A. Exploitation in New Zealand’s Fishing Industry

The vulnerability of high seas fishers to exploitation is such that even well-resourced countries with considerable enforcement capacity are not immune to this problem. For almost a decade, New Zealand’s fisheries management regime has been marred by frequent reports of severe exploitation occurring aboard foreign chartered vessels (FCVs) licensed to fish in its Exclusive Economic Zone (EEZ). In 2013, the University of Canterbury published a PhD thesis on the phenomenon of trafficking in New Zealand’s fishing industry.Footnote ⁹ The author, Thomas Harre, published findings based on interviews with industry sources. He found significant evidence that at least two foreign commercial fishing companies, Southern Storm Fishing and the Sajo Oyang Corporation, had shown, at the very least, reckless negligence towards crew members resulting in abuse and underpayment of wages.Footnote ¹⁰ His thesis documents that, between 2005 and 2011, at least ten Korean-owned vessels and one Ukrainian vessel were involved in severe exploitation. The foreign crews, mostly from Indonesia but also Myanmar and Vietnam, cited a range of abuses including: injury, lengthy shifts, non-payment of wages, verbal, physical, and psychological abuse, and even death.Footnote ¹¹

A detailed snapshot of the severity of this exploitation emerged in May 2011, when twenty-three Indonesian nationals walked off the South Korean-flagged vessel Shinji after eight months of fishing in New Zealand’s EEZ. In 2011, Christina Stringer, Glen Simmons, and Daren Coulston published a paperFootnote ¹² detailing this severe exploitation after they had conducted some 300 interviews with crew members, observing officials, and industry personnel. Their findings showed that the men had been subject to forced labour through deception, debt bondage, and physical abuse. Their investigation detailed the process of exploitation from recruitment through to ultimate deportation. The recruitment process occurred through manning agents, who deceived impoverished Indonesians about their employment conditions and the minimum wage in New Zealand. Manning agents further abused the men’s vulnerability by coercing them to sign repressive contracts crafted to ensure their submission. They obtained guarantees of the men’s services by requiring upfront payment of significant bonds (up to US$300), demanding forfeiture of hard-to-obtain identity and education documents, and retaining the identity documents of family members.

Whilst aboard the Shinji, the severe exploitation of the men took multiple forms. Financially, they incurred further debts through arbitrary deductions, aggressive agency fees, and the manipulation of exchange rates. This meant that the men were averaging a wage of around NZ$1 per hour (the minimum wage in New Zealand is NZ$12 an hour). The men were forced to work in dangerous conditions and were severely overworked. They commonly worked sixteen-hour shifts, and sometimes even up to thirty hours without rest. They were inadequately fed, abused for taking meal breaks, and claimed to having to resort to eating rotting fish bait. They lacked protective clothing, and suffered frostbite and freezer burn, while their pleas for medical attention went ignored. The men also claimed to have been subjected to sexual abuse by way of orders to massage the captain. Anyone who complained about their working conditions was abused or threatened with deportation, non-payment of wages, termination of employment, and the withholding of the employment securities their families had paid as part of their recruitment. Further coercion was achieved through the retention of men’s identity documents, including their birth certificates and passports.

Of additional concern was the persistent public denial of the existence of trafficking by New Zealand officials. Despite this, the persistent media reportsFootnote ¹³ and academic papersFootnote ^{14 ,} Footnote ^{15 ,} Footnote ¹⁶ finally prompted New Zealand to draft a bill requiring mandatory re-flagging of all FCVs licensed to fish its EEZ.Footnote ¹⁷ After considerable delay, the Amendment finally passed into law in July 2014, and will come into force in May 2016. The Amendment overcomes the significant jurisdictional complexities present in New Zealand’s current management regime, whereby, the minimum wage requirement is currently regulated through a registration process under the Fisheries Act, and labour standards for foreign crews are monitored through the immigration process. This complexity has resulted in poor co-ordination between government agencies, resulting in a lack of enforcement.Footnote ¹⁸ In 2010, the limitations of New Zealand’s jurisdiction were also highlighted with the sinking of the Oyang 70, which resulted in six deaths. Under the LOSC, there is no automatic jurisdiction to investigate the sinking of foreign-flagged vessels.Footnote ¹⁹ In contrast, the Amendment will give government agencies jurisdiction over FCVs in the areas of employment, health and safety, and criminal law.Footnote ²⁰ The increased enforcement capacity will effectively revoke the licence of FCVs to exploit vulnerable persons for economic gain in New Zealand’s EEZ.

However, an inevitable consequence of the Amendment is that many of New Zealand’s lowest-value fisheries may prove uneconomical. Indeed, this very point was emphasized by those vested interests who opposed the laws,Footnote ²¹ and thus remarkably echoed a prominent argument used by slave owners in the American South when they opposed the abolition of slavery.Footnote ²² Yet, despite the economic “merits” of slavery, the narrative of exploitation behind New Zealand’s wild-caught fisheries has proven far too unpalatable.

A risk assessment prepared for New Zealand’s Parliament highlights how perceptions of overseas markets are a substantial concern for the country’s seafood export industry. The report refers to concerns raised by the US government over human rights abuses aboard FCVs, fearing that they could lead to import sanctions.Footnote ²³ It also highlights the risks associated with the European Union’s (EU) requirement for import certification, stating that the process is undermined by foreign-state certification of fish caught in New Zealand. The report stresses that the lack of control over certification would damage New Zealand’s reputation and threaten the security of the seafood export market. This would lead to a loss of access to other markets, which could ultimately spread to non-fishing sectors.Footnote ²⁴

New Zealand therefore has a significant financial incentive to address exploitation aboard FCVs because failure to do so has market repercussions that would not only impact on local seafood exporters, but could also extend to unrelated export markets. In New Zealand’s case, the approach to addressing exploitation has been to extend its enforcement capacity over the labour dimensions of the foreign-flagged FCVs. Thus, whilst the denial of access to global markets may be driving significant action to address exploitation at sea, without effective enforcement jurisdiction, a state has limited means to achieve this.

Thailand, in comparison, has a substantial financial incentive to maintain the status quo as the world’s third largest producer of wild-caught seafood. There, the profitability of severe exploitation continues to outweigh the need for significant action, making Thailand the primary destination for trafficked fishermen in Southeast Asia. Given the underlying difference in economic incentives, the widespread exploitation occurring in Thailand is now considered, whereby the lack of reliable figures emerges as the most significant barrier to addressing this problem.

B. Exploitation in Thailand’s Fishing Industry

In 2011, the United Nations Office on Drugs and Crime (UNODC) released a report on human trafficking across commercial fishing industries.Footnote ²⁵ According to the UNODC, Southeast Asia has the most well-documented occurrences of trafficking into forced labour in the global fishing industry. In this region, Thailand is not only known to be the main destination country, but is also a key transit country for men trafficked into the fishing industries in Indonesia and Malaysia.Footnote ²⁶ In the last four years, both the International Labour Organisation (ILO) and the International Organization for Migration (IOM)Footnote ²⁷ have conducted extensive reviews into exploitation in Thailand’s fishing sector. Both organizations found evidence of extensive trafficking and forced labour in Thailand’s commercial fishing sector. The 2013 ILO report also identified a number of child labourers amongst the fishers (thirty-three children under the age of eighteen, and seven under the age of fifteen).Footnote ²⁸ Reports have also found that most victims are trafficked from neighbouring countries—namely Myanmar, Cambodia, and (to a lesser extent) Laos.Footnote ²⁹ In July 2013, Reuters published an investigation that found that Rohingya Muslims were being trafficked into forced labour on Thai fishing boats.Footnote ³⁰

The ILO report on Thailand surveyed some 600 fishers working in both national and international waters. The survey found that one-third of respondents had been compelled to work between seventeen and twenty-four hours a day. A larger percentage (forty percent) of workers had experienced deductions in their salaries without their knowledge. The report also identified a number of common practices; these include the restriction of movement, retention of identity documents, threat of denunciation to authorities, physical and psychological violence, illegal wage deductions, and non-payment of wages. The ILO report also found that ten percent of respondents had been severely beaten by their masters. However, the most concerning issue arises from other reports claiming that murder is commonplace.Footnote ³¹ In 2009, the United Nations Inter-Agency Project on Human Trafficking (UNIAP) surveyed forty-nine Cambodian men who had been trafficked onto Thai fishing vessels. The survey found that fifty-nine percent of the men had witnessed their boat captain commit murder.Footnote ³²

Another trend identified in the ILO report involved the recruitment process. The report found that recruitment was mostly voluntary but then later lead to a situation of debt bondage and/or forced labour. Under the international definition of human trafficking, consent is negated by the use of coercive and deceptive means. The ILO report highlighted two further findings indicating that the men were subject to forced labour: first, that sixty-six respondents reported trying to escape, and second, that twenty-four respondents were sold or transferred to another boat against their will.

In 2008, a Laotian man was trafficked onto a tour boat that supplied and brought catches back from deep-sea fishing vessels. A week later, he was transferred onto a deep-sea fishing boat that went on to operate in Malaysian waters. He was told that he would have to work for two years before he could return to shore. During his ordeal, he was transferred at sea three times, and was the subject of physical assault on each occasion. He eventually escaped, only to be forced into working in a palm-oil plantation, before being charged by Malaysian officials for illegally entering the country.Footnote ³³ Sadly, his story is representative of widespread enslavement throughout the region, operating through complete control over the movement of vulnerable people.

According to Legal Support for Children and Women (LSCW), a Cambodian non-government organization (NGO), more than 100 Cambodians escaped from forced labour conditions on Thai fishing boats in 2012. Many of the men were forced to swim to shore under the cover of darkness in order to escape their ordeals. According to LSCW, the Thai boats fish both legally and illegally off Indonesian waters. The boats unload their catch for processing at Ambon Island, but rarely dock, in order to prevent their labourers from escaping. Instead they may stay at sea for several years, and receive supplies from other boats.Footnote ³⁴

Reports from NGOs are vital to understanding the scope of this phenomenon of exploitation. This is because NGOs are often more likely than government officials to have been approached by former victims of such ordeals. In some cases this may be the result of a general poor perception of enforcement officials in some Southeast Asian countries. Thus, NGOs such as LSCW have been at the forefront of bringing instances of trafficking into forced labour to public attention.

The reliability of estimates over the scope of the problem is, however, inevitably problematic. In August 2013, World Vision reported that Thai authorities had arrested three leaders of a trafficking ring in Myanmar. The NGO asserted that the gang was believed to have trafficked an estimated 700 Myanmar nationals into exploitation aboard Thai fishing boats.Footnote ³⁵ Given the clandestine nature of trafficking, and the invisibility of fishing vessels, such figures can be hard to verify. Nevertheless, the consistent media revelations, the breadth of the media coverage, and the quantitative data produced by the ILO indicate that the practice is likely more prevalent than what is suggested by the available data. In the light of this, the slavery provisions in LOSC are considered with regard to the various definitions of exploitation.

A. Human Trafficking

Human trafficking occurs when a person’s movement is controlled by some means—which may be subtle—for the purpose of exploitation. This statement is a distillation of the core elements of the definition contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), which supplements the United Nations Convention against Transnational Organized Crime.Footnote ³⁶ Article 3(a) of the Trafficking Protocol defines trafficking in people as:

The Trafficking Protocol does not seek to suppress severe human exploitation per se, as the crime is not actually constituted by exploitation alone. Instead, the achievement of the Protocol is to deposit all other forms of exploitation in the one instrument.Footnote ³⁸ Since people are trafficked for the purposes of forced labour, slavery, or practices similar to slavery, this definition thus provides that an instance of trafficking can amount to slavery.

B. Forced Labour

Forced labour is the exploitation of a person’s work or services, when that person’s ability to leave that employment is controlled by some means (which may be subtle). The term “forced labour” has been shaped in the context of international labour law.Footnote ³⁹ Article 2(1) of the ILO Convention No. 29 concerning Forced or Compulsory Labour of 1930 defines forced labour as: “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.”Footnote ⁴⁰ In respect of the definition of slavery, the 1926 Slavery Convention “considers it is necessary to prevent forced labour from developing into conditions analogous to slavery”.Footnote ⁴¹ Therefore, the terms “slavery” and “forced labour” are not exclusive, but instead exist on the same continuum of exploitation.

C. Debt Bondage

Debt bondage occurs where one’s value of work is not reasonably applied to the liquidation of a debt, or the length and nature of work is not limited nor defined. Under the definition of “trafficking”, debt bondage would constitute the means in which a person is held in a situation of exploitation. The ILO specifically recognizes debt bondage as a method in which someone is kept in forced labour. Under the 1956 Supplementary Convention, debt bondage is defined as:

Debt bondage would not ipso facto constitute slavery unless other requirements were met, namely that any or all of the powers attaching to the right of ownership were exercised.

A. The International Jurisprudence of Slavery

Under the UN Charter, for a rule of international law to be applied, the International Court of Justice (ICJ) must show that it is the product of one of the three law-creating processes: treaties, international customary law, or general principles of law recognized by civilized nations.Footnote ⁴⁸ In the search for general principles of law, international rules of law can be found in their application by the judicial decisions of both international and domestic courts. According to Harris, the “persuasive character of [a] judgement and advisory [opinion] depends on the fullness and cogency of the reasoning offered”.Footnote ⁴⁹ With regard to this understanding of how international law is located, two of the most cogent judicial decisions regarding the scope of slavery are considered, namely Kunarac and Tang.

These cases shed some light on whether the prohibition of slavery extends beyond de jure abolition to de facto suppression. In other words, does the meaning of “the status or condition attaching to the powers of the right of ownership”Footnote ⁵⁰ extend to practices where the conditions of slavery exists, but where it is not legally possible to own a slave? In this respect, the cases considered support Kevin Bales’s argument that the determination of a practice of slavery depends on a criterion inherent in the powers attaching to the rights of ownership in situations where the rule of law is absent.Footnote ⁵¹ In this way, the abolition of slavery is necessarily understood to extend to instances of de facto slavery.

A. The History of Efforts to Suppress the Slave Trade

In many regards, historic efforts to suppress the slave trade have centred on the reciprocal right of visit against foreign-flagged vessels. A brief examination of this history is instructive on two accounts: first, it clearly emerges that the reciprocal right of visit was a prominent part of realizing “effectual” suppression as opposed to “nominal” abolition; second, the historical evolution of the term provides some indication as to the current status of the right of visit under the LOSC.

B. The Right of Visit Under the LOSC

The right of visit achieved in the nineteenth century was then atrophied somewhat by the successive treaties of the early twentieth century.Footnote ⁹⁴ The 1919 Convention of Saint Germain-en-LayFootnote ⁹⁵ abrogated the General Act of Brussels as between parties to that treaty, while providing no right of visit and only an obligation to secure the suppression of slavery in all its forms.Footnote ⁹⁶ Following this, the 1926 Slavery Convention and the 1956 Supplementary Convention failed to re-reinstate reciprocal rights contained with the General Act of Brussels. These failures are regarded as having reduced the international means for control over slavery that existed at the end of the nineteenth century.Footnote ⁹⁷

Nonetheless, the 1958 Geneva Convention on the High Seas and the LOSC do include a limited, but universal, reciprocal right of visit in regard to the slave trade.Footnote ⁹⁸ A review of the travaux préparatoires of these Conventions show that there was, at the very least, some intention to equate the slave trade to piracy. A report of the International Law Commission in 1956 on the law of the sea provides commentary on the provision of right of the visit:

The travaux préparatoires of the LOSC provides some insight as to the nature of the debate that had occurred over the right of visit, and as to the final negotiations from earlier Draft Articles of the United Nations Conference on the Law of the Sea (UNCLOS I). Opponents argued that the right of visit would infringe the principle of freedom of navigation and raised the concern that if it was abused it would threaten international peace and security. Interestingly, these opponents also argued that the proposed limited geographical application of the right of visit was discriminatory. In response, proponents noted that such a concern was groundless since the long-recognized right to visit in respect to piracy had not given rise to abuses. The Articles contained in the LOSC therefore represent an agreed compromise of these positions. The LOSC extends the right of visit beyond the confines of any geographical region and settles on a construction of Article 110, which leaves no distinction between the application of the right of visit in respect to piracy and the slave trade. However, in both cases, the LOSC requires that the right of visit is limited. Such limitations are considered below.

A. The Slavery Provisions of the LOSC

As a peremptory norm of international law, the prohibition of slavery is reflected in three provisions of the LOSC. The first is contained within the principle of exclusive flag-state jurisdiction as provided for by Article 92, which states that:

The importance of exclusive flag-state jurisdiction on the high seas cannot be overstated. However, the focus of this paper is whether exploitation at sea falls within the meaning of the “exceptional cases expressly provided for … in this Convention”.Footnote ¹⁰¹ The exceptional cases are then expressed in a second provision:

Under the LOSC then, a vessel’s navigational freedoms on the high seas are not subject to interference from non-flag states except in respect of universally prohibited acts, including piracy and the slave trade.Footnote ¹⁰⁴

The third provision of the LOSC that reflects the prohibition of slavery is Article 99, which contains two parts. The first part provides that “every state shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag”.Footnote ¹⁰⁵ This first part creates the obligations for flag states to effectively address the slave trade. The second part provides that “any slave taking refuge on board [any] ship, [whatever its flag], shall ipso facto be free”,Footnote ¹⁰⁶ which implies that freedom from slavery transcends the principle of flag-state jurisdiction. Article 99 then reconciles exclusive flag-state jurisdiction with the absolute prohibition of slavery. The latter part of Article 99 also provides a justification for asserting the universal right to visit against a ship that is suspected of being engaged in the slave trade. Had the drafters of the LOSC envisioned that all states would effectively take measures to ensure the freedom of slaves at sea, there would have been no reason to include a provision to ensure the absolute freedom of slaves regardless of their flag state. The failure to effectively meet this obligation gives rise to the right of visit, which must now be reconsidered.

B. Definition of the “Slave Trade”

The definition of the slave trade as contained in the 1926 Slavery Convention is considered to have attained the status of customary international law. Article 2 of the Convention states:

The inclusion of the words: “all acts involved in the … acquisition … of a person with intent to reduce him to slavery” broadens the scope of the slave trade beyond the mercantile sense of trading and transporting slaves.Footnote ¹⁰⁸ Furthermore, having earlier established that slavery extends to the de facto condition, and that it exists on a continuum with other forms of severe exploitation, it is argued that the slave trade thus encompasses the acquisition of vulnerable persons through manning agents with the intention to reduce them to conditions amounting to slavery.

This is the very process documented throughout the fishing industry, not least in Thailand and New Zealand. The broad definition of slavery, which must apply mutatis mutandis to the definition of the slave trade, is intended to deal with all forms of slavery that would emerge under the guise of new legal technicalities. Indeed, historian Howard Hazen Wilson made this very point:

In other words, for a person at sea to find themselves in conditions that amount to slavery, it must follow that, at some previous juncture, they were acquired by the person who now exercises over them—the powers attaching to the right of ownership. Furthermore, the control of that person through any act of coercion implies the intent to reduce them to slavery. Such a vessel would therefore be engaged in the slave trade.Footnote ¹¹⁰ In this way, it is argued that a limited right of visit under the LOSC likely extends to suspicion of a vessel engaged in the severe exploitation occurring in the fishing industry.

C. The Limitations of the Right of Visit

The right of visit extends to the examination of a ship where it may be needed to confirm or remove the suspicion that it is engaged in the slave trade.Footnote ¹¹¹ However, under Article 110(2), the right of visit is limited to boarding and inspecting documents. Only if the suspicion remains after the documents have been checked may an authority proceed with further examination. As Article 110(2) does not specify what documents may be inspected, it is instructive to consider what this may entail. In regards to the exploitation described at the beginning of this paper, it could be argued that an inspecting official would gain much from viewing, at the very least, the identity documents and working contracts of all seafarers.

Indeed, historically, a similar approach had been enforced under the General Act of Brussels 1890. Although this Treaty established far broader reciprocal rights beyond visitation, to include search and seizure, its provisions are nevertheless informative; especially in regard to examining documents under a limited right of visit. The General Act required that vessels had to be authorized to carry the flag of their said power. Such authorization could only be given if certain conditions were met, including the payment of a bona fide security that guaranteed the owners could pay any fines incurred under the Treaty.Footnote ¹¹² The Treaty also required the flag state to issue vessel captains with a crew list, which had to visible and renewed either annually or at every fresh departure.Footnote ¹¹³ Although specific to African slaves, the Treaty also essentially required vessels to have evidence that its seafarers had wilfully entered into their working contracts, and that such contracts had been cited by their governments.Footnote ¹¹⁴ The requirement to deposit and carry these documents directly relates to the historical objectives of the right of visit—a right, which although now somewhat undefined, still persists under the modern law of the sea regime.

Ultimately, despite the obligation to prevent and punish slavery, the LOSC confers no right of interference beyond boarding and examining documents, and does not extend to the exercise of seizure jurisdiction.Footnote ¹¹⁵

D. Considerations Within a Coastal State’s Exclusive Economic Zone

In order to analyze the utility of a universal right of visit, it is necessary to consider its likely application. As discussed earlier, the slavery provisions under the LOSC clearly operate on the high seas. However, a more interesting problem posed is when considering how the provisions apply within the EEZFootnote ¹¹⁶ of a coastal state by another state.

Part V of the LOSC is relevant to the slavery provisions, as it lays out the foundations of the EEZ regime in international law. Under Part V, the legal regime that governs the EEZ borrows aspects from both the territorial waters and the high seas, without being analogous to either. In the EEZ, the jurisdiction of a coastal state is restricted to three specific categories: (1) the establishment and use of artificial islands, installations, and structures; (2) marine scientific research; and (3) the protection and preservation of the marine environment.Footnote ¹¹⁷ Hence, as the prohibition of slavery falls outside these three categories, the coastal state has no special jurisdiction over its enforcement within the EEZ. Likewise, in relation to the navigational freedoms of the EEZ, Article 58(1) adopts the same regime as employed on the high seas. Rothwell and Stephens point out that the provisions of the LOSC relating to the high seas that apply in the EEZ include the duties of flag states, the immunity of warships, and the suppression of piracy.Footnote ¹¹⁸ Given that the LOSC makes no distinction between the application of slavery and piracy in regard to what waters the provisions apply to, it follows that the slavery provisions apply within the EEZ.

However, despite the existence of a universal right of visit with regard to the slave trade within a coastal state’s EEZ, there still remains substantial differentiation among state practice. The current ambiguity between treaty law and state practice arises as an increasing number of states enact legislation departing from Part V. This is most commonly through states legislating to interfere with the navigational rights and freedoms of foreign states. This creeping jurisdiction of coastal states into the EEZ has gone beyond resource-orientated policies and pollution and into considerations of environmental and military security.Footnote ¹¹⁹ Therefore, it could be argued that the EEZ remains an evolving international law regime where jurisdiction is increasingly uncertain.

E. Considerations Within the Contiguous Zone

The contiguous zone also supports a universal right of visit under the LOSC. The contiguous zone covers the area that is “contiguous” to the coastal state’s territorial sea (12 nm), extending out to a maximum of 24 nm from the shore baseline. Within the contiguous zone, states have some jurisdictional rights and duties that relate to enforcement in relation to customs, fiscal immigration, and sanitary matters. However, these rights operate only in respect of inward- and outward-bound ships; they do not confer jurisdiction of the coastal state, nor extend the operation of its laws and regulations. For example, the contiguous zone provides jurisdiction for the coastal state to interdict and remove a vessel involved in people smuggling, although that vessel would not be subject to the coastal state’s laws and regulations.Footnote ¹²⁰ Outside these parameters, the freedom of navigation that is afforded to the high seas also applies within the contiguous zone.Footnote ¹²¹ Therefore, as all other aspects of the contiguous zone fall under the high seas regime, it is likely that a universal right of visit with regards to the slave trade exists against vessels within the contiguous zone for authorized non-coastal state vessels.

A. Obtaining an Authoritative and Practicable Interpretation

Over the last three centuries, numerous international treaties have reaffirmed the abolition of slavery and the slave trade. However, the ambiguities highlighted in this paper have meant that such declarations support only its nominal abolition—at least in respect to all forms of slavery.

With regard to the definition of slavery, the fact that “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”Footnote ¹²² requires extensive interpretation to decide whether or not it applies in any given case, means that any claim to an authoritative interpretation of slavery inevitably becomes problematic. Instead, authors working in this field make tentative suggestions as to the likely or possible scope of slavery. This may also explain the preference of international agencies for using more concisely defined terms such as forced labour and trafficking.Footnote ¹²³ The effect of an inchoate definition of slavery has thus been to weaken its legal worth.

In respect of the slave trade, this paper challenges the assumption that this term only extends to the historical sense of “chattel” slavery. However, much ambiguity still remains. For this reason, a practicable interpretation of the slave trade is needed.

Such authoritative clarifications could be sought through an advisory opinion of the ICJ.Footnote ¹²⁴ An advisory opinion would need to be requested by a body authorized under the UN Charter, such as the General Assembly or the Security Council, as states do not qualify.Footnote ¹²⁵ Although not legally binding, advisory opinions are usually accepted and acted upon. The ICJ’s parallel jurisdiction to the International Tribunal for the Law of the Sea (ITLOS)Footnote ¹²⁶ over law of the sea issues would further add weight to the Court’s findings.

The International Law Commission (ILC) could also possibly provide an authoritative review. This is particularly relevant, as ITLOS has cited Draft Articles produced by the ILC.Footnote ¹²⁷ However, the Commission’s reluctance to progress international law in areas that are politically contentious may preclude its involvement in clarifying the interpretation of slavery and the slave trade.Footnote ¹²⁸

B. Suppressing All Forms of Slavery and the Right of Visit

The LOSC makes no reference to forced labour, debt bondage, or human trafficking; therefore, whether Article 110 extends to these practices hinges on the meaning of the slave trade. In considering the most extreme cases of human trafficking, Douglas Guilfoyle concedes that the limited right of visit could possibly be exercised, although there is little recent state practice in this regard.Footnote ¹²⁹ This suggests that enforcement officials have assumed that human trafficking, debt bondage, and forced labour are not slavery in a legal sense. In acknowledging this overriding ambiguity, the value of this paper’s analysis is then that the claim to a universal right of visit remains problematic, and that a more practicable definition is needed. In approaching the modern phenomenon of exploitation at sea, the lesson to be drawn from history is that a right of visit is a practical means of pressuring states into meeting their treaty obligations, namely the suppression of slavery in all its forms. In this way, the right of visit is a diplomatic tool that could be used to provide the impetus for multilateral interdiction regimes on the high seas to combat severe exploitation. Such interdiction regimes are especially relevant to other efforts that combat IUU fishing and exploitation in supply chains.

A. The Appeal of a Right of Visit

One appeal of a right of visit stems largely from the need to independently verify instances of slavery. As governments are incentivized to deny that their own industries rely on slave labour, it is a right that may instead appeal to injured states that require reliable information over the extent of abuse against their nationals working abroad. The evidence provided in this paper provides a strong case for those countries whose workers are most commonly exploited, namely Cambodia, Myanmar, Indonesia, the Philippines, China, and Laos.Footnote ¹³⁰ Given the importance of migrant remittances for these developing economies, coupled with the large numbers of migrant workers in Thailand’s fishing industry, it is likely that a latent level of support for the independent verification of slavery already exists within the domestic political arena of these injured states.Footnote ¹³¹

Despite the international condemnation of slavery, it remains a practice that is nevertheless lucrative. The economic incentive for governments to maintain the status quo thus underpins the difficulty in verifying slavery. Indeed, Thailand’s historical reluctance to deal with exploitation, evidenced by its lack of substantive action, is telling of the economic influence of the fishing industry. The need for a universal right of visit was most prominent in 2012, when the Royal Thai Navy was scrutinized for claiming that it was unable to locate a single instance of trafficking in 1,000 inspections.Footnote ¹³² At that time, further scrutiny came through repeated allegations in the media implicating the Royal Thai Navy in the physical trafficking of Myanmar’s Rohingya Muslims.Footnote ¹³³ Even more troubling is the fact that the journalists who brought the claims to light were charged under controversial new defamation laws.Footnote ¹³⁴ At the end of 2014, however, Thailand indicated a change in its policies and a willingness to address the issues within the fishing industry (as a result of a combination of forces discussed below).

Nevertheless, Thailand’s historical record highlights the impact that corruption has on worsening the phenomenon of human trafficking. The UN Special Rapporteur on “Trafficking in Persons, Especially Women and Children”, Joy Ngozi Ezeilo, noted that Thailand is affected by deeply rooted corruption, which is coupled with the infamous brokerage systems that recruit trafficking victims.Footnote ¹³⁵ As a consequence of corruption, real change is unlikely while the practice of slavery remains profitable. The concern over the involvement of the Royal Thai Navy in trafficking highlights the appeal of independently verifying slavery. In reality, countries will downplay the extent of exploitation in order to avoid market repercussions.

The problem with obtaining reliable data about the extent of trafficking, even from government sources, can be compounded inadvertently by foreign anti-trafficking programmes. The US’s annual Trafficking in Persons Report (TIP) ranks countries according to their response to trafficking. A poor grading from the TIP report can result in sanctions and interference for that country’s relationship with international banks and financial institutions.Footnote ¹³⁶ The inadvertent consequence of these reports is that they provide an added incentive to avoid the publication of damaging research. However, TIP reports themselves are in turn criticized as being unscientific, inconsistent, and incomplete.Footnote ¹³⁷ It is easy to see how this problem is compounded even further when it involves vessels on the high seas. Thus, the inevitability of uncertainty in trafficking data at sea further highlights the appeal of a right of visit.

B. Verifying Slavery as Coupled with Controlling Access to Markets

The right of visit is not a panacea to systemic exploitation on the high seas. Rather, the diplomatic pursuit of a right of visit scheme is instead suggested as a complementary mechanism to pressure flag-state action in countries that have historically turned a blind eye to exploitation.

The principal mechanism for driving states to take appropriate action to curb severe exploitation is instead the threat to restrict access to lucrative markets. Here, I consider two prominent mechanisms for controlling access to markets: the EU Community System for Combatting IUU fishing and the Californian Supply Chain Transparency Laws. A brief consideration of these mechanisms demonstrates how they would be bolstered by establishing schemes for a right of visit. The EU regulations are considered in respect of their ongoing influence on Thailand, whereas the supply chain laws are evaluated in the context of an emerging global trend with the potential to impact fisheries worldwide.

C. Market Solutions in the Absence of a Right of Visit

Controlling access to the market is, however, only part of the solution. On its own, market control may lead to an increase in incentives for countries to deny the extent of exploitation. Those countries who are forthcoming about their inability to combat entrenched exploitation will face market sanctions, while those whose own governments effectively deny exploitation may benefit. This would increase incentives for corruption and would invariably worsen the fate of the most vulnerable. However, when coupled with a right of visit, a market-based solution provides a much stronger incentive for changing the status quo. This dual approach works by providing an economic incentive to deter exploitation, whilst facilitating a means to authoritatively measure that progress, at least insofar as the inspecting country is concerned. Furthermore, the verification of just a few instances of slavery by an authorized government body, coupled with the threat of market sanctions against both the state and the specific companies involved, favours transparency and substantive change over rhetoric and secrecy. This is perhaps the greatest appeal of the right of visit. In accepting this desirability, I now consider how such a scheme might operate within the international system.