Published on 27/03/2012
One of the biggest challenges international human-rights law faces is to ensuring legal protections are enforced in places where the rule of law does not operate.
We often think that it is only places such as Myanmar, Zimbabwe and North Korea, where human-rights abuses go unchecked. Indeed, we would be surprised to discover that human-rights abuses within New Zealand territory go unscrutinised.
Yet this is exactly the concern expressed by a ministerial inquiry recently.
The ministerial inquiry was established to make recommendations on the use of foreign charter vessels (FCVs). These are foreign-owned and foreign-crewed fishing boats contracted by New Zealand fishing businesses. New Zealand businesses often lack the resources to fish the entirety of their fishing quota. FCVs are therefore chartered to help these businesses fish New Zealand waters.
FCVs are blighted by allegations of abuse. In recent incidents, foreign crews have jumped ship, pleading they could no longer tolerate the emotional, physical and sexual abuse inflicted by the FCV officers. The incidents have been well documented in a major study published by Auckland Business School academics, who found crews were often forced to work endless hours for a fraction of the wages owed to them.
The inescapable conclusion reached by the academics is that modern-day slavery is used to fish New Zealand waters at the behest of New Zealand business.
As more and more scandals of abuse on FCVs are reported, the eyes of the world have turned to New Zealand.
Journalist Ben Skinner published the results of a six-month investigation into FCVs in New Zealand in the high-profile United States' Bloomberg Businessweek.
Skinner reports to have found evidence of bonded labour on at least 10 ships that are chartered to fish New Zealand waters.
In light of the damning evidence, US supermarket giants Safeway and Wal-Mart have launched investigations into slavery on foreign- crewed fishing ships in New Zealand waters.
The international fish market is well versed in consumer tastes towards ethical and environmentally friendly fishing practices. New Zealand's reputation as "pure" and ethical is now severely compromised as Safeway and Wal-Mart's investigations illustrate.
The critical question is why have we allowed abuse on FCVs to continue?
FCVs fish New Zealand fishing quota in an area known as the Exclusive Economic Zone (EEZ). The legal framework governing the EEZ allows New Zealand to regulate environmental concerns which, in turn, permits New Zealand to keep a tight control of its fisheries.
There is, however, considerable uncertainty about whether New Zealand has jurisdiction to enforce its other laws over this area.
The result is that when human-rights abuses occur on FCVs in the EEZ, the New Zealand authorities are reluctant to become involved. It is telling that, in spite of numerous reports of abuse, the New Zealand police have never made a formal investigation, let alone a prosecution.
Any lack of recourse for exploited foreign workers is, however, typical of the offshore supply chains on which developed nations depend.
It is well known that the current trend of international industries is to outsource operations to developing countries where labour is cheap and labour law unenforced. New Zealand's fishing industry is liable to the same criticism.
Recent statistics show that FCVs fished about 51 per cent of the total catch from the EEZ in 2010 and 2011. This amounts to about $296 million in export value. However, the unique jurisdictional arrangement over the EEZ gives New Zealand permission to derive all the economic benefits from FCVs, while accepting none of the legal responsibility.
Arguably, there is no alternative but for developed countries like New Zealand to take responsibility for providing legal remedies for these workers.
John Ruggie, the United Nations Special Representative for human rights and business, recognises the necessity.
He advises that, if developed states are serious about remedying overseas human-rights abuses caused by their industries, the developed states must offer effective legal remedies to their foreign victims.
Ruggie's argument is strong. Since New Zealand's economy is dependent on FCVs, it is simply a matter of logic that New Zealand should accept responsibility for the foreign crews we exploit.
However, the current practice is to save costs by neglecting to provide foreign workers the basic human rights and labour standards New Zealanders take for granted. This is unacceptable and it can be prevented.
The ministerial inquiry report makes several recommendations which have the potential to make a world of difference for vulnerable foreign crews. Three recommendations, in particular, should be commended because, if they are implemented by the Government, foreign crews will come under the protection of New Zealand law.
The first of these recommendations is for the foreign crews of FCVs to enter a direct employment relationship with the New Zealand business that charters the FCV. The New Zealand business would then be obliged to comply with all New Zealand employment law obligations, such as fair wages, reasonable working hours and decent health and safety conditions.
The second of the recommendations is for the FCV to be flagged as a New Zealand vessel. By bearing a New Zealand flag, the jurisdictional uncertainties would be removed.
New Zealand would be in a position to enforce all New Zealand vessel safety and employment standards in full measure, and the provisions of the Crimes Act would apply.
The third of the recommendations is for FCVs be used only under a demise charter. A demise charter is a charter arrangement which will facilitate the previous two recommendations.
Unlike the current charter arrangements, under a demise charter, the New Zealand party can be the employer and the vessel chartered can be New Zealand flagged.
These measures will prevent New Zealand businesses avoiding their responsibilities by keeping the foreign crews at arms length in a subcontract relationship.
New Zealand businesses will now have direct links with as employer of the crew and the relationship will be governed by New Zealand law.
From a bald reading of the recommendations, their true significance is not readily apparent. Human-rights commentators would suggest that they are a bold step.
In essence, the recommendations encourage New Zealand to take jurisdictional responsibility for conduct in the EEZ when its legal obligation to do so is questionable.
The Government is invited to regulate a supply chain which to date has exploited foreign workers for New Zealand's economic gain.
The recommendations therefore buck the trend of global industry in which operations are outsourced to places beyond the scrutiny of the law.
The question now is, will the Government implement the recommendations? Given the findings of the inquiry, it is beyond question that the abuses inherent in New Zealand's fishing industry must be remedied. The Government's rhetoric in response to the inquiry's recommendations has been positive but vague.
A firm commitment is needed from the Government to implement the necessary measures to bring FCVs under New Zealand law. Will the Government take so basic, yet so bold a step? There is an opportunity for New Zealand to become a model in human- rights enforcement. It must not be missed.
* John-Luke Day is a solicitor at Wynn Williams Lawyers, Christchurch.