Slavery and New Zealand in the same sentence… Surely not?

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Right now there is a Media furoe in New Zealand about an article that was published this week in Bloomberg Businessweek by Ben Skinner; Fishing as Slaves on the High Seas.

“Fishing as Slaves on the High Seas: For some Indonesian workers, commercial fishing in the seas off New Zealand became a nightmare of abuse aboard foreign-chartered vessels.”

In the article Mr. Skinner used the “S” word with reference to New Zealand fishing vessels and the export of their “ill-gotten products” to United States retailers. And this has gone down like a lead balloon. For goodness sake the “S” word has even been uttered here in New Zealand on occasion in reference to Foreign Charter Vessels (FCVs).

There is emotion everywhere – and why not, this is one of those subjects that rubs against the fundamentals of what it is to be a human. A melange of human rights against human needs, sovereign rights against sovereign needs. At first blush it all just smells wrong. The  temptation is strong to lash and do what we New Zealanders do so well when confronted with something abrasive, pass a law! But that isn’t an option here. So we need to exercise temperance and perspective. We need to hold back and we need to do the other thing that New Zealanders do best – we need to get get to the bottom of it and sort it out. And that is what is being done.

Photo: 28 year old Yusril seen fishing with his friends on a small boat on the Java Sea Photograph by Sanjit Das for Bloomberg Businessweek By E. Benjamin Skinner.

There is a lot more here than what is in Skinner’s Businessweek article. First of all, irrespective of Skinner’s  article that has resulted in Wal-mart and Safeway – having another look at some of New Zealand’s fishery products – their is a plethora of other factors that need to be taken into account. International trade constraints on States that have come about via the ‘age of global trade‘ that we live in. International labour law, private international contract law, sovereign jurisdictions and lots of other good stuff needs to also be taken into account. Most of all the facts have to be ascertained and the nature of the allegations have to be verified.

Since July a Ministerial Inquiry has been considering the operation of FCVs in New Zealand’s exclusive economic zone (EEZ) waters.

I agree with this take. This is a domestic issue. An issue that has been massaged malleable by the media and pummelled pliable by party politicians. In New Zealand we have put it in perspective. We are on it.  For starters the the conclusions of the Ministerial Inquiry into FCVs, which has been a broadly consultative enquiry, will be released, I heard, this Friday. Our trade partners and customers have to trust that we will get to the bottom of it, and improve the situation – whatever that situation happens to be. Because we will.

So what of the Ministerial Inquiry into FCVs?

Why was it launched? Well over the years there has been no shortage of incidents that have arisen with regard to FCVs (and in particular those from Korea). Media have revealed a procession of alleged ‘decrepit’ Korean vessels in which crew have died and alleged abuse has taken place. Recently, Insung No 7 (which is owned by one of Korea’s biggest fishing companies – Sajo Oyang Corporation of Korea) has been exposed in an official report in which states including New Zealand, the US and the European Union demanded Seoul clean its act up in the wake of “many incidences” of non-compliance involving its flagged vessels (after being caught over-catching Antarctic Toothfish by 339%). Incidentally, the Insung 7 is a sister ship to Insung No 1 which sank in the Southern Ocean in December 2010 with the loss of 22 men. We all remember the Oyang 70 which sank in the Southern Ocean in 2010, killing six onboard (which is presently the subject of an inquest).

Incidents involving Korean FCVs in New Zealand’s EEZ include the alleged discarding of fish by the Oyang 75 and the desertion of the vessel in Lyttleton harbour by the some of the Indonesian crew (many of whom are witnesses for the Crown). The discard or dumping of taken fish is a breach of the Fisheries Act 1996, which relies on the accurate reporting of all activities and requires all commercially taken fish to be landed to Licensed Fish Receivers.

FV Oyang 75,

This investigation by the Ministry of Fisheries led to 26 charges being laid against five Korean officers including the captain of the Oyang 75,  Chong Pil Yun, who is being charged with three charges of aiding the dumping, and six charges of making false or misleading statements. These charges are due to be heard on 1 March 2012.

There have also been reports of alleged human rights abuses by crew members who served on board Korean flagged FCVs. In the days following the sinking of the 92 metre Korean flagged FV Oyang 70 700 kilometres East of Dunedin, in August 2010, the rescued Indonesian crew relayed tales of poor working conditions and poor pay to their rescuers and the media. Indonesian crew from other Korean flagged FCVs (like the Shin Ji, the Oyang 75 and more recently the Melila 201) have refused to return to their ships complaining of abuse, poor conditions, and poor pay.

These events, and the accompanying national and international media attention directed at the deepwater fishing industry in New Zealand led the Seafood Industry Council to request that the Minister of Fisheries initiate an inquiry into the operation of foreign charter vessels in New Zealand’s exclusive economic zone. This formal Inquiry that was initiated by the previous Fisheries and Aquaculture Minister, Phil Heatley and Labour Minister, Kate Wilkinson, is considering all key issues relevant to the use of FCVs. There maybe those who claim that the New Zealand Government is indifferent to the operation of FCVs in New Zealand waters. Yet the launch of this Ministerial Inquiry suggests otherwise.  Minister Kate Wilkinson said in a statement to the media:

Reports alleging the failure of some FCVs to comply with proper employment requirements, including crew working conditions, and vessel safety standards imposed by New Zealand had raised the Government’s concern … We decided a Ministerial Inquiry was the appropriate course of action as a number of ministerial portfolios have an interest in FCV engagement and operation. Fisheries, labour, immigration, transport as well as foreign affairs and trade all have an involvement in this area.”

The principal objective of the Ministerial Inquiry is to ensure that the operation of foreign owned and flagged vessels chartered by New Zealand fishing companies supports the following government objectives:

  1. Protect New Zealand’s international reputation and trade access.
  2. Maximise the economic return to New Zealand from our fisheries resources.
  3. Ensure acceptable and equitable New Zealand labour standards (including safe working environments) are applied on all fishing vessels operating in New Zealand’s fisheries waters within the exclusive economic zone.

Specifically, the Ministerial Inquiry is considering:

  1. The application of New Zealand’s legislative regime to the use and operation of fishing vessels, and in particular foreign charter vessels (FCVs), with respect to labour, immigration, maritime safety and fisheries management and the compliance with that regime by such vessels and their operators;
  2. Any international reputation risks associated with the use of FCVs;
  3. Any trade access risks associated with the use of FCVs;
  4. Whether the economic factors supporting the use of FCVs deliver the greatest overall benefit to New Zealand’s economy and to quota owners;
  5.  Whether acceptable and equitable labour standards (including safe working environments) are, or can be, applied on all fishing vessels operating in New Zealand’s fisheries waters within the Exclusive Economic Zone; and
  6. Any other matters that the Inquiry considers relevant.

The inquiry is being administered by a Ministerial Panel. This panel has considered a very wide range of submissions from a wide range of sectors within New Zealand. In addition the panel held public hearings in Auckland, Wellington, Nelson and Christchurch in October and visited fishing vessels. The Panel Chair, Paul Swain, acknowledged the importance of the wide-ranging scope of the inquiry as it is important to get input from as many interested parties as possible.

We will be reviewing New Zealand’s current policy and legislation as well as the economic return New Zealand is getting from our fishing resources… Our principal focus will be on protecting New Zealand’s international reputation and trade access, maximising the economic return from our fisheries and ensuring safe and equitable conditions on board all fishing vessels operating within our Exclusive Economic Zone.”

The findings are out tomorrow. They should be a good read and no doubt controversial. For those of you who cannot wait – why don’t you check out some of the submissions to the Ministerial Inquiry Panel into use and operation of Foreign Charter .

So what about this story by Ben Skinner?

This article by Ben Skinner, Fishing as Slaves on the High Seas is a compelling read. Skinner has a personal interest in slavery – he has been writing about it for the past 10 years. This is apparent in the story, where the focus is solely on the subject of the story, Yushil and their alleged experiences on board the Melila 203. The story isn’t exactly an exposé on the crew recruitment practices of Korean  fishing companies, but it does indirectly accuse those companies of recruitment malpractice. Actually it turns out that Ben Skinner has a substantial kiwi connection, recently acknowledging that half of his family are Kiwis and that he has an affinity for things New Zealand.

Skinner first published his investigations into human trafficking and slavery in A Crime So Monstrous: Face-to-Face with Modern-Day Slavery. In the five years during which he researched his book, Skinner traveled the globe to tell the stories of modern-day slaves, survivors, traffickers, and abolitionists. Going undercover when necessary, Skinner infiltrated trafficking networks and slave quarries, urban child markets, and illegal brothels. People estimate that there are more people  enslaved today than at any time in human history. Because the specific number is difficult to pin down, Skinner adopted a narrow definition of “slaves” as “people who are forced to work, under threat of violence, for no pay beyond subsistence.”

B. Skinner. A Crime So Monstrous

Skinner’s interpretation of ‘slavery’ is problematic to many. For it arguably captures employment conditions that are not or were not considered to be fundamentally breaching human rights. Terminology like “slavery” are value laden, and culture laden – and because the starting points are various, so to are the conceptions. This is why this story brought with it such polemic debate.

So what do we think?

Contrary to what one may believe from media reports where FCVs are more trouble than they are worth, the reality is very different. There are currently 26 FCVs operating in New Zealand that are flagged to four countries: thirteen are flagged to South Korea, seven to Japan, four to the Ukraine, and two to Dominica.

Twenty (80%) of these FCVs are trawlers that operate year round, fishing low return, high yield species like jack mackerel, barracouda and squid. Most have been doing it for years, and are compliant with New Zealand law. I would even go so far as to say, for the most part, FCVs provide a valuable service to New Zealand economically, and as many of them have fished New Zealand waters for decades, they are intimate with our bathysphere and aquatic environment and are responsible fishermen.

VIDEO: Reporter Michael Field goes onboard the FV Aleksandr Buryachenko  (Sealord Ukrainian FCV) amidst allegations that human rights and labour abuses are taking place on foreign fishing vessels

However like anything, there are those few that through there labour practices, have lead the New Zealand public to question their presence in New Zealand. We’ve seen headlines like: “Not in New Zealand Waters Surely?” This was the headline of a report by the New Zealand Asia Institute at the University of Auckland, which used the “global labour chain and global labour production analyses to examine which institutions were responsible for the working conditions of an important but largely invisible and vulnerable workforce on FCVs in New Zealand waters.” The report found that there was an “institutional void pertaining to labour standards on board FCVs and in some cases disturbing levels of inhumane conditions and practices have become institutionalised.” The report claimed that Indonesian crew members (owned and operated by the same companies), citing physical, mental, and psychological abuse, as well as non-payment of wages. Other recent headlines include:

Kiwis join struggle against sea slavery, Michael Field, November 20, 2011, Stuff.co.nz Fishermen claim unpaid wages, sexual abuse, Hamish Clark, November 16, 2011, 3News New Zealand Fishing rivals face off over foreign boats,” Bill Moore, October 28, 2011, Stuff.co.nz Ngapuhi fishing with Asian charters ‘not slavery,’” October 27, 2011, TVNZ Probe exposes fishing underbelly,” Michael Field, October 23, 2011, Stuff.co.nz Fishing ‘slave labour’ slated,” Helen Murdoch, October 20, 2011, Stuff.co.nz Slave fishing in NZ waters exposed,” Michael Field, August 11, 2011, Stuff.co.nz

I think it was all a bit of a shock! We were all a little flabbergasted! This kind of thing just isn’t Kiwi. New Zealanders are proud of our pro-human rights stance. We were the first to have universal suffrage, the first to institute the Welfare System, labour reform legislation. How can there be this kind of thing be happening in New Zealand Waters?

In August and September last year, when all the business was going down with the FV Oyang 70 (pardon the pun). I, like all the others in New Zealand was shocked. I was pleased something was being done. But unlike most other New Zealanders I was aware of the importance of FCVs to this country. However, when I read Ben Skinner’s story the other day, I became inflamed again. I found myself a little affected, and quite angry. No one deserves to be demeaned, and abused. People deserve fair remuneration for a fair day’s graft. New Zealand is built on principles like these. Then I heard a sage voice in the most unexpected place.  I read an article by our own ‘belovedly opinionated’ Gareth Morgan who pointed out how disingenuous it is to express outrage at the commercial practices by FCVs in our EEZ but tacitly embrace the same practices on the high street. In his article “Outrage at foreign fishing fleet hypocritical” he writes:

“Some within the local fishing industry who own fishing vessels have been protesting loudly at the unfair competition that foreign charter vessels pose. Of late, they have been joined by environmentalists, trade unionists and local human rights activists deeply concerned about the on-board abuses… These same folk buy a multitude of products from China, India and other economies where workers endure the same conditions they find offensive on their competitors’ vessels. Apple has been in the news about the work conditions in its factories in China. I’m not aware of many Kiwis shunning their products because of the “slave-like” conditions for workers… The only factor used to justify the double standard is that because the foreign charter vessel activity actually occurs within our exclusive economic zone, that apparently makes it unacceptable by comparison. Selective hypocrisy though, is not a convincing basis for credible argument. Credibility should be a prerequisite of any success in lobbying government. To be consistent the protest needs to be against all product that arises from sweatshop-type practices, no matter where it occurs.

It is this reference to to ‘select hypocrisy’ and the last sentence that gets me. If New Zealand wants to take a stand. Then we have to do it consistently. When we buy a business shirt or a pair of jeans, we have to make sure it was made according to international labour standards, and not in a Mumbai sweatshop. If it wasn’t we shouldn’t condone the practice by buying it. As Gareth says:

If New Zealand wishes to close itself from trade with those parts of the world where such practices are de rigueur then that’s a conscious choice to make, with clear costs (economic) and benefits (moral), but to selectively discriminate on some arbitrary delineation such as geography simply is not a sustainable logic. You do it properly or you don’t.”

The fact remains that with the ‘dodgy’ labour practices on board Korean FCVs, we are in a position that we can do something about it. And we are. But what about the ‘dodgy labour practices’ that we condone through preferential purchasing via free-trade agreements.  Where shiny goods manufactured out of sight of potential kiwi purchasers were in fact made in factories that fail to meet ILO standards.

So What should We Do about FCVs in New Zealand.

This is the hard part. Before we attempt to fix it – I think we first have to ask if it is broken? And that is what the Ministerial Inquiry into FCVs is for. For the Ukrainian FCVs the present regulatory system is working well. In the article “Sealord defends foreign chartered fishing operation,” Sealord harvest operations manager Colin Williams believes the FCV issue is to do with the abhorrent behaviour of some operators.

I don’t believe the regulatory frame work is broken. What you have is people at one end of the scale allegedly not complying (and) who need to comply, and people at the other end of the scale who are complying and carrying out legitimate business and contributing to the people of New Zealand.”

However the article points out that for vessels like the FV Aleksandr Buryachenko, where the crew is not only all Ukrainian, but also all from the same city, Sevastopol on the Black Sea it is easy. According to the Aleksandr Buryachenko’s Captain, Yuri Kylybov, it is this that, that marks the difference between his FCV and others:

I can only speak for Ukrainian vessels and we have good discipline, good crews, good food and we have common culture and common values. Same country, same nation, same values…. I feel sorry for the crews with their different religions and nationalities and culture. They could end up fighting over simple things like food.”

The fact remains – all of these vessels are not flagged to New Zealand. And because of this our labour laws do not apply. The 12-mile limit is where most New Zealand tax and labour laws, as they apply to foreigners, end (except for minimum wage laws, thanks to the Fisheries Act 1996 where s103(5) was amended in order to regulate the rates of pay of foreign crew to provide for the protections of the Minimum Wage Act 1983 and the Wages Protection Act 1983  to apply to foreign fishers). The common misconception is that the 200-mile zone EEZ is New Zealand Waters. It isn’t. New Zealand has exclusive jurisdiction over the resources within the water column. That is it.

In 2006 the Government along with the Department of Labour, the New Zealand Seafood Industry Council (on behalf of New Zealand fishing companies) and the New Zealand Fishing Industry Guild implemented the Code of Practice on Foreign Fishing Crew (19 October 2006). This Code is is a set of policy guidelines (labour and Immigration) that applies to the charter arrangements between the foreign vessel owner and the New Zealand charterer. However according to Jennifer Devlin’s 2009 paper”Modern Day Slavery: Employment Conditions for Foreign Crews in New Zealand Waters“, the code is problematic to enforce.

By purporting to apply New Zealand law to foreign flagged vessels in New Zealand’s EEZ, the Code (which is simply a set of policy guidelines of Immigration New Zealand) violates international law and is ultra vires. As such, the Code is vulnerable to an administrative law challenge on the grounds that the executive does not have the power to make  immigration policy guidelines that have extra-territorial effect.”

Devlin also argues that section 103(5) of the Fisheries Act 1996 is in violation of international law as it imposes New Zealand law on foreign flagged vessels outside of New Zealand’s territorial waters (see Dawson and Hunt).

We could remove the ability of FCVs to register. And thereby deny FCVs permits. But why would we do that. FCVs do New Zealand a service. They catch fish that New Zealanders simply cannot, and allowing us to benefit of those resources. Therefore arguments that New Zealanders should be catching all the fish, processing it and trading it, simply ignore the reality of international competitiveness. Put it this way, the New Zealand Deepwater fleet comprises approximately 45 vessels, 20 of which are FCVs.

Some FCVs are specially equipped to operate in fisheries such as the trawl fishery for jack mackerel. Of the nine main species caught by FCVs, roughly two-thirds of the total volume has been taken by FCVs over the last five years. This is approximately 40% of the total commercial harvest of all species in the Quota Management System. The annual value of this catch is estimated to have ranged between $274.6 and $387.3 million dollars (see MAF Background Paper on the Use of Foreign Charter Vessels). In a nutshell We need FCVs.

FCV Registration Form

One suggestion is that FCVs could be required to flag to New Zealand. Re-flagging would ensure New Zealand’s full prescriptive and enforcement jurisdiction over these FCVs, and bringing them under a New Zealand flag could also clarify New Zealand’s rights and responsibilities. Also the re-flagging option would not preclude the future use of foreign owned or foreign-crewed vessels.

However this is not really an option either. For starters according to Sealord the Ukrainian Government will not allow the Ukrainian fishing vessels to be re-flagged under to New Zealand. And the Korean FCVs? One would be safe in guessing that the Korean Government would also not be too happy with their flagged vessels re-flagging to New Zealand. Furthermore and most importantly, forcing FCVs to re-flag would not only be a disincentive for FCVs to operate in New Zealand and catch the fish we are unable to catch, but re-flagging all FCVs to New Zealand will likely impact on the ability of some operators to secure tariff free access of product from Korean vessels into Korea. For example the New Zealand squid has easy access to the Korean market because it is caught by a Korean flagged vessel and is therefore able to be classified as a product of Korea, and thereby not attract a tariff.

Another is to allow only demise or bare charters – where New Zealand would have to provide or recruit the crew. But again this is not an option. Not only is there a shortage of trained crew, New Zealanders have proven to be very backward about coming forward to crew fishing vessels. It is not really surprising, New Zealanders don’t pick our fruit any more either. New Zealanders are not only reluctant, we are too expensive. New Zealand crew will drive up the price of fish taken. That is not sustainable economically. In their submission to the Ministerial Inquiry MAF wrote:

The Ministry considers that it is appropriate to allow quota owners to choose the most appropriate means to both harvest their quota and ACE allocations and to operate their businesses. For some operators this could be achieved by the lease of foreign owned vessels under contractual arrangements; and the Ministry supports this continuing. The Ministry acknowledges that on occasion the use of foreign labour to crew these vessels is both necessary and appropriate. The Ministry also considers that irrespective of how business operations are structured they should make an economic contribution to New Zealand.

There is no single solution and really only one way forward, to continue to support FCVs and implement a suite of various diplomatic and coastal responses that in concert improve conditions on board FCVs. In my opinion the most effective solution will be sustained pressure on Governments that employ substandard labour conditions, through the plethora of fora available, to lift their game. This pressure should be widely conceived and apply to all such products entering the New Zealand market – not limited to just fish from FCVs.

Related Articles

On a different, but related note – this article from today’s Timaru Herald indicates that in spite of what is being said by the media and soap boxing politicians. New Zealand takes its obligation as stewards of the area of the High Seas that are the New Zealand EEZ and above the New Zealand Extended Continental Shelf very seriously. And where a vessel is in direct breach, it will be held as such. Until that point however – nothing ‘of substance’ can really be done.

Boat loses registration [Oyang 77]: Timaru Herald

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