With almost 24 kg/year/per capita, Europeans are, after Asians, world champion consumers of seafood. The EU depends heavily on imports for feeding its citizens’ appetite for fish.
In 2021, it imported 6.2 million tonnes of fisheries and aquaculture products, approximately 60% of the total consumption. Even though the EU seafood market is one of the most lucrative in the world, seafood and fisheries are often overlooked in food and trade policies and bilateral agreements.
The growth of international fish trade brings benefits to many developing countries, but it also poses risks of human and labour rights violations, environmental damage, land and sea grabbing, and corruption. In a globalized world, multinational companies– many of them with a European parent company – have acquired extraordinary power, especially in developing countries, where they have taken advantage of poor governance and weaker regulations. While the parent companies are required to uphold high standards for their operations in Europe, they often enact little to no due diligence on their partners, subsidiaries, or suppliers in third developing countries.
What is due diligence?
Due diligence means that multinational companies should make sure that their businesses do not harm host communities nor prevent the sustainable development of host countries. While the presence of multinational companies has helped developing countries create employment and opportunities-, often these same companies unduly benefit from exploiting weak domestic regulation on environment or labour. This focus on companies does not remove the responsibility of governments to protect human rights, but rather acknowledges the power and bargaining capacity these multinationals can muster. Companies sometimes have more capital than the GDP of developing countries where they operate. Victims of abuses perpetrated by these companies find it almost impossible to get reparation in the courts due to lack of legislation, poor governance, or blatantly corrupt judicial systems.
“The Council, the European Commission and the European Parliament have started trilogue negotiations for a corporate sustainability due diligence directive (CSDDD), with an outcome expected by the end of 2023. ”
For decades, civil society organisations have been denouncing abuses while at the same time demanding stricter regulation for multinational companies. The international community has only managed to agree on voluntary sustainable standards touching upon different aspects of due diligence. The European Union regulation is also fragmented. There is for example, a non-financial reporting directive, which brings the voluntary approach for companies to publish what they do to protect the environment, the labour rights of their employees and other social responsibility matters. After the Rana Plaza scandal, the European Parliament called for a sector specific due diligence for the fashion industry. There are some limited regulations bringing effective enforcement in the case of conflict-related minerals and timber, or a directive on unfair trading practices which does not cover the full value chain. For fisheries, the Illegal, Unreported, Unregulated (IUU) regulation and EU sanitary standards do hold companies to account, but do not cover environmental and social sustainability matters.
The European Parliament (EP) has long been advocating a stronger legal framework and in 2018 it adopted a resolution calling for such a legislation to be developed. In its Farm to Fork strategy, the European Commission suggested the development of a legislation to prevent imports of products associated with deforestation and human rights violations. The Food Policy Coalition, a coalition of CSOs advocating for sustainable food systems, welcomed this, however deplored that no measures were suggested “to reduce the overall consumption of such products, animal feed being a case in point.” With such expectation raised, however, the Commission fell short and announced in November 2021 a policy only for products related to deforestation. Finally, in February 2022, it came up with a proposal for a corporate sustainability due diligence directive (CSDDD), in a common position with the Council. On 1 June 2023, the EP agreed on a position, which allowed for trilogue negotiations to start. The Spanish presidency is expected to push for an outcome before the end of the year.
2. Sustainability and fairer competition: Why due diligence is necessary for fisheries and aquaculture
In 2017, the European Parliament fisheries committee (PECH) drafted an initiative report which called for the creation of “high standards concerning the quality and sustainability of the product that EU consumers have legitimately come to expect,” and noted that “compliance of fisheries and aquaculture products from third countries with EU standards relating to environmental and social sustainability would promote sustainability in those third countries and help create fairer competition between EU products and products from third countries”. Although the report focused more on a level playing field between EU products and imports, it was a first step towards asking for due diligence for the multinationals in the fisheries and aquaculture sectors.
“The EU’s regulation on due diligence is fragmented with some regulations for specific “high-risk” sectors, such as timber. For fisheries, only the IUU regulation and sanitary standards hold companies to account. ”
This report underscored that the only controls imported products were subjected to were sanitary and whether they had been caught in compliance to the rules (IUU regulation). However, there is no regulation that ensures that the production conditions of fisheries and aquaculture imports abide by EU environmental, human rights and labour standards. It stated, “the efforts for EU fishing to be sustainable and respecting high standards is not compatible with importing products with no concerns on sustainability.” In Africa specifically, there are many cases of human rights violations and environmental damage caused by the EU fisheries sector that affect coastal communities.
a) Environmental damage
In October 2021, CFFA raised the alarm that Spanish vessels, flying a Senegalese flag, were benefitting from the Liberia-Senegal fishing agreement to trawl for shrimps in a “fragile environment of corals and sponges” in Liberia. The Senegalese company SOPERKA, part of Grupo Pereira (Vigo, Spain), had obtained an “experimental fishing” licence for three 40-m trawlers, yet none of the provisions of the Liberian law, such a research plan, an environmental impact assessment, the onboarding of observers, or the landing of catches in the country seemed to be respected. Instead, it looked like a backdoor way to intensively fish species of high commercial value. These carabineros, the largest prawn in the world and which can be sold in retail up to $80/kg, were landed in Dakar (Senegal) and exported to lucrative markets such as Spain or Japan. This is not the only case of European-owned vessels trawling coastal areas, overfishing, or causing damage to highly sensitive ecosystems.
b) Human rights and the right to food
Fishmeal and fishoil factories are multiplying in West Africa due to a growing global demand. Fishmeal is used for feeding pigs, chickens, as well as carnivorous fish, like industrially farmed salmon or shrimps, while fish oil is also used in nutrition complements, beauty products and by the pharmaceutical industry. It is estimated that to produce 1 kg of fishmeal, 5 kg of fresh wild-caught fish are required. The growth of this industry in the region is a key factor leading to the overexploitation of small pelagic fish, which are a staple of the diet in the region, traditionally caught by artisanal fishers and smoked and dried by women fish processors.
Both fishmeal and fish oil from West Africa are imported onto the EU market. The EU is likewise a major market for farmed salmon produced in countries, such as Norway or Scotland, that also use these products from West Africa.
Apart from the loss in jobs and livelihoods and the pollution of the plants, the redirection of fresh fish from human consumption to animal feed is threatening food security of the region, and hence violating the right to food of the West African populations.
FIGHTING GIANTS: Getting compensation for the damages of oil spills and gas leaks
Whereas this article focuses on the risks posed to African fishing communities by EU companies in the fisheries and aquaculture value chain, there are also other EU multinational companies operating in areas that have been traditionally used by coastal and fishing communities, and that violate human rights and destroy the environment.
Oil spills and gas leaks have caused and are continuing to cause a significant environmental damage in the Niger delta in Nigeria (photo by Norway Socialist Youth League). The most populated country in Africa, Nigeria is a prime example of how the combo multinational companies and prized natural non-renewable resources coupled with rampant corruption creates inequalities, injustice, and insecurity instead of a sustainable development. More than 6 million people working in small-scale fisheries face every day the threat of pollution and destruction of the ecosystems which they depend on.
Oil companies often claim sabotage or accidents to shun their responsibilities, but if a court finds them guilty or the authorities in charge of oil spill response demand a fine for damages and reparations, it is very hard to make them comply, as they often manage to contest the courts decisions or bribe corrupt judges to their favour. Recently, a local artisanal fisheries organization demanded again that Shell Nigeria complies with a court judgment of 2015, which upheld an imposition of $1.8billion for discharging 40, 000 barrels of crude into the Atlantic Ocean on December 2011.
Although some progress is visible in some of these companies being brought in front of European courts, it is obviously difficult for small-scale fishing organisations to bring a giant to court without the help of international NGOs, and the processes for denouncing and obtaining reparation are in most cases inexistant and if they do exist, they are confusing.
c) Labour rights
In recent years, nauseating reports have been published of labour abuses and even slavery in the fisheries sector, mainly on migrant fishers working on board Asian vessels across the world. These fishers are subjected to “extreme human rights abuses, including unlawful practices that threaten their physical integrity, their safety and sometimes their life, forced labour and human trafficking.” In South-East Asia, there are reports of abductions, where the victims are placed on board of fishing vessels for years on end.
In Africa, apart from labour abuses on board the vessels, there are also cases of physical abuses of artisanal fishers when they have protested against incursions of industrial vessels in the area reserved for local artisanal fisheries.
Those fishing boats are flying the flags of countries that supply the EU seafood market. South East Asian countries, and China, are famous for their “lax attitude towards the respect of environmental and social standards in fish production and processing.” Whereas the EU importing and processing industry, and ultimately EU consumers, are benefitting from accessing seafood at lower prices, this raises questions beyond due diligence regarding an unlevel playing field with products caught by EU vessels, who are subjected to high sustainability standards under EU legislation.
3. An ecolabel is not proof that due diligence has been exerted
In the last decades, there has been increased public attention to what companies are doingregarding environmental sustainability. From the fashion world to the car industry, it is either about reducing carbon footprint, using organic products or recycled plastics. Yet, with this comes a strong temptation for companies to greenwash their production through sometimes dodgy certifications or even self-certifications. Consumers are facing a wide variety of logos on packaging they do not understand or that cover just a few criteria, either environmental or social.
The most common example is farmed salmon, which is often advertised as “sustainable” but with a certification that does not cover the whole value chain: it may cover the sustainability of the production in countries like Scotland or Norway, but not whether the fish feed used to feed the salmon is sustainably sourced. When, on top of it, it is advertised as “organic” salmon an even higher proportion of fish feed produced with wild-caught fish has been used, very often from developing countries, including West Africa where it deprives local populations of fish. Carnivorous fish farming depending on fishmeal and fishoil is not sustainable nor can it be ever made sustainable.
Eco-certification cannot claim independence: they are paid by the seafood companies they assess. There are blatant cases of conflict of interests where top leadership of companies are in the board of the assessing organisations. A recent external review on the Marine Steward Council label, which certifies 20% of the global catch, found that “fisheries with unsustainable impacts are still able to gain certification.”
Farmed salmon which is labelled “organic” is likely less sustainable, as it requires a higher proportion of fishfeed produced with wild-caught fish. Fishmeal production in West Africa is putting a strain on sardinella stocks, a staple food for the local population and livelihood for thousands of fishers and women fish processors. Photo: Vicky Ng.
Beyond labels, public-private partnerships are being set up with the support of some big environmental NGOs to help fishing and seafood companies to gain eco-labels, like the “Fish improvement projects” (FIP). More often, these FIPs are used in cases where a label obtention would not be possible straight away due to the unsustainability of the sourcing. This is a way for companies be able to claim green credentials for a mere promise to make their production more sustainable someday. CFFA extensively exposed the case of the fisheries reduction industry in Mauritania, where the FIP workplan is a tick-the-box list, with no baseline data to measure progress and spelling out goals that both government and companies should be doing anyway.
Such ecolabels and multistakeholder initiatives seek to greenwash seafood products destined to the European consumers: they are not proof of a real due diligence exercised by the company. The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct note that “Self-regulatory practices and multi-stakeholder initiatives should be credible and transparent.” In the chapter on consumer interests, the commentary spells out: “Environmental or social claims that enterprises make should be based on adequate evidence and, as applicable, proper tests and verification.”
4. Existing legislation
There is very little binding legislation and a lot of voluntary schemes and guidelines linked to due diligence. We have selected the ones we believe are the most relevant to seafood products and/or to the current context and trends.
a) At international level
The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct are generally considered the most complete, despite the fact they are non-binding. They provide guidance on human and labour rights, environment, and corruption, and they provide for an “implementation mechanism” for the reception of grievances in case of non-observance of the Guidelines. There are 51 National Contact Points (NCPs) in the countries that adhere to the Guidelines and they handle cases in a “non-judicial” manner, often through mediation between the complainant and the company. The outcome of the cases (“specific instances”) depends highly on the commitment of each NCP.
These Guidelines have for example been used recently by a group of 1000 Senegalese women fish processors who introduced a complaint against a Turkish company. This company planned to build a metallurgical plant on a land which had been used by these women for decades and failed to carry out the required impact assessments, to submit a resettlement plan, and consult with the impacted communities. Whereas the complaint did not have much impact on the actions of the Turkish company, the mobilisation of the fish processors pushed the Senegalese government to offer an alternative site for them.
Using the implementation mechanism of the OECD Guidelines through the National Contact Points in conjunction to a media strategy can lift the profile of a lack of due diligence case, such as the one of the Senegalese fish processors against a Turkish company. Photo: Lamine Diack.
The OECD Guidelines were recently updated (June 2023) to address several matters, including expanded recommendations on corruption, on climate change, meaningful stakeholder engagement, strengthened guidance on full value chain due diligence, and updated recommendations on disclosure of responsible business conduct information. These latter are very welcome, especially with the increasing concern of greenwashing by companies: “Enterprises should prepare and disclose information in accordance with internationally recognised accounting and disclosure standards, and refrain from publication of insufficient or unclear information.”
In 2011, another set of principles was unanimously endorsed by the UN Human Rights Council: the UN Guiding Principles on Business and Human Rights (UNGP). These were the first global standards for preventing and addressing the risk of adverse impacts of businesses on human rights. As opposed to the OECD guidelines, which are mainly profit-linked (sustainability profitable for corporations and the market), these are fully based on human rights and provide guidance with distinct responsibilities for states and businesses. They are organised in three pillars: the duty of the state to protect, the corporate responsibility to protect and an access to remedy. However, as the European Coalition for Corporate Justice highlights, “the framework’s non-binding nature explains its poor track record in terms of implementation,” especially in what they call the “neglected last mile,” the access to remedy: “After 10 years of endorsements and public commitments, the reality is that victims are still denied a path to justice.” There are ongoing negotiations for a binding treaty.
b) At national level – the French law on due diligence
In the meantime, at least 25 countries worldwide have adopted National Action Plans linked to UNGP; in the EU, only half the EU member states have. Some EU member states have even adopted laws regarding due diligence and supply chains, like France and Germany. A year ago, the ECCJ analysed the due diligence laws and legislative proposals of 6 European states and the European Commission and European Parliament proposals. Most of them target only very large EU companies, although in the Commission proposal the scope broadens for “high-risk sectors,” such as garment, minerals, and agriculture, which technically would presuppose seafood would be included under agriculture.
The French law entered into force in 2017, which means there has been enough time for a preliminary evaluation of its implementation. The law requires French companies that have employed, in the last two years, more than five thousand people worldwide (in their head office and in their subsidiaries) to draw up and implement a due diligence (“vigilance”) plan. This extends to non-French companies operating in France which have more than 10.000 employees worldwide. With such a narrow scope, it is highly unlikely that companies from the fisheries and seafood sectors would be covered. Beyond the scope, the law fails to provide a real redress mechanism, with no presumption of liability and a reversal of the burden of proof for the victims.
It is highly unlikely that companies from fisheries and aquaculture sector will fall under the scope of due diligence national legislations, as often they require a minimum amount of staff employed or a minimum turnover. Yet the potential for damage of certain operations can be nefarious, such as the impact of fishmeal production for fishfeed in West Africa. Photo: Francisco Mari.
In 2020, an evaluation finds that “the first practical difficulty is to draw up a list of the companies concerned,” which they estimate between 200 and 250, as “no government department currently has all the information needed to determine whether the law applies to a particular company.” The evaluation moves on to analyse the particulars of the law and finishes with a key reflection on due diligence: “Too many companies still understand due diligence as a tool to protect their interests and reputation. As a result, they focus on themselves and not on the outside world,” while they formulate a “repetitive discourse on the excessive and unworkable regulatory burden on businesses.”
However, they also warn of the difficult “often stormy” dialogue with NGOs and identify stakeholder dialogue as the “stumbling block.” They conclude: “If there is no improvement in the dialogue with the NGOs, which is at the very origin of the law, due diligence could become a paper obligation, a "tick the box" type of compliance, rather than a genuine policy for reducing risks on a daily basis.”
5. Conclusion and recommendations for a fisheries specific approach
EU member states are reluctant to give a clear definition to “chain of activities” and unlikely to support a legislation that applies to the downstream part of the value chain. Yet, there is a consensus among EU fisheries stakeholders that EU cannot continue to import fishery products that run counter to the principles of sustainability that it advocates. In an own-initiative opinion on food systems, the European Economic and Social Committee, an entity which represents organized civil society in Europe, “highlights the limitations of a voluntary approach” and “calls for the adoption of regulation and legislation to ensure a swift transition to sustainability.”
On the other hand, looking at the scope of the recent EU legislative proposals, a “one-size-fits-all” due diligence policy would probably not be sufficient to address the challenges facing coastal communities in third countries where EU companies from fisheries and aquaculture value chains operate. A fisheries and aquaculture specific approach should be developed, that should include these sectors as “high-risk,” and should consider the following:
sustainability throughout the value chain
Strong sustainability criteria and a stronger definition of environmental degradation: legislation should include the entirety of the value chain, the impact of the production on the environment and the impacts on the communities that depend on those ecosystems for their survival.
human rights, iplc and fpic
Requirements to respect all human rights, including the right to food and the rights of indigenous peoples and local communities, especially customary tenure rights and the right to Free, Prior and Informed Consent of coastal communities affected by fisheries operations.
a large scope
The scope of the legislation should apply to all operators regardless of size, trade or catch volumes or the area of production or operation; due diligence processes should be mandatory and obligations should be results-based.
transparency
Stronger transparency requirements for companies, including information on supply chains and potential risks identified during the due diligence process.
no greenwashing through certifications
The use of certification schemes should be no replacement for due diligence process, and may at the most be complementary. The EU should look more in detail at the different certification schemes and whether their criteria are really sustainable.
right of redress
Access to justice for victims for serious non-compliance with rights of redress against EU operators; serious non-compliance should constitute a criminal offence.
support to developing countries
It is expected that such a directive will have an impact on producing countries. As environmental and social sustainable criteria can be costly to meet, the EU should provide financial and technical support to developing countries.
Banner photo: Illustrative photo by Elle Hughes.
The Cypriot commissioner-designate faced the questions of the European Parliament fisheries committee (PECH) regarding the strategic framework which should bring coherence among ocean-related policies, including the Common Fisheries Policy. PECH backed him for his future mandate.