO, Rome, 2001), available at http://www.fao.org/3/a-y1224e.pdf; FAO, Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Technical Guidelines for Responsible Fisheries 9 (FAO, Rome, 2002) 4–5, available at http://www.fao.org/3/a-y3536e.pdf.
I Papanicolopulu, ‘The Law of the Sea Convention: No place for persons?’ (2012) 27 International Journal of Marine and Coastal Law 867–874, at p. 873.
UNCATOC (n 12), Article 4.
Ibid., Articles 10–14.
Ibid., Articles 24–26.
Ibid., Article 5. UNCATOC defines ‘organized criminal group’ in Art 2(a). The laundering of the proceeds of crime is referred in Articles 6 and 7. See also Article 15 on States establishing jurisdiction.
Ibid., Article 13.
Ibid., Articles 8–9.
Trafficking Protocol (n 13), Article 5.
Ibid., Article 9.
Ibid., Articles 6, 7.
Ibid., Article 8.
Ibid., Article 10.
Respectively Articles 11, 12 and 13 of the Trafficking Protocol, ibid. See Gallagher (n 47) 79–89.
Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Crime (Palermo, 15 November 2000, in force 28 January 2004) 2241 UNTS 507.
Ibid., Article 8(1).
Ibid., Article 8(2).
Ibid., Article 9. See P Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (Springer Verlag, Berlin, 2007) 120–122.
Convention on the Elimination of All Forms of Discrimination against Women (New York, 18 December 1979, in force 3 September 1981) 1249 UNTS 13 [CEDAW]; Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (New York, 6 October 1999, in force 22 December 2000) 2131 UNTS 83. See Committee on the Elimination of Discrimination against Women, General recommendation No. 19 (11th session, 1992) violence against women (UN Doc CEDAW/A/47/38), para 14, available at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19; UN Declaration on the Elimination of Violence against Women, UN Doc A/RES/48/104, 20 December 1993, Article 2(b) which states: ‘Violence against women shall be understood to encompass, but not be limited to, the following: … b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution’.
CEDAW (n 94), Articles 6, 14. See also Committee on the Elimination of Discrimination against Women, General recommendation No. 34 on the rights of rural women, UN Doc CEDAW/C/GC/34, 4 March 2016, 3–4, 8; FAO, CEDAW – Convention on the Elimination of All Forms of Discrimination against Women: A Tool for Gender-sensitive Agriculture and Rural Development Policy and Programme Formulation. Guidelines for Ministries of Agriculture and FAO (FAO, Rome 2013) 14–19, available at http://www.fao.org/docrep/017/i3153e/i3153e.pdf; and FAO, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (FAO, Rome, 2015) 2–3, available at http://www.fao.org/3/a-i4356e.pdf.
Convention in the Rights of the Child (New York, 20 November 1989, in force 2 September 1990) 1577 UNTS 3.
ILO, C182: Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour Convention (Rome, 17 June 1999, in force 19 November 2000), Article 3, available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C182.
LOSC (n 59), Article 2; see also Art 21(1)(d) of the LOSC regarding the right of innocent passage.
Ibid., Articles 56(1)(a), 61, 62, 69, 70. Article 58(1) of the LOSC excludes the freedom of fishing mentioned in Article 87. On the fisheries regime of the LOSC, see RR Churchill and V Lowe, The Law of the Sea (Manchester University Press, Manchester, 1999) 289–323.
LOSC (n 59), Article 73(1).
Ibid., Article 111(2). On the rights and obligations of coastal States in the EEZ under the LOSC for taking the necessary measures to prevent, deter and eliminate IUUF, see Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 4, paras 103–119, 124, 129.
LOSC (n 59), Article 91(1).
International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Report of the ICISS (International Development Research Centre, Ottawa, 2011) 12.
Case concerning Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168, paras 178–180. In this case, the Court found that the duty of States to protect individuals from violence extends to a positive obligation to protect people from violence at the hands of that State’s military or of non-State actors, even abroad.
I Papanicolopulu, ‘A missing part of the Law of the Sea Convention: Addressing issues of State jurisdiction over persons at sea’ in CH Schofield, S Lee and MS Kwon (eds), The Limits of Maritime Jurisdiction (Brill/Nijhoff, Leiden, Boston, 2013) 387–404, at pp. 393–394.
I Papanicolopulu, International Law and the Protection of People at Sea (Oxford University Press, Oxford, 2018) 84–87, 99.
LOSC (n 59), Articles 27(1) and (3), 73. See R Barnes, ‘Article 27’ in Proelss (ed) (n 67) 234; J Harrison, ‘Article 73’ in Proelss (ed), ibid., 556.
V Becker-Weinberg, ‘Flag States’ liability for wrongful acts by private military and security companies on board ships’ in HN Scheiber, C Esposito, J Kraska and MS Kwon (eds), Ocean Law and Policy: 20 Years under UNCLOS (Brill/Nijhoff, Leiden, Boston, 2016) 220–248, at pp. 239–247.
Ibid. Also see UNGA, Res 60/147 (16 December 2005), Basic principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc A/RES/66/147.
UNGA, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, J Ruggie. Business and human rights: further steps towards the operationalisation of the ‘protect, respect and remedy’ framework, UN Doc A/HRC/14/27, 9 April 2010, para 18 [Ruggie Report]. See also Report of the High Commissioner for Human Rights on her Office’s consultation on operationalising the framework for business and human rights, Human Rights Council, 14th Session, UN Doc A/HRC/14/29, 16 April 2010; UNGA, Report of the United Nations Commissioner on Human Rights on the sectoral consultation entitled ‘Human rights and the financial sector’, 16 February 2007, UN Doc A/HRC/4/99, 6 March 2007.
Y Ronen, ‘Human rights obligations of territorial non-State actors’ (2013) 46 Cornell International Law Journal 21–50.
Ruggie Report (n 110), paras 64–65; see also UN Office of the High Commissioner for Human Rights, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (United Nations, New York, 2012).
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1970, p. 3, para. 33.
The M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999, p. 10, para 106.
See (n 76).
The eradication of forced labour and human trafficking is a key element of the 2030 Agenda for Sustainable Development. UNGA Res 70/1 (25 September 2015), Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc A/RES/70/1. The 2030 Agenda identifies altogether 17 goals. The most relevant are Goal 5 ‘Achieve gender equality and empower all women and girls’ (‘5.2 Eliminate all form of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation’), Goal 8 ‘Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all’ (‘8.7 Take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms’), Goal 14 ‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’ (‘14.4 By 2020, effectively regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices and implement science-based management plans, in order to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics’), and Goal 16 ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’ (‘16.2 End abuse, exploitation, trafficking and all forms of violence against and torture of children. … 16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime. 16.5 Substantially reduce corruption and bribery in all their forms’).