Protecting the Global Fishing Workforce: New International Labor Treaty to Enter into Force
World trade in fisheries and aquaculture secures millions of livelihoods. Today seafood supply chains are highly globalized, with production processes commonly spread across different states and continents. Fishers, who are at the heart of this supply chain, work in some of the harshest and most dangerous working conditions. Over the last decade, the global fishing industry has become notorious for the prevalence of various types of human rights abuse: child labor, forced labor, deceptive labor practices, and human trafficking. The International Labour Organization (ILO) Work in Fishing Convention (C.188) was adopted in 2007 with the aim of revitalizing outdated international labor standards for fishing workers that had been adopted in the mid-twentieth century.
At the end of 2016, C.188 received its tenth ratification, providing the last required ratification for entry into force on November 16, 2017. The 2007 Convention introduces comprehensive labor standards in an industry that employs an estimated 10–12% of the world population and that constitutes one of the most important employment sectors for developing economies. Specifically, C.188 addresses longstanding deficits in international law with respect to the social protection of individuals engaged on commercial fishing vessels. This Insight discusses the principles and rights enshrined in C.188 from the perspective of enhancing the social and environmental sustainability of global seafood supply chains.
Trends in Global Fishing and their Impact on Workers' Rights
The conservation and sustainable use of oceans, seas, and marine resources has become an increasingly prominent concern for the global sustainable development agenda. However, the labor dimension of the maritime realm has not been effectively mainstreamed into the notion of ocean or seafood sustainability. Eco-labeling and fishery certification programs such as the Marine Stewardship Council (MSC) do not directly incorporate labor considerations in their understandings and assessments of “sustainable fishing.” Even though their requirements may explicitly include that certified fisheries comply with all relevant local, national, and international laws, the MSC and other such eco-labels can only provide minimal insight into actual conditions of work within the fisheries they certify.
International cooperation on global fishing reveals to us that the issue of securing fishing workers' rights on the high seas has been largely addressed separately from the more prominent environmental issues of conservation and protection of marine resources. And yet, the sustainability of oceans and global seafood supply chains is deeply rooted in upholding the rights and dignity of the fishing workforce. Global trends in overfishing and illegal fishing that tend to be addressed from a resource protection perspective are often exclusively seen as environmental concerns, even though they are also intimately linked to the increasing hazardousness and deterioration of fishers' working conditions across the globe. While there has been no geographically comprehensive study of the prevalence of human rights abuse in the global seafood sector, human trafficking and forced labor have been thoroughly documented in relation to fisheries in Thailand and the broader Greater Mekong sub-region (comprised of Thailand, Cambodia, Laos, Myanmar, Viet Nam, and China's Yunnan province), whose export markets encompass the largest seafood-importing economies, including the United States, European Union, and Japan.
Conservation measures (such as catch quotas) are being increasingly invoked to protect declining fish stocks from currently unsustainable fishing practices. Due to overexploitation, capture fisheries are forced to extend their activities beyond traditional fishing grounds. With the new mobility of vessels, the fishing “workplace” is moving to more remote and occupationally hazardous environments, with the effect of isolating workers for long periods of time on fishing vessels in international waters and making the task of inspecting vessels and enforcing fisheries and labor regulations more time consuming and cost intensive for states. Technological advances that permit fishing vessels to operate for several months without having to call to port, combined with the increasing use of migrant fishers and the prevalence of informal work agreements and irregular pay systems, have facilitated the systemic abuse of workers employed on global fishing fleets. Other factors that allow fishing vessel owners and operators to evade regulatory oversight include the practice of flagging fishing vessels to countries that have inadequate or weakly enforced labor and environmental protection frameworks and the availability, in some states, of open registries that allow foreign vessels to be registered under shell companies, thus preserving the anonymity of ownership and complicating the question of who assumes vessel inspection responsibilities between overlapping jurisdictions.
Given these circumstances, a comprehensive system to regulate labor standards beyond the physical borders of flag states is critical to ensuring the protection of fishing workers' fundamental rights at the global level. In this regard, the coming into force of C.188 will resolve a significant void in international fisheries law by establishing minimum global labor standards for fishers working on all types of commercial fishing vessels and setting in place inspection, compliance, and enforcement mechanisms for ratifying states to undertake in their capacity as both flag states and port states.
Principles, Rights, and Compliance Under C. 188
The preamble states the Convention's objective "to ensure that fishers have decent conditions of work on board fishing vessels with regard to minimum requirements for work on board; conditions of service; accommodation and food; occupational safety and health protection; medical care and social security." The provisions of C.188 require ratifying states to adopt laws, regulations, or other measures addressing each of these areas and to establish an effective compliance mechanism to monitor implementation.
The Convention applies to all fishers and all commercial fishing vessels, with progressive implementation allowed in the application of its standards to small fishing vessels, certain categories of fishers, and fishing vessels that operate exclusively in rivers, lakes, or canals. However, this flexibility is not permitted for vessels measuring 24 meters in length and over, vessels that remain at sea for more than seven days, and vessels that normally operate beyond the exclusive economic zone (EEZ) of the flag state. As such, no derogations are possible for large fishing vessels and those on international voyages.
C. 188 addresses problematic aspects of the global fishing industry, including a lack of contract protection and deceptive recruitment practices that have undermined fundamental rights as enshrined in the eight core ILO Conventions. Hence, the Convention requires that fishers be provided written work agreements, be paid regularly, and also be provided a means to transmit their pay to families without having to assume any fees. The Convention also clarifies the respective responsibilities of fishing vessel owners, recruitment and placement agencies, and private employment agencies with respect to ensuring the safety of fishers at work. In order to address the widespread injustice of unfair treatment of migrant workers, states are obliged to engage in bilateral and multilateral cooperation towards achieving "progressively comprehensive social security protection for fishers, taking into account the principle of equality of treatment irrespective of nationality."
From the point of view of compliance, C.188 innovates in that not only does it affirm the jurisdictional responsibilities of states to ensure labor law compliance on vessels bearing their flag and to effectively investigate all evidence and complaints of non-compliance, it also introduces the possibility for ratifying states to inspect labor conditions on foreign fishing vessels that call in their ports. While exercising port state control (PSC) is not a mandatory obligation, it is a mechanism that could substantially improve working conditions for fishers worldwide, including those working on vessels flagged to states that have not ratified C. 188. This is because the Convention requires states that exercise PSC to do so in a manner that ensures equal treatment between vessels of states that have ratified the Convention and states that have not. To provide further guidance and promote global harmonization in the practical implementation of inspections carried out under C.188, the ILO has developed detailed guidelines for both flag state and port state inspections.
Another measure that could be invoked by coastal states to ensure decent working conditions on foreign fishing vessels operating in their EEZs is mentioned in ILO Recommendation No. 199 (R.199), which provides supplementary guidance to states in the application of C. 188. Since coastal states exercise enforcement jurisdiction in their EEZs in relation to fisheries regulations, it is possible for these states to integrate fishing labor standards within these normative frameworks and thereby influence conditions of work on foreign fishing vessels. In this respect, Article 55 of R. 199 suggests that in granting authorization to operate in their EEZs, coastal states could require that all foreign fishing vessels comply with labor standards equivalent to the protections provided under the Convention.
By 2016, the Convention received ten ratifications and the Council of the European Union approved a directive domesticating its provisions. Other ILO members are in the process of assessing how their labor laws need to be amended in order to comply with the Convention. Notably, Thailand's Ministry of Labor is engaged in an ongoing ILO project under which it is revising national labor standards in the fishing and seafood sectors with a view to facilitating Thailand's eventual ratification of C.188. In terms of its potential reach, the Convention should be seen as introducing an important global labor standard that can play a role in ensuring the social sustainability of prospective bilateral, regional, and multilateral fisheries agreements or conservation and management regimes—for example, in the context of current international negotiations to prevent unregulated fishing in the Central Arctic Ocean.
The success of the Convention in protecting the global fishing workforce will depend on how it is applied by ratifying states and whether it is widely ratified or domesticated by those countries where employment in capture fisheries is associated with human rights abuse. Beyond introducing legally-binding labor standards for ratifying states, such as written labor contracts, the entry into force of C. 188 signals the potentially greater use of responsive mechanisms by which ratifying states will be able to influence labor conditions on board all foreign vessels arriving at their ports or operating within their EEZs. In essence, the Convention fills a longstanding regulatory gap in the realm of protecting fishing workers engaged in global seafood chains and finally brings international labor law solidly into the fold of ocean governance and sustainability.
About the Author: Sabaa Khan is a Senior Researcher at the Center for Climate Change, Energy and Environmental Law, University of Eastern Finland. She holds a doctorate in law from McGill University and is a Member of the Barreau du Québec.
 International Labour Organization (ILO), Caught at Sea: Forced Labour and Trafficking in Fisheries (2013), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_214472.pdf [hereinafter Caught at Sea].
 ILO Convention Concerning Work in the Fishing Sector (No. 188), June 14, 2007, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C188.
 This includes the Minimum Age (Fishermen) Convention, 1959 (No. 112); the Medical Examination (Fishermen) Convention, 1959 (No. 113); the Fishermen's Articles of Agreement Convention, 1959 (No. 114); and the Accommodation of Crews (Fishermen) Convention, 1966 (No. 126).
 Marine Stewardship Council, MSC Fisheries Standard, version 2.0 (Oct. 1, 2014), https://www.msc.org/documents/scheme-documents/fisheries-certification-scheme-documents/fisheries-standard-version-2.0.
 Environmental Justice Foundation, Pirates and Slaves: How Overfishing in Thailand Fuels Human Trafficking and the Plundering of our Oceans (2015), http://ejfoundation.org/sites/default/files/public/EJF_Pirates_and_Slaves_2015_0.pdf; Environmental Justice Foundation, Broken Promises: Why Thailand Should Stay on Tier 3 in the 2015 US Trafficking in Persons report (2015), http://ejfoundation.org/sites/default/files/public/EJF_Thailand_TIP_Briefing.pdf.
 ILO, Employment Practices and Working Conditions in Thailand's Fishing Sector (2013), http://www.ilo.org/dyn/migpractice/docs/184/Fishing.pdf; Nicola Pocock et al., Labour Trafficking Among Men and Boys in the Greater Mekong Subregion: Exploitation, Violence, Occupational Health Risks and Injuries, PLOS ONE (Dec. 16, 2016), http://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0168500&type=printable; Cathy Zimmerman, et al., International Organization for Migration and London School of Hygiene and Tropical Medicine, Health and Human Trafficking in the Greater Mekong Subregion (2014).
 Caught at Sea, supra note 1.
 Judith Swan, Fishing Vessels Operating under Open Registers and the Exercise of Flag State Responsibilities, FAO Fisheries Circular No. 980 FIPL/C980 (2002), available at http://www.fao.org/3/a-y3824e.pdf.
 Id. pmble, ¶ 1, 14.
 Id. Part I, arts. 3,4.
 The eight core ILO Conventions applicable to all ILO member states are the Forced Labour Convention, 1930 (No. 29); Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Equal Remuneration Convention, 1951 (No. 100); Abolition of Forced Labour Convention, 1957 (No. 105); Discrimination (Employment and Occupation) Convention, 1958 (No. 111); Minimum Age Convention, 1973 (No. 138); and Worst Forms of Child Labour Convention, 1999 (No. 182).
 C. 188, supra note 2, Part VI, arts. 34–36.
 Id. art. 43(5) provides that "complaints may be submitted 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."
 Id. art. 44.
 ILO, Guidelines on Flag State Inspection of Working and Living Conditions on Board Fishing Vessels (Sept. 25, 2015), http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/normativeinstrument/wcms_428592.pdf; ILO, Guidelines for Port State Control Officers Carrying out Inspections Under the Work in Fishing Convention, 2007 (No. 188) (Feb. 19, 2010), http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/normativeinstrument/wcms_177245.pdf.
 ILO, Work in Fishing Recommendation (No. 199), June 14, 2007, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:::NO:12100:P12100_ILO_CODE:R199:NO.