Holding Transnational Corporations to Account in New Zealand for Human Rights Abuses Committed Overseas

AuthorCourtney Ormiston
PositionLLB (Hons)/BA
C O*
Transnational corporations (TNCs) are usurping the power that has
traditionally belonged to states. TNCs operate across multiple jurisdictions with
complex supply chains in the pursuit of low production and manufacturing costs
and high prot margins. International l aw has historically avoided application to
non-state actors, which has allowe d TNCs to wield signicant power while facing
few obligations to respect human rights.
Dole New Zealand and its sister corporation Dole-Stanlco are used as a
case study. Despite substantial allegations of human rights abuses throughout
Dole’s banana plantations in Mindanao, the Philippines, New Zealand is one of
the largest importers of their bananas. e alleged abuse of workers there would
not be tolerated in New Zealand but, by buying their bananas, New Zealand
consumers are indirectly tolerating and encouraging those abuses.
Exploration of the potential remedie s available to individual New Zealanders
to hold TNCs to account for their actions overseas demonstrates that the
current system is inadequate. Legislative changes are necessary to bring about
behavioural change in corporate supply chains. It is no longer an excuse that
the abuses are not occurring within our own territory, especially where our
own purchasing decisions not only contribute to but encourage those abuses.
I. I
In an increasingly globalised world transnational corporations (T NCs)
are usurping the power that has traditionally belonged to states.1 Rapid
advances in communication and tra nsportation throughout the last century
allowed enterprises to venture beyond domestic borders and expand their
1 Jilles LJ Hazenbou rg “Transnationa l Corporations a nd Human Ri ghts Duties: Perfec t and
Imperfect” (2016) 17(4) Human Rights R ev 479 at 479.
* LLB (Hons)/BA. Lawyer at Russ ell McVeagh. is a rticle is the prize winn ing essay for the
2017 Canterbury Law Rev iew Prize. All opinion s are the author’s own.
138 Canterbur y Law Review [Vol 24, 2018]
inuence across the globe. It is now estimated that TNCs make up between
one third and one half of the world’s 100 largest economic entities.3 TNCs
can be a transformative force for good, and the globalised economy has
generated millions of jobs over a few decades, lifting hundreds of millions
out of extreme poverty.4 However, it has become clear that, like many states,
TNCs are able to commit and escape responsibility for huma n rights abuses.5
While states may be held accountable for committing abuses through the
international community and international organisations such as the United
Nations (UN), international law has historically avoided application to
non-state actors. Until recently, states were considered “the primary, if not
exclusive, actors within the international order”.6 is has allowed TNCs to
wield signicant power while facing few obligations to respect human rights
within the states they operate in. e depth a nd complexity of their supply
chains has further impeded the ability to hold these entities to account,
especially where they operate in developing countries with rel axed labour and
trade laws and poor enforcement mechanisms.
An increasingly socia lly conscious global society ha s therefore embarked
on a quest to produce an international framework intended to address
corporate human rights abuse.7 e UN adopted the “Protect, Respect and
Remedy Framework” in 2008 and, later, the Guiding Principles on Business
and Human Rights (“Guiding Principles”) in 2011 as part of the movement
towards greater corporate responsibility. ese mechanisms, designed by
Special Representative John Ruggie, set out voluntary duties and obligations
which consolidate the law in relation to business and human rig hts and
provide guidelines for the improvement of protection of individuals aected
by TNCs’ activities. States have a duty to protect agai nst human rights abuses
by third parties including businesses and there is a corporate responsibility
to respect human rights. is a rticle is interested in the third principle which
concerns the provision of eective access to remedies for human rig hts
violations by T NCs.
Dole New Zealand (“Dole NZ”) and its sister corporation Dole-Stanlco
(“Stanlco”) will be used as a case study. Dole NZ is a Bermuda-registered
company and Stanlco is based in the Philippines. Both are subsidiaries
of ITOCHU Corporation, headquartered in Japan. ere are substantia l
allegations of human rights abuses throughout Dole’s banana plantations in
Mindanao, the Philippines, yet New Zealand is one of the largest importers
2 Robert C Blitt “Be yond Ruggie’s Guiding Pr inciples on Business a nd Human Ri ghts:
Chartin g an Embracive Approa ch to Corporate Huma n Rights C ompliance” (2012) 48(1)
Tex Intl LJ 33 at 36.
3 A t 37.
4 Dorothée Bauma nn-Pauly and Justine Nolan Busine ss and Human Rights: from Principles t o
Practice (Routledge, Abi ngdon, Oxon, New York, 2016) at 22.
5 Blitt, ab ove n 2, at 37.
6 At 36.
7 At 35.
Holding Transnational Corporations to A ccount in New Zealand for Human 139
Rights Abuses Committe d Overseas
of their bananas. e alleged abuse of workers there would never be tolerated
in New Zealand, but by buying their ba nanas (and in such large quantities),
New Zealand consumers a re indirectly tolerating and encouraging those
abuses. Just because human rig hts abuses are not being committed in New
Zealand does not mean that they should be ignored, particula rly where the
purchase of those products in New Zealand is supporting those abuses. New
Zealanders deser ve assurance that the products they purcha se in supermarkets
are not harming people on the other side of the world.8 However, there are
many challenges when it comes to holding TNCs to account for human
rights violations. is article focuses on the ability to remedy such human
rights abuses. Whi le consumers can take a stand agai nst such corporations by
“voting with their dollar” or speaking out on social media, this research will
assess potential legal avenues available to individual New Zealanders which
could force corporations to take direct responsibility for their activities. How
can the average New Zea lander seek remediation of human rights abuses
committed overseas in relation to the creation and distribution of products
and services in New Zealand? It should be noted that, on 26 October 2017,
Dole NZ issued a notice of intention to cease to carry on business in New
Zealand. However, this will not aect the relevance and application of this
article which has used Dole NZ as a case study within the broader context of
TNC accountability in New Zealand for actions committed overseas.
Part II of this article will outline the alleged human rights abuses that a re
being committed on Dole’s banana plantations in Mindanao. Part III will
discuss how business and human rights t within the current international
human rights law framework. Part IV will assess a number of remedial
mechanisms that are available to the average New Zeala nder and whether
these would provide an adequate remedy for the alleged abuses overseas and
New Zealand ’s contribution to them. Finally, having concluded that there is
little that the average New Zea lander can do to hold TNCs to account, part
V will consider the potential for legislative change.
II. C S: N Z   D B P 
M, P
New Zealand imports more bananas per capita than a ny other developed
country and is the second large st importer globally.9 Each New Zealander
eats an average of 18 kg of bananas annually.10 Dole NZ, throug h Stanlco,
is one of the largest suppliers of bananas to New Zealand, which supplies 70
per cent of its bananas from Mindana o, the Philippines. Stanlco pla ntations
8 Oxf am New Zealand “Are Dole Ban anas really the ‘eth ical choice’?” 27 May 2013
9 Tess McClure “Bana na Republic: the ugly story behi nd New Zealand’s most popula r fruit”
19 July 2016 Radio NZ .
10 Ibid.

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