A trade restrictive measures for labour violations, the case of the TUNAGO 61 / by Francisco Blaha

The use of trade restrictive measures (TREMs), as “trade sanctions“ enacted by a market-state has so far been limited to the IUU side of fisheries, either by closing the market to a country (as in the case of the EU with the red cards) or to individual vessel on IUU blacklist. 

picture from MarineTraficc.com

picture from MarineTraficc.com

These measures to certain extent have worked, even if just in the case of bringing general awareness to the issues at hand. But something that is new is to use the same system for closing the market fish from a vessel in relation to forced labour issues. 

This is quite momentous, as it adds a “end market” tool to an area where compliance based on the multiple players involved has been difficult to set up (these entries discuss the issue)

Last week the US Custom and Border Protection Agency (CBP) issued a withhold release order against tuna and tuna products from the Tunago No. 61 based on information obtained by CBP indicating tuna is harvested with the use of forced labour. The order is effective immediately as of the date of issuance.  

Under 19 U.S.C. § 1307 it is illegal to import into the United States goods made, in whole or in part, by forced labour, including convict labour, forced child labour, and indentured labour. CBP issues withhold release orders when information available reasonably indicates that imported merchandise is in violation of this statute.

The order will require detention at all U.S. ports of entry of tuna and any such merchandise manufactured wholly or in part by the Tunago No. 61. Importers of detained shipments are provided an opportunity to export their shipments or demonstrate that the merchandise was not produced with forced labour.

This is good news, I wrote about the case that may have started the process that got to this outcome. Tunago is well known name in fisheries and notorious flag-hoppers in between Vanuatu and Panama.

Whatever a vessel does abroad and whatever happens on board, is ALWAYS the responsibility of the flag state (and this is strongly engrained in international legislation - see at the bottom of the page) therefore here Vanuatu is ultimately the responsible state for whatever happens in that vessel. Doesn't matter if the owner, and masters of the vessel has no direct relation to anyone or anything in Vanuatu... if Vanuatu can’t take responsibility do to the many constrains they face, they should not be an open registry for fishing vessels. I really hope that this (and surely more forthcoming measures like this one), make Vanuatu rethink their fishing vessels flagging policy or invest in better control systems. 

Yet on the other side there is also responsibility by the Taiwanese vessels owners industry who consistently exploits the weaknesses of the Vanuatuan government and the attempt to whitewash (and spin off) the name of their vessels and their practices by participating in "Fisheries Improvement Projects".

And to a point from the taiwanese government, albeit its not officially their vessel or crew, its new regulations apply to their nationals even if outside their territory. See under Development 4: The incorporation of a labour component in a Taiwan fisheries legislation in that blog entry.

Human rights issues and IUU fishing are not the same and do not “automatically” go hand by hand, yet they work in parallel and exploit the same voids available.

Good one the US CBP for taking this measure, and I wish the best to the team working on more identification of these cases.

Additional information, including how to submit information to CBP may be found at www.cbp.gov/trade/trade-community/programs-outreach/convict-importations. and https://www.cbp.gov/trade/programs-administration/forced-labor.

Flag State responsibilities have been defined in International agreements since the United Nation Convention on the Law of the Sea (UNCLOS). Under Article 94 of UNCLOS, flag states must oversee the operations of fishing vessels flying their flags and “effectively exercise its jurisdiction and control in administrative, technical and social matters”. The 1995 United Nations Fish Stocks Agreement also mandates this and obliges flag states to investigate “immediately and fully” alleged violations of conservation and management measures (CMM) and apply sanctions “adequate in severity to be effective in securing compliance… and deprive offenders of the benefits accruing from their illegal activities”. The 1995 Code of Conduct for Responsible Fisheries also mandates an approach consistent with this for flag states, but further strengthens and broadens the requirements for the enforcement regimes.