遠洋漁業人權規範之境外效力：權宜船管理之投資人注意義務芻議

Extraterritoriality of Human Rights Norms in Distant Water Fisheries: On Investors’Due Diligence Obligations in FOC Governance

近年我國遠洋漁船涉入非法、未報告及不受規範漁撈作業、以及人口販運或強迫勞動，引發國內外關注。其中，權宜船尤受關注，嗣促成全球權宜船管制創舉之《投資經營非我國籍漁船管理條例》及「投資經營非我國籍漁船許可辦法」。惟權宜船之人權侵害風險仍使我國遠洋漁業難脫污名。
本文嘗試超然於爭議各方立場，依據學術文獻、官方文件、歷年訪談及會議紀錄，對權宜船管制模式提出具體可行之建言。首先釐清現實面，解讀權宜船存在之必然，並分析我國遠洋漁業發展史上獨特之產官協力模式。其次則以平衡產業永續發展及環境人權保護等利益為基礎，討論權宜船經營模式與「企業與人權」規範標的符節之處。以此為鑑，參酌企業與人權國際軟法以及法德晚近立法例，建議於現行規範下納入權宜船投資人注意義務，為整體遠洋漁業轉型之領航支柱。
具一定企業規模之權宜船投資人應負注意義務，定期就環境與人權侵害風險制定防範計畫。為緩解境外雇用漁工跨國尋求有效救濟之難題，政府應設漁業與人權國家聯絡站，受理海內外通報個案，以合議機關執行個案爭端調解與通案防制建議。同時於現行行政罰則外，補充境外肇生之人權侵害事件之民事訴訟管轄權，確保責任歸屬。

In recent years, Taiwan's distant-water fishing vessels have been involved in illegal, unreported, and unregulated fishing as well as human trafficking or forced labor, which has made headlines at home and abroad. Among them, flag of convenience (FOC) vessels have drawn particular attention, which led to the adoption of the unprecedented normative framework composed of the Act to Govern Investment in the Operation of Foreign Flag Fishing Vessels and the Regulations on the Approval of Investment in or the Operation of Foreign Flag Fishing Vessels. However, risks of human rights violations by FOCs remain an obstacle to renewing the image of the distant water fisheries.
Going beyond the positions taken by different stakeholders in disputes, the present paper tries to put forward realistic and feasible recommendations on FOC regulations based on academic literature, official documents, interviews and meeting records over the years. The first step is to understand the inevitable existence of FOCs in reality, followed by an analysis of the unique industry-government cooperation model throughout the development history of Taiwan's distant water fisheries. For its second part, this paper discusses the similarities between FOC and the multinational corporations targeted by the normative framework of ''business and human rights''. Accordingly, by taking into account the international soft law on business and human rights as well as recent French and German legislations, this paper suggests that the existing domestic norms should incorporate the due diligence duty of the FOC investors and thus support the guiding model for the transformation of the distant-water fisheries.
FOC investors of a certain enterprise scale should be subject to the due diligence obligations and regularly formulate prevention plans for environmental and human rights infringement risks. Furthermore, to alleviate the problem for fishermen recruited overseas to seek effective remedies across borders, the government should set up a national contact point (NCP) for fisheries and human rights to consider cases reported. This NCP should be a collegial body in charge of case dispute mediation and general prevention recommendations. In addition to the current administrative penalties, the civil litigation jurisdiction for infringements occurring overseas will be supplemented to ensure the attribution of liability.