The complexities around decent work conditions and safety at sea on fishing boats / by Francisco Blaha

 the undervalued key people of our industry

the undervalued key people of our industry

Further from my last post where I talked about my own experience working at sea, partly motivated by the fact that I may be involved in the Vigo Dialogue process and a personal interest (sparked by some outrageous events like this one) as to gain a more profound understanding of the labour and safety realities in fisheries.

Coming from pure commercial fisheries and then compliance background this a broadening step in my career even if it overlaps (to a point) issues of IUU fishing. This “extra step” wasn't one I was sure to take, yet, as usual, a conversation with my kids has been illuminating… “Papa, you always say that you don't work with fish, your work with the people that work with fish… so this is it”… and they are right, I always say that and I need to live up to my word.

So, I’m here just telling my take on VERY complex issue, so if you spot a conceptual mistake, please let me know! As Oscar Wilde said: “I’m not young enough to know everything”

An important element to understand is that there are various legal frameworks on crewing that are mixed on board, partly because they are hard to separate, but yet they are very different. One is around forced labour, slavery, abuses, non-payments, etc. and the other is the safety component. Because as I said many times, fishing is the most dangerous job in the world, by far.

Despite more awareness and improved safety practices, more people are fishing now than ever before, and this worldwide increase (in many cases involving people not from fishing nations – i.e. many Nepalese work in fishing vessels) has contributed to a rise in the number of fishers' deaths. Exact figures are hard to come by since reporting is not always consistent.

Preliminary, conservative estimates of fatalities in fishing are now over 32 000 people annually.  The number of fishers injured or suffering from work-related illnesses is much higher. The fatalities and accidents have major impacts on fishers' families, fishing crews and fishing communities.

Yet how does being safe from accidents, links to getting paid on time or not being in forced labour? Well… there is not an easy answer unfortunately.

As in fisheries, there are plenty of international agreements and voluntary standards that vary in their scope and adoption). Let's start with the ones at the global level: 

The ILO International Labour Organization and the International Maritime Organization (IMO) have established a number of binding legal instruments to improve fishers’ safety and working conditions; the IMO’s Torremolinos Protocol and the IMO’s Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F) which entered into force in March 2013, as well as non-binding recommendations and codes, some of which were developed jointly between the ILO, the Food and Agriculture Organization (FAO) and the IMO.

The ILO has started this process through the adoption of the Work in Fishing Convention, 2007 (No. 188). This seeks to ensure decent standards for all fishers regarding conditions of service, accommodation and food, occupational safety and health protection, as well as medical care and social security. The Convention came into force in November las year when the 10th country ratified it. The Convention is supplemented by the accompanying Work in Fishing Recommendation (No. 199)  as well as two sets of Guidelines for flag States and port States carrying out inspections under the Convention.

Yet the slow pace of ratification of conventions inhibits effective control of safety and labour standards in the fisheries sector, and undermines important opportunities to prevent and detect instances of abuse on board.

 And then there is the 2012 Cape Town Agreement (CTA),adopted by the International Maritime Organization (IMO), outlines fishing vessel standards and includes other regulations designed to protect the safety of crews and observers and provide a level playing field for industry. 

The CTA updates, amends, and replaces the Torremolinos Protocol of 1993, relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977. Neither the Torremolinos convention nor the protocol will enter into force themselves, but the CTA reflects provisions contains on those.

Once in force, the CTA will set minimum requirements on the design, construction, equipment, and inspection of fishing vessels 24 meters or longer that operate on the high seas. Its entry into force would empower port States to carry out safety inspections that could be aligned with fisheries and labor agencies, to ensure transparency of fishing and crew activities. The treaty consists of minimum safety measures for fishing vessels that mirror the International Convention for the Safety of Life at Sea (SOLAS)—an internationally binding treaty on safety for merchant vessels that entered into force in 1980. It also calls for the harmonised fisheries, labor, and safety inspections.

The CTA will enter into force 12 months after at least 22 states with an aggregate 3,600 (China alone gets to this number!!) fishing vessels of at least 24 meters in length operating on the high seas have expressed their consent to be bound by it. To date, 10 countries have ratified the agreement, so we still have a way to go.

Until the CTA enters into force, there are no mandatory global safety regulations for fishing vessels.

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My friends at PEW published recently an excellent explanation on the CTA and its linkages to the IUU side (which is another different topic!). A lot of emphases is being given into linking this safety at sea instruments with the FAO Port State Measures Agreement (PSMA), which is an area I work a lot, since vessels at some stage need to come to port, and there they can be inspected. 

Still, you can be in a very safe boat and being in forced labour while fishing illegally, or fishing illegally, while being paid well, in a safe or unsafe boat… or all the combinations you want around this.

Yet in general, terms, when you are dodgy… you pretty much dodgy all across the board.

International investigations have shown that some migrant workers seeking employment overseas have been tricked with false promises of jobs on land, but end up toiling in quite terrible working conditions on board unsafe fishing vessels and most probably involved in IUU activities in the high seas

And while not a rule, we all increasingly recognise that in most IUU listed fishing vessels bad working conditions, forced labour, poor safety standards are pretty much the standard. 

Operators who under-report catch or fish illegally are less likely to provide their crews with adequate labour conditions, training, or safety equipment, and more likely to fish in hazardous weather. To minimise upfront costs, their vessels might have  inadequate equipment or inappropriate modifications and might operate for extended periods without undergoing inspections or safety certifications. 

So the ILO, the IMO and FAO promote the synchronised implementation of these three instruments The PSMA’s aim is to ensure that catch to unload is legal, the C188’s to make sure that the working conditions for crews are good, and they can leave if unhappy and the CTA to make sure the vessel is safe to working out there. 

The safety side of a vessel may not be seen as an issue related to working conditions, but believe me is a key issue… you need to be alive to be paid.

To ensure that vessels are safe, their design, construction, and equipment must be inspected and surveyed. This may be carried out by a flag State agency, or by a delegated authority such as a surveyor or classification society. The CTA states that a vessel’s lifesaving appliances, radio installations, structure, machinery, and equipment must be inspected before it is put into service and at intervals not exceeding five years. Details of the surveys will be made available in an International Fishing Vessel Safety Certificate. If a vessel has been exempted, its operator must complete an exemption certificate and make it available on board for examination at all times. 

The Agreement has a “no more favourable treatment” clause (Article 4[7]). This means that all vessels entering a port of a State that is a party to the Agreement would be subject to the same inspection standards—even if their flag State hasn’t ratified or acceded to it. This allows States to control all vessels entering their ports, raising global safety standards. 

But this latest is obviously part of the problem, you as a country need to got it sorted before you start looking into others, and not many have, or more importantly… not many want to. 

Yet at the end of the day, it comes ideally to flag state living up to the expected standards, after all, under international law a vessel is a territorial extension of the state that flagged it and all rules should apply on board, from safety or the vessels to labour conditions (and fishing legally). And that does not happen… so we need to find alternatives

Either from the port state (as in fisheries), but also there is also scope for nations to act on their own as coastal States, New Zealand, for example, applies its social and labour laws to all fishers operating within its Exclusive Economic Zone. (We had Korean flagged vessels fishing under joint ventures in NZ waters, their ill treatment and forced labour conditions of their Indonesian crews made the media, yet was little that could legally be done at the time. This brought into law the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill, requiring labour conditions similar to those expected for NZ nationals were imposed. As a result, many vessels didn't come back)

My approach to this would be to thinking that work it from two parallel angles: a) On one side regulatory frameworks, international agreements under flag, coastal, and port state jurisdiction, and b) on the other private sector/ due diligence, since at the end of the day Consumers in key rich market states are would not be keen to buy if there are doubts on the human cost of their fish. So the importers have the chance to influence the international supply chains on raising vessel safety standards and labour conditions (and hopefully support that with price difference) 

Yet as I said before, and I say it again my guiding principle is that "we need to shift the basis of the discourse and screening from attempting to prove or to disprove forced labour conditions in supply chains toward establishing system fundamentals for human rights due diligence"