Discriminating against Υour Own Nationals: The Peculiar Case of New Zealand Seafarers

As the Covid-19 vaccine rollout continues across many countries, thousands of people have been able to regain a sense of normality in their daily life and employment. This has not always been the case for the thousands of seafarers who continue to face serious challenges as a result of the ongoing crew change crisis. While the numerous hardships seafarers have faced because of the Covid-19 restrictions are now well-documented (Doumbia-Henry, 2020; Klein, 2020, Galani, 2021), one case which particularly stands out for all the wrong reasons and justifies special attention, is the case of New Zealand.

New Zealand has seemingly sought to facilitate the transfer of seafarers, but its measures suffer serious flaws that have left New Zealand seafarers working internationally without any legal protection. This blog will briefly discuss the relevant New Zealand legislation and explain why it falls short of international labour and human rights standards. The aim of this blog is to shed light on the impact of the exclusion of New Zealand seafarers from the transfer system and in doing so to urge the New Zealand Government to rectify this anomaly.

The COVID-19 Public Health Response (Maritime Border) Order (No 2) 2020

New Zealand has adopted a Managed Isolation and Quarantine (MIQ) that requires those travelling to New Zealand to quarantine for two weeks (subsequently reduced to one week on 14 November 2021). To support seafarers, New Zealand followed IMO Resolution MSC.473(ES.2) and designated seafarers as “key workers” providing an essential service in order to ‘facilitate safe and unhindered movement for embarking or disembarking a vessel’ (UNGA, A/75/L.37, 2020). Accordingly, it enacted the COVID-19 Public Health Response (Maritime Border) Order (No 2) 2020 (Order 2020) with the purpose to contain the spread of Covid-19, whilst also “enabling the safe transfer of crew” (Section 3). However, the current Covid legislation does not give New Zealand seafarers guaranteed placement in a Managed Isolation Facility, when seeking to be repatriated after signing off their vessel at an overseas port. Conversely, the exemptions of Order 2020 (Sections 26, 27, 28) commonly referred to in the documentation of the Ministry of Business, Innovation and Employment (MBIE) as the Maritime Allocation corridor,  give priority access to foreign seafarers who arrive in New Zealand by ship or aircraft to join a ship trading internationally, or be repatriated once signed off their vessel. While the relevant sections do not distinguish between foreign and New Zealand seafarers, the latter are precluded from using this corridor when repatriating from overseas. To the writers’ knowledge, only three New Zealand seafarers have availed the Maritime Allocation corridor, when signing off their international trading merchant vessels at New Zealand ports. Yet hundreds of Russian and Ukrainian seafarers have been able to enter and exit New Zealand to join and depart their vessels on a routine rostered basis. New Zealand seafarers who have disembarked their vessels in Yangon, Sacramento and Walvis Bay, have been denied this same right of access to New Zealand. Earlier this year, MIQ created bunk space for 500 Russian and Ukrainian fishermen to enter the country en masse. Thus, proving that logistics are not the issue. By requiring New Zealand seafarers to enter a lottery for a  place in the MIQ queue like other travellers who wish to enter the country, New Zealand has essentially failed to properly implement IMO Resolution MSC.473(ES.2). Furthermore, the vagaries of the shipping industry further disadvantage New Zealand seafarers compared to shore-based New Zealand nationals who wish to enter the country: poor quality internet onboard vessels causes the MIQ site to time out; seafarers often do not know which port or which date they are due to pay off; crew managers do not issue flight tickets until the day before a seafarer is due off the vessel or rig, meaning that it is impossible to confirm a booked MIQ spot within the required 48-hour window.

This has created an unintended but very real anomaly for New Zealand seafarers working internationally; almost exclusively on vessels which do not trade to New Zealand, because they cannot make use of the benefits of Order 2020, being essentially discriminated and disadvantaged by their own country. This has meant for hundreds of them that they are either stranded abroad unable to return home or are stuck home unable to take up employment opportunities out of fear that they will not be able to be repatriated once their employment contract ends.

Is Order 2020 Compatible with International Law?

The New Zealand Government, however, has defended Order 2020 as legal and compatible with international labour standards. Their argument is based on the non-mandatory nature of

Guideline B2.5.2 of the Maritime Labour Convention, 2006 (MLC, 2006) which concerns the repatriation of seafarers. According to this provision, States are encouraged to take every possible step to assist seafarers stranded in a foreign port and only flag States are obliged to ensure the repatriation of seafarers onboard vessels flying their flags (Standard A2.5). Acting on written advice from Maritime New Zealand, the New Zealand Government Minister for COVID-19 Response signed a briefing paper on 1^st April 2021, agreeing that “New Zealand’s actions may be inconsistent with the spirit of the MLC, rather than in breach of New Zealand’s convention obligations”. This has given confidence to the New Zealand Government that “There is no legal requirement for New Zealand to facilitate crew changes on non-New Zealand flagged vessels outside of our territory”  and that Order 2020 cannot be legally challenged, leaving New Zealand seafarers effectively without any legal protection. This argument, however, is both legally and morally indefensible. It goes without saying that when States drafted the MLC, 2006, they never intended for its provisions to be interpreted and applied in a way that allows a Member State to explicitly or implicitly discriminate against its own seafarers. Moreover, flag States are unable to discharge their repatriation duties if port States keep their ports closed, especially when they keep out their own nationals who cannot turn for help to the State of their nationality as happens in the case of New Zealand. The designation of seafarers as “key workers” is also meaningless and wholly undermines the aim of the IMO Resolution.

This practice also raises concerns under international human rights law, as it severely restricts the right of New Zealand seafarers to enter their own country. The freedom of movement is widely recognised in international human rights law (Article 13 UDHR; Article 12 ICCPR; Article 3 of Protocol No. 4 of the ECHR; Article 22 (5) ACHR; Article 12 ACHPR) and is also safeguarded under Section 18 of the New Zealand Bill of Rights Act 1990. Among others, the right to freedom of movement gives an individual the right to enter his/her country. The right is not absolute and can be restricted on various grounds, including for the protection of public health (Article 12 (3) ICCPR). This restriction, however, cannot be arbitrary and often requires meeting a proportionality and necessity test (Article 12 (4) ICCPR, CCPR General Comment No. 27). The compliance of Covid-19 restrictions with a person’s right to enter his/her country has been discussed here and it was stated that blanket bans on entry to a country are in breach of the right but other measures, such as quarantine and isolation, can meet the proportionality and necessity requirements. Along these lines, restrictions which make it practically impossible for a national to enter his/her own country, as happens with Order 2020 and the MIQ requirements, should be considered disproportionate.

Furthermore, the exemptions to Order 2020 operate in a way that discriminates against New Zealand seafarers who are denied the benefits of Order 2020 because they are New Zealand and not foreign nationals. The right to equal treatment requires that all persons be treated equally before the law, without discrimination, inter alia, on the ground of their national origin (Article 7 UDHR, Article 26 ICCPR; Article 24 ACHR; Article 3 ACHPR). The different treatment between New Zealand and foreign seafarers does not have any objective or reasonable justification for discriminating between them and the hardships New Zealand seafarers have been forced to overcome cannot be considered proportionate to the aim sought and the means employed (CCPR General Comment No. 18).

Can This Anomaly be Rectified under New Zealand Law?

On 20 September 2021, a complaint was laid with the Regulations Review Committee of the New Zealand parliament which acts on the Parliament’s behalf to ensure that the delegated law-making powers are being used appropriately and investigates complaints whereby enactment of a law can have an undesirable and unintended consequence. The complaint was based on Parliamentary Standing Orders SO 327(2)(a), SO 327(2)(b), SO 327(2)(c) and SO 327(2)(g), challenging the artificial distinction between foreign and New Zealand seafarers, being detrimental to the repatriation of New Zealand seafarers. On 21 October 2021 the Regulations Review Committee advised that the complaint does not fall within the Committee’s jurisdiction under the Standing Orders […] but rather concerns an operational arrangement to give effect to the Chief Executive of MBIE’s obligations in respect of managing the operation of the managed isolation allocation system under Order 2020. On 15 October 2021, an oral submission was made to the Parliamentary Select Committee reviewing the COVID-19 Public Health Response Act 2020, under which Order 2020 was created. The primary focus of the submission is on the fact that New Zealand seafarers have been actively discriminated against and that Section 28 of the Order 2020 does not ascribe any legislative mechanism by which New Zealand domiciled seafarers can be repatriated. The Select Committee was requested to rectify this anomaly, by the insertion of an appropriate amendment into clause 28 of the Order 2020. To date, there have been no such amendments incorporated.

Another Call for an Urgent Change

The New Zealand Government is now fully aware of the impact of Order 2020 on New Zealand seafarers and has been repeatedly urged to amend Order 2020 in order to enshrine the rights of New Zealand seafarers who work on foreign flag vessels. Unfortunately, it has not been positive towards any immediate changes and continues to knowingly discriminate against and disadvantage its own nationals. Once again, the New Zealand Government is urged to reconsider its approach and review its legislation and practices in order to rectify this unintended but very problematic legal error that has left hundreds of New Zealand seafarers stranded at sea.