Exploitation in the Global Fishing Industry:
New Zealand Researchers and Advocates Secure a Rare and Important Victory
Anne T. Gallagher

The extent of exploitation within the world’s fishing fleets almost defies description. A recent report by the Nexus Institute and IOM documents the horrific situation of Ukrainian Seafarers “led through a calculated maze into a world of imprisonment at sea, backbreaking labour, sleep deprivation, crippling and untreated illness, and, for the least fortunate, death”. IOM has documented similar abuses of Cambodian and Myanmar migrants working on Thai fishing vessels, some of whom were casually murdered and thrown overboard when their capacity to work was diminished through starvation, overwork and disease. Researchers report that West African children as young as four are being lured away from their parents for a life of hardship and abuse fishing the inland lakes of Ghana.

Fishing is one of the world’s largest and most unregulated industries. Global demand for low-cost seafood, in a situation of fast-depleting fish stocks, is driving operators to look for savings wherever they can. Men and boys desperate for work are the perfect fodder for greedy and dishonest recruiters (often legal employment agencies) who make substantial commissions tricking them into signing false contracts. Once on board, victims typically find that they owe large debts, which can only be paid off through months or years of work. Resistance is almost always futile. The boats are very effective prisons. They are often at sea for months or years at a time, offloading fish onto larger vessels from which they also receive supplies. On those boats that do come into port, the confiscation of identity documents, threats of harm and withholding of wages are usually sufficient to make sure enslaved crew don’t run away.

One particular story of research and activism in this difficult area deserves to be told: not least because it provides an example of how persistence, backed up by reliable information, can force governments to implement real change.

Fishing is a major revenue earner for New Zealand and a number of regulatory innovations have been developed to optimize harvesting of fish stocks in that country’s richly endowed Exclusive Economic Zone (EEZ). One innovation is the foreign charter vessel (FCV): a system whereby foreign vessels, complete with foreign crew, are chartered by New Zealand companies to fish the EEZ on their behalf, with the catch being transferred onshore for processing. In addition to lowering production costs, the use of FCVs enables tariff free entry of the catch into flag state markets. Over the past decade compelling evidence has slowly emerged of forced and exploitative labour amounting to human trafficking onboard FCVs. While isolated cases dating back to the mid-1990s had previously been reported, the issue first came to international attention in August 2010 when the fishing vessel Oyang 70, flagged to the Republic of Korea sank in calm seas 700 km off the New Zealand coast. Five Indonesian fishermen and the Korean captain died. The rescue exposed horrific living and working conditions for the Indonesian crew. Less than a year later seven crew abandoned the Korean-flagged Shin Ji fishing vessel and 32 abandoned the Oyang 75, another Korean-flagged vessel. All 39 Indonesian alleged abuse and under payment or non-payment of wages. Some also alleged physical abuse and sexual harassment. These and other cases make abundantly clear that labor standards for foreign fishing crew, established through a voluntary code of practice adopted by the New Zealand Government in 2006 are being widely flouted.

From an international legal point of view, the jurisdictional complexities of this scenario are formidable: the harmful conduct is apparently taking place outside the territory of the state to which it is most directly linked; by nationals of a second state on vessels flagged to that state; and against nationals of a third state. Certainly any legal responsibility that is successfully established in respect of New Zealand is likely to be shared: (i) with the state of nationality of the vessels concerned, which may also be found to owe a duty under international law to prevent trafficking on its ‘territory’; to prosecute its nationals; and to protect victims and (ii) the state of origin of the victims which may be found to owe a similar range of obligations. There is also a question about involvement and potential responsibility of (or for) non-state actors whose conduct has contributed to the harm. This group could include the New Zealand entities to whom fishing permits are issued and who contract the services of FCVs; recruitment agencies in countries of origin; and even the seafood processing, export and retail corporations within and beyond New Zealand whose supply chain is tainted by forced or exploitative labor.

Little has been done to unravel these complexities and to allocate responsibility fairly among the various involved States. However, in the case of New Zealand, external pressure (in the form of the US TIP Reports) and internal activism, fueled by intense media attention and highly visible civil society groups, has begun to have a significant impact. After denying the existence of a problem for several years, the Government of New Zealand initiated a parliamentary inquiry into the operation of FCVs in 2011. On the basis of its findings  the Government recently announced that from 2016, all commercial fishing vessels operating in New Zealand waters will need to be registered as New Zealand ships and carry the New Zealand flag. The reflagging of these vessels is critical, as it will operate to bring foreign crew within New Zealand laws including those related to employment and maritime safety. NGOs are now working to supplement this change through measures such as the elaboration of certification standards that will support a strengthened compliance system.

These developments are significant and deserve to be applauded. They provide a rare and welcome example of strong research creating the basis for effective advocacy that in turn leads to real changes in laws and policies. However, we should not be under any illusion that reforms in New Zealand will result in a decrease of exploitation within the global fishing industry. Most likely, the foreign vessels engaged in slavery-like practices will move elsewhere if the costs of increased regulation justify such a move. In this area as in many others we are confronted with the limits of national action. International cooperation to end exploitation of human beings for profit is not a luxury but a necessary precondition of any truly effective response.

Trafficking was a matter for international human rights law long before it became an issue of migration or of transnational organized crime. However human rights law has not, on balance, been especially useful to victims of trafficking. Rarely are even the most clear-cut and uncontested provisions (e.g. those relating to slavery, debt bondage, forced marriage and forced labor) advanced in relation to a situation of trafficking. When such connections are made, their purpose is often rhetorical and, even when presented by legal scholars, conspicuously lacking in legal justification. While many examples could be cited, one of the most significant relates to the human rights treaty-bodies: the key enforcement mechanisms of the international human rights system. Despite this issue being raised with increasing frequency in the context of human rights treaty-body work, none of the relevant committees has managed to tie trafficking to a violation of a specific right in a specific treaty. Perhaps this is because trafficking is just too complicated. Perhaps it is because the norms themselves are devoid of sufficient content to support their application to real life. Perhaps the situation is aggravated by the fact that traffickers are generally bad people and bad organisations, not bad governments.

Using International Human Right Law to Better Protect Victims of Human Trafficking

Remedies are a critical aspect of the international legal response to trafficking, confirming the status of trafficked persons as victims of crime and victims of human rights abuse. Over the past decade, States and the international community have come to better understand the true consequences of trafficking – an essential prerequisite to consensus on what constitutes ‘effective” and “appropriate’ remedies for trafficking-related harm. There have also been great improvements in the articulation and acceptance of legal obligations owed by States to prevent and respond to such harm. Unfortunately, and despite this important progress, victims of trafficking very rarely receive the justice to which they are entitled.  This paper sets out the international legal and policy framework that relates to remedies for victims of trafficking. Clarity about obligations and responsibility is important because it is on this foundation that strategies for improving access to justice for victims of trafficking can be developed, implemented, monitored and evaluated.

The Right to an Effective Remedy

In countries around the world it is common practice for victims of human trafficking who have been “rescued” or who have escaped from situations of exploitation to be placed and detained in public or private shelters. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years. This article uses field-based research to document this largely unreported phenomenon. It then considers the international legal aspects of victim detention in shelters and weighs the common justifications for such detention from legal, policy, and practical perspectives.

The High Cost of Freedom

In terms of both speed and substance, the development in human trafficking related norms and standards over the past several years is almost unprecedented in international law. This article examines the 2005 Council of Europe Convention on Action against Trafficking and the various legal and policy developments that led up to or otherwise intersect with this watershed agreement. The analysis focuses special attention on the issues of international obligation and responsibility around trafficking, particularly in relation to its important human rights dimensions. What exactly is required of States under the new European treaty in terms of specific actions and responses? How do these obligations compare to those contained in the UN Trafficking Protocol, adopted by the General Assembly five years earlier? How do they relate to other agreements developed within the European institutions? To what extent has the new European Convention remedied weaknesses in the international legal regime especially those related to protection of victims of trafficking? What are the main challenges ahead and is the Convention and its various implementing mechanisms up to meeting these challenges and thereby contributing to a more effective international law around trafficking?

Recent Developments in the Field of Human Trafficking

Distinguished participants, ladies and gentlemen,

I would like to begin by thanking the National Judicial College for organizing this event and for inviting me to participate. Much of my work on trafficking has taken place outside Australia. My exposure to this issue as it has played out in this country is more or less limited to involvement, since 2004, in training the specialist AFP investigators. I look forward to learning from the other presenters as well as from this highly diverse audience.

In the short time allotted, I would like to provide you with an overview of what my colleagues and I have learned about the prosecution and adjudication of trafficking in persons cases. I am fairly confident that much of this will not be new to you. Trafficking seems to be a marvelously homogenous crime and there is a striking level of similarity in the issues facing prosecutors and judges across countries and across regions. That being said, each country, and each legal system is different and clearly, there is no one model that works perfectly.

Presentation – National Judicial College of Australia

Global concern about human trafficking has prompted substantial investment in counter-trafficking interventions. That investment, and the human rights imperatives that underpin counter-trafficking work, demand that interventions demonstrate accountability, results and beneficial impact. How this can happen in practice is complicated and contested. This article, which considers success measurements with respect to criminal justice interventions, seeks to cut through the complexities presented by multiple theories and elaborate methodologies by focusing on one key issue: who decides success, and how? A review of evaluation reports and interviews with practitioners confirm that determinations of success (or failure) will vary according to: (i) who one consults and their role in the intervention; (ii) the criteria against which success is measured; and (iii) the assumptions that are built into that criteria. Each aspect is considered with reference to examples and insights drawn from recent practice. A major finding of the article is that the lack of an overarching vision of what “success” might look like allows mediocre or even harmful interventions to flourish and good work to go unrecognised and unrewarded.

Measuring the Success of Counter-Trafficking Interventions in the Criminal Justice Sector

In December 1998, the United Nations General Assembly established an intergovernmental, ad-hoc committee and charged it with developing a new international legal regime to fight transnational organized crime. In October 2000, after eleven sessions involving participation from more than 120 states, the ad-hoc committee concluded its work. The centerpiece of the new regime is the Convention Against Transnational Organized Crime, supplemented by additional treaties (protocols), dealing respectively with Smuggling of Migrants, Trafficking in Persons – Especially Women and Children, and Trafficking in Firearms. The first three of these instruments were adopted by the General Assembly in November 2007 and opened for signature in December 2000. The significance of these developments should not be underestimated. The Vienna process, as it has come to be known, represented the first serious attempt by the international community to invoke the weapon of international law in its battle against transnational organized crime. Perhaps even more notable was the selection of the highly politicized issues of trafficking and migrant smuggling as the subjects of additional agreements. This article provides an overview of the Vienna Process and its outcomes with particular reference to the issue of trafficking in persons. It summarizes the principal provisions of the Convention against Transnational Organized Crime and explains the connection between this instrument and its protocols. The origins of the trafficking and migrant smuggling protocols are then examined and each instrument is described and analyzed in detail. The Article concludes with a first-hand account of the negotiations – providing an insight into the competing interests that drove the drafting process and that ultimately determined its outcome.

Human Rights and the New UN Protocols

In a Fall 2008 article published in the Virginia Journal of International Law, James Hathaway questions whether the elimination of trafficking is a worthy objective and an appropriate focus for international law. Specifically he charges that while the elimination of trafficking is billed as the answer to contemporary slavery, the focus on trafficking has unfairly ‘privileged’ a small group of exploited individuals and diluted efforts that could have been better spent addressing the much broader problem of human enslavement. Hathaway also asserts that those human rights advocates and practitioners engaged on the issue of trafficking have been hoodwinked by preferred destination countries into supporting a covert extension and tightening of border controls, thereby driving migratory demand into the black market and increasing the difficulties faced by refugees seeking to access their right to protection under international law. This Article, written from the perspective of one who has been closely involved in the development of the new legal framework, as well as in its implementation at the national level in over forty countries, provides an alternative and a sharply differing perspective on the global battle to combat trafficking. In considering each of Hathaway’s major concerns in turn, and discrediting the assumptions and authorities on which they are based, I identify a number of serious flaws in both interpretation and application. In terms of the broader legal and political context, I conclude that far from damaging human rights, the issue of trafficking provides unprecedented opportunities for the renewal and growth of a legal system that, until recently, has offered only platitudes and the illusion of legal protection to the millions of individuals whose life and labor is exploited for private profit.

Human Rights and Human Trafficking – Quagmire or Firm Ground

Trafficking in persons now affects all regions and most countries of the world. Over the past decade, there has been increasing acceptance of the need for an effective, internationally coordinated response. However, the practical difficulties in realizing this goal are considerable. No country can yet lay claim to genuine, extensive experience in dealing with trafficking as a criminal phenomenon. Most are developing and adapting their responses on the run, often under strong political pressure, and principally through trial and error. While communication between national agencies on this issue is improving, there is still very little cooperation or cross-fertilization of ideas across national borders. The authors draw on emerging international rules as well as their experience of working with States and intergovernmental organizations on this issue to propose eight elements of an effective national criminal justice response to human trafficking. Each is described in detail, justified with reference to relevant international standards, and illustrated with examples from current professional practice.

Developing an Effective Criminal