Extracting social indicators from international law
Marika McAdam, Feb 2017
It’s commonly accepted that there is a range of international legal instruments of relevance to the seafood supply chain. The pressing question for our work is how international law can inform the development of social indicators.
When it comes to the extreme, different legal regimes collide. Concerning shrimp peeling farms and aquaculture that takes place within the territory of a given country, the laws that come into play include a host of ILO Conventions (including the Forced Labour Convention), and various human rights instruments, and even organized crime instruments, including the Trafficking in Persons Protocol. Depending on how far downstream - or out at sea - we are looking, maritime labor laws come into play as well do laws of the sea that are relevant in determining what can and cannot happen at sea and who is responsible when it does. Who is responsible, for instance, for the human rights abuses that take place onboard a fishing vessel on the high seas?
What happens at sea shouldn’t stay there.
The people who find themselves in situations of exploitation at sea are not beyond the reach of the law but fall within a comprehensive, albeit complex network of legislative protections. At least in theory. In practice, the challenge is of course the transposing of international standards into domestic law and practice. And for the social expert group, the more immediate challenge is how to extract from the mass of international law, social indicators that can form the basis of monitoring tools.
In the context of exploitation of workers, international law can offer useful benchmarks for determining what crosses from being an unacceptable act to being an illegal one, and the difference between what is a poor labour condition and what is potentially a criminal act.
Take, for instance, the notion of slavery. Firstly it must be emphasised that ‘modern slavery’ or ‘modern-day slavery’ are concepts that do not exist in international law. The notion of slavery is a relic of the 1926 Slavery Convention that prohibited “...the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” Notwithstanding some of the more dated ideas captured therein (for instance, happily, there is no ‘right’ of ownership these days), the concept remains indicative of what constitutes abhorrent conditions. And slavery too can constitute an exploitative purpose of human trafficking that is specified in the Trafficking in Persons Protocol (and in this region, the ASEAN Convention against Trafficking in Persons that confirms that definition). Slavery is not the only form of exploitation captured in the definition of trafficking; in the context of the seafood industry people are often trafficked into situations that amount to ‘forced labour’ - or maybe in situations of forced labour that they were not trafficked into. Forced labour is a term defined by yet another instrument, being the ILO Forced Labour Convention (No. 29) as “...all work or service which is extracted from any person under the menace of penalty and for which the person has not offered herself/himself voluntarily.” From related instruments, we know that ‘debt bondage’ is a situation similar to slavery that may also be an indicator of both forced labour and human trafficking. And we know from other ILO conventions that the use of child labour in the seafood industry is unacceptable.
Of central importance, too, to an industry with an enormous migrant labour force are international law norms of non-discrimination, which tell us that migrants working in the seafood industry are to be treated no differently from others, irrespective of their migration or another status may be.
The point of departure for our work is that seafood in supply chains must be ‘decent’.
International law is a good place to start determining what ‘decent’ means. By interrogating this jumble of cascading and overlapping definitions we can identify the standards that we cannot accept and those that we must demand. But more than that, we are also able to identify the standards that state parties to those instruments have themselves committed to achieving in their seafood supply chains.
The trick then - and the next step of our work - is extracting those indicators and converting them into metrics that are meaningful and measurable on the ground.
And on the sea.