Joint Letter to Marcia Eugenio Re: ILAB’s List of Goods Produced by Forced Labor and Seafood Exemptions

Director 

Office of Child Labor, Forced Labor, and Human Trafficking 

U.S. Department of Labor 

Bureau of International Labor Affairs 

200 Constitution Ave NW Washington, DC 20210 

 

December 17, 2019 

 

 

Dear Ms. Marcia Eugenio:

 

We are writing to express our deep concern over the Bureau of International Labor Affairs’ (ILAB) practice of only including seafood harvested from a country’s territorial waters or Exclusive Economic Zone in your List of Goods Produced by Child Labor or Forced Labor (“List of Goods”). This practice effectively excludes distant water fishing nations with significant incidence of forced labor on the high seas from your biennial report to Congress and the public. We call on you to fully consider the ramifications of this position on forced labor in the fisheries sector, declare an official policy of attributing high seas catch to the flag State, and remove all seafood exemptions in the 2020 report. 

 

ILAB’s List of Goods is widely recognized as one of the most important sources of information on the current state of forced labor in numerous sectors around the world. Seafood buyers and suppliers rely on your findings when conducting human rights due diligence,U.S. Department of Labor. 2018. List of Good Produced by Child Labor or Forced Labor. P. 42, Box 11 (noting civil society groups and the private sector are creating tools to help companies combat labor abuses and several of these incorporate the List of Goods into their methodology or resource lists. Examples provided include the Responsible Sourcing Tool’s Risk Assessment Guidance for the Seafood Supply Chain, the Seafood Slavery Risk Tool, and the Labor Safe Screen). https://www.dol.gov/sites/dolgov/files/ILAB/ListofGoods.pdf consumers look to your Sweat & Toil app for the latest updates on forced labor risks in their seafood, foreign governments shape their policies and actions in response to your listings and subsequent dialogue, and civil society organizations use your report as a powerful tool for advocacy. Even the Marine Stewardship Council, an environmental certification organization, selected your report as one of its four indicators to determine whether a country is “lower risk” and thus exempt from labor audits under its new forced labor policy. Marine Stewardship Council. 2019. New measures introduced to combat forced and child labour in seafood business. https://www.msc.org/en-us/media-center/news-media/new-measures-introduced-to-combat-forced-andchild-labour-in-seafood-businesses; Greenpeace, International Labor Rights Forum, et al. 2019. Public Statement on MSC’s Revised Chain of Custody Certification (during MSC’s stakeholder consultation process, Greenpeace and other civil society organizations strongly recommended it not exempt any country from its labor audit requirement. MSC rejected this advice despite warnings that its approach could result in serious failure to address forced labor and child labor occuring within its program). https://laborrights.org/publications/public-statement-mscs-revisedchain-custody-certification 

 

It is clear that the List of Goods has made a significant contribution to reducing forced labor across many sectors and that is why it is vital ILAB take the unequivocal position that all seafood caught on the high seas is eligible for listing in your report.An email from ILAB on June 27, 2019 explained that the Department of Labor decided only seafood harvested within a country’s Exclusive Economic Zone could be considered for the List of Goods. ILAB later confirmed this position on a phone call with Greenpeace USA on July 15, 2019. An email from Greenpeace USA on November 13, 2019 asked ILAB whether they had ever declared and provided the rationale behind this policy in a publication. ILAB responded on December 6, 2019 noting no publication states that the Department of Labor has made a determination not to list fish caught on the high seas and it will continue to review information provided on this topic. Some communications with your staff suggest high seas catch will continue to be exempted regardless of whether all five factors that constitute your “reason to believe” standard are fulfilled, including sufficient evidence that demonstrates significant incidence of forced labor on Taiwanese and other foreign-flagged fishing vessels harvesting tuna and other species in international waters.Phone call between ILAB and Greenpeace USA on July 15, 2019. ILAB strongly defended its position on high seas catch, noting Department of Labor lawyers supported it, and made clear that it was unlikely they would change their view and they would only consider the recommendations of the Department of Justice-led interagency task force on legal and jurisdictional issues affecting forced labor in fishing in international waters. Even then, they made clear there was no guarantee they would implement the recommendations even if it called for ILAB to revise its position.

 

ILAB’s practice of considering high seas catch as attributable to no single country is confounding as it is inconsistent with international law, including several provisions of the UN Convention on the Law of the Sea – which the US has agreed reflects customary international law – and the UN Fish Stocks Agreement to which the US is a party.United Nations Convention on the Law of the Sea. 1982. Art. 87(1)(e) (“The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: freedom of fishing, subject to the conditions laid down in Section 2”). https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf. Section 2 conditions the right to fish on the high seas on a State’s treaty obligations, including provisions under UNCLOS that require States to adopt or cooperate with other States to adopt measures to conserve and manage living resources in the high seas. Scholars have noted the US has followed all the provisions of UNCLOS except the ones on deep sea mining since President Ronald Reagan’s 1983 Oceans Policy Statement. In that statement, President Reagan clarified that the US would “continue efforts to achieve international agreements for the effective management of [highly migratory species of tuna]”; United Nations Agreement for the Implementation of the Provisions 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 (also known as the UN Fish Stocks Agreement). 1995. Art. 8 (“Only those States which are members of [a subregional or regional fisheries management organization] or participate in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply”), Art. 10(a),(b),(e), (l) (“In fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, States shall: (a) agree on and comply with conservation and management measures to ensure the longterm sustainability of straddling fish stocks and highly migratory fish stocks; (b) agree, as appropriate, on participatory rights such as allocations of allowable catch or levels of fishing effort; … (e) agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks; … (l) ensure the full cooperation of their relevant national agencies and industries in implementing the recommendations and decisions of the organization or arrangement”), Art. 18(1) (“A State whose vessels fish on the high seas shall take such measures as may be necessary to ensure that vessels flying its flag comply with subregional and regional conservation and management measures and that such vessels do not engage in any activity which undermines the effectiveness of such measures”), Art. 18(2) (“A State shall authorize the use of vessels flying its flag for fishing on the high seas only where it is able to exercise effectively its responsibilities in respect of such vessels under the Convention and this Agreement”), Art. 18(3)(e),(f) (“Measures to be taken by a State in respect of vessels flying its flag shall include: … (e) requirements for recording and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data in accordance with subregional, regional and global standards for collection of such data; (f) requirements for verifying the catch of target and non-target species through such means as observer programmes, inspection schemes, unloading reports, supervision of transshipment and monitoring of landed catches and market statistics”), Art. 19(1)(a) (“A State shall ensure compliance by vessels flying its flag with subregional and regional conservation and management measures for straddling fish stocks and highly migratory species. To this end, that State shall: (a) enforce such measures irrespective of where violations occur”). https://documents-dds-ny.un.org/doc/UNDOC/GEN/N95/274/67/PDF/N9527467.pdf?OpenElement This practice also undermines US and international efforts to combat forced labor and human trafficking on fishing vessels operating in international waters as well as the co-occurring crime of illegal fishing.President’s Interagency Task Force (“PITF”). 2019. Report on U.S. Government Efforts to Combat Trafficking in Persons. P. 17 (under the PITF’s 5th Strategic Objective, Forge and Strengthen Partnerships and Other Forms of Collaboration to Combat Trafficking in Persons, it is noted that the Department of Justice launched a broad interagency task force to assess legal and jurisdictional issues affecting forced labor in fishing in international waters and to make recommendations to Congress). https://www.state.gov/wp-content/uploads/2019/10/2019-PITF-ReportWeb.pdf; International Labour Organization. 2019. Resolution of the Southeast Asian Forum to End Human Trafficking and Forced Labour of Fishers. Annex 1: Recommendations to flag States and coastal States, Para. 8 (“We call on flag States of commercial fishing vessels to protect all fishers and migrant fishers on vessels flying their flag, particularly on the high seas where States have exclusive jurisdiction, through the promotion of human rights, fundamental principles and rights at work, and other relevant international standards and obligations onboard”), Para. 14 (“We call on flag States of commercial fishing vessels as receiving States of migrant workers to protect migrant fishers onboard vessels flying their flag, including at the high seas”). www.seafisheriesproject.org; National Oceanic and Atmospheric Administration, National Marine Fisheries Service. 2019 Report to Congress. Improving International Fisheries Management. P. 77 (“Some fishermen, many of them migrant workers, are subjected to labor rights abuses, including forced labor, on board fishing vessels … such abuses and exploitation are known to occur in conjunction with IUU fishing activities, and therefore warrant attention here”). https://www.fisheries.noaa.gov/foreign/international-affairs/identification-iuu-fishing-activities; International Maritime Organization. 2019. Summary of the 4th FAO/ILO/IMO Joint Working Group meeting on IUU Fishing and other related matters (“IUU fishing refers to fishing which is carried out with proper authorization. This can undermine national, regional, and global efforts to conserve and manage fish stocks and result in poor safety and working conditions for fishers. Tackling the issue requires collaboration by all stakeholders”). http://www.imo.org/en/MediaCentre/MeetingSummaries/othermeetings/Pages/IUU-JWG-4.aspx Moreover, it also conflicts with the current policy and practice of the US Department of State and the National Oceanic and Atmospheric Administration, two US agencies that represent US interests at the UN and select regional fisheries management organizations (RFMOs).US Department of State. Office of Marine Conservation. International Fisheries Management (“Countries must cooperate to conduct scientific study and set fisheries rules that will ensure that these resources are conserved and managed sustainably. The United States has worked over many decades to establish a network of regional fisheries management organizations (RFMOs), treaty-based multilateral bodies and other bilateral, regional, and global organizations that oversee the cooperative sustainable management of shared fish stocks and other living marine resources. The United States is a member or observer of many of these organizations, and the Department of State works closely with other U.S. agencies, including National Oceanic and Atmospheric Administration’s National Marine Fisheries Service, to represent U.S. interests”). https://www.state.gov/key-topics-office-of-marineconservation/international-fisheries-management/