Trapped at sea. Using the legal and regulatory framework to combat trafficking at sea.

Once again, we welcome Rebecca Surtees from the NEXUS Institute. This post is adapted from “Trapped at sea. Using the Legal and Regulatory Framework to Prevent and Combat the Trafficking of Seafarers and Fishers”, published in 2013 in the Groningen Journal of International Law. Vol. 1, No. 2: Human Trafficking. The article was prepared in the context of the NEXUS/IOM project entitled: Taking stock and moving forward. Considering methods, ethics and approaches in trafficking research and data collection, funded by U.S. Department of State’s Office to Monitor and Combat Trafficking in Persons (J/TIP). The original article is also available at www.NEXUSInstitute.net and www.WarnathGroup.com.

Recognition of the diversity of trafficking for forced labour in recent years has included increased attention to exploitation within the seafaring and commercial fishing industries. It is clear, based upon our research, not only that human trafficking takes place, but that such cases are aided by sector-specific aspects that heighten levels of risk and vulnerability for seafarers and fishers that may lend themselves to abuses, such as isolation at sea, lax regulation, oversight and enforcement, and limited contact with authorities on land and at sea.  Trafficked seafarers and fishers in various regions of the world are exposed to a range of hardships, including: the lack of basic necessities like food and water for extended periods; substandard and often inhumane conditions; long work hours, sometimes days on end, with only a few minutes of break in this time; lack of any compensation; restricted or no freedom of movement; and violence against them.

Given that research by NEXUS Institute has documented a spectrum of abuse against seafarers and fishers as well as a context of heighted risk and vulnerability, greater understanding is needed of the full range of abuse at sea experienced by seafarers and fishers – including cases that rise to the level of human trafficking.

Addressing exploitation in these sectors requires an effective and appropriate transnational legal and regulatory framework, which is enforced across jurisdictions. Understanding the various legal and regulatory opportunities to prevent and combat trafficking at sea is an essential starting point for future discussion and intervention.

International law that may be used to combat trafficking at sea falls generally into three areas:

1) International anti-trafficking law: including human rights law as it applies to trafficking-related exploitation. Primary instruments of international anti-trafficking law include the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol) and the Council of Europe Convention on Action Against Trafficking in Human Beings (CoE Convention);

2) International maritime law: the body of laws, conventions and treaties that govern international private business or other matters involving ships and shipping; and

3) The international law of the sea: the body of public international law that primarily draws on the United Nations Convention on the Law of the Sea (UNCLOS); almost universally recognised as establishing the regime of law and order in the world’s oceans and seas.

Understanding the laws that can be used to improve the situations of fishers and seafarers requires parsing these complex bodies of international law relevant to trafficking at sea.

“Trafficking at sea”, in the context of this discussion, involves seafarers and fishers undertaking at-sea activities, including the transport of cargo, fishing, fish processing and transportation while on vessels, rafts, fishing platforms or otherwise offshore. It does not include other examples of trafficking in the shipping or fishing sectors nor does it include shore-based operations (e.g. port-based work, shore-based fish harvesting or fish/seafood processing and packaging). The definition of a fisher is found in the ILO Work in Fishing Convention (subsequently referred to as the WIF Convention); in lay terms, a fisher is any individual who is a member of the crew on board a fishing vessel. This differs from a seafarer, who according to the Maritime Labour Convention (subsequently referred to as MLC) is “any person who is employed or engaged in any capacity on board a ship to which this Convention applies”. The MLC applies to all ships, publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing.

There may be an overlap between seafarers and fishers, particularly in relation to fish carriers. For example, in our study of trafficked seafarers from Ukraine, a number of men were trafficked on vessels engaged in illegal crabbing in the waters off of Russia. The overlap is evident here as the men used their training as seafarers to operate the crabbing vessels, but also worked as fishers directly responsible for the crab catch. That being said, as all of their work took place on board a fishing vessel, they would be considered fishers as they fall under the definition of fishers according to the WIF Convention.

Distinguishing between seafarers and fishers according to the type of vessel (fishing or merchant) on which they work is important because maritime law offers different protections for individuals on board, depending on the classification of a ship. Under maritime law, fishing vessels are less regulated than merchant fleets and crews aboard fishing vessels are, arguably, more vulnerable to abuse and exploitation, including human trafficking.

Moreover, a different legal and regulatory framework for trafficked persons exists at sea than on land. Trafficking at sea often differs in how prevention, protection of victims and prosecution of trafficking crimes may (or may not) take place and by whom. Trafficked seafarers and fishers may find themselves aboard vessels that are unflagged or flagged to another State, ashore in a foreign port or never entering port, and/or suffering abuse and exploitation on the high seas or in waters that fall within the territory of one or various States. The issue of jurisdiction is particularly relevant in the context of trafficking at sea given the increased likelihood of trans-jurisdiction, with merchant and fishing vessels moving easily and often between jurisdictions. Determining which State(s) has (have) legal and regulatory responsibilities to address trafficking at sea not only depends on the nationality of the victim and of the trafficker(s), but also on where the vessel is (i.e. the ports and waters it may enter) and the country to which the vessel is registered.

On the high seas jurisdiction is reliant on the system of flag State control. All vessels must fly the flag of the country to which they are registered: the State under whose protection the ship sails and to whose laws it must adhere. This is known as flag State responsibility. In reality, many vessels fly what are known as “flags of convenience” (FoCs). This refers to the business practice of registering a merchant ship or fishing vessel in a sovereign State different from that of the ship owners to reduce operating costs or avoid certain regulations. FoCs are from States with an open register that usually are unable or unwilling to take seriously their flag State responsibilities, either in terms of enforcing their existing national laws or in terms of implementing laws that comply with their responsibilities under the treaties they have ratified. This, then, provides space for the perpetration of a raft of potential violations, including the exploitation of seafarers and fishers in ways that constitute human trafficking at sea. Lack of regulation further limits opportunities for identification of those already aboard vessels or for escape from trafficking.

Liberia, for example, is a commonly used FoC. The Liberian Registry is one of the largest and most active shipping registers, with approximately 4,000 ships registered to the Liberian flag in 2013. But, according to the 2013 Trafficking in Persons Report issued by the U.S. Department of State, the Government of Liberia does not fully comply with the minimum standards for the elimination of trafficking. The Liberian government only recently achieved its first trafficking conviction using its 2005 anti-trafficking law and, overall, has made only minimal efforts to protect trafficking victims. If a trafficking situation were to be identified on a ship flying Liberia’s flag on the high seas, Liberia’s anti-trafficking legislation would apply and the protection of trafficked seafarers or fishers on board would depend on the Government of Liberia’s ability or willingness to enforce that legislation. It is concerning that the most common FoCs, like Liberia, are those of States that have not brought their national laws and anti-trafficking efforts in accordance with the requirements of the Trafficking Protocol and, where relevant, the CoE Convention.

A further complication is that seafarers and fishers are often recruited through crewing agencies that may or may not have an official presence in their home countries. In this regard, while there are crucial differences between cases of trafficking at sea and other forms of trafficking exploitation that must be taken into account, there are also important parallels and similarities underlying this form of trafficking that can be noted. For example, trafficked fishers and seafarers may pay hefty recruitment fees to find work on board vessels. Issues of fraud and deception in contracts and/or the recruitment process, subcontracting, and multiple levels of culpability from crewing agencies to vessel owners complicate problems for fishers and seafarers who find themselves in exploitative situations. The lessons that can be learned in addressing such challenges (e.g. requiring recruitment fees to be borne by the employer or ensuring that trafficked persons are not criminalised for crimes they commit as part of their exploitation) can and should be applied to exploitation in other sectors.

The quality of current national legislation in many States remains a limiting factor in terms of States’ ability to combat human trafficking and States need to bring their legislation in line with their obligations under anti-trafficking law and maritime law (and enforce their laws on their vessels as required by the law of the sea). A commitment is also needed by States to implement and enforce the existing obligations from international anti-trafficking law, international maritime law and the law of the sea to combat trafficking at sea. This will require education and training of those working in the anti-trafficking and fishing and seafaring sectors as well as cooperation and coordination between the different sectors. It will also require monitoring and enforcement by and of States, and also likely incentives and sanctions for those States who do not live up to their obligations to prevent and combat trafficking at sea.