The Slave Trade and the Right of Visit Under the Law of the Sea Convention: Exploitation in the Fishing Industry in New Zealand and Thailand

Abstract

Severe exploitation of vulnerable persons is occurring in fishing industries globally. An overview of exploitation in New Zealand and Thailand highlights the incentive for states to downplay exploitation and underpins the appeal of a right of visit, which is provided for under the Law of the Sea Convention in regards to the slave trade. Although reported as forced labour, debt bondage, or human trafficking, an examination of international jurisprudence reveals that current practices likely amount to slavery; primarily due to the inherent vulnerability of persons at sea. Two persuasive cases, Kunarac and Tang, provide guidance on interpreting the definition of slavery, particularly “the powers attaching to the rights of ownership”. The operation of a right of visit is considered against the law of the sea regime, as are the implications in the light of international attempts to control IUU fishing.

No one shall be held in slavery or servitude, slavery and the slave trade shall be prohibited in all their forms.

Universal Declaration of Human Rights, Article 4 ¹

We are always thinking about escaping … There was no way, though. We were powerless. The sea itself was our prison.

Unnamed fisherman ²

The extensive exploitation of vulnerable persons over the last decade has been rife in fishing industries throughout the world. Supranational organizations often refer to this exploitation as forced labour, debt bondage, and human trafficking. However, the scope of the definition of slavery and the captive nature of high seas fishing mean that these practices are more likely to amount to slavery.

Although practices of severe exploitation have been uncovered in many countries—including the US, the UK, ³ Ukraine, Ireland, ⁴ and Pakistan ⁵ —this paper focuses on exploitation occurring in Thailand and New Zealand. A comparison of these two nations demonstrates the pervasiveness of the phenomenon of exploitation at sea, the similarities between the process of recruitment, deception, coercion, and exploitation, as well as the differences between the underlying forces driving how the issue is ultimately being addressed. Both case-studies highlight that substantial financial incentives have led states to deny the existence of exploitation and, at the same time, how economic sanctions promise to drive rapid action in these areas. However, the fundamental difference between these two case-studies is that New Zealand lacks enforcement capacity over foreign-flagged fishing vessels, whereas Thailand is incentivized to breach its treaty obligations requiring it to suppress exploitation. The need to independently ascertain the extent of exploitation in Thailand’s fishing industry thus gives rise to the consideration and appeal of a right of visit on the high seas.

A universal right of visit in relation to the slave trade is provided for by Article 110 of the United Nations Convention on the Law of the Sea (LOSC). ⁶ Whether this right of visit extends to exploitation occurring at sea hinges on the meaning of the term “slave trade”. However, within this question multiple facets need to be considered. The first is the meaning of slavery under international law. Although the accepted definition is contained within the International Convention to Suppress the Slave Trade and Slavery, ⁷ the meaning of the phrase “powers attaching to the right of ownership” is less straightforward. Another is the scope of the term “slave trade”, which, if confined to a historical sense of “chattel” ⁸ slavery, does not extend the right of visit in relation to the exploitation examined in this paper. However, it is argued that international law is less clear. An examination of the historical development of the term “slave trade” and its accepted contemporary definition is offered to counter this assumption.

In any case, it is argued that the resulting ambiguity means that the maritime provisions pertaining to slavery have no effective legal worth. This paper criticizes this situation by suggesting that the scope of slavery is likely to cover severe exploitation at sea—including trafficking for the purposes of debt bondage or forced labour. In reaching this conclusion, the paper considers international jurisprudence from Kunarac and Tang. These cases lay the foundation for states to seek an authoritative legal determination regarding more practical definitions of slavery and the slave trade in the context of the right of visit under the LOSC. The paper then suggests ways to achieve this before proceeding to consider the implications of redefining the phenomenon of exploitation at sea as slavery. Such implications are then considered in the light of emerging international efforts to control Illegal Unregulated and Unreported (IUU) fishing. The operation of a “right of visit” regime is also considered against the backdrop of the current law of the sea by drawing on inspection regimes already in existence, namely the Regional Fisheries Management Authorities (RFMOs). The paper thus presents an opportunity to resurrect the maritime visitation provisions pertaining to the abolition of slavery beyond mere rhetoric.

I. THE EXTENT OF EXPLOITATION

A. Exploitation in New Zealand’s Fishing Industry

The vulnerability of high seas fishers to exploitation is such that even well-resourced countries with considerable enforcement capacity are not immune to this problem. For almost a decade, New Zealand’s fisheries management regime has been marred by frequent reports of severe exploitation occurring aboard foreign chartered vessels (FCVs) licensed to fish in its Exclusive Economic Zone (EEZ). In 2013, the University of Canterbury published a PhD thesis on the phenomenon of trafficking in New Zealand’s fishing industry. ⁹ The author, Thomas Harre, published findings based on interviews with industry sources. He found significant evidence that at least two foreign commercial fishing companies, Southern Storm Fishing and the Sajo Oyang Corporation, had shown, at the very least, reckless negligence towards crew members resulting in abuse and underpayment of wages. ¹⁰ His thesis documents that, between 2005 and 2011, at least ten Korean-owned vessels and one Ukrainian vessel were involved in severe exploitation. The foreign crews, mostly from Indonesia but also Myanmar and Vietnam, cited a range of abuses including: injury, lengthy shifts, non-payment of wages, verbal, physical, and psychological abuse, and even death. ¹¹

A detailed snapshot of the severity of this exploitation emerged in May 2011, when twenty-three Indonesian nationals walked off the South Korean-flagged vessel Shinji after eight months of fishing in New Zealand’s EEZ. In 2011, Christina Stringer, Glen Simmons, and Daren Coulston published a paper ¹² detailing this severe exploitation after they had conducted some 300 interviews with crew members, observing officials, and industry personnel. Their findings showed that the men had been subject to forced labour through deception, debt bondage, and physical abuse. Their investigation detailed the process of exploitation from recruitment through to ultimate deportation. The recruitment process occurred through manning agents, who deceived impoverished Indonesians about their employment conditions and the minimum wage in New Zealand. Manning agents further abused the men’s vulnerability by coercing them to sign repressive contracts crafted to ensure their submission. They obtained guarantees of the men’s services by requiring upfront payment of significant bonds (up to US$300), demanding forfeiture of hard-to-obtain identity and education documents, and retaining the identity documents of family members.

Whilst aboard the Shinji, the severe exploitation of the men took multiple forms. Financially, they incurred further debts through arbitrary deductions, aggressive agency fees, and the manipulation of exchange rates. This meant that the men were averaging a wage of around NZ$1 per hour (the minimum wage in New Zealand is NZ$12 an hour). The men were forced to work in dangerous conditions and were severely overworked. They commonly worked sixteen-hour shifts, and sometimes even up to thirty hours without rest. They were inadequately fed, abused for taking meal breaks, and claimed to having to resort to eating rotting fish bait. They lacked protective clothing, and suffered frostbite and freezer burn, while their pleas for medical attention went ignored. The men also claimed to have been subjected to sexual abuse by way of orders to massage the captain. Anyone who complained about their working conditions was abused or threatened with deportation, non-payment of wages, termination of employment, and the withholding of the employment securities their families had paid as part of their recruitment. Further coercion was achieved through the retention of men’s identity documents, including their birth certificates and passports.

Of additional concern was the persistent public denial of the existence of trafficking by New Zealand officials. Despite this, the persistent media reports ¹³ and academic papers ^{14 , 15 , 16} finally prompted New Zealand to draft a bill requiring mandatory re-flagging of all FCVs licensed to fish its EEZ. ¹⁷ After considerable delay, the Amendment finally passed into law in July 2014, and will come into force in May 2016. The Amendment overcomes the significant jurisdictional complexities present in New Zealand’s current management regime, whereby, the minimum wage requirement is currently regulated through a registration process under the Fisheries Act, and labour standards for foreign crews are monitored through the immigration process. This complexity has resulted in poor co-ordination between government agencies, resulting in a lack of enforcement. ¹⁸ In 2010, the limitations of New Zealand’s jurisdiction were also highlighted with the sinking of the Oyang 70, which resulted in six deaths. Under the LOSC, there is no automatic jurisdiction to investigate the sinking of foreign-flagged vessels. ¹⁹ In contrast, the Amendment will give government agencies jurisdiction over FCVs in the areas of employment, health and safety, and criminal law. ²⁰ The increased enforcement capacity will effectively revoke the licence of FCVs to exploit vulnerable persons for economic gain in New Zealand’s EEZ.

However, an inevitable consequence of the Amendment is that many of New Zealand’s lowest-value fisheries may prove uneconomical. Indeed, this very point was emphasized by those vested interests who opposed the laws, ²¹ and thus remarkably echoed a prominent argument used by slave owners in the American South when they opposed the abolition of slavery. ²² Yet, despite the economic “merits” of slavery, the narrative of exploitation behind New Zealand’s wild-caught fisheries has proven far too unpalatable.

A risk assessment prepared for New Zealand’s Parliament highlights how perceptions of overseas markets are a substantial concern for the country’s seafood export industry. The report refers to concerns raised by the US government over human rights abuses aboard FCVs, fearing that they could lead to import sanctions. ²³ It also highlights the risks associated with the European Union’s (EU) requirement for import certification, stating that the process is undermined by foreign-state certification of fish caught in New Zealand. The report stresses that the lack of control over certification would damage New Zealand’s reputation and threaten the security of the seafood export market. This would lead to a loss of access to other markets, which could ultimately spread to non-fishing sectors. ²⁴

New Zealand therefore has a significant financial incentive to address exploitation aboard FCVs because failure to do so has market repercussions that would not only impact on local seafood exporters, but could also extend to unrelated export markets. In New Zealand’s case, the approach to addressing exploitation has been to extend its enforcement capacity over the labour dimensions of the foreign-flagged FCVs. Thus, whilst the denial of access to global markets may be driving significant action to address exploitation at sea, without effective enforcement jurisdiction, a state has limited means to achieve this.

Thailand, in comparison, has a substantial financial incentive to maintain the status quo as the world’s third largest producer of wild-caught seafood. There, the profitability of severe exploitation continues to outweigh the need for significant action, making Thailand the primary destination for trafficked fishermen in Southeast Asia. Given the underlying difference in economic incentives, the widespread exploitation occurring in Thailand is now considered, whereby the lack of reliable figures emerges as the most significant barrier to addressing this problem.

B. Exploitation in Thailand’s Fishing Industry

In 2011, the United Nations Office on Drugs and Crime (UNODC) released a report on human trafficking across commercial fishing industries. ²⁵ According to the UNODC, Southeast Asia has the most well-documented occurrences of trafficking into forced labour in the global fishing industry. In this region, Thailand is not only known to be the main destination country, but is also a key transit country for men trafficked into the fishing industries in Indonesia and Malaysia. ²⁶ In the last four years, both the International Labour Organisation (ILO) and the International Organization for Migration (IOM) ²⁷ have conducted extensive reviews into exploitation in Thailand’s fishing sector. Both organizations found evidence of extensive trafficking and forced labour in Thailand’s commercial fishing sector. The 2013 ILO report also identified a number of child labourers amongst the fishers (thirty-three children under the age of eighteen, and seven under the age of fifteen). ²⁸ Reports have also found that most victims are trafficked from neighbouring countries—namely Myanmar, Cambodia, and (to a lesser extent) Laos. ²⁹ In July 2013, Reuters published an investigation that found that Rohingya Muslims were being trafficked into forced labour on Thai fishing boats. ³⁰

The ILO report on Thailand surveyed some 600 fishers working in both national and international waters. The survey found that one-third of respondents had been compelled to work between seventeen and twenty-four hours a day. A larger percentage (forty percent) of workers had experienced deductions in their salaries without their knowledge. The report also identified a number of common practices; these include the restriction of movement, retention of identity documents, threat of denunciation to authorities, physical and psychological violence, illegal wage deductions, and non-payment of wages. The ILO report also found that ten percent of respondents had been severely beaten by their masters. However, the most concerning issue arises from other reports claiming that murder is commonplace. ³¹ In 2009, the United Nations Inter-Agency Project on Human Trafficking (UNIAP) surveyed forty-nine Cambodian men who had been trafficked onto Thai fishing vessels. The survey found that fifty-nine percent of the men had witnessed their boat captain commit murder. ³²

Another trend identified in the ILO report involved the recruitment process. The report found that recruitment was mostly voluntary but then later lead to a situation of debt bondage and/or forced labour. Under the international definition of human trafficking, consent is negated by the use of coercive and deceptive means. The ILO report highlighted two further findings indicating that the men were subject to forced labour: first, that sixty-six respondents reported trying to escape, and second, that twenty-four respondents were sold or transferred to another boat against their will.

In 2008, a Laotian man was trafficked onto a tour boat that supplied and brought catches back from deep-sea fishing vessels. A week later, he was transferred onto a deep-sea fishing boat that went on to operate in Malaysian waters. He was told that he would have to work for two years before he could return to shore. During his ordeal, he was transferred at sea three times, and was the subject of physical assault on each occasion. He eventually escaped, only to be forced into working in a palm-oil plantation, before being charged by Malaysian officials for illegally entering the country. ³³ Sadly, his story is representative of widespread enslavement throughout the region, operating through complete control over the movement of vulnerable people.

According to Legal Support for Children and Women (LSCW), a Cambodian non-government organization (NGO), more than 100 Cambodians escaped from forced labour conditions on Thai fishing boats in 2012. Many of the men were forced to swim to shore under the cover of darkness in order to escape their ordeals. According to LSCW, the Thai boats fish both legally and illegally off Indonesian waters. The boats unload their catch for processing at Ambon Island, but rarely dock, in order to prevent their labourers from escaping. Instead they may stay at sea for several years, and receive supplies from other boats. ³⁴

Reports from NGOs are vital to understanding the scope of this phenomenon of exploitation. This is because NGOs are often more likely than government officials to have been approached by former victims of such ordeals. In some cases this may be the result of a general poor perception of enforcement officials in some Southeast Asian countries. Thus, NGOs such as LSCW have been at the forefront of bringing instances of trafficking into forced labour to public attention.

The reliability of estimates over the scope of the problem is, however, inevitably problematic. In August 2013, World Vision reported that Thai authorities had arrested three leaders of a trafficking ring in Myanmar. The NGO asserted that the gang was believed to have trafficked an estimated 700 Myanmar nationals into exploitation aboard Thai fishing boats. ³⁵ Given the clandestine nature of trafficking, and the invisibility of fishing vessels, such figures can be hard to verify. Nevertheless, the consistent media revelations, the breadth of the media coverage, and the quantitative data produced by the ILO indicate that the practice is likely more prevalent than what is suggested by the available data. In the light of this, the slavery provisions in LOSC are considered with regard to the various definitions of exploitation.

II. THE DEFINITIONS OF EXPLOITATION

It is argued that many instances of exploitation at sea are likely to fall within the scope of the accepted definition of slavery. To demonstrate this, the meaning of the terms “human trafficking”, “debt bondage”, and “forced labour” are first considered.

A. Human Trafficking

Human trafficking occurs when a person’s movement is controlled by some means—which may be subtle—for the purpose of exploitation. This statement is a distillation of the core elements of the definition contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), which supplements the United Nations Convention against Transnational Organized Crime. ³⁶ Article 3(a) of the Trafficking Protocol defines trafficking in people as:

The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. ³⁷

The Trafficking Protocol does not seek to suppress severe human exploitation per se, as the crime is not actually constituted by exploitation alone. Instead, the achievement of the Protocol is to deposit all other forms of exploitation in the one instrument. ³⁸ Since people are trafficked for the purposes of forced labour, slavery, or practices similar to slavery, this definition thus provides that an instance of trafficking can amount to slavery.

B. Forced Labour

Forced labour is the exploitation of a person’s work or services, when that person’s ability to leave that employment is controlled by some means (which may be subtle). The term “forced labour” has been shaped in the context of international labour law. ³⁹ Article 2(1) of the ILO Convention No. 29 concerning Forced or Compulsory Labour of 1930 defines forced labour as: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” ⁴⁰ In respect of the definition of slavery, the 1926 Slavery Convention “considers it is necessary to prevent forced labour from developing into conditions analogous to slavery”. ⁴¹ Therefore, the terms “slavery” and “forced labour” are not exclusive, but instead exist on the same continuum of exploitation.

C. Debt Bondage

Debt bondage occurs where one’s value of work is not reasonably applied to the liquidation of a debt, or the length and nature of work is not limited nor defined. Under the definition of “trafficking”, debt bondage would constitute the means in which a person is held in a situation of exploitation. The ILO specifically recognizes debt bondage as a method in which someone is kept in forced labour. Under the 1956 Supplementary Convention, debt bondage is defined as:

the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined. ⁴²

Debt bondage would not ipso facto constitute slavery unless other requirements were met, namely that any or all of the powers attaching to the right of ownership were exercised.

III. THE DEFINITION OF SLAVERY

The universal condemnation of slavery is a jus cogens norm and is referred to in forty-seven different conventions between 1874 and 1996. ⁴³ The definition of slavery as found in the 1926 Slavery Convention is universally accepted as having attained the status of customary international law. ⁴⁴ Slavery is therefore defined as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. ⁴⁵ The interpretation of this provision is, however, less clear. ⁴⁶ At the centre of the debate is the extent to which other forms of exploitation fall within the scope of this provision. Although it is now generally agreed that instances of trafficking and forced labour will be identifiable as slavery only if they have involved the exercise of “any or all of the powers attaching to the right of ownership”, ⁴⁷ the elucidation of a more detailed legal definition from this provision requires a more detailed examination.

A. The International Jurisprudence of Slavery

Under the UN Charter, for a rule of international law to be applied, the International Court of Justice (ICJ) must show that it is the product of one of the three law-creating processes: treaties, international customary law, or general principles of law recognized by civilized nations. ⁴⁸ In the search for general principles of law, international rules of law can be found in their application by the judicial decisions of both international and domestic courts. According to Harris, the “persuasive character of [a] judgement and advisory [opinion] depends on the fullness and cogency of the reasoning offered”. ⁴⁹ With regard to this understanding of how international law is located, two of the most cogent judicial decisions regarding the scope of slavery are considered, namely Kunarac and Tang.

These cases shed some light on whether the prohibition of slavery extends beyond de jure abolition to de facto suppression. In other words, does the meaning of “the status or condition attaching to the powers of the right of ownership” ⁵⁰ extend to practices where the conditions of slavery exists, but where it is not legally possible to own a slave? In this respect, the cases considered support Kevin Bales’s argument that the determination of a practice of slavery depends on a criterion inherent in the powers attaching to the rights of ownership in situations where the rule of law is absent. ⁵¹ In this way, the abolition of slavery is necessarily understood to extend to instances of de facto slavery.

1. Kunarac

In an extensive review of the international definition of slavery in Kunarac, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) made a number of key findings that are specifically relevant to fishing, when we bear in mind the captive nature of high seas fishing. Specifically, a list made by the Trial Chamber for determining whether or not enslavement had occurred included:

control of someone’s movement, control of physical environment, psychological measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour. ⁵²

In considering this list, it becomes immediately apparent that the majority of these factors are both inherent and widespread in many fishing industries. Further to this, the Trial Chamber also noted that “forced labour … without remuneration … and often, although not necessarily, involving physical hardship [and] human trafficking” ⁵³ may indicate enslavement. Such indicators are also identifiable in the majority of practices alleged in the fishing industry. As we have seen, the overwhelming majority of cases of exploitation involved a victim trafficked into conditions of physical hardship for the purposes of forced labour, with grossly inadequate remuneration or even without remuneration. The Trial Chamber also considered factors that negated the possibility of consent and thus also indicated slavery. These included: “the abuse of power, the victim’s position of vulnerability, socio-economic status, and deception or false promises.” ⁵⁴ In the vast majority of instances of exploitation in the fishing industry, the victims were economic migrants and invariably of a lower socioeconomic status than their masters. The fact that they were migrants meant that a combination of language barriers, a lack of access to legal remedies, and differences in cultural norms were all relevant factors for identifying the abuse of power over a victim’s position of vulnerability. Furthermore, deception and coercion played a key role in their recruitment in all of these instances. In accordance with this Judgment, the extensive presence of a multitude of these factors in the fishing industry therefore indicates that such conditions are likely to constitute enslavement.

The Trial Chamber also confirmed that the ability to trade in persons was not a requirement of slavery, noting that other de facto elements such as duration or coercion may instead be relevant. In stating that the “‘acquisition’ or ‘disposal’ of someone for monetary or other compensation is not a requirement for enslavement”, ⁵⁵ it conceded that to do so would be “a prime example of the exercise of the right of ownership over someone”. ⁵⁶ By this reasoning, the numerous accounts of the onselling of victims, especially amongst Thai vessels, is a clear indication of slavery. Nonetheless, the Trial Chamber confirmed that the ability to trade a victim may be irrelevant in the identification of slavery.

In refining what constitutes slavery, the Trial Chamber asserted that, in certain situations, no single factor or combination is decisive and that a multitude of factors may be required. ⁵⁷ This caveat places emphasis on degrees of exploitation as the measure to identify a situation of slavery. The approach is symptomatic of the difficulty in providing legal certainty over what constitutes slavery. As Holly Cullen argues, the Judgment also blurs the distinction between slavery and forced labour. ⁵⁸ It is thus argued that there is no clear distinction in the practical application of these terms; rather, they form degrees of one amounting to the other. Nonetheless, the most important point was to be found in the conclusion of the Appeals Chamber, which noted that:

the “traditional concept of slavery” as defined in the 1926 Slavery Convention and often referred to as “chattel slavery” has evolved to encompass various contemporary forms of slavery, which are also based on the exercise of any or all of the powers attaching to the right of ownership. ⁵⁹

2. Tang

In 2008, the High Court of Australia considered the application of the international definition of slavery in The Queen v. Tang case. Prior to this case, the scope of slavery had been untested under Australian law. ⁶⁰ The Tang Decision illuminates two major findings relevant to slavery in the fishing industry. The first is the intention of the 1926 Slavery Convention by applying the 1969 Vienna Convention. The second is the interpretation of the “status or condition of any or all the powers attaching to the right of ownership”. ⁶¹

The High Court interpreted the intention of the 1926 Slavery Convention by applying the standards set out in the Vienna Convention, which states that the words of a treaty should be interpreted in good faith, according to their ordinary meaning, and the taking into consideration of their context as well as the object and purpose of the treaty. The application of these standards and the cogency of the Court’s reasoning support Jean Allain’s claim that the Tang Judgment represents perhaps the most accurate interpretation of the definition of slavery. ⁶² Indeed, the decision by the Australian High Court is recognized as an authoritative interpretation of international law by proponents on both sides of the debate regarding the scope of definition of slavery. Indeed, in her response to Allain, Anne Gallagher stated:

The decision of the Australian High Court in R v. Tang … represents another step forward in clarifying the parameters of slavery in contemporary international law. ⁶³

The Court considered that, prior to the 1926 Slavery Convention, many countries had already abolished the legal right of ownership. Accordingly, the declared aim of the parties to the Convention was to secure the complete suppression of slavery in all its forms. It was also the stated aim of the Convention to prevent forced labour from developing into conditions analogous to slavery. ⁶⁴ The Court argued that the Convention’s aim would have been pitiful had it only dealt with the question of legal status, or de jure slavery. ⁶⁵ Particularly relevant to the argument of this paper (and thus to the purpose of the slavery provisions in the LOSC) was the Court’s affirmation that “[it] is one thing to withdraw the legal recognition of slavery; it is another thing to suppress it. The Convention aimed to do both.” ⁶⁶

The relevance of the Court’s observations are paramount. It is one thing to claim that “any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free”; ⁶⁷ it is another to give effect to efforts to achieve that end. If there exists, as argued in this paper, extensive incidences of slavery occurring throughout the fishing industry, then it follows that there must be greater certainty over what constitutes slavery—in the form of an accessible and accurate definition—in order to give effect to the slavery provisions of the LOSC. In other words, the current need to interpret the meaning of the “powers attaching to the right of ownership” ⁶⁸ desperately needs to be more practicable. Furthermore, the failure to do so has resulted in the lack of the legal significance of the slavery provisions in the LOSC.

Tang also sheds some light on the meaning of the phrase “powers attaching to the right of ownership”. The Court referred to a 1953 UN report of the Secretary-General, which listed such powers as including:

the capacity to make a person an object of purchase, the capacity to use a person and a person’s labour in a substantially unrestricted manner, and an entitlement to the fruits of the person’s labour without compensation commensurate to the value of the labour. ⁶⁹

The Court considered this list useful in identifying the de facto condition of slavery, and emphasized the need to develop a practical working definition. It stated that it is unnecessary “to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage” ⁷⁰ as “the various concepts are not all mutually exclusive … [those] who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy”. ⁷¹ The Court then offered a method for distinguishing between slavery and harsh and exploitative conditions, suggesting that the answer depends on the nature and extent of powers exercised. It went on to consider that:

the capacity to deal with a complainant as a commodity, an object of sale and purchase, may be a powerful indication that a case falls on one side of the line. So also may the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances, and absence or extreme inadequacy of payment for services. ⁷²

The scope of slavery is therefore determined by the degree of control and the severity of the exploitation. This view is consistent with more recent academic analysis. In a recent paper considering the powers attaching to the right of ownership, Cullen argues that international courts tend to focus on the degree of control over a victim of slavery. ⁷³ For Cullen, control is both the denial of freedom and the indicator that a person is subject to possession by another. This places slavery on a continuum with forced labour, human trafficking, and debt bondage. It provides a likely benchmark for assessing whether such practices found within the fishing industry would be considered slavery. Although there is no definitive answer, it is argued that the high degree of control exercised over migrant fishers trafficked into exploitative conditions on the high seas would likely be considered slavery under international law. This is partly due to the fact that there is no greater control of movement, physical environment, or ability to escape than on the high seas. These unavoidable factors increase the likelihood that an instance of exploitation will amount to slavery, especially when coupled with other factors such as: the use or threat of force, threat of penalty, and/or some other form of coercion. In other words, a number of factors that indicate enslavement although inherent to being at sea are nonetheless significant.

IV. HISTORY—SUPPRESSING THE SLAVE TRADE AND THE RIGHT OF VISIT

A. The History of Efforts to Suppress the Slave Trade

In many regards, historic efforts to suppress the slave trade have centred on the reciprocal right of visit against foreign-flagged vessels. A brief examination of this history is instructive on two accounts: first, it clearly emerges that the reciprocal right of visit was a prominent part of realizing “effectual” suppression as opposed to “nominal” abolition; second, the historical evolution of the term provides some indication as to the current status of the right of visit under the LOSC.

1. The history of the right of visit

The universal abolition of slavery on the high seas that persists today is largely credited to the global agenda of Great Britain in the nineteenth century. ⁷⁴ By 1839, Britain had forged bilateral treaties with nearly all of the major maritime states. These treaties established reciprocal rights of search and seizure on the high seas against vessels suspected of engaging in the African slave trade. ⁷⁵

Although the slave trade persisted in many of these countries (albeit generally outside the geographical limitations of the bilateral treaties), the main obstacle to the effectual suppression of the Atlantic slave trade was the absence of a visitation treaty with the US, ⁷⁶ and to a lesser extent with France, Portugal, and Brazil. ⁷⁷ Without such treaties, the Atlantic slave trade continued to grow as slave ships looking to avoid capture gravitated towards hoisting these flags. ⁷⁸

when no flag a slaver might hoist could secure him from the exercise of the right of search, the slave trade had rapidly diminished; but now that the right could no longer be exercised, it had revived. ⁷⁹

In an effort to close this loophole and secure a right of visit, Britain employed various strategies. In Brazil and Portugal, Britain did not rely upon a right of maritime jurisdiction by any existing agreements; rather, she justified the search and seizure of vessels engaged in the slave trade by concluding that “under the circumstances she had a right to obtain by her own means the results which she had been promised”. ⁸⁰ In other words, because the slave trade continued to grow under the guise of exclusive flag-state jurisdiction, Britain declared Brazil and Portugal to have failed in their treaty obligations. Britain felt her justification for maritime interdiction was vindicated through the success she obtained in uncovering and seizing slave trade vessels. This rapidly led to both Portugal and Brazil accepting bilateral treaties recognizing reciprocal rights of visit—ultimately ending their slave trade at sea. ⁸¹

Taking another approach, Britain sought to establish a universal right of search and seizure by equating the slave trade to piracy. The association with piracy had been established elsewhere, including in treaties with Brazil ⁸² and Portugal. ⁸³ However, French and American opposition to Britain’s claim to a right of visit meant that this approach ultimately failed. In response, Britain was forced to change its strategy. As an innovative solution to this impasse, Britain began to advocate the separation of the right of visit from the right of search. ⁸⁴

In respect of the US, the proposal to separate the right of visit would eventually prove successful, although it was not until the American Civil War that the first Anglo-American bilateral treaty was concluded. The Treaty Between the United States and Great Britain for the Suppression of the Slave Trade ⁸⁵ was proclaimed by President Abraham Lincoln on 7 July 1862, and recognized a reciprocal (albeit limited) right of visit. ⁸⁶ The Treaty proved to be a turning point in efforts to suppress the slave trade by sea. Indeed, by the 1870s, Britain had totally abolished the Atlantic slave trade. ⁸⁷

In respect of France, the right of visit remained strictly confined to confirming whether a vessel had the authority to hoist a French flag until 1892. ⁸⁸ An 1845 Anglo-French Convention abrogated the mutual right of visit to suppress the slave trade, which had existed in two treaties of 1831 and 1833. The 1845 Convention required a French naval squadron to actively suppress the slave trade. This situation essentially persisted until 1889, when, following Britain’s blockade of the slave trade out of Zanzibar, the need for an international treaty become overwhelming. In 1890, mediation conducted between Britain and France successfully agreed on a regime for a reciprocal right of visit. The compromises reached during this mediation became part of the Convention Relative to the Slave Trade and Importation into Africa of Firearms, Ammunition, and Spirituous Liquors, 1890. ⁸⁹

2. Importance of the right of visit

The General Act of Brussels 1890 was the most comprehensive international agreement concerning the suppression of the slave trade by sea. ⁹⁰ It was signed and ratified by eighteen states, including France and the US. Although confined to a specific maritime area where the slave trade had persisted, the General Act of Brussels was a culmination of Britain’s persistent efforts to suppress the slave trade. Its entering into force ultimately achieved “a universal right, established by treaty and accepted as international law, to visit ships on the high seas to suppress the slave trade”. ⁹¹ History shows that a combination of the right of visit, which was at the heart of Britain’s web of bilateral treaties, and the General Act of Brussels brought about the effectual end to the slave trade at sea. ⁹² A review of international relations in the nineteenth century reveals that the enforcement of the right of visit against foreign flags was thus a prominent part of efforts to suppress the slave trade. As Allain noted:

The lack of a developed multilateral system during the nineteenth century, however, was not the determining factor in the slow pace by which the slave trade on the seas was outlawed. At the heart of the matter was states’ understanding of the nature of the high seas. The challenge was not the slave trade per se but rather the conflict between the Grotian notion of freedom of the seas and the right to visit ships suspected of involvement in the slave trade. ⁹³

B. The Right of Visit Under the LOSC

The right of visit achieved in the nineteenth century was then atrophied somewhat by the successive treaties of the early twentieth century. ⁹⁴ The 1919 Convention of Saint Germain-en-Lay ⁹⁵ abrogated the General Act of Brussels as between parties to that treaty, while providing no right of visit and only an obligation to secure the suppression of slavery in all its forms. ⁹⁶ Following this, the 1926 Slavery Convention and the 1956 Supplementary Convention failed to re-reinstate reciprocal rights contained with the General Act of Brussels. These failures are regarded as having reduced the international means for control over slavery that existed at the end of the nineteenth century. ⁹⁷

Nonetheless, the 1958 Geneva Convention on the High Seas and the LOSC do include a limited, but universal, reciprocal right of visit in regard to the slave trade. ⁹⁸ A review of the travaux préparatoires of these Conventions show that there was, at the very least, some intention to equate the slave trade to piracy. A report of the International Law Commission in 1956 on the law of the sea provides commentary on the provision of right of the visit:

The right to visit in this latter case was recognized by the treaties for the repression of slavery, especially the Brussels Act of 2 July 1890. For purposes of repression, this Act assimilated slavery to piracy, with the proviso that the right in question could only be exercised in certain zones clearly defined in the treaties. The Commission felt that it should follow this precedent, so as to ensure that the exercise of the right of control would not be used as a pretext for exercising the right of visit in waters where the slave trade would not normally be expected to exist; ⁹⁹

The travaux préparatoires of the LOSC provides some insight as to the nature of the debate that had occurred over the right of visit, and as to the final negotiations from earlier Draft Articles of the United Nations Conference on the Law of the Sea (UNCLOS I). Opponents argued that the right of visit would infringe the principle of freedom of navigation and raised the concern that if it was abused it would threaten international peace and security. Interestingly, these opponents also argued that the proposed limited geographical application of the right of visit was discriminatory. In response, proponents noted that such a concern was groundless since the long-recognized right to visit in respect to piracy had not given rise to abuses. The Articles contained in the LOSC therefore represent an agreed compromise of these positions. The LOSC extends the right of visit beyond the confines of any geographical region and settles on a construction of Article 110, which leaves no distinction between the application of the right of visit in respect to piracy and the slave trade. However, in both cases, the LOSC requires that the right of visit is limited. Such limitations are considered below.

V. THE RIGHT OF VISIT UNDER THE LOSC

A. The Slavery Provisions of the LOSC

As a peremptory norm of international law, the prohibition of slavery is reflected in three provisions of the LOSC. The first is contained within the principle of exclusive flag-state jurisdiction as provided for by Article 92, which states that:

ships shall sail under the flag of one State only and, [save in exceptional cases expressly provided for in international treaties or in this Convention], shall be subject to its exclusive jurisdiction on the high seas. ¹⁰⁰

The importance of exclusive flag-state jurisdiction on the high seas cannot be overstated. However, the focus of this paper is whether exploitation at sea falls within the meaning of the “exceptional cases expressly provided for … in this Convention”. ¹⁰¹ The exceptional cases are then expressed in a second provision:

Article 110

Right of visit

1. Except where acts of interference derive from powers conferred by treaty, [a warship which encounters on the high seas a foreign ship], other than a ship entitled to complete immunity in accordance with articles 95 and 96, [is not justified in boarding unless there is reasonable grounds for suspecting that]:

(a)the ship is engaged in piracy;

(b)[the ship is engaged in the slave trade];

5. These provisions also apply to any other duly authorized ships or aircraft marked and identifiable ¹⁰² as being on government service. ¹⁰³

Under the LOSC then, a vessel’s navigational freedoms on the high seas are not subject to interference from non-flag states except in respect of universally prohibited acts, including piracy and the slave trade. ¹⁰⁴

The third provision of the LOSC that reflects the prohibition of slavery is Article 99, which contains two parts. The first part provides that “every state shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag”. ¹⁰⁵ This first part creates the obligations for flag states to effectively address the slave trade. The second part provides that “any slave taking refuge on board [any] ship, [whatever its flag], shall ipso facto be free”, ¹⁰⁶ which implies that freedom from slavery transcends the principle of flag-state jurisdiction. Article 99 then reconciles exclusive flag-state jurisdiction with the absolute prohibition of slavery. The latter part of Article 99 also provides a justification for asserting the universal right to visit against a ship that is suspected of being engaged in the slave trade. Had the drafters of the LOSC envisioned that all states would effectively take measures to ensure the freedom of slaves at sea, there would have been no reason to include a provision to ensure the absolute freedom of slaves regardless of their flag state. The failure to effectively meet this obligation gives rise to the right of visit, which must now be reconsidered.

B. Definition of the “Slave Trade”

The definition of the slave trade as contained in the 1926 Slavery Convention is considered to have attained the status of customary international law. Article 2 of the Convention states:

The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves. ¹⁰⁷

The inclusion of the words: “all acts involved in the … acquisition … of a person with intent to reduce him to slavery” broadens the scope of the slave trade beyond the mercantile sense of trading and transporting slaves. ¹⁰⁸ Furthermore, having earlier established that slavery extends to the de facto condition, and that it exists on a continuum with other forms of severe exploitation, it is argued that the slave trade thus encompasses the acquisition of vulnerable persons through manning agents with the intention to reduce them to conditions amounting to slavery.

This is the very process documented throughout the fishing industry, not least in Thailand and New Zealand. The broad definition of slavery, which must apply mutatis mutandis to the definition of the slave trade, is intended to deal with all forms of slavery that would emerge under the guise of new legal technicalities. Indeed, historian Howard Hazen Wilson made this very point:

In drafting Article 1 of the Geneva Slavery Convention of September 25, 1926, the Government of the United Kingdom provided a means for penetrating such disguises … The word “any” makes both definitions very broad. They have been considered extensive enough to include (a) de facto slavery, or “the treatment of a human being as if he were a chattel,” and (b) the transportation of labor under compulsion. ¹⁰⁹

In other words, for a person at sea to find themselves in conditions that amount to slavery, it must follow that, at some previous juncture, they were acquired by the person who now exercises over them—the powers attaching to the right of ownership. Furthermore, the control of that person through any act of coercion implies the intent to reduce them to slavery. Such a vessel would therefore be engaged in the slave trade. ¹¹⁰ In this way, it is argued that a limited right of visit under the LOSC likely extends to suspicion of a vessel engaged in the severe exploitation occurring in the fishing industry.

C. The Limitations of the Right of Visit

The right of visit extends to the examination of a ship where it may be needed to confirm or remove the suspicion that it is engaged in the slave trade. ¹¹¹ However, under Article 110(2), the right of visit is limited to boarding and inspecting documents. Only if the suspicion remains after the documents have been checked may an authority proceed with further examination. As Article 110(2) does not specify what documents may be inspected, it is instructive to consider what this may entail. In regards to the exploitation described at the beginning of this paper, it could be argued that an inspecting official would gain much from viewing, at the very least, the identity documents and working contracts of all seafarers.

Indeed, historically, a similar approach had been enforced under the General Act of Brussels 1890. Although this Treaty established far broader reciprocal rights beyond visitation, to include search and seizure, its provisions are nevertheless informative; especially in regard to examining documents under a limited right of visit. The General Act required that vessels had to be authorized to carry the flag of their said power. Such authorization could only be given if certain conditions were met, including the payment of a bona fide security that guaranteed the owners could pay any fines incurred under the Treaty. ¹¹² The Treaty also required the flag state to issue vessel captains with a crew list, which had to visible and renewed either annually or at every fresh departure. ¹¹³ Although specific to African slaves, the Treaty also essentially required vessels to have evidence that its seafarers had wilfully entered into their working contracts, and that such contracts had been cited by their governments. ¹¹⁴ The requirement to deposit and carry these documents directly relates to the historical objectives of the right of visit—a right, which although now somewhat undefined, still persists under the modern law of the sea regime.

Ultimately, despite the obligation to prevent and punish slavery, the LOSC confers no right of interference beyond boarding and examining documents, and does not extend to the exercise of seizure jurisdiction. ¹¹⁵

D. Considerations Within a Coastal State’s Exclusive Economic Zone

In order to analyze the utility of a universal right of visit, it is necessary to consider its likely application. As discussed earlier, the slavery provisions under the LOSC clearly operate on the high seas. However, a more interesting problem posed is when considering how the provisions apply within the EEZ ¹¹⁶ of a coastal state by another state.

Part V of the LOSC is relevant to the slavery provisions, as it lays out the foundations of the EEZ regime in international law. Under Part V, the legal regime that governs the EEZ borrows aspects from both the territorial waters and the high seas, without being analogous to either. In the EEZ, the jurisdiction of a coastal state is restricted to three specific categories: (1) the establishment and use of artificial islands, installations, and structures; (2) marine scientific research; and (3) the protection and preservation of the marine environment. ¹¹⁷ Hence, as the prohibition of slavery falls outside these three categories, the coastal state has no special jurisdiction over its enforcement within the EEZ. Likewise, in relation to the navigational freedoms of the EEZ, Article 58(1) adopts the same regime as employed on the high seas. Rothwell and Stephens point out that the provisions of the LOSC relating to the high seas that apply in the EEZ include the duties of flag states, the immunity of warships, and the suppression of piracy. ¹¹⁸ Given that the LOSC makes no distinction between the application of slavery and piracy in regard to what waters the provisions apply to, it follows that the slavery provisions apply within the EEZ.

However, despite the existence of a universal right of visit with regard to the slave trade within a coastal state’s EEZ, there still remains substantial differentiation among state practice. The current ambiguity between treaty law and state practice arises as an increasing number of states enact legislation departing from Part V. This is most commonly through states legislating to interfere with the navigational rights and freedoms of foreign states. This creeping jurisdiction of coastal states into the EEZ has gone beyond resource-orientated policies and pollution and into considerations of environmental and military security. ¹¹⁹ Therefore, it could be argued that the EEZ remains an evolving international law regime where jurisdiction is increasingly uncertain.

E. Considerations Within the Contiguous Zone

The contiguous zone also supports a universal right of visit under the LOSC. The contiguous zone covers the area that is “contiguous” to the coastal state’s territorial sea (12 nm), extending out to a maximum of 24 nm from the shore baseline. Within the contiguous zone, states have some jurisdictional rights and duties that relate to enforcement in relation to customs, fiscal immigration, and sanitary matters. However, these rights operate only in respect of inward- and outward-bound ships; they do not confer jurisdiction of the coastal state, nor extend the operation of its laws and regulations. For example, the contiguous zone provides jurisdiction for the coastal state to interdict and remove a vessel involved in people smuggling, although that vessel would not be subject to the coastal state’s laws and regulations. ¹²⁰ Outside these parameters, the freedom of navigation that is afforded to the high seas also applies within the contiguous zone. ¹²¹ Therefore, as all other aspects of the contiguous zone fall under the high seas regime, it is likely that a universal right of visit with regards to the slave trade exists against vessels within the contiguous zone for authorized non-coastal state vessels.

VI. REINVIGORATING THE DEFINITIONS OF SLAVERY AND THE SLAVE TRADE

A. Obtaining an Authoritative and Practicable Interpretation

Over the last three centuries, numerous international treaties have reaffirmed the abolition of slavery and the slave trade. However, the ambiguities highlighted in this paper have meant that such declarations support only its nominal abolition—at least in respect to all forms of slavery.

With regard to the definition of slavery, the fact that “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” ¹²² requires extensive interpretation to decide whether or not it applies in any given case, means that any claim to an authoritative interpretation of slavery inevitably becomes problematic. Instead, authors working in this field make tentative suggestions as to the likely or possible scope of slavery. This may also explain the preference of international agencies for using more concisely defined terms such as forced labour and trafficking. ¹²³ The effect of an inchoate definition of slavery has thus been to weaken its legal worth.

In respect of the slave trade, this paper challenges the assumption that this term only extends to the historical sense of “chattel” slavery. However, much ambiguity still remains. For this reason, a practicable interpretation of the slave trade is needed.

Such authoritative clarifications could be sought through an advisory opinion of the ICJ. ¹²⁴ An advisory opinion would need to be requested by a body authorized under the UN Charter, such as the General Assembly or the Security Council, as states do not qualify. ¹²⁵ Although not legally binding, advisory opinions are usually accepted and acted upon. The ICJ’s parallel jurisdiction to the International Tribunal for the Law of the Sea (ITLOS) ¹²⁶ over law of the sea issues would further add weight to the Court’s findings.

The International Law Commission (ILC) could also possibly provide an authoritative review. This is particularly relevant, as ITLOS has cited Draft Articles produced by the ILC. ¹²⁷ However, the Commission’s reluctance to progress international law in areas that are politically contentious may preclude its involvement in clarifying the interpretation of slavery and the slave trade. ¹²⁸

B. Suppressing All Forms of Slavery and the Right of Visit

The LOSC makes no reference to forced labour, debt bondage, or human trafficking; therefore, whether Article 110 extends to these practices hinges on the meaning of the slave trade. In considering the most extreme cases of human trafficking, Douglas Guilfoyle concedes that the limited right of visit could possibly be exercised, although there is little recent state practice in this regard. ¹²⁹ This suggests that enforcement officials have assumed that human trafficking, debt bondage, and forced labour are not slavery in a legal sense. In acknowledging this overriding ambiguity, the value of this paper’s analysis is then that the claim to a universal right of visit remains problematic, and that a more practicable definition is needed. In approaching the modern phenomenon of exploitation at sea, the lesson to be drawn from history is that a right of visit is a practical means of pressuring states into meeting their treaty obligations, namely the suppression of slavery in all its forms. In this way, the right of visit is a diplomatic tool that could be used to provide the impetus for multilateral interdiction regimes on the high seas to combat severe exploitation. Such interdiction regimes are especially relevant to other efforts that combat IUU fishing and exploitation in supply chains.

VII. IMPLICATIONS OF REDEFINING THE PHENOMENON AS SLAVERY

A. The Appeal of a Right of Visit

One appeal of a right of visit stems largely from the need to independently verify instances of slavery. As governments are incentivized to deny that their own industries rely on slave labour, it is a right that may instead appeal to injured states that require reliable information over the extent of abuse against their nationals working abroad. The evidence provided in this paper provides a strong case for those countries whose workers are most commonly exploited, namely Cambodia, Myanmar, Indonesia, the Philippines, China, and Laos. ¹³⁰ Given the importance of migrant remittances for these developing economies, coupled with the large numbers of migrant workers in Thailand’s fishing industry, it is likely that a latent level of support for the independent verification of slavery already exists within the domestic political arena of these injured states. ¹³¹

Despite the international condemnation of slavery, it remains a practice that is nevertheless lucrative. The economic incentive for governments to maintain the status quo thus underpins the difficulty in verifying slavery. Indeed, Thailand’s historical reluctance to deal with exploitation, evidenced by its lack of substantive action, is telling of the economic influence of the fishing industry. The need for a universal right of visit was most prominent in 2012, when the Royal Thai Navy was scrutinized for claiming that it was unable to locate a single instance of trafficking in 1,000 inspections. ¹³² At that time, further scrutiny came through repeated allegations in the media implicating the Royal Thai Navy in the physical trafficking of Myanmar’s Rohingya Muslims. ¹³³ Even more troubling is the fact that the journalists who brought the claims to light were charged under controversial new defamation laws. ¹³⁴ At the end of 2014, however, Thailand indicated a change in its policies and a willingness to address the issues within the fishing industry (as a result of a combination of forces discussed below).

Nevertheless, Thailand’s historical record highlights the impact that corruption has on worsening the phenomenon of human trafficking. The UN Special Rapporteur on “Trafficking in Persons, Especially Women and Children”, Joy Ngozi Ezeilo, noted that Thailand is affected by deeply rooted corruption, which is coupled with the infamous brokerage systems that recruit trafficking victims. ¹³⁵ As a consequence of corruption, real change is unlikely while the practice of slavery remains profitable. The concern over the involvement of the Royal Thai Navy in trafficking highlights the appeal of independently verifying slavery. In reality, countries will downplay the extent of exploitation in order to avoid market repercussions.

The problem with obtaining reliable data about the extent of trafficking, even from government sources, can be compounded inadvertently by foreign anti-trafficking programmes. The US’s annual Trafficking in Persons Report (TIP) ranks countries according to their response to trafficking. A poor grading from the TIP report can result in sanctions and interference for that country’s relationship with international banks and financial institutions. ¹³⁶ The inadvertent consequence of these reports is that they provide an added incentive to avoid the publication of damaging research. However, TIP reports themselves are in turn criticized as being unscientific, inconsistent, and incomplete. ¹³⁷ It is easy to see how this problem is compounded even further when it involves vessels on the high seas. Thus, the inevitability of uncertainty in trafficking data at sea further highlights the appeal of a right of visit.

B. Verifying Slavery as Coupled with Controlling Access to Markets

The right of visit is not a panacea to systemic exploitation on the high seas. Rather, the diplomatic pursuit of a right of visit scheme is instead suggested as a complementary mechanism to pressure flag-state action in countries that have historically turned a blind eye to exploitation.

The principal mechanism for driving states to take appropriate action to curb severe exploitation is instead the threat to restrict access to lucrative markets. Here, I consider two prominent mechanisms for controlling access to markets: the EU Community System for Combatting IUU fishing and the Californian Supply Chain Transparency Laws. A brief consideration of these mechanisms demonstrates how they would be bolstered by establishing schemes for a right of visit. The EU regulations are considered in respect of their ongoing influence on Thailand, whereas the supply chain laws are evaluated in the context of an emerging global trend with the potential to impact fisheries worldwide.

1. European Union Regulation (EC) No. 1005/2008

The EU community system is a market-based tool used to control IUU fishing activities occurring in nations that export to the EU market. The system is established under regulation No. EC 1005/2008 ¹³⁸ , and uses graded alerts to give countries a specified warning time to either comply with the EU’s demands or be restricted from exporting to the EU. Far from being a diplomatic exercise, “red card” bans are already in place in Cambodia, Sri Lanka, ¹³⁹ and Guinea. The system also appears to be having a profound impact on Thailand’s willingness to address issues within its fishing industry. On 28 October 2014, the EU Directorate-General of Maritime Affairs and Fisheries issued Thailand a “yellow card” warning, giving Thailand only three months to curb IUU fishing before it would be banned from exporting fish to the EU. The potential for economic loss is estimated at around US$641 million, being the annual value of Thailand’s fisheries exports to the EU. ¹⁴⁰ The threat of major economic loss has been followed by a dramatic shift in Thailand’s rhetorical acceptance of this issue.

Whilst the on-the-ground impact of this market approach on the widespread exploitation in the fishing industry remains to be seen, initial reports indicate that Thailand may be turning a corner in addressing the issue. Authorities in Thailand have indicated an intention to introduce a number of measures, including the deployment of GPS devices on large fishing boats, the introduction of fines and terms of imprisonment for non-registration, an increase in the minimum working age on fishing boats from fifteen to eighteen years, making it mandatory for fishers to have a minimum of ten hours rest per day as well as thirty days’ annual leave, and the hiring of 700 anti-corruption staff to combat anti-trafficking. ¹⁴¹ However, it would also be imprecise to wholly accredit Thailand’s recent policy shift to the EU’s issuing of a yellow card. Instead, a wide range of pressures must also be considered, including those from NGOs, reports by several United Nations (UN) organizations, and ongoing public pressure as a result of domestic and international media reports. Another factor to consider is the renewed deadline from the US State Department demanding that Thailand demonstrate an improvement in dealing with trafficking. Despite these additional pressures, the haste with which Thailand is acting following the threat of losing access to the lucrative EU market clearly demonstrates the exceptional leverage of the market-based approach.

Nevertheless, it is likely that any real progress will be slow, given the widespread reliance on slave labour in Thailand’s fishing industry, as well as the difficulty of dealing with systemic corruption. In addition to these challenges, the ongoing threat of significant economic sanctions inevitably increases the incentive for Thailand to overstate its progress in addressing exploitation. Therefore, in order to ensure the integrity of Thailand’s claims over any substantive improvements, a means to independently verify instances of slavery is critical. A right of visit is one such mechanism.

2. The Californian Transparency Supply Chain Act

The California Transparency Supply Chain Act 2010 requires large companies to report on actions they have taken to address labour exploitation within their supply chains. As Western consumers increasingly seek more ethically sourced products, such laws are likely to become an emerging trend in the developed world. Similar legislation is currently being considered in the UK. ¹⁴² However, one foreseeable problem with transparency laws is that unreliable government figures will inevitably affect the reporting of large companies. By enabling the independent verification of slavery, a right of visit would significantly increase the integrity of such systems.

The potential of supply chain laws to facilitate change in business models that rely on slavery is enormous. This is especially true of Thailand, considering that its seafood exports reached over US$7.3 billion in 2011. ¹⁴³ The extent of Thailand’s economic reliance on exploitation was made evident by its plan to replace illegal migrant workers with convicts, ¹⁴⁴ which a government official had claimed was necessary in order to meet the growing labour shortages in the seafood industry. ¹⁴⁵ Following a mass outcry, the plan was eventually discarded. The desperation of such a measure, however, highlights two distinct realities in Thailand: the depth of Thailand’s economic reliance on exploitation, and Thailand’s inability to drive the changes needed to eradicate severe exploitation. The transparency laws thus present a mechanism for denying market access to exploitative industries that seem incapable of addressing slavery. As with the EU system, supply chain transparency laws represent a powerful tool for overcoming the widespread reliance on industrial slavery in fishing, a practice that has thus far proven too lucrative for meaningful reform.

C. Market Solutions in the Absence of a Right of Visit

Controlling access to the market is, however, only part of the solution. On its own, market control may lead to an increase in incentives for countries to deny the extent of exploitation. Those countries who are forthcoming about their inability to combat entrenched exploitation will face market sanctions, while those whose own governments effectively deny exploitation may benefit. This would increase incentives for corruption and would invariably worsen the fate of the most vulnerable. However, when coupled with a right of visit, a market-based solution provides a much stronger incentive for changing the status quo. This dual approach works by providing an economic incentive to deter exploitation, whilst facilitating a means to authoritatively measure that progress, at least insofar as the inspecting country is concerned. Furthermore, the verification of just a few instances of slavery by an authorized government body, coupled with the threat of market sanctions against both the state and the specific companies involved, favours transparency and substantive change over rhetoric and secrecy. This is perhaps the greatest appeal of the right of visit. In accepting this desirability, I now consider how such a scheme might operate within the international system.

VIII. A MULTILATERAL RIGHT OF VISIT SCHEME

In the short term, however, the invocation of right of visit to identify de facto slavery in the fishing industry may prove too politically unappealing. This is primarily on account of the tendency of states to prioritize the freedom of navigation over other concerns, but also because of the perception that universal visitation might jeopardize the general comity as between states. Nonetheless, the analysis of the jus gentium right of visitation is still useful, in that it may instead form the foundation and impetus for developing more effective bilateral, and multilateral, agreements providing for the reciprocal right of visit between states. With regard to the fishing industry, numerous multilateral interdiction regimes are already in force. Guilfoyle lists eight Regional Fisheries Management Organizations with interdiction schemes, including: the International Commission for the Conservation of Atlantic Tunas; the North Pacific Anadromous Fish Commission (NPAFC), the North-East Atlantic Fisheries Commission, the Northwest Atlantic Fisheries Organization, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Annual Conference of the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, the South East Atlantic Fisheries Organization, and the Western and Central Pacific Fisheries Commission. ¹⁴⁶

Of the RFMOs, the NPAFC provides perhaps the most relevant example of a multilateral interdiction regime, as it involves Southeast Asian nations. The NPAFC was created under the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (NPAF Convention) and came into force in 1993. It operates between Japan, the US, Canada, and Russia, and was later acceded to by South Korea. ¹⁴⁷ It aims to prevent the trafficking in fish taken in contravention to the NPAF Convention, and is closely tied to the UN General Assembly’s driftnet fishing moratorium. The Convention lays out reciprocal boarding and inspection schemes for duly authorized vessels of any State Party. It permits boarding of any other state’s fishing vessel upon the reasonable suspicion that it is contravening the Convention, provided the flag state is promptly notified. The flag state must investigate and prosecute appropriate cases and take action immediately. Although the success of the Convention has relied largely on the voluntary compliance of non-Member Parties, especially China, it is an example of how multilateral interdiction regimes can be used to achieve practical ends. Despite not being a member, China has an agreement with the NPAFC for Member Parties to board and inspect its vessels.

Whilst RFMOs provide a working example of how multilateral systems of inspection currently operate, the specific challenges of invoking the slavery provisions of the LOSC are considered through an examination of the historical approach, specifically in regard to Article 99, wherein “any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free”. ¹⁴⁸ The international community addressed this question through the General Act of Brussels. Article XXVII provided that “any slave who has taken refuge on board of a ship of war, shall be immediately and definitively set free”. ¹⁴⁹ The treaty then went on to provide for repatriation, protection, and assistance for freed slaves. A later incarnation of this provision was carried forward during the initial drafting of the 1956 Supplementary Convention. The ad hoc committee drafted an Article that stated: “Any slave who is found on board a vessel shall immediately be set at liberty”, ¹⁵⁰ though this was altered in the final Convention to reflect the wording of the current provision of the LOSC. Although it is difficult to speculate how states would best put into practice a system of freeing slaves, it is nonetheless incumbent on states to give effect to this provision beyond mere rhetoric.

IX. CONCLUSION

Slavery, as it has been interpreted in international jurisprudence, is occurring extensively throughout the world’s fisheries. It is an industry where migrants are trafficked for the purpose of forced labour, held in subhuman conditions, and coerced under threat of financial penalty and physical violence. The captive nature of high seas fishing provides an inherent control over the movement of seafarers that, when coupled with all the other elements of coercion, forced labour, and debt bondage, elevate such vulnerable persons into the category of slaves. Under the current regime, the negligent reliance on official figures of flag states leaves the responsibility for identifying such practices with countries that are both hampered by corruption and incentivized to deny its existence. The appeal of a right of visit therefore stems from the need to independently verify the extent of such exploitation and the extent to which a state is complying with its international treaty obligations. When coupled with existing market-based solutions, the right of visit provides a meaningful diplomatic tool for ensuring accountability and driving real change in an inherently exploitative industry. The fact that prosecution would rest with flag states is inconsequential, as the independent verification of only a few instances of slavery may be sufficient to prevent a state’s access to lucrative markets.

However, the ongoing ambiguity of the definition of slavery and the slave trade negates the legal worth of the provisions of the LOSC. Therefore, a priority for states wishing to suppress slavery in all its forms is to seek an authoritative clarification over the meaning of the “powers attaching to the right of ownership” ¹⁵¹ and the scope of the term “the slave trade”. Such clarity is fundamental for enforcement officials to operate in a system where exclusive flag-state jurisdiction has dominated the legal psyche. The capacity to independently verify instances of slavery will thus find its meaning as states work to exclude exploitation from their markets. It is through the combination of these tools that we are able to realize the desire to abolish slavery in all its forms.