Horror Inside Long Xing 629: How IUU Fishing Could Lead to Exploitative Working Condition
Introduction
On May 6th, 2020, amid COVID-19’s outbreak, a South Korean You Tuber, Jang Han-Sol has posted a video on his YouTube channel, Korea Reomit, which shows MBC’s (abbreviation for Munhwa Broadcasting Corporation, a South Korean media company) news about dumping of Indonesian seafarer in Chinese-flagged Ship Long Xing 629 to the sea. This revealing become trending topic in Indonesia and evoke condemnation among Indonesian. Indonesian Ministry of Foreign Affairs through the Directorate General of the Protection of Indonesian Citizens and Legal Entities, Judha Nugraha, immediately call Chinese Ambassador for Indonesia as a flag state and coordinating with Indonesian Embassy in China, Republic of Korea, and New Zealand intensively (Detik News, 2020). On May 8th, all of the Indonesian seafarers (consist of 14 men) were sent home by Indonesian Embassy in Seoul.
Based on the testimonies from Indonesian seafarers, they worked in unhealthy working environment with no decent health care and medic facility. They had to work for 17 until 18 hours and sometimes only got 3 hours for sleep. The discrimination (allegedly racial) was strong, indicated by the testimony that non-Indonesian seafarers enjoyed fresh food and bottled mineral water while Indonesian seafarers only ate fish used as bait and drink distilled sea water. Their salary hasn't been paid yet, despite the inhuman work time they’ve suffered. (Detik News, 2020). Although China claimed that the ‘sea burial’ was according to ILO Seafarer’s Service Regulations, David Surya, Indonesian seafarers lawyer suspected some oddity. He stated that Long Xing actually also catch sharks (although illegally), so the ship should have a decent place to store the corpse. He also got an information that the ill seafarer must keep working, which make the condition even worse (Kabar24.Bisnis, 2020). There are also no evidence that the master of Long Xing 629 try to anchor the ship into nearest possible port to obtain more decent medical treatment.
The outcome of this tragedy is terrible. However, we could use causal approach to study and assess the condition. The cause in this tragedy is clear: illegal, unreported, and unregulated (IUU) fishing.
The Concept of IUU Fishing and Long Xing’s Involvement
Now what illegal, unreported, and unregulated fishing are? The definition can be found on International Plan of Action (IPOA) to Prevent, Deter and Eliminate IUU Fishing, which is developed by Food and Agricultural Organization (FAO). In Article 3.1, illegal fishing refers to all fishing activities that conducted without permission of the State and violated national laws of the State or in violation with regional or international law and/or obligations, whereas in Article 3.2, unreported fishing refers to fishing activities which have not been reported or misreported, to the relevant national authority or regional fisheries management organizations and contravention of national laws and regulations or reporting procedure of that organization. Furthermore, in Article 3.3, unregulated fishing refers to fishing activities that :
in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or
in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.
In Article 9.1, the IPOA should be implemented by all States to be effective. The implementation could conducted directly by the state, in cooperation with other States, or indirectly through relevant regional fisheries management organizations or through FAO and other appropriate international organizations. If the fishing conducted in high seas, States have to subject under the provisions of Part VII of United Nations Convention on The Law of The Sea (UNCLOS) 1982, specifically in Article 116 and 117.
If we talk about ’s activities, we have to know the most reliable chronology about the corpse’s sea burial. According to Indonesian Ambassador to New Zealand concurrently Samoa and the Kingdom of Tonga, Tantowi Yahya, said that was not registered in Samoa, the state which its water allegedly become the seafarer’s ‘burial’ place. There is an allegation that the ship conduct its activities in whether Samoa’s economic exclusive zone (EEZ) or somewhere in high seas near Samoa. The is actually registered in Western and Central Pacific Fisheries Commission (WCPFC) Record of Fishing Vessels. According to that data, the ship is belong to Dalian Ocean Fishing, Co, Ltd., which based in Dalian, China. The ship has the authorization to conduct a fishing from January 2019 in Pacific Ocean to catch tuna and also authorized to transship on the high seas . However, there is findings that the ship also conduct fishing on sharks. If the fishing activities was conducted on high seas area, is involved in unreported and unregulated fishing. But if there is any further evidence that the ship was actually conduct its activities in Samoa’s EEZ, it will be a perfect IUU fishing. Therefore, China as a flag state has failed to fulfil its responsibilities under Articles 34 — 50 of IPOA IUU Fishing.
The consequence of IUU Fishing could be terrible: sea environment pollution, modern slavery or exploitative working condition, and even piracy. But the issues related to is the exploitative working condition.
Exploitative Working Condition and State’s Responsibilities
Seafarer is a high risk occupation with also high possibility of advantages. Sail around the world and interact with a lot of people from various background, being seafarer could be a great experience for some of people. However, it could also become a nightmare for some of them. Being in the middle of sea for most of the time means become out of reach from labor union, law enforcer, and States of origin. Because of that, some people could exploit the condition for their own profit, as occurred .
But before step further, it is important to clarify what several Indonesian media said about ‘modern slavery’ in the It is important to know that even the treatment toward Indonesian seafarers is inhuman, we have to still cold-minded and analyze seriously. According to Anti Slavery International, an nonprofit organization which focused to abolish any form of slavery, modern slavery means “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."
However, in this case, the Indonesian seafarers is offered themselves voluntarily, proved by the existence of seafarer’s employment agreement. Even though the agreement had problems, it was not a kind of forced labor. According to End Now Slavery, a non-profit organization based in United States with similar goals as Anti-Slavery International, this is a form of an exploitative working condition. Therefore, this term will be used.
Because of that condition, there are several international instruments aimed at protecting the rights of seafarers. Because the flag state in this case is China, the instrument must be ratified or at least signed by China so that China will become a state party as regulated in Vienna Convention on the Law of Treaty 1969. The international instrument that bind China is International Convention on Economic, Social, and Cultural Right (ICESCR) 1966 and Maritime Labor Protection 2006.
ICESCR regulated a lot of aspects regarding economic and social right, e.g. right for treated equally and justly, right to paid with fair wage and right for decent living, and right for decent medical treatment. The owner and master of was in violation with Article 2 Paragraph 2 relating to non-discrimination principle any kind as to race, language, national, etc. The testimonies from the seafarers also revealed that the owner and the master violated Article 7 regarding to right of the enjoyment of just and favorable conditions of work which ensure, in particular:
Remuneration which provides all workers, as a minimum, with fair wages, equal remuneration, and decent living;
Safe and healthy working conditions;
Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.
The right to social insurance security in Article 9 also being violated since there is no evidence that the owner provide insurance to Indonesian seafarers. Moreover, the allegation that the ill seafarer still had to do their duty normally, beside in violation with Article 7 as mentioned before, also in violation with Article 12 Paragraph (1) ICESCR which stated as follows: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Two of the steps that have to be taken are the prevention, treatment and control of epidemic, endemic, occupational and other diseases and the creation of conditions which would assure to all medical service and medical attention in the event of sickness. Based on the testimonies, the master not only did not provide any decent medical treatment, but also still ordered ill seafarer to keep work. This behaviour could be categorized as low-level of human rights violation.
Beside ICESCR, China also is a State Party of ILO Maritime Labor Convention 2006 (MLC 2006). It is an international convention which was designed by ILO in order to specially protect the rights of seafarer in their occupation. The provisions under this convention has revised a lot of ILO international instruments, which one of them is Seafarers’ Hours of Work and the Manning of Ships Convention 1996.
There are a lot of violation conducted by Long Xing 629 within MLC’s scopes. It has in violation with Article IV (Seafarer’s Employment and Social Right), Regulation 2.1 (Seafarer’s Employment Agreement), Regulation 2.2 (Wages), Regulation 2.3 (Hours of Work and hours of Rest), Regulation 3.2 (Food and Catering), and Regulation 4 (Health protection, medical care, welfare and social security protection) of MLC.
The Article IV of MLC 2006 stated 4 seafarer’s rights: right to a safe and secure workplace that complies with safety standards; right to fair terms of employment; right to decent working and living conditions on board ship; and right to health protection, medical care, welfare measures and other forms of social protection. The implementation of ‘fair terms of employment’ manifested could be manifested with clear written legally enforceable agreement which cover fundamental aspects (like wages, remuneration, hours of work, hours of rest, etc.) as stated in Regulation 2.1 and be paid for their work regularly and in full in accordance with their employment agreements as stated in Regulation 2.2. The implementation of ‘decent working and living conditions’ certainly was not fulfill by the fact that the Indonesian seafarers had inhuman hours of work and rest and without healthy and decent food and beverages, which in violation with Regulation 2.3 and Regulation 3.2. The ‘right to health protection, medical care, welfare measures and other forms of social protection’ could be fulfilled by adequate measures for the protection of their health and access to prompt and adequate medical care whilst working on board, which can acquired with no cost. Ship owner also have to cover all seafarers cost in respect of sickness and injury. All of mentioned measures —as stated in Regulation 4— is minimum, and still was not fulfil by either ship owner or ship master. Since those previous Conventions giving responsibility to the country, then China can be held with international responsibility for any exploitation that happened on Long Xing 629.
Closing
Long Xing 629 has involved in some IUU Fishing because its conduct shark fishing, which is beyond its authorization. Despite the inhuman treatment towards Indonesia seafarers, it is important to not consider the issue as modern slavery, but severe exploitative working condition. The IUU fishing led to exploitative working condition on the ship that caused the death of three Indonesian seafarers. Long Xing 629 violated Article 2 Paragraph (2), Article 7, and Article 12 of ICESCR. Moreover, the master of the ship also violated several provision from MLC 2006.
The complete settlement and due process of law in this case is a must. Indonesia has to increase the diplomatic and media’s pressure to China as a flag state. Since China is one of the most undemocratic country in the world, it is important to held joint investigation between Chinese, Indonesian, and Korean law enforcer. Compensation for the seafarers and their family could be reasonable, depends of the legal process result.
