A few weeks ago, when I presented the draft of the chapter on fisheries, I was commissioned for the forthcoming Oxford University Handbook on Human Rights at Sea, I wrote on the limited role that, so far, market states had on labour issues. I quote
happy to have a good contract
Markets States, on their side, have limited involvement at this stage, albeit the existence of a well-developed market access conditions framework. For instance, the European Union (EU) imposes market access requirements that depend on “official assurances” by the seafood safety and fisheries competent authorities of the processing and flag States of fishery products intending to access its market. These authorities must provide official certification regarding the food safety and legality of the catch for any product intended to be sold in the EU market. Unfortunately, the possibility of implementing a comparable method to ensure the enforcement of labour rights on board through the labour authority of the flag State has not been proposed.
While I woke up today to good news in these front from the EU, that paragraph still true.
A press release for the EU says that the Parliament and Council negotiators reached a provisional agreement on new rules that ban products made with forced labour from the EU market.
The new regulation would create a framework for enforcing this ban through investigations, new IT solutions and cooperation with other authorities and countries.
Investigations
According to the agreed text, national authorities or, if third countries are involved, the EU Commission will investigate the suspected use of forced labour in companies’ supply chains. If the investigation concludes that forced labour has been used, the authorities can demand that relevant goods be withdrawn from the EU market and online marketplaces and confiscated at the borders. The goods would then have to be donated, recycled or destroyed. Goods of strategic or critical importance for the Union may be withheld until the company eliminates forced labour from its supply chains.
Firms that do not comply can be fined. However, if they eliminate forced labour from their supply chains, banned products can be allowed back on the market.
High-risk goods and areas
At Parliament’s insistence, the Commission will draw up a list of specific economic sectors in specific geographical areas where state-imposed forced labour exists. This will then become a criterion to assess the need to open an investigation.
The Commission can also identify products or product groups for which importers and exporters will have to submit extra details to EU customs, such as information on the manufacturer and suppliers of these products.
Digital tools and cooperation, including with third countries
A new Forced Labour Single Portal would be set up to help enforce the new rules. It includes guidelines, information on bans, database of risk areas and sectors, as well as publicly available evidence and a whistleblower portal. A Union Network Against Forced Labour Products would help to improve cooperation between authorities.
The rules also foresee cooperation with third countries, for example in the context of existing dialogues or implementation of trade agreements. This may include information exchange on risk areas or products and sharing best practices, in particular with countries with similar legislation in place. Commission acting as a lead competent authority may also carry out checks and inspections in third countries, if the relevant company and the government of the third country agree to it.
Next steps
The European Parliament and Council will now both have to give their final green light to the provisional agreement. The regulation will then be published in the Official Journal and enter into force the following day. EU countries will thereafter have 3 years to start applying the new rules.
Background
The forced labour regulation focuses on products and will not place additional due diligence requirements on companies that do not use forced labour in their supply chains. Nevertheless, it is often associated with the directive on Corporate Sustainability Due Diligence that was provisionally agreed between Parliament and Council, but that has so far not been given a final OK from the Council.
So yeah, that’s good news. However, because it is not fisheries-specific, it falls short of requiring “official assurances” (as in food safety and legal catch) from the flag state concerning compliance with ILO C188 (Working in Fishing Convention), which for me, would be the way to go.
Yet, interestingly, it talks at the end of an area you read very little about: “due diligence” by operators.
We tackled that topic in a paper with Katrina Nakamura and Yoshitaka Ota back in 2021, and it is good to see that while not fully there yet… is being discussed.
Let's see where this leads. For me, it is all positive as long as it does not fall into the hands of private certifications…