The 2009 Port State Measures Agreement – A New Way to Respond to Human Trafficking?

The new United Nations Food and Agriculture Organisation’s (FAO) Port State Measures Agreement (PSMA) has just come into force. Primarily, this instrument is an attempt to regulate illegal, unreported and unregulated (IUU) fishing, however it’s likely to also have an impact on the prevalence of human trafficking of migrant workers for forced labour on board fishing vessels. In this post, I want to explore some of the key points of the PSMA to show how it may act as an additional measure to reduce the human trafficking of fishermen.

In recent years, research has shown a clear connection between IUU fishing and forced labour. It has been recognised that both human trafficking and forced labour are social consequences of IUU fishing – brought about by a need for a low-cost workforce. Although instances of human trafficking for forced labour connected with IUU fishing have been reported around the world, Southeast Asian fisheries have a particularly high prevalence of this issue.

Consequently, it is of significance that the PSMA has been signed by a number of Southeast Asian States, including Myanmar, Thailand and Indonesia – countries which have recognised the connection between IUU and forced labour.

Undoubtedly, the entry into force of this Agreement is great progress in an area which has traditionally been lacking in regulation. In light of the overlap between human trafficking for forced labour and IUU fishing, by taking action on issues relating to IUU, it can be expected that issues of human trafficking for forced labour will also be positively affected.

I’ll now turn to cover some of the core points of the Agreement. At the heart of the PSMA is the idea that Port State measures are a “powerful and cost-effective” way to address IUU fishing issues. The agreement applies to IUU fishing and to fishing related activities in support of such fishing. These activities will include transhipment of fish at sea, and the transport of fish products. I would also suggest that the exploitation of migrant workers’ labour for the purpose of IUU fishing should be considered an activity in support of IUU fishing.

As suggested by the title of the Agreement, the focus is squarely on Port States. These are countries where vessels come to dock – as distinct from a Flag State, which is the country where the vessel is registered. Whether or not a country is considered a port or flag state in any given case is determined from the perspective of the vessel – so for a boat that is flagged to Thailand, Indonesia will be a port state. Conversely, for a boat flagged to Indonesia, Thailand will be a port state.

It’s important to realise that a vessel may visit more than one port state in the course of a voyage, and each of those Port States will be required to apply the PSMA where they have signed it. This has the effect of greatly widening the scope through which illegal fishing is viewed, and – at least in theory – should work to make it much more difficult for fish that is tainted with forced labour to enter a supply chain.

Consider the following example: a Thai-flagged fishing vessel fishes in Indonesia and refuels at an Indonesian port. The vessel returns to Thailand, and offloads the catch. The catch is then transferred to a container ship, which stops at port in Singapore before moving to its final destination in the USA. In this case, Indonesia, Singapore and the USA would all be port states. If we tweak the example to say that the initial fishing vessel was registered with a flag-of-convenience (say Panama), then Thailand would also be a Port State. The implication then is that each of the Port States in this example would have a responsibility to apply the measures in the PSMA. This is of course a hypothetical example, but one which is based in fact. Over the last couple of years, several court actions have been taken in the USA against companies who were allegedly selling fish products tainted with forced labour.

When will the PSMA apply? It applies to any port state which has signed the agreement. These states will be required to apply the provisions of the agreement to any foreign-flagged (or non-flagged, or illegally flagged to the port state) boats which are either in its ports, or are trying to get in to its ports. The only exceptions to this relate to container vessels which aren’t carrying fish, or are carrying fish that has already been landed where there are no “clear grounds” for suspecting involvement with IUU fishing, and to boats of a neighbouring state which are engaged in subsistence artisanal fishing – and that exception only applies where both the port state and the neighbouring flag state are cooperating to ensure that the artisanal fishing boats aren’t engaged in IUU fishing.

So what does a Port State need to do under this Agreement? If the Port State has got reason to believe that a vessel has been engaged in IUU fishing, or is a support vessel for IUU fishing, then the Agreement requires certain measures to be taken. Each port state shall require a vessel to provide it with certain specified information before that vessel is granted entry into port. This information relates primarily to identifying features of the vessel, including the identity of the vessel master. Information regarding the catch on board must also be provided. This is a minimum standard and states have the ability to require additional information needed to make a determination on whether a vessel has engaged in IUU fishing. This information should be used by the Port State in order to make an informed decision about whether to allow a vessel to enter port. To this end, the PSMA obliges the Port State to make this decision one way or the other, once it has received this information. It’s important to note though that a Port State could allow a vessel entry to port, even if it knows that the vessel has engaged in IUU fishing, so long as it is able to claim that it is “taking other appropriate actions… which are at least as effective as denial of port entry in preventing, deterring and eliminating” IUU fishing.

The PSMA goes on to discuss in seemingly mandatory terms the requirement of States Parties to deny a vessel which is reasonably suspected of engaging in IUU fishing the ability to use its ports for “landing, transshiping, packaging and processing of fish… and other port services.” Unfortunately, this provision is undermined by reference to the loophole just discussed, which will allow a state to make the decision to let an IUU vessel into port.

A signatory to the PSMA also has some discretion to not apply the measures of the Agreement in certain circumstances, such as in the case where nationals of a port state charter a boat that is used exclusively for fishing within the territory of the port state. If the Port State chooses not to apply the PSMA, it must ensure that it has the same degree of legal control over that chartered vessel as it does over other vessels which are entitled to fly the flag of that state.

As we can see, the PSMA – while good – isn’t perfect. One potential problem with the agreement is that it only applies to vessels flagged to one state, who are attempting to operate in another state’s waters. This creates another potential loophole: boat owners who want to avoid being subject to PSMA measures could simply reflag their vessels while they are at sea. Another problem is the discretion given to Port States to simply allow vessels into port. In countries where there is an issue with corruption in fisheries, this discretion creates the potential for IUU fishing – and consequently human trafficking for forced labour – to go unreported.

It’s been said that “worker exploitation and environmental plunder are two faces of the same coin.” With the overall goal of preventing illegal fish products from entering the food chain, the PSMA should also have the side-effect of reducing the prevalence of forced labour in the industry.

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Thomas Harré

Barrister, LawAid International