The Maritime Labour Convention, 2006

The Maritime Labour Convention, 2006 A Legal Primer to an Emerging International Regime

By

Moira L. McConnell Dominick Devlin Cleopatra Doumbia-Henry

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data McConnell, Moira L. (Moira Lynne), 1956The Maritime Labour Convention, 2006 : a legal primer to an emerging international regime / by Moira L. McConnell, Dominick Devlin and Cleopatra Doumbia-Henry. p. cm. Includes index. ISBN 978-90-04-18375-9 (hardback : alk. paper) 1. Maritime Labour Convention (2006) 2. Merchant mariners–Legal status, laws, etc. 3. Labor laws and legislation, International. I. Devlin, Dominick. II. Doumbia-Henry, Cleopatra. III. Title. K1196.A42006M38 2011 343.09'6–dc22 2011006123

ISBN 978 90 04 18375 9 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

CONTENTS

Preface and Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi List of Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

part i Chapter One. Overview and Introduction to the Maritime Labour Convention,  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Two. The Story of the Maritime Labour Convention,  . . . . . . . Chapter Three. The Maritime Labour Convention,  as an Instrument of the International Labour Organization. . . . . . . . . . . . . . . . . . . Chapter Four. Overview of the ILO’s Supervisory System: More than  Years of Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 37 63 93

part ii Chapter Five. Mapping the Terrain: Structure and Substance in the Maritime Labour Convention,  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Six. Principles and Rights—The Articles (and the Preamble). . . . . Chapter Seven. Title : Minimum Requirements for Seafarers to Work on a Ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Eight. Title : Conditions of Employment . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Nine. Title : Accommodation, Recreational Facilities, Food and Catering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Ten. Title : Health Protection, Medical Care, Welfare and Social Security Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Eleven. Title : Compliance and Enforcement . . . . . . . . . . . . . . . . . . . . Chapter Twelve. Conclusion and Reflections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

115 165 243 275 337 389 473 563

appendices Appendix . Negotiation History Leading to the Maritime Labour Convention,  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 Appendix . Annotated Maritime Labour Convention,  . . . . . . . . . . . . . . 577 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 679

PREFACE AND ACKNOWLEDGEMENTS

This book was completed in the fifth year following the adoption of the Maritime Labour Convention,  (MLC, )—the ‘seafarers’ bill of rights’— by the th (Maritime) Session of the International Labour Conference of the International Labour Organization (ILO), one of the oldest of the United Nations’ organizations and the first to become a UN specialized agency. It is also the year in which we expect that the very demanding legal requirement for entry into force of this convention, the / formula, will be achieved. Then the foundational work—the dreaming, designing, and construction, implementing process—will enter a new phase. This important new international law of the sea ‘framework’ convention that seeks to bring social justice and fair competition to the maritime world will be truly tested by the experiences of seafarers on the ships that ply the world’s oceans. Will it float? Will it in fact achieve the aspirations of the international seafarers’ and shipowners’ organizations that first conceived of it and the more than  government delegations that supported its development and adoption? Will it be able to achieve real change and transcend the ‘paper tiger’ that international legal instruments so often appear to be, with their dependence on good faith effective national implementation. Certainly the tools—the combination of the best of the ILO’s traditional approaches based on tripartism, independent labour inspection, complaints systems, and the ILO supervisory system with the international maritime regulatory regime based on ship inspections and certification and port State control (essentially, spot checks) and the no more favourable treatment (fair competition) economic system approach—should serve to make the dreams a reality for seafarers and shipowners. But the key, as is often the case, lies not only with the good faith implementation of legal obligations by ratifying countries, but with the more difficult problem in a globalized sector of ensuring sufficient technical knowledge and capacity to implement on a widespread, ideally universal, basis. The three authors hope that this book, with its bifurcated (two part) structure and its mix of practical and scholarly and archival information, will prove to be a useful resource that will inform and assist a diverse audience. It is aimed at the cadre of maritime and law of the sea practitioners that will have the opportunity and cause to work with the MLC, , implementing it nationally or assisting shipowners or seafarers in its implementation, or those with an interest in the further development of the law of the sea and ocean governance regimes.

viii

preface and acknowledgements

Published in both print and as an E-book, this volume includes, as an appendix, the text of the  page annotated MLC, . Three important additional sources of information about the MLC,  that are frequently referred to in the body of the book, as well as the travaux préparatoires, are all available on the website of the ILO. For the convenience of of readers three key sources are also available (along with hypertext link to the relevant website of the ILO which contains many of the referenced materials), for download at http://brill.nl/MLC_. The first key resource is the “Article  Report” that ratifying countries will be required to submit to the ILO regarding implementation of the MLC, , once it enters into force. This Report is the basis of the review of state-level compliance by the ILO’s supervisory system, which is discussed in detail in Chapter . The other two key resources also referred to throughout the book are the Guidelines for Flag State Inspections under the Maritime Labour Convention,  and the Guidelines for Port State Control Officers Carrying out Inspections under the Maritime Labour Convention, . While from a legal perspective they cannot be considered as interpreting the text, they provide an authoritative tripartite view on the practical application of the Convention’s requirements. It is hoped that these additional resources will provide useful references for appreciating the more technical and operational elements of the MLC, . This book arose out of our work together over nearly a decade, in differing roles, to help develop the text of the Convention and then to help advance its rapid ratification and effective implementation. This is also an international book with its three authors living and working in three countries—Halifax, Canada; Rome, Italy; and Geneva, Switzerland—with much of our work reflecting modern working conditions and a shared workspace based on electronic communication and virtual presence. Each author has been responsible for the drafting of differing parts of the book, and in the case of one chapter on the ILO supervisory system, has also had the benefit of a contribution by another ILO expert, Tomi Kohiyama, International Labour Standards Department, ILO, Geneva. Thus the commentary and analysis in this book reflects our shared thoughts and ideas, developed through extensive discussions and experiences over nearly a decade of engagement to support the tripartite negotiations that led to this major new international legal instrument. However an important caveat must also be noted: the views in this book reflect the personal views of its authors, or co-authors as the case may be, and are not the views of the ILO or the International Labour Office. Each author has brought differing expertise to the project. Cleopatra Doumbia-Henry brought her maritime and international labour law scholarship and expertise combined with extensive legal and practical experience in the ILO with the supervision of international legal standards and her direct

preface and acknowledgements

ix

engagement with facilitating international and national level tripartism and social dialogue. Dominick Devlin, an international organizations lawyer with a career of legal advisory work in the legal department of a number of UN specialized agencies, including his role as a Legal Adviser for the ILO and, subsequently, as a Special Advisor to the ILO in connection with the MLC, , as well as his current position as Chair of the World Intellectual Property Organization Appeal Board, brought extensive expertise in international institutions law, legal drafting, and ‘problem solving’ through legal text. Moira L. McConnell, a Professor of Law and member of the Marine & Environmental Law Institute based in the Schulich School of Law at Dalhousie University, with her expertise in law of the sea, maritime law, international environmental law, and international regulatory systems as well as significant experience with national level law reform, brought both academic analysis and international law expertise. Trite though it may seem to say—the whole is, indeed, greater than the sum of the parts. As the content of this book reveals, an immense intellectual debt is owed to the shipowner and the seafarer representatives who dreamed and decided to act and to build on achievements of the past. They saw a way forward, even foreseeing many details of this Convention, and then worked steadily to bring it to fruition. Equally important is the guidance and ideas of far-sighted government representatives. Each of the authors, of course, have their personal debts, and gratitude and thanks must be expressed to acknowledge the unstinting support and sacrifices by their spouses and families and friends, all of whom one way or another have travelled with us on the voyage of the MLC, . Our collective thanks to Peter Katadotis, Carla Devlin, and Zandiougou, Zani and Bassi Doumbia for their patience and years of unflinching support. Some other acknowledgements and our sincere thanks to a few others are also in order. Our thanks to Susan Rolston of Seawinds Consulting Services, Halifax, Canada, for her professionalism in editing and her interest in this lengthy project through to completion. Dominick Devlin would like to express his indebtedness to Francis Maupain, ILO Legal Adviser from  to , for his advice and support. Cleopatra Doumbia-Henry would like to express her special thanks to Mary Giacobino for more than ten years of unswerving support and to the ILO for giving her the opportunity to lead this monumental exercise. Moira McConnell would also like to express her gratitude to Dalhousie University and the Faculty of Law for the sabbatical leave that has provided her with time and support to allow completion of this book. Our collective thanks also to our publishers at Martinus Nijhoff/Brill for their patience with the length of time it has taken to finally produce the text. The only justification that can be given is that the

x

preface and acknowledgements

Convention is growing up alongside the book and the book has indeed benefited from the growth. Moira L. McConnell Halifax, Canada

Dominick Devlin Rome, Italy

Cleopatra Doumbia-Henry Geneva, Switzerland February 

ABBREVIATIONS CBA CFA DMLC ECOSOC EEZ EU FOC GB GT HLTWG ICJ ICMA ILC ILO ILS IMO ISF ISM Code ITF JMC LILS LOSC MARPOL MLC MLC,  MOU NGO OHS OSH PSC PSCO PTMC PTMLC RO SEA SMD SOLAS SPS Code

collective bargaining agreement Committee on Freedom of Association Declaration of Maritime Labour Compliance Economic and Social Council of the United Nations exclusive economic zone European Union flag of convenience Governing Body (ILO) gross tonnage High-level Tripartite Working Group on Maritime Labour Standards (ILO) International Court of Justice International Christian Maritime Association International Labour Conference International Labour Organization international labour standards International Maritime Organization International Shipping Federation International Safety Management Code International Transport Workers’ Federation Joint Maritime Commission Committee on Legal Issues and International Labour Standards (ILO) United Nations Convention on the Law of the Sea,  International Convention on the Prevention of Pollution from Ships,  as amended Maritime Labour Certificate Maritime Labour Convention,  memorandum of understanding non-governmental organization occupational health and safety occupational safety and health port State control port State control officer Preparatory Technical Maritime Conference Preparatory Tripartite MLC,  Committee recognized organization seafarers’ employment agreement safe manning document International Convention for the Safety of Life at Sea,  as amended Code of Safety for Special Purpose Ships, 

xii STCW

abbreviations

International Convention on Standards of Training Certification and Watchkeeping for Seafarers,  as amended STM Committee Committee on Sectoral and Technical Meetings and Related Issues (ILO) STWGMLS Tripartite Subgroup of the High-level Tripartite Working Group on Maritime Labour Standards (ILO) UNCTAD United Nations Conference on Trade and Development WHO World Health Organization WTO World Trade Organization

LIST OF FIGURES Figure  Figure  Figure  Figure  Figure  Figure  Figure 

The eight ‘preferred solutions’ of the shipowners and seafarers Titles and appendices of MLC,  Example of vertical integration Chairperson’s summary Legal Adviser’s opinion on the status of Part B of the Code Guidance for an approach to the implementation of the MLC,  Inclusion of the area of recruitment and placement in Appendices A-I and A-III Figure  Promotion of employment resolutions adopted by the th ILC Figure  Overview of Title  regulations (and sub-regulations) Figure  Consensual Statement of Principles and Rights adopted by the Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers, May 

PART I

chapter one OVERVIEW AND INTRODUCTION TO THE MARITIME LABOUR CONVENTION, 2006

Overview: An Approach to International Maritime and Labour Law This book was completed in , following the ninetieth year since the adoption of the first maritime labour instrument in 1 by the then newlyestablished International Labour Organization (ILO).2 The year  was also the year declared by the International Maritime Organization (IMO)3 as the ‘year of the seafarer’.4 The publication of this book in , shortly after the fifth anniversary of the adoption of the Maritime Labour Convention,  (MLC, ),5 a major new maritime labour instrument, by the th International Labour Conference (ILC) of the ILO is significant. At the time the MLC,  was adopted, it was expected that it would take approximately five years to achieve the ratifications necessary to bring this comprehensive maritime convention into force.6 Although at the time of completion of this book, the MLC,  is not yet in force,7 it is expected that the stringent formula for entry into

1

On  July , at its Genoa session, the ILO adopted the National Seamen’s Code Recommendation,  (R), available at http://www.ilo.org/ilolex/english/recdisp.htm. 2 The ILO, a specialized agency of the United Nations, maintains its headquarters (the International Labour Office) in Geneva, Switzerland. See: http://www.ilo.org. 3 The IMO is a specialized agency of the United Nations. See: http://www.imo.org. 4 See: IMO, “IMO Council makes  the ‘Year of the seafarer’,” available at http://www.imo .org/newsroom/mainframe.asp?topic_id=&doc_id=. 5 See: ILO, “Maritime Labour Convention, ,” available at http://www.ilo.org/global/ standards/maritime-labour-convention/WCMS_/lang-en/index.htm. The MLC, , adopted on  February , is available in eight languages. Appendix  in this book contains an annotated version of the Convention. 6 See: ILO, Action Plan to achieve rapid and widespread ratification and effective implementation of the Maritime Labour Convention,  (Action Plan –) adopted in September , available at http://www.ilo.org/global/standards/maritime-labour-convention/ WCMS_/lang-en/index.htm. 7 As of February  the Convention has been ratified by twelve countries that are the flag States for over  per cent (by gross tonnage (GT)) of the world’s fleet (in order of ratification: Liberia, the Marshall Islands, Bahamas, Panama, Norway, Bosnia and Herzegovina, Spain, Croatia, Bulgaria, Canada, St Vincent and the Grenadines, Switzerland).



chapter one

force will be met in , with entry into force  months8 later in . The MLC,  has a bold agenda aimed at creating change at both the level of the workplace and international practice. It was strategically designed to place minimum international labour and social standards for seafarers—the essential human element—on the same footing as the increasingly effective international regulatory regime to ensure ship safety, security and protection of the marine environment from ship-source pollution. When the MLC,  enters in force it is clear that it will have a major impact on the maritime sector.9 The international maritime regulatory system has a well-established and generally effective approach that has been developed over the last century to address the jurisdictional challenges posed by the primarily international character of this sector. It has many elements but chief amongst them are the widespread ratification by States with a maritime interest,10 combined with effective implementation and a system for compliance and enforcement that directly targets compliance by non-State actors (shipowners/ships) in addition to traditional international law concerns with State-level compliance. However, from a legal and institutional perspective, labour and social rights in the maritime sector uncomfortably straddle both shipping and labour expertise and practice. In fact, the issue of maritime labour or seafarers’ rights often risks falling between these two areas, in both international and domestic legal systems. In part this is because the international maritime regulatory regime is based on the international law of the sea and flag State and port State responsibility whilst labour and employment law, even if implementing standards in international conventions, is by contrast, more concerned with domestic law and is founded on territorial jurisdiction and national practice. This poses a 8

The entry into force formula under Article VIII of the MLC,  is: . This Convention shall come into force  months after the date on which there have been registered ratifications by at least  Members with a total share in the world gross tonnage of ships of at least  per cent.

9 In fact it has already had a discernable impact on the industry and organizations concerned with developing capacity to inspect and certify ships for compliance with the Convention or inspect for compliance under port State control when ships enter their ports. Several ships have already been inspected and certification has been prepared ahead of the relevant flag State ratification. See, for example: Shiptalk, “V Good,”  February , available at http://www.shiptalk .com/?p=. See also with respect to recruitment and placement services: Shiptalk, “MLC Moves,”  August , available at http://www.shiptalk.com/?p=, and OSM, “OSM: The first ever to be certified per the ILO Maritime Labour Convention!” (dated ..), available at http://www.osm.no/view_casearticle.asp?id=&news=news. 10 Traditionally there are three kinds of interests or faces to a State’s possible interest under the law of the sea: flag State, port State, and coastal State (see below at pp. –). As will be discussed throughout this book, the MLC,  introduces a fourth law of the sea ‘face’ for States, that of labour-supplying responsibilities.

overview and introduction



challenge for the implementation of international conventions that are at the intersection of maritime and labour law. It may also be an explanation for the relative dearth of legal research and scholarship on this topic which cuts across matters that are, themselves, also specialized legal fields.11 It also poses a challenge for national implementation, in part because there is a paucity of people with expertise in both areas and because of the traditionally fragmented approach to the management of issues in most countries and internationally. Given the significant impact that this Convention will have when it enters into

11 There is a significant body of specialized research on seafarers, largely by maritime economists, specialist maritime or transport institutes, or by practitioners working with organizations representing seafarers. See, for example, the numerous empirical and other studies published by the Seafarers International Research Centre (SIRC), Cardiff University (http://www.sirc.cf.ac .uk/). See also: Nathan Lillie, “The ILO Maritime Labour Convention, : A new paradigm for global labour rights implementation,” in Cross-Border Social Dialogue and Agreements: An Emerging Global Industrial Relations Framework?, Konstantinos Papdakas, ed. (Geneva: ILO, International Institute for Labour Studies, ), –; Nathan Lillie, A Global Union for Global Workers: Collective Bargaining and Regulatory Politics in Maritime Shipping (New York: Routledge, ); Lisa Tortell, Rudi Delarue, and Jeffrey Kenner, “The EU and the ILO Maritime Labour Convention: ‘In our common interest and in the interest of the world’,” Chapter , in The European Union and the Social Dimension of Globalization: How the EU Influences the World, Jan Orbie and Lisa Tortell, eds. (New York: Routledge, ), . However other than ‘plain language’ industry handbooks prepared by shipowners’ and seafarers’ organizations, there is relatively little legal scholarship. In addition to various publications by the authors of this book, there have been a few interesting legal articles and studies on the MLC,  by authors either involved with negotiation of the Convention, such as a member of the United States’ delegation, John Isaac Blanck, Jr., “Reflections on the negotiation of the Maritime Labor [sic] Convention  at the International Labor [sic] Organization,” (–)  Tulane Maritime Law Journal –, or larger studies undertaken by doctoral or other researchers such as Alexandre Charbonneau, Marche International Du Travail Maritime Un Cadre Juridique En Formation, Doctoral dissertation, , Faculté de Droit et des Sciences Politiques, Université de Nantes; Paul Bauer, “The Maritime Labour Convention: An adequate guarantee of seafarer rights or an impediment to true reforms?” (–)  Chicago Journal of International Law –, or ILO experts, for example, Patrick Bolle, “The ILO’s new Convention on maritime labour: An innovative instrument,” ()  International Labour Review –, or legal scholars/practitioners that are involved in advocating for seafarers rights, such as Peter Payoyo, “The contribution of the  ILO Maritime Labour Convention to global governance,” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, Aldo Chircop, Ted L. McDorman, and Susan J. Rolston, eds. (Leiden/Boston: Martinus Nijhoff/Brill, ), –. In that respect, Seafarers’ Rights, Dierdre Fitzpatrick and Michael Anderson, eds. (Oxford: Oxford University Press, ) is an important edited collection of studies of the both sources of rights combined with examples of protection under the national law of several countries. There is also a useful collection that reproduces and/or summarizes the texts of ILO maritime conventions with some analysis of provisions, in some cases relative to the MLC, , and some national legal references drawn from the ILO Committee of Experts reports by Iliana Christodoulou-Varotsi and Dmitry A. Pensov, Maritime Work Law Fundamentals: Responsible Shipowners, Reliable Seafarers (Berlin: Springer, ).



chapter one

force, it is important that greater knowledge and legal expertise and understanding of the Convention and the topic of maritime labour be developed. Viewed from a wider international law and maritime law perspective the MLC,  also constitutes a further elaboration of the international maritime regulatory regime under the  United Nations Convention on the Law of the Sea (LOSC)12 as it pertains to conditions on ships voyaging on the high seas and an approach to responding effectively to a globalized13 sector and better ensuring implementation and enforcement at the shipboard/seafarer level. In fact, the MLC,  can be understood as filling a significant gap in the LOSC—long considered the ‘constitution for the oceans’. Despite its constitutive character, which was “[p]rompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea” and aimed at “. . . establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans”,14 the drafters of the LOSC failed to do more than peripherally address the use of the ocean,

12

United Nations Convention on the Law of the Sea,  December , UN Doc. A/Conf. /,  I.L.M.  (entered into force on  November ), available at http://www.un.org/ depts/los/convention_agreements/texts/unclos/closindx.htm. 13 See infra note  and text at p. . The word ‘globalization’ and its offshoots, much like the term ‘sustainable development’ have various definitions and both positive and negative connotations depending on the disciplinary perspective or institution affiliation, for example, political, economic, or cultural. The following description, adopted in the preamble to the ILO Declaration on Social Justice for a Fair Globalization adopted by the th ILC on  June , captures the main characteristics and concerns from a labour/employment perspective (emphasis added): Considering that the present context of globalization, characterized by the diffusion of new technologies, the flow of ideas, the exchange of goods and services, the increase in capital and financial flows, the internationalization of business and business processes and dialogue as well as the movement of persons, especially working women and men, is reshaping the world of work in profound ways: – on the one hand, the process of economic cooperation and integration has helped a number of countries to benefit from high rates of economic growth and employment creation, to absorb many of the rural poor into the modern urban economy, to advance their developmental goals, and to foster innovation in product development and the circulation of ideas; – on the other hand, global economic integration has caused many countries and sectors to face major challenges of income inequality, continuing high levels of unemployment and poverty, vulnerability of economies to external shocks, and the growth of both unprotected work and the informal economy, which impact on the employment relationship and the protections it can offer; . . . Convinced that in a world of growing interdependence and complexity and the internationalization of production: . . . 14

LOSC, supra note , Preamble.

overview and introduction



particularly the high seas, as a workplace or a site for human rights.15 As discussed later in this chapter these matters are simply left to the ‘default’ jurisdiction of the relevant flag State with a ‘genuine link’ to the ship and its general obligation to “effectively exercise its jurisdiction and control in administrative, technical, and social matters over ships flying its flag”.16 In terms of increased integration of UN organizations and international law-making activities, the high level of cross-fertilization between the IMO17 and the ILO is also clearly evidenced in the process to develop this Convention and in the text itself. With its interwoven labour and social rights and economic goals the MLC,  is an international legal instrument that will also have a significant impact on approaches to securing decent work/minimum labour conditions for ‘globalized’ workers.18 The move to certification of working and living conditions— essentially a rights-based regime that uses the economic realities in the sector as leverage—is an especially important step by the ILO that may be of much wider significance. While not all aspects of the MLC,  will be transferable, some elements, such as the structural approach to convention design, promotion of solutions to the problem of countries where there are no representative organizations of workers or employees, ways to provide a ‘floor’ of social protection, including, as yet, development of the insurance sector to address globalized workers. For example, the MLC,  contains a number of specific structural 15 There are, however, some human rights provisions relating to slavery and piracy, although arguably wider human security rights are also encompassed in connection with, for example, the provisions governing the protection of the marine environment or living resources. 16 LOSC, supra note , Arts – ff. and see infra at pp. –. 17 Supra note . 18 See supra note  and Lillie , supra note , p.  (citations removed):

The forces that increasingly shape industrial relations are international, transnational, supra-national, or all three. International trade and investment put workers in distant locations in competition with one another. Transnational firms benchmark labour costs and work practices across borders, while unions and nongovernmental organizations (NGOs) compare conditions in factories around the world, pressuring firms to observe labour rights under threat of consumer boycott. Supranational organizations, in which nation States “pool” their sovereignty (most notably the European Union) form a new arena of industrial relations outside and in a sense above national industrial relations systems. Global labour rights standards are increasingly used as a frame of reference for judging the practices of employers and the claims of labour rights advocates. In so far as corporations retain unilateral control of how these rights are applied, this trend represents a privatization of rights formally guaranteed in the public sphere. The case of the ILO Maritime Labour Convention,  (MLC) shows, however, that where there are sufficiently transnational and coherent global political actors representing labour and capital (particularly labour), global tripartitism in the International Labour Organization (ILO) context holds the promise of reintroducing effective state enforcement of labour standards.



chapter one

and substantive innovations related to important ILO values such as tripartism19 and encouraging social dialogue20 at the national levels as a mechanism for resolving specific national implementation issues. This approach, combined with a multi-level, multi-actor system based approach to ensuring effective implementation through more strategic compliance and enforcement activities, provides an opportunity for reflection on the broader questions of international law-making, and the relationship between States, private actors, and questions of governance.21 The Structure and Approach of This Book This two-part book with chapters authored22 (or co-authored23) by international law practitioners and scholars with combined expertise in the public international law of the sea, maritime law, and international labour law and, more specifically, direct involvement with the development of the MLC,  over nearly a decade, is primarily concerned with providing a detailed legal analysis of the Convention text. It is specifically directed to labour, human rights, and maritime law and policy scholars and practitioners. However, it is also specifically intended to be of interest to a wide and diverse range of scholars and practitioners interested in international law in general, and law of the sea in particular, as well as those interested in international institutions and international relations and regulatory system/treaty design. It presents a number of arguments, from various perspectives, regarding the potential role and importance of the MLC, . The four main perspectives can be loosely categorized as: 19 States are represented in the ILO by national delegations. Under the ILO Constitution, the ‘State’ is conceived of as a tripartite entity comprising workers, employers, and government. Although only governments can ratify conventions (and be held accountable in international law), all three vote on the adoption of international legal instruments at the ILO using a weighted voting formula. See infra note . 20 The term ‘social dialogue’ also has a particular meaning for the ILO. See infra note . 21 See discussion infra at note . 22 Moira L. McConnell, Professor of Law and Faculty Associate of the Marine & Environmental Law Institute at Schulich School of Law, Dalhousie University, Canada, was also a Special Adviser to the ILO during the development and follow-up of the Convention; Dominick Devlin, the former Legal Adviser to the International Labour Office in Geneva is currently a Special Adviser to the ILO and Chair of WIPO Board of Appeal; Cleopatra Doumbia-Henry, Director of the International Labour Standards Department of the ILO, Geneva, has been responsible for the International Labour Office activities to develop the MLC,  since the late s and is also responsible for the ILO supervisory system. The views expressed in this book are personal views of the authors and are not to be attributed to or understood as reflecting the views of the ILO. 23 Chapter  on the ILO’s supervisory system was co-authored by Cleopatra Doumbia-Henry and Tomi Kohiyama, Assistant to the Director, International Labour Standards Department, ILO, Geneva.

overview and introduction – – – –



labour/employment law maritime regulation law of the sea international law and governance

This ambitious intra- and interdisciplinary reach reflects the view that, despite sharing the public law field and relationships through UN organizations, these law of the sea/maritime and labour areas draw upon differing experts and expertise and traditional legal, political, and institutional values at both the national and international levels. This book has been designed to provide a comprehensive legal resource on this important international convention and area of practice and research. It comprises  chapters (including this present introductory chapter and the conclusion) organized into two Parts, with two appendices. The two appendices provide a brief review of the negotiation process for the MLC,  (Appendix ) as well as the full text of the MLC,  (Appendix ) with annotations providing additional information regarding the ILO conventions and recommendations that are consolidated in the MLC, . Part I, comprising four chapters, including the present chapter, provides an orientation to the MLC,  in the context of the ILO and international labour standard-setting practices and supervision. It also serves as an introduction to the international maritime regulatory framework within which the MLC,  also fits. The second half of the book, Part II, constitutes the main part of this book with seven substantive chapters and a conclusion. It is chiefly concerned with a detailed examination of the text of the MLC, , essentially, from a legal perspective. It provides a detailed discussion and analysis of the Convention text drawing on the ILO’s Provisional Records (travaux préparatoires) of meetings leading up to its adoption and other sources available to the authors. Part II provides a documented analysis of all key provisions and approaches adopted in this comprehensive and complex convention. The seven substantive chapters begin by exploring the drafting history for structural elements and the development of the text over the five years of negotiation (Chapter ). This is followed by detailed discussion in Chapter  of the Articles of the Convention, and, in Chapters –, of the five Titles and Appendices to the MLC, . The exegesis of the Convention’s provisions in Part II is subject to a caveat. Like any other legal instrument, understandings at the time a convention is negotiated,24 and the records of these understandings, to the extent that they 24 Both recollections and the people involved change over time and ‘meaning’ evolves; inevitably there is a risk that the contextual understanding that can be brought to bear on any analysis of a legal text is lost. This is common to all legal instruments and can have the advantage of



chapter one

illuminate the text of the instrument, play an important role in the analysis of a text’s ‘meaning’ and, more importantly, what it means for national implementation and application to particular situations. In addition, general principles of international law relating to the interpretation of treaties, such as those found in the Vienna Convention on the Law of Treaties,25 are also important. Final recourse to the International Court of Justice (ICJ) for an authoritative interpretation also applies to the MLC, .26 This means that any commentary, including views based on the intentions captured in the travaux préparatoires, is, at best, explanatory and, ultimately, speculative. allowing a text to grow and evolve, freed from its history. But it can also mean that negotiated understandings that inform the application of a text are betrayed or misunderstood and defeat the objectives of an instrument. Not surprisingly, preambles to record the objectives of a convention have grown in length and detail in an effort to capture this context. 25 Done at Vienna on  May ,  U.N.T.S. , entered into force on  January , available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/__ .pdf. Section , Interpretation of Treaties, of the Convention provides that: Article , General rule of interpretation . A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. . The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. . There shall be taken into account, together with the context: a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; c) any relevant rules of international law applicable in the relations between the parties. . A special meaning shall be given to a term if it is established that the parties so intended. Article , Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article , or to determine the meaning when the interpretation according to Article : a) leaves the meaning ambiguous or obscure; or b) leads to a result which is manifestly absurd or unreasonable. 26

Constitution of the International Labour Organisation, Art. , para. , available at http:// www.ilo.org/ilolex/english/constq.htm.

overview and introduction



Additional sources of legal information about the MLC,  include the ILO’s Article  Report on the MLC, 27 which provides supplementary information on the expectations of the ILO’s international supervisory system (see Chapter ) regarding ratifying States’ obligations to implement the Convention. Governments will be required to complete a report on how they have implemented the MLC, , once it enters into force. This report is the basis of the review of State-level compliance by the ILO’s supervisory system and is an important aspect of the multi-pronged compliance and enforcement system of the MLC,  and other ILO conventions. The Report itself is of interest for both its innovative format and its approach to the use of the shipboard documentation. The Guidelines for Flag State Inspection System under the Maritime Labour Convention, 28 (hereinafter Guidelines for Flag State Inspection) and the Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention, 29 (hereinafter Guidelines for Port State Control Officers) address the more practical implementation questions such as ‘how to check’ for compliance, at the shipboard level, with national laws or measures implementing the MLC, . These guidelines were adopted in  by an ILO tripartite meeting of experts. They are intended to achieve a level of harmonization in the implementation of a convention that also emphasizes national flexibility in implementation.30 While from a legal perspective they cannot be 27

Reports of the Committee on Legal Issues and International Labour Standards: Second Report: International labour standards and human rights, ILO Governing Body, Geneva, March , GB.// (Rev), Appendix IV, pp. –, available at http://www.ilo.org/global/standards/ maritime-labour-convention/WCMS_/lang--en/index.htm. 28 International Labour Office, Guidelines for Flag State Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www.ilo.org/wcmsp/groups/public/ed_norm/-normes/documents/publication/wcms_.pdf. This document is also available at http://brill.nl/MLC_. 29 International Labour Office, Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www .ilo.org/wcmsp/groups/public/-ed_norm/-normes/documents/publication/wcms_.pdf. This document is also available at http://brill.nl/MLC_. 30 As explained in the Preface to the Guidelines for Flag State Inspection, supra note , page V (citations removed): . . . A key feature of the MLC, , is that it builds on the strengths of the ILO approach to making sure that, in each country, international labour standards are effectively implemented at the “ground level” and enforced. At the same time the MLC, , meets the challenges of this globalized industry by taking over many elements that are found in other major maritime Conventions and have contributed to the success of those Conventions in ensuring safer and secure shipping and preventing marine pollution. The most important of these elements is found in the emphasis in the MLC, , on effective flag State inspection and certification of ships. Flag State inspectors, including those from Recognized Organizations, are at the front line of the combat to ensure decent conditions of work for seafarers. An effective and coordinated system of regular inspections, monitoring and other control measures of ships adopted by the competent



chapter one

considered as interpreting the Convention text, they provide an authoritative tripartite view on the practical application of its requirements and a reference for international lawyers assessing the implications of the more technical and operational elements of the MLC, . This is particularly important in the context of social and economic rights—matters often thought of as intangible or as potentially subjective and difficult to inspect. The Guidelines provide a useful if non-binding ‘interpretive’ resource that will be discussed from time to time throughout this book. Introduction: The ILO and the Legal and Maritime Law Context of the MLC,  The remainder of this chapter provides an introduction to the ILO and highlights some of the key points about the MLC,  and its background. These

authorities in flag States is the primary tool for ensuring that ships meet the requirements of the Guidelines for flag State inspections under the MLC,  as implemented in national laws, regulations, collective bargaining agreements and practice. The International Labour Conference saw the importance of ensuring that the MLC, , was backed up by an effective system for inspections by flag States complemented by a widespread harmonized port State control. It adopted two key resolutions intended to support the promotion, ratification and effective implementation of the Convention and the achievement of decent working and living conditions for seafarers. These two resolutions are . . . Resolution XIII on developing guidelines for flag State inspection requested the ILO Director-General to convene a tripartite expert meeting to develop “. . . suitable guidance for flag State inspection.” The resolution explained that the success of the Convention will depend, among others, upon the uniform and harmonized implementation of flag State responsibilities in accordance with its relevant provisions, and that given the global nature of the shipping industry, it is important for flag State inspectors to receive proper guidelines for the performance of their duties. Developing international guidelines and the related national flag State inspections and guidelines for their inspectors is an important aspect of implementation of the MLC, , and an essential aspect of ensuring widespread harmonized implementation of the MLC, . . . . Each country may have its own practices relating to flag State inspection. The flag State’s competent authorities of the various countries may wish to adapt these guidelines to fit their current practices. These international guidelines are designed to be of practical assistance to governments in drafting their own national guidelines. It is hoped that they will, at the same time, achieve their primary aim—namely, effective flag State inspection and, where appropriate, certification of ships for compliance with the requirements of the MLC, , as implemented nationally. If this is achieved, seafarers will benefit from decent conditions of work, not only in law but also in practice.

overview and introduction



ideas31 are explored in more detail, from differing perspectives, in Chapters , , and . The remainder of this chapter also provides a brief overview of the international maritime regulatory regime, including the legal framework in the LOSC and some basic information about the ILO. The purpose of this part of the chapter is to provide introductory information on concepts and terminology in the fields covered by this book. It is directed to readers that may not have experience with the ILO or alternatively may be unfamiliar with maritime regulatory regime and law of sea or any of these fields. The International Labour Organization The ILO32 was formed in  after the end of World War I as part of the peace settlement under the Treaty of Versailles.33 Its formation was part of the beginning34 of what has been described as “[o]ne of the most creative innovations of the international diplomatic community in the th century . . . [the] international regime”.35 The Preamble to the ILO Constitution sets out the aspirations of the creators of the earliest of the international organizations.36 It highlights 31

See also M.L. McConnell, “ ‘Making labour history’ and the Maritime Labour Convention, : Implications for international law making (and responses to the dynamics of globalization),” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, Aldo Chircop, Ted L. McDorman, and Susan J. Rolston, eds. (Leiden/Boston: Martinus Nijhoff/Brill, ), –. 32 The initial name used the spelling ‘Organisation’, as reflected in the title of its constitution, Constitution of the International Labour Organisation. 33 See Chapter . See also: ILO, “Origins and history,” available at http://www.ilo.org/global/ About_the_ILO/Origins_and_history/lang-en/index.htm. Aside from being one of the earliest of the international organizations, predating the United Nations, the ILO differs in several important respects from other UN organizations, the most predominant of which is its tripartite nature (see supra note  and infra note ). 34 Aldo Chircop, Ted L. McDorman, and Susan J. Rolston, eds., “Introduction: Setting the Stage,” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas Johnston (Leiden/Boston: Martinus Nijhoff/Brill, ), p. . 35 Douglas M. Johnston, The Historical Foundations of World Order: The Tower and the Arena (Leiden: Martinus Nijhoff, ), p. , also cited in Chircop et al., ibid. 36 In  the ILO became the first UN specialized agency after the UN was established. The ILO describes it itself as . . . devoted to advancing opportunities for women and men to obtain decent and productive work in conditions of freedom, equity, security and human dignity. Its main aims are to promote rights at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue in handling work-related issues. In promoting social justice and internationally recognized human and labour rights, the organization continues to pursue its founding mission that labour peace is essential to prosperity. The  Member States of the ILO (as of February ) accomplish their work through three main bodies (the International Labour Conference, Governing Body, and the Office), all of which comprise government, employer and worker representatives. The International Labour Conference (ILC) meets in June annually to establish international labour standards and the broad



chapter one

the connection between labour conditions, human rights, social justice, and international peace and, also importantly, a nascent awareness of the primary challenges confronting the current international economic system, preventing ‘the race to the bottom’ in the face of increasingly globalized industries: Whereas universal and lasting peace can be established only if it is based upon social justice; And whereas conditions of labour exist involving such injustice hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required . . . Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries; The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organisation . . .

Uniquely, the ILO operates on the basis of a core value called tripartism, which is embedded in its Constitution and the institutional structure it establishes. Tripartism is perhaps most simply described37 as follows: The ILO aims to ensure that it serves the needs of working women and men by bringing together governments, employers and workers to set labour standards, develop policies and devise programmes. Its tripartite structure makes the ILO

social and labour policies of the ILO. At periodic intervals the ILO holds an extra ILC session devoted to addressing issues in the maritime sector. Two government delegates, an employer delegate and a worker delegate represent each Member State at the ILC. Technical advisors assist the delegations, which are usually headed by Cabinet Ministers who take the floor on behalf of their governments. Employer and worker delegates can freely express themselves and vote according to instructions received from their organizations. They sometimes vote against each other or even against their government representatives. Elected by the ILC, the Governing Body is the executive council of the ILO. It takes decisions on ILO policy and establishes the programme and the budget, which it then submits to the Conference for adoption. It also elects the Director-General. Composed of  government members,  employer members and  worker members, States of chief industrial importance permanently hold ten of the government seats. Government representatives are elected at the Conference every three years, taking into account geographical distribution. The employers and workers elect their own representatives respectively. The International Labour Office is the permanent secretariat of the ILO and is the focal point for ILO’s overall activities, which it prepares under the scrutiny of the Governing Body and under the leadership of the Director-General For further details on the structure and operation of the ILO. For more information, see: “Who we are,” available at http://www.ilo.org/global/about-the-ilo/who-we-are/lang-en/index.htm. 37 See: ILO, “Tripartism,” available at http://www.ilo.org/global/About_the_ILO/Structure/ tripartism/lang-en/index.htm.

overview and introduction



unique among world organizations because employers’ and workers’ organizations have an equal voice with governments in all its deliberations. . . . Underlying the ILO’s work is the importance of cooperation between governments, employers’ organizations and workers’ organizations in fostering social and economic progress. Dialogue among and between the governments and the two “social partners” promotes consensus building and democratic involvement of those with vital stakes in the world of work. The ILO is the only “tripartite” United Nations agency in that it brings together representatives of governments, employers and workers to jointly shape labour standards, policies and programmes. The ILO encourages tripartism within member States by promoting social dialogue to help design and implement national policies. Achieving fair terms of employment, decent working conditions, and development for the benefit of all cannot be achieved without the active involvement of workers, employers and governments, including a broad-based effort by all of them.

This process of negotiation and consultation is described as ‘social dialogue’, a process that can occur nationally or internationally. The term social dialogue also has a specific meaning in the ILO.38 These values inform ILO activities including the development and adoption of the conventions such as the MLC,  or other international labour instruments.39

38 The ILO defines social dialogue to include all types of negotiation, consultation and exchange of information between, or among, representatives of governments, employers and workers on issues of common interest. See: ILO, “Social Dialogue,” available at http://www.ilo.org/global/ about-the-ilo/decent-work-agenda/social-dialogue/lang-en/index.htm. How social dialogue actually operates varies from country to country and from region to region. Effective social dialogue depends on:

– Respect for the fundamental rights of freedom of association and collective bargaining; – Strong, independent workers’ and employers’ organizations with the technical capacity and knowledge required to participate in social dialogue; – Political will and commitment to engage in social dialogue on the part of all parties; – Appropriate institutional support The main goal of social dialogue itself is to promote consensus building and democratic involvement among the main stakeholders in the world of work. Successful social dialogue structures and processes have the potential to resolve important economic and social issues, encourage good governance, advance social and industrial peace and stability and boost economic progress. Social dialogue can mean negotiation, consultation or simply an exchange of information and views between representatives of employers, workers and governments. 39 Chircop et al., supra note . Since , the ILO has adopted  conventions, five protocols, and  recommendations (often described as international labour standards (ILS) (see Chapters  and )). Until recently, ILO conventions tended to be either issue and/or sector specific, were usually fairly brief, and followed a standard format of specific requirements on the particular topic, with no preamble and all the mandatory (“shall”) provisions set out in articles. Normally, relatively few ratifications are required to bring the conventions into force. Recommendations are often adopted along with conventions and contain additional technical provisions framed as ‘should’. Once a convention is adopted by a two-thirds majority of the annual ILC there is an immediate obligation under the ILO’s Constitution on each Member to place it



chapter one Background to the MLC, 

These ILO concerns and values were applied from the very beginning to labour conditions for seafarers, the workers in the earliest of the global industries. Establishing minimum labour standards that are universally applied irrespective of the nationality of the seafarer, the ship, or the shipowner has been a preoccupation of the ILO since its earliest sessions. On  July , at its Genoa session, the newly-formed ILO adopted the National Seamen’s Code Recommendation, 40 which envisaged, inter alia, In order that, as a result of the clear and systematic codification of the national law in each country, the seamen of the world, whether engaged on ships of their own or foreign countries, may have a better comprehension of their rights and obligations, and in order that the task of establishing an International Seamen’s Code may be advanced and facilitated, the International Labour Conference recommends that each Member of the International Labour Organisation undertake the embodiment in a seamen’s code of all its laws and regulations relating to seamen in their activities as such.

Eighty-six years later, following the adoption of  maritime labour conventions and related recommendations,41 on  February , with more than , participants, the th Session of the ILC42 adopted the MLC, 43 a major new labour convention, by a record vote of  in favour and none against.44 At the time of its adoption, Juan Somavia, Director-General of the before the national ‘competent authority’ for ratification within  or  months (Article ) and, if not ratified, to report on national coverage on the matter and efforts to move to ratification. There is a supervisory system under the ILO’s Constitution with mandatory reporting on implementation measures, reviews and also provision for complaints by employer or workers’ organizations or other ILO Members (see Chapter ). There is also the possibility of a reference to the International Court of Justice after a commission of inquiry (Article ) or for disputes regarding interpretation (Article ). Flexibility with respect to national implementation and concerns with respect to the stage of economic development is usually accommodated through declarations but without reservations. 40 Supra note . 41 These were, in addition,  other conventions on a host of issues related to social and labour rights and conditions, some of which are generally applicable to all workers and others which are sector specific. 42 See: Ninth Sitting, “Final record vote on the adoption of the Maritime Labour Convention, ,” ILC, th (Maritime) Session, Geneva,  February , ILO Doc. No. PR, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr-.pdf. The th Session of the ILC was held in Geneva, – February . This was also the th Maritime Session of the ILO since . The complete conference documents are available at http://www.ilo.org/ilc/ ILCSessions/thSession/lang-en/index.htm. See also Appendix  for a guide to all the Convention negotiation sessions. 43 Supra note . 44 Supra note . The  vote in favour reflects the fact that delegations from  countries that are Members of the ILO attended the three week ILC and that tripartite support was obtained

overview and introduction



ILO, was moved to describe the MLC, , and the process by which it was developed, as “historic” and a model for a way forward to achieving “fair globalization”.45 He later wrote, “This Convention, often referred to as a charter for decent work or a ‘bill of rights’ for the world’s maritime workers, was clearly understood by all concerned—governments, seafarers and shipowners—as a landmark development for the world’s most globalized sector”.46 The Director of the International Labour Standards Department of the International Labour Office,47 also commented: We are leading the way in developing an innovative, integrated approach to ensuring that the industry moves forward together, in ensuring decent work for all seafarers wherever they come from, and wherever the vessel they are working on comes from. The ILO constituents have recognized that poor working conditions and quality shipping cannot go together. We have put a socio-economic floor to global competition in the maritime sector. This competition will continue, but it will be based on fair and well-conceived common rules for fair competition and on cooperation to ensure that they are followed.48

from  Members. The ILO has a weighted voting system. The government representatives of two ILO Members, Venezuela and Lebanon (four votes), abstained for reasons placed on the record that were unrelated to the substance of the Convention. Venezuela abstained for reasons relating to its views on the reference in the Preamble of the MLC,  to LOSC but placed on record its support for the substance of the Convention. See: Ninth sitting, supra note , pp. –. Lebanon also abstained and placed on record its support for the Convention but felt it could not vote in favour because of its lack of financial capacity to implement conventions. See: Ibid., p. . 45 Dr. Juan Somavia, Director-General of the International Labour Office, speech of  February  following the vote to adopt the Convention by the th ILC. See: Ibid., p. . The term ‘fair globalization’ stems from the work and the report of the World Commission on the Social Dimension of Globalization, A Fair Globalization: Creating Opportunities for All (ILO: Geneva, ), p. xi, which argues the problems, including social conflict and polarization of views, are . . . not due to globalization as such but to deficiencies in it governance. Global markets have grown rapidly without the parallel development of economic and social institutions necessary for their smooth and equitable functioning. At the same time, there is concern, about the unfairness of key gobal rules on trade and finance and their asymmetric effects on rich and poor countries . . . There is a serious democratic deficit at the heart of the system. . . . workers and the poor have little or no voice in this governance process. 46

ILO, “Preface,” Compendium of Maritime Labour Instruments: Maritime Labour Convention, , Seafarers’ Identity Documents (Revised) Convention, ; Working in Fishing Convention and Recommendation,  (Geneva: ILO, ). 47 Cleopatra Doumbia-Henry, one of the co-authors of this book, was present throughout the international negotiation process, which, like the decade-long negotiations to adopt the LOSC involving influential personalities and many innovative procedures and drafting of ‘solutions’. 48 Interview  (on file with the authors). See also: Cleopatra Doumbia-Henry, “The Consolidated Maritime Labour Convention: A marriage of the traditional and the new”, in ILO, Les normes internationals du travail: un patrimoine pour l’avenir. Melanges en l’honneur de Nicolas Valticos (Geneva: Bureau International du Travail, ), p. .



chapter one

The adoption and the coming into force of the MLC,  on a universal or at least a widespread basis, and a sibling ILO convention adopted a year later, the Work in Fishing, Convention ,49 will represent the fruition of the s’ vision of an ‘international seamens’ code’. Chapters ,50 ,51 and 52 will explore the connection between the MLC,  and the ILO textual and procedural antecedents as well innovations and the wider international maritime regulatory practices. The MLC,  clearly had its genesis in internal ILO developments,53 however, looking back over the decade to , it is also clear that the MLC,  can also be fairly described as responding to the many recommendations put forward in the  report by the International Commission on Shipping, Inquiry into Ship Safety, Slavery and Competition.54 These recommendations included the mainstreaming and strengthening of the international maritime and labour regimes to improve living and working conditions for seafarers, which the report described, in some cases, as ‘inhumane’ and tantamount to slavery. As pointed out by many, including, notably, Efthimios Mitropoulos, IMO Secretary-General,55 the MLC,  was specifically designed to become the ‘the fourth pillar’ of the international maritime regulatory regime, complementing and completing the approach established in three core IMO conventions dealing with ship-source marine pollution, ship safety and security, and seafarer competency (i.e., MARPOL, SOLAS, and STCW).56 But the relationship with the IMO conventions goes beyond this complementarity. In fact,

49 It was thought that the diversity of the fishing sector warranted a specific convention. There was a decision that the MLC,  should not apply to fishing vessels (although a State can, of course, as a matter of national law, apply the MLC,  requirements to fishing vessels under its flag if it so chooses). A convention that adopts similar ideas mutatis mutandis for the fishing sector was adopted by the ILO in June  at the th ILC. See: Work in Fishing Convention,  (No. ), Geneva,  June , available at http://www.ilo.org/ilolex/english/convdisp.htm, and the associated recommendation, Work in Fishing Recommendation (R), Geneva,  June , available at http://www.ilo.org/ilolex/english/recdisp.htm. 50 See the reflection by Cleopatra Doumbia-Henry in Chapter  on the ideas and aspirations behind the decision in the ILO to improve maritime labour standards. 51 See the analysis by Dominick Devlin (Chapter ) of the linkages between the MLC,  and traditional ILO legal concepts and approaches as well as the interesting, if difficult, international law questions regarding the legal nature of ILO conventions. 52 See the detailed discussion of the structure and substance in Chapter . 53 See Chapter , pp. –. 54 International Commission on Shipping, Inquiry into Ship Safety, Slavery and Competition (Australia: ICONS, ). 55 Fourth Sitting, ILC, th (Maritime) Session, Geneva,  February , ILO Doc. No. PR, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr-.pdf, p. . 56 The IMO has  Member States and three Associate Members. Its mission is ‘safe, secure and efficient shipping on clean oceans’. The IMO describes its mandate as follows:

overview and introduction



as discussed throughout the chapters in Part II of this book, the MLC,  reflects a conscious decision to mainstream labour standards and compliance and enforcement practices within the existing maritime regulatory regime.57 It IMO’s main task has been to develop and maintain a comprehensive regulatory framework for shipping and its remit today includes safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping. . . . IMO’s specialized committees and sub-committees are the focus for the technical work to update existing legislation or develop and adopt new regulations, with meetings attended by maritime experts from Member Governments, together with those from interested intergovernmental and non-governmental organizations. The result is a comprehensive body of international conventions, supported by hundreds of recommendations governing every facet of shipping. See: IMO, “Introduction to IMO,” available at http://www.imo.org/About/Pages/Default.aspx. The IMO has adopted numerous conventions, however, three are usually considered key or ‘cornerstones’: International Convention for the Safety of Life at Sea, , London,  November ,  U.N.T.S. , as amended (SOLAS); International Convention on Standards of Training, Certification and Watchkeeping, , London,  July ,  U.N.T.S. , as amended (STCW); and International Convention for the Prevention of Pollution from Ships, London,  November ,  U.N.T.S. , as amended by Protocol of  relating to the International Convention for the Prevention of Pollution from Ships of , London,  February ,  U.N.T.S.  (MARPOL). One of the earlier ILO conventions, the Merchant Shipping (Minimum Standards) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, which contained the concept of port State interventions, also required ratification of several IMO ship safety conventions as a minimum condition for ratification of the Convention. Article  of this convention may be one of the earliest attempts to integrate the regimes and coordinate activities among UN organizations: . This Convention is open to the ratification of Members which – (a) are parties to the International Convention for the Safety of Life at Sea, , or the International Convention for the Safety of Life at Sea, , or any Convention subsequently revising these Conventions; and (b) are parties to the International Convention on Load Lines, , or any Convention subsequently revising that Convention; and (c) are parties to, or have implemented the provisions of, the Regulations for Preventing Collisions at Sea of , or the Convention on the International Regulations for Preventing Collisions at Sea, , or any Convention subsequently revising these international instruments. 57 Interestingly in their study considering the impact of both IMO and ILO conventions, K.X. Li and Jim Mi Ng, “International maritime conventions: Seafarers, safety and human rights,” ()  Journal of Maritime Law & Commerce – at , comment:

There is a new initiative in the ILO to consolidate its documents into two or three maritime labour codes, this structural gambit could “breathe new life” into the ILO’s labour standards. In this regard, the ILO could learn from the IMO. As a specialized UN organisation in maritime matters, the IMO has developed its maritime expertise and formed a close relationship with the shipping industry. There is certainly room for closer cooperation between the maritime organisations in the adoption and implementation of maritime conventions. See also, Two draft papers on enforcement and simplified amendment; Considerations for provisions on inspection and control in a consolidated maritime labour Convention (Draft I); Simplified



chapter one

will also be seen that the relationship has not been unidirectional since IMO conventions and amendments and other instruments were developed after the adoption of the MLC, . For example, the amendments to the STCW Code58 adopted in June  by the IMO consciously attempted to follow the wording in, or at least avoid directly conflicting with, the MLC, , as much as possible, despite the differing institutional values, practices, and mandates of the IMO and ILO. The Law of the Sea and the International Maritime Regulatory Framework59 As explained earlier, this book is directed to a maritime, international, and labour law practitioners and scholars. In so doing it is bridging at least two areas of specialization and expertise, each with their own systems, assumptions, and terminology. The preceding sections of this introduction have provided an overview of ILO terminology, concepts and actors, and the background to the MLC, . Chapters , , and  provide significant information on the ILO and its legal approach to issues, standard setting, and the ILO supervisory system. Chapter  also provides a very useful description of some concerns about operating practices in the maritime sector. The following sections of this chapter will provide an overview of the law of the sea and the international maritime regulatory regime within which the MLC, , as a labour convention, is also situated and, indeed, is shaped by. Part II of this book, particularly Chapter , also contains additional information in relation to specific maritime practices in connection with compliance and enforcement. The Law of the Sea Framework Traditionally there are three kinds of interests or faces to a State’s interests under the law of the sea: flag State (the State in which as ship is registered has international regulatory responsibility); port State (a State’s action in relation to foreign ships entering its ports or to an economic interest as an exporter or importer of goods or provider of services, e.g., marine tourism); and a coastal State (States concerned about impacts on their coasts and coastal resources of shipping and other activities). The MLC,  introduces a fourth ‘face’ for

amendment procedure for the proposed new maritime labour Convention (Draft II), Tripartite Subgroup of the High-Level Tripartite Working Group on Maritime Labour Standards (First Meeting), Geneva, , ILO Doc. No. STWGMLS /. available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/stwgmls/stwgmls-.pdf. See discussion in Chapter  at pp. –. 58 See the discussion in Chapter  at note  and Chapter  at note . 59 Elements of this section are based on McConnell, supra note , pp. –.

overview and introduction



States in connection with the development of the law of the sea, namely a State with labour-supplying responsibilities. It is important to realize that a State could have none, some, or all four interests to varying degrees. This creates a potential internal difficulty for governments seeking to reconcile differing, and sometimes conflicting, interests. When the LOSC was adopted in  it was the culmination of a decadelong negotiation to achieve a comprehensive and over-arching legal regime for the oceans. In addition to issues with respect to the jurisdictional and resource-related rights of coastal States, it also dealt with the issue of (flag State) responsibility for ships in waters outside territorial waters (i.e., high seas) and related inspection rights and obligations vis-à-vis foreign ships in ports. In some respects the LOSC can be seen as an attempt to capture and codify the extant elements and principles in the ILO and IMO regimes. Interestingly, despite the more developed international maritime labour regime that existed at the time,60 marine environmental protection from ship-source pollution received significant attention in the LOSC (Part XII), whilst the issue of working and living conditions on ships is sparsely addressed. Arguably, the treatment of labour instruments was reduced in , in comparison to the provisions in the relevant predecessor convention, the  Convention on the High Seas.61 60 By  the ILO had developed an extensive body of conventions and recommendations as explained in Chapters  and . Conventions directed to conditions both of ships and on board ships pre-date LOSC, and, even earlier attempts to codify the law of the sea in the  Geneva Conventions, by many years. This is particularly the case with conventions addressing working and living conditions on ships. For example, among the earliest of the ILO conventions are the Minimum Age (Sea) Convention,  (C), Genoa,  July , the Placing of Seamen Convention,  (C), Genoa,  July  (both available at http://www.ilo.org/ilolex/english/convdisp .htm), and the National Seamen’s Code Recommendation,  (R), supra note . The IMO also developed conventions on marine protection in the early s, with ship safety instruments adopted (albeit prior to the creation of IMO and its predecessor the International Maritime Consultative Organization) as early as . 61 Paragraph (b) refers to labour conditions and only requires States to “take account” of international instruments, rather than international labour instruments as required under the  Convention on the High Seas. Perhaps this reflects the fact that by then the IMO had also begun to look at manning and seafarer training and in some quarters was viewed as the (only) ‘competent organization’ in the reference under the LOSC. See also Convention on the High Seas, Geneva,  April ,  U.N.T.S. , available at http://untreaty.un.org/ilc/texts/instruments/ english/conventions/___high_seas.pdf, at Article  (emphasis added): . Every State shall take such measures for ships under its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) The use of signals, the maintenance of communications and the prevention of collisions; (b) The manning of ships and labour conditions for crews taking into account the applicable international labour instruments; (c) The construction, equipment and seaworthiness of ships. . In taking such measures each State is required to conform to generally accepted international standards and to take any steps which may be necessary to ensure their observance.



chapter one

The key provisions of the LOSC concerning flag State rights and responsibilities are (emphasis added): Article —Nationality of ships . Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. . Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect. Article —Status of ships . Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas . . .. Article —Duties of the flag State . Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. . In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. . Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; . . . . In taking the measures called for in paragraphs  and  each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. . A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.

Although directed to responsibility on the high seas, these provisions, de facto, frame the overall regime for the regulation in this sector since shipping would be operationally impossible if ships on international voyages faced significantly62 differing regulatory regimes in the exclusive economic zone or territo62

LOSC, supra note , while not specifically addressing the question of flag State jurisdiction in these areas implicitly reflects this approach. See, for example,

overview and introduction



rial sea of other States. There are additional provisions in LOSC addressing responsibilities and rights with respect to ship-source marine pollution and other matters, but not with respect to working and other conditions on ships. As noted earlier63 this book argues that the MLC,  can also be understood as addressing a significant gap in the LOSC, namely the failure of LOSC to do more than peripherally address the ocean, particularly the high seas, as a workplace or a site for human rights.64 These matters are simply left to the relevant flag State of the ship, which, as the above extract, indicates, is obliged

Article —Laws and regulations of the coastal State relating to innocent passage . The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: . . . (a) the safety of navigation and the regulation of maritime traffic; (b) the protection of navigational aids and facilities and other facilities or installations; (c) the protection of cables and pipelines; (d) the conservation of the living resources of the sea; (e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. . Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards. . . . Article —Pollution from vessels . States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary. . . . . Coastal States, for the purpose of enforcement as provided for in section , may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. 63 64

See discussion supra note . Ibid.



chapter one

to effectively exercise its jurisdiction and control in administrative, technical, and social matters over ships flying its flag. This means that this is a matter for domestic law (internal law) of the flag State, which is obliged to effectively exercise its jurisdiction and control over ships often voyaging well outside its territorial jurisdiction. Paragraph  does, however, require conformity with “generally accepted” international regulations. Paragraph  allows for what could be seen as some limited form of port State intervention but, unlike the provisions found elsewhere in LOSC regarding marine pollution, it does not go beyond reporting to the flag State on these matters. In principle, however, it can be seen that the  State parties65 to LOSC have an obligation to address labour and social conditions on ships at least to the extent indicated above. The problem with this approach is evidenced in the much criticized failure to tackle the thorny international law problem of the ‘genuine link’,66 as set out in 65

As of  November . See: UN Division for Ocean Affairs and the Law of the Sea, “Status,” available at http://www.un.org/depts/los. 66 See: M.L. McConnell, “Business as usual: An evaluation of the  United Nations Convention on Conditions for Registration of Ships,” ()  Journal of Maritime Law and Commerce ; M.L. McConnell, “Darkening confusion mounted upon darkening confusion: The search for the elusive genuine link,” ()  Journal of Maritime Law and Commerce . See also, for example, the resurrected call for a definition of the ‘genuine link’ or even, in the fishing sector, a new convention to ‘define’ the genuine link in Resolutions / (at para. ) and / adopted by the UN General Assembly at its fifty-eighth session. These resolutions invited the IMO and other relevant agencies to study, examine, and clarify the role of the genuine link in relation to the duty of flag States to exercise effective control over ships flying their flag, including fishing vessels. Resolutions / (para. ) and / (para. ) also requested the SecretaryGeneral to report to the General Assembly at its sixty-first session on the study undertaken by the IMO in cooperation with other competent international organizations on the role of the genuine link and the potential consequences of non-compliance with duties and obligations of flag States described in relevant international instruments. The IMO reported on  June  and the lengthy report, comprising reports from the various organizations concerned, was reported to the General Assembly (Item (a) of the provisional agenda in connection with Oceans and the law of the sea, General Assembly, st Session, UN Doc. A/,  July ). Despite some resurgence of interest in the meaning of the genuine link in cases before the International Tribunal on the Law of the Sea, that report commented, inter alia, . Participants in the Meeting took the view that the exclusivity attached by the United Nations Convention on the Law of the Sea to the right of States to fix conditions for the grant of nationality, as reaffirmed by the authoritative interpretations of the International Tribunal for the Law of the Sea in the M/V Saiga (No. ) and subsequent cases, as well the other agreements referred to in section  above, indicated that the questions relating to the precise criteria or conditions adopted by a State with respect to the grant of its nationality to a ship were a matter beyond the purview of the organizations participating in the Meeting. However, participants in the Meeting also considered that issues relating to securing the objective and purpose of the “genuine link” requirement, that is, assuring the ability of the flag State to effectively exercise its jurisdiction over ships flying its flag, were matters of central concern to all of the organizations and formed a substantial part of their programmes of regulatory initiatives and technical cooperation activities in the shipping and fishing sectors.

overview and introduction



Article , and flag State jurisdiction over the globalized economic activities of shipping and fishing. However, it is difficult, from a legal perspective, to envisage a viable alternative to flag State jurisdiction. The MLC,  while not an amendment to the LOSC itself, is an important step in developing this obligation into a more effective regime.67 The MLC,  develops, in detail and at the level of what will be a widely ratified comprehensive multilateral convention, explicit responsibilities for both flag States, in connection with the inspection and certification of labour conditions on ships, and port States that choose to inspect foreign ships. It also introduces a new player in the flag State, coastal/port State jurisdictional net—States with labour-supply responsibilities that arise independently of those of the flag State. The Maritime Context and the International Maritime Regulatory Regime The terms ‘maritime sector’ and ‘shipping’ are often loosely used to capture a range of activities spanning shore-based activities (dock or port workers), arranging the carriage of goods by sea, and shipboard operations and other port-related activities (e.g., pilots and tugs). For purpose of this book, the notion of maritime sector refers to commercially-operated ships and workers on those ships, whether operating internationally or only in the coastal waters of the country in which the ship is registered. Shipping is inseparable from world trade and economic development: access to inexpensive and reliable transportation impacts directly on the competitiveness of exports and imports, which in turn affects a wide range of domestic economic activities.68 Like other economic sectors, the cost of operating ships involves both that of the plant itself and the labour. Characterized as one of the first globalized or multinational sectors, despite the fact that there is

But see comments from a representative of the International Transportation Workers’ Federation (ITF) that suggests that there may be a shift in its strategy for dealing with flags of convenience. See: “ITF softens FOC stance,” Fairplay Daily News,  July . 67 See generally papers in, for example, Oran Young, ed., The Effectiveness of International Environmental Regimes: Causal Connections and Behavioural Mechanisms (Cambridge, MA: MIT Press, ). 68 Clearly the cost of transporting goods is an important aspect of the market competitiveness of many goods, aside from revenue related to ships’ operations. See discussion in, inter alia, United Nations Conference on Trade and Development (UNCTAD), Emerging challenges and recent developments affecting transport and trade facilitation, Note by the UNCTAD Secretariat, Trade and Development Board, Multi-year Expert Meeting on Transport and Trade Facilitation, Third Session, Geneva, – December , UNCTAD Doc. No. TD/B/C./MEM./, dated  September , available at http://www.unctad.org/Templates/WebFlyer.asp?intItemID= &lang=.



chapter one

domestic shipping in most countries, trade in goods is largely between countries and involves ships registered in/flying the flags of many different countries. Historically, in many countries, the shipping sector—sometime called the merchant marine—was heavily protected from international competition and ownership as an aspect of national public policy. Similarly, many countries had restrictions with respect to which ships/flags could trade to their ports, the terms of such trade, who could own ships or work on board those ships, or operate along their coastline. While many countries maintain this practice, there is no longer an emphasis on ownership and operation by nationals of the flag State with the emergence in the s of what are sometimes called flag of convenience (FOC) or, more usually now, ‘open registries’.69 These registries allow shipowners to register ships and operate (i.e., fly a flag) under the jurisdiction of countries in which the owner and the workers on board the ship are not necessarily resident or nationals of the State. Ships operating under such a system can transfer easily between flags and can be owned by a company in one State, managed by a company based in another country, with seafarers drawn from multiple jurisdictions. This is still the case today and, in fact, many countries that formerly had restrictions with respect to registration have now established ‘international registers’ and adopted other incentives to attract ships to their flags. Much of the movement between registers initially related to increased regulatory activity with respect to safety, labour, and environmental standards. However, with the rise of port State control, decisions as to where to flag are now more commonly related to corporate regulation and taxation, and in the case of fishing vessels, conservation measures. It is important to briefly consider the key elements of the maritime regulatory regime that has been elaborated under the IMO. From a legal perspective, the IMO conventions all generally follow a similar formula in addressing ship-related concerns.70 This approach is of interest as it expressly responds to the transnational character of a sector primarily regulated by IMO,71 and is focused on effectiveness whilst remaining firmly founded on traditional international law principles of State sovereignty. IMO conventions typically72 69

See McConnell, supra note . See: IMO, “List of IMO Conventions,” available at http://www.imo.org/About/Conventions/ ListOfConventions/Pages/Default.aspx, for a comprehensive list of all IMO treaties. 71 The IMO is generally, but not solely, concerned with ships  GT and above that are engaged in voyages outside the flag State. 72 More recent conventions reflect landward ‘creep’ and address coastal state and even traditionally land-based activities such as environmental and safety standards in the operation of ship recycling facilities. 70

overview and introduction



‘speak’ to flag State administrations, requiring that the ships flying the flag of that State, which are covered by a convention, operate according to the international regulations set out in the relevant convention (usually in an annex). Ships are required to be inspected and certified by the flag State, or an organization acting on its behalf in carrying out the technical inspection/survey, such as a ship classification society (now often termed ‘recognized organizations’ or ROs). The development of international reliance on, and regulation of, these organizations is discussed in more detail in Chapter .73 It should be noted that this work includes traditional ship ‘survey’ work as well as carrying out company/shipowner safety management system audits in connection with the certification of these systems as required under the IMO International Safety Management (ISM) Code.74 As explained by the International Association of Classification Societies (IACS),75 Classification societies are organizations that establish and apply technical standards in relation to the design, construction and survey of marine related facilities including ships and offshore structures. The vast majority of ships are built and surveyed to the standards laid down by classification societies. These standards are issued by the classification society as published rules. A vessel that has been designed and built to the appropriate rules of a society may apply for a certificate of classification from that society. The society issues this certificate upon completion of the relevant classification surveys. . . . [T]he practice of assigning different classifications has been superseded, with some exceptions. Today a ship either meets the relevant class society’s rules or it does not. As a consequence it is either ‘in’ or ‘out’ of ‘class’. However, each of the classification societies has developed a series of notations that may be granted to a vessel to indicate that it is in compliance with some additional

73

See Chapter , notes  and , and discussion at pp. –. See: IACS, Procedural Requirements for ISM Code Certification, No.  (Rev. July ; Rev. Jan ; Corr. Mar ), available at http://www.iacs.org.uk/document/public/publications/ resolution_changes/pdf/pr__rev._corr._pdf.pdf. These were updated as of March  to reflect IMO Resolution A.(), Revised Guidelines on the Implementation of the ISM Code by Administrators, and IMO Resolution A.(), International Safety Management (ISM) Code, as amended. In fact the term ‘recognized organization’ is circular in that a RO is defined in IMO documents as: 74

.. Recognized Organization: An organization which meets the relevant conditions set forth by resolution A.(), and has been delegated by the flag State Administration to provide the necessary statutory services and certification to ships entitled to fly its flag. See: Harmonization of Port State Control Activities—Draft procedures for port State control, , IMO, Sub-Committee on Flag State Implementation, th session, Agenda item , IMO Doc. No. FSI /WP.,  July . 75 IACS is a NGO that was granted consultative status with IMO in .



chapter one criteria that may be either specific to that vessel type or that are in excess of the standard classification requirements. . . . International Conventions have been agreed, setting out uniform standards to facilitate acceptance of a ship registered in one country in the waters and ports of another and in the general furtherance of safety at sea and protection of the environment. These standards are commonly referred to as ‘statutory’ requirements. ... Where the classification survey result is taken as evidence of compliance with the corresponding statutory requirement, e.g. load line or safety construction (hull, machinery, boilers, electrical equipment, etc.), this survey is de facto given the status of a statutory survey on behalf of the flag Administration, if the society is acting as its recognised organisation in this respect. . . . The RO is responsible and accountable to the flag Administration for the work that it carries out on its behalf. The principles of the inspection and survey work are the same as in respect of classification surveys, that is the verification by the RO that a ship is in compliance with applicable requirements at the time of the survey. The scope of these inspections and surveys regarding safety and pollution prevention are laid down by the flag Administration in compliance with the relevant international conventions to which it is a signatory.76

There are now approximately  classification societies in the world.77 As noted by the IMO, All ships must be surveyed in ordered to be issued certificates which establish their seaworthiness, type of ship, and so on, and this is the responsibility of the flag State of the vessel. However, the flag State (“Administration”) may “entrust the inspections and surveys either to surveyors nominated for the the purpose or to organizations recognized by it” (SOLAS Chapter , regulation ). In practice these “recognized organizations” are often the classification societies.78

The certificates that are carried on the ship are then subject to inspection in other (port) States under a voluntary regime. There are numerous certificates that ships are now required to carry,79 so much so that efforts have been devoted by the IMO to harmonizing the timing of the various surveys (inspections) that are required under SOLAS and MARPOL.80

76

IACS, “Classification Societies—What, Why and How?”available at http://www.iacs.org.uk/ document/public/explained/Class_WhatWhy&How.PDF, pp. , , , and . 77 Eleven of these organizations form IACS and collectively they class about  per cent of all commercial tonnage involved in international trade worldwide. Ibid., p. . 78 IMO, “FAQs: What about classification societies?” available at http://www.imo.org/About/ Pages/FAQs.aspx. 79 See partial list at IMO, “Surveys, Verifications and Certification,” available at http://www .imo.org/OurWork/Safety/Implementation/Pages/SurveysAndCertification.aspx. 80 See IMO, “The Harmonized System of Survey and Certification,” available at http://www .imo.org/SharePoint/contents.asp?topic_id=&doc_id=.

overview and introduction



Port States essentially carry out inspections of the documentation required by the IMO and, sometimes, one ILO convention and, if there are grounds to suggest a problem, a further inspection is carried out and, if necessary, the ship detained. The system known as port State control (PSC)81 is based on memoranda of understanding (MOUs) between maritime administrations. As discussed in Chapter , PSC has had an increasing impact on the international regulatory regime and has been so effective that an international network of regional PSC MOUs has emerged.82 This network helps to ensure that ships going on international voyages meet international standards and substandard ships and operators are eliminated.83 The development of PSC, to complement and verify/spot check flag State inspection and enforcement activities, is an outcome of both the practical difficulty of effectively exercising jurisdiction over ships as they voyage internationally and

81 The concept of inspection and detention of ships in foreign ports for failing to meet international standards (now known as port State control) emerged as early as  in Article  of SOLAS, supra note , and subsequent versions of the convention following the sinking of The Titanic. See: http://www.imo.org/includes/blastDataOnly.asp/data_idD/SafetyofLifeat SeaConvention.pdf. It is also set out in Article  of MARPOL, supra note . However that convention did not come into force until after it was amended by a protocol in  (MARPOL /), which entered into force in . (See: MARPOL, supra note .) The concept of inspections of foreign ships in ports in connection with enforcing international standards is also found in Part XII of LOSC, supra note . The modern day regional port State control regime emerged in  in connection with ILO Convention No.  (adopted in  and into force in , supra note ), as explained on the Web site of the Paris Memorandum of Understanding on Port State control (MOU on PSC), available at http://www.parismou.org:

The Paris MOU is an administrative agreement between the maritime authorities of twenty-seven European countries and Canada. In  the ‘Hague Memorandum’ between a number of maritime authorities in Western Europe was developed. It dealt mainly with enforcement of shipboard living and working conditions, as required by ILO Convention no. . However, just as the Memorandum was about to come into effect, in March , a massive oil spill occurred off the coast of Brittany (France), as a result of the grounding of the supertanker ‘Amoco Cadiz’. This incident caused a strong political and public outcry in Europe for far more stringent regulations with regard to the safety of shipping. This pressure resulted in a more comprehensive memorandum which covered: – safety of life at sea – prevention of pollution by ships, and – living and working conditions on board ships. Subsequently, a new, effective instrument known as the Paris Memorandum of Understanding on Port State Control was adopted in January  and was, initially, signed by fourteen European countries. It entered into operation on  July . 82 There are now PSC MOUs in most regions of the world. See: IMO, “Port State Control,” available at http://www.imo.org/OurWork/Safety/Implementation/Pages/PortStateControl.aspx. 83 Unfortunately, some countries move such ships into the coastal/domestic trade sector.



chapter one

the rise of the open registry flags.84 Disenchantment85 with the ‘flag State’ as an effective actor in ensuring that ships meet international standards led to strengthening of the regional regimes based on cooperation among maritime authorities through PSC MOUs rather than through international conventions. These more informal and practical or institutional arrangements developed largely in response to concerns about ship safety and marine pollution as a result major incidents.86 Reports from PSC officers are filed with flag States regarding any problems. Under current regional port State control arrangements, this information is also put into an electronic database accessible to others. This system can be seen as an important form of international cooperation in that the port State, while acting in its own interest in seeking safe and secure ships and cleaner seas to avoid 84 An interesting view of this practice, which as noted above, is found in maritime conventions as early as , from the perspective of an international/industrial relations scholar, is found in Lillie, supra note , p. :

The MLC paradigm applies different aspects of state authority in a fragmented manner, knit together by practices of maritime industrial regulation. Beside the traditional member State implementation model, in which member States commit to respecting ILO standards in their own sovereign space, the MLC will have member States enforcing labour standards directly on each other’s ships through the established maritime mechanism of port State Control (PSC). This involves a shift in the boundaries of state sovereignty in some respects, because ships, in a legal sense, have been regarded as floating pieces of their flag States’ territories. However, practically, PSC will also operate as an incentive encouraging shipowners and flag States to adequately regulate their own shipping. In this sense, the flag State role still remains primary. 85

See, for example, Mathew Gianni, Real and Present Danger Flag State Failure and Maritime Safety and Security (Oslo/London: WWF/ITF, ) and numerous commissions and reports in response to environmental incidents or labour conditions. The ITF has mounted a longterm campaign against FOCs. These concerns have resulted in alliances between environmental, conservation (fisheries), and labour organizations. Most recently, IMO initiatives have focused on flag State audits: . . . The twenty-fourth Assembly in November–December  adopted resolutions A.() Framework and Procedures for the Voluntary IMO Member State Audit Scheme and A.() Code for the implementation of mandatory IMO instruments which provides the audit standard. The adoption of the framework and procedures for the scheme heralded a new era for IMO, in which the Organization has at its disposal a tool to achieve harmonized and consistent global implementation of IMO standards, which is key to realizing the IMO objectives of safe, secure and efficient shipping on clean oceans.

See: IMO, “Voluntary IMO Member State Audit Scheme,” available at http://www.imo.org/safety/ mainframe.asp?topic_id=. FAO is developing a similar audit approach for fishing vessels. See: FAO, “Report of the Expert Consultation on Flag State Performance, Rome, – June, ,” FAO Fisheries and Aquaculture Report No.  (Rome: FAO, ), available at ftp://ftp.fao.org/ docrep/fao//ie/ie.pdf. Such approaches seek to also address capacity building issues that may lie behind flag State failures to regulate their fleets. 86 Supra note .

overview and introduction



harm to its waters and coastline, is also supporting and extending the regulatory control exercised by the flag State. In ensuring continual or ongoing compliance with international standards, the PSC system can also be seen as a way of assisting weaker flag State administrations that must, irrespective of their lack of capacity, ensure that its ships are operated in accordance with international standards. Obviously the system also operates indirectly as a check on a State’s implementation of its international obligations87 and provides an incentive for shipowners to operate under flag States that have a record of reliable flag State inspection and certification. A further aspect of the IMO conventions that is relevant to MLC,  is the inclusion of a ‘no more favourable treatment clause’ whereby State parties agree that ships of non-party States will not be treated more favourably with respect to the matters under the relevant convention. This helps to establish a ‘level playing field’ in that shipowners that register in States that have not ratified a convention will still be subject to inspection for the same matters in foreign ports but will not have the benefit of a convention certificate. (The entry into force formula of the IMO conventions combines a number of States with a percentage of the world fleet (by GT) in order to ensure that flag States with a significant interest in and responsibility in a particular sector are party to relevant conventions.) In terms of structural elements relevant to the MLC, , the IMO conventions generally follow a standard design. They comprise fairly brief articles spelling out general State obligations regarding implementation, and often, inspection, certification and port State control, scope and coverage, entry into force, and amendments, as well as a requirement to comply with the convention and, importantly, any annexes. The more detailed mandatory technical provisions, the regulations, are attached in one or more annexes. Further instruments such as codes (sometimes with both mandatory and non-mandatory provisions) and voluntary guidelines are often developed to complement the convention and provide details on specific elements of the regulations in the annexes. The individual parts of the conventions often have different amendment provisions, with the tacit acceptance procedure used to allow for more rapid updating of the technical provisions in the annexes. As will be discussed in Part II, particularly Chapters  and , the IMO convention design approach, which has both substantive and format implications, was an important influence on the design of the MLC, . The final actors in the maritime labour regime, emerging from what is described as the ‘fourth face’ of this regime, are the organizations that recruit and manage seafarers/crew for ships. They operate under various titles and 87 UN Doc. A/, supra note , Appendix , “Examination and clarification of the role of the ‘genuine link’ in relation to the duty of the States to exercise effective control over ships flying their flags, including fishing vessels, submitted by the International Labour Office,” para. .



chapter one

configurations such as ‘manning agents’; in some cases, ship management companies will carry out this function. These organizations/corporations are the entities with whom many seafarers have direct contact in order to work internationally, rather than the shipowner. This presents an additional layer of legal regulatory responsibility in that these services may operate in a State other than the flag State. As will be discussed in Chapter , the MLC,  consolidates provisions in an existing ILO convention that are intended to address potential problems that seafarers encounter in this situation by regulating the activities of these entities. Conclusion: Observations on the Wider Relevance of the MLC,  The adoption of the MLC, , on what is essentially a unanimous basis with very few amendments88 is remarkable, even revolutionary, from many perspectives. From an international labour law perspective the MLC, , comprising nearly  pages of legal text when it was adopted, – consolidated and updated  existing conventions, many of which had not been widely ratified, covering almost the full gamut of socio-economic issues in the maritime labour sector, including the very difficult issues of social security and other social protections for one of the most globalized work forces such as guarantees and insurance for shipowners’ liability for seafarer sickness and injury and repatriation; – adopted an entirely new format for an ILO convention; – brought in a new approach to the ratification and amendment of ILO conventions; – established a comprehensive compliance and enforcement system based on flag State inspection, port State control, and complaint procedures; and – significantly, for the first time, included certification of labour standards on board ships and the potential application of these standards to ships of non-ratifying States.

From a wider international law perspective, the Convention is of interest because it is one of the growing cadre of conventions that are responding to the search for ‘effectiveness of international law’ and reaches beyond the ‘face’ 88 There were  amendments in total of which  were adopted either as proposed or subamended. See: Seventh Sitting, International Labour Conference, th (Maritime) Session, Geneva,  February , ILO Doc. No. PR, available at http://www.ilo.org/public/english/ standards/relm/ilc/ilc/pr-.pdfpage=, p. . Of these several related to areas such as the formula for coming into force and amendment of the MLC,  and its Code that had been specifically left to be determined at the Conference. See: Report of the Discussion, Tripartite Intersessional Meeting on the Follow-up of the Preparatory Technical Maritime Conference, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/ptmc/ptmc-.pdf, paras –.

overview and introduction



the State sovereignty to directly affect the behaviour of private actors.89 Even more unusually, the MLC,  contains provisions that seek to apply its requirements to non-ratifying States. In that sense it can be described as a convention that is ‘universal’ in its reach. This comprehensive Convention, and the process which led to its adoption, offers a rich case study relevant to broader twenty-first century concerns of international law and governance.90 These concerns include recent efforts to 89

This is explored in several case studies in Papdakas, supra note . A related and interesting analysis in the environmental context is provided by Natasha A. Affolder, “The private life of environmental treaties,” ()  American Journal of International Law . Her research explores the corporate performance and even ‘colonization’ of treaties arguing that increasingly there is a direct interaction between corporations and treaty performance, an issue that in her view has “long been a blind spot in international legal analysis” (p. ). See also Lillie , supra note , pp. –, who argues that (citations removed): The MLC negotiations show how, as capital globalizes, so do the state forms needed to support it. Much of the pressure for global reregulation of maritime shipping is arising from intensified class conflict, and the need for a global industrial relations system to resolve it. Investigation of the politics behind the MLC supports the contention that globalizing States are not “retreating” . . ., but neither are they continuing as insular entities, “sovereign” in the traditional sense of the word. Rather, States are “transforming”, as new forms of governance emerge, based perhaps on templates from the interstate system, but where this is the case, these forms of governance function in new ways. Regulatory demands on institutions like the ILO increase, as actors call on them to take on regulatory roles that nation States individually no longer can fulfil. In some respects, the MLC could be regarded as a reassertion of long-abandoned state regulatory authority over maritime labour standards. Despite the growth of private transnational industrial relations systems, ILO agreements continue to be embedded in the formal structures of an international system based on relations between sovereign States. The formal institution of national sovereignty and the intergovernmental global political framework are crucial to the MLC’s governance system. Clearly, the State retains importance as a central source of authority, in that it continues to mediate and apply international agreements. However, in a sense, the State’s role in the MLC is more as an intermediary than a coherent interest. There was a low level of state autonomy in formulating the MLC, and the implementation of the MLC’s “club” formation strategy involves a high degree of interlinked sovereignties. The degree to which States can in practice elect not to implement or enforce the MLC will be very limited (assuming of course that enough flag States ratify it for it to come into effect, and that enough port States ratify it to ensure that there is a strong incentive to comply). Although the formal institution of sovereignty is important in the MLC, it was formulated essentially by unions and shipowners and is aimed primarily at influencing the behaviour of private shipowners. While the MLC seeks to influence flag State behaviour, the primary pressure on flag States to ratify and comply will come not from ILO suasion or pressure from other governments but via the flagging preferences of shipowners. The ILO’s tripartite decision-making process encourages the formulation of transnational classbased interests. In the maritime shipping industry, transnational class-based actors have sufficiently well developed organizations and interests to take advantage of this, and build a functional global social partnership.

90

See discussion at pp. – and infra note . For a discussion of the potential arrangements, including delegation to international organizations, see: Mathias Koenig-Archibugi, “Mapping



chapter one

develop integrated approaches on matters that cut across international agency mandates; the emergence of international organizations of various ilk as a regulatory or administrative91 bureaucracy operating in what has been described as the “global administrative space”;92 the development of the compliance tools and supervisory systems under these organizations to ensure that international law is ‘effective’; and the implication of these and other concerns for the design of treaties. Aside from being of obvious sectoral interest and impact, the MLC,  should also be understood as a first93 but important step—an experiment if you will—by the ILO in specifically addressing concerns raised by a number of commentators regarding imbalances in the global trade and economic law regime and its failure to truly address the relationship between the costs of labour and trade.94 From ILO and international labour and economic law perspectives, the MLC,  is of interest in terms of the innovative approaches to the process and procedures, as discussed in Chapter , that were adopted

global governance,” in Governing globalization: power, authority and global governance, David Held and Anthony McGrew, eds. (Cambridge: Polity Press, ), p. . 91 See, for example, the case studies, including a case study of the ILO action on forced labour, in S. Cassese, B. Carotti, L. Casin, M. Macchia, E. MacDonald, and M. Savino, eds., Global Administrative Law: Cases, Materials, Issues, nd edition (New York: Institute for Research on Public Administration and the Institute for International Law and Justice, New York University School of Law, ), available at http://www.iilj.org/GAL/GALCasebook.asp. 92 Ibid. 93 The Work in Fishing Convention,  and associated recommendation (R), supra note , adopts similar ideas mutatis mutandis for the fishing sector. 94 See supra note . Governance scholars Errol Mendes and Ozay Mehmet, Global Governance, Economy and Law: Waiting for Justice (New York, London: Routledge, ), have provided an extensive critique of the failure to integrate the issues of labour with trade in the ‘strong’ World Trade Organization (WTO) process and the failure of the trade policy review mechanism of the WTO or the supervisory system of the ILO to require that States provide a full picture of the relationship between labour costs and trade competitiveness, see esp. chapter  at p.  ff. and Chapter  at pp. –. A recent joint study by the ILO and WTO, Marion Jensen and Eddy Lee, Trade and Employment: Challenges for Policy Research (Geneva: ILO and WTO, ), examined the interaction of trade and employment policy. See also Cleopatra Doumbia-Henry and Eric Gravel, “Free trade agreements and labour rights: Recent developments,” ()  International Labour Review –. In addition, the ILO has initiated research with respect to the economic dynamics of international labour standards. See: Project on Economic Dynamics of International Labour Standards, Governing Body, th Session, Geneva, November , ILO Doc. No. GB./LILS/, available at http://www.ilo.org/global/What_we_do/Officialmeetings/gb/ GBSessions/GB/lang-en/commId-LILS/WCMS_/index.htm. Possibly the MLC,  may provide a response to critiques such as Philip Alston, “ ‘Core labour standards’ and the transformation of the international labour rights regime,” ()  European Journal of International Law  which has raised concerns (see p. ) about the “eschewing of legalism” and, in his view, the related “weakening” of the labour standards regime, especially with the adoption of the Declaration and a principles based approach, relative to the stronger or ‘hard’ trade law system.

overview and introduction



during its development, as well as its relationship to existing ILO conventions and legal approaches, as discussed in Chapters  and . The drafting and negotiation processes are also of interest because of the different actors and their roles, in particular the impacts of tripartism and the high level of involvement of shipowner and seafarer organizations. The MLC,  is also of wider interest with respect to the increasing interest in the ILO in working with the economic dynamics of labour issues in promoting ‘decent work’ and ‘fair globalization’.95 The MLC,  is explicitly based on the twin goals of helping to secure decent work for workers (seafarers) and helping to achieve fair competition. The latter goal is sometimes described as creating a ‘level playing field’96 among employers (shipowners) by addressing the unfair competition resulting from shipowners and flag States condoning or failing to regulate poor or substandard (below international norms) working conditions. The maritime sector, oft described, as explained earlier, as one of the first ‘internationalized’ or ‘globalized’97 sectors, presents particular challenges to the

95

The term ‘decent work’ encapsulates the contemporary agenda of the ILO: The Decent Work concept was formulated by the ILO’s constituents—governments and employers’ and workers’ organizations—as a means to identify the Organization’s major priorities and to modernize its approach for the twenty-first century. It is based on the understanding that work is a source of personal dignity, family stability, peace in the community, democracies that deliver for people, and economic growth that expands opportunities for productive jobs and enterprise development. In a relatively short time this concept has led to an international consensus among governments, employers, unions and civil society organizations that productive employment and Decent Work are key elements to achieving a fair globalization and the reduction of poverty.

See: ILO, “Facts on decent work,” available at http://www.ilo.org/global/About_the_ILO/Media_ and_public_information/Factsheets/lang-en/docName-WCMS_/index.htm. 96 This concept is, of course, one that can be debated, especially in the context of developing economies. 97 B. Wu and H. Sampson, “Reconsidering the cargo sector’s seafarer labor market: A st century profile of global seafarers,” in Ocean Yearbook, Volume , A. Chircop and M. McConnell, eds. (Chicago: University of Chicago Press, ), –. See also: Lillie , supra note , p. , who provides the following rather dramatic description of the situation in the maritime sector: The global maritime shipping business has often been portrayed as the archetype of unbridled free market capitalism, burst free from constraints of government and union regulation, . . . Effectively freed from national hiring restrictions, most shipowners no longer crew their vessels with the highly unionized seafarers of the traditional maritime countries . . . instead preferring to hire from the lower wage maritime labour exporting countries, such as . . . As a result, a global and transnational labour market for seafarers developed, with fierce global competition sending wages, union power and respect for workers’ rights in a downward spiral.



chapter one

international legal system.98 It is perhaps one of the most concrete examples of the ‘cutting edge’ or future of many of the underlying issues relating to globalization, with workers drawn from many countries working in workplaces that move between jurisdictions and involving employer/ownership arrangements that are similarly fluid. This is the future face of many sectors emanating from the impact of electronic communications and the equally fluid ‘e-highway’ on the location of workplaces and workers and diverse issues including, inter alia, extra-territoriality, the tension between the ‘North’ and the ‘South’, and the challenges to principles of State sovereignty as manifest in the concept of flag State control. As explained above and explored further in Chapter , since the late s, the ILO has increasingly focused it efforts on achieving change by working with governments and relevant national organizations to secure decent working conditions, including social protection, largely by adopting a rights-based approach. This has also involved attention to ensuring effective implementation—that is, moving beyond de jure to de facto implementation of legal obligations. Related to this has been a concern that while there are many conventions in force, key interested States have not ratified them for reasons such as technical aspects that are out dated or otherwise impede implementation even in cases where there is agreement with the principles of a convention. Not surprisingly, the interaction of the economic system, the international trade regime, and labour standards, particularly in the context of sustainable economic development, is a central concern. The ILO has not taken a position against globalization per se but rather has long argued for ‘fair globalization’, that is the need to ensure that exploitation of workers does not become a competitive advantage.99 All of these factors provide the backdrop against which the MLC,  was developed.

98

From one perspective it may be a relative easy or vulnerable target for experimenting with change. The high degree of internationalization and the extensive international regulatory regime already in place under the IMO and the ILO means that, depending on the extent of economic reliance on the sector, some governments are more easily able to withstand domestic lobbying to resist international regulation and standards. 99 World Commission on the Social Dimension of Globalization, supra note .

chapter two THE STORY OF THE MARITIME LABOUR CONVENTION, 2006 author’s note1 This chapter is a narrative2 recounting of the sequence of events and concerns, as recalled by its author drawing on the reports of meetings that she attended and her continuing engagement with the development of the MLC,  from its beginning. I have used the word ‘story’ to capture the sense of a particular purpose, perhaps even a mission, that accompanied and captured all who were involved in this effort. Certainly the period between  and  indelibly imprinted and shaped the lives of all who were engaged in the process to produce this major new international ‘bill of rights’—the seafarers’ representatives, the shipowners’ representatives, key government representatives, and staff and advisors of the International Labour Office. It had all the elements of a heroic journey with numerous challenges and successes, from which many lessons might be learned. While it is not possible to name all outstanding personalities it is equally unwise wise to venture to name a few key people. This is not because they did not exist, but because of a fear of overlooking one of the many who contributed, at differing stages, to the final text of the MLC, . Nevertheless the text of the Convention stands now as a legacy marking, albeit without individual attribution, the significant combined efforts of so many over so many years.

1

The views expressed in this chapter are the personal views of its author, Dr. Cleopatra DoumbiaHenry and are not to be understood as the views of the International Labour Office or the International Labour Organization. The author of this chapter, one of the co-authors of this book, is the Director of the International Standards Department, International Labour Office, ILO, Geneva. As an ILO official she was directly involved with, and variously responsible for legal advice (in the late s as Senior Legal Officer, Legal Office of the Secretariat) and guidance to the social partners in their examination of the issues and options and, ultimately, in her role first as the Director of the Sectoral Activities department and then the International Labour Standards Department, the carriage of the MLC,  from its initiation until its adoption in . She is now responsible for the ILO’s role in ensuring follow-up, in cooperation with other ILO departments, to ensure that the Convention enters into force. As the Director responsible for the operation of the ILO supervisory system (see Chapter ), she is also responsible for the operation of the supervisory bodies of the ILO that will review national implementation of the Convention, once it enters into force. 2 This term is used to indicate the more reflective, experiential, even personal, approach to this chapter.



chapter two Seafarers Have Always Been a Concern for the ILO

From its first days, the Members of the ILO realized that in the world of work, seafarers and shipowners were different. Not land-based but working on the seas, they not only moved huge amounts of world trade even  years ago, they were the most fluid and wide-ranging workforce on the planet. When the first ILC convened in June of , the year the Organization was created, and began discussing the regulation of working hours, the need for a special approach to living and working conditions in the maritime sector became apparent. A year later, in , the second ILC, held in Genoa, Italy, was devoted to seafarers. It adopted3 the National Seamen’s Code Recommendation,  with its single substantive provision stating: In order that, as a result of the clear and systematic codification of the national law in each country, the seamen of the world, whether engaged on ships of their own or foreign countries, may have a better comprehension of their rights and obligations, and in order that the task of establishing an International Seamen’s Code may be advanced and facilitated, the International Labour Conference recommends that each Member of the International Labour Organisation undertake the embodiment in a seamen’s code of all its laws and regulations relating to seamen in their activities as such.4

Since , it has been the practice of the ILC to convene a special Maritime Session to deal exclusively with seafarers’ living and working conditions. The bipartite Joint Maritime Commission (JMC),5 established in , has advised the ILO’s Governing Body on maritime questions, especially on the selection of

3 See also Chapter  and infra. It is also notable that in an era when social security schemes were not well developed for any sector that this Session also adopted a recommendation, Unemployment Insurance (Seamen) Recommendation,  (R), “with a view to securing the application to seamen of Part III of the Recommendation concerning unemployment adopted at Washington on  November . It recommended that each Member of the ILO establish for seamen an effective system of insurance against unemployment arising out of shipwreck or any other cause, either by means of Government insurance or by means of Government subventions to industrial organisations whose rules provide for the payment of benefits to their unemployed members.” See also: Unemployment Indemnity (Shipwreck) Convention,  (No. ), Genoa,  July , available at http://www.ilo.org/ilolex/english/convdisp.htm. However, as discussed in Chapter  in connection with Regulation ., in  the issue of social security coverage for all seafarers remained a difficult matter. 4 National Seamen’s Code Recommendation,  (R), Genoa,  July , available at http:// www.ilo.org/ilolex/english/recdisp.htm. 5 The JMC is a standing bipartite body established by the ILO Governing Body. It provides advice to the Governing Body on maritime questions including standard setting for the shipping industry. It is composed of  titular members,  representing shipowners and  representing seafarers, and four deputy members for each of the two groups. They are all nominated by the ILC. The meetings of the JMC are chaired by the Chairperson of the Governing Body.

the story of the maritime labour convention, 



items to be submitted to the Maritime Sessions of the ILC. As early as , at its th Session, the JMC adopted a resolution dealing, inter alia, with the ratification of maritime conventions and outlined a programme of work for the International Labour Office (the Office).6 That programme of work also included the possibility of preparing an international maritime charter. It is the special nature of the living and working conditions of maritime workers which led the ILC to adopt a large number of conventions and recommendations applying specifically to seafarers.7 The nine Maritime Sessions of the ILC prior to the adoption of the MLC,  adopted over  maritime legal instruments (conventions and recommendations).8 These instruments cover a wide range of issues, including recruitment and placement services, minimum age, hours of work or rest, safety, health and welfare, labour inspection, and social security. Together they have been referred to as the ‘International Seafarers’ Code’. This body of international standards represents a considerable achievement for the protection of the workers concerned and for the industry as a whole. The Origin of the MLC,  The origin of the MLC, , which was adopted in  at the th Maritime Session of the ILC, can be traced back to two important developments or phenomena in the late s: the review being undertaken of ILO standards by the Governing Body of the ILO9 and the major changes that were then taking place in the maritime industry. Turning to the first, the legal impetus came from the process launched by the ILO Governing Body in  to establish a Working Party on Policy regarding the Revision of Standards (the Working Party) as a follow-up to discussions on ILO standard-setting policy held in the framework of the ILC in .10 The

6 See International Labour Office, Minutes of the Ninety-First Session of the Governing Body, London, – December , Fifth Sitting, Agenda Item Four, Record of the Twelfth Session of the Joint Maritime Commission and of the Meeting of its Subcommittee (London, June  and May ), pp. –, available at http://www.ilo.org/public/libdoc/ilo/P//.pdf. 7 Some of these conventions and recommendations also apply under certain conditions to fishers, dockworkers, and personnel working on inland boats. 8 These include  conventions, one protocol to a convention, and  recommendations. See also the discussion in Chapter  on predecessor conventions. 9 As noted in Chapters  and , the Governing Body is the executive arm of the ILO. It is composed of  government,  employer, and  worker representatives. 10 See, Defending Values, Promoting Change, Social Justice in a Global Economy: An ILO Agenda, Report of the Director-General, International Labour Conference, st Session, Geneva, .



chapter two

Working Party was to examine the need for revision of all ILO conventions and recommendations adopted by the Organization prior to  with the objective of rejuvenating and strengthening the standard-setting system. Proposals were not to have the effect of reducing the protection afforded to workers by ratified conventions.11 The Working Party initiated its review of the relevant12 maritime labour instruments in November  and completed it in March . Its work was facilitated by recommendations made to it, at its request, by the constituent Members of the JMC which had itself formed the Joint Working Group of Shipowners and Seafarers for this purpose. The Joint Working Group of Shipowners’ and Seafarers’ representative organizations met in Geneva in July  and again in May . The JMC was also requested its view on five social security maritime instruments that it had not yet reviewed.13 The JMC formulated recommendations, most of which were approved by the ILO’s Governing Body.14 The result of this consultation with the industry was a decision taken by the Governing Body on the recommendation of the Working Party to promote six conventions as being up to date, to revise seven conventions considered to be outdated,15 and to propose  for denunciation. 11 The ILO Working Party regarding the Revision of Standards was established under the auspices of the Legal Issues and International Labour Standards Committee (LILS) of the ILO Governing Body. One element of its terms of reference provided that proposals for revision of conventions and recommendations adopted before  “were not to have the effect of reducing the protection already afforded to workers by ratified Conventions”. See: ILO Doc. No. GB.// (March–April ), para. . 12 It is important to recall that the Working Party did not examine conventions and recommendations adopted after , which the Governing Body considered were up to date. 13 They were the Unemployment Indemnity (Shipwreck) Convention,  (No. ), Genoa,  July ; Shipowners’ Liability (Sick and Injured Seamen) Convention,  (No. ), Geneva,  October ; Sickness Insurance (Sea) Convention,  (No. ), Geneva,  October ; Social Security (Seafarers) Convention,  (No. ), Seattle,  June ; and Seafarers’ Pensions Convention,  (No. ), Seattle,  June , all available at http://www.ilo.org/ilolex/ english/convdisp.htm. 14 While most of the recommendations made by the Joint Working Group were approved by the Governing Body, different decisions were approved in respect of four conventions, viz., the Placing of Seamen Convention,  (No. ), Genoa,  July ; Officers’ Competency Certificates Convention,  (No. ), Geneva,  October ; Minimum Age (Sea) Convention (Revised),  (No. ), Geneva,  October ; and Accommodation of Crews Convention (Revised),  (No. ), Geneva,  June , all available at http://www.ilo.org/ilolex/english/ convdisp.htm. Although the Joint Working Group had recommended the shelving of Convention No. , the Governing Body decided to maintain the status quo. In the case of Convention No. , the Joint Working Group proposed its revision, while the Governing Body decided to maintain the status quo. In the case of Conventions Nos.  and , the Joint Working Group had proposed to maintain the status quo, but the Governing Body decided to invite Member States to ratify the more up-to-date conventions and to re-examine the status of the two conventions in due course. 15 The seven conventions were the Medical Examination of Young Persons (Sea) Convention,  (No. ), Geneva,  November ; Seamen’s Articles of Agreement Convention, 

the story of the maritime labour convention, 



Concerning the recommendations,  were considered either up to date or that the status quo be maintained, four were considered to have been replaced, and five were considered obsolete and proposed for withdrawal. Prior to the meeting of the JMC, informal meetings were held between members of the Working Group of shipowners and seafarers and the secretariat of the Office on the possible options available and potential solutions, taking advantage of the Governing Body review exercise. When the JMC met in January , it had before it three reports: the first concerned the review of the relevant ILO maritime instruments; the second dealt with updating the ILO’s minimum basic wage for able seamen; and the third was a report on the impact on seafarers’ living and working conditions of changes in the structure of the shipping industry.16 The second development is reflected in the third report referred to above. This report, The Impact on Seafarers’ Living and Working Conditions of Changes in the Structure of the Shipping Industry17 (hereinafter referred to as ‘the third report’), highlighted structural developments in the industry, including changes in ownership, the financing and management of shipping fleets, new forms of registers, dramatic shifts in the origin of labour supply, the growth of multinational and multicultural crews, and developments in turnaround time of ships coupled with reduced crewing levels. Each of these developments has an impact on the living and working conditions of seafarers. Although shipping has always been considered a global industry by virtue of its very special nature, globalization18 of the world economy has not left the industry unaffected. Outside the structural changes that transformed the shipping industry, in the last quarter of the twentieth century, as mentioned in Chapter  of this book,19 the emergence of a global labour market for seafarers has effectively transformed the shipping industry into the world’s first genuinely global industry.

(No. ), Geneva,  June ; Food and Catering (Ships’ Crews) Convention,  (No. ), Seattle,  June ; Certification of Ships’ Cooks Convention,  (No. ), Seattle,  June ; Medical Examination (Seafarers) Convention,  (No. ), Seattle,  June ; Certification of Able Seamen Convention,  (No. ), Seattle,  June ; and Prevention of Accidents (Seafarers) Convention,  (No. ), Geneva,  October , all available at http://www.ilo.org/ilolex/english/convdisp.htm. 16 For these reports, see http://www.ilo.org/public/english/dialogue/sector/techmeet/jmc/ index.htm. 17 The Impact on Seafarers’ Living and Working Conditions of Changes in the Structure of the Shipping Industry, Joint Maritime Commission, th Session, Geneva, , ILO Doc. No. JMC///, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/jmc/ jmc-r.pdf. 18 See introductory comments in Chapter , note  for a discussion of the term ‘globalization’. 19 See introductory comments in Chapter , footnote .



chapter two

The third report considered that there was the need for a global response, an international regulatory response of an appropriate kind—global standards applicable to the entire industry. It called for standards that would ensure decent shipping fleets, and decent safety and social standards for all seafarers as called for by the Director-General of the ILO in his report Decent Work.20 The third report showed evidence that there had been a dramatic weakening of national regulatory regimes, with an accelerated shift from traditional maritime registers to other registers. The link between the flag State and the seafarer had become even more tenuous with the variety of forms of ownership, management, and control of ships. It was especially concerned about the growing avoidance of social regulations, which had become the weakest link in the chain in the face of increased international competition and the requirement for mandatory compliance with technical standards. The third report called for breaking the vicious circle of low freight rates, extremely poor conditions and standards, weak national regulatory mechanisms, and the reluctance to enforce internationally applicable labour standards. It did not make sweeping generalizations concerning living and working conditions of seafarers as it recognized that seafarers working on ships under some flag States or some types of ships did enjoy high standards. The third report expressed concern about the poor conditions21 that arose from some of these developments and recommended adopting minimum standards that would neither reflect the lowest common denominator nor be unrealistically high. These international standards should respond to the primary role of the ILO today, that is, to promote opportunities for men and women to obtain decent and productive work in conditions of freedom, equity, security, and human dignity. And this was precisely the action that the ILO’s Director-General called for in his report.22 This overall goal was endorsed by the ILC to be pursued within the context of the global economy. ‘Decent work’ is considered relevant for all countries, including the developed, developing, and transition economies, and equally applicable to all sectors of the global economy—not least the maritime industry.

20

Decent Work, Report of the Director-General, ILC, th Session, Geneva, , available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/rep-i.htm. See also: Chapter , p. , and ILO Web site, ‘Decent Work’, available at http://www.ilo.org/global/Themes/Decentwork/ lang-en/index.htm. 21 This report is consistent with the concerns expressed in  by the International Commission on Shipping, Inquiry into Ship Safety, Slavery and Competition (Australia: ICONS, ), as noted in Chapter , note . 22 Supra note , p. .

the story of the maritime labour convention, 



The Director-General’s report highlighted the importance of enhancing the ILO’s work on standards and considered a number of actions to raise the profile of its work. Many of these possible actions shaped the approach to the negotiation and adoption of the MLC, . These included: – preparing the ground for new standards more thoroughly; – exploring new methods of standard setting; – engaging in deeper analysis of existing standards, their synergy, lacunae, and impact on various groups; – accelerating the revision of outdated instruments to build on progress already made and promoting priority standards as problem-solving tools; – enhancing the impact of supervision of standards; and – reasserting the role of ILO standards in the broader world context.23

The third report and the results of the Working Party necessarily gave rise to a number of questions concerning the impact of maritime labour standards. What profile do these standards have? What has been their impact on the working and living conditions of seafarers, employment in the industry, and on the industry itself? What are the reasons for the low rates of ratification of maritime labour conventions compared to International Maritime Organization (IMO) conventions? Among the third report’s conclusions were those related to the fragmented nature of these numerous existing maritime labour instruments and the very low and uneven rate of ratifications of these conventions. The fragmentation can be explained by the fact that these instruments were all adopted in response to a specific problem or specific needs—over a period of almost  years. They covered most of the essential issues relevant to seafarers’ working and living conditions. However, having them widely ratified and implemented, as well as keeping them up to date, had proved to be a major challenge.24 In addition, the problem of ‘treaty congestion’ made it difficult for Member States to engage in separate ratification processes for so many instruments. Essentially they did not represent a manageable set of standards to govern a truly global industry. 23

Supra note , p. . The Director-General’s Report also called for reasserting the usefulness of international labour standards; reinvigorating efforts to experiment with new approaches; encouraging closer consultation with constituents; analysing proposed standards in terms of their potential impact on economic and social policy and their complementarity with other international instruments; and reinvigorating promotional efforts to see that standards are ratified and applied. Reference was also made to the difficulties encountered with ratification, especially as parliaments around the world often have a long list of items awaiting their attention. 24 Ratification of the maritime conventions and one protocol ranged from  Member States to none. By , the Merchant Shipping (Minimum Standards) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, the best known ILO maritime convention, had been ratified by (as December ) Member States representing more than  per cent of the world shipping gross tonnage.



chapter two

The low rate of ratifications of maritime conventions is widespread. The third report refers to the demands of competition as one reason. Another reason may be that social and labour issues are given lower priority than environmental and safety concerns. The fact that shipping issues are dealt with by national ministries dealing with maritime matters or by maritime authorities, and labour matters by ministries of labour, means problems of coordination and competence play a role in sustaining the interest for the ratification of maritime labour conventions. The role of national social partners in promoting ratification of ILO conventions was also seen as important. The shift to international registers and the fact that increasing numbers of seafarers are being employed on ships flying the flag of countries of which they are not a nationals has weakened the role of the social partners at the national level in these countries. Ratifications alone, however, do not give the full picture, and there is no doubt that although the pertinent conventions may not have been ratified, they have still influenced national law and practice—and in some cases are actually applied even if they are not ratified. For example, as the report showed, port State control has also permitted extending compliance with the requirements under the ILO’s Merchant Shipping (Minimum Standards) Convention,  (No. ) to third countries, particularly those that had not ratified the pertinent conventions. Nevertheless the generally low rate of ratifications and the difficulty in putting labour issues on the maritime and legislative agendas at the national level raised concerns as to whether the maritime labour standards met the needs of the industry. The report25 prepared by the Office for the JMC meeting on the review of relevant ILO maritime instruments made several proposals responding to these concerns. It proposed an integrated approach to future standard setting in the maritime field, with three options for consideration. The first was to limit new standard-setting action to the revision of the seven outdated instruments as the Working Party had proposed. The second was a proposal for the consolidation of all existing and up-to-date maritime conventions into a single new framework convention. The third proposal consisted of consolidating the instruments into four or five framework conventions under major subject areas. The Office report also examined the possible added value, as well as the disadvantages of the approach of consolidating the instruments into one or more framework instruments. This was combined with the following suggestions for possible ‘value added’ elements beyond the simple fact of consolidation: 25

Review of Relevant ILO Maritime Labour Instruments, JMC, th Session, Geneva, , ILO Doc. No. JMC///, available at http://www.ilo.org/public/english/dialogue/sector/ techmeet/jmc/jmc-r.pdf.

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– the existing instruments would be thematically and coherently regrouped into one or more instruments; – articulation of the basic principles applicable to the maritime industry to achieve progress towards sectoral universality of obligations or progress towards it; – simplified content of the provisions of the convention; – no less favourable treatment provisions in the annexes; – inclusion of the substantial equivalence concept in the absence of acceptance of specific provisions, in respect of the provisions relating to Convention No. ; – facilitated mechanisms for the updating of annexes (amendment procedures different from that applicable to the convention); – enforcement procedures, including port State control; – the possibility of a new type of general survey, conducted at regular intervals, enabling a closer monitoring of progress made towards meeting the objectives of the convention; – inclusion of a new dynamic role for the maritime social partners through the JMC or an expanded JMC; and – provisions for technical assistance to complement efforts of governments, shipowners, and seafarers and to create incentives for compliance.

Several possible disadvantages were seen to this new approach. A framework convention extracting the main elements and principles in existing conventions could move certain detailed provisions, which currently are in the body of conventions, to the annexes, or possibly even to recommendations. However there was no guarantee that the new approach would meet with greater success than the existing instruments. Convention No. , in keeping with the globalized nature of the maritime sector, placed responsibility on all countries for ships flying their flag or coming within their territorial jurisdiction. It had become a generally recognized international standard, and every attempt should be made to preserve it. There was a fear that, if the new approach were not successful, it might weaken the existing body of standards. However, the possibility of regular monitoring of a single instrument through the new type of general survey might mitigate or even eliminate this risk. This new tool might well offer a guarantee for the success of the Convention. On the other hand, the consolidation of maritime labour instruments was also seen as a way to engage in a comprehensive rationalization of the ILO’s maritime activities. The standards were judged on their ability to promote the objectives of the ILO, with special attention being given to the changes in the shipping industry due to globalization. The adoption of the proposed consolidated instrument would be consistent with the will to incorporate individual standards into more comprehensive ones. It would imply an improved focus in the ILO’s maritime activities, including promotion of standards as well as technical cooperation, and would result in better coordination with similar activities of other institutions, particularly those of the IMO in the related areas of safety at sea and protection of the environment.

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The Office report26 took a comprehensive view of the entire body of maritime labour standards and proposed an approach that was consistent with the consensus arrived at by the ILO Governing Body in November  concerning an integrated approach to standard setting. Two of the proposals presented (the second and third options) were intended to ensure that the maritime social partners would give due consideration to an effective response to a truly global industry, provide a level playing field that would address substandard shipping, and provide assurances to seafarers that they would enjoy decent working conditions on all ships irrespective of the flag they fly. It is this report that first articulated the idea of one flagship instrument that would represent ‘the bill of rights’ for the industry and seek to ‘ensure progress towards sectoral universality of obligations’. The idea was also to ensure that the new instrument would be capable of responding to the rapid changes, needs, and technological developments being experienced by a truly global industry— shipping. The th Session of the JMC: Turning of the Tide—A historic Moment The JMC discussed these three reports at its th Session in January .27 The Shipowners’ Members on the JMC indicated that this was the first time in its history that the JMC had considered a cycle of ILO maritime activities without having before it resolutions adopted at a previous Maritime Session of the ILC. They felt that this allowed the JMC to step back from specific issues and consider wider, more fundamental concerns about the system of regulation of labour standards in the maritime sector.28 They considered this issue to be of most long-term significance to the industry and submitted a proposal containing an outline of a possible future framework convention.29 The Seafarers’ Members on the JMC took the view that these reports provided an opportunity to change the face of international labour rights. In their opinion, truly global standards, enforced through port State control, were needed and new regulatory mechanisms were essential to protect basic social, welfare, and employment rights of those seafarers employed under globalized

26

Ibid. Final Report, JMC, th Session, Geneva, – January , ILO Doc. No. JMC/// , available at http://www.ilo.org/public/english/dialogue/sector/techmeet/jmc/jmcfr.htm. 28 Ibid., para. . 29 Ibid., para.  and Appendix . 27

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conditions.30 They concurred with the shipowners that the boldest way forward, a single instrument, was the best approach.31 The major concern expressed at this stage was the need to ensure that the proposed framework convention approach would not discourage countries from ratifying Convention No.  or those that had recently ratified it from ratifying the possible new instrument. They noted in particular that Convention No.  was included as a relevant instrument in seven regional memoranda of understanding on port State control. While they were concerned that Convention No.  should not be undermined, they were equally of the opinion that the proposed consolidated instrument would replace Convention No.  as the primary port State control instrument concerning labour conditions for seafarers.32 In response to concerns raised by the Shipowners and Seafarers Members at the JMC concerning the impact of a new framework convention on Convention No. , the Office explained that the move towards a single consolidated instrument was based on the premise that the ‘capital’ of present and any future ratifications would remain. This would create an incentive for the ratification of the new framework convention. An ILO Member State would remain bound by the conventions it had ratified until it had assumed all the equivalent obligations under the new framework convention.33 The ratification of the new framework convention would provide for the automatic denunciation at the time of entry into force for the Member concerned of the existing convention. If the required conditions were not met, the ILO convention would remain in force for that Member. Care would need to be taken to ensure that at least the main provisions of the existing conventions would be identical in substance to those in the new convention. The Office also explained that, as far as Convention No.  in particular was concerned, two possibilities presented themselves. The first case could be that of a Member State that had ratified Convention No.  and had national legislation giving effect to its obligations under that convention. As the new framework convention would incorporate the obligations contained in Convention No. , the State should not have to change its legislation to be able to ratify the new framework convention. The State might decide not to ratify the framework convention if it contained other obligations concerning standards not included in Convention No.  for which it did not have compliant laws

30 31 32 33

Ibid., para. . Ibid., para. . Ibid., para. . See the discussion in Chapter  in connection with Article X.

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and regulations. The second case could be that of a Member State that had not ratified Convention No.  but had ratified the new framework convention. Under Article ()(d) of the ILO Constitution, that Member was required to “take such action as may be necessary to make effective the provisions of [the new] Convention”. It was important that all States understood that ratification of Convention No.  would in fact make it easier to ratify the new consolidated instrument. Promotion of the ratification of Convention No.  was therefore to be encouraged. The Geneva Accord: Shipowners and Seafarers Spark the Renaissance of ILO Maritime Standards Both the Shipowner and Seafarer Members of the JMC agreed that the emergence of the global labour market for seafarers had effectively transformed the shipping industry into a global industry requiring an appropriate legal regime with a body of global standards. Their concerns regarding existing ILO maritime labour standards were that they: – – – – – –

had not kept pace with developments in the shipping industry; were often set out in complex, uncoordinated and overlapping provisions; were subject to time-consuming and costly amendment procedures, were inadequately applied at the international level; were unevenly enforced, unfairly burdening providers of decent work; and lacked certain aspects in comparison with those of non-tripartite bodies.

In expressing these concerns, they desired to bring the system of protection contained in existing instruments closer to the workers concerned and to improve the applicability of the system so that shipowners and governments interested in providing decent working conditions do not bear an unequal burden in ensuring such protection. They did not call into question the legal status or substance of the existing instruments but rather called for greater consistency and clarity, more rapid adaptability and general applicability. The Shipowner and Seafarer Members of the JMC agreed that the existing ILO maritime instruments should be consolidated and brought up to date by means of a new single framework convention on maritime labour standards. They therefore selected the second option offered in the Office report. They called the agreement, designed to improve safety, social and working conditions in the maritime industry, the ‘Geneva Accord’.34 The agreement was adopted in

34

Supra note , para. .

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the form of the Resolution concerning the review of relevant ILO maritime instruments.35 The Accord reaffirms the need for an international regulatory response establishing global standards applicable to the entire industry. It recognized the unique needs of the shipping industry, as regards international labour standards, and its historical status in the ILO. They considered that the development of an instrument that consolidated the text of the existing body of ILO instruments should be a priority for the maritime sector in order to improve the relevance of these standards for all the stakeholders. Further, the consolidated instrument should comprise a number of parts concerned with key principles of such labour standards as may be determined, together with annexes incorporating detailed requirements for each of the parts. The instrument should also provide for revision of the annexes through an accelerated amendment procedure. With a view to taking their conclusions forward, the Shipowner and Seafarer Members recommended to the Governing Body that it establish a high-level tripartite working group on maritime labour standards to assist with the work of developing the proposed new instrument and that membership should comprise ten representatives of each group. They also recommended that the Governing Body establish a tripartite subgroup to prepare and consider the working papers in advance of meetings of the high-level tripartite working group. In addition they recommended that the Governing Body convene (a) a preparatory meeting in  for first discussion of the proposed new instrument; and (b) a Maritime Session of the Conference in  to adopt the instrument with the following agenda: ) consolidation of ILO maritime instruments; and ) general discussion on developments in the industry. The Accord also recommended that a Resolutions Committee be established in accordance with Article  of the Standing Orders of the ILC. In adopting the Geneva Accord, the Shipowner and Seafarer Members were clearly taking a stance that supported international regulation rather than national or regional regulation of maritime labour standards. They wanted such regulation to be up to date, relevant, widely accepted, and properly enforced irrespective of the flag of the ship, the nationality of the seafarer, or the port a ship visited. The Seafarer Members considered that the current system provided a financial incentive for substandard operations including conditions of work. They called for a new approach, universal regulation of working and living conditions of seafarers accompanied by an enforcement mechanism. Like any other employer, the Shipowner Members did not view the imposition of yet more regulation with more relish. However they wanted sensible

35

Supra note , Appendix .

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and impartially applied labour standards so that a level playing field could be created where standards of service, instead of poor conditions based on low cost, would dictate customer preference. For them, the uneven application of labour standards had lead to imbalances in international shipping. Their common point was that both social partners agreed that the international shipping industry needed global enforceable standards and that social dialogue at the international level should lead to improved global governance in the industry. The Director-General’s report to the th Session of the ILC in June  specifically referred to the Geneva Accord as ‘historic’ noting the contribution the Accord would make to the future development of labour standards in the international shipping industry as the third global pillar—the social pillar— to complement the other two pillars, maritime environmental and safety standards.36 The Director-General singled out the maritime industry and the maritime social partners in particular for responding to his call for a global coalition for decent work. He stated in this respect, And one that I must say I like very much: in concluding a historic agreement at the Joint Maritime Commission earlier this year, shipowners and seafarers declared that they were proud to be, . . . “torchbearers for the ILO campaign to promote decent work the world over”.37

Thus the resolution of the th Session of the JMC, the Geneva Accord, met key ILO goals. Its call for the development of a new ‘framework’ convention, which would consolidate as far as possible and update the wide range of existing maritime labour standards into a single, simpler instrument, fits in both with the trends in the Organization’s standard-setting action over the last decade or so and with its current strategic objectives concerning decent work. Additionally, the shipowners and seafarers offered eight solutions (Figure ) that laid the foundation for the subsequent substantive discussions. Together these guiding principles38 governed the entire preparatory process leading to the elaboration, negotiation, and adoption of what was to become the MLC, .

36

See, Reducing the Decent Work Deficit: A Global Challenge, Report of the Director-General, ILC, th Session, ILO Doc. No. Report (A), , available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/pdf/rep-i-a.pdf, pp. –. Interestingly, the MLC,  also came to be known as the ‘fourth pillar’ complementing the three major IMO conventions, see text at Chapter , note . 37 Ibid., p.  and the Third Sitting, ILC, th Session, Geneva, , ILO Doc. No. PR, p. . 38 These solutions comprise a mix of recommendations combining substantive objectives (i.e., , , and ), and structure and format (i.e.,  and ).

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Figure . The eight ‘preferred solutions’ of the shipowners and seafarers39 . The provisions of the corpus of international maritime labour standards that are sufficiently up to date should be consolidated as a matter of priority and in so far as this proves possible to achieve. . Their substance should be incorporated in a single, coherent instrument, seen as part of the general body of standards adopted by the ILO, and fitting in with other international maritime instruments. . The consolidated instrument should consist of a number of Parts setting out the key principles of international maritime labour standards. . The Parts should be complemented by annexes setting out detailed requirements for each of the Parts. . A simplified amendment procedure should be provided for updating the annexes and ensuring prompt entry into effect. . The instrument should also contain the substance of recommendations and other non-mandatory texts. . The instrument should be drafted in such a way as to secure the widest possible acceptability among governments, shipowners and seafarers committed to the principles of Decent Work. . The instrument should contain provisions giving responsibility to all States to ensure that decent conditions of work apply on all ships that are placed under their jurisdiction or that come within their jurisdiction.

Launching the High-level Tripartite Negotiation Process Less than two months after the JMC meeting, at its th Session (March ), the Governing Body of the ILO approved the proposals made to it by the JMC and established the High-level Tripartite Working Group on Maritime Labour Standards (HLTWG)40 to consider the development of a single, 39

Briefing Note, HLTWG (First Meeting), Geneva, , ILO Doc. No. TWGMLS / , available at http://www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmlsr- .pdf, para. .. See also the discussion in Chapter  at notes  through . 40 Report of the th Session of the Joint Maritime Commission, Geneva, – January , Governing Body, th Session, Geneva, March , ILO Doc. No. GB /(Corr.), see especially para. : Taking account of . . . the relevant recommendations made by the Joint Maritime Commission, the Governing Body may wish to: (a) establish a high-level tripartite working group in accordance with paragraph  above, with a composition of  Government representatives,  Shipowners’ representatives and  Seafarers’ representatives and of Government, Employers’ and Workers’ observers with the right to speak and participate in the meetings of the working group taking due account of the criteria set out in paragraph  (c) above and stressing that representatives and observers should be knowledgeable and active

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coherent international standard incorporating, as far as possible, the substance of all the various international maritime labour standards that were sufficiently up to date. The first meeting of the HLTWG was held in December .41 Importantly it operated on the basis of ‘tripartite consensus’, an approach that valued the views of the three Groups and allowed for a wide range of views in discussions without requiring weighted voting. It addressed several key issues: the task of consolidation, the innovations that could be included, for example, a new amendment procedure to address updating of the convention and the low level of ratifications, and the enhanced role given to ratifying States to ensure that decent conditions of work are present not only on ships registered in their territory, but also on ships calling at their ports. As will be discussed in more detail in Chapter , from a legal drafting perspective, the meeting had before it a possible general structure of the framework instrument.42 It was proposed that it would comprise of two components: a binding and a non-binding component. There would be a number of parts incorporating the basic principles of existing conventions whose general applicability is required to ensure that parties providing decent conditions of work are not placed at a disadvantage. Part I was envisaged to contain a statement of fundamental principles and rights at work, that is, those contained in maritime conventions and in other relevant international labour conventions. It would also set out the responsibilities of the parties with respect to the inspection of ships. The remaining parts would be devoted to a particular ‘family’ of principles and rights. Each part was intended to have an annex setting out detailed requirements for implementation of the principles and rights in the part concerned. This would relate to the more detailed provisions of the conventions concerned. These were the provisions that would be the subject of the simpli-

in the enforcement of the standards to be adopted and be able to commit the necessary time to lend to the continuity of the process; (b) approve the recommendation that the decisions of the high-level tripartite working group should be taken by consensus; (c) approve the setting up of a tripartite subgroup in accordance with the modalities set out in paragraph  above; (d) invite the Director-General to take note of the requests contained in paragraphs  and  above when establishing the programme of work of the Office for the rest of this biennium as well as for the – and – Biennia. 41 Final Report, HLTWG (First Meeting), Geneva, – December , ILO Doc. No. TWGMLS /, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/tw gmls/twgmls-fr.pdf. See also Chapters  and . Appendix  of this book provides a brief history of the negotiation sessions. 42 Working Paper, HLTWG (First Meeting), Geneva, , ILO Doc. No. TWGMLS / , available at http://www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmlsr- .pdf. See also Chapter .

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fied amendment procedure. In the Office suggestions, it was initially envisaged that at the time of ratification, ILO Member States could decide not to be immediately bound by particular parts or annexes of the new instrument. It was also envisaged that there would be an additional component reflecting the international labour recommendations and other material that would not have mandatory force. Among the issues that the first HLTWG meeting had to discuss were those related to the content of the consolidation, the distribution of the provisions within this content, and the mechanisms for updating the instrument. Concerning the content of the consolidation, several issues were addressed: which provisions out of the  existing maritime labour conventions and protocol should be included; whether it should include only the higher standard where there was an older lower standard and a more up-to-date higher standard on the same subject; what type of flexibility, including substantial equivalence, should be included if the higher standard was retained; and which options would facilitate ratification. Several other issues were raised as well. Concerning distribution, the questions were how to distribute the provisions of the instrument among its various components and what criteria should be used for the distribution. How would the provisions that constituted principles for inclusion in the parts be determined and which ones constituted details for inclusion in the annexes to which the simplified amendment procedure could be applied? Throughout the development of the instrument, governments were asked to indicate the kind of legislative provisions that would be included in their regulations or collective agreements rather than in acts of parliament. Concerning the simplified amendment procedure, the objective was to devise a mechanism for updating the annexes that would combine the greatest possible flexibility with general applicability to governments and national parliaments. In this case, the Office explored the options of both an ‘opting-in’43 and an ‘opting-out’44 procedure. 43 The ‘opting-in’ procedure would allow for amendments that were adopted by the ILC to be submitted to Members for acceptance. This was the case with the Employment Injury Benefits Convention,  [Schedule I amended in ] (No. ). In , the ILC, identifying the need for a simplified procedure for updating a list of occupational diseases, adopted the List of Occupational Diseases Recommendation,  (No. ). According to paragraph , the list annexed to this Recommendation should be regularly reviewed and updated through tripartite meetings of experts convened by the Governing Body. Any new list is to be submitted to the Governing Body for its approval, and upon approval will replace the preceding list and is to be communicated to Members of the ILO. The  list of occupational diseases was revised and replaced by a new list in March  when the Governing Body, at its th Session, adopted a new list of occupational diseases. As this list is now adopted through a recommendation, the question of ‘opting-in’ or ‘opting-out’ is moot. 44 Under the ‘opting-out’ procedure, amendments are binding on Member States that do not

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Finally, the meeting was invited to address the issue of the general enforceability of the new instrument, building on the provisions of Article  of Convention No. . This Article had already given a ratifying Member State the right to take action if it “receives a complaint or obtains evidence” that a foreignregistered ship visiting its ports does not conform to the Convention’s standards. The action is limited under Convention No.  to addressing a report to the government of the country of registration, with a copy to the DirectorGeneral of the ILO. If the conditions on board are “clearly hazardous to safety or health”, the Member State “may” take measures to rectify them, which may result in the detention of the ship, provided that the measures are not unreasonable. The question was whether these measures should be further strengthened. In particular, is reporting to the foreign government, with a copy to the Director-General, a sufficient measure in the case of shortcomings that are not hazardous? Further, should the new instrument give Member States the right to take rectification measures in cases other than those involving hazards to safety or health, and if so in what kind of cases?45 The Response of Governments to the Eight Preferred Solutions At the first HLTWG meeting, governments pledged their support for the eight points proposed by the social partners (see above Figure ) and indicated that they were committed to participating in the Working Group throughout its work. They agreed that the proposed new instrument should be consistent with the ILO’s Decent Work Agenda and with action undertaken by the ILO and in other organizations, particularly the IMO; the instrument should be simple, clear and easy to apply; and all Member States, maritime constituents, and other stakeholders would be kept informed of the progress of the preparatory work. The governments committed their support would not only extend to time and resources for the duration of the preparatory work, but also to the adoption, ratification, and uniform and strict implementation of the future instrument, in the interest of setting up a true level playing field. They also recognized that some Members would encounter difficulties at the implementation stage of the instrument.46

object to them within a certain period, unless the number of objections received exceeds a certain proportion of the parties to the convention concerned. 45 Supra note , p. . 46 Supra note , para. .

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The Shipowners’ Group, in responding to the positive acceptance by the governments of the principles they had jointly put forward with the Seafarers’ Group, noted that it was unprecedented in the history of ILO meetings. The Seafarers’ Group, in welcoming the support for the proposals, insisted on inclusion of the notions of the ‘seafarers’ bill of rights’, speedy amendment procedures, and enforceability. They did not want to see acquired rights reduced in any way, but would not oppose updating and modernization. The first meeting of the HLTWG had thus agreed on the structure, content and fundamental approach of the new convention and stressed certain key points such as the importance of having an effective enforcement mechanism as well as the underlying principle of inflexibility with respect to rights, and flexibility with respect to methods of implementation.47 A Tripartite Subgroup is Set Up The first HLTWG meeting set up a Tripartite Subgroup (STWGMLS) that was enlarged to ensure geographical distribution and representation of all major special interests in the shipping industry. The Tripartite Subgroup was composed of  members: eight government, eight shipowner, and eight seafarer members, as well as the Chairperson and Vice-Chairperson of the HLTWG and the Chairperson and Vice-Chairperson of the Subgroup and the secretaries of the Government, Seafarers’ and Shipowners’ Groups.48 Other governments could attend as observers. The mandate of the Subgroup was to consider papers prepared for its meetings and to guide the Office in the preparation of papers and draft texts for consideration by the HLTWG and to report to that Working Group. The Subgroup was provided with guidance in making these recommendations. First, the Subgroup was to give ‘proper consideration’ to the eight preferred solutions that had been agreed to on a tripartite basis (see above Figure ). In addition, it was

47

Ibid. The meeting report includes a Chairperson’s summary (p. ) that encapsulates the matters on which there was agreement at this meeting. See Chapter , pp. –, which describes in greater detail the outcomes of this meeting, and Figure  therein, which sets out the summarized points in full. 48 The members of the Subgroup were: Chairperson of the HLTWG: Mr. Schindler (France); Vice-Chairperson of the HLTWG: Mr. Nishikawa (Japan); Chairperson of the Subgroup: Ms. Solling-Olsen (Denmark); Vice-Chairperson of the Subgroup: Mr. Sommer (United States); Government members: Algeria, Brazil, China, Greece, Nigeria, Panama, Philippines, Russian Federation, Secretary: Norway; Shipowner members: Mr. Akatsuka, Mr. Cox, Mr. Koltsidopoulos, Mr. Lindemann, Mr. Lusted, Ms. Midelfart, Mr. Payne, Mr. Salinas, Secretary: Mr. Dearsley; and Seafarer members: Mr. Chande, Mr. Crumlin, Mr. Filho, Mr. Iijima, Mr. Lamug, Mr. Orrell, Mr. Tselentis, Mr. Verhoef, Secretary: Mr. Whitlow.

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to consider the essential aspects of the Decent Work Agenda, namely, human rights at work, employment and incomes, social protection and social security, and social dialogue. Further, the Subgroup was to perform the following tasks: . Preparation of preliminary draft provisions relating to: (i) enforcement mechanisms; and (ii) simplified procedures for rapid amendment of the annexes to the instrument. . For the purposes of consolidation, the identification of “families” for the Parts and the selection of instruments on which work should begin; . Development of the main elements of the instrument, including: (i) identifying where existing provisions overlap or conflict and making appropriate recommendations; and (ii) recommending the allocation of provisions as between mandatory and non-binding components; . Arrangements for gathering information and ideas for these and other questions.49

The work of the Subgroup clearly enabled more rapid progress to be made by the HLTWG. As discussed in Chapter , in connection with the details of the development of the structure of the Convention, the Subgroup held two meetings, each following HLTWG meetings, in June  and February . Three further meetings of the HLTWG took place in October , July , and January . This work culminated in the submission of a recommended draft for a consolidated maritime labour convention to the Preparatory Technical Maritime Conference (PTMC) in . This was followed by the Intersessional Meeting in April , before the final session of the ILC in February  (see also Appendix  to this book). Firmness on Rights and Flexibility on Implementation During the negotiating process for the Convention, the Seafarers’ Group wanted a ‘bill of rights’ that would secure decent living and working conditions and did not want a consolidation of instruments that would deprive them of those rights. By the fourth and final HLTWG meeting,50 the Seafarers’ Group sought an instrument that would contain meaningful minimum standards that would be implemented effectively in practice and establish a level playing field in shipping. If the new convention was to further the ILO’s Decent Work Agenda, it also needed to improve their current situation and could not merely legitimate 49

Supra note , p. . See: Final Report, HLTWG, Fourth Meeting, Nantes, – January , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf. 50

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the status quo. In return, the Seafarers’ Group were prepared to make substantial concessions and allow a considerable amount of detail to be transferred to a non-mandatory status. However, they considered several issues to be fundamental, and on these they were not prepared to negotiate. The trade-off for their flexibility was the establishment of a uniform standard that would in practice be enforced and would make a real difference to the conditions of certain disadvantaged seafarers. The Seafarers’ Group did not want to be deprived of the rights they currently enjoyed. They considered that all governments should be prepared to make some changes to their laws. The lowest common denominator and the adoption of meaningless provisions were not acceptable to them. The Shipowners’ Group were primarily concerned about ensuring widespread ratification and achieving sufficient clarity in the text. The Government Group, for its part, supported the principle of a level playing field of universally-applicable provisions with a strong system of enforcement. They recognized that this would entail some modification of national legislation. Procedural Innovations to Deal with Unresolved Issues A PTMC was convened from – September  to consider a Recommended Draft for a consolidated maritime labour convention (hereinafter ‘the Recommended Draft’). This draft text for a convention was to be submitted to the ILC for adoption in early . In order to deal with both the diversity of topics and the length of the convention, the Governing Body adopted a special two-stage procedure, intended to facilitate a thorough discussion and provide a mechanism for resolution of areas of difficulty, for the PTMC. This mechanism focused on ensuring that sufficient time was devoted to areas that either needed more discussion or had proven to be controversial in the HLTWG. These areas were indicated in the Recommended Draft by either [__] underlined square brackets or by { . . . } broken underlined soft brackets. During the second stage of the procedure, the PTMC would consider any proposals for amendment to text that was considered ‘mature’ by the HLTWG. This text was referred to as ‘unbracketed’ text. Despite their best efforts, the three Technical Committees assigned the task of reviewing the various sections of the Recommended Draft were unable to move to the second stage.51 As a result, the proposals submitted for amendments to the unbracketed text were not considered during the PTMC. 51

Record of Proceedings, Nos. (Rev.), (Rev.) and (Rev.), PTMC, Geneva, – September . Committee No.  was tasked with addressing the preamble, articles, explanatory note and Title  (including appendices); Committee No. , with Titles –; and Committee No. , with Title .



chapter two

The PTMC, using this procedure, despite some difficulty on a few points, was able to review nearly all of the more than  pages of text of the Recommended Draft,52 and agreed upon most of the text of a Draft Maritime Labour Convention.53 This was considered an important achievement and signaled the very high level of consensus that had been developed with respect to the principles, structure, and content of the proposed instrument. Despite its best efforts, however, several parts of the text remained unresolved at the end of the meeting. The PTMC decided that all such text should be removed (‘blanked out’— essentially tabula rasa) from the Draft Convention to be proposed by it and that these provisions would be reconsidered through a procedure in which all constituents would be given an opportunity to take an active part. Recognizing that these blanked-out provisions, most of which were the most controversial issues and the still unconsidered proposals for amendments, would provide significant difficulty if left to the ILC, the PTMC also adopted resolutions regarding the preparatory work to be carried out between the PTMC and the ILC.54 In the resolution concerning the unresolved issues,55 the PTMC requested the Governing Body to instruct the Office: (a) to convene a meeting, at no direct cost to the Office, which will be open to the governments of all Member States and to representatives designated by the international organizations of shipowners and seafarers, for the purpose of providing the Office with advice concerning generally acceptable wording for the previously bracketed provisions on which agreement has not been reached; (b) to provide the participants, in advance of the meeting, with information on the substance of the provisions concerned accompanied by the necessary explanations concerning the intentions and background for each such provision; (c) to communicate, for comment, all new wording on which tripartite consensus is reached, accompanied by the necessary explanations, to the governments of all Member States as well as to the international organizations of shipowners and seafarers; and (d) to include, in the report that it is to prepare for the Maritime Session of the General Conference in accordance with Article , paragraph (b), of the Standing Orders of the Conference, an account of all new wording referred to, together with a summary of the constituents’ views communicated to it.56

52

Consolidated Maritime Labour Convention, Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ standards/relm/maritime/pdf/cmlc-draft.pdf. 53 Record of Proceedings, No. , PTMC, Geneva, – September , p. /. The Convention text that was adopted is found in Record of Proceedings, No. (Rev.). 54 Ibid., pp. /–/. 55 Ibid., p. /. 56 Ibid., p. /. The requests of the PTMC were approved by the Governing Body of the ILO at its st Session in November .

the story of the maritime labour convention, 



Two papers prepared by the Office provided the background information and explanations requested under paragraph (b) of the resolution.57 They also sought to provide a basis for the discussions at the Intersessional Meeting in April  on unresolved issues and the proposals for amendments, taking account of the background, including, in particular, previous discussions. The Office suggested possible text in the case of provisions that were not believed to be controversial and were left blank as a result of lack of time for discussion. Otherwise, they simply suggested approaches that might be considered with a view to achieving consensus on a text. The April  Tripartite Intersessional Meeting was attended by  Government representatives from  countries,  Shipowners’ representatives, and  Seafarers’ representatives, as well as experts from international organizations, including the Secretariat of the Paris Memorandum of Understanding on Port State Control. The Intersessional Meeting, which operated in plenary throughout, considered the two documents prepared by the Office in response to the PTMC resolutions and, in accordance with the resolutions referred to above, identified those which had obtained tripartite consensus.58 It was also able to provide advice on generally acceptable wording for all the provisions on which the PTMC had been unable to reach agreement, apart from a few provisions (such as those relating to the requirements for entry into force), which it considered could best be left for the ILC. The Process: The Importance of an Intensive and Extensive Consultation Process Clearly the negotiating process for the MLC,  involved intensive and extensive consultations at both the formal and informal level. The formal negotiations process spanned five years: – Four week-long HLTWG meetings between December  and January 59 – Two week-long meetings of the Tripartite Subgroup between June  and February  57

Unresolved Issues for the Draft Consolidated Maritime Labour Convention, , and Compendium of Proposed Amendments to the Draft Consolidated Maritime Labour Convention, , Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, , ILO Doc. Nos. PTMC// and PTMC//, respectively. For further discussion of these issues, see Chapter  and the substantive chapters in Part II. 58 Report of the Discussion, Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/ptmc/ptmc-.pdf. The final report of the Intersessional Meeting was circulated to all ILO Members. 59 These meetings generated considerable interest from Members, with the fourth meeting in



chapter two – Three officers meeting to consider feed back between various meetings – An ad hoc tripartite expert meeting of social security experts – Various meetings between shipowners and seafarers to discuss specific issues including, importantly, the text of Title  – The PTMC in September , which generated considerable interest from Members – Written consultations – The Tripartite Intersessional Meeting on the Follow-up to the PTMC, – April  – A Drafting group meeting before and after the Intersessional Meeting – The final Conference, the th (Maritime) Session of the ILC, – February , which adopted the Convention

In addition, the formal consultation process was complemented by specific opportunities for governments and the shipowner and seafarer representatives to make written submissions on the various drafts, which were considered by the Office, under the guidance of the officers of the HLTWG. There were several officers’ meetings to resolve particular issues in the text and to develop special procedures within the ILO framework to facilitate the consideration of texts. For instance, consultations were continued and led by the Office on Article III and Article IV, paragraph , between the end of the fourth HLTWG meeting in Nantes in February  and the PTMC in September . Following these consultations, a proposal was made to the officers of the HLTWG for inclusion of an appropriate formulation in brackets in the text being submitted to the PTMC. During the PTMC, this provision helped the Chairperson of the Steering Committee and the President of the Conference to resolve the issues relating to the formulation of Article III concerning fundamental principles and rights at work. Another example relates to the compromise on the status of Part B of the Code of the MLC, . A high-level ‘Friends of the President’ group was set up during the fourth HLTWG meeting in Nantes, which resulted in a solution.60 The present wording of paragraph  of Article VI of the MLC,  was retained on the basis of the following understandings:

January  involving  participants, including  government delegations. See: first meeting: Final Report, supra note ; second meeting: Final Report, HTLWG, Geneva, – October , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/twgmls/twgmls-r.pdf; third meeting: Final Report, HTLWG, Geneva,  June– July , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf; and fourth meeting: Final Report, supra note . 60 See Chapter , Figure , which sets out the Legal Adviser’s opinion. See also Chapter , pp. .

the story of the maritime labour convention,  Question: Answer: Question: Answer: Question: Answer: Question: Answer:



Is Part B mandatory? No. Can Part B be ignored by ratifying Members? No. Is the implementation of Part B verified by port state inspectors? No. Does the ratifying Member have to follow the guidance in Part B? No, but if it does not follow the guidance it may—vis-à-vis the competent bodies of the International Labour Organization—need to justify the way in which it has implemented the corresponding mandatory provisions of the consolidated Convention.61

These understandings are reflected in the Convention as well as in paragraph  of the Explanatory Note of the MLC, . The use of innovative processes to help resolve difficult issues helped achieve consensus on all of the Convention’s provisions. These processes included the setting up of steering committees, as was done during the PTMC and the th ILC Session, and establishing the ‘Friends of the President’, as was done during the fourth HLTWG, the PTMC, and during the th ILC Session. These mechanisms helped broker agreement on the status of Part B, the inclusion of the reference to the  Declaration on Fundamental Principles and Rights at Work in the Preamble to the Convention, and the fundamental principles and rights in Article III of the MLC,  and the solution in Article II regarding the scope of the Convention. The Recommended Draft Convention reflects the conclusions that were reached throughout this consultation process, taking into account the mandate of consolidation of existing conventions and the overall objectives to be achieved in developing a new maritime labour instrument. The HLTWG was chaired throughout the entire period by Mr. Jean-Marc Schindler, Government member of France, and the Chairpersons and Spokespersons of the Shipowners’ Group, Mr. Dierk Lindemann, and the Seafarers’ Group, Mr. Brian Orrell. They served for the entire period up to and including the PTMC, the Tripartite Intersessional Meeting, and the final th ILC Session in . They formed a team who knew each other well and could count on the trust built over the years and their expertise to find win-win solutions when difficult issues were to be resolved. In addition, the contributions of the large cast of personalities involved in the negotiations must also be acknowledged. Individuals with enigmatic personalities made fiery speeches and passionate pleas and, on so many occasions with a great sense of commitment and vision and, importantly, humour, contributed to the success of these negotiations.

61

Supra note , para. .



chapter two Conclusion

The story of the MLC,  is about process as much as it is about content. It reflects a bond built between people over a period of five years. It required remaining true to the principles established in  in all respects: substantive content, structure, and approach. It was about a long-discussed and carefully balanced application of the maxim of flexibility with respect to implementation and inflexibility with respect to rights, thus helping to find solutions to what would otherwise have been insoluble problems. Throughout the five years of its story being written, shipowners and seafarers worked with governments to reconcile their differences. The result is one that demonstrates and bears witness to tripartism62 at its best. Throughout this period, the tripartite actors forged a consensus around some of the most controversial issues: a broad definition of seafarers; a broad scope of application to all ships with a limited number of exceptions; a no more favorable treatment clause to put in place a level playing field; giving teeth to an ILO convention directly by providing, for the first time, for certification of compliance with labour standards with its legal basis in an ILO convention; and a facilitated amendment procedure to keep the instrument up to date. The MLC,  reflects a unique legal regulatory framework for labour standards on the global scale for the most globalized of economic sectors—a truly global response to a global problem. It is a ‘bill of rights for seafarers’ and provides a level playing field for shipowners, as well as assisting States to comply with their international obligations. The MLC,  has become a one-stop shop for seafarers, shipowners, and governments, combining firmness on rights and flexibility in implementation. It is truly an international regulatory response of an appropriate kind and a beacon for the future. In the words of the  ILO Declaration on Social Justice for a Fair Globalization, its objective is to make globalization fair and thus work for the people most concerned: the world’s . million seafarers.

62

This term is used to describe the values and approach adopted by the ILO (see Chapter , note ). The term ‘social dialogue’ also has a particular meaning (see Chapter , note ).

chapter three THE MARITIME LABOUR CONVENTION, 2006 AS AN INSTRUMENT OF THE INTERNATIONAL LABOUR ORGANIZATION1

Introduction The Maritime Labour Convention,  is an instrument of the ILO. Significantly, it is an international labour convention and it will be examined here from that point of view.2 This chapter has as its principal purpose an examination of the links between the MLC,  and traditional ILO concepts and approaches to conventions. As a basis for this discussion, it may be useful first to see the Convention in its historical context. As a first step, the ILO’s standard-setting history is summarized. This review is necessarily selective as its focus is on developments which appear particularly relevant to the underlying approaches in the MLC,  that were agreed to in the five years following . This analysis thus focuses on approaches relating to international labour standards, rather than on the substantive content of the previous conventions and recommendations that were consolidated in the MLC, , since, to the extent that these instruments were considered sufficiently up to date, their substance is to be found in the MLC,  itself.3

1

The author, Dominick Devlin is a former Legal Adviser to the International Labour Organization. He is currently Chair of the World Intellectual Property Organization Appeal Board and has been a Special Advisor to the ILO in connection with the MLC,  since . The views in this chapter are his own and do not necessarily reflect those of the International Labour Organization. The author is indebted to his predecessor, Francis Maupain, ILO Legal Adviser from  to , for his advice in the preparation of this chapter. 2 In  Jenks commented, “International labour conventions are in some ways of a more complex character than any other instruments known to international law, . . .”. W.C. Jenks, “Are international labour conventions agreements between governments,” () XV The Canadian Bar Review – at . 3 See Chapters – for a review of substantive provisions of the MLC, . See Appendix  for the sources of many of the individual provisions.



chapter three The International Labour Organization

As the introductory overview in Chapter  explained, the ILO was founded in , after the First World War, by the Treaty of Versailles as a part of the League of Nations.4 It was created in the realization that “universal . . . peace can be established only if it is based upon social justice”.5 It has always been a tripartite organization in which decision making is carried out by the representatives of governments, workers, and employers having equal status.6 The Organization managed to survive the demise of the League of Nations at the end of the Second World War. In , its supreme organ, the ILC, renewed the aims and purposes of the Organization in the eloquent and still very relevant Declaration of Philadelphia.7 The Declaration reaffirms the fundamental principles on which the Organization is based and, in particular, that: (a) (b) (c) (d)

labour is not a commodity; freedom of expression and of association are essential to sustained progress; poverty anywhere constitutes a danger to prosperity everywhere; the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare.8

The Organization summarizes its main aims as follows: to promote rights at work, to encourage decent employment opportunities, to enhance social protection, and to strengthen dialogue in handling work-related issues.9 The ILC meets once a year except when, as discussed in more detail in Chapter , it also holds a session to adopt maritime labour conventions and recommendations. The day-to-day work is performed by the International Labour Office (the Office), under the guidance of the ILO Governing Body, which normally meets three times a year.

4

In , the ILO was the first of the intergovernmental organizations to be brought into relationship, as a specialized agency, with the United Nations in accordance with Articles  and  of the UN Charter. 5 First preambular paragraph of Part XIII of the Treaty of Versailles, L.N.T.S.  ( June ). 6 For more information see Chapter  text at note . 7 The Declaration concerning the aims and purposes of the International Labour Organisation, adopted by the th Session of the ILC, now constitutes an annex to the Constitution of the International Labour Organisation, available at http://www.ilo.org/ilolex/english/iloconst.htm. 8 Ibid., section I. 9 See Chapter  at note .

the mlc,  as an instrument of the ilo



The Historical Context of the MLC,  There is no doubt that the MLC,  is an international labour convention: it was adopted as such, by the authority competent to adopt international labour conventions—the ILC—and its adoption basically followed the procedures established for that purpose.10 Chapter  recounted the origins of the MLC,  and its conception in the years  and . It will be recalled that it was heralded by the “Geneva Accord” reached in the framework of the ILO’s Joint Maritime Commission (JMC) in , and was adopted in  with the basic features that had been agreed upon five years before. These features were, in particular, the consolidation of the previous maritime labour conventions that were sufficiently up to date; a novel structure setting out basic principles, complemented by detailed requirements; the inclusion of recommendations and other non-mandatory texts in the Convention itself; a simplified amendment procedure enabling the Convention to keep pace with a rapidly developing industry; an orientation towards the widest possible acceptability by governments, shipowners, and seafarers; and a strong enforcement component. However, in appearance,11 the MLC,  contains important differences from the previous  international labour conventions adopted between  and . The term ‘standards’ is understood by the ILO to refer to both international labour conventions and international labour recommendations. The constitutional basis for the ILO’s standard-setting action was established by Article  of Part XIII of the Treaty of Versailles, from which the present Article  of the ILO Constitution has developed.12 This provision gives the ILC the function of adopting (by a two-thirds majority) proposed conventions and recommendations, placed on its agenda by the ILO Governing Body.13 Decisions are taken

10 As is the case with other maritime labour conventions, the question of the future convention was governed by the ILC’s single discussion procedure following a preparatory technical conference (see Articles  and  of the Standing Orders of the Conference). The Preparatory Technical Maritime Conference (PTMC) was held from  to  September , and was followed by the Intersessional Meeting on the consolidated Maritime Labour Convention ( to  April ) to resolve major outstanding differences between ILO constituents. See Chapter  for the story of the MLC, . 11 See Chapter  for a more detailed consideration of the format and organizational structure of the MLC, . 12 In order to give an idea of the continuity in the ILO’s action relating to international labour standards, this chapter makes reference to the original text of the ILO Constitution in Part XIII of the Treaty of Versailles where relevant. References below to the ‘Treaty of Versailles’ relate to that original  text; references to the ‘ILO Constitution’ relate to the present text, which was applicable at the time of the preparation and adoption of the MLC, . 13 Treaty of Versailles, supra note , Art. ; ILO Constitution, supra note , Article , para. .



chapter three

by the Conference and the Governing Body in their tripartite compositions, representing governments, employers, and workers.14 The difference between conventions and recommendations is often explained by stating that the former are mandatory and the latter are not, but this is a simplification, as pointed out below. Under the ILO Constitution,15 the purpose of a recommendation is “to meet circumstances where the subject, or aspect of it, dealt with is not considered suitable or appropriate at that time for a Convention”. In practice, recommendations are often adopted at the same time as conventions, which they supplement, and sometimes as stand-alone instruments. The ILC immediately (at its first session in ) began to adopt international labour conventions and recommendations.16 International labour conventions and recommendations cover a whole range of subjects in the world of work and other social issues. The maritime sector is only one of the many areas covered, but its importance was recognized from the beginning. In the  discussions at the Versailles Peace Conference, the Commission on International Labour Legislation had adopted a resolution stating that “the very special questions concerning the minimum conditions to be accorded to seamen might be dealt with at a special meeting of the International Labour Conference devoted exclusively to the affairs of seamen”. The Second Session of the Conference in  was convened as a special Seamen’s Conference. It adopted three conventions, the Minimum Age (Sea) Convention, ; the Unemployment Indemnity (Shipwreck) Convention, ; and the Placing of Seamen Convention, , and 14 The Conference is composed of one tripartite delegation from each Member of the ILO, each delegation having two government representatives, one employer representative, and one worker representative; whereas these tripartite delegations meet as such in the plenary, much of the Conference’s work is prepared in committees or other subsidiary bodies in which the delegates or their advisers break up into their three respective groups, that is, governments, employers and workers (for work in committees, governments normally have one vote instead of the two that they have in the plenary). The Governing Body consists of members elected by the delegates in their respective groups at the Conference (apart from a certain number of government members who are designated by Member States of ‘chief industrial importance’). See Treaty of Versailles, supra note , Art. , first paragraph, and ILO Constitution, supra note , Art. , para. , for the tripartite composition of the delegations at the Conference, and Treaty of Versailles, Art. , and ILO Constitution, Art. , paras  and , for the original and present tripartite composition (respectively) of the Governing Body. Each delegate at the Conference is entitled to vote individually (Treaty of Versailles, Art. , first paragraph; ILO Constitution, Art. , para. ). 15 Supra note , Art. , para. ; there was no equivalent in the Treaty of Versailles. 16 The first convention, the Hours of Work (Industry) Convention,  (No. ), Washington,  November , available at http://www.ilo.org/ilolex/english/convdisp.htm, included the area of transport by sea and inland waterways. However, it stated that the provisions would be determined by a special conference dealing with employment at sea and on inland waterways.

the mlc,  as an instrument of the ilo



two maritime labour recommendations, including the National Seamen’s Codes Recommendation, .17 It also adopted a resolution concerning the JMC,18 which had been established in March  to assist the technical maritime service of the Office on questions of maritime labour. In this resolution, the Conference stated that “All questions on maritime affairs put forward for consideration by conferences should be previously considered by the Joint Maritime Commission of the International Labour Office”. As discussed in Chapter , from  onwards, maritime sessions of the ILC have been convened at approximately ten-year intervals, with the tenth occurring in . In view of the emphasis given in the MLC,  to enforcement and evidencing compliance (discussed below and in Chapter ), it is interesting to note that although this is a contemporary focus of action at the shipboard level, it has been a long-standing concern of the Organization. Indeed, in Article  of the very first convention that it adopted, the Hours of Work (Industry) Convention, , there is a requirement on employers to post notices and to keep records on hours of work “in order to facilitate the enforcement of the provisions of this Convention”, as well as an obligation on ratifying Members to make violations a criminal offence. This concern for enforcement at the national level of the provisions of ratified conventions was matched by a parallel concern which, at a very early date, led to the development of the ILO’s supervisory functions at the international level.19 The basis or origin of these functions is seen in Article  of the Treaty of Versailles, under which Members agree to make an annual report to the Office on the measures they have taken to give effect to the provisions of conventions to which they are a party20 and the Director (now the DirectorGeneral) is to lay a summary of these reports before the next meeting of the Conference.21 The implementation of these provisions was developed at the Conference’s eighth session,22 which adopted the Resolution concerning the methods by which the Conference can make use of the reports submitted under Article  of the Treaty of Versailles. In accordance with the resolution,23 a 17

See Chapter , p. . For more information see Chapter . 19 For a detailed discussion of the ILO’s supervisory system, see Chapter . 20 This provision is now in Article  of the ILO Constitution. 21 This provision, as later developed, is found in Article  of the ILO Constitution. 22 It may also be noted that, at its ninth session immediately following the eighth session, the Conference adopted two important maritime labour conventions: Seamen’s Articles of Agreement Convention,  (No. ), Geneva,  June , and Repatriation of Seamen Convention,  (No. ), Geneva,  June , both available at http://www.ilo.org/ilolex/english/ convdisp.htm. 23 International Labour Conference, Eighth Session (), Vol. I, Appendix VII, p. . See: Improvements in the standards-related activities of the ILO: Initial implementation of the interim 18

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standing tripartite ‘Conference Committee’ was established to consider the reports submitted under Article  of the Constitution; and a ‘Committee of Experts’, consisting of eminent experts acting in their individual capacity, was established by the Governing Body to draw up a report submitted to the Governing Body for transmission to the Conference. These two committees, which have developed respectively into the Committee on the Application of Standards and the Committee of Experts on the Application of Conventions and Recommendations, are often referred to as the ILO’s regular supervisory mechanism.24 There are, in addition, ad hoc procedures for taking action alleging violations of ratified conventions.25 This mechanism for the supervision of compliance by ILO Members with the international labour conventions that they have ratified can fairly be said to be the most effective that exists today with respect to human rights conventions that are universal in scope (as opposed, in particular, to multilateral conventions that are regional in scope). In , a question arose as to how international labour conventions could be amended, given that this possibility was not provided for in the ILO Constitution or in the conventions that had been adopted up to that time. The Conference clearly had the power to adopt a revised version of a previous convention, but the situation with respect to ILO Member States that had ratified the previous text was less clear. Could the ratification of the new revising convention have the effect of varying or even removing obligations that they had previously assumed under the revised convention? Or must they first denounce the previous convention? However, from  onwards the standard final clause of international labour conventions provided for a waiting period before they could be denounced, which might be as long as five years ( version of the clause) or ten years (from  onwards).26 Moreover, if circumstances had changed

plan of action to enhance the impact of the standards system, Governing Body, Committee on Legal Issues and International Labour Standards, st Session, Geneva, March , ILO Doc. No. GB./LILS/(Rev.). 24 The change in the names of these committees to some extent reflects the expansion of their terms of reference in  and takes account of the requirement on Members to promptly bring adopted conventions and recommendations to the attention of their competent authorities for the enactment of legislation or other action (Treaty of Versailles, supra note , Art. , para. ; ILO Constitution, supra note , Art. , paras (b) and (b)), as well as to report, when requested by the Governing Body on the position of their law and practice with respect to conventions that they have not ratified and to recommendations (ILO Constitution (amendment of ), Art. , paras (e) and (d)). See Chapter  for a detailed explanation of the ILO’s supervisory system. 25 A procedure for making ‘representations’ (Treaty of Versailles, supra note , Art. ; ILO Constitution, supra note , Art. ); and complaints, which can lead to the establishment of a Commission of Enquiry (Treaty of Versailles, Art. ; ILO Constitution, Art. ). 26 The problem was unlikely to arise in the case of pre- conventions as they could be

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since the adoption of the previous text, and the Conference considered that its provisions were no longer conducive to achieving social progress, could the ILC decide that the old text should no longer be open to ratification when the new revised convention entered into force? These questions called for a discussion of the nature of international labour conventions. It has always been agreed that international labour conventions have a number of specificities27—relating in particular to the way that they are drawn up and adopted, their constitutional basis and their tripartite origin— which distinguish them from ‘normal’ multilateral treaties drawn up at diplomatic conferences. According to one view at the time, international labour conventions were legislative instruments, adopted by the ILC, and requiring ratification only as a ‘conditional act’ to acquire the force of national law.28 If international labour conventions were seen as legislative instruments, rather than contracts between States, it could be concluded that the ILC, which had proposed the convention to ILO Members in the first place, could at least give them the option—through ratification of the new convention—of replacing their obligations under the previous revised convention by their obligations under the new one. However, the view that prevailed in the ILC (at its twelfth session) reflected a balanced opinion that had been given by the ILO Legal Adviser, Mr. J. Morellet: While it seems legitimate to consider the international conventions as conventions of a particular legal nature having a quasi-legislative element, there can, it seems, be no doubt that they are conventions in that—through the ratifications that they receive—they become real contracts between States.29

Seen as contracts between the ILO Members that had ratified them, the conventions could not be unilaterally modified by the Organization or by individual ratifying Members. As a consequence, a provision has been included in the final clauses of all international labour conventions adopted since , with one exception, providing that if the convention concerned is revised and unless the revising convention provides otherwise, ratification of the new convention

denounced at any time once five or (more frequently) ten years had elapsed from their initial entry into force. 27 See Jenks, supra note . 28 Referred to in Nicolas Valticos, Droit international du travail, nd edition (Paris: Dalloz, ), p. . 29 Quoted (in the original French) by Francis Maupain in “Une révolution tranquille dans le droit des traités: l’abrogation des Conventions internationales du travail obsolètes”, Chronique des institutions spécialisées, Annuaire français de droit international, XLII (Paris: CNRS Editions, ). This article related to the then future amendment of the ILO Constitution in  so as to permit the abrogation of international labour conventions by the ILC following the same procedure as that required for their adoption.

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will be treated as ipso jure denunciation of the old convention when the ratification takes effect, and any new ratification of the old convention will no longer be possible after the new convention has come into force. The exception just referred to is the MLC, ; however, as will be explained below,30 the exception essentially relates to form since the Convention’s provision on its ‘amendment’ rather than its ‘revision’ still follows the basic concepts agreed to in . The second Maritime Session of the ILC, in , adopted several conventions and recommendations, including the Officers’ Competency Certificates Convention,  (No. ); the Shipowners’ Liability (Sick and Injured Seamen) Convention,  (No. ); the Hours of Work and Manning (Sea) Convention,  (No. ); and the Seamen’s Welfare in Ports Recommendation,  (R). The Hours of Work and Manning (Sea) Convention,  is of interest in that it is the first convention to depart from what was until then a specificity of international labour conventions, namely the requirement for the deposit of only two ratifications for entry into force of a convention.31 Ten years later it became more usual for maritime labour conventions to contain a higher entry into force requirement covering both numbers of ratifications and shipping tonnage. But some maritime conventions still provided for an entry into force requirement of two ratifications, as has remained the general practice for international labour conventions on non-maritime subjects. At the following Maritime Session of the ILC in , the conventions adopted included several relating to seafarers’ accommodation and food and catering as well as the Certification of Able Seamen Convention,  (No. ). The next Maritime Session in  adopted the Seafarers’ Identity Documents Convention,  (No. ). It is of interest from a conceptual point of view since it contains a new element, which is also present in the MLC, , although Convention No.  was not one of the instruments consolidated by the MLC, . This new element could be described as interaction creating interdependent rights and obligations between the ratifying States themselves. Up to then, although in law it had been agreed that international labour conventions, when ratified, became “real contracts between States”,32 they appear in practice to have been implemented more as compacts between the ratifying Member State and the Organization. Under these compacts, the ILO provides a means—through the adoption of conventions and its supervisory mechanism—for each Member to demonstrate its commitment to social 30

See infra, pp. –. See also Chapter  in this volume, at pp. –. Article , paragraph , required five ratifications by Members with a mercantile marine tonnage of not less than one million tons. 32 See the Legal Adviser’s opinion as quoted supra note . 31

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justice by ratifying and properly implementing the conventions. If a Member fails to act in accordance with this compact, this will not have any effect on the rights and obligations of other ratifying Members in their implementation of the convention concerned. These Members have a general interest in ensuring proper implementation by all ratifying Members, as well as the right under Article  of the ILO Constitution to lodge a complaint to the Organization alleging that another ratifying Member is not observing its obligations under the convention (although complaints under Article  are rarely initiated by ratifying Members). Under Convention No. , on the other hand, the obligations of each ratifying Member depend, in one important respect, on the acts of other ratifying Members, and the failure by one ratifying Member to comply with the Convention can directly affect other ratifying Members. Specifically, each Member ratifying this convention has the obligation or the right to issue seafarers’ identity documents (SIDs) to seafarers who are its nationals or have some other link with it as specified by the Convention;33 the ratifying Member also has the corresponding obligation—in certain circumstances and subject to certain exceptions—to facilitate the entry on its territory for specified purposes of seafarers holding a SID issued by other ratifying Members. The existence of the latter obligation thus depends upon whether the issuing Member has ratified the Convention and whether the SID was issued in accordance with the requirements of the Convention. The failure to meet that obligation raises questions of accountability not only as far as the Organization and its supervisory mechanism are concerned, but also with respect to other ratifying Members in their capacity of contractual partners.34 In  the First United Nations Conference on the Law of the Sea adopted, inter alia, the Convention on the High Seas affirming the duty of the flag State to effectively exercise its jurisdiction and control in administrative, technical and

33 That is, serving on ship registered in the Member State or a seafarer registered at an employment office in the Member’s territory (Art. , para. ). 34 It is true that, in several conventions, interaction with other ratifying Members is provided for by a requirement to cooperate with each other in the implementation of the convention (e.g., inter alia, the Social Policy (Basic Aims and Standards) Convention, , (No. ), Geneva,  June , Art. ; Migrant Workers (Supplementary Provisions) Convention,  (No. ), Geneva,  June , Art.  and others; Seafarers’ Welfare Convention,  (No. ), Geneva,  October , Art. ; Health Protection and Medical Care (Seafarers) Convention,  (No. ), Geneva,  October , Art. ; Social Security (Seafarers) Convention (Revised),  (No. ), Geneva,  October , Art. ; and Worst Forms of Child Labour Convention, , (No. ), Geneva,  June , Art. ; all available at http://www.ilo.org/ilolex/english/conv disp.htm). However, these obligations do not appear to create rights or obligations of a kind that one Member would seek to enforce against another.

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social matters over ships flying its flag (Article , paragraph ).35 Referring to that provision, the ILO’s Social Conditions and Safety (Seafarers) Recommendation,  (R) urged ILO Members to accept the full obligations implied by registration and to exercise effective jurisdiction and control for the purpose of the safety and welfare of seafarers in their sea-going merchant ships through the adoption of regulations and a proper ship-inspection service. In addition, the Seafarers’ Engagement (Foreign Vessels) Recommendation,  (R) recommended that each ILO Member should do everything in its power to discourage seafarers within its territory from joining or agreeing to join vessels registered in a foreign country unless the conditions under which such seafarers were to be engaged were generally equivalent to those applicable under collective agreements and accepted social standards. These two recommendations were later to be taken up in the Merchant Shipping (Minimum Standards) Convention,  (No. ), referred to below. The four Maritime Sessions preceding that for the MLC, , were held in , , , and . While very important conventions were adopted at these sessions (particularly those of  and ) as far as substantive content is concerned, it was the  session that adopted the convention that can be described as the stepping-stone to the MLC, , namely Convention No. . There are at least six aspects of this convention that are particularly relevant to approaches adopted for the MLC, . First, Convention No.  brings within the ILO’s supervisory procedures the duty of flag States to effectively exercise their jurisdiction and control over ships flying their flag.36 Second, the Convention adopts a holistic approach in that this jurisdiction is to be exercised in three broad areas, safety, social security, and working and living conditions, covered by the conventions or provisions listed in its Appendix.37 Third, the means of exercising this jurisdiction and control is not necessarily through laws and regulations, but may, in the case of working and living conditions, be through collective agreements or court decisions. Fourth, to the extent that a ratifying Member has not ratified the conventions listed in the Appendix, its obligation is limited to satisfying itself that its law and regulations are substantially equivalent. Fifth, the flag State must verify, by inspection or other 35

Convention on the High Seas,  April ,  U.N.T.S. , available at http://untreaty .un.org/ilc/texts/instruments/english/conventions/___high_seas.pdf. This duty is now found in Article , paragraph , of the United Nations Convention on the Law of the Sea,  December ,  U.N.T.S.  (LOSC): available at http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm. See also the discussion of both Chapter  at pp. –  and Chapter  at pp. –. 36 LOSC, ibid., Art. , para. . 37 This list is expanded in the Protocol of  to the Merchant Shipping (Minimum Standards) Convention,  (P), Geneva,  October , available at http://www.ilo.org/ilolex/ english/convdisp.htm.

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appropriate means, compliance with the requirements of the listed conventions. In this connection, it will be noted that  years earlier the ILC had adopted the Labour Inspection Convention,  (No. )38 and was to adopt  years later the Labour Inspection (Seafarers) Convention,  (No. ). A sixth aspect of Convention No.  is of particular relevance to the MLC, . This is related to the role of the ratifying Members with respect to conditions of work that are primarily covered by the jurisdiction of another State in contexts in which there was a jurisdictional link with the ratifying Member. There are two contexts: nationality, in the case of a requirement to discourage national seafarers from working on foreign substandard ships (Article ); and the temporary presence within the ratifying Member’s territorial jurisdiction, in the case of the inspection of foreign ships for conformity with the standards referred to in the Convention (Article ). Convention No.  seems to be the first international labour convention envisaging action with a global effect, rather than essentially applying at the national level. It provides for a ratifying Member to take unilateral action to eliminate obstacles to social progress which fall within the concurrent but primary jurisdiction of foreign countries. This last-mentioned step taken by Convention No. , relating to an industry that has always been globalized, is obviously less easy to achieve in the case of non-maritime labour conventions, or is no doubt impossible in many cases due to lack of jurisdiction on the part of ratifying countries. But with increasing globalization in non-maritime areas, other conventions could follow the same direction. For example, paragraph (d) of the Worst Forms of Child Labour Recommendation,  (R) provides that measures aimed at the prohibition and elimination of the worst forms of child labour might include the prosecution in the ratifying country of a Member’s nationals who commit offences under its national provisions even when these offences are committed in another country. Convention No.  was, however, cautiously drafted as far as this unilateral action is concerned. The Convention provides for the inspection of foreign ships as a right rather than an obligation (using the auxiliary ‘may’, as opposed to ‘shall’) and limits the “measures necessary to rectify conditions on board”, which may be taken with respect to the foreign ship, to conditions “which are clearly hazardous to safety or health”.39

38

The system of labour inspection under this convention applied to all industrial workplaces in respect of which legal provisions relating to conditions of work and the protection of workers while engaged in their work were enforceable by labour inspectors; transport undertakings could be exempted from the application of the Convention (Art. ). 39 Merchant Shipping (Minimum Standards) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. .

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Convention No. , by implication, recognizes the right40 of ratifying countries to inspect foreign ships for the purpose of verifying that the ships conform to the standards referred to in the Convention even where a country whose flag is flown by those ships has not ratified the Convention and is, therefore, under no obligation to ensure that its ships meet those standards. The freedom of each ILO Member to decide which international labour conventions it will ratify is an important principle that was knowingly accepted by the drafters of the ILO Constitution in .41 This potential lack of balance between the obligations of ILO Members has been the subject of criticism and discussion, especially since the dismantlement of the former Soviet Union and the discussions on globalization, particularly in relation to the World Trade Organization. In the early s, there was a burning debate in the ILO on what was called the ‘social clause’ which would link trade advantages to the observance of key labour standards. In , it was decided not to pursue the idea of such a link. In March , the World Summit for Social Development in Copenhagen identified as ‘core labour standards’ the principles set forth in the ILO’s seven ‘fundamental conventions’ that were later listed in the second preambular paragraph of the MLC,  (with the addition of the eighth fundamental convention (No. ) adopted in ). In , the report of the Director-General that is submitted for discussion in plenary by the annual session of the ILC was entitled The ILO, Standard Setting and Globalization.42 It discussed, in detail, many concerns relating to ILO standard setting, which corresponded to those that later prompted the Geneva Accord, and also suggested solutions. One of the questions addressed in the report was whether to accumulate standards over several instruments or to consolidate them. Taking as an example the tendency to amass detailed regulations in the area of occupational health and safety, the report suggested an approach that might avoid “being caught up in a constant struggle to try and identify new hazards as they emerge and yet being often unable to do more than have provisions of a very general nature”.43 It continued—somewhat prophetically as far as the future MLC,  is concerned—by noting that “Another more traditional approach would be to incorporate these more detailed regulations in an annex 40 See the discussion of port State control in Chapter  at note  and Chapter  in connection with Regulation . of the MLC, . 41 See Francis Maupain, “La protection internationale des travailleurs et la libéralisation du commerce mondial: un lien ou un frein?”, (Janvier–Février )  Revue Générale de Droit International Public –. 42 The ILO, Standard Setting and Globalization, Report of the Director-General, ILC, th Session, Geneva, , available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/dgrep.htm. 43 Ibid., at Section II(A), “A More Targeted Choice of Subjects,” subsection (c).

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to the instrument which could be revised and updated in accordance with a different and more simplified procedure than that applying to the Convention itself ”.44 In , the ILC adopted the ILO Declaration on Fundamental Principles and Rights at Work,45 recalled in the fourth preambular paragraph of the MLC, . As a declaration, this text does not have binding force. However, it necessarily carries great weight in that it formally notes the understanding of the supreme organ of the ILO that the principles and rights expressed and developed in the eight fundamental conventions are already set out in the Constitution and in the  Declaration of Philadelphia referred to earlier, which is annexed to the ILO Constitution. The  Declaration then goes on to declare that, as a consequence (emphasis added), . . . all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions . . ..46

This conclusion that ILO Members are bound, by virtue of their membership in the Organization, by principles concerning certain fundamental rights (but not by the text of the related conventions if they had not ratified them) had in fact already been made in  with respect to the right to freedom of association, when the ILO set up a Committee on Freedom of Association for the purpose of examining complaints about violations of that right, whether or not the country concerned had ratified the relevant conventions. However, the  Declaration was adopted on the clear understanding that its objective was to be “of a strictly promotional nature”47 and it has accordingly been treated as a promotional instrument.48 44

Ibid. Adopted by the ILC, th Session, Geneva,  June  (Annex revised  June ), available at http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang-en/index.htm. 46 These fundamental rights are (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. 47 See supra, note , Section I, “Overall Purpose,” para.  in the “Follow-up to the Declaration” that is annexed to it. 48 Discussions on the social dimension of globalization continued. In , the ILO set up a World Commission on the Social Dimension of Globalization, which submitted its report in , entitled A Fair Globalization: Creating Opportunities for All. In , the ILC adopted the comprehensive ILO Declaration on Social Justice for a Fair Globalization. This related to the implementation of the Organization’s four strategic objectives for decent work, described as “inseparable, interrelated and mutually supportive”, comprising (i) promoting employment by creating a sustainable institutional and economic environment; (ii) developing and enhancing 45

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The action that was most relevant to the future MLC, , and which was continuing up to and beyond the  Geneva Accord, related to keeping the corpus of international labour standards up to date. In June , an amendment to the ILO Constitution was adopted that empowers the ILC to terminate the legal effects for the Organization of international labour conventions which it judges obsolete or without purpose in respect of the objectives of the Organization.49 In accordance with Article  of the Constitution, this amendment was submitted to ILO Members for ratification or acceptance and is not yet in force. The other action was the establishment by the Governing Body in  of a Working Party on Policy regarding the Revision of Standards, which became known as the ‘Cartier Working Party’. The Working Party reviewed the current international labour conventions and recommendations from the point of view of such factors as the level of and prospects for ratification, any denunciations of conventions, the situation as regards the supervisory procedures as well as the need for substantive revision,50 and made recommendations with respect to the instruments concerned.51 The Special Features of the MLC,  With the notable exception of the Merchant Shipping (Minimum Standards) Convention,  (No. ), it would be difficult to see any of the developments outlined above as leading up to the MLC, . As explained elsewhere in this book,52 the MLC,  has benefited from a cross-fertilization of approaches and format and concepts, many of them inspired by conventions adopted under the auspices of the International Maritime Organization (IMO). The drafters of the MLC,  used some of the outcomes of previous developments to build the new convention, in particular the conclusions of the Cartier Working Party. However, the MLC,  was mainly driven by need—the need to respond to the demanding specifications53 in the  Geneva Accord. One of those needs was the achievement of widespread ratification, on the scale of the major measures of social protection—social security and labour protection; (iii) promoting social dialogue and tripartism; and (iv) respecting, promoting and realizing the fundamental principles and rights at work. 49 See footnote  above. 50 See: Conventions in Need of Revision (Second Stage), Governing Body, Committee on Legal Issues and International Labour Standards, st Session, Geneva, November , ILO Doc. No. GB./LILS/WP/PRS/. 51 Except for one convention and its associated recommendation, on which it was unable to reach agreement. 52 See Chapters ,  and  in particular. 53 See Chapter , Figure , p. , on the eight preferred solutions of shipowners and seafarers.

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IMO conventions. In this connection, as will be seen below, a certain reliance was placed on the various ‘flexibility devices’ in previous international labour conventions; but these were not always appropriate54 and were also insufficient. Given that many previous maritime labour conventions, even those relating to a single subject, had not been widely ratified, how could one expect such an objective to be achieved in the case of the MLC, , especially having regard to its comprehensive subject matter? Innovative solutions were clearly required. Not all the special features of the MLC,  consist of innovative solutions. Perhaps the most important feature relates to the achievement of an objective common to all previous maritime labour conventions, namely the right of seafarers to decent working and living conditions. The innovation lies in the whole focus of the Convention on those rights. Seafarers’ Rights and Tripartism The MLC,  is often designated as a ‘seafarers’ bill of rights’.55 The Preamble to the Convention and its Articles III and IV set the requirements of the Convention within a human rights framework, and the various obligations throughout the text are expressed in the form of seafarers’ rights. Similarly, the MLC,  contains a strong tripartite element. The ILO is not only a tripartite organization, as explained earlier, but the tripartite action in national decisionmaking is the subject of requirements in most, if not all, international labour conventions.56 The requirement for the consultation of seafarers’ and shipowners’ organizations before decisions are taken or in the decision-making process is to be found in the MLC,  wherever provided for in the conventions that it consolidates and also in other contexts.57 In addition, the Convention contains an innovative provision, Article VII,58 to cover the case of ratifying countries in which shipowners’ or seafarers’ organizations do not yet exist.

54 As will be seen below, the ‘pick-and-choose’ approach as between various parts of a convention was not considered appropriate. 55 See also the discussion in Chapter , pp. –. 56 It is the subject of the whole convention in the case of one very important instrument, the Tripartite Consultation (International Labour Standards) Convention,  (No. ), Geneva,  June , available at http://www.ilo.org/ilolex/english/convdisp.htm. See also Chapter , note , regarding social dialogue. 57 In Article II, paragraph , for example. 58 See the discussion in Chapter .

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chapter three Consolidated Convention Covering Both Substantive Requirements and Enforcement

The MLC,  is not in fact the first international labour convention to carry both substantive requirements relating to the working and living conditions of a category of workers and the requirements for inspection and enforcement of compliance. Though far less developed than the MLC, , the first such self-contained convention was the Plantations Convention,  (No. ). Compliance and Enforcement As explained earlier, since its first convention, the ILO has always emphasized not only establishing the requirements to be complied with, but also taking specific measures “in order to facilitate the enforcement of the provisions of this Convention”.59 However, with the MLC, , compliance and enforcement— in line with the Geneva Accord—has become a central component of the whole Convention in its Title . The details of the provisions in Title  are explored in Chapter , however it is useful for the purpose of the analysis in the present chapter to note several novel elements in this Title, at least as compared with previous ILO conventions. First, there are its special provisions on the use of ‘recognized organizations’ (ROs) for inspection and certification, based on IMO provisions. Second, it extends the requirement for flag State inspections under the Labour Inspection (Seafarers) Convention,  (No. ) to all ships covered by the MLC, , whatever their tonnage,60 and establishes a system of certification covering specified ships (inspired by similar systems under IMO conventions), including a document of maritime labour compliance (Declaration of Maritime Labour Compliance, DMLC Part II), giving shipowners responsibility for ensuring ongoing compliance on their ships with the Convention’s requirements. Third, it considerably amplifies the port State control provisions in Convention No. . Fourth, special provisions in Title  highlight the importance that the Convention places on other regional port State control arrangements, and the extension of the powers of detention under port State control (as well as those of flag State inspectors61 under Convention No. ) to cover serious or repeated breaches of requirements (including seafarers’

59

Hours of Work (Industry) Convention,  (No. ), Washington,  November , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. . 60 Labour Inspection (Seafarers) Convention,  (No. ), Geneva,  October , does not apply to ships less than  gross tonnage (Art. , para. ); available at http://www.ilo.org/ ilolex/english/convdisp.htm. 61 Standard A.., para. (c).

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rights),62 in addition to threats to safety or health. Title  also transforms the reference to complaints in Conventions Nos  and  into detailed provisions strengthening the role of complaints in the enforcement process. Finally, Title  places each Member’s implementation of the enforcement and compliance provisions squarely in the context of the ILO’s supervisory system—not just with respect to labour inspections on board63 but also with respect to the enforcement of the Convention’s provisions relating to recruitment and placement services operating in the Member’s territory.64 Specifically, Members are required to establish effective inspection and monitoring systems in these areas, and to include information on those systems, including the methods used for assessing their effectiveness, in their reports to the ILO supervisory system under Article  of the Constitution. The impact of the relevant provisions of the future MLC,  was described as follows in the report prepared by the Office with respect to the draft Convention submitted to the th ILC in : The consolidated maritime labour Convention will have a strong enforcement component. The International Labour Organization’s greatest strength in the context of the implementation of international labour Conventions is undoubtedly its supervisory system, carrying the necessary institutional guarantees and authority and an important tripartite component. With the Convention, there will be a continuity of “compliance awareness” at every stage, from the national systems of protection up to the international system. It will start with the individual seafarers, who, under the Convention, will have to be properly informed of their rights and of the remedies available in case of alleged non-compliance with the requirements of the Convention and whose right to make complaints, both on board ship and ashore, will be recognized in the Convention. It will continue with the shipowners, who will be required to develop and carry out plans for ensuring that the applicable national laws, regulations or other measures to implement the Convention are actually being complied with. The masters of the ships concerned will then be responsible for carrying out the shipowners’ stated plans, and for keeping proper records to evidence implementation of the requirements of the Convention. As part of its updated responsibilities for the inspection of ships, the flag State will review the shipowners’ plans and verify and certify that they are actually in place and being implemented. They will also have to carry out periodic quality assessments of the effectiveness of their national systems of compliance, and their reports to the ILO under Article  of the Constitution will need to provide information on their inspection and certification systems, including on their methods of quality assessment. This general inspection system in the flag State (which is founded on ILO Convention No. ) will be complemented by procedures to be followed in countries that are also or even primarily the source of the world’s supply of seafarers; these countries will similarly be reporting under 62 63 64

Standard A.., para. . Regulation .., para. , and Regulation .., para. . Regulation ., para. .

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chapter three Article  of the ILO Constitution. The system will, moreover, be reinforced by voluntary measures for inspections in foreign ports (port state control). An international information base will be developed, benefiting from the reports exchanged between port States or transmitted by them to the ILO as well as the documentation relating to complaints made by seafarers and other interested parties, under the Convention’s procedures.65

Certification The certification of ships for compliance with the requirements of the MLC,  is one of the most important innovations as far as traditional ILO conventions are concerned. As will be explained in Chapter , it is both an obligation and a benefit for the ships that are required to carry certification, the benefit being in the prima facie evidence of compliance that certification provides in the context of port State control. The concept of certification by a government of ships flying its flag is certainly in line with the approach of international labour standards, in that it reflects at the national level the action of the ILO’s international supervisory bodies in identifying the progress or shortcomings of Members with respect to their implementation of the conventions that they have ratified. In one respect however, the provisions on certification constitute a departure from the traditional international labour convention since they give rise to rights and obligations as between the ratifying Members themselves, rather than only between each ratifying Member and the Organization. As has been noted above in the case of Convention No. , the same kind of interaction between ratifying Members also arises from the two conventions on seafarers’ identity documents, No.  of , and the revising convention, No.  of ; they provide for seafarers’ identity documents issued by each Member which other ratifying Members are required to recognize. Employers’ Rights Although international labour conventions promote social progress in general and relate to ‘rights at work’ (to use the terminology of the  Declaration) and not just to workers’ rights, the MLC, , is one of the rare conventions (like those on freedom of association) that establish important rights for employers which can be enforced against ratifying Members. In particular, under the MLC, , shipowners have the right to request a maritime labour

65 Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/rep-i-a.pdf, para. .

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certificate (for ships not subject to certification),66 the right to decide, subject to the Administration’s approval, how they are going to ensure ongoing compliance on their ships (through the DMLC Part II),67 and, subject to prescribed exceptions, the right for their ships to be absolved from a more detailed inspection if the certificate and declaration are in order.68 Universality of Application and the Level Playing Field Many of the distinguishing features of the MLC,  come from the need for equality among seafarers around the world and also among shipowners, in a context where the previous maritime labour conventions have been unevenly ratified and those that have been ratified have been unevenly applied. As indicated earlier, the traditional international labour conventions appear in practice to be compacts between each Member ratifying them and the ILO, rather than real contracts between ILO Member States. Moreover, they were compacts that could take effect under international law for an ILO Member even when only one other ILO Member was prepared to assume the same obligations, although this situation began to change in the case of maritime labour conventions in .69 In addition, international cooperation in the implementation of conventions had traditionally been a matter to be engaged in by each ratifying Member essentially for the benefit of its own nationals or residents. Other ILO Members had an interest in effective implementation and enforcement by the ratifying Member, especially if they had ratified the same convention. However, the action that they may have taken in this respect would have been in their capacity as Members of the Organization and in accordance with the Organization’s procedures rather than in implementation of the convention concerned. In the case of the MLC,  as a whole, the cooperation in “effective implementation and enforcement” that is required of each ratifying Member by Article I, paragraph 70 is not restricted to the effective implementation and enforcement in the cooperating countries only, but also covers action to promote implementation and enforcement in other countries. Port State control under Regulation .. comes immediately to mind as an example of cooperation to ensure implementation on ships flying the flag of other ratifying Members and even of States that have not ratified the Convention or accepted the ILO Constitution. There are other examples: in particular, shipowners may 66

Regulation .., para. . Regulation .., para. (b). 68 Regulations .., para. , and .., para. , and Standard A.., para. . The issue of a ‘walk about’ under port State control provisions is discussed in Chapter . 69 Supra the paragraph marked by note  above. 70 See Chapter . 67

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find themselves penalized for recruiting seafarers from agencies in a nonratifying country that do not meet the standards of the MLC, 71 even where the seafarers recruited are fully qualified to perform their duties on the ship. Thus, although the decision of an ILO Member on whether or not to ratify an international labour convention is a voluntary one, if its ships call in the port of a ratifying Member to take on a few passengers or cargo (for example) and then depart, the ships could be held in that port for the purposes of inspection for compliance with the MLC,  and perhaps detained there for several days in the case of a serious breach of the Convention. Such a situation was also possible under Convention No. . But, as noted above, the MLC,  provision72 also covers a serious or repeated breach of the Convention’s requirements unrelated to safety or health aspects. In addition, detention has now become mandatory in the case of such serious breaches or repeated non-compliance. The provisions on port State control appear as a response not only to the need for universality in the application of labour rights, but also to a more commercial need. The MLC,  expressly establishes the principle, in Article V, paragraph ,73 that the ships of non-ratifying countries shall not receive more favourable treatment than those of ratifying countries: in other words, the Convention responds to the need to establish a level playing field for shipowners. Though worded differently, this response was anticipated in the Preamble to the ILO Constitution. It notes that “the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries”.74 However, in the MLC, , this constitutional consideration has been developed into an obligation on the ‘other nations’ to do what they can to remove that obstacle. Firmness and Flexibility As indicated above, one of the great challenges facing the drafters of the MLC,  was how to introduce sufficient flexibility to achieve the unprecedented objective of widespread ratification without compromising the objectives of comprehensive consolidation, universality of protection and enforcement, and a level playing field. The basic solution to this challenge was formulated in the objective of firmness and flexibility, which was formulated at the first tripartite meeting on the future convention in  as follows:

71 72 73 74

Under Regulation ., para. , and Standard A., para. . Standard A.., para. . See Chapter . Third preambular paragraph, which has remained unchanged since the Treaty of Versailles.

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the instrument should be: – inflexible with respect to rights; – flexible with respect to implementation.75

What are known as ‘flexibility devices’ have been included in many international labour conventions on the basis of a provision in the ILO Constitution (Article , paragraph 76). This provision requires that international labour standards pay due regard to “those countries in which climatic conditions, the imperfect development of industrial organization, or other special circumstances make the industrial conditions substantially different”. A list of examples of the kinds of devices is given in the ILO’s Handbook of Procedures Relating to International Labour Conventions and Recommendations.77 Many, but not all, of these devices can be recognized in the MLC, , normally in a way which clearly shows the blend of firmness in the flexibility. In general, the flexibility in the MLC,  covers all countries, without regard to any special local conditions, but relates to details, that is, to the way in which the basic rights and principles are to be delivered, but not to those rights and principles themselves. One traditional flexibility device was extensively discussed but was rejected as an overall solution: with this device, ratifying Members are given a choice between different parts of a convention.78 Or they are allowed, at the time of ratification, to accept a minimum number of parts. This is the case, for example, with the Plantations Convention (Article ): if a Member decides to exclude certain parts, it must attach a declaration to that effect to its instrument of ratification and report (in the framework of Article  of the ILO Constitution) on progress towards the application of the excluded parts, which may be the subject of further declarations by the Member so as to include those parts within the scope of the original ratification. This flexibility device is however used—in a modified form—in one of the few provisions in the MLC,  that is clearly designed for Members with ‘imperfect development of industrial organization, or other special circumstances’, namely the provision on social security protection. For example, the Social Security (Seafarers) Convention (Revised),  (No. ) and Regulation 75

Final Report, HLTWG, First Session, Geneva, – December , ILO Doc. No. TWGMLS /, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-fr.pdf, at Chairperson’s Summary, Appendix. See also Chapter , Figure . 76 Treaty of Versailles, supra note , Art. , third paragraph. 77 ILO, Handbook of Procedures Relating to International Labour Conventions and Recommendations (Geneva: International Labour Office, ), available at http://training.itcilo.org/ils/ materials/public/english/-Handbook-ENGLISH.pdf, p. . 78 For example, under the Social Security (Seafarers) Convention (Revised),  (No. ), supra note , Members may accept either the ‘minimum standards’ or the ‘superior standards’ laid down in the Convention.

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. and the related Standard in the MLC,  require the acceptance of least three of the nine branches of social security protection. But, subject to this and other minimum requirements set out in the Convention, a ratifying Member is, in simplified terms, only required to do what its national circumstances— reinforced by any available international cooperation—allow it to do. This great flexibility for countries that are at an early stage in the area of social security is blended with greater firmness whereby each Member is placed under an obligation, right from the time of ratification, “to take steps, according to its national circumstances . . . to achieve progressively comprehensive social security protection for seafarers”79 (in all nine branches). The MLC,  thus goes further than previous conventions in that the obligation is not simply to report to the ILO on progress, but also to make progress when national circumstances permit. Such an obligation probably only makes sense in the ILO context because of its supervisory procedures.80 For example, a Member might be required to provide justification to the supervisory bodies where its progress was slower than that in other countries which appeared to have similar national circumstances. Another flexibility device, which seems mainly to be in favour of countries with ‘imperfect development of industrial organization, or other special circumstances’, is found in paragraph  of Article II.81 The blend of firmness can be seen in the temporary character of the dispensation in the sense that it relates to cases where the application of provisions would not be reasonable or practicable ‘at the present time’ and, like all other flexibility devices, it relates only to the provisions in the Code, as opposed to those of the articles and regulations. In addition, this flexibility is restricted to ships that do not go on international voyages. What could be described as the main, systemic flexibility in the MLC,  lies in the relationship between the Parts of the Code to the MLC, , with the mandatory link in Article VI, paragraph , requiring “due consideration” to be given to the non-mandatory guidance in one part, Part B, in implementing the mandatory responsibilities in Part A.82 This kind of flexibility is seen in other international labour conventions. A good example is the Discrimination (Employment and Occupation) Convention,  (No. ), which requires each ratifying Member to “declare and pursue a national policy designed to promote . . . equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in 79 80 81 82

Regulation ., para. . See Chapter  for more information. See Chapter . See Chapter  in connection with Article II. This is extensively discussed in Chapters  and .

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respect thereof ” (Article ). Guidance as to the possible content of the national policies and ways of ensuring their implementation is, however, left to the Discrimination (Employment and Occupation) Recommendation,  (R). In a sense ILO Members must give what could be described as ‘due consideration’ to international labour recommendations (regardless of whether they ratify a related convention) since they are required to “bring the recommendation or draft convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action”.83 The implementation of a Member’s responsibilities under its mandatory obligations, referred to in Article VI, paragraph , of the MLC,  must also be achieved through legislation or other action.84 But there are good reasons why the MLC,  departed from the Constitution-based practice of placing the non-mandatory guidance in a separate recommendation. First, as pointed out in paragraph  of the Explanatory Note to the Regulations and Code of the Maritime Labour Convention, ,85 the general wording of many provisions in Part A of the Code gives little idea as to how they are to be implemented in practice unless they are read jointly with the related guidance in Part B. In addition, by being placed inside the Convention itself, the obligation to give due consideration to the non-mandatory guidance places it under the supervisory procedures relating to ratified conventions and makes it clear that the provision concerned—in the form recommended in Part B or in a different form decided by the ratifying Member—will be part of the national arrangements implementing the mandatory requirements of the Convention.86 This stronger approach with respect to guidelines is particularly justified when one considers that many of the provisions in Part B of the Code relate to the substance of (mandatory) international labour conventions. The other systemic flexibility device—substantial equivalence under paragraph  of Article VI—is, of course, inspired by Convention No. .87 The elements of firmness in the MLC, , however, are the definition of the concept in paragraph  of that Article, and the fact that a Member making use of the flexibility device may need to justify that it “is not in a position to implement the rights and principles in the manner set out in Part A of the Code”. 83

Emphasis added. Treaty of Versailles, supra note , Art. , fifth paragraph; ILO Constitution, supra note , Art. , para. (b). 84 MLC, , Article IV, paragraph , which reads: “. . . through national laws or regulations, through applicable collective bargaining agreements or through other measures or in practice”. See also the discussion in Chapter . 85 See Chapter , pp. –. 86 See paragraph  of the Explanatory Note. 87 Art. (a). This device is also used, but only with respect to one provision, in the Seafarers’ Identity Documents Convention (Revised),  (No. ), Geneva,  June , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. , para. .

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Finally, mention could be made of the flexibility given with respect to the formulation of the national provisions implementing the MLC, , as opposed to their content. This relates to the fact that implementation does not necessarily have to be achieved through national laws and regulations (except where such means is expressly specified in the Convention). This is also the case with other international labour conventions. What is new, however, is the general statement to this effect in Article IV, paragraph , of the MLC, , which encourages, in particular, implementation through collective bargaining agreements. Amendment of the Convention The two Articles (XIV and XV)88 relating to the amendment of the MLC,  may appear, at first glance, to be complete departures from the traditional provisions for revising international labour conventions. The formal result of the different amendment procedures provided for in Articles XIV and XV is a single amended version of the MLC,  rather than two parallel conventions.89 In substance, however, there is little departure and the departures that are made are again dictated by specific needs. It will be recalled, in the first place, that the normal way of revising a convention was for the Organization to adopt a new, revising convention—with a new number—and, where appropriate, to block the old convention from further ratification and to release the Members that had ratified it from their obligations if they ratified the new convention.90 In the case of a large, comprehensive convention like the MLC, , this could in time result in a confusing host of differently numbered revising conventions. But this is perhaps not the main problem. As argued above, traditional international labour conventions appear in practice as compacts between each ratifying Member and the Organization, without any interaction creating interdependent rights and obligations between the ratifying States. For those conventions, the previous revision procedure may well be the most appropriate. However, as already noted, since the adoption of Convention No. , some maritime labour conventions do provide for such interaction between the parties. This is particularly relevant with respect to the maritime labour certificate. If the MLC,  had been adopted as Convention No. , and were later revised by, let us say, a Convention No.  containing substantial changes, the Members ratifying Convention No.  and denouncing ipso iure Convention No.  could no longer claim to have their 88

See the discussion in Chapter , pp. –. However, a ratifying Member that does not accept an amendment will remain bound by the previous version of the convention. 90 See supra the paragraph marked by note  above. 89

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maritime labour certificates recognized by the Members that had remained bound by Convention No. , and vice versa. Even though the certification provisions had remained the same in both conventions, the latter would in law be two separate instruments. Although this artificial rift in the nexus between ratifying Members could no doubt be patched up by appropriate drafting, it certainly appears as an unnecessary inconvenience.91 In the case of Article XIV, relating to the amendment of the MLC,  as a whole, the new wording arrives at almost the same outcome as the normal result of revision under the traditional procedures: basically the same procedure is followed for the adoption of the revising text and for its communication to all ILO Members for ratification. Further, the effect of entry into force of the new text is the same: the previous text will be replaced by the new text only in the case of Members that ratify the new text or the amendment concerned. Unless the revising text provides otherwise, the old convention or version of the convention will no longer be open to ratification by Members which had not ratified it before the new text (a) enters into force or (b) receives the level of ratifications required for entry into force twelve months later. Alternative (a) relates to the traditional revision procedure; alternative (b) relates to the Article XIV procedure (see paragraph ). This is one of the differences between the two procedures. The other is that the level of requirements for entry into force and the period after which the revised text will enter into force is set by the MLC,  itself (Article XIV, paragraphs , , and ), rather than by the revising convention. In contrast, Article XV, providing for a simplified amendment92 procedure that can be followed only with respect to the provisions in the Code, is essentially new to ILO conventions.93 It closely follows a similar provision in, inter alia, the IMO’s SOLAS Convention (Article VIII(b)). At the same time, the procedure based on what is known as the ‘tacit acceptance’ procedure in the IMO 91 As an alternative to the revision procedure, protocols have occasionally been used in the ILO as a method of amending conventions. Where the protocol (like that for Convention No. ) simply adds to previous obligations, no problem arises. However, in some cases (e.g., Protocol to the Night Work (Women) Convention (Revised),  (P)), a protocol purported to allow a Member that had ratified the convention concerned, and even a non-ratifying Member, to be considered a party to the convention as substantively modified by the protocol regardless of whether or not the other parties had agreed to those modifications. There were good reasons for the modification; the procedure adopted thus appears to be conceptually sound, but only if international labour conventions are seen as compacts between each Member and the Organization, rather than as ‘real contracts between States’. 92 The indispensable need for an updating procedure of this kind requires no justification in the light of the concerns discussed in Chapter . 93 There are one or two precedents of the ILC being given the power to adopt amendments to a part, schedule, or annexes of a convention, which do not bind the current ratifying Members until they ratify or accept the amendment (e.g., Employment Injury Benefits Convention, 



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conventions has been adapted to take account of the specificities of international labour conventions, referred to earlier, in particular the tripartite structure of the ILO and the pre-eminent role given by Article  of the Constitution to the Organization as a whole, through the ILC, with respect to the adoption and revision of conventions. Thus, while the governments taking part in the adoption of amendments to the Code are restricted to those of the Members that have ratified the MLC, , their representatives act together with the representatives of shipowners and seafarers in the Special Tripartite Committee established by Article XIII of the MLC, . In addition, the ILC (consisting of all ILO Members) still retains control; its approval by a two-thirds majority is required before the amendments can be submitted for consideration to the ratifying Members. Once the Conference’s approval has been given, control returns to the ratifying Members, which have the right to express disagreement (under the tacit acceptance procedure) and to prevent entry into force of the amendment if the prescribed level of disagreement94 is reached. It will be noted that the two-thirds majority for the Conference’s approval of amendments of the Code is the same as that required for the adoption of conventions and recommendations under Article , paragraph , of the Constitution. Only the ILC has been given the power to adopt conventions. As is made clear in the Explanatory Note to the Regulations and Code,95 in the MLC, , the Code contains the details for the implementation of the regulations, and any amendments to it must remain within the general scope of the articles and regulations that have been adopted by the ILC (in the framework of Article  of the Constitution).96 There could, however, be borderline cases in this regard. The approval by the Conference, by a twothirds majority, of amendments adopted under Article XV therefore not only provides a confirmation that the amendments are in line with the objectives of the Convention, but also gives a strong measure of legal certainty concerning the constitutionality of the use being made of Article XV in the particular case. Structure of the Convention The novel structure of the MLC, , as compared with that of the preceding international labour conventions, was determined by the need to present the Convention, in a clear way, with its unique and sometimes complex sub(No. ) and Night Work (Women) Convention (Revised),  (No. )), or unless they notify their non-acceptance within a prescribed period (e.g., Seafarers’ Identity Documents Convention (Revised),  (No. )). 94 See Art. XV, para. . 95 Paras  and . 96 See also the discussion in Chapter .

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

stantive features. The organization and structural features of the Convention are the subject of detailed consideration in Chapter , however it is useful to briefly consider the question of structure relative to existing ILO practice. Two structural features distinguish the MLC,  from the international labour conventions that preceded it. First, the articles of the Convention are restricted to the customary provisions relating to definition and scope, basic principles and rights underlying the Convention, general principles or rules introducing flexibility of a general nature, and the final clauses. The provisions setting out the specific requirements relating to the working and living conditions of seafarers, and the corresponding enforcement and compliance requirements are separated from the articles in the five Titles of the Convention. This separation seems helpful since it is mainly those provisions which need to be looked at by the national legislators and other officials when implementing the Convention through the adoption of national provisions and the establishment of the necessary infrastructures for enforcement and compliance. Second, each of the five Titles consists of groups of provisions setting out first a regulation, then the related standards followed by the related guidelines. These three types of provisions, covering the same subject matter, need to be read together for a proper comprehension of the Convention. At the same time, they need to be kept separate; in particular, for the purposes of the amendment procedure under Article XV, the content of the regulations needs to be distinguished from that of the related Code provisions consisting of the standards and guidelines. Similarly, as discussed above, the mandatory standards must be distinguished from the non-mandatory guidelines which must be given due consideration. Conclusion The Maritime Labour Convention,  is essentially a consolidation of previous ILO standards and is in line with the standard-setting action of the ILO since , especially having regard to the developments since then with respect to maritime labour standards. It owes much to those standards—to Convention No.  in particular—and to the special status that the Organization has accorded from the outset to the maritime sector, as seen in the periodic holding of a special maritime session of the ILC, in spite of the extra expense.97

97 One of the advantages of the MLC,  is that the th Session of the ILC, during which the Convention was adopted, may be the last of the maritime sessions due to the Convention’s more flexible amendment procedures.



chapter three

At the same time, some of the traditional standard-setting approaches were inhibiting progress in meeting the needs of the maritime sector, namely the splitting up of the various areas of decent work for seafarers among different and often overlapping instruments, and a revision procedure that was incapable of keeping pace with the rapidly developing globalized industry. In addition, the maritime labour standards were caught up in a vicious circle, in which efforts to make progress in their ratification and effective enforcement by governments and shipowners committed to decent work were inhibited by the absence of the necessary level playing field to encourage ratification and enforcement. In addition to bringing the scattered standards together in a single coherent instrument and adopting suitable amendment mechanisms, the MLC,  takes as a basis many of the approaches and concepts of the previous standards, such as the importance given to enforcement, as well as the various flexibility devices. The innovations that it contains have often resulted as a response to the same kinds of questions that the Organization has been asking itself since the s, and takes account of the answers given in the Organization. In particular, the primary importance of principles and rights, as compared with the details of implementation, reflects a feature of the  Declaration. However, as discussed in Chapter , more was needed to resolve the serious problems that prompted the Geneva Accord of . In this respect, the MLC,  could be seen as a genetic evolution of the traditional international labour convention in that its various components form a consistent whole directed towards the resolution of those problems in an inventive way. As indicated above in relation to the special features of the MLC, , this evolution was driven by pressing needs; but inventiveness was also required in order to find a synthesis for the achievement of contradictory objectives, such as those of firmness and flexibility. How could universal acceptability of an instrument that consolidates numerous and sometimes poorly ratified conventions be achieved at the same time as a level playing field of meaningful obligations? Part of the answer was to transform some sticking points of detail in existing obligations into non-mandatory guidance. But this contradicted the concern to maintain the level of protection under the existing standards. The resulting synthesis is to be found in Article VI, paragraph , of the Convention, by which nonmandatory guidance forms an integral part of mandatory obligations.98 But how were the drafters able to devise the complete and effective solutions that were unanimously agreed in ? At the outset, it seemed impossible, for example, to avoid including in the future convention a ‘pick and choose’ approach with respect to various parts or to cover the subject of social 98

The thinking behind this apparent paradox is to be found in the sentence marked by note  above.

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

security protection, particularly since the main predecessor convention relating to social security had only been ratified by three countries.99 Having witnessed the five years of discussion in the preparation of the MLC, , the author of this chapter (like his co-authors) can only pay tribute to the power of tripartism—and to the effective leadership exercised in all three groups: governments, shipowners and seafarers—in enabling the best solutions to be worked out and agreed upon. The seafarers’ representatives, who had as their objective essentially the protection of seafarers’ rights, and the shipowners’ representatives, with their main objective for a level playing field, disclosed at the outset their core concerns, as did certain governments. Once each of the parties was satisfied that its core concerns would be met, the shipowners and seafarers often adopted a common position promoting their joint objective to ensure the adoption of a widely ratifiable convention. The governments for their part pursued the same objective, exercising responsible pressure towards that end in helping constituents surmount important obstacles that not infrequently arose. Finally, there was the necessary confidence among the ILO constituents in the effectiveness of the new convention—indeed a feeling of ownership100 on the part of those who had been working together over the previous five years. Without this general agreement that there was an essential need for the Convention, it could not have been adopted because of the procedural rules in the Standing Orders of the ILC. These rules include a complex system for the consideration of proposals, amendments and subamendments, which—while constituting an important safeguard—would almost certainly have frustrated the adoption of a -page convention in the time allotted if the constituents had not agreed beforehand to rely on less formal procedures. It is not surprising that the preparation and adoption of the MLC,  has been described as tripartism at its best.101

99

The Social Security (Seafarers) Convention (Revised),  (No. ). See Chapter . 101 See Chapter , at note . 100

chapter four OVERVIEW OF THE ILO’S SUPERVISORY SYSTEM: MORE THAN 90 YEARS OF SUPERVISION1

Introduction Since its creation in , the ILO has adopted  international labour conventions, five protocols to existing conventions, and  recommendations (collectively described as international labour standards or ‘ILS’2), a total of almost  international labour instruments.3 The ILS are backed up by a supervisory system that is unique at the international level. This supervisory system helps to ensure that ILO Member States properly implement the conventions they ratify. The ILO regularly examines the application of standards in Members and points out areas where they could be better applied. If there are any problems in the application of standards, the ILO seeks to assist countries through social dialogue and technical assistance. The ILO has developed various means of monitoring the application of conventions and recommendations in national law and practice following their adoption by the ILC and, in the case of conventions, their ratification by States. The  Constitution of the International Labour Organisation,4 which created the Organization, not only gave it a mandate to adopt conventions and recommendations but also to monitor the application of ratified conventions. The rationale for this is contained in the Preamble to the Constitution which states that “. . . the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions

1

Dr. Cleopatra Doumbia-Henry, Director, International Labour Standards Department (see also Chapter , note ) and Ms. Tomi Kohiyama, Assistant to the Director, International Labour Standards Department, International Labour Office, ILO, Geneva. The views expressed in this chapter are the personal views of the two co-authors, and are not to be understood as the views of the International Labour Office or the International Labour Organization. 2 See the discussion in Chapter  regarding the legal character of ILO conventions and recommendations. 3 In addition, the ILO has published numerous guidelines and/or codes to assist with national implementation of ILS on specific matters or areas, for example, HIV/AIDS and work, Using the ILO Code of Practice and Training Manual: Guidelines for Labour Judges and Magistrates (ILO: Geneva, ). 4 See Chapter . Available at http://www.ilo.org/ilolex/english/iloconst.htm.

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in their own countries”. Several provisions in the Constitution are thus devoted to what has come to be called ‘the supervisory system’. Articles ,5 ,6 and 7 5 Ibid. See also discussion at p. . Article —Conventions and Recommendations, paragraph , “Obligations of Members in respect of Conventions”, which reads:

. In the case of a Convention: (a) the Convention will be communicated to all Members for ratification; (b) each of the Members undertakes that it will, within the period of one year at most from the closing of the session of the Conference, or if it is impossible owing to exceptional circumstances to do so within the period of one year, then at the earliest practicable moment and in no case later than  months from the closing of the session of the Conference, bring the Convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action; (c) Members shall inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring the Convention before the said competent authority or authorities, with particulars of the authority or authorities regarded as competent, and of the action taken by them; . . . and paragraph , “Obligations of Members in respect of Recommendations”, which reads: . In the case of a Recommendation: (a) the Recommendation will be communicated to all Members for their consideration with a view to effect being given to it by national legislation or otherwise; (b) each of the Members undertakes that it will, within a period of one year at most from the closing of the session of the Conference or if it is impossible owing to exceptional circumstances to do so within the period of one year, then at the earliest practicable moment and in no case later than  months after the closing of the Conference, bring the Recommendation before the authority or authorities within whose competence the matter lies for the enactment of legislation or other action; (c) the Members shall inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring the Recommendation before the said competent authority or authorities with particulars of the authority or authorities regarded as competent, and of the action taken by them; . . . and paragraph , “Effect of Conventions and Recommendations on more favourable existing provisions”, which reads: . In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation. 6

Ibid., Article , which reads: Each of the Members agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of Conventions to which it is a party. These reports shall be made in such form and shall contain such particulars as the Governing Body may request.

7

Ibid., Article , which reads: . The Director-General shall lay before the next meeting of the Conference a summary of the information and reports communicated to him by Members in pursuance of articles  and .

more than  years of supervision



of the ILO Constitution provide for what can be considered the regular supervisory procedures. They contain an obligation on all ILO Member States to send reports at regular intervals to the ILO with respect to all conventions they have ratified or not ratified and to communicate these reports to the representative organizations of employers and workers. They also include an obligation to submit conventions and recommendations adopted by the ILC to national authorities for “the enactment of legislation or other action”. Several provisions deal with what has come to be called the special supervisory procedures. Articles  and  of the Constitution deal with the representation procedure. These two articles give employers’ and workers’ organizations the right to submit representations alleging non-observance by a Member State government of a convention that it has ratified. Articles – and – deal with the complaints procedure under which a Member may file a complaint against another Member or a delegate to the ILC alleging failure by that Member State to secure effective observance of a convention that it has ratified. Since , the supervisory system with its various procedures has evolved substantially, mainly through the decisions taken by the ILC and the Governing Body. In addition, the various supervisory bodies involved in the system have taken a number of decisions relating to their methods of work and procedures. Historical Overview When the ILO was first created, it had been thought that supervision of the application of ratified conventions would be carried out by the ILC itself through the summary of annual reports that the Director-General would lay before it. After the first six years, the Conference recognized that its composition and method of work did not enable it to undertake a thorough examination of the reports submitted to it.8 This recognition gave rise to the need for a specific machinery to undertake such an examination. At the time, the distinction between the procedure for the examination of reports submitted by Member States and the procedures concerning complaints and representations was emphasized. The annual reports were presented as constituting a means of providing and sharing information among Member States; the procedure for their examination therefore differed essentially from the representation and complaint procedures. In , the Conference decided, . Each Member shall communicate to the representative organizations recognized for the purpose of Article  copies of the information and reports communicated to the DirectorGeneral in pursuance of Articles  and . 8

See Note prepared by the Office, ILC, th Session (), Vol. I, Appendix V, p. .

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through a resolution, to set up two committees to enable it to undertake this task: – the Committee on the Application of Standards (Conference Committee) – the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts)9

Under the terms of the above Conference resolution, the mandate of the Committee of Experts was to make “the best and fullest use of the information contained in the reports rendered by the State Members”. The submission of the first two representations in  and  raised several practical questions about the modalities of the procedure embodied in the Constitution. It was felt that to safeguard both the rights of industrial associations and the freedom of action of the Governing Body, some rules were needed. In , the Governing Body therefore adopted procedural rules (called Standing Orders in the ILO) concerning the application of the representation procedure.10 In the course of the discussion leading up to the adoption of these rules, members of the Governing Body emphasized the need to distinguish clearly between the representation procedure and the complaints procedure. The next important development in the supervisory system occurred through the  amendments to the Constitution. Several significant changes were introduced in Articles  and , particularly: (i) the obligation to report on measures taken to submit newly adopted instruments to the competent national authorities; (ii) the obligation to submit information and reports on unratified conventions and recommendations when so requested by the Governing Body; and (iii) the obligation to communicate reports and information under Articles  and  to representative employers’ and workers’ organizations.

The terms of reference of the Conference Committee and the Committee of Experts were revised to reflect the first two obligations. Other changes were also made to the complaints procedure under Article .

9

See, Resolution concerning the methods by which the Conference can make use of the reports submitted under Article  of the Treaty of Versailles, ILC, th Session (), Vol. I, Appendix VII, p. . 10 The Standing Orders concerning the representation procedure were amended in , , and, most recently, in . See: Standing Orders concerning the procedure for the examination of representations under Articles  and  of the Constitution of the International Labour Organization, Governing Body, th Session ( April ), modified at its nd Session ( February ), th Session ( March ), and st Session ( November ), available at http:// www.ilo.org / global / standards/information-resources-and-publications/publications / WCM_/lang-en/index.htm.

more than  years of supervision



The third major development in the supervisory system took place in . Following the adoption of the Freedom of Association and Protection of the Right to Organise Convention,  (No. ), and the Right to Organise and Collective Bargaining Convention,  (No. ), the ILO, in agreement with the Economic and Social Council of the United Nations (ECOSOC),11 established a procedure for the examination of allegations concerning the infringement of trade union rights, including a new supervisory body, the Fact-Finding and Conciliation Commission on Freedom of Association. It was also agreed that all allegations regarding infringements of trade union rights received by the United Nations against ILO Member States would be forwarded by ECOSOC to the Governing Body. The purpose of the new procedure was to provide facilities for impartial and authoritative investigation of questions of fact raised by allegations of infringements of trade union rights. In view of the fact that the principle of freedom of association was enshrined in the ILO Constitution and the Declaration of Philadelphia,12 as well as its importance for the tripartite structure of the ILO, allegations concerning infringements of trade union rights could be made against all ILO Member States, whether or not they had ratified the relevant conventions. However, no allegations could be referred to the FactFinding and Conciliation Commission on Freedom of Association without the consent of the government concerned.13 Further, the new arrangements would not in any way replace the existing constitutional provisions of the ILO concerning representations and complaints. In , the Governing Body went on to establish the Committee on Freedom of Association (CFA). Initially, the examination of complaints by the CFA was intended to determine whether the allegations warranted further examination by the Governing Body and, where it was so determined, to attempt to secure the consent of the government concerned to the referral of such allegations to the Fact-Finding and Conciliation Commission on Freedom of Association. The examination of allegations by the CFA, unlike the Fact-Finding and Conciliation Commission, did not require the consent of the government concerned. The CFA rapidly became the main body responsible for examining allegations of violations of freedom of association. It assumed this role largely because of the difficulty in obtaining the consent of governments to the referral 11

See Annex  of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (Geneva: International Labour Office, Fifth (revised) edition, ). 12 The Declaration of Philadelphia adopted by the International Labour Conference in  is an Annex to the ILO Constitution. See Chapter , note . 13 A compromise was thus reached between proponents of the universality of ILO action in respect of all its Members in relation to freedom of association and those who considered that the ILO could only intervene on the basis of the ratification of the relevant conventions.

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of matters to the Fact-Finding and Conciliation Commission; the formal nature of the investigation carried out by the latter; and substantial developments in the procedure of the CFA, which led to a broadening of the examination of complaints by the CFA.14 Following the establishment of the special procedure on freedom of association, subsequent developments in the supervisory system have related to the operation of existing supervisory arrangements. In the mid-s, the first decisions were taken to allow the Committee of Experts and the Conference Committee to deal with their increasing workload. First, a division of labour was progressively established between the Conference Committee and the Committee of Experts. At the beginning, both Committees examined successively all the issues arising out of annual reports. However, in , the Conference Committee adopted the ‘principle of selectivity’15 so that it would concentrate only on cases in which the Committee of Experts had drawn attention to definite discrepancies between the terms of ratified conventions and national laws and practices. Second, in , the Governing Body decided to lengthen the reporting cycle from one to two years. Starting in the s, supervision of the application of ratified conventions, which had hitherto been carried out mainly through the regular supervisory procedure, began to see the more frequent use of complaint and representation procedures. In , a complaint was lodged by one Member State against another, leading to the establishment of the first Commission of Inquiry. As of , employers’ and workers’ organizations began to have recourse more frequently to the representation procedure. A total of  complaints and  representations have been lodged to date.16 In addition to further adjustments to reporting arrangements, the main development in the s was the increased participation of employers’ and workers’ organizations in the supervisory procedures. In  and , the Conference adopted two resolutions reinforcing tripartism17 in all ILO activities, including supervision of the application of ILSs.18 These resolutions 14

See: ILO, “Committee on Freedom of Association,” available at http://www.ilo.org/global/ standards / applying-and-promoting-international-labour-standards / committee-on-freedomof-association/lang-en/index.htm. 15 Record of Proceedings, ILC, th Session, , p. , paras  and . 16 As of November , with  commissions of inquiry. See: ILO, “Complaints,” available at http://www.ilo.org /global /standards /applying-and-promoting-international-labour-standards / complaints/lang-en/index.htm; http://www.ilo.org/ilolex/english/repframeE.htm. 17 See Chapters  and , pp. –. 18 Resolution concerning the strengthening of tripartism in the overall activities of the International Labour Organisation, ILC, th Session, June ; Resolution concerning the strengthening of tripartism in ILO supervisory procedures of international standards and technical co-operation programmes, ILC, rd Session, June .

more than  years of supervision



prompted various measures to encourage greater participation by employers’ and workers’ organizations in the supervisory procedures. Moreover, the Tripartite Consultation (International Labour Standards), Convention  (No. ) was adopted in  with a view to reinforcing the involvement of employers’ and workers’ organizations at the national level in all ILO standards-related activities, including the drawing up of reports by Member States under Article . When, in , the Governing Body decided to further lengthen the reporting cycle for conventions (except for the most important conventions) from two to four years, it approved a number of safeguards to ensure that the introduction of a longer reporting cycle did not weaken the effectiveness of the supervisory system. These measures included consideration by the Committee of Experts of comments sent directly to the Office by employers’ and workers’ organizations even in years when no report was due. Modifications to the reporting cycle were again made in  and .19 Following the Report of the Director-General to the st Session of the Conference (),20 the Governing Body regularly discusses the working of the supervisory system within the overall framework of improvements to ILO standards-related activities with a view to strengthening the efficiency and impact of the supervisory mechanisms.21 An overview of the related discussions and decisions was presented to the Governing Body at its nd Session (March ).22

19 See: Improvements in the standards-related activities of the ILO: From Strategy to implementation, Fourth item on the Agenda, Governing Body, Committee on Legal Issues and International Labour Standards, th Session, Geneva, March , ILO Doc. No. GB./LILS/; paragraphs  and  present a summary of the various adjustments to reporting arrangements, including the reporting cycle, decided on by the Governing Body. 20 Defending Values, Promoting Change: Social Justice in a Global Economy: An ILO Agenda, Report of the Director-General (Part I), ILC, st Session, . 21 See for example the most recent considerations: Report of the Committee on Legal Issues and International Labour Standards, Second Report: International Labour Standards and Human Rights, Improvements in the Standards-related Activities of the ILO, Fourth item on the agenda, Governing Body, th Session, Geneva, November , ILO Doc. No. GB.//, available at http://www.ilo.org /gb/GBSessions /GB/lang-en/commId-GB/WCMS_/index.htm. See also: Improvements in the Standards-related Activities of the ILO, Fourth item on the agenda, Governing Body, Committee on Legal Issues and International Labour Standards, th Session, Geneva, November , ILO Doc. No. GB /LILS/, available at http://www.ilo.org/gb/ GBSessions/GB/lang-en/commId-LILS/WCMS_/index.htm. 22 See: Improvements in the Standards-related Activities of the ILO: A Progress Report, Seventh item on the agenda, Governing Body, Committee on Legal Issues and International Labour Standards, nd Session, Genva, March , ILO Doc. No. GB./LILS/, paras –.



chapter four The Supervisory System Institutional Machinery

As the foregoing historical overview explained, several specific bodies have been established to assist the ILC with respect to its supervisory functions. Committee of Experts The Committee of Experts is an independent body of legal experts. Its members are appointed by the Governing Body on the proposal of the DirectorGeneral for renewable periods of three years. There are currently  experts. Appointments are made in a personal capacity among impartial persons with technical legal competence and independent standing. They are drawn from all parts of the world in order that the Committee may enjoy first-hand experience of different legal, economic, and social systems. The Committee’s fundamental principles are those of independence, impartiality, and objectivity in noting the extent to which the position in each State appears to conform to the terms of the conventions and the obligations accepted under the ILO Constitution. In this spirit, the Committee is called on to examine: (i) the annual reports under Article  of the Constitution on the measures taken by Members to give effect to the provisions of conventions to which they are parties, and the information furnished by Members concerning the results of inspection; (ii) the information and reports concerning conventions and recommendations communicated by Members in accordance with Article  of the Constitution; and (iii) information and reports on the measures taken by Members in accordance with Article  of the Constitution.

On the basis of this information, the Committee of Experts issues a report annually containing its observations on compliance by Member States of the ILO concerning conventions ratified by them, based on the reports due for countries that year.23 It also issues a report on law and practice of Member States concerning a group of conventions selected by the ILO Governing Body. Other 23 For  see: Report III (A): Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, th Session, , available at http://www.ilo.org/ ilc / ILCSessions / thSession / ReportssubmittedtotheConference / lang-en / docName-WCMS_ /index.htm. The ILO Web site notes that:

The  Report of the Committee of Experts on the Application of Conventions and Recommendations provides an impartial and technical evaluation of the state of application of ILO Conventions and Recommendations in member States. This year, the Committee has examined more than  reports from governments on the application of ratified Conventions. See also the General Report of the Committee of Experts on the Application of Conventions and Recommendations issued between – (available at http://www.ilo.org/ilolex/english/ ceacrrepsq.htm).

more than  years of supervision



comments, called ‘direct requests’, are not published in its annual report but are sent separately to governments seeking further information on specific matters. The Conference Committee on Application of Standards The Conference Committee, a permanent committee of the ILC, is tripartite and universal in composition. It is the keystone of the supervisory system of the ILO, exercising a form of parliamentary control. These elements provide it with an unparalleled authority to exert pressure on countries that persistently fail to comply with their obligations under ratified conventions. The Conference Committee has the overall responsibility for considering the extent to which international labour standards are being implemented and reporting thereon to the Conference. This mandate follows from Article  of the ILO Constitution, and is articulated in Article  of the Standing Orders of the ILC, which enjoins this Committee to “consider the measures taken by Members to give effect to the provisions of Conventions to which they are parties, and the information furnished by Members concerning the results of inspections.” It has a dynamic mandate with considerable discretion to adapt its action to the changing needs of the international environment. The Conference Committee draws on multiple sources, including practical, doctrinal, economic, legal, and a broad policy viewpoint, in its reflection on measures States have taken or are taking. It is also important to note that this Committee is responsible for a process that involves several other important actors. At the international level, the Committee of Experts and the Office are this Committee’s main partners. The Conference Committee presents a report every year to the plenary of the ILC outlining the conclusions it has drawn with respect to specific cases of non-compliance by Member States concerning conventions they have ratified and, in certain cases, draws the special attention of the Conference to serious cases of continuous failure in a special paragraph in its report. The Committee on Freedom of Association As noted earlier, the CFA is an organ of the ILO’s Governing Body reflecting the ILO tripartite character.24 It is composed of nine regular and nine deputy members representing in equal proportion the Government, Employer and Worker Groups of the Governing Body. Each Member participates in a personal capacity. Representatives or nationals of the State against which a complaint has

24 For more information and links to reports see: http://www.ilo.org/global / standards / applyingand-promoting-international-labour-standards/committee-on-freedom-of-association/ lang-en/index.htm.



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been made, or persons occupying an official position in the national organization of employers or workers which has made the complaint, cannot participate in the Committee’s deliberations or even be present during the hearing of the complaint in question. The CFA meets three times a year (March, May, and November), and its recommendations are submitted to the Governing Body for adoption. Features of the Supervisory Procedures The historical overview explained that the supervisory system consists of several different procedures, each with a well-defined purpose. The regular supervisory procedure, based on the reports submitted regularly by Member States, ensures the continuous assessment of the application by Member States (difficulties and progress) of ratified international labour conventions. It combines the objective examination of the reports by the Committee of Experts with tripartite dialogue in the Conference Committee. Despite the lengthening of the reporting cycle, this continuity has been preserved, particularly by making the necessary arrangements for the active participation of employers’ and workers’ organizations through the submission of comments. The special supervisory procedures, which are based on the various types of complaints, focus on specific problems as they arise and are mainly initiated by employers’ and workers’ organizations. The main purpose is to resolve particular cases, generally involving complex issues of fact and law that call for close examination by a specially convened body. These special supervisory procedures each have specific mandates and attributes. The representation and complaint procedures address allegations of non-observance of ratified conventions. The representation procedure permits a relatively speedy resolution of the case by a tripartite body, while the procedure for the examination of a complaint by a commission of inquiry under Article  of the Constitution is more formal and may, eventually, result in serious measures under Article  of the Constitution. The scope of the special procedure on freedom of association is broader, as it can be invoked whether or not the country concerned has ratified the relevant conventions and the allegations are examined in the light of the principles of freedom of association. Relevant General Features of the Supervisory System The supervisory system as a whole has several features that are conducive to the establishment of links between its different components. First, the various supervisory procedures all pursue a common purpose: the effective observance of international labour standards, and in particular ratified conventions.

more than  years of supervision



The links between the supervisory procedures therefore operate in respect of obligations freely assumed by Member States through the ratification of conventions. This consideration also includes the special procedure concerning freedom of association since, as will be seen below, this procedure interacts with other procedures only in cases where Member States have ratified the relevant conventions. As to be expected in a tripartite organization, in addition to governments, the system involves the participation of employers’ and workers’ organizations, and their role has continued to grow as the system has developed. Convention No.  formalized the important role that these organizations should fulfil at the national level, where they contribute to the adoption of measures and assist in reviewing their implementation. Employers’ and workers’ organizations can contribute to the work of the Committee of Experts by sending comments on the application of ratified conventions, or they can initiate action by an ILO supervisory body through the submission of a representation under Article , a complaint under Article  (through a delegate to the Conference), or a complaint to the CFA. Their representatives participate directly in the work of a number of the supervisory bodies and the Governing Body. Under the ILO Constitution, the Governing Body has a number of specific functions in relation to the operation of the supervisory procedures. These include the approval of report forms on ratified conventions, such as the innovative form approved in  for the MLC, ,25 and the consideration of representations and complaints. Moreover, the Governing Body has responsibilities relating to the overall efficient functioning and work of the supervisory bodies. Accordingly it: (i) decides upon the mandates of certain supervisory bodies (although not in the case of commissions of inquiry and the Conference Committee); (ii) appoints the members of most of these bodies (on the proposal of the DirectorGeneral in the case of bodies composed of independent experts); and (iii) receives all the reports of the supervisory bodies, either to note or approve them (with the exception of the report of the Conference Committee).

The Governing Body has always exercised these responsibilities in full knowledge of the distinction between its own role and those of the specific bodies concerned. It has accordingly left them to determine their methods of work and procedures and has approved their reports after discussion by its members. As

25 The Article  report form for the MLC,  can be found in Appendix IV of ILO Doc. No. GB.// (Rev), March , available at http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm.

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will be seen below, the Governing Body is also called upon to take decisions relating to the linkages between the various supervisory procedures. In accordance with its functions under Article  of the Constitution, the Office also has an important role to play in acting as the secretariat of the supervisory bodies. In this capacity, it prepares the necessary materials for their meetings, including, where appropriate, draft texts for their consideration and adoption, taking into account the work carried out by other supervisory bodies. The Office therefore contributes, within its mandate, to the coherence of examination between the supervisory bodies. Further, the Office has specific responsibilities at the various stages prior to the examination of cases by the supervisory bodies in terms of obtaining full and appropriate information from the parties. It also follows up comments made by the supervisory bodies, particularly through its technical cooperation and assistance activities. While a range of supervisory procedures are available, the methods employed in each procedure are similar. These include: – submission of written information, which may be supplemented by oral information – on-the-spot missions, particularly in the form of direct contacts missions – arrangements to follow up on matters examined by a supervisory body in the context of a particular complaint or a representation – various publicity measures

Moreover, some supervisory mechanisms are similar in composition and procedure, which tends to create particular links between the bodies concerned. Thus, the CFA and the tripartite committees set up to examine representations are all tripartite bodies of the Governing Body examining submissions made by employers’ and workers’ organizations. The impartiality of their respective examinations is guaranteed by similar rules, which exclude from the examination of the case any representative or national of the State against which the submission is made, as well as any person occupying an official position in the organization which has made the submission.26 The introductory note to the Standing Orders concerning the procedure for the examination of representations refers to certain principles developed by the CFA in relation to the issues of receivability and prescription of complaints, which may be applied by analogy to the representations procedure.27 The two investigatory bodies of

26

Article , paragraph , of the Standing Orders, supra note , and paragraph  of Annex I of the Digest of the CFA, supra note . 27 Possible Improvements in the Standards-related Activities of the ILO: Proposals regarding submission to the competent authorities and the representation procedure, Governing Body, Committee on Legal Issues and International Labour Standards, st Session, Geneva, November , ILO Doc. No. GB./LILS/, “Introductory Note to the Standing Orders concerning the procedure

more than  years of supervision



the system—the Fact-Finding and Conciliation Commission and commissions of inquiry—also present a number of similarities regarding their membership (e.g., the independence and qualifications of their members) and procedures (e.g., both commissions have recourse to similar means to obtain full and objective information). They also have in common the mandate to investigate the facts relating to the alleged non-compliance. The Relationship between the Supervisory System Procedures On each occasion that the Conference and the Governing Body decided to supplement the institutional framework of the supervisory system, emphasis was placed on the distinctive nature of each procedure. This meant that the examination of issues under one procedure would not prevent the initiation of another procedure on the same issues. However, there is an inherent need for coordination and coherence between the various supervisory bodies in order to achieve the common purpose of the effective promotion and observance of international labour standards. This need has thus led to the establishment of more formalized linkages between the procedures. These links between the supervisory procedures operate at three levels: (a) the referral of matters to the appropriate supervisory body; (b) suspension or closure of a supervisory procedure upon the initiation of another procedure; and (c) the examination by other supervisory bodies, and particularly the Committee of Experts, of the effect given to the recommendations of supervisory bodies in specific cases. Referral In the context of a representation under Article  Under Article , paragraph , of the Constitution, the Governing Body may initiate the complaint procedure of its own motion. One of the objectives of this provision, which was already included in the  Constitution, was to enable the Governing Body to initiate a complaint procedure in light of a representation submitted by an industrial association under Article . This specific manner of initiating a complaint procedure was further specified in the first version of the Standing Orders concerning the procedure for the examination of representations adopted in . Article  of the current Standing Orders was inserted to enable the Governing Body, when it receives a representation, to adopt at any time the complaint procedure provided for in Article . When the Standing Orders were revised in , it was decided to retain this provision “both to draw attention to this possibility and to make for the examination of representations under Articles  and  of the Constitution of the ILO,” Annex III, paras  and , pp.  and .

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it clear that the fact that the representation procedure under Article  was under way did not prevent the initiation of the complaints procedure under Article ”.28 To date, the Governing Body has availed itself of this possibility on only two occasions.29 Under Article , paragraphs – of the Standing Orders concerning the procedure for the examination of representations, if the Governing Body deems a representation receivable, it can decide on one of the following three courses of action: (i) reference to a tripartite committee, which is the most common course of action;  tripartite committees have thus been established to date; (ii) referral to the CFA30 of any aspects of a representation relating to a convention dealing with trade union rights, in which case the CFA will examine the case applying its own methods of work and procedures, and its conclusions and recommendations will be published in a report that is separate from the report on complaints examined under the special procedure; there have been  such referrals to date; or (iii) postponement of the appointment of a tripartite committee if the representation relates to matters and allegations similar to those that have been the subject of a previous representation until the Committee of Experts has examined the followup to the recommendations adopted by the Governing Body in relation to the previous representation; the Governing Body has not yet formally resorted to this possibility.

In the context of a complaint relating to the application of ratified conventions on freedom of association In principle no complaint may be referred to the Fact-Finding and Conciliation Commission on Freedom of Association without the consent of the government concerned. Nevertheless, the government’s consent is not required in respect of any complaint relating to a ratified convention, in which case the Governing Body may designate the Fact-Finding and Conciliation Commission as a commission of inquiry under Article  of the Constitution. The possibility thus open to the Governing Body is reflected in the six reports of the Fact-Finding and Conciliation Commission. Although the Governing Body has 28 See paper presented to the Governing Body, st Session (February–March ), ILO Doc. No. GB.//, para. . 29 In one of these cases, the representation had already been examined by a tripartite committee. When examining the report of the tripartite committee, the Governing Body decided to set up a commission of inquiry which, in the course of its examination, emphasized that its task did not consist of reviewing the conclusions of the tripartite committee that had examined the representation; rather, it was to carry out its own investigation. 30 The possibility of referral to the CFA, in accordance with Articles  and  of the Constitution, supra note , was introduced when the Standing Orders were revised in  in light of the Resolution concerning the promotion, protection, and strengthening of freedom of association, trade union, and other human rights, adopted by the ILC at its rd session.

more than  years of supervision

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never availed itself of this possibility, it made use of similarities between the two commissions in one instance.31 In eight instances, where complaints lodged under Article  concerned issues relating to the non-observance of ratified conventions on freedom of association already pending before the CFA, the Governing Body sought the latter’s recommendation as to whether the Article  complaint should be referred to a commission of inquiry. In four of these cases, referral to a commission of inquiry was not considered appropriate in light of the information obtained through on-the-spot missions. These cases remained under the CFA’s examination. In two cases, the CFA recommended the referral of the complaint to a commission of inquiry, emphasizing that it was for the Governing Body to take a decision on the recommendation and the modalities of its implementation. In the two remaining cases, the CFA merely underlined that it was for the Governing Body to decide on the referral of the complaint to a commission of inquiry. It should also be noted that in one case the Governing Body decided of its own motion to refer allegations pending before the CFA to a commission of inquiry. Suspension or Closure It is the established practice that the examination of a case by the Committee of Experts, and subsequently by the Conference Committee, should be suspended in the event of a representation (Article ) or complaint (Article ) in relation to the same case being referred either to a tripartite committee or to a commission of inquiry. The Committee of Experts reverts to its examination once the Governing Body has taken a decision on the representation or complaint. As will be noted below, the Committee of Experts’ subsequent examination of the case may include follow-up of the recommendations of the body which examined the representation or complaint. Nevertheless, in cases where a complaint is lodged with the CFA, examination by the Committee of Experts of some of the issues raised therein is not suspended.32 31

At the time, allegations of infringements of trade union rights against a country which had not ratified the conventions on freedom of association had led to the establishment of a FactFinding and Conciliation Commission with the government’s consent. When the Conference subsequently requested the Governing Body to refer to a commission of inquiry the question of the observance by that country of other conventions it had ratified, the Governing Body nominated the same persons that it had appointed as members of the Fact-Finding and Conciliation Commission one month earlier to sit on the commission of inquiry. A double investigation was carried out by the Commission, which eventually submitted two reports to the Governing Body. 32 There may be several explanations for this established practice: (i) although the two bodies examine legislative as well as practical issues, their respective examinations have a different emphasis (case-specific and with greater emphasis on practical issues for the CFA, while the



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Similarly, referral by the Governing Body of a representation under Article  to the CFA does not affect the examination of the matter by the Committee of Experts.33 In the process leading to the adoption of the Standing Orders concerning the representation procedure in , the Office suggested that a decision of the Governing Body to initiate a complaint procedure under Article () should imply ‘closure’ of a representation procedure on the same matter. However, no rule was introduced in the Standing Orders to that effect. The Governing Body has consequently retained its discretion as to the course of action to be decided upon in such cases. On one occasion, when discussing the report of the respective tripartite committee, the Governing Body decided to refer the matters raised in a representation to a commission of inquiry; in view of this referral, the Governing Body decided that it was no longer necessary to adopt the recommendations of the tripartite committee set up to examine the original representation. On another occasion, the Governing Body decided that the representation procedure should resume its course once the procedure for the examination of the complaint had become without object.34 Effect Given by Countries to the Recommendations Made by the Supervisory Bodies It is a well-established practice in the supervisory system that the Committee of Experts follows up the effect given by governments to the recommendations made by tripartite committees (Article ) and commissions of inquiry (Article ). The governments concerned are therefore requested to indicate in their reports under Article  the measures taken on the basis of these recommendations. The related information is then examined by the regular supervisory machinery. As such, it becomes part of the ongoing dialogue between the Committee of Experts’ examination tends to focus on legislative issues or on more general questions relating to the application of conventions in practice); (ii) the importance of freedom of association and the related need to draw attention to serious problems relating to the application of the relevant conventions; and (iii) the special procedure was not meant to replace existing procedures but to supplement them. 33 The question of the effect of the complaint and representation procedures, including the special procedure on freedom of association, on the regular supervisory machinery was discussed by the Governing Body at its rd (November ) and th (November ) sessions. See the papers presented to the Governing Body, ILO Doc. Nos. GB./LILS/ and GB./LILS/. The amendments to the Standing Orders proposed in this respect did not achieve consensus. 34 In this particular instance, a complaint under Article  and a representation under Article  had been lodged by a Member State and a workers’ organization against the same Member State. The complaint and representation raised the same issues of non-observance of ratified conventions. The Governing Body decided that the issues should be referred to a commission of inquiry. A settlement was eventually reached between the two Member States and the complaint was withdrawn.

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government, the Committee of Experts and the Conference Committee, if it so decides. In the case of the recommendations made by tripartite committees (Article ), this practice was officially acknowledged when the Standing Orders concerning representations were last revised in . There is a direct reference to the practice in Article , paragraph , of the Standing Orders concerning representations relating to matters similar to those which have been the subject of a previous representation.35 The practice itself is described in the introductory note to the Standing Orders on the representation procedure.36 In relation to recommendations made by commissions of inquiry (Article  of the Constitution), the practice of follow-up by the Committee of Experts has been followed since the first commission of inquiry was set up. It was left to the Committee of Experts to determine when it was no longer necessary for the government to provide information on the matters (or certain of them) examined by the commission of inquiry.37 The procedure of the CFA provides for the examination of the action taken by governments on its recommendations.38 The relevant procedural rules were set forth for the first time in the th report of the CFA.39 At the time, they constituted a response to a paragraph in the resolution concerning trade union rights and their relation to civil liberties, adopted at the th session (June ) of the ILC. In accordance with this resolution, the Governing Body asked the CFA to examine what further measures might be taken to strengthen its procedure and, in particular, to consider arrangements for periodically reviewing the action taken by governments on its recommendations. Under these rules, where Member States have ratified one or more conventions on freedom of association, examination of the legislative aspects of the recommendations adopted by the Governing Body is often referred to the Committee of Experts. The attention of the Committee of Experts is specifically drawn in the concluding paragraph of the CFA’s reports to discrepancies between national laws and practices and the terms of the convention. However, it is made clear in the procedure that such referral does not prevent the CFA

35

Supra note . Supra note , para. . 37 In the case of a complaint concerning the application of Conventions Nos.  and , the Commission of Inquiry recommended that the implementation of its recommendations should be followed up by the CFA, which had been examining the matters raised in the complaint over a long period. At the same time, the Commission of Inquiry observed that, within the framework of its regular supervision, the Committee of Experts would continue to examine the legislative aspects involved in respect of Conventions Nos  and . 38 See paras – of Annex I of the Digest of the CFA, supra note . 39 See th Report in Official Bulletin, Vol. LV, , Supplement, paras  and –. 36



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from examining the effect given to its recommendations, particularly in view of the nature and urgency of the issues involved. Since its th report (November ), the introduction has highlighted the cases to which the attention of the Committee of Experts has been drawn. The Interpretation of International Labour Conventions As the foregoing40 discussion has indicated, while the supervisory bodies examine the application of ratified conventions in law and in practice, under the terms of Article , paragraph , of the Constitution, the authority to interpret ILO conventions is vested with the International Court of Justice (ICJ). However, paragraph  of Article  envisages the possibility that the Governing Body may submit rules to the ILC for approval regarding the appointment of a tribunal “for the expeditious determination of any dispute or question relating to the interpretation of a Convention which may be referred thereto by the Governing Body or in accordance with the terms of the Convention”. To date this possibility has not been acted on. An explanation on the issue of interpretation was provided to the Governing Body at its th session (May ). At that time, the Office prepared a study41 with a view to providing the necessary background for a possible detailed examination by the Governing Body of the implementation of Article , paragraph . More specifically, the study reviewed the existing arrangements, including their limitations, under which questions of interpretation have been dealt with in the absence of any recourse to the machinery provided for in the Constitution. It examined whether and to what extent the appointment of the tribunal provided for in Article () could offer a useful additional mechanism and sketched out possible modalities for its institution and functioning. While the Governing Body welcomed the study, it did not come to any decision on the matter. Consultations are again underway to review the question of whether the implementation of this provision is now timely, particularly in light of the growth in specialized tribunals in other fora.

40 See also Chapter , p. , where its was pointed out that general principles of international law relating to the interpretation of treaties, such as those found in the Vienna Convention on the Law of Treaties apply. The International Labour Office does, however, on request, provide advice and information and opinions on the possible meaning and application of provisions, subject to the caveat regarding the ICJ. 41 See the paper presented to the Governing Body, th Session, May, ILO Doc. No. GB./SC//.

more than  years of supervision



Conclusion This examination, albeit brief, demonstrates both the sophistication and complexity of the ILO supervisory system. Its functioning has evolved substantially over the years since it was first established under the  Constitution. Its development has been informed by pragmatism shaped by the decisions of the Governing Body and the Conference in giving effect to their responsibility to ensure the smooth and effective functioning of the system. This chapter has highlighted the important role of the Governing Body with regard to all the supervisory procedures, except for the regular supervisory procedure, which is ultimately the responsibility of the Conference. This implies that the Governing Body is able to maintain oversight of the procedures and is in a position to ensure that the necessary linkages and differentiation are maintained. However, the Governing Body has exercised restraint, particularly by leaving it to the supervisory bodies themselves (with the exception of the tripartite committees set up to examine representations under Article ) to determine their methods of work and procedures. It has also developed in the light of decisions taken by the supervisory bodies themselves concerning their methods of work and procedures with a view to adapting the system to changing needs, particularly in relation to the increased workload with  conventions and related instruments. It is also important to realize that the ILO supervisory system is a ‘living tree’ and is continuing to develop in response to the heightened awareness of the interaction and potential impacts of ILS with the economic system and globalization.42 Thus the implementation of ILS at a national level can have significant implications and these concerns extend well beyond the more traditional, somewhat abstract, obligation to adopt implementing legislation on ratification. This chapter has not discussed the MLC,  and has instead focused on describing the institutional framework and ILO ‘norms’ against which the Convention and its system of compliance and enforcement (including ship certification), discussed elsewhere in the book,43 was adopted. The entry into force of the of the MLC,  will provide some challenges for the ILO supervisory system, particularly during the transitional phase when there will be parallel convention reporting obligations operating,44 with increased and differing forms of data being submitted to the Office for consideration, as well as differing kinds of information in the Article  forms. However, these developments can only serve to strengthen this well-established system and help ensure its continued 42 43 44

See the discussion in Chapters  and . See Chapter  on Title . See Chapter  on the articles.

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relevance. The ILO supervisory system has been a model for other international and regional monitoring mechanisms. It has helped countries achieve social progress, and its impact has been far-reaching both in the number of changes countries have made to their legislation and practice but also in defending and upholding rights and promoting the rule of law and governance in States.

PART II

chapter five MAPPING THE TERRAIN: STRUCTURE AND SUBSTANCE IN THE MARITIME LABOUR CONVENTION, 2006

Introduction Part I of this book was primarily concerned with setting the stage for the detailed description and analysis, in Part II, of the content of the MLC, . Part I briefly described the international regime—the legal and institutional framework and background story, particularly in connection with the ILO—against which the text of the MLC,  was developed and, finally, adopted. This wider context or ‘back story’ is important from a legal perspective as it provides a deeper understanding of the socio-economic problems that the Convention was expected address—and why a new legal instrument was seen as a solution. It also helps to explain the reasoning behind many of the textual ‘solutions’ that the MLC,  contains. The information regarding the development of legal approaches in the ILO since , discussed in Chapter , and the account of the tripartite process in Chapter , are especially relevant to understanding why the MLC,  has been described,1 inter alia, as “a marriage of the traditional and the new,”2

1

Of course any description reflects a particular view of history, a continuing validation of the relevance of law, as well as various institutional and other promotional aspirations for an instrument. See Ed Morgan, The Aesthetics of International Law (Toronto: University of Toronto Press, ), pp. –, with respect to a tendency in public international law, in LOSC-related doctrinal pronouncements, in particular, to lay claim to represent the progressive development of the law and much more besides. He argues that: By so situating the text historically between an instant of closure and a wide open process, the reader becomes aware of the momentum generated by international legal discourse, and it is from the dust this non-static phenomenon that the sovereign states emerge as ‘parties’ to the law of the of the sea system. . . . Modern doctrinal pronouncements seem to be positioning themselves as the energy or momentum coming between stasis and motion—that is, as both the potential and fulfilment of the law’s promise. 2 Cleopatra Doumbia-Henry, “The Consolidated Maritime Labour Convention: A marriage of the traditional and the new,” in Le norms internationales du travail: un patrimoine pout lávenir, Melangers en l’honneur de Nicolos Valticos (ILO: Geneva, ), p. .



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“innovative,”3 and a “veritable accomplishment in international regulatory policy.”4 As explained in Chapter , Part II of this book provides a detailed examination and analysis5 of the text of the MLC,  from a legal perspective. Aside from the present chapter and the concluding Chapter , the six chapters that comprise Part II follow the general organization of the provisions of the MLC, . Before moving to examine the substantive content of the MLC,  provisions, this chapter considers the structural and other design-related approaches in the MLC, . The term structural elements6 or ‘innovative features’, as they were often described during the process leading to the adoption of the Convention, is used in this chapter to capture a diverse or mixed bag of details of varying import that can be overlooked or often assumed away in legal analysis including, inter alia, – – – – – – – –

organization of the Convention relationship between various parts of the Convention nomenclature and numbering of the Convention format and numbering of the provisions insertion of purpose clauses use and status of the ‘Explanatory Note’ combination of flexibility and consultation use of existing documentation and reporting

These regulatory design-related elements are central to the subsequent legal analysis. They constitute the legal skeleton or underlying framework which shaped the substantive cloth—the text—that was ultimately developed. Put more simply, form and substance are inseparable, and it is impossible to fully appreciate and penetrate the way in which the MLC,  is intended to operate

3

Patrick Bolle, Perspectives: “The ILO’s new Convention on maritime labour: An innovative instrument,” ()  International Labour Review . 4 Peter Payoyo, “The contribution of the  ILO Maritime Labour Convention to Global Governance,” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, Aldo Chircop, Ted L. McDorman, and Susan J. Rolston, eds. (Leiden/Boston: Martinus Nijhoff/Brill, ), – at . 5 As noted in Chapter , this analysis is subject to a caveat. Like any other legal instrument, understandings at the time the Convention was negotiated and the records of these understandings illuminate the text of the instrument and play an important role in the analysis of a text’s ‘meaning’ and, more importantly, what it means for national implementation and application to particular situations. In addition, general principles of international law relating to the interpretation of treaties, such as those found in the  Vienna Convention on the Law of Treaties are also important, with recourse to the International Court of Justice for an authoritative interpretation. Any commentary, including analyses based on the intentions captured in official records, is, at best, explanatory. 6 The term ‘strategic approach’ is used to refer to the multiple socio-economic and human rights objectives of the MLC,  and the aspects of structure that help to achieve these objectives.

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as a legal instrument without first understanding something about its ‘bones’.7 In essence this chapter can be understood as a legal mapping exercise, establishing both the broad parameters of the Convention as well as identifying particular markers in the landscape—the legal terrain—to be traversed in the subsequent chapters. An examination of these structural elements reveals their implications for the design of the future mandatory Article  reports8 by countries regarding national implementation of their obligations under the MLC, . These elements also provide an excellent example of international integration and inter-institutional learning and exchange.9 The structural approaches successfully adopted by one UN specialized organization, the International Maritime Organization, were adapted and further developed to meet another institution’s (the ILO) concerns and the specific objectives of the convention in question. A point of particular interest in this chapter is the extent to which concern for these structural elements and the adaption of ‘best practices’ was explicit in the

7 In this respect the MLC,  is very much like LOSC and the ‘package deal’ approach which explains the final textual results and the balances struck between the sometimes conflicting interests of the traditional maritime States and the emerging coastal States. As noted by David Anderson, in “Law-making processes in the UN system: Some impressions,” Modern Law of the Sea, Selected Essays (Leiden/Boston: Martinus Nijhoff, ), – at : “At the Law of the Sea Conference . . . [t]here were no clearly defined stages, nor a pre-ordained pattern for the work. There was no basic text at the outset only a list of  subjects and issues. . . . On procedure, the way forward was often unclear, so that improvisation was required”. 8 The Article  report form for the MLC,  can be found in Appendix IV, Reports of the Committee on Legal Issues and International Labour Standards: Second Report: International labour standards and human rights, Governing Body, Geneva, March , ILO Doc. No. GB.// (Rev), pp. –, available at http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm. See also Chapter  for a discussion of the ILO’s supervisory system. 9 See: Moira. L. McConnell, “ ‘Making labour history’ and the Maritime Labour Convention, : Implications for international law-making (and responses to the dynamics of globalization),” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, Aldo Chircop, Ted L. McDorman, and Susan J. Rolston, eds. (Leiden/Boston: Martinus Nijhoff, ), – at :

The representatives of these shipowner and seafarer organizations also attend and closely follow the IMO meetings and processes, and had an interest in ensuring that labour standards were given the same profile as environmental and safety and security issues. As much as possible, efforts were made to ensure that the two regimes were consistent in approach and avoided uncertainty resulting from conflicting or differing requirements, especially in overlapping areas. In terms of integrating forces in the international system it was really the pressure from these civil society representatives that, far more than governments, perhaps because of the differing composition of delegations to the IMO and the ILO and the related national departmental assignments, that helped to ensure the cross-fertilization of ideas and cooperation to create complementary regimes.



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preparatory process and official documentation. For example, the report of the Office to the  PTMC commented (emphasis added): . In order to achieve the aims established at the start of the exercise, the recommended draft Convention on maritime labour standards has had to embody a number of innovative solutions, which have from time to time prompted questions from Government representatives familiar with the ILO’s traditional Conventions. Many of these novel features for the ILO in fact rely on recognized and accepted approaches in other Conventions in the maritime sector—namely, those of the International Maritime Organization (IMO). This is the case with the general structure of the Convention, its simplified amendment procedure and the system of certification of ships for compliance with the requirements of the Convention. The IMO solutions have not however been imported en bloc in view of the very different constitutional requirements, procedures and philosophy of the ILO (particularly, those inherent in tripartism). In order to understand the reason why a particular innovation has been considered necessary, it is often useful to see the feature in the context of the problem that it is designed to resolve.10

The Structural Problem Chapters  and  in Part I of this book explored the particular industry problems that the MLC,  was expected to address, as well as the overarching ILO objectives related to the role of minimum social and labour conditions in the context of globalization. The strategic response that was adopted to achieve these objectives has been described as a “blend of firmness on rights and flexibility with respects to approaches to implementation of the more technical requirements and because of the advantages it gives to ships of countries that ratify it”.11 Preparing such a comprehensive framework convention presented some difficult but interesting legal and drafting challenges. The chief initial drafting problem lay with developing an organizational structure that could consolidate and update the obligations in the existing conventions, as well as updating and incorporating provisions found in the related recommendations12

10

Consolidated Maritime Labour Convention: Commentary to the Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo .org/public/english/standards/relm/ilc/ilc/ptmc/pdf/cmlc-comment.pdf. See also the discussion in Chapter . 11 ILO, “Maritime Labour Convention, , FAQs”, at question , available at http://www.ilo .org/global/standards/maritime-labour-convention/faq/lang–en/index.htm. 12 It is important to appreciate the fact that many of these conventions are associated with recommendations ( in all) that have a specific legal status under the ILO Constitution (see Article ()) but are not per se binding under international law although there is a level of obligation as discussed in Chapter . This will also be discussed in more detail in Chapter  in connection

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that had been adopted since —initially  instruments13—on many different topics. Although many of the existing ILO maritime labour conventions were not widely ratified, or had already been revised, they generally represented intensive international tripartite negotiations and final agreement on a minimum standard. From a legal perspective, it was a significant drafting exercise to develop a structure that truly captured the legal principles or rights and standards in existing conventions so as to be viewed as ‘revising’14 them without simply reproducing the substantive text of all the instruments in their entirety. Certainly this was important for conventions that had attracted few ratifications because of the particular wording of the obligation. But eliminating text or adjusting binding obligations to any great degree would also be problematic, particularly for conventions that had achieved a larger number of ratifications. Indeed the ILO Constitution may provide some protection regarding the reduction of existing rights at the national level.15 At the same time, as noted in Chapter , many of these conventions were either not widely ratified or had not come into force.16 Arguably this was because of their level of regulatory detail or the fact that the requirements were outdated and no longer considered up to date by the ILO.17 In addition, many of the conventions adopted with the articles. In essence they contain the even more detailed aspects of the conventions to which they are related which could not be agreed to as binding obligations. The content of many of these recommendations was also to be consolidated in the new convention. 13 The Convention revises  conventions (including one protocol) (see Article X) and  related recommendations. Initially it had been expected that three other conventions (plus one revising convention adopted in ) might be revised. See Chapter . 14 There is a further specific complexity, as discussed in Chapter  on the articles in connection with conventions adopted before , in that that they could not be revised. 15 Constitution of the International Labour Organisation, available at http://www.ilo.org/ilolex/ english/constq.htm, Art. , para. : In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation. Although this would not necessarily prevent the ILC from adopting a convention that changes a standard that had proved problematic for countries to implement. See also: Chapter , note . 16 For example, the Social Security (Seafarers) Convention,  (No. ). 17 As noted in Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/ public/english/standards/relm/ilc/ilc/rep-i-a.pdf, p. : . Following the conclusions of the Governing Body Working Party on Policy regarding the Revision of Standards, which examined pre- standards,  maritime labour Conventions, one Protocol and  Recommendations were considered sufficiently up to date and relevant to the industry.10 This body of standards represents a considerable achievement for the protection of the workers concerned and for the industry as a whole. Each of these  Conventions retains its intrinsic validity. Some of them have very novel



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since  had been revised, but the parties were not necessarily the same to the revised conventions. Further, some of the conventions had “complex, uncoordinated and overlapping provisions”18 and, more problematically from a structural design perspective, there had been an earlier effort at consolidation19 of the Merchant Shipping Convention (Minimum Standards) Convention,  (No. ) and its Protocol () was also to be revised. These two conventions simply appended and incorporated, by reference, the existing text of a list of conventions20 and focused instead on commitments to implement and features, in particular, the Merchant Shipping (Minimum Standards) Convention,  (No. ), which, in keeping with the globalized nature of the maritime sector, places responsibility on all countries for ships flying their flag or coming within their territorial jurisdiction. Another is the Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation,  (No. ) (and its predecessor), which contains a procedure for international collective bargaining on the basic minimum wage for able seafarers. [Fn ] ILO: Reports of the Committee on Legal Issues and International Labour Standards: Second report: International labour standards and human rights, Governing Body, rd and th Sessions, Geneva, Nov.  and Mar. , GB.// and GB.//; ILO: Report of the Working Party on Policy regarding the Revision of Standards, Governing Body, rd and th Sessions, Geneva, Nov.  and Mar. , GB./LILS/(Rev.) and GB./LILS/(Rev.). In fact, many of these conventions are not even listed on an ILO Web site dealing with ratifications. However countries are still legally bound by them. 18 Ibid., para. , p. . 19 See: Merchant Shipping Convention (Minimum Standards) Convention,  (No. ), Geneva,  October , and Protocol of  to the Merchant Shipping (Minimum Standards) Convention,  (P), Geneva,  October , both available at http://www.ilo.org/ilolex/ english/convdisp.htm. Another more practical approach to consolidation was also tried with the publication, in  and again in  (th edition) of an edited and organized collection of the conventions. See para. . and note  in Final Report, HLTWG (First Meeting), Geneva, – December , ILO Doc. No. TWGMLS /, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-fr.pdf: The ILO publication Maritime labour Conventions and Recommendations contains the text of  Conventions, one Protocol and  Recommendations.2 Intended to contribute to the clear and systematic codification of laws on the rights and obligations of seafarers, these instruments have proved to be extremely valuable to the shipping industry. . . . [Fn ] Nine Conventions and six Recommendations are not included because, in the case of the Conventions, they have not received the number of ratifications for entry into force or are no longer open to ratification as a result of the entry into force of a revising Convention. The Recommendations which are not included are not considered to be of current interest. 20

Convention No. , ibid., Art.  provides that: Each Member which ratifies this Convention undertakes— (a) to have laws or regulations laying down, for ships registered in its territory—. . . . and to satisfy itself that the provisions of such laws and regulations are substantially equivalent to the Conventions or Articles of Conventions referred to in the

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enforce.21 In addition the MLC,  was expected to develop new obligations related to, inter alia, enforcement of its standards at the shipboard level and to address in more concrete ways other contemporary concerns such as security for shipowners’ liability for seafarers’ repatriation, health care, and abandonment. Appendix to this Convention, in so far as the Member is not otherwise bound to give effect to the Conventions in question; . . .. (e) to verify by inspection or other appropriate means that ships registered in its territory comply with applicable international labour Conventions in force which it has ratified, with the laws and regulations required by subparagraph (a) of this Article and, as may be appropriate under national law, with applicable collective agreements; APPENDIX Minimum Age Convention,  (No. ), or Minimum Age (Sea) Convention (Revised),  (No. ), or Minimum Age (Sea) Convention,  (No. ); Shipowners’ Liability (Sick and Injured Seamen) Convention,  (No. ), or Sickness Insurance (Sea) Convention,  (No. ), or Medical Care and Sickness Benefits Convention,  (No. ); Medical Examination (Seafarers) Convention,  (No. ); Prevention of Accidents (Seafarers) Convention,  (No. )(Articles  and ); Accommodation of Crews Convention (Revised),  (No. ); Food and Catering (Ships’ Crews) Convention,  (No. ) (Article ); Officers’ Competency Certificates Convention,  (No. ) (Articles  and ); (Note: In cases where the established licensing system or certification structure of a State would be prejudiced by problems arising from strict adherence to the relevant standards of the Officers’ Competency Certificates Convention, , the principle of substantial equivalence shall be applied so that there will be no conflict with that State’s established arrangements for certification.) Seamen’s Articles of Agreement Convention,  (No. ); Repatriation of Seamen Convention,  (No. ); Freedom of Association and Protection of the Right to Organise Convention,  (No. ); Right to Organise and Collective Bargaining Convention,  (No. ). P, ibid., with  ratifications as of October , provides in Article  that: . Each Member which ratifies this Protocol shall extend the list of Conventions appearing in the Appendix to the principal Convention to include the Conventions in Part A of the Supplementary Appendix and such Conventions listed in Part B of that Appendix as it accepts, if any, in accordance with Article  below. . Extension to the Convention listed in Part A of the Supplementary Appendix that is not yet in force shall take effect only when that Convention comes into force. Supplementary Appendix

21

Part A: Accommodation of Crews (Supplementary Provisions) Convention,  (No. ) and Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ) Part B: Seafarers’ Identity Documents Convention,  (No. ); Workers’ Representatives Convention,  (No. ); Health Protection and Medical Care (Seafarers) Convention,  (No. ); Repatriation of Seafarers Convention (Revised),  (No. ). Although Convention No.  is also sometimes described as the first international binding

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The remainder of this chapter discusses the structural solutions developed to address these problems and begins with an overview of the organization of the Convention and its format. It is notable that, although the Convention was often heatedly negotiated between  and , the final text has been described as having “remained true to the principles established in  in all respects: substantive content, structure and approach”.22 Organization of the MLC,  Overview of the Format The final organizational or structural result23 of the negotiations is authoritatively explained in a unique text, the Explanatory Note to the Regulations and Code of the Maritime Labour Convention (Explanatory Note). Although physically located in the Convention, immediately following the Articles, the Explanatory Note “does not form part of the Maritime Labour Convention, [and] is intended as a general guide to the Convention”.24 It explains that: . The Convention comprises three different but related parts: the Articles, the Regulations and the Code. . The Articles and Regulations set out the core rights and principles and the basic obligations of Members ratifying the Convention. The Articles and Regulations can only be changed by the Conference in the framework of Article  of the Constitution of the International Labour Organisation (see Article XIV of the Convention). . The Code contains the details for the implementation of the Regulations. It comprises Part A (mandatory Standards) and Part B (non-mandatory Guidelines). The Code can be amended through the simplified procedure set out in Article XV

articulation of a port State control regime, this is not, in fact, accurate. See Chapter , note , for the history of the port State control regime. 22 Report I(A), supra note , para. . 23 This result will also be discussed in Chapter  in connection with the examination of Articles II and VI. 24 See: Appendix  of this book, p. , Explanatory Note, para. . See also: Report I(A), supra note , Note  (Explanatory note): . The Regulations and the Code begin with the “Explanatory note”, . . . The Explanatory note distils the agreements reached by the HLTWG and adopted by the PTMC concerning the approach and structure of the new Convention and the interrelationship between the Articles, Regulations and the Code and between Part A and Part B of the Code. The Explanatory note is included with the Convention, but indicates, in paragraph , that it should not, from a legal perspective, be considered a part of the Convention. It will have a status similar to that of the Preamble—to assist interpretation. It should also be useful for clarifying a number of matters (such as the treatment to be given to Part B of the Code) for national parliaments considering ratification of the Convention.

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of the Convention. Since the Code relates to detailed implementation, amendments to it must remain within the general scope of the Articles and Regulations. . The Regulations and the Code are organized into general areas under five Titles: – Title : Minimum requirements for seafarers to work on a ship – Title : Conditions of employment – Title : Accommodation, recreational facilities, food and catering – Title : Health protection, medical care, welfare and social security protection – Title : Compliance and enforcement . Each Title contains groups of provisions relating to a particular right or principle (or enforcement measure in Title ), with connected numbering. The first group in Title , for example, consists of Regulation ., Standard A. and Guideline B. relating to minimum age. . The Convention has three underlying purposes: – to lay down, in its Articles and Regulations, a firm set of rights and principles; – to allow, through the Code, a considerable degree of flexibility in the way Members implement those rights and principles; and – to ensure, through Title , that the rights and principles are properly complied with and enforced.

This concise description, despite its explicit ‘non-status’, was very carefully negotiated text that outlines the structural and conceptual framework under which the existing conventions and related recommendations were consolidated. The organizational structure of the MLC,  can be described as a ‘cascade’ of increasing specificity and flexibility and levels of obligation. The articles set out the overarching obligations and rights and principles of the Convention. They are followed by the regulatory provisions (regulations and standards), which contain detailed rights and obligations (under each Title). Finally, the more technical matters are set out in the most flexible part, from a legal perspective, the non-mandatory guidelines in Part B of the Code. Although described as three parts, in terms of the status of the legal obligations, the Convention really only has two parts: the binding provisions (articles, regulations and standards and the related appendix to Part A of the Code) and the non-mandatory ‘due consideration’ provisions (the guidelines and appendix Part B of the Code). This grouping and terminology, particularly the guidelines, differs from earlier ILO instruments. As noted by Payoyo, this combination of legal obligations of varying legal status and degrees of acceptance meant that “. . . in its form the MLC combines both ‘hard law’ and ‘soft law’ formulations and approaches in a single instrument”.25 25

Payoyo, supra note , p. .

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This hierarchal distinction in ‘status’ between the various levels of the binding provisions (articles and regulations vs the standards in Part A of the Code) relates primarily to differing amendment procedures and to the application of some of the flexibility provisions26 of the Convention. These aspects will be examined in more detail in Chapter  on the articles. What is more interesting from an international law perspective is the extent to which the concept of an implicit hierarchy among binding provisions evolved, with more generic statements of principle or rights essentially ‘authorizing’ or defining the scope of more detailed technical provisions. This reflects a common law regulatory approach, with statutes authorizing or delegating authority to adopt or alter regulations on specific matters without an act of parliament. However, in principle in international law, there is no such hierarchy or distinction between binding obligations, irrespective of the approach to amendment. As discussed in Chapter ,27 this hierarchy was created in the Convention with some areas of flexibility expressly provided for matters relating to the detailed Code, which comprises both biding and non-binding provisions. As a result, it appears that that the provisions in the standards, or amendments to those provisions, cannot exceed the rights or obligations stated in the regulation concerned.28 Of course, the wording in regulations that refer to the ‘requirements set out in the Code’29 indicates that the reader needs to look at the Code to establish the content of the obligation in the regulation. Does this wording or the structure of the Convention necessarily mean that that a standard cannot be adopted or interpreted as exceeding the obligation set out in a regulation? Certainly this will be a question to be explored in the future when amendments to the MLC,  are considered.30 As discussed in Chapter  and explored further in the next section, in connection with the history of the development of its structure, it is notable that the MLC,  was initially expected to follow an approach similar to the IMO’s International Convention on Standards of Training Certification and Watchkeeping (STCW) and other conventions. It has different but related parts, moving from the more general to the more specific: articles, regulations, and a twopart code (Part A—mandatory standards, Part B—non-mandatory guidelines). 26

For example, substantial equivalence under Article VI relates only to Part A of the Code, Titles –, and the possibility, under Article II, paragraph , of differing national implementation regimes for ships under  GT that do not voyage internationally relates only to the Code. 27 See Chapter , pp. –. 28 But in principle, other than the understandings that evolved in the history of the development of the structure of the Convention, it is not entirely clear why this should be the case. 29 For example, Regulation ., para. . 30 See Ninth Session, Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation Regarding Claims for Death, Personal Injury and Abandonment of Seafarers, Geneva,  February , IMO Doc. No. IMO/ILO/WGLCCS /, para. .

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These move through the spectrum from binding broad statements of principles and rights to highly detailed flexible regulatory requirements and, finally, to guidance, the STCW follows what could be called a lateral or horizontal or a ‘book’ approach with the reader moving through consecutive blocks of text organized by a regulatory approach to legal status. Similarly, as described in its Explanatory Note, the MLC,  is organized into  articles (Articles I–XVI) with the remaining provisions organized under five Titles (Titles –) comprising the substance of the existing conventions and recommendations and new obligations. Each of these Titles comprises regulations, standards, and guidelines related to various topics, with appendices31 for Title  related to the ship inspection obligations and the model documents referenced in the provisions contained in Title  (Figure ). However, unlike the IMO conventions, the MLC,  has what has been described as a ‘vertically integrated’ format. The regulations and Part A (Standards) and Part B (Guidelines) of the Code have a numbering system that visually and legally links the related regulations, standards and guidelines on a topical basis. Figure  offers an example concerning the food and catering provisions in Regulation ., Standard A., and Guideline B.. The early draft MLC,  texts that were prepared for consideration by the tripartite meetings to develop the text initially adopted a format based on the ‘horizontal’ structure of STCW and other IMO conventions and framework conventions in other sectors. The vertical approach evolved during the negotiations. In part this was because of a high level of transparency regarding access to the ‘text’, with informal copies of text being circulated electronically among key participant groups preparing for negotiations. This assisted in a tangible claim to ownership of ‘the text’ by ILO constituents. From a negotiating perspective, this level of investment in terms of encouraging support while providing some challenges regarding acceptance of later adjustments to the text, can be seen as ideal. The vertical format reflects a more pragmatic approach to the legal text and seems, on the face of it, to be an improvement over the IMO and other similar models with their extensive annexes. Certainly it is a textual approach that may be easier to read electronically. It also serves the very important substantive function of ensuring that the non-mandatory guidance in Part B of the Code is clearly and visually connected to the mandatory text that it is meant to inform. In the MLC,  this particular aspect also has a significant legal meaning for implementation and for the ILO supervisory system. The development of the final form of the Convention is discussed in more detail in the following sections. 31

It is conceivable that future amendments to provisions in other Titles to the Convention might establish additional appendices also linked numerically to the relevant regulations.

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Figure . Titles and appendices of MLC,  Title . Minimum requirements for seafarers to work on a ship Regulation .—Minimum age Regulation .—Medical certificate Regulation .—Training and qualifications Regulation .—Recruitment and placement Title . Conditions of employment Regulation .—Seafarers’ employment agreements Regulation .—Wages Regulation .—Hours of work and hours of rest Regulation .—Entitlement to leave Regulation .—Repatriation Regulation .—Seafarers’ compensation for the ship’s loss or foundering Regulation .—Manning levels Regulation .—Career and skill development and employment opportunities for seafarers Title . Accommodation, recreational facilities, food and catering Regulation .—Accommodation and recreational facilities Regulation .—Food and Catering Title . Health protection, medical care and social security protection Regulation .—Medical care on board ship and ashore Regulation .—Shipowners’ liability Regulation .—Health and safety protection and accident prevention Regulation .—Access to shore-based welfare facilities Regulation .—Social security Title  Compliance and Enforcement Introductory paragraphs Regulation .—Flag state responsibilities Regulation .—Port state responsibilities Regulation .—Labour supplying responsibilities Appendix A-I—The working and living conditions of seafarers that must be inspected and approved by the flag State before certifying a ship in accordance with Standard A.., paragraph  Appendix A-II—Maritime Labour Certificate; Declaration of Maritime Labour Compliance—Part I; Declaration of Maritime Labour Compliance—Part II; Interim Maritime Labour Certificate Appendix A-III—General areas that are subject to a detailed inspection by an authorized officer in a port of a Member carrying out a port State inspection pursuant to Standard A.. Appendix B-I—Appendix B-I—Example of a national Declaration (Parts I and II)

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Figure . Example of vertical integration Regulation .—Food and catering Purpose: To ensure that seafarers have access to good quality food and drinking water provided under regulated hygienic conditions . Each Member shall ensure that ships that fly its flag carry on board and serve food and drinking water of appropriate quality, nutritional value and quantity that adequately covers the requirements of the ship and takes into account the differing cultural and religious backgrounds. . Seafarers on board a ship shall be provided with food free of charge during the period of engagement. . Seafarers employed as ships’ cooks with responsibility for food preparation must be trained and qualified for their position on board ship. Standard A.—Food and catering . Each Member shall adopt laws and regulations or other measures to provide minimum standards for the quantity and quality of food and drinking water and for the catering standards that apply to meals provided to seafarers on ships that fly its flag, and shall undertake educational activities to promote awareness and implementation of the standards referred to in this paragraph. . Each Member shall ensure that ships that fly its flag meet the following minimum standards: a) food and drinking water supplies, having regard to the number of seafarers on board, their religious requirements and cultural practices as they pertain to food, and the duration and nature of the voyage, shall be suitable in respect of quantity, nutritional value, quality and variety; b) the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions; and c) catering staff shall be properly trained or instructed for their positions. . Shipowners shall ensure that seafarers who are engaged as ships’ cooks are trained, qualified and found competent for the position in accordance with requirements set out in the laws and regulations of the Member concerned. . The requirements under paragraph  of this Standard shall include a completion of a training course approved or recognized by the competent authority, which covers practical cookery, food and personal hygiene, food storage, stock control, and environmental protection and catering health and safety. . On ships operating with a prescribed manning of less than ten which, by virtue of the size of the crew or the trading pattern, may not be required by the competent authority to carry a fully qualified cook, anyone processing food in the galley shall be trained or instructed in areas including food and personal hygiene as well as handling and storage of food on board ship. . In circumstances of exceptional necessity, the competent authority may issue a dispensation permitting a non-fully qualified cook to serve in a specified ship for a specified limited period, until the next convenient port of call or for a period not exceeding one month, provided that the person to whom the dispensation is issued is trained or instructed in areas including food and personal hygiene as well as handling and storage of food on board ship.

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. In accordance with the ongoing compliance procedures under Title , the competent authority shall require that frequent documented inspections be carried out on board ships, by or under the authority of the master, with respect to: a) supplies of food and drinking water; b) all spaces and equipment used for the storage and handling of food and drinking water; and c) galley and other equipment for the preparation and service of meals. . No seafarer under the age of  shall be employed or engaged or work as a ship’s cook. Guideline B .—Food and catering Guideline B..—Inspection, education, research and publication . The competent authority should, in cooperation with other relevant agencies and organizations, collect up-to-date information on nutrition and on methods of purchasing, storing, preserving, cooking and serving food, with special reference to the requirements of catering on board a ship. This information should be made available, free of charge or at reasonable cost, to manufacturers of and traders in ships’ food supplies and equipment, masters, stewards and cooks, and to shipowners’ and seafarers’ organizations concerned. Appropriate forms of publicity, such as manuals, brochures, posters, charts or advertisements in trade journals, should be used for this purpose. . The competent authority should issue recommendations to avoid wastage of food, facilitate the maintenance of a proper standard of hygiene, and ensure the maximum practicable convenience in working arrangements. . The competent authority should work with relevant agencies and organizations to develop educational materials and on-board information concerning methods of ensuring proper food supply and catering services. . The competent authority should work in close cooperation with the shipowners’ and seafarers’ organizations concerned and with national or local authorities dealing with questions of food and health, and may where necessary utilize the services of such authorities. Guideline B ..—Ships’ cooks . Seafarers should only be qualified as ships’ cooks if they have: a) served at sea for a minimum period to be prescribed by the competent authority, which could be varied to take into account existing relevant qualifications or experience; b) passed an examination prescribed by the competent authority or passed an equivalent examination at an approved training course for cooks. . The prescribed examination may be conducted and certificates granted either directly by the competent authority or, subject to its control, by an approved school for the training of cooks. . The competent authority should provide for the recognition, where appropriate, of certificates of qualification as ships’ cooks issued by other Members, which have ratified this Convention or the Certification of Ships’ Cooks Convention,  (No. ), or other approved body.

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The Development of the Structure This section provides an account of the history of the development of the final format of the MLC,  text. While to some extent this is inseparable from the story recounted in Chapter  and the decisions on substantive content, the focus of this chapter, and this section in particular, is to describe the development of its form and the way in which particular legal concerns and drafting problems related to organization and structure, including matters such as numbering and terminology, were considered and addressed over time. The content of the Convention will grow or develop beyond the text adopted in . Essentially, the current organization and format was settled when the integrated or vertical format and the text of the Explanatory Note was developed and agreed to by the HLTWG in  and subsequently adopted by the PTMC, also in . This following account does not attempt to document every step in the development of the text in the formative period –. Rather, it identifies key decision points in the commentaries in the working papers and other documents prepared throughout this period. Other important decisions relating to substance during the entire period – are considered in Chapter  on the development of the Convention and in the following chapters dealing with the substantive aspects of the Convention’s provisions. The Initial Approach— As explained in Chapters  and , the foundation for the MLC,  was essentially an industry agreement, the  Geneva Accord, which set out an agreement between the international representatives of shipowners and seafarers on the need for a framework convention with a new approach that focused on effectiveness and ensuring widespread ratification.32 The March 33 report

32

As noted in the Office Report prepared for the th ILC in , supra note , p. , Part II. In terms of format, it is of interest to note that the JMC considered a report, Review of relevant ILO maritime instruments (JMC, th Session, Geneva, , ILO Doc. No. JMC/// , available at http://www.ilo.org/public/english/dialogue/sector/techmeet/jmc/jmc-r.pdf), which set out three possible options with respect to the revision of the maritime labour instruments: limiting revision to seven outdated instruments; consolidating and updating the up-todate conventions in a new framework convention; and consolidating several conventions into four or five framework conventions covering major subject areas. The JMC adopted the second option; in fact, the framework convention, the MLC, , also revises several ‘outdated’ conventions. 33 Report of the th Session of the Joint Maritime Commission (Geneva, – January ), Governing Body, th Session, Geneva, March , ILO Doc. No. GB./(Corr.).

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to the th Session of the ILO’s Governing Body on that historic January meeting of the JMC records that: Review of relevant ILO maritime instruments . The Commission, under this item discussed the significance and impact of maritime labour standards. It agreed that many of the existing ILO maritime labour instruments were outdated, deficient and not reflective of modern practices; those which were up to date and pertinent were not sufficiently ratified. It concluded that the best way forward in line with the integrated approach approved by the Governing Body at its th Session (November ) was the adoption of a single “framework” instrument which would consolidate the existing body of ILO maritime Conventions and Recommendations.

This Session also called on the Governing Body to establish the HLTWG to develop the text of this new framework convention, which was to be adopted in  at the tenth Maritime Session of the ILC.34 The Office, building upon the analysis of maritime and other labour standards carried out in the late s, prepared two key policy papers35 for the first meeting of the HLTWG in December . The Briefing Document recited the background to the meeting and the problems that a new framework instrument should help address. It also contained eight ‘preferred solutions’ identified by the shipowners and seafarers at the JMC (see Chapter , Figure , at p. ).36 These solutions comprised a mix of substantive objectives and recommendations as to structure and format. The second document, a Working Paper prepared for the meeting taking these solutions as a starting point, noted, “it would be desirable for thought to be given, at the earliest possible stage, to the form 34

Ibid., para. . The HLTWG, and a Subgroup that was also approved, was to meet three times, in , , and . As noted in Chapter , it had a fourth meeting in , along with several Subgroup meetings, working group meetings, meetings of the Officers of the HLTWG, the PTMC (), and an Intersessional Meeting (). Although one document suggests it would have been the twelfth Maritime Session, it appears that it was the tenth. See: Briefing Note, HLTWG (First Meeting), Geneva, , ILO Doc. No. TWGMLS /, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-fr.pdf, paras . and . (NB: the document itself is not titled; however, this is the title given to it in the Final Report of the meeting, supra note , and in the second document, a working paper, provided to the meeting, which is also untitled (Working Paper, HLTWG (First Meeting), Geneva, , ILO Doc. No. TWGMLS /). 35 Briefing Note and Working Paper, ibid. The International Shipowners’ Federation (ISF) also submitted a paper explaining the apparent anomaly of an employer seeking more regulation and the concerns that led it to support the Geneva Accord. See: ISF, ISF Submission to the ILO High Level Tripartite Working Group on Maritime Labour Standards, – December , p.  (on file with the co-authors). See discussion at Final Report, supra note , paras  and . 36 See Chapter . Briefing Note, supra note , para. ..

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that such an instrument might take”.37 Interestingly, and reflecting perhaps the degree of open-mindedness of both the Office and constituents, the Working Paper begins with a proposal that might be seen as so obvious it is not even open 37 See also the discussion in Chapter . Working Paper, supra note , para. . This paper also posed several questions regarding key issues that could also affect structure, including:

. From the conclusions of the Working Party referred to in paragraph  above and from proposals of the Joint Maritime Commission, it would appear that  out of the  maritime labour Conventions, one Protocol and  of the  Recommendations are sufficiently up to date and relevant to the industry. The volume of provisions to be included in the new instrument will be reduced, once provisions on the same subject are discarded or merged. Some cases, however, will have two or more overlapping provisions, one of which establishes a higher standard. The two Conventions referred to in paragraph  above are an example of this. In such cases, should the instrument include only the higher standard? Perhaps ideally it should. But several countries may have ratified the Convention containing the lower standard. Indeed the lower standard may be contained in an old Convention with perhaps  parties, and the higher standard may form part of one which has only just entered into force with the minimum number of ratifications. It may be assumed that if the higher standard alone is included, this could considerably delay the entry into force of the new instrument or at least impair its general applicability. Is this a reasonable assumption? If it is, what kind of flexibility might be provided for in order to enable ratification by countries which at present have a lower standard of protection? Might the following options be considered? – an option not to accept one or more of the annexes (see paragraph  above) at the time of ratification? One possibility, as far as the annexes are concerned, would be to require ratifying Members to have laws and regulations that are “substantially equivalent”. This latter concept, used in Convention No.  . . . has been interpreted to mean that national laws and regulations could be different in detail, but that the States should undertake to ensure that the general goals are achieved; or: – an option not to accept, at the time of ratification, one or more Parts of the instrument and the corresponding annex(es)? or: – an option, restricted to Members that are parties to a Convention with a lower standard, enabling them to replace the relevant provision of the instrument with the corresponding provision providing for a lower standard? This might, however, increase the complexity of the instrument. If options of this kind were provided for, they could be made subject to conditions designed to pave the way for full acceptance of the instrument. Governments exercising one or other of the options (in consultation with their social partners) might be required to: – give effect to the higher standard in so far as conditions permitted; – move as quickly as possible to renunciation of the option concerned; and – report regularly on progress made with regard to these two aspects. Would the existence of options significantly facilitate ratification of the instrument by countries whose legislation only provides for the lower standard? Would any advantage in this respect be outweighed by a possible disincentive regarding ratification of the new instrument by Members which are already at the higher standard?

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to question—the proposition that a new instrument, whatever its final structure or format, would take the legal form of an international labour convention, with all that this implies.38 Equally interesting, in light of the many innovations that were developed, only the concept of a rapid amendment procedure was explicitly foreseen at this early stage,39 although a significant innovation, from an ILO perspective, the Article XIII, Special Tripartite Committee, was foreshadowed.40 The Working Paper contains a preliminary ‘sketch’ for a possible structure for the Convention. In retrospect, this proposal appears highly complex and chiefly concerned with the legal problems posed by the consolidation of so many existing conventions and recommendations and responding to the structural suggestions in the ‘preferred solutions’. Despite this complexity, elements of what would be the final structure can be detected. For example, it was initially proposed that a five-part instrument could be developed, possibly with options regarding ratification of some annexes. This approach, although not stated as such, would be similar to that found in the IMO’s International Convention on the Prevention of Pollution from Ships, , as amended (MARPOL)41 with its mix of obligatory and optional annexes. Simply described, the five-part concept was envisaged as beginning with an overarching ‘principles and rights’ part. The balance of the convention (four parts) would be organized in topical ‘families’ of conventions/provisions comprising a mix of mandatory and non-mandatory provisions and annexes. The concept was explained in the Working Paper as follows: . Part I of the instrument might be a statement of fundamental principles and rights at work, those contained in maritime Conventions and perhaps those in other relevant international labour Conventions. This Part would also set out the responsibilities of the parties with respect to the inspection of ships, including those registered elsewhere. . . . Each of the remaining Parts would be devoted to a particular “family” of principles and rights; for example, one such Part might deal with social security matters. . Each Part, from Part II onwards, would have an annex, setting out detailed requirements for implementation of the principles and rights in the Part concerned (see point  of the “preferred solutions”). It would essentially contain the more detailed provisions of the Conventions concerned. These details could be amended through simplified procedures of the kind mentioned above (see paragraph  onwards). These procedures might be set out in the “final clauses” of the instrument.

38

Working Paper, ibid., para. . The proposition is advanced in connection with the Constitution of the ILO and the procedures under Article  for adoption by an International Labour Conference. This already establishes a direct connection to the ILO’s supervisory system. 39 Ibid., para. . 40 Ibid., para. . 41 Supra note .

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. The final clauses would also contain the usual provisions, perhaps with some adjustments, in order to avoid any duplication in the implementation of the new instrument with respect to existing Conventions ratified by the Member concerned, and, in order to preserve the “capital” of ratifications that has already been built up, by ensuring that obligations under existing Conventions remain fully in force until they are replaced for the Member concerned by equivalent or higher standards under the new instrument. . The Parts and annexes of the instrument would be binding on Members ratifying it. At the time of ratification, it might be possible for a Member not to agree to be immediately bound by particular Parts or annexes. There would be an additional component, reflecting the provisions of existing international labour Recommendations and other material, such as codes of practice (see point  of the “preferred solutions”). This component would not have mandatory force. . Thus the substance of existing Conventions and Recommendations might be rationalized and consolidated in a single instrument covering five areas: Binding Part I: Fundamental principles and rights Parts II to ??: Substantive principles of families of Conventions “Final clauses” Annexes: Parts II to ??: Details plus simplified amendment procedure Non-binding Other provisions: Recommendations, codes of practice and guidelines.42

Even though the terminology and other elements changed, some aspects of the initial approach are retained in the final text, particularly the idea of a first part or section with ‘principles and rights’. However, as pointed out in a paper43 prepared for a subsequent meeting, it proved to be difficult to identify principles or rights per se in the many conventions that were being consolidated. The final content of that section (later to become simply the ‘articles’) may have been influenced by the structural approach in IMO conventions with their essentially standardized format that starts with articles setting out basic definitions and general State-level obligations relating to implementation and enforcement and other technical generic legal matters, such as amendments and requirements for entry into force, that exist for every convention. As discussed in Chapter , the influential first meeting of the HLTWG essentially set the course for the text that was finally adopted. The Final Report of that meeting, perhaps unusually for such an international meeting, contained a useful appendix, described simply as ‘Chairperson’s Summary’, setting out, in point form, the various matters on which there appeared to be consensus. Given the influence of this first meeting and the extent to which the IMO conventions are explicitly recorded as being relevant to considerations of form, as well 42

Working Paper, supra note . The Structure of the New Instrument: Allocation between Principles and Details, HLTWG (First Meeting), ILO Doc. Geneva, , No. STWGMLS//, available at http://www.ilo.org/ public/english/dialogue/sector/techmeet/stwgmls/stwgmls-.pdf, para. .

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as views on what would be become lynchpin substantive approaches (e.g., ‘substantial equivalence,’ ‘no more favourable treatment,’ port State control, and the concepts of ‘inflexibility on rights’ and ‘flexibility on approach’ and the ‘level playing field’), Figure  below sets out this part of the Chairperson’s Summary in full.44 This informal record of agreed concepts and approaches at the beginning of a process that would continue for more than five years of international meetings is remarkable for both its prescience and its clarity. It provides evidence for the assertion in the report of the Office to the th ILC in  that the “proposed consolidated maritime labour Convention has remained true to the principles established in  in all respects: substantive content, structure and approach”.45

44

Final Report, supra note , Appendix. See also the discussion in Chapter  text at note . The meeting (and Chairperson’s Summary) also established a detailed work plan and agenda for the meeting of the Subgroup in , a meeting that would focus mainly on structure. Substantive matters for initial consideration . The development of a draft programme of work . . . . Recommendations on the content of a draft framework instrument In making these recommendations, the subgroup will: (a) give proper consideration to the following solutions that have been agreed on a tripartite basis: . . . [the  preferred solutions] (b) give proper consideration in a maritime context to the essential aspects of Decent Work, the components of which are: . Human rights at work. . Employment and incomes. . Social protection and social security. . Social dialogue. (c) give proper consideration to the contents of this summary; (d) perform the following tasks: . Preparation of preliminary draft provisions relating to: (i) enforcement mechanisms; and (ii) simplified procedures for rapid amendment of the annexes to the instrument. . For the purposes of consolidation, the identification of “families” for the Parts and the selection of instruments on which work should begin; . Development of the main elements of the instrument, including: (i) identifying where existing provisions overlap or conflict and making appropriate recommendations; and (ii) recommending the allocation of provisions as between mandatory and non-binding components; . Arrangements for gathering information and ideas for these and other questions. 45 Report I(A), supra note , Part II, Commentary, para. . It is notable that the same Chairperson, Mr. Jean Marc Schindler, remained throughout the process.

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Figure . Chairperson’s summary (emphasis added) Preliminary thoughts on the various issues The wide-ranging discussion indicated the following points to be taken into account in elaborating the proposed new instrument: – there was overall support for the proposed general structure of the new instrument: – the structure is reflected in paragraph  of the Office working paper and an example of one possible model is illustrated in the annex to the ISF submission; – the importance of a definition chapter was emphasized; – the new instrument should be clearly based on the existing body of ILO standards: – the capital consisting of existing rights, updated where necessary, should be faithfully preserved without prejudice to the need for innovation; – the provisions of existing ILO instruments should be taken as a starting point; – consistency with other ILO standards as well as those of other organizations, in particular the IMO, was considered essential; – IMO Conventions should be closely reviewed as a source of inspiration; – modifications of IMO solutions may be suggested where appropriate; – the instrument should set out standards that are clear, simple, easy to ratify and easy to implement: – the respective roles and responsibilities of flag States, port States and labour-supplying States should be clearly defined; – due account should be taken of the special features of the maritime sector, in particular the different existing registers, the multinational character of crews and the difficulties of implementation that small countries and small ports may face; – duplication should be avoided; – linking respect for the instrument with registration should be studied; – many observations were made stressing the importance of effective enforcement mechanisms: – both flag States and port States should be responsible for enforcement; – the principle of “no more favourable treatment” was supported; – consideration should be given to the appropriateness of the following enforcement mechanisms, inter alia: – extension of port state control as provided for in Convention No.  and strengthening of related remedial measures; – the IMO “panel of competent persons” (there were however drawbacks that would need to be studied); – obligation on Members to submit their enforcement procedures for review at the time of ratification; – integration into IMO instruments such as the ISM Code or creation of similar mechanisms could be explored; – creation of a database for violation of social rights;

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– the availability of assistance from the International Labour Office, when needed, was considered essential; – there was full agreement on the need for simplified amendment procedures: – several speakers favoured a tacit acceptance procedure; – there should be a specific maritime tripartite body charged with continuously reviewing the operation of the instrument to ensure rapid updating; – the instrument should be: – inflexible with respect to rights; – flexible with respect to implementation; – the principal consideration should be the achievement and maintenance of a level playing field; – a balance sheet should be drawn up of the advantages and disadvantages of the following flexibility devices: – options concerning the provisions to be accepted – particularly the detailed annexes; – a period of transition for Members which are not immediately in a position to accept the highest standards; – “substantial equivalence”

First Concepts and Drafts—– The first meeting of the HLTWG Subgroup (STWGMLS) took place in June ,46 six months after the first HLTWG; the second HLTWG meeting was held in mid-October 47 and second Subgroup meeting in February .48 Between the two Subgroup meetings essential ground-breaking conceptual and ‘sorting’ work was undertaken to develop “a single, coherent international maritime labour standard incorporating, as far as possible, the substance of all the various international maritime labour standards that are sufficiently up to date”.49 As well as questions of form to be addressed, as noted in the Chairperson’s Summary (above at Figure ), studies50 were undertaken on specific substantive issues such as the rapid amendment procedure and ratifications needed to be taken into account in the organizational structure. In short, the Office, 46

Report, Tripartite Subgroup of the HLTWG (First Meeting), Geneva, – June , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/ techmeet/stwgmls/stwgmls-r.pdf. 47 Final Report, HLTWG (Second Meeting), Geneva, – October , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r.pdf. 48 Final Report, Tripartite Subgroup of the HLTWG (Second Meeting), Geneva, – February , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/ sector/techmeet/stwgmls/stwgmls-.pdf. 49 Report, supra note , para. . The final text revised almost all of the instruments adopted since . 50 A list of all () studies and working papers on the issues up to October  is set out in the Appendix, List of documents concerning HLTWG, supra note , pp. –.

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HLTWG, and the Subgroup faced an enormous and complex legal drafting challenge to be addressed within a relatively short time frame.51 The Working Paper prepared for the Subgroup meeting, The structure of the new instrument: Allocation between principles and details, offers the first organizational effort.52 It reflects the careful, almost tentative, wording and strategic approach adopted. It strove to find a line between developing a more “radical approach”53 to the text while at the same time not reducing existing protections or appearing to threaten the well-established foundation provided by the existing ILO standards. The Working Paper, although abbreviated, is an important document in terms of the conceptual approach ultimately adopted. It explained, first, that it “elaborates on two of the solutions: that ‘the consolidated instrument’ should consist of a number of Parts setting out the key principles of international maritime labour standards” and, second, that those parts “should be complemented by Annexes setting out detailed requirements for each of the Parts”.54 While this seems a fairly straightforward exercise, as the Paper points out, a review of the ILO conventions established that they mainly comprised detailed standards on specific technical issues of application (e.g., measurements for sleeping rooms on ships) rather than statements of principle or rights. Specifically, it pointed out, it might be difficult to get agreement on the criteria for demarcation between detail and principle and, second, as noted above, a preliminary review showed that few provisions actually appear as principles.55 The Working Paper explicitly proposed adopting what is described as a ‘pragmatic approach’, which was illustrated with an appendix containing an extract from the hypothetical ‘Promoting of Leisure at Sea Convention’.56 Although the organizational description is extremely complex, it laid the foundation for what would ultimately become a cascade approach, with provisions ranging from general or generic to the specific and increasing flexibility as provisions become more detailed. The Working Paper explained the approach as follows: . A pragmatic approach on the following lines appears preferable: the drafters of the new instrument would first examine the substance of the “family” of Conventions 51 Compare, for example, the more than a decade of negotiations in the Third United Nations Conference on the Law of the Sea to consolidate the international law of the sea in LOSC. The time frame is especially short when deadlines for translation and circulation of papers in advance to allow delegates to prepare are considered. 52 Structure of the New Instrument, supra note . 53 ISF Submission, supra note , p. . 54 Structure of the New Instrument, supra note , para. . 55 Ibid., para. . 56 Ibid., para.  and Appendix A.

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to be included in a particular Part, rather than the wording used, and agreed on the key principles that flow from the Conventions concerned. They would then draft the respective Part of the new instrument on the basis of the principles that have been identified and applying the following criteria, which are derived from the rationale for the simplified amendment procedure, referred to in paragraph  above: (a) the provisions of the Parts would be drafted in terms that are sufficiently general and comprehensive as to be likely to obviate the need for any amendment or additions over the coming decades; (b) at the same time, the text of the Parts would be sufficiently specific with respect to the intentions of the International Labour Conference and the objectives to be achieved, so as to provide clear parameters for each implementing provision to be included in the Annex and for any future amendments of those provisions. . The Annexes would contain more or less the same text as that contained in the existing Conventions to which they relate, with the deletion of any material that coincides with the provisions of the Part concerned in the first place. . . . . . . . The Preamble is an important element for making clear the general intention behind the provisions. . . . 57

The Subgroup considered this proposal and illustrative example and reached agreement on a proposal for structure which, although differing in terminology and presentation, is very close to the form the Convention now takes. In addition, there was explicit consideration of the approach adopted in the IMO’s MARPOL (emphasis added): . The Subgroup agreed that the consolidated Convention should consist of the following four levels: – Articles of the Convention; – regulations covering the basic rights and principles in each “family” of subjects; – rules setting out the details for the implementation of the regulations; – non-mandatory Recommendations. The Subgroup requested the Office to prepare a preliminary draft of such a Convention, leaving out definitions and scope of application, which were to be the subject of a separate paper, and only providing a sketch of the possible recommendations, which would include the details of rules that could appropriately be in this non-mandatory section. . The Seafarer spokesperson recommended that the Office produce the structure, the rights, rules and regulations and the flow of them. He suggested this draft prepared by the Office be submitted to the High-level Tripartite Working Group in October. As well, he requested that all of the rights and rules attached to them be mandatory as a whole package without options. The Seafarers had an open mind as to whether or not the simplified amendment procedure should be applicable to rights. 57

Ibid., paras , , and .

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. The Government spokesperson suggested a comparison between this proposed structure of the new Convention and the MARPOL Convention. In that Convention some sections were compulsory and others optional. He noted that something similar could be adopted with a view to facilitating the rapid ratification of the new Convention. The Government group discussed the Korean proposal to use a Convention structure similar to that used in the IMO MARPOL Convention. Following that structure, the Articles and regulations would be incorporated in the Convention and the rules and recommendations would be in annexes, some of which would be compulsory for all parties to the Convention, others would be optional. The proposal received a large measure of support. It was considered that such a structure could be helpful to facilitate the rapid ratification of the Convention.58

As a result of the advice provided by the Subgroup meeting, a first ‘cut’ at allocation, the “preliminary draft for a consolidated maritime labour convention”,59 was produced for the second HLTWG meeting in October . The following edited extract from the table of contents is included for illustrative purposes. It does not contain any provisions drawn from recommendations (only existing binding provisions). However, it shows that the draft text already had established an approach, which begins with articles and is followed by five parts, with a list of regulations for each part (family of provisions) followed by specific ‘rules’ for each part. The Articles Definitions and scope of application Fundamental principles and rights Regulations and Rules; Recommendations Entry into force and denunciation Depositary functions Amendment Authoritative languages Part I. Prerequisites for going to sea and related provisions Regulation .. Minimum age Regulation .. Medical certification Regulation .. Certification of competency and qualification Regulation .. Safety, health, welfare and training Regulation .. Public and private recruitment and placement services Regulation .. Seafarers’ identity document

58

Report, supra note , paras –. First Preliminary Draft of Provisions for the New Consolidated Maritime Labour Convention, HLTWG (Second Meeting), Geneva, – October , ILO Doc. No. TWGMLS// , available at http://www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls- .pdf.

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chapter five Rules for Part I Rule .. Minimum age A. General B. Work at night C. Hazardous work D. Enforcement Rule .. Medical certification A. General B. Medical certification of young persons C. Delegation D. Transitional provision Rule .. Certification of competency and qualification ... Part II. Conditions of employment and manning Regulation .. Contracts of employment and articles of agreement Regulation .. Termination of contracts Regulation .. Wages Regulation .. Annual leave Regulation .. Record of employment Regulation .. Continuity of employment Regulation .. Repatriation Regulation .. Manning of vessels Rules for Part II ... Part III. Working and living conditions Regulation .. Accommodation Regulation .. Food and catering Regulation .. Health and safety and accident prevention Regulation .. Medical care on board ship and ashore Regulation .. Welfare on board and ashore Rules for Part III ... Part IV. Social security Regulation .. General principles Regulation .. Medical care Regulation .. Sickness benefit Regulation .. Unemployment benefit Regulation .. Old-age benefit

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Regulation .. Employment injury benefit Regulation .. Family benefit Regulation .. Maternity benefit Regulation .. Invalidity benefit Regulation .. Survivors’ benefit Regulation .. Shipowners’ liability Part V. Enforcement Regulation .. Flag state responsibilities General Inspection and control Certification Record-keeping Quality control Internal resolution of grievances Marine casualties Regulation .. Port state responsibilities General Inspection and control Facilities available to seafarers Regulation .. Responsibilities of States of domicile or contract General Enforcement through contracts of employment

As the foregoing extract indicates, although there was some rearrangement among the groupings and structural adjustments over the next year, many of the organizational elements and allocation of provisions was already in place just over ten months after the first meeting. The Government, Shipowners’, and Seafarers’ Groups generally agreed on the structural approach based on four levels. However, there were still significant differences in their views about the approach in the preliminary draft and its content. The Government Group was generally in agreement with the consolidation: His Group agreed with a four-layered approach with Articles, Regulations, Rules and Recommendations. Terms could vary but the first three would be binding and the last one non-binding. The Rules and the Recommendations would be the equivalent of Codes A and B in the IMO’s STCW Convention. Some in his group favoured the MARPOL approach of “pick and choose” upon ratification. However, flexibility should not erode impact. Articles should be amended through an explicit amendment procedure. Tacit amendment could be envisaged for levels  and , and possibly also level , provided that there was no back-door introduction of principles which were outside the scope of the Articles.60

The Shipowners’ Group was also generally supportive of the preliminary draft text but had concerns about some specific points and the short time frame and process for developing the text. Surprisingly, the Seafarers’s Group, while 60

Final Report, supra note , para. .

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agreeing with some aspects, expressed serious misgivings about what appeared to be an unwieldy document. Their spokesperson noted the complexity of the proposed instrument and voiced what would become an oft repeated concern: the convention needed to be clear, easy to understand, and not simply a consolidation of existing instruments.61 Commenting on the Seafarers’ Group ‘radical’ ‘package’ submission62 on structure and other issues submitted to encourage ratification, improve seafarers’ on-board conditions, and eradicate substandard shipping, the Seafarer spokesperson noted: [The Convention] should constitute a real and unambiguous Seafarers’ Bill of Rights, making decent work a reality on all ships. He advised that the Seafarers were proposing a radical approach, which was a package, and which would remove a lot of the prescriptive details. Regarding the structure of the future instrument, the first layer would be the Articles. The second layer, the Regulations, should consist of the principles and rights of seafarers. The rest of the instrument should comprise a mandatory Part A and a recommendatory Part B. He agreed that large portions of existing Conventions might need to be left out in order to have a coherent, modern and clear text.63

It is a point of no small interest that it was the Seafarers’ Group that called for an instrument that omitted a significant amount of prescriptive detail and portions of existing conventions. This call for an approach based on a “seafarers’ bill of rights”64 became a recurrent theme as they pushed for a modern and 61

Ibid., para. . ITF Submission to the High-level Tripartite Working Group on Maritime Labour Standards, HLTWG (Second Meeting), Geneva, , available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/twgmls/twgmls-.pdf. While this chapter is in a sense ‘unbundling’ the package and isolating the structural elements, it is important to realize that the inherently substantive implications of allocation decisions and amendment procedures were consciously considered and balanced or traded in this package. 63 Final Report, supra note , para. . 64 ITF Submission, supra note , para. : 62

. It has been notable that the idea of a framework Convention that consolidates all the existing ILO maritime Conventions has attracted wide support. However, there have been a number of caveats, the most important of which relates to demands for flexibility, for less prescriptive details to be included and for the impediments which currently prevent widespread ratification of the existing instruments to be removed. These considerations and the proposed new structure will ensure that the new instrument will be very different from the current maritime Conventions, both in style and in content. It was against this background that the Seafarers’ group adopted the “Seafarers’ Bill of Rights” approach, which would establish a number of unambiguous rights and principles, which would be strictly implemented, and link the negotiating process to the ILO decent work programme. The Seafarers’ group has stressed the importance of the inclusion of enhanced enforcement mechanisms which ensure implementation, the inclusion of a novel amendment process, which would draw on previous experience, and the potential problems widespread ratification can cause in updating existing international instruments, which are all prerequisites for establishing a new regime.

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effective convention. It is clear from these preliminary comments and the Seafarers’ submission that they were concerned that the final text might be a large and probably unratifiable instrument with no real change or progress in achieving their objectives: putting labour and social conditions on the same level, from an enforcement perspective, as environmental protection and ship safety.65 The Seafarers’ Group also proposed a four-level structure that was clearly and explicitly influenced by the structural ‘hierarchy’66 of provisions and regulatory approach in IMO conventions. It also introduced the phrasing referencing the concept of linking the levels by indicating that the details were to be found in the Code. . The Seafarers’ group is broadly in agreement with the new proposed structure which we have noted is similar to that found in the revised STCW Convention. That being the case, the Articles should establish the format and set out the legal basis of the new instrument and also address a number of general administrative issues. The regulations should consist of the principles and rights which are found in the existing ILO maritime instruments, including, where appropriate, other ILO instruments, as is the case in ILO Convention No. . The rights and principles should merely set out the rights and principles and leave Part A and Part B of the Code to develop them. A possible example, using the right to repatriation, might be: Seafarers shall, in accordance with the relevant sections of the Code, be entitled to repatriation at no expense to themselves. The mandatory Part A of the Code should build on the rights or principles and establish the functional requirements which must be met and, wherever possible, leave the prescriptive and more detailed provisions to the recommendatory Part B of the Code. However, it is clear that some of the measures can be more readily addressed using this approach than others, where there will be a need for 65

Ibid., para. : . We have previously stressed the need for widespread ratification of the new instrument and that the end result should provide an international minimum standard, comparable to the technical and environmental standards established by the IMO, which addresses the social dimension. In doing so it will address the decent work deficit which was identified as an urgent issue by the May  Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers which recognized that conditions of employment, social protection, social security and social dialogue, including collective bargaining, are matters that require particular attention. That means that the new instrument should make a difference to those employed on ships and provide a tool which will complement the efforts being made to eliminate substandard shipping and establish a benchmark for entry into and participation in international shipping.

66 The preliminary draft also referred extensively to ‘the Rules’, but the regulations and rules were often indistinguishable in terms of detail. In addition, the regulations were sometimes unclear as to their relationship with the rules and the party to whom they were directed, for example, “. The Rules shall cover the design of the document, as well as procedures for its issue and for the verification of the data contained in it, with the object, in particular, . . .”.

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more detailed specifications in Part A if the rights and principles are to be made meaningful and readily enforceable. . This approach has implications for the amendment process . . . [and] suggests the following: – Articles—revision by a Maritime Labour Conference and requiring express ratification (as is the case now for new and revised ILO instruments). If the new instrument is to be amenable to change, the provisions in the Articles should be kept to a minimum as experience within the IMO has shown that if they are too detailed they can limit the further elaboration of the instrument in the future. – Regulations or rights and principles—revision by a Maritime Labour Conference with the possibility of using the tacit amendment procedure. – Parts A and B of the Code—amendment by a new tripartite maritime committee and endorsement by a plenary session of a general International Labour Conference and entry into force through tacit acceptance. . The new structure and style is likely to be less prescriptive and will be more flexible as to how the established rights and principles are actually delivered, the key being that the rights and principles are actually delivered and make a difference to those on board ships. . . . . The “Seafarers’ Bill of Rights” approach has implications for the future organization of the work of the HLWG and clearly requires the distillation of the rights and principles from the existing ILO maritime instruments and the formulation of the functional requirements to give effect to them, rather than cutting and pasting the existing text. The interlinkage between the rights and principles and the more detailed functional requirements which give effect to them need to be developed within the same body. . . . 67 (emphasis added)

The HLTWG meeting also considered a proposal by a government whereby the inspection system could be part of the IMO-related International Safety Management (ISM) Code, which the Seafarers’ Group vehemently opposed.68 67 68

ITF Submission, supra note , paras – and . Final Report, supra note , para. : . Regarding the enforcement issues, the Seafarer spokesperson indicated that his group strongly supported the concept of linking flag State inspection with the issuance of a certificate, based on a labour inspection, but could not support the inclusion of working conditions within the ISM Code which he felt was primarily self-regulation. The Seafarers wanted certified compliance rather than certification of the procedures. The fact that many member States did not sufficiently act after having received complaints indicated the necessity to define an appropriate complaints system. The so-called MARPOL-type approach would, according to the Seafarers, undermine the whole process, whilst the exclusion of certain groups of seafarers working on certain ships was clearly unacceptable and would be incompatible with the Declaration of Philadelphia and would be akin to institutionalizing a system of maritime apartheid. On the other hand, an examination of the scope of application on a case-by-case basis for each family of detailed requirements could be an alternative way forward. The Seafarers, whilst agreeable to the substantial equivalence concept, suggested that guidance on the interpretation of this concept should be provided in the new text. In conclusion, the Seafarer spokesperson underlined the

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Ultimately, on the question of structure, the HLTWG is recorded only as having “decided to use the terminology suggested by the secretariat with some modifications: the terms used will include Articles (level ), Regulations (level ), Code, Part A (level ) and Code, Part B (level )”.69 In addition, to expedite the work on the text the Shipowners’ and Seafarers’ Groups produced the Joint paper by the Shipowners’ and Seafarers’ groups on the principles to be embodied in the consolidated Convention.70 This Paper is especially of interest in connection with the later development of the ‘purpose clause’. importance of looking for the identification of objective criteria which would permit verification, since the inspection of social conditions, as opposed to safety defects, was said to be more difficult to perform correctly, however, the Seafarers believed that the difficulties were over-stated. The interest of having a Bill of Rights would be that breaches of social regulations should lead to detention of a ship, just as is the case for safety considerations. The Seafarer spokesperson also indicated that his group was ready to work together with the Shipowners during part of the group meetings, if need be, to define clearly principles and rights. Otherwise, it was clear that the plenary was the only place to take decisions. 69 70

Ibid., para. . Final Report, supra note , Annex , pp. –. The Paper sets out the following principles: Articles of the Convention Level : Fundamental principles and rights All seafarers shall have the rights flowing from the following core Conventions: Freedom of Association (C. ) Right to Organise and Collective Bargaining (C. ) Discrimination (C.  and C.) Child Labour (C.  and C. ) Forced Labour (C.  and C.) [NB: The above list of general instruments applying to seafarers is not exhaustive.] Level : Specific principles and seafarers’ rights Member States have the responsibility to ensure that seafarers shall have safe and decent working and living conditions which fully take into account the following specific principles and rights, which shall be applied by reference to the detailed regulations and rules: Part I: Prerequisites for going to sea and related provisions Minimum age—No under age person shall be engaged in a ship. Medical examination—All seafarers shall be certified medically fit for service at sea. Certificates of competency—No person shall be engaged on board a vessel to perform any duty unless he/she is certified to be competent or qualified to perform such duties. Training—All seafarers shall have the opportunity to benefit from appropriate national provisions and facilities for vocational training. Recruitment and placement—All seafarers shall have access to an efficient, adequate and regulated system for finding employment without charge.

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Given the concerns expressed by the Seafarers’ Group it is to be expected that the draft prepared for the second Subgroup meeting in February  would be markedly different from the text prepared for the HLTWG meeting in October

Identity documents1—All seafarers shall have a seafarers’ identity document. [1 To be covered by a stand-alone Convention.] Part II: Conditions of employment Articles of agreement—All seafarers shall sign articles of agreement, which shall incorporate an agreed written and enforceable contract setting out the terms and conditions of employment incorporating any applicable collective bargaining agreement. [Equality All seafarers shall have the right to equal remuneration for work of equal value without discrimination.] Wages—All seafarers shall on a regular basis be paid their agreed wage and any other agreed remuneration such as overtime. Hours of work—As for other workers, the normal hours of work for all seafarers, shall be regulated. Annual leave—All seafarers shall have paid annual leave in addition to public holidays. Continuity of employment2—All seafarers shall benefit from the national policy that encourages continuous or regular employment at sea. Repatriation—All seafarers shall be repatriated at no cost to themselves. Crewing—All ships shall be sufficiently, safely and efficiently crewed. [2 Shipowners wish to shift this to Part IV (Social security).] Part III: Working and living conditions Accommodation—All seafarers shall be entitled to decent accommodation and such other facilities as may be necessary. Food and catering—All seafarers shall have, free of charge, a supply of sufficient food of good quality, and catering arrangements designed to secure their health and wellbeing. Health and safety and accident prevention—All seafarers shall live, work and train in a safe and hygienic environment and be represented on any on-board safety committee. Medical care—All seafarers shall be provided with occupational health protection and prompt medical and emergency dental care at no cost to the seafarer whilst engaged on a ship. Welfare on board and ashore—All seafarers shall be provided with adequate welfare facilities and services both on board and in port and shall have the right to shore leave. Part IV: Social security Social security—All seafarers and where applicable their dependants shall be provided with social security including social insurance no less favourable than that provided for [seafarers and] shoreworkers [in the flag State]. [Part V: Rules on enforcement Complaints procedure—All seafarers or their representative shall have easy access to an independent complaints procedure in the flag State.

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. The text71 contained some elements such as changing the terminology of ‘rules’ to ‘sections’. Roman numerals were used for specific matters located within a section and linked to alpha-numeric headings that in turn were linked the part of the Code, e.g., Section A.—Minimum age, I. General. It also still contained the concept that the regulations ‘direct’ what would be the Code provisions: . The minimum age shall be specified in the Code by reference to the following requirements: (a) the specified age shall correspond to the age at which a person can be deemed to be physically and mentally fit for work on a vessel and to be no longer in need of full-time schooling; (b) the age at the time of the initial entry into force of this Convention shall be  years. (CA) . The Code shall specify a higher age for particular types of work when required by the nature of that work, especially for— . . .. . The Code may specify ages lower than those referred to . . . 72

The Office Commentary73 attempted to defend the lengthy text and this approach in Titles – and the legal concerns that were seen as needing to be addressed: Comment  (on Regulation .; Section A.) As explained in Comment  above, under Level of amendment, this preliminary draft adopts the approach, favoured by the Shipowners’ and Seafarers’ representatives, of having the basic principles of the Convention expressed in concise statements. Where necessary, however, these statements are accompanied by provisions containing directions as to the nature and scope of future amendments of the Code by tacit acceptance. Provisions of this kind are often contained in Acts of Parliament as a means of controlling the scope of subsidiary legislation. Although these provisions in the Regulations may often duplicate the detailed provisions of the Code, these or equivalent provisions are essential in order to provide the necessary legal authority for the amendment of the Code by the proposed simplified procedure. In the present case, the directions in paragraphs  to  of Regulation . are in fact exceptionally long because of its importance. The Convention would, in effect, be giving Governments authority to change the minimum ages Port state control—All seafarers or their representative shall have easy access to an independent complaints procedure in the port State. Access to justice—All seafarers or their representative shall have the right to easy access to the legal system in the flag State, labour-supplying State and the port State.] 71 Preliminary Draft for a Consolidated Maritime Labour Convention, Tripartite Subgroup of the HLTWG (Second Meeting), Geneva, , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/stwgmls/stwgmls-r.pdf. 72 Ibid, p. . 73 Ibid., Annex.

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chapter five fixed in it without going back to their Parliaments on a matter involving both the fundamental rights of the child and the possible postponement of a young person’s right to take on a particular job. The directions proposed here would, in particular, state the rationales for setting the ages concerned (see paragraphs (a) and ), thus limiting any modifications considered necessary in the future to fairly precise circumstances. Thus, the essence of any such modifications would already have been approved by national Parliaments prior to ratification of the new Convention.

In light of the subsequent development of the text it is difficult to see exactly what the concern was, however, the net effect was a lengthy draft, which was viewed with serious concern by the Subgroup.74 The Office, presumably foreseeing this reaction, produced the Informal paper supplementing the preliminary draft for a Convention on maritime labour standards75 for the meeting. It proposed an approach that would streamline and move many of the provisions now in Part A to Part B. Importantly this paper also raised what would later become a very important practical question relating in part to the legal status (allocation) of the provisions: What was to be inspected and by whom? The Paper commented (emphasis added): . It was recognized in the commentary on the preliminary draft that further work would be needed to meet the objective of the widespread ratification of the new Convention in the shortest possible time. Indeed, if the new Convention took the precise form of the preliminary draft, it might be difficult for national parliaments to find time even to study the instrument, let alone approve its provisions. There were however indications of an appropriate way forward in the High-level Group last October: namely, the transfer of some of the details in Part A of the Code to Part B. In its general comment at the start of the commentary on the preliminary draft, the Office has therefore suggested that provisions in Part A that are not essential from the point of view of the Decent Work Agenda or to maintain a level playing field could be transferred to Part B, provided that Part A 74

Final Report, supra note , see for example, para. : . In a joint submission to the meeting (STWGMLS/), the Shipowners’ and Seafarers’ groups, while commending the Office for preparing such a comprehensive and detailed preliminary draft for a Convention, expressed serious concerns on a number of aspects concerning the work expected of the Subgroup and the means of refining and finalizing the texts of the Convention during the coming months. Due to the late circulation of the draft texts, many Government representatives were unlikely to have had sufficient time to carry out adequate consultations with their colleagues in other departments. The two groups also regretted that the preliminary draft had not made suggestions on a redistribution of provisions between the mandatory Part A of the Code and the non-mandatory Part B. They noted that the Office had not had time to propose the necessary simplification of existing provisions. They put forward proposals for streamlining discussions and ensuring that the outcome was fully in line with the objective of achieving a simple, up-to-date, clear and, most importantly, enforceable new Convention. . . .

75

Ibid., Annex .

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is sufficiently comprehensive: it must cover all aspects of implementation that are necessary to enable proper verification by the flag State and the port State and under the international supervisory procedures. This coverage should be expressed in mandatory terms, even if they might sometimes be of a general character. The Office has requested the Subgroup’s advice on, inter alia, how an approach of this kind might be applied with respect to concrete provisions of the preliminary draft. . The purpose of the present addendum is to assist the Subgroup’s discussions on this point by presenting an illustration [using repatriation] . . .. . In the illustration the Office has sought to achieve the following objectives: – make the provisions [on repatriation] easier to ratify by removing the detailed prescriptions from the mandatory provisions; – avoid any consequent weakening of existing standards by ensuring that the general provisions have the same scope as the detailed provisions that they would replace; and – ensure that the general provisions in Part A, read in conjunction with the detailed (nonbinding) provisions in Part B, are sufficiently clear as to enable national inspectors and the international supervisory bodies to assess whether or not Members are respecting their obligations under the Convention.76

The suggestions in this informal paper were supported by the meeting. The Shipowners’ and Seafarers’ Groups, concerned that a focus in Title  solely on social security would create barriers to ratification or mean that the ‘pick and choose’ ratification option would be required to obtain ratification, also jointly proposed a reorganization of several areas from Title  to Title  combined with a renaming of Title .77 This is an excellent example of a strategic approach to use the structure to achieve substantive objectives. Their Joint Paper provided that: The Shipowners’ and Seafarers’ Groups note that the Office draft of Title  is based largely on the provisions of ILO Convention No. . This Convention contains obligations which are not currently accepted by any significant maritime nation. Therefore, if the current draft is maintained, the new Convention is likely to attract few ratifications. In order to avoid such a situation arising, the social partners propose that an alternative approach is adopted to Title . Joint proposal . Title  should be renamed as “Health Protection, Welfare, Medical Care and Social Security Protection”. . The relevant provisions dealing with health protection, welfare and medical care should be transferred from Title  to Title . Title  would then only cover all matters concerning crew accommodation and catering arrangements. 76

Ibid., p. . Ibid., Annex : Title . Social security. Joint submission by the Shipowners’ and Seafarers’ groups, p. . See also Chapter  text at note . 77

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chapter five . However, Title  would deal with shipowners’ liability for sick and injured seafarers, payment of sick pay, social security protection, the provision of medical care and attention on board and ashore and other related issues. . The detailed provisions dealing with specific state social security services, e.g. old-age benefits, etc., should be removed from Title . . The relevant provisions currently in Title  which deal with “General principles” concerning state social security protection (which are taken from Convention No. ) are, however, to be retained in Title . . Consideration could then be given to whether there were any significant provisions affecting health, welfare, medical care and social security protection which have been omitted from the text and which ought to be provided for in some way. . At the end of this process, Title  would include provisions dealing with, among other things: (i) shipowners’ liability for sick and injured seafarers; (ii) medical care on board and ashore; (iii) accident prevention; (iv) welfare on board and ashore; (v) general principles concerning social security protection. . Central to addressing these aspects will be to agree on a suitable balance between the various sections of the Convention. . The social partners appreciate that this proposal might create difficulties with regard to the status of Convention No.  once the new Convention is adopted. Nevertheless, the proposal would allow for the identification of one specific “family” of provisions within one title, and the advantages of this approach are considered to outweigh the disadvantages.

This approach was adopted in the final text of the Convention. Further, it is probably in large part a result of this timely ‘structural’ intervention that the social security obligations (albeit modified) in connection with the Social Security (Seafarers) Convention (Revised,)  (No. ) were retained at all in text. The Subgroup meeting concluded with a call for a “rewriting” of the Convention and a plea: . The spokespersons and many other speakers were concerned regarding the timing of future work. They felt that internal ILO procedures were impeding the facilitation of work on the new instrument. In particular, that the Office had six weeks to do the work of rewriting the Convention, taking into consideration everything discussed this week for the next high level meeting, while it would take  weeks to complete the paperwork including translation and printing. They were concerned by the large disparity in time and made a plea to those responsible for the office documents and translation services to devote the necessary resources that would render the work in a more realistic timeframe and would enable more time to be devoted to rewriting the Convention.78 78

Final Report, supra note .

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A ‘Seafarers Bill of Rights’: Reduction and Reformation—– In the -week period for document preparation between the February Subgroup meeting and the third HLTWG meeting in June , the Convention was substantially reformed and the text reassigned and reduced.79 In addition, some strategic changes to terminology and other elements were added to capture ideas such as the ‘seafarers’ bill of rights’ that had arisen at the prior meetings. Perhaps, most interesting, was what may have seemed a radical shift to physically repackage the Convention format as three ‘books’ with new terminology: the articles and regulations;80 Code, Part A;81 and Code, Part B.82 This presentation format—three books—while ultimately not retained, proved to be a useful approach to give concrete expression to the idea of the differing nature of the levels of obligation. It facilitated consideration of the specific areas83 and captured the essence of the idea of a Code with technical, mainly shipboard, provisions, especially in Title .84 The Office Commentary explained:

79 The Office devoted additional resources and established a five-person external drafting team combining legal expertise and experts provided by the shipowners’ and seafarers’ organizations to reorganize the text in a very short time frame. 80 Consolidated Maritime Labour Convention (First Draft) Articles and Regulations, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/ public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf. 81 Consolidated Maritime Labour Convention (First Draft) Code, Part A, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf. 82 Consolidated Maritime Labour Convention (First Draft) Code, Part B, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf. 83 Although the seafarers still expressed concern that that text was still not simple or clear, the official record of the meeting (Final Report, HLTWG (Third Meeting), Geneva,  June–  July , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/twgmls/twgmls-r-.pdf) indicates that the debate was focused on substance rather than format and structure. During this meeting a Government Group concern about the precise status of Part B provisions surfaced as did issues relating to the question of a tonnage limitation and definition of seafarer and the nature of the national obligations to consult/social dialogue when exercising flexibility. The use of square brackets [ ] was also introduced in this draft to indicate alternative wording or otherwise unresolved text. In fact the use of format and bracketing during negotiation including adding ‘squiggly’ brackets { } to focus debate and, even later in the process (at the PTMC in ), the ‘blank-out’ of entire areas of controversial text is itself an interesting aspect of the negotiation process to develop the text. See also the discussion in Chapter . 84 Initially it was imagined that the inspectors would use the ‘Code’ while legislators would be more concerned with the articles and regulations (personal reflection of the author).

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chapter five General At the meeting in February the Subgroup identified a number of concerns and provided guidance on the further development of the draft text. An important point of concern identified by the Subgroup was the complexity and length of the preliminary draft, which embodied the actual text of all provisions of existing maritime labour instruments that appeared to be still relevant today. The length and, in some cases, the overlapping provisions as well as the more traditional legal formal style made it difficult to read. This created a barrier to adoption and implementation by governments and to the social partners in identifying rights and standards. It was felt that the preliminary draft did not clearly provide a statement of the core employment rights of seafarers. Adoption of a “plain language” drafting approach was recommended as well as inclusion of simple-purpose statements for the Regulations. Another point of concern related to the need indicated in the High-level Group at its last meeting to transfer some of the more highly detailed technical provisions from the mandatory to the non-mandatory part of the Convention. These details, taken from existing Conventions, were considered as partly responsible for inhibiting ratifications. The Subgroup emphasized the importance of the Office adopting a radical approach in this respect, without however compromising the general substance of existing mandatory standards. There were suggestions that some parts of the Convention would be more useful to the constituents if they were presented as separate publications on specific technical matters. It was also suggested that the Convention would be more readable if it were presented in separate parts reflecting the different levels of obligation under the Convention. The present “first draft”, does not itself always reproduce the wording of existing relevant maritime labour standards, but seeks to distil the essence of the obligations and rights contained in them in order to develop a text that will be possible for all Members to ratify and implement. In accordance with the guidance provided to the Office, this first draft is presented in the following three documents, which together would make up the Convention: . Articles and Regulations (in document TWGMLS//)—These would set out the core rights, principles and obligations in the Convention. They could only be changed by the General Conference in the framework of Article  of the ILO Constitution. The Regulations are divided into five general areas: – Title : Minimum requirements for seafarers to work on a ship. – Title : Conditions of employment and crewing. – Title : Accommodation, welfare facilities, food and catering. – Title : Health protection, welfare, medical care and social security protection. – Title : Compliance and enforcement. . The Code—This is a two-part document, Parts A and B, which could be amended either by the General Conference, in the framework of Article  of the ILO Constitution, or by a simplified amendment procedure described in Article XV of the Convention. The simplified procedure responds to the concern for more rapid and less costly updating of the detailed require-

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ments for implementing the rights, principles and obligations under the Articles and Regulations. The Code is presented in two documents comprising: – Code, Part A, Standards (in document TWGMLS//)—This part would contain mandatory minimum standards for the implementation of the Regulations. It follows the same five-part division of topic areas as the Regulations and is numbered in the same way as the Regulations to ensure ease of reference. – Code, Part B, Guidelines (in document TWGMLS//)—This part would contain detailed guidelines, as well as recommendations and model documents. Although these would not be binding, Members would be required to take them into account and consider them when implementing the Standards. This part of the Code also follows the same five-part division of topic areas. Accordingly, in order to review, as a whole, the first set of provisions proposed for Title , for example, the reviewer would need to look at: – Regulation ., in document TWGMLS//; – Standard A., in document TWGMLS//; and – Guideline B., in document TWGMLS//. The Articles dealing with the core rights, Members’ obligations, matters relating to the scope of the Convention and procedures for entry into force and amendment, including a proposed Special Tripartite Committee, at the start of the draft Convention, can be regarded as at an advanced state given the comprehensive discussions of the High-level Group and the Subgroup. The substantive content of the Regulations is also well developed, on the basis of a document submitted to the High-level Group at its second meeting and of discussions in the Subgroup. . . . Square brackets [ ] have been placed in the text around points requiring further discussion before a proposal is made by the Office.85

In addition to the significant expansion of the text in the Preamble, there was a new Article IV with significant reformulation of the ‘rights’, including, importantly, the introduction of a new title of Article IV, Seafarers’ employment rights. In the prior draft (February ), Article III, Fundamental principles and rights, had provided: . Each Member shall ensure, within the limits of its jurisdiction and in accordance with the standards required by the provisions of this Convention – (a) that all ships are covered by the safety standards, including standards of competency, hours of work and manning, that are necessary to ensure the safety of life on board ship;

85

Consolidated Maritime Labour Convention (First Draft) Commentary, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf, pp. –.

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(b) that all seafarers enjoy— (i) fair terms of employment; (ii) decent shipboard conditions of employment and shipboard living arrangements; and (iii) appropriate social security and welfare measures for themselves and their families, in full respect for the fundamental principles and rights referred to in paragraph  above. . The rights referred to in paragraph (b) above shall be secured through laws and regulations in so far as they are not covered by collective agreements or laid down by competent courts in a manner equally binding on the shipowners and seafarers concerned. (CA(a))

The June  reformulation provided, as a new Article IV, Seafarers’ employment rights, that: . Every seafarer has the right to a safe and secure workplace that complies with safety standards, including standards of competency, training, hours of rest and work and crewing levels that are necessary to ensure the safety of life on board ship. . Every seafarer has a right to fair terms of employment. . Every seafarer has a right to decent shipboard conditions of employment and shipboard living arrangements. . Every seafarer has a right to health, medical and appropriate social security and welfare measures for themselves and their families. . Each Member shall ensure, within the limits of its jurisdiction, that the minimum seafarers’ rights set out in this Article are fully implemented, in accordance with the provisions of this Convention, in national laws and regulations or applicable collective bargaining agreements or practice.

This reformulation, by isolating the provisions and using a rhetorical device (Anaphora) combined with an explicit heading,86 provided an emphatic and clear list of ‘every seafarers’ rights, including the obligation on States to ensure implementation of these rights. This change, which was essentially a change in format, directly responded to the call by the Seafarers’ Group for a new convention that was a clear and unambiguous ‘seafarers’ bill of rights’. Irrespective of its heading, this article, combined with Article V, is the most general statement of principles and rights and States’ obligations that are elaborated under Titles –. These articles are also considered as the beginning of the cascade of obligations. Another important development, which was later transformed into the use of an explanation located in the instrument but not forming part of the legal text, was directed at States and intended to provide information and guidance on the role of particular provisions. At the beginning of both Parts A and B of 86

The name of this article was subsequently modified, consistent with the content of paragraph  of Article IV, to read ‘Seafarers’ employment and social rights’.

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the Code, a one-page explanation of the content of each Part and the provisions, now called ‘Standards’ (in Part A) and ‘Guidelines’ (in Part B), was inserted. This change in terminology87 probably caused some challenges for the ILO’s drafting practices. As discussed in Chapter , normally, the term ‘standards’ or standardsetting is used to describe the ILO’s ‘law-making’ activities, which includes the adoption of conventions and recommendations in accordance with its Constitution, as international labour standards.88 The use of the term ‘standard’ in the MLC,  is intended to indicate a more applied technical provision rather than a wider statement of principles or rights, and has no other constitutional or legal meaning. Likewise the term ‘guideline’ was simply meant, as the extract from the Commentary indicates, to convey the non-mandatory nature of Part B of the Code. The latter term generated questions that were discussed in a formal opinion from the ILO’s Legal Adviser on the status of Part B. Although substantive in nature, the opinion also relates to structure. Given the extent of debate and the relationship to the future content of the Article  reports to the ILO supervisory system,89 Figure  sets out the opinion in full. Figure . Legal Adviser’s opinion on the status of Part B of the Code90 Coexistence of mandatory and non-mandatory provisions in a Convention Questions were addressed to the Legal Adviser by the government representatives of the Netherlands and Denmark, as well as of Cyprus and Norway, as to the various consequences flowing from the co-existence in the draft consolidated Convention of binding and non-binding provisions for ratifying Members. The High-level Tripartite Working Group on Maritime Labour Standards is, in accordance with its mandate, working on a consolidated Convention as a new type of instrument compared with those adopted up to now. The consolidation of maritime instruments in force is aimed at placing all substantive elements in 87 This usage essentially moved these provisions of the new instrument outside the more usual dichotomy of convention and recommendation, which has particular consequences under Article  the ILO Constitution. Given the four-level hierarchical approach in the new instrument this was, perhaps, necessary. Certainly the question of terminology, whether it be descriptors such as ‘section’ or ‘rule’, had clearly been a matter of internal debate. The use of the terms ‘standards’ and ‘guidelines’, which seemingly were easily accepted by the meeting participants, may have reflected the fact that they were familiar terminology in connection with the IMO’s STCW Convention. 88 See: ILO, Office of the Legal Adviser, The Manual for Drafting ILO Instruments, nd edition (Geneva: International Labour Office, ) (online interactive version), available at http://www .ilo.org/public/english/bureau/leg/man.pdf, section .. 89 See discussion of these reports in Chapters  and . 90 Consolidated Maritime Labour Convention (Preliminary Second Draft), Commentary, HLTWG (Fourth Meeting), Nantes, , ILO Doc. No. TWGMLS /, available at http:// www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf, Annex.

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a single instrument in an approach radically different to that employed up to now, where Conventions contain detailed technical provisions, often accompanied by recommendations. From this perspective, conclusions cannot be drawn from the traditional formal arrangement based on the distinction between a Convention— where the provisions are binding—and a Recommendation—where they are not. The future instrument is a Convention open to ratification by States Members providing explicitly for the coexistence of binding and non-binding provisions (draft Article VI, paragraph ). The provisions of Part A of the code would be binding, those of Part B not. Some international labour Conventions set out, alongside binding provisions, others that are of a different nature.1 The novelty introduced in the future instrument essentially resides in the great number of non-binding provisions in the instrument. It should equally be noted that other organizations such as the IMO have adopted conventions containing the two types of provisions without any apparent legal problems in their application. Members ratifying the Convention would have to conform to the obligations set out in the Articles, the regulations and part A of the code. Their only obligation under part B of the code would be to examine in good faith to what extent they would give effect to such provisions in order to implement the Articles, regulations and Part A of the code. Members would be free to adopt measures different from those in Part B of the code so long as the obligations set out elsewhere in the instrument were respected. Any State Member which decided to implement the measures and procedures set out in Part B of the code would be presumed to have properly implemented the corresponding provisions of the binding parts of the instrument. A Member which chose to employ other measures and procedures would, if necessary particularly where the Member’s application of the Convention was questioned in the supervisory machinery, have to provide justification that the measures taken by it did indeed enable it to properly implement the binding provisions concerned.  July  Loic Picard Legal Adviser 1 See, for example, the Occupational Health Services Convention, , Article , paragraph : “. . . Occupational health services should be multidisciplinary”.

Ultimately, this opinion resulted in an agreement91 regarding the practical implications for inspection of Part B provisions, which views them as similar to, but distinct from, the traditional ILO recommendations. Both terms (standards and guidelines) would, however, have been familiar to the maritime constituents attending the meetings concerning the STCW Convention. In fact, 91

See the discussion in Chapter  on the articles regarding the definition of ‘requirements of this Convention’ and regarding Article VI.

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the explanation at the beginning of Part A of the Code explicitly references this influence in explaining the content (emphasis added): Mandatory Standards for implementing the Regulations of the maritime labour Convention,  . This part of the Code contains mandatory provisions that set out in greater detail the standards required to be maintained by Members in order to give full and complete effect to the Convention. (modified STCW Annex , Part A, ) . Where there is no specific standard provided in the Code the applicable Regulation and any applicable Article in the Convention constitute the standard. . When implementing the standards Members are encouraged to take into account the guidelines in Code B for further detailed guidance on effective implementation of their responsibility to protect seafarers’ employment rights.92 Guidelines to assist in implementing the Regulations and Standards of the maritime labour Convention  . This part of the Code contains Guidelines to be considered by Members as providing guidance or models or examples of best practice when implementing their obligations under the Convention to protect seafarers’ employment rights.93

Notably, this draft text also introduced what was to be the new form of the name of the Convention, describing it as ‘the maritime labour convention ’ although the official Working Paper that contained the text still referred to the ‘consolidated maritime labour convention’. In response to the seafarers’ call for a clear and simple statement of the rights, which any seafarer could read, the new draft text introduced a ‘plain language’ purpose clause under each regulation.94 For example, Regulation .—Minimum age Purpose: To ensure that no under-age persons work on a ship . No person below the minimum age shall be engaged, employed or work on a hip. . The minimum age at the time of the initial entry into force of this Convention is  years. (modified CA) . A higher minimum age shall be required in the circumstances set out in the Code.

92

Consolidated First Draft Code (Part A), supra note . Consolidated First Draft Code (Part B), supra note . 94 This reflects the view that the Convention’s coverage should be clearly stated and easily accessible by the workers it was intended to benefit. 93

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chapter five Regulation .—Medical certificate Purpose: To ensure that all seafarers are medically fit . Seafarers shall not work on a ship unless they are certified to be medically fit to perform their duties. (modified C.A/). . Exceptions can only be permitted as prescribed in the Code.

As mentioned above, these clauses were clearly influenced by the Joint Submission of the Seafarers’ and Shipowners’ Groups extrapolating the core or minimum rights or principles for each matter.95 As the foregoing extract also evidences, the phrase in the regulations referencing ‘the Code’ shifted to more closely reflect the approach advocated in the seafarers’ submission96 of October . The Office’s Commentary explained: Comments on the Regulations and the Code Comment  (General remarks on Titles  to ) . Structure. As explained in Comment  (point ) above, this draft adopts the approach, favoured by the Shipowner and Seafarer representatives, of having the basic employment rights and principles of the Convention expressed in concise statements including a simple statement of the purpose of each Regulation. In addition the terminology has been changed to more clearly delineate the nature of the Part A and Part B requirements. Part A provisions, which are mandatory, are called Standards. Part B provisions which are not binding are called Guidelines. A numbering system has been adopted which facilitates easier cross-referencing between the Regulations and the Code provisions. There is a Regulation that corresponds to every Code provision. However, where no additional text was proposed in order to elaborate on the obligation, there may be no Code A or Code B provision. . Relationship between Part A and Part B. Some provisions proposed in the first draft may still be too detailed or specific; in other cases, on the other hand, this first draft may be considered as insufficiently specific. As indicated above, the Office’s intention has been to move as much detail or specificity away from the Regulations to Code A and away from Code A to Code B, subject to the following two overriding considerations: (a) as far as the Regulations are concerned, it is important to ensure (as explained in comment  above) that Government representatives agree that there is sufficient direction provided in the Regulations to support the simplified amendment procedures for the Code’s provisions; (b) in order to avoid any dilution of existing international labour standards where detailed requirements are moved from Part A to Part B of the Code, it appears equally important to ensure that Part A of the 95 Final Report, supra note , Annex : Joint paper by the Shipowners’ and Seafarers’ groups on the principles to be embodied in the consolidated Convention, pp. –. 96 ITF Submission, supra note .

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Code, in principle, retains a general obligation adequately reflecting those requirements.

The June  HLTWG meeting concluded with the view that “a meeting of the Officers of the High-level Group in September  would give further indications to the Office in order to prepare the draft to be discussed in the High-level Group’s next meeting in Nantes in January ”.97 Further written comments98 on the draft text from participants were invited and considered by the Officers’ meeting. In addition, during this period, the text was prepared for the Officers’ meeting in both the ‘book’ or horizontal form and the ‘vertically integrated’ format it later assumed.99 On the latter point, the Commentary for the fourth HLTWG in  explained: . In order to facilitate discussion in this respect, the preliminary second draft has been produced in a “vertical form” with the provisions concerning each principle or right grouped together. This should help participants to discuss the balance between: (a) the Regulations, laying down the basic principles and rights and intended to set the parameters to be approved by national Parliaments in the ratification process; (b) Part A of the Code, setting out the detailed obligations for the implementation of those principles and rights; and (c) Part B of the Code providing non-mandatory guidance on the scope of those obligations and on their implementation in practice. . The views of the High-level Group would be welcome on whether the final version of the Convention should be in this vertical form or should return to the “horizontal” arrangement, setting out all the Regulations first, followed by all the Standards in Part A followed by the Guidelines in Part B of the Code. 97 98

Final Report, supra note , para. . As reported at the fourth meeting of the HLTWG, supra note , at footnote : At the High-level Group’s last meeting it was agreed that constituents could submit comments to the Office on the first draft which would be taken into account in preparing the next draft. A preliminary draft and the comments would then be reviewed by the Officers in September and the text revised in light of that meeting for the High-level Group in January . Comments were received from: the Shipowners’ and Seafarers’ representatives and the representatives of Algeria, Bahamas, Cuba, Denmark, France, Germany, Honduras, Japan, Republic of Korea, Liberia, Mexico, Netherlands, Norway, United Kingdom and the United States of America and the International Maritime Organization (IMO), and also from the International Christian Maritime Association and the International Maritime Health Association.

99 This is based on internal informal documents on file with the author. The informal advisory status of the Officers’ meetings means there are no formal official records of these meetings or working documents. It is the authors’ recollection that the ‘integrated vertical’ format was prepared by Dr. Dierk Lindemann, Spokesperson for the Shipowners’ Group, for their internal deliberations. It was proposed as a much easier way to read the Convention. This approach moved in a very practical way beyond the earlier approach in the Office proposals and the existing ILO and IMO conventions.

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chapter five

The fourth HLTWG meeting in Nantes had not been planned for or budgeted, however, there were many still key points of substance on which agreement had not been reached. The fourth meeting proceeded on the basis of working groups to make progress on the areas of difficulty.100 Many points were discussed,101 particularly with respect to the inspection and certification system and social security; on matters related to format and structure, there was agreement with the vertical format. In addition, as a result of the concerns about the Part B provisions, a decision was made to include a proposed ‘Explanatory Note’ in the text.102 Finally, the meeting proposed a procedural approach to the next meeting: . On behalf of the Officers, the Chairperson introduced the draft resolution concerning the text of the draft consolidated maritime labour Convention to be submitted to the PTMC (– September ). The resolution recommended, in its operative paragraphs, that: the Office be requested to submit to the PTMC a draft instrument based on the results of the important preparatory work undertaken in the framework of the High-level Group; the draft instrument be considered as containing mature provisions on which consensus has been reached on a significant 100

Preliminary Second Draft Commentary, supra note : . The comments have shown that substantial revision of certain sections of the Convention, and even their replacement by different provisions, is needed. This is why the present text is called a “preliminary second draft”. It seeks to identify certain areas of difficulty by placing wording inside square brackets and by reproducing some sections in italics to indicate that they may be the subject of proposals by constituents for substantial revision. The Officers propose that at its fourth meeting the High-level Group, rather than attempting to review the entire draft, should take up the suggestion made at its third meeting to make use of working parties. These would focus on specific areas of difficulty and in areas where little discussion has occurred in previous meetings because of time limitations. They would propose specific texts for approval. In addition to considering those texts, the Plenary would focus primarily on issues that would benefit from full discussion among constituents. . The Officers suggest that, at its fourth meeting, the High-level Group establish working parties for the following four areas: . Social Protection (Title , Regulation . and relationship to Regulations . and . medical coverage and liability) . The certification/inspection system (in Title ) . Accommodation (Title ) . Other areas of difficulty (Titles ,  and parts of Titles  and  not addressed under the preceding headings).

101

Final Report, HLTWG (Fourth Meeting), Nantes, – January , ILO Doc. No. TWGMLS /, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/tw gmls/twgmls-r-.pdf. 102 Consolidated Maritime Labour Convention (Preliminary Second Draft), HLTWG (Fourth Meeting), Nantes, , ILO Doc. No. TWGMLS /, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf.

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number of provisions; the PTMC deal, in the first place, with the provisions included in the draft instrument which are placed in square brackets; the PTMC, in the second stage, deal with proposals concerning the draft instrument which have sufficient support; it take the necessary measures for the adjustment of the Standing Orders of the PTMC.103

At the PTMC, held nine months later in September , all matters of form and most matters of substance were resolved, including the very controversial text on social security. However, as became apparent at the PTMC, there were crucial issues necessitating a special Intersessional Meeting in Spring . By the PTMC it had also become clear that, for budgetary reasons, the ILC plan with  as the meeting to adopt the Convention would need to be deferred until early . The structure and format of the Convention were agreed to and were adopted in . The vertical approach, despite requests for comments, was not specifically decided on but implicitly endorsed. As the Office’s Commentary to the PTMC notes: . As already indicated, one of the innovative solutions required to achieve the objectives of this instrument relates to the structure of the Convention. In accordance with the guidance provided to the Office, the recommended draft Convention has different parts which together would make up the Convention. The proposed Convention would comprise three different but related parts, the Articles, the Regulations and the Code. – The Articles and Regulations set out the core rights and principles and the basic obligations of Members ratifying the Convention. The Articles and Regulations can only be changed by the General Conference in the framework of Article  of the Constitution of the International Labour Organization (see Article XIV of the Convention). – The Code contains the details for the implementation of the Regulations. It comprises Part A (mandatory Standards) and Part B (non-mandatory Guidelines) . . .. Since the Code relates to detailed implementation, amendments to it must remain within the general scope of the Articles and Regulations. . The Regulations and the Code are organized into general areas under five Titles: – Title : Minimum requirements for seafarers to work on a ship – Title : Conditions of employment – Title : Accommodation, recreational facilities, food and catering – Title : Health protection, medical care, welfare and social security protection – Title : Compliance and enforcement . These Titles are presented in what may be called a “vertical” format, to facilitate easier discussion and review. Each Title contains groups of provisions relating to a particular principle or right (or enforcement measure in Title ), with connected numbering. The first group in Title , for example, consists of Regulation ., 103

Final Report, supra note .

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chapter five followed by Standard A. (taken from Part A of the Code) and then by Guideline B. (taken from Part B of the Code). Thus the reviewer can immediately see the overall scope of the particular Regulation and obligation. Constituents may wish to consider whether this vertical approach or the more traditional “horizontal” approach (that is, all Regulations placed together, followed by all provisions of Part A and then all provisions of Part B of the Code grouped together) should be used for the draft of the Convention to be presented to the International Labour Conference.104

Concluding Comments The latter part of this chapter has provided a detailed and, in many respects archival, account of the development of the structure and format of the final text of the MLC, . This account has on occasion necessarily ventured into matters of substance, largely because structural approaches can often provide a mechanism for solving substantive difficulties. It is the thesis of this book, and this chapter specifically, that the format and structure, that is, regulatory design, can and should be a matter of specific academic interest and analysis. Certainly this is the case with the MLC, . This analysis highlights the extent to which the structure, which was new for the ILO, the oldest of the UN organizations, was explicitly influenced by the structural approach to treaty drafting that had been successfully adopted in another specialized UN organization, the IMO. The approach was not adopted en bloc but was modified, and it is suggested, vastly improved, particularly in terms of readability, largely because of NGO (the Shipowners’ and Seafarers’ Groups) interventions. This chapter also provides a sense of how to ‘read’ the Convention by providing information on interstitial matters that may not be obvious on the face of the text but can affect legal interpretation and implementation. The following five chapters focus on the content of the text itself. This chapter has raised other points of interest in relation to structural matters. The MLC,  is the first ILO convention that does not have an ILO convention number (it would have been C105). This is a break with ILO practice. The theory behind this decision is that the Convention would not be revised per se by a subsequent convention but instead would only be amended. Thus the base convention and its title would remain the same. Some of the points raised here will be explored in the following chapters including the strengthening of national level social dialogue by expressly requiring consultation when national administrations choose to exercise the flexibility provided 104

Commentary to the Recommended Draft, supra note , paras –. See the ILO list of conventions, available at http://www.ilo.org/ilolex/english/convdisp .htm. 105

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under Convention. In addition the compliance and enforcement system in MLC,  seeks to explicitly provide an ILO ‘value added’ approach to the adoption of the IMO ship certification system, beyond the seafarers’ complaint system. This is achieved by requiring that certain decisions and information also be provided to the ILO Director-General and/or the ILO supervisory system through the Article  reports on national implementation of the MLC,  as well as reports on some specific points. Thus compliance and enforcement at both the shipboard level and at the State level is to be achieved. These are points of substance but they can also be seen as structural patterns in the Convention.

chapter six PRINCIPLES AND RIGHTS— THE ARTICLES (AND THE PREAMBLE)

Introduction Chapter  explained that Part I of this book has focused on an examination of the legal background and the policy context for the adoption of the MLC, , and that Part II is devoted to a detailed consideration of the Convention’s text in light of the travaux préparatoires (provisional records (PR)) and other preparatory reports. Chapter  outlined the basic structure of the Convention and the discussions affecting its development, including the influence of the ‘hierarchical’ regulatory approach in the conventions adopted by the IMO (for example, STCW, with its articles, regulations, standards, and guidelines). At the same time, the MLC, , especially, with its topical vertically integrated format arguably constitutes a further, more functional, development in treaty design. Chapter  moves to concentrate on an analysis of substance with a detailed examination of the international legal obligations in the articles of the Convention. Aspects of the discussion in this chapter have already been touched on, to the extent that the substantive content of the articles, for example the legal relationship between Parts A and B of the Code, also affected structural and organizational decisions. While generally following the presentation and grouping of the articles in the Convention this chapter is also concerned with the ‘solutions’ adopted to address particularly complex questions. As noted above, the development of the hierarchical ‘cascade’ approach to structure and substance in the Convention was discussed in Chapter .1 The following extract from the Explanatory Note2 to the Convention, explains the conceptual approach to the content of the differing parts of the Convention and, in particular, the role of the articles and the regulations, which as the excerpt below and the amendment procedures suggest, both ‘lay down’ rights and principles.

1

See Chapter , p. . See: Explanatory note to the Regulations and Code of the Maritime Labour Convention at page  in Appendix . 2

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. The Convention comprises three different but related parts: the Articles, the Regulations and the Code. . The Articles and Regulations set out the core rights and principles and the basic obligations of Members ratifying the Convention. The Articles and Regulations can only be changed by the Conference in the framework of Article  of the Constitution of the International Labour Organisation (see Article XIV of the Convention). . . . . The Convention has three underlying purposes: – to lay down, in its Articles and Regulations, a firm set of rights and principles; – to allow, through the Code, a considerable degree of flexibility in the way Members implement those rights and principles; and – to ensure, through Title , that the rights and principles are properly complied with and enforced. . . .

As explained at the PTMC in , the international meeting where the basic conceptual approach and legal relationship built into the structure of the Convention was adopted, The Special Adviser of the Committee explained that . . . the structure of the Convention could be seen as hierarchical. “Authority” was embedded in the Articles at a higher level. Specific rights were then raised in the Regulations, which also carried over to the Standards. This could seem repetitious as sometimes the Standard section elaborated on text already authorized. Articles and Regulations were the core of the Convention and could only be changed through normal ILO procedures. Standards, however, would be easier to amend and update in using the proposed simplified procedure.3

From a legal perspective, other than standard treaty provisions, such as depository functions (Articles XI and XII) and authoritative languages (Articles XVI), the majority of the sixteen articles of the MLC,  provide the overarching and authorizing international obligations that States accept when ratifying the Convention. The wording, often in the form of broad statements of obligations or principles and rights, is also generic with confirming statements regarding implementation and enforcement. All other obligations laid out in the equally binding legal text, that is, regulations and standards, combined with the nonmandatory guidelines, can be seen as an elaboration of these core obligations. If the approach adopted by the IMO and the similar approach assumed in the MLC,  amendment procedures is followed by ILO Members, the articles (and the regulations) should have been drafted in way that will survive the passage of time and future amendments to the more detailed provisions in the

3

Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. PTMC/ /–, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/pdf/ptmc--.pdf, para. .

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Code. It seems likely that this will be the case with the articles. However, in cases where the regulations also contain details or limitations that affect future amendments to the standards, Part A of the Code, this may not prove to be the case.4 From the point of view of achieving national implementation of the Convention, the articles establish the core obligations,5 including the methods for implementation.6 At the same time, the articles contain significant substantive provisions that are innovative. In particular, they provide the legal articulation of the approach7 of ‘firmness on rights: flexibility on method’. They also lay the foundation for many of the Convention’s provisions regarding cooperation in implementation and enforcement, promoting national social dialogue, particularly in the context of a globalized industrial sector and the ‘level playing field’. The articles also contain an important innovation on the wider international law of the sea with the development of another facet to State responsibility and roles—the labour supplying role—with responsibilities complementing those of the flag, coastal, and port States in other maritime conventions. Finally, these are also the provisions that squarely place human rights, and with them a rights-based intervention, in the development of the law of the sea, matters that had only a very limited presence in LOSC.8 Although not of the same legal status as articles, this chapter begins with a discussion of the preamble to the MLC,  before moving to the detailed discussion of the articles.

4 See Chapter , note . For example, a future drafting problem regarding the scope of standards versus regulations could arise in connection with accommodating the decision on ‘principles’ by the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers at its ninth session (– March ). The meeting recommended that the MLC,  should be amended to include mandatory provisions to address the abandonment of seafarers, a matter only indirectly addressed in Regulation . on repatriation and Regulation . on compensation for ship’s loss or foundering, and the form of security for shipowners’ liability under Regulation .. See: Maritime Matters, Fifth item on the Agenda, Governing Body, Committee on Sectoral and Technical Meetings and Related Issues (STM) Committee, th Session, November , ILO Doc. No. GB//STM//. 5 See the Article  report, General. The Article  report form for the MLC,  can be found in Appendix IV, Reports of the Committee on Legal Issues and International Labour Standards: Second Report: International labour standards and human rights, Governing Body, Geneva, March , ILO Doc. No. GB.// (Rev), pp. –, available at http://www.ilo.org/global/standards/ maritime-labour-convention/WCMS_/lang--en/index.htm. See also Chapter  for a discussion of the ILO’s supervisory system. 6 Art. IV, para. . 7 See Chapters  and . 8 As discussed in Chapter , pp. –. For example, in connection with the high seas provision regarding trafficking in humans (Article ) and less directly in connection with the obligation to transfer technology (Part XIV).

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chapter six Best Intentions— The Preamble

Unusually9 for an ILO convention, but consistent with developments in other spheres of treaty making, such as multilateral environmental agreements, the MLC,  has a relatively lengthy preamble.10 It refers, in two clauses, to the LOSC and key IMO conventions, as well as to what are regarded by the ILO as ‘fundamental’ human rights conventions.11 This extended preamble contextualizes the MLC,  provisions and serves to firmly situate the Convention in the wider international law of the sea and international maritime legal regime. In addition to providing information as to the drafters’ intentions,12 preambles

9 See: ILO, Office of the Legal Adviser, The Manual for Drafting ILO Instruments, nd edition (Geneva: International Labour Office, ) (online interactive version), available at http:// www.ilo.org/public/english/bureau/leg/man.pdf, section ., p.  ff. [hereinafter ILO Drafting Manual]. See also infra note  referring to the Opinion of the Legal Adviser. 10 Compare for example the succinct ILO focused preamble in the Merchant Shipping (Minimum Standards) Convention,  (No. ), Geneva,  October , available at http://www .ilo.org/ilolex/english/convdisp.htm. 11 The clauses read:

Desiring to create a single, coherent instrument embodying as far as possible all up-to-date standards of existing international maritime labour Conventions and Recommendations, as well as the fundamental principles to be found in other international labour Conventions, in particular: – the Forced Labour Convention,  (No. ); – the Freedom of Association and Protection of the Right to Organise Convention,  (No. ); – the Right to Organise and Collective Bargaining Convention,  (No. ); – the Equal Remuneration Convention,  (No. ); – the Abolition of Forced Labour Convention,  (No. ); – the Discrimination (Employment and Occupation) Convention,  (No. ); – the Minimum Age Convention,  (No. ); – the Worst Forms of Child Labour Convention,  (No. ); and Mindful of the core mandate of the Organization, which is to promote decent conditions of work, and Recalling the ILO Declaration on Fundamental Principles and Rights at Work, , and Mindful also that seafarers are covered by the provisions of other ILO instruments and have other rights which are established as fundamental rights and freedoms applicable to all persons, . . . 12

Vienna Convention on the Law of the Treaties, Vienna  May , entered into force on  January ,  U.N.T.S. , available at http://untreaty.un.org/ilc/texts/instruments/ english/conventions/__.pdf. The Vienna Convention does not specifically address the role of preambles, noting only, in Article  on the general rule of interpretation of treaties, that:

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can also play a functional role in treaty negotiations as a mechanism for resolving conflict over specific text or references that are problematic. The text of the MLC,  Preamble has this function, but it was also surprisingly controversial. During both the PTMC and the th ILC at least one Member State13 was concerned about the legal implications of references in the Preamble to a convention to which it was not a State party. The specific concern related to the following references14 to the LOSC: Recalling that the United Nations Convention on the Law of the Sea, , sets out a general legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained, and Recalling that Article  of the United Nations Convention on the Law of the Sea, , establishes the duties and obligations of a flag State with regard to, inter alia, labour conditions, crewing15 and social matters on ships that fly its flag, . . .

. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. . The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: . . . Under domestic public law, preambles have a contextual role and may have a role in statutory construction. 13 Venezuela has not ratified the  LOSC and has had long-standing concerns about any agreements that might prejudice its position. The following exchange is recorded in Report of the Committee of the Whole, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. PR(Part I), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr--i.pdf: . The representative of the Secretary-General, in response to the concern expressed by the Government member of the Bolivarian Republic of Venezuela, stated that the proposed Convention did not address the issue of maritime boundaries. She recalled the legal opinion provided by the Legal Adviser at the PTMC that a Preamble did not, and could not, create legal obligations. Nor could a member State be indirectly bound. The Convention could not have that effect. The wording used in the Preamble clearly demonstrated that the only intention was to recall the spirit of the instruments mentioned. . . . . The Government member of the Bolivarian Republic of Venezuela agreed to withdraw the amendment with the understanding that his position as well as the explanations of the representative of the Secretary-General would be clearly recorded in the Committee’s report. 14

This text was reviewed by the United Nations Legal Office. See: Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/rep-ia.pdf, Note  (Preamble), para. . 15 Article  of LOSC does not refer to ‘crewing’ per se. Article , Duties of the flag State, provides, inter alia,

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A legal opinion on this question was provided by the ILO’s Legal Adviser, as noted in the Office’s Report for the th ILC:16 . Preambles do not create legal obligations. The Preamble to the proposed consolidated maritime labour Convention provides information as to the overall context and intention of the Convention in relation to other relevant international law and principles. In particular, it indicates a clear intention that the new Convention should, inter alia, embody the fundamental principles to be found in the ILO’s “fundamental Conventions” (second paragraph) and recalls the ILO Declaration on Fundamental Principles and Rights at Work, . . . . . as stated by the ILO Legal Adviser during the PTMC (in connection with a discussion regarding the ILO Declaration on Fundamental Principles and Rights at Work, but with equal relevance to the ILO’s fundamental Conventions, UNCLOS and the other instruments mentioned in the Preamble): Finally, on the consequences of including a reference to the Declaration in the Preamble to the future Convention, the Legal Adviser recalled that the inclusion of a preambular clause referring to the Declaration, similar to that which exists in the Preambles to the Worst Forms of Child Labour Convention,  (No. ), and the Maternity Protection Convention,  (No. ), would not result in any legal obligation for Members. The Preambles to international labour Conventions do not create any legal obligations.

Despite this information the government in question abstained from voting because of the reference in the Preamble but placed on record its agreement with the MLC, .17 . Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. . In particular every State shall: . . . b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. . Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: . . . b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; . . .. United Nations Convention on the Law of the Sea,  December , UN Doc. A/Conf. /,  I.L.M.  (entered into force on  November ), available at http://www.un.org/ depts/los/convention_agreements/texts/unclos/closindx.htm. 16 Report I(A), supra note , paragraph  and see infra notes  and  and pp. –. 17 See: Ninth Sitting, ILC, th (Maritime) Session, Geneva,  February , ILO Doc. No. PR, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr-.pdf, pp.  and . Original Spanish: Ms. POITEVIEN (Government, Bolivarian Republic of Venezuela) The Bolivarian Republic of Venezuela has taken part in this process with considerable interest and determination, to encourage the adoption of a Convention that would benefit seafarers, both men and women. Nonetheless, the Bolivarian Republic of Venezuela decided to abstain from the vote on the consolidated maritime labour Convention, because

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As the forgoing extract indicates, a further difficulty was encountered for some governments also with respect to a proposed reference in Article III to the ILO Declaration on Fundamental Principles and Rights at Work, . The resolution of this very difficult issue in  at the PTMC involved the transfer of this reference to the Preamble, despite the Legal Adviser’s ‘on record’ opinion that a reference in one legal instrument to another legal instrument does not necessarily result in an obligations with respect to the referenced instrument.18 This debate, even with respect to the wording of a preamble, of the reference in its Preamble to the United Nations Convention on the Law of the Sea, , which is not applicable to our country as the Bolivarian Republic of Venezuela is not party to it and voted against it at the time of its adoption. This position has been systematically upheld by the Bolivarian Republic of Venezuela in various forums, where reference has been made to the Convention on the Law of the Sea. We feel that it cannot be used as a model for all maritime activities that fall within the law of the sea. The Convention on the Law of the Sea is an integral part of this but it is not the sole source of rights and obligations. These reservations notwithstanding, the Bolivarian Republic of Venezuela would like to confirm its belief, before the entire international community, that the consolidated maritime labour Convention aims to strengthen the labour rights of maritime workers and so my country, its people and my Government, will promote its application. Lastly, I would like to say that in my country, the domestic legislation on this matter is in fact more protective than the provisions of the Convention, which we regard as minimum standards and which we will apply and continue to strengthen within our country. 18

Supra note  and see also Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. PTMC//–, available at http://www.ilo.org/public/english/standards/ relm/maritime/pdf/ptmc---.pdf: . The Employer member of the Governing Body of the ILO expressed the deep concern of the Employers’ group of the Governing Body over having any reference to the ILO Declaration on Fundamental Principles and Rights at Work, , in any article of the proposed Convention. The inclusion of any such reference would add confusion to the Declaration’s objectives, which are different from those of Conventions. It would also make the Declaration itself subject to the scrutiny of the ILO supervisory bodies. Reference to the Declaration could be acceptable in the Preamble. The second alternative was also not acceptable, since it would deter ratification by governments that had not ratified one or more of the core Conventions. . The Seafarer Vice-Chairperson drew attention to Comment  of PTMC//, which made reference to a similar provision found in Article (a) of the Merchant Shipping (Minimum Standards) Convention,  (No. ). However, governments that had ratified this Convention were concerned about the same provision in the current context. . The Government member of the United States said his Government would accept Article (a) as currently found in Convention No. . The current text departed from this provision and was radically different from his Government’s understanding of Article (a). Before ratification of Convention No. , the Government member of the United States had requested a legal opinion from the ILO, which was appended to the articles of ratification. . . . . The Chairperson of the Steering Committee and President of the Conference reported that after consultations and legal advice the following proposal on Article III had received sufficient support to be brought back before the Committee for decision. The proposed wording read as follows: . . .

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demonstrates the level of sensitivity and continued relevance and importance that governments accord to international law and obligations. The Articles The sixteen (XVI) articles of the MLC,  are organized in a typical,19 essentially chronological pattern, addressing who, what, how, and when.20 They begin, in Article I, with general obligations, which are followed by definitions and scope of application of the Convention (Article II), which in turn is followed by several articles setting out the core obligations, including implementation and enforcement related obligations (Articles III–VII). The remaining nine articles (VIII–XVI) are directed more to administration and operation of the Convention itself with provisions on entry into force, effect of entry into force on existing conventions, authoritative languages, depository functions, and convention amendment procedures. They also include provisions on the establishment of the Special Tripartite Committee to oversee the ‘working of the Convention’ and with a specific function in the amendment procedures. The analysis below generally follows the order in which the articles appear. However, the discussion is focused on the substantive obligations for ratifying States rather than on administrative or operational provisions. It highlights key aspects and matters of difficulty or special interest in the articles. Article I—General Obligations Article I comprises two paragraphs that, on their face, appear to be statements of the obvious and, possibly, even redundant in that they set out an obligation to give effect to the Convention’s obligations and, essentially, a duty21 to coop. The reference to the ILO Declaration on Fundamental Principles and Rights at Work, , would be moved to the Preamble of the proposed Convention. 19 ‘Typical’ refers to basic coverage of both ILO and non-ILO conventions adopted in the maritime sector. As explained in Chapter , this convention’s organization and structure differs significantly from the usual ILO conventions. See: ILO Drafting Manual, supra note , p.  ff. 20 The full text of the MLC, , annotated with reference to the conventions that it consolidates or draws upon for its wording, is found at Appendix . 21 See, for example, Declaration on Principles of International law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, Resolution  (XXV), General Assembly, rd Plenary Meeting,  October . Article I, paragraph , has been described as the ‘the forgotten paragraph’ (emphasis added):

In analysing the precise impact of Article I, it should be remembered that the Articles and the Regulations of the Convention set out the core rights and principles and the basic obligations of Members ratifying the Convention. Many of the detailed obligations that are derived from those general provisions are set out in the Code—in the form of mandatory

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erate. They are also standard text found in many IMO conventions. However, both paragraphs are nuanced and have points of interest for the remainder of the Convention. First, this is the first use of the terms ‘[e]ach Member’ and ‘Members’ in the Convention. Neither is defined, but the word ‘Member’ has a specific meaning in the ILO and also a particular meaning in the MLC, . From a wider international law perspective they can be understood as generally parallel to references in non-ILO conventions to ‘States party’ or ‘parties’. In the ILO, ‘Member’ is used to refer to a Member of the Organization. The MLC,  Drafting Committee22 adopted the following approach: . The phrase “Each Member which ratifies this Convention” is first used in Article I. In accordance with ILO practice, subsequent references to a ratifying Member, wherever possible, simply use the term “each Member” or otherwise refer to “Member” in the singular. When reference is made to Members of the Organization in general, the wording will make this clear and normally the plural “Members” will be used.

Thus the obligations in Article  envisage two partially overlapping audiences. The first paragraph applies to “Each ratifying Member” while the obligation in paragraph , “to cooperate”, applies to all Members of the ILO.23 Including a “Standards” in Part A of the Code, which are to be read in the light of the non-mandatory “Guidelines” in Part B. In other words, paragraph  does not define particular rights and obligations, but rather provides the legal basis for more specific provisions. C. Doumbia-Henry, “The Maritime Labour Convention, : The forgotten paragraph  of Article I,” Speech to the Seamen Welfare National Committee, Rome,  April  (copy on file with the co-authors). While not an official document, this speech is helpful in that it refers to some specific examples of cooperation related to provisions in the MLC,  and explores the possible application in connection with various joint and regional arrangements, particularly in the connection with port State control. 22 Report I(A), supra note , Appendix A, Report on the work of the PTMC Drafting Group. 23 Ibid., Note  (Article I), explains: . Having referred to the general obligation of “each Member”, paragraph  states the general obligation on all Members which have ratified the Convention to cooperate with each other for the purpose of ensuring its effective implementation and enforcement. There are references to the need, at least, to consider international cooperation throughout the Convention with respect to recruitment and placement, health protection and medical care, occupational safety and accident prevention, seafarers’ welfare facilities, seafarers in foreign ports and social security protection; for example, in addition to Regulation ., whose purpose is: “To enable each Member to implement its responsibilities under this Convention regarding international cooperation in the implementation and enforcement of the Convention standards on foreign ships.” Most of these references are to be found in the non-mandatory Guidelines as, although the general obligation is mandatory, it is recognized that the decision when and how to cooperate with other Members is best left to the discretion of each Member. Two examples of the inclusion of a reference to cooperation in a Regulation or a Standard are found in the provisions relating to social security protection (Regulation ., paragraph ) and the investigation of marine casualties (Regulation .., paragraph ).

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general obligation that also applies to non-ratifying States might seem unusual in an international treaty. However, it can be understood as relating to the obligations of ILO Members under its Constitution.24 The phrase ‘complete effect’ in paragraph  and its relationship to Article IV, paragraphs  and  (substantial equivalence and the relationship between the MLC,  Code, Parts A and B), was also a matter of note in the Office’s Report for the th ILC:25 . Inflexibility with respect to rights and flexibility with respect to implementation, . . . is apparent from the start of the proposed consolidated maritime labour Convention: paragraph  of Article I, on general obligations, requires Members to give “complete effect” to the provisions of the Convention in order to secure the right of all seafarers to decent employment. However, complete effect is to be given “in the manner set out in Article VI”, and Article VI is the provision which embodies the two main areas for flexibility in implementation of the Convention.

Similarly the reference to ‘cooperate’ in connection with the MLC,  and the nature of this obligation26 has special importance for the globalized maritime The Committee of the Whole Report, supra note , Part I, para. , reiterates this point: . The representative of the Secretary-General referred to the Office report in Report I (A), in particular Note  on Article I, and read out the relevant extracts. Subject to any formal legal opinion of the Legal Adviser, it seemed clear from the Office report that, in accordance with ILO practice, references in the text to “Member” or to “each Member” should be taken to mean a ratifying Member. If it was intended in any instance to refer to Members of the Organization in general, the wording would make that clear and normally the plural “Members” would be used. She went on to confirm the Worker Vice-Chairperson’s understanding that, for non-ratifying Members, ILO Conventions had the status of Recommendations. 24

See discussion in Chapter . Report I(A), supra note , Note  (Article I). See also: Final Report, HLTWG (Third Meeting), Geneva,  June– July , ILO Doc. No. TWGMLS//, available at http://www.ilo .org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf: 25

. A representative of the Office explained that, in his view, there was a very special concordance between the two provisions mentioned in that both placed their emphasis on the effect of the Convention’s provisions. Paragraph  of Article VI made it clear that an implementing measure would be “substantially equivalent”, for the purpose of paragraph , if it was conducive to the full achievement of the general object of the Convention and had effects that were equivalent to those resulting from strict compliance with the provision concerned. In other words, Article VI coincided with Article I by requiring complete effect to be given to the Convention albeit through equivalent means. 26

Report I(A), supra note , Note  (Article I), para. . See also: supra note  and Reports of the Selection Committee, Second Report, International Labour Conference, th (Maritime) Session, Geneva, , ILO Doc. No. PR– (Rev.), available at http://www.ilo.org/public/english/ standards/relm/ilc/ilc/pr--.pdf. Several of the  resolutions adopted with MLC,  at the th ILC are related to cooperation: Resolution I (concerning the promotion of the MLC, ) refers to technical cooperation; and Resolution X (concerning addressing the human

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sector. It also buttresses the legal foundation for other provisions, such as the ‘may’ responsibility of States to undertake inspections of foreign ships in their ports (port State control) as well the port or coastal State obligations to, inter alia, allow seafarers to have access to seafarer welfare centres and onshore medical services, and to assist in facilitating repatriation, as well as the responsibility of States with respect to labour-supplying regulatory and enforcement matters. Article II—Definitions and Scope of Application Article II contains some of the most important provisions in the Convention as they establish the parameters for its application. The provisions in this eight paragraph article are complex and contain many carefully negotiated and subtle points. These are ‘lynchpin’ provisions for governments to consider for national implementation of the Convention. Article II also contains the major development in connection with the prior international labour conventions regarding the coverage in this sector. It is also the starting point for the approach to ‘flexibility’ as well the Convention’s entrenchment of national tripartism in connection with the flexibility in national implementation. Five major substantive and policy developments, embedded in the wording of the Article II provisions, are likely to affect regulatory and private law practices in the maritime labour sector significantly and in some cases may provide major challenges for national implementation: . The Convention explicitly widens coverage to apply to all workers (seafarers) on ships covered by the Convention. . The Convention does not have a general tonnage limitation (although there is one ( GT and above) on international voyages or voyages between or from nonflag State ports) with respect to mandatory ship certification and some specific flexibility for ships less than  GT. . The Convention applies to ships that are engaged on international voyages and on domestic voyages, with very limited exclusions. . The shipowner, broadly defined, is the locus or focal point for regulatory activity and responsibility for all workers/seafarers on its ships, irrespective of other contractual and management arrangements between the seafarer and her or his employer. . The Convention introduces mandatory certification of working and living conditions on some ships (ships  GT on international voyages or voyages between or from non-flag State ports or on request from a shipowner).

element through international cooperation between UN specialized agencies) refers to the joint ILO/IMO working group. The latter resolution was communicated to the IMO early in . However, establishing an additional permanent joint working group was not seen as necessary by the IMO, largely because there are already several issue-specific joint ILO/IMO working groups.

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The impact of this widening of coverage, in principle to all ‘ships’ and onboard workers (defined as seafarers) has significant implications for some parts of the industry, particularly cruise ships, and for flag State inspection systems. Before considering specific textual issues in connection with these eight paragraphs, it is useful to first understand the overall approach in the Article. Article II is expressly drafted, as its title indicates, to address both definitions and scope. It sets out general definitions (paragraph ) of terms occurring in different parts of the Convention, as well as the general scope of application of the Convention (paragraphs  and ) together with some ‘flexibility’ related options (paragraphs , , , and ). In practical terms, both the worker (seafarer) and the workplace (ship) are defined as is the scope of application of these definitions, that is, determining which workers are protected by the Convention or, conversely, which workplaces are regulated, requires consideration of both the definition and the scope provisions for both seafarers and ships.27 This approach reflects a conscious policy, relating to securing a progressive forward-looking comprehensive ‘seafarers’ bill of rights’,28 while at the same time allowing some potential for national flexibility in application. As noted in the Office Report for the th ILC, . It is important, in this context, to note the difference between a definition and a scope-related provision. Although the concepts are related in that both are used to address the question of who or what activities—in this case ships, shipowners and seafarers—are governed by the Convention’s provisions, they are distinct ideas and can reflect differing considerations. In the proposed consolidated maritime labour Convention, the basic approach adopted is to provide inclusive or broad definitions. This is combined with some potential for flexibility provided to adopt narrower definitions for particular provisions (under the Titles), or to address particular situations through consultation.29

Although this suggests that the idea was to provide some possibility for tailoring the application of the Convention, in fact there are a very few instances of this narrowing in coverage in the Titles. Perhaps this could be the subject of future amendments, however, under the rapid amendment procedures (Article XV) this could only occur in connection with the Code, not the regulations or the 27

The interaction of the definitions and the scope of application of the Convention is probably one of the more difficult issues that was resolved at the th ILC. To fully understand the solutions adopted by the ILC reference also needs to be made to the ‘package’ of decisions reached at an Intersessional Meeting in  regarding mandatory application of the certification system to ships  GT or over engaged in international voyages or operating from a port or between ports in another country. It is important to be aware that the flag State inspection obligations in Regulation .. and the related Code apply to all ships covered by the MLC,  even if they do not have to be certified. See discussion in Chapter  on Title . 28 See Chapter . 29 Report I(A), supra note , Note  (Article II), para. .

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articles. Thus the basic coverage in the regulations would remain, unless the articles or the regulations were amended through the more extended ‘usual’ procedure set out in the Convention (Article XIV). Definitions—Article II, Paragraph  (a)–(j) The approach to allowing for tailoring or narrowing of the application in relation to both definition and scope in subsequent provisions in the Convention is carried through in the particular wording of several paragraphs in Article II, using a formulation that first appears in the chapeau to the ten definitions (a)– (j) in paragraph .30 The formulation is along the lines of ‘unless provided otherwise in particular provisions, the term: . . . ’. This approach, initially inserted as one alternative approach to allow for tailoring the coverage, was adopted, along with the alternative approach using the scope provisions in the Convention text. The Convention does not use the possibility of further differing definitions to narrow the coverage, thereby excluding some workers or employers or ships from the otherwise broad definitions in Article II.31 30

See discussion in Chapter . See also: Unresolved Issues for the Draft Consolidated Maritime Labour Convention, , Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/ptmc/ptmc-.pdf, Note  (Article II), para. : . Article II sets out general definitions (paragraph (a) to (j)) of terms occurring in different parts of the Convention, as well as (paragraphs  to ) the general scope of application of the Convention. It is the combination of these definitions and the scope-related provisions found in the Articles that sets the overall framework of who or what activities are generally intended to be affected by the Convention. In particular, the Draft Convention currently addresses the question of application using provisions relating to the definitions of seafarers and to ships. It would apply to all seafarers, as defined in paragraph (f), “except as expressly provided otherwise” (paragraph ) in specific provisions found elsewhere in the Convention. Under paragraph  of Article II, the Convention would apply to all ships, subject to a number of qualifications or exceptions contained in different parts of Article II. The first narrowing of the broad application to “all ships” results from the definition of “ships” in Article II, paragraph (i), which does not include ships that navigate “exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply”.2 Then the chapeau of paragraph  excludes (by implication) ships that are not “ordinarily engaged in commercial activities”. Two other exceptions are currently specified under subparagraphs (b) and (c) . . .

31 Report I(A), supra note , appears to have provided an argument against this text in favour of the formulation in the ‘scope’ provisions. Both options were retained in the final text, with no discussion at the Conference. The Report at Note  (Article II), paragraph , provides that (emphasis added);

. . . . The words “unless provided otherwise” in paragraph  would allow a term to be defined differently for the purpose of specific provisions of the Convention. For example, certain kinds of seafarers or ships could, in principle, be excluded from the application of certain provisions of the Regulations and the Code by stating in a specific definition that they are not to be considered as “seafarers” or “ships” for the purposes of those provisions.

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Each of the ten definitions of the Convention was the subject of comment in the negotiation process. However, not all are of significant substantive import.32 Some were related mainly to alignment with usage in the IMO conventions and industry practice, such as the definition of ‘gross tonnage’ or simply clarifying the meaning of a term, for example, the maritime labour certificate or the declaration of maritime labour compliance (DMLC), which are referred to in the articles but are not addressed until Title . There are, however, a number of definitions and related scope provisions that are especially important for the Convention. In some cases they draw on and modify definitions in existing ILO33 or IMO conventions in an effort to align the MLC,  with other major instruments in the maritime regime. At the same time this pedigree must be viewed with caution since the resulting text was not based on the same understandings or assumptions found in other fora. As discussed in Chapter , in the development of the MLC,  text, numerous studies and exhaustive analysis had been undertaken by the International Labour Office regarding the terminology in existing ILO conventions.34 If anything, these studies illustrated the problem of

However, the more logical and preferable policy approach and the one also provided for and followed in the proposed Convention is to use the scope-related provisions (Article II, paragraph  (for seafarers) and paragraph  (for ships)) for this purpose. Both of those paragraphs consequently begin with the phrase “except as expressly provided otherwise”. The result is that, rather than determining that certain seafarers are not to be considered as seafarers or that certain ships are not to be considered as ships for specific matters, the provisions relating to those matters would allow certain categories of seafarers or of ships to be excluded from the application of the provisions concerned. 32 For example, the definition of competent authority in paragraph (a) was the subject of discussion at the th ILC in  and required a view from the Drafting Committee as to whether the word authority should be in the plural. It is clear that the term is meant to refer to the relevant national authority concerned with the specific issue. In some cases it might be labour ministry or a maritime administration or even a social security department. See: Committee of the Whole Report, supra note , para. . See also: Committee of the Whole Report, supra note , “Report of the Drafting Committee of the Tenth Maritime Conference, Article II, paragraph (a),” p. :

In response to a request by the Committee of the Whole relating to paragraph (a) of Article II of the English text, the Drafting Committee decided that it was not necessary to replace the word “authority” with “authorities” since the term “other authority” already in the text had a generic meaning which could be applied in either the singular or plural sense. 33 The annotated MLC,  in Appendix  of this book, shows the linkages to earlier ILO conventions. 34 See, for example, Duplicative or Contradictory Texts in the Existing Maritime Instruments, SubGroup of the HLTWG, First meeting, Geneva, , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/stwgmls/stwgmls-.pdf. Significant variations were found especially with respect to the terms seafarer or seamen and vessel (at paras –).

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conflicting or overlapping texts and terminology. Nonetheless, given the concerns about poor ratification levels for some conventions, it is clear that in some cases the intention was to adjust rather than repeat the wording of obligations. Thus the definitions should initially be approached as essentially new terms with meanings particular to the MLC, .35 At the same time, for questions of national implementation and application of specific obligations drawn from earlier conventions, it is likely that the basic rights or legal framework for the obligation will already be in place, although there may be questions of scope that will need to be considered. One of the definitions with no precedent in earlier texts that is often overlooked, perhaps because it is puzzling as to its role, is the definition of ‘requirements of this Convention’ in paragraph (e): e) requirements of this Convention refers to the requirements in these Articles and in the Regulations and Part A of the Code of this Convention:

This phrase can be viewed as a ‘term of art’ in this convention as it has a very specific meaning. This phrase, and its definition, were included in the text following the fourth meeting of the HLTWG in  and reflect the arrangements36 reached as to the nature of Part B of the Code and, importantly, the fact that Part B provisions (guidelines) are not the subject of port State control inspections under Title .37 This will be discussed in more detail in 35 However, in many cases, existing national legislation implementing earlier ILO conventions may well be consistent with the MLC,  provisions and coverage. 36 Consolidated Maritime Labour Convention: Commentary to the Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo .org/public/english/standards/relm/ilc/ilc/ptmc/pdf/cmlc-comment.pdf:

. In the recommended draft, the above understandings [agreement] are reflected partly in the Explanatory note to the Convention (see comment  below) and partly in the body of the Convention (see Regulation .., paragraph ). They could also be specifically drawn to the attention of the International Labour Conference with a view to their approval as part of the travaux préparatoires. 37 The phrase, other than the reference in Article V, paragraph , is primarily found in Title  and is usually associated with the additional bracketed phrases added by the PTMC in  and the Intersessional Meeting in , ‘(including seafarers’ rights)’. Since the majority of the MLC,  provisions can be understood as ‘seafarers’ rights’, a reference to ‘requirements of this convention (including seafarers’ rights)’ might be viewed as a tautology. However, in some circumstances, it may indirectly address the difficult question of inspection and enforcement, at the ship-board level, of the fundamental rights referred to in Article III. See: ILO, Guidelines for Port State Control Officers Carrying out Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www.ilo.org/global/What_we_do/InternationalLabourStandards/ MaritimeLabourConvention/lang-en/index.htm, para. . However, it should be noted that Article II, paragraph (e), and Article V, paragraphs  and , do not contain the phrase in brackets while the provisions in Title  on compliance and enforcement do. See also Chapter  in connection with minimum age.

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connection with Article VI, however, as noted in the Office Report for the th ILC: . Subparagraph (e) of paragraph  contains a definition relating to the “requirements of this Convention” to make it clear that this term only refers to the mandatory provisions of the Convention; namely, those in the Articles, Regulations and Part A of the Code, which, however, also include Article VI requiring Members to give “due consideration” to implementing their responsibilities in the manner provided for in Part B of the Code.38

Article II, paragraph , essentially a standard provision that confirms the meaning of the term ‘convention’ by stating that “[u]nless expressly provided otherwise”, also refers to the regulations and the Code. Presumably the formulation ‘requirements of this Convention’ excluding Part B of the Code can be understood as expressly providing otherwise. One of the most controversial developments in the Convention relates to the definition of a ‘seafarer’ in paragraph (f): (f) seafarer means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies;

As suggested above, and is clear in the wording of the provision, in order to understand specifically which workers (as ‘seafarers’) are covered, the scope provisions39 for seafarer and ships must also be considered. There are, however, some key points to note also with respect to the definition itself. First, in English40 the term is gender neutral and clearly moves away from ‘seamen’. Secondly, the term is now understood to cover a wide range of working arrangements, including self-employment or other contractual arrangements.41 The records of the meetings to develop the Convention text are replete with concerns about ‘who is a (really) a seafarer?’.42 The focus of concern was on personnel working as entertainers or other passenger service roles such 38

Report I(A), supra note , Note  (Article II). Art. II, para. (i); paras , , , and . See Final Report, Tripartite Subgroup of the HLTWG (Second meeting), Geneva, – February , ILO Doc. No. STWGMLS//, available at http://www.ilo.org / public / english / dialogue / sector / techmeet / stwgmls / stwgmls-.pdf, Annex , Report of the Drafting group on Definitions, where this definition was introduced and specific categories of seafarers (i.e., masters, ratings, etc.) removed. 40 This is a more difficult issue in the equally authoritative French text which uses the term gens de mer or marin for seafarer. 41 See also Regulation . and Standard A. on seafarers’ employment agreements. 42 The Consolidated Maritime Labour Convention, supra note , at Comment , para. , footnotes  and , states: 39

. Convention No.  does not address the matter. See also a paper prepared by the Office for the second meeting of the High-level Tripartite Working Group on Maritime Labour Standards, Definitions and scope of application provisions in existing ILO maritime instruments and related texts, document TWGMLS// (Geneva, ).

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as hair dressers or other ‘hotel staff ’. Essentially the issue is the impact on the cruise ship sector, where many of the workers, often a , or more on a single ship, had not previously been considered ‘seafarers’, and had various kinds of contractual arrangements, often with employers other than shipowners and sometimes for very short periods of time. As indicated in the Office Report for the th ILC,43 the MLC,  reflects the consensus of the constituents . Some Conventions define seafarers to include any person working or employed on board in any capacity. Others simply leave the matter of definition to national law (i.e., a “seafarer” may be “any person defined as such” under national law or collective agreements— Article (d) of Convention No. ). This was a view adopted early in the negotiations. See: Final Report, Tripartite Subgroup of the HLTWG (First Meeting), Geneva, – June , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/stwgmls/stwgmls-r.pdf: . The representative of the Government of France stated that, irrespective of the definition of “seafarer”, there should be no gaps in coverage of conditions of employment. He added that inspectors should be capable of covering all forms of working conditions on board and must be competent on the laws or regulations which are relevant for persons aboard ships. . The representative of the Government of the United Kingdom recalled that to assist with the definition of “seafarer” when implementing ILO Convention No. , the United Kingdom uses, as a rule of thumb, the concept of “normal place of work”. To ensure no gaps, a person whose normal place of work is at sea is covered by maritime regulation, and a person whose normal place of work is on land, is covered by shore-side legislation. She added that there were still borderline cases. . . . . The representative of the Government of Canada stated that their definition and interpretation of a seafarer is in line with the ILO Convention and what the Seafarer spokesperson said, a ship was a ship and the approach was driven by the command and control structure. However, there is a need to expand or have categories of seafarers to better define the reality of today’s shipping and labour practices in the world. We certainly need to explore the possibility of having categories of seafarers for the passengers industry and exploration and exploitation of oil and gas in the offshore zone. This ongoing problem with the definition of seafarer will have to be sorted out sooner than later. 43

Report I(A), supra note , Note  (Article II): . The definition of a “seafarer” in subparagraph (f) of paragraph  was the subject of extended discussion throughout the development of the proposed Convention text. Although the current definition or variations on it are found in many international labour Conventions, such as Conventions Nos. , ,  and  and, more recently, Convention No. , there is now a greater awareness of the broad range of people who are employed at sea and who carry out jobs not traditionally understood to be part of the seafaring workforce or thought to be covered by the maritime labour Conventions. The content of many maritime labour Conventions primarily speaks to the employment of personnel involved in some way in the operation of the ship—the crew. In most cases, the crew are engaged directly or indirectly by the shipowner (broadly defined). There are a number of people working on board ships, particularly passenger ships, that may not fall within this category (such as aestheticians, sports instructors and entertainers). The employment situation and protection available to these maritime industry workers is less clear. The difficulty with leaving solely to national law the matter of determining which workers are to be considered

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that, in principle, all ocean workers should be covered and considered as seafarers.44 However, it was also agreed45 that there were some borderline cases, as discussed below46 in connection with Article II, paragraphs  and , “in the event of doubt”. The definition of ‘seafarers’ employment agreement’ (SEA) in Article II, paragraph (g), is drafted inclusively to allow for a range of contractual situations and terminology in different legal systems. It is a new but relatively uncontroversial term in the MLC, . It should, however, be noted that this definition accommodates the traditional practice of ‘articles of agreement’. As mentioned above, the MLC,  also includes countries with laboursupplying responsibilities in several provisions. One of these responsibilities relates to the obligation in Article V, paragraph , Regulation ., and Regulation . regarding regulation of seafarer recruitment and placement services (if any) operating in the country’s territory.47 These services are defined in Article II, paragraph (h), and draw upon the definition in the Recruitment and as seafarers for the purposes of the Convention is that it may perpetuate unevenness within the global maritime labour force with respect to the application of international standards. However, some national flexibility is provided for in paragraph . Moreover . . . the issue of who is a “seafarer” (definition) should best be kept distinct from the issue of which categories of seafarers should or should not be covered by certain provisions of the Convention (scope). 44 This was a view adopted early in the negotiations. See: Final Report, supra note . Despite efforts of the th ILC on this point to help resolve questions, see infra pp. –, this still remains a matter that is debated for some sectors of the maritime industry. The Background Paper, ILO.Doc. No. PTMLC/ available at http://www.ilo.org / global / standards / maritimelabour-convention / WCMS_, prepared for a meeting in September  of the Preparatory Tripartite MLC,  Committee notes that: III . . . B. Application of the MLC,  to cruise ships . In general, the application of the MLC,  to ships of  gt and above engaged in international voyages does not appear to pose significant difficulties, possibly because these ships were also clearly covered by previous ILO Conventions. One exception where difficulties appear to have arisen is in connection with the cruise ship sector, primarily because the MLC,  clearly covers many workers on board these ships who may not previously have been protected as “seafarers”. To date, where issues have been articulated, the International Labour Office has been able to assist with information and explanations regarding the requirements of the MLC, . . It is understood, however, that some cruise ship owners may still have significant concerns regarding the impact on their operations of certain MLC,  provisions, particularly those in Titles  and . In general, these concerns have taken the form of requests for advice concerning possible national determinations, under Article II, paragraph  of the Convention, that certain categories of workers do not come within the definition of seafarers. In some of the countries concerned, there are no shipowners’ or seafarers’ organizations to consult with regard to such determinations. . . . 45 Committee of the Whole Report, supra note , para. . 46 See infra note , Resolution concerning information on occupational groups. 47 The details of the obligation are discussed in Chapter  in connection with Regulation ..

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Placement of Seafarers Convention,  (No. ), Article , paragraph (b). Although there was little debate over the definition, the related regulation provoked extensive discussion.48 The definition of a ship in paragraph (i), a modified version of the term found in the IMO’s STCW Convention for ‘seagoing ship’,49 provides that: (i) ship means a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply;

Essentially this can be understood as a definition of a ‘seagoing ship’, the term previously preferred in ILO conventions, that allowed for national determination of what ships or vessels were ‘seagoing’ and de facto, which seafarers/workers were covered. This definition of a ship proved to be controversial once it became clear, after the ‘package’ adopted at the Intersessional Meeting in  (see discussion below in connection with scope), that the MLC,  would not have a tonnage limitation nor would ships on domestic voyages be excluded. Thus a much larger group of ships, including those generally not covered by international maritime regulatory systems, were bought under the Convention.50 In fact the definition had not been seen as controversial and was not 48 There are two potentially difficult issues that are raised with this definition, which adds the word ‘seafarer’ before ‘recruitment’. The first issue concerns recruitment and placement services that might only on occasion recruit a person who is a seafarer to work for an employer who might ultimately be a shipowner (e.g., in the entertainment sector). Second, there is the even more complicated issue of an agent or subsidiary corporation of the shipowner that directly recruits seafarers. The Convention does not address direct recruitment, however the phrase ‘on behalf of the shipowner’ may prove problematic. It is clear that the objective of the provisions in the Convention is to address the problem of unregulated private services. The determining factor may be the concept of ‘is engaged’, for example, contracted to carry out this service. See Chapter . 49 The International Convention on Standards of Training, Certification and Watchkeeping, , London,  July ,  U.N.T.S. , as amended (STCW), defined the term ‘seagoing ships’ (Article II(g)): “Seagoing ship means a ship other than those which navigate exclusively in inland waters or waters within, or closely adjacent to sheltered waters or areas where port regulations apply”. The terms ‘seagoing ships’ or ‘seagoing vessels’ or ‘ships used in maritime navigation’ are commonly used in ILO conventions (e.g., C), often with tonnage limitations on application. The term, which was not defined and allowed for national determinations (often related to the nature of the voyage or tonnage), was initially included (in ) in the MLC,  proposed definition of a ship, but was subsequently deleted as redundant. 50 Although the definition is based on STCW, the MLC,  did not also import the STCW concept of ‘near-coastal voyages’, which allows for differing training and certification requirements for seafarers on ships (including foreign flag ships) regularly engaged in ‘near-coastal voyages’. See: Amended Annex to STCW, ibid., Chapter , Regulation I/., “Near-coastal voyages means voyages in the vicinity of a Party as defined by that Party”. This matter was also under some debate at IMO as it has been used (or arguably misused) by some governments to provide variation to the strict application of STCW sometimes out as far  nautical miles. The definition was not amended by the June  review conference held in Manila: Adoption of

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subject to comment in the Office Report for the th ILC other than in relation to the scope provisions.51 At the th ILC, however, a serious problem arose relating to this definition. The discussion centred on what could be considered as ‘closely adjacent to sheltered waters’52 and, in the case of a State comprised of islands (e.g., an archipelago), what are ‘inland waters’.53 The first issue was initially raised by the Final Act and Any Instruments, Resolutions and Recommendations Resulting from the Work of the Conference, Attachment  to the Final Act of the Conference Resolution , The Manila Amendments to the annex to the STCW, , Text adopted by the Conference, Conference of Parties to the STCW Convention, ,  July , IMO Doc. No. STCW/CONF./, available at http://www.md.go.th/seaman/pdf/STCW-CONF.-.pdf [hereinafter Manila Amendments]. However principles were adopted (Section A/) to guide determinations including: “. It is not intended that ships engaged on near-coastal voyages shall should extend their voyages worldwide, under the excuse that they are navigating constantly within the limits of designated nearcoastal voyages of neighbouring Parties.” 51 See discussion below at note  on Article II, paragraph . 52 As noted by the representative of Canada at the th ILC, supra note : . The Government member of Canada responded by expressing the hope that a solution satisfactory to all parties would be found, for example, one based on language such as “near-coastal voyages” which existed in other international instruments, and was well understood in the context of the IMO. Article II offered no flexibility with regard to a domestic fleet engaged in near-coastal voyages, and those vessels would not meet the requirements of the Convention. Hence, a provision was needed to make it possible for Governments to apply certain exemptions at the national level. Clearly, it would be very difficult to add the necessary flexibility to each and every provision. The best way would therefore be an overall flexibility provision, which he felt would be supported by many countries. He also recalled that, although Canada was not particularly significant in terms of tonnage, it was a major port State. He therefore called on the Committee to engage in dialogue with a view to agreeing upon an instrument that was attractive to all the various parties. 53

Ibid.,

. The Chairperson announced that, at the request of the Steering Committee, a Working Party had been established on Article II, paragraph (i), with the following task: to identify and clarify certain questions that had been raised with respect to the determination of ships that could be considered as navigating exclusively in inland waters or in waters within, or closely adjacent to, sheltered waters or areas where port regulations applied. . . . . The Working Party reported to the Steering Committee on its deliberations. An alternative approach was adopted to resolve the issue at hand. . The President of the Conference recalled that, when it became clear that the Working Party on Article II, paragraph (i), had not been in a position to elucidate the problem before it the problem had been referred to him by the Steering Committee for solution with the assistance of the “Friends of the President”. After discussion with some of the Members most interested in the amendments involving that question, it became clear that some of the detailed provisions of the Code of the proposed Convention could cause real administrative problems for certain countries in the case of smaller ships. He had, therefore, considered that some further flexibility in the Convention would be desirable in order not to prejudice the objective of wide-scale ratification of the Convention. He had discussed the problem with Members strongly opposed to the amendments concerned.

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Canada, the United States, and Australia, all large coastal States with significant coastal trading activity, usually within their  nautical mile exclusive economic zones.54 The difficulty with the term ‘internal waters’ related to a They had shown a very understanding attitude, but had naturally been concerned that any flexibility agreed would be strictly limited to the perceived problem and would not in any way affect the concept of a level playing field. He had therefore drafted a proposal for text which sought to meet those two concerns. The text would relate only to cases where particular problems were caused to a Government with respect to specific details in the Code. The Government, in consultation with its social partners, would be allowed to deal with those details by providing appropriate protection to seafarers in the manner set out under its national laws or regulations or other measures. The national provisions would of course have to comply with the Articles and Regulations of the Convention. His proposal would consist of an additional paragraph after Article II, paragraph , and a change to the present paragraph . . . . . Following these explanations, the Worker Vice-Chairperson expressed his group’s support for the proposal. The Workers’ group understood, however, that the proposal represented a global solution for all problems raised by different countries, including the Philippines. The Workers’ group only agreed on the basis that there would be no further discussions on this aspect of the Convention’s scope of application. 54 Given the likely importance of this issue for future implementation activity and the work of the ILO’s supervisory with the Article  reports, a lengthy extract from the preparatory records is set out. Committee of the Whole Report, supra note :

. The Government member of Canada reaffirmed his country’s commitment to work towards a good Convention which was widely acceptable and could be ratified by many countries. However, the draft instrument in its current reading still raised concerns for his country with regard to its application to the domestic fleet. Although the provisions concerning “no more favourable treatment” and “substantial equivalence” allowed for a certain degree of flexibility, the Convention was generally drawn up in rigid, “black-or white” terms and its application to the domestic fleet would give rise to great difficulties The speaker observed that Note  of the Office Office report had included the statement that “the Convention should not place unacceptable administrative and financial burdens on shipowners and governments by requiring all of its provisions to be applied with respect to ships of any size and any kind”. Article II did not offer sufficient flexibility in terms of applying relaxed requirements to the domestic fleet where necessary, ... . The Government member of Australia expressed concern that the Convention did not seem to take sufficiently into account national circumstances. . . . . The Government member of the United States supported the views expressed by the Government member of Canada. Although her country would like to ratify the Convention, some further flexibility was needed, either through an overall flexibility clause, or by relaxing the wording of individual provisions. The intention was not to weaken the Convention, but to provide the necessary flexibility so that the instrument could be widely ratified and provide coverage to as many seafarers as possible. . The Worker Vice-Chairperson . . . reiterated the position of the Workers’ group that, if confronted by any systematic attempt to exclude entire categories of seafarers, classes of ships or sectors of the industry, it would be preferable to retain the protection afforded by existing maritime Conventions. Certain governments were unlikely ever to ratify the Convention, while many others considered that the Convention was sufficiently flexible to meet their needs. . . .

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particular constitutional problem for the Philippines and the complex situation under LOSC whereby the Philippines has taken the view that the waters between the islands, irrespective of distances, are ‘internal waters’, a status that the Philippines suggested could be equated to ‘inland waters’.55 If this is correct, it would also have provided precedent for several other geographically similar States to exclude a number of ships (and seafarers on those ships) from the Convention. The underlying concern in all cases, irrespective of the geographic particulars, relates to the economics of coverage of additional workers and ships, particularly those engaged in domestic trade routes. These ships, even those with larger tonnages, are often not regulated or certified in the same way as ships

. The Worker Vice-Chairperson recalled that the definition of “near-coastal voyages” was “voyages in the vicinity of a Party as defined by that Party”. If the flexibility sought by Canada were to be given to all ratifying countries, the actual coverage of the Convention would be very different from that intended. . . . . The Government member of Australia supported the concerns expressed by the Government member of Canada. Previously, his delegation had raised some doubt as to whether the “substantial equivalence” clause was in itself sufficient to ensure that national circumstances were duly taken into account. . . . . The representative of the Secretary-General responded that the proposed Convention was unprecedented in terms of the detailed explanatory information available as to the evolution of each provision over the four years of preparatory work. Hence, the real intention of the drafters should be clear. Also, unlike the Merchant Shipping (Minimum Standards) Convention,  (No. ), the proposed maritime labour Convention contained a clear definition of “substantial equivalence” in Article VI. The Committee of Experts would be relieved to have so many elements on which to evaluate compliance. She concluded by recalling that a Special Tripartite Committee was provided for by the Convention and would provide useful inputs to the Committee of Experts with regard to the practical application of the Convention. 55

Article  of the Constitution of the Republic of the Philippines () provides: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

Both propositions seem difficult under LOSC, supra note , with its compromise status solution of ‘archipelagic waters’, especially as the Philippines is a State party. Irrespective of the merits of this view under LOSC, it appears the Philippines was able to ratify STCW with similar wording. However the underlying issue regarding application to the inter-island domestic fleet may have been less difficult, possibly because of the near-coastal voyage concept. The situation is especially complex as the Philippines is the country of nationality/residence for a very large number of the world’s seafarers, and therefore, presumably a beneficiary of the MLC, . However, it is also a flag State with a large domestic, rather than international, fleet.

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engaged on international voyages and are not subject to port State control. The solution56 to both concerns was a scope provision (Article II, paragraph , as discussed below in connection with scope and in cases of doubt and flexibility) which addressed the underlying problem of providing some flexibility regarding application of the Convention to domestic fleets, without determining that those ships are not ‘ships’ under the Convention. However, the issue of coverage of smaller ships and domestic voyages is likely to remain a challenge as national authorities grapple with the problem of application to specific sectors57 of the industry. The economic questions that arise will undoubtedly result in a close examination of how to work within the boundaries of the definition of ships. While there was no opinion of the ILO Legal Adviser on the matter, it seems obvious that the usual international obligations58 regarding good faith would apply. In addition, although the definition of a ship is based on the STCW definition, the MLC,  and the STCW have differing concerns and contain differing concepts. For example, the STCW also contains the concept of near-coastal voyages while the MLC, , in Article II, paragraph , addresses the application of certain details in the Code to ships of less than  GT that do not go on international voyages. The latter clearly indicates that the Convention is understood as apply to ship of all sizes in the domestic fleet. While there is some flexibility and scope for national determinations based on the definition of a ship, it would be a highly unusual geographic configuration that would result in the exclusion of the entire domestic fleet, if only as a matter of good faith. Figure  sets out a possible methodology or approach that national authorities might use to consider these specific application questions.

56

This was brought about through intervention by ‘Friends of the President’ (see Chapter ). For example, the application of structural requirements to commercially operated yachts and other smaller ships. 58 The Vienna Convention on the Law Treaties (supra note ) points out in Article  (pacta sunt servanda) that, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”. As set out in note , Article , paragraph , provides the general rule of interpretation that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Any interpretation would also need to take into account the nature of the convention as a consolidating convention in relation to the obligations under Article  of the ILO’s Constitution. See also the opinion of the ILO’s Legal Adviser in connection with the term ‘satisfy itself ’ in Article III, as set out at page  infra, and see note , para. . 57

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Figure . Guidance59 for an approach to the implementation of the MLC,  (a) . . . its purpose is to suggest an approach that the Government of a country may wish to follow in determining the extent to which its laws and regulations and other measures would need to be adjusted or complemented to meet the requirements of the Maritime Labour Convention,  (“the Convention”). It is a first step towards ratification of the Convention, which is designed to facilitate the second step, namely the preparation (or finalization) by the Government, in a tripartite framework of a matrix showing: – the extent to which a country’s law or practice already meets the Convention’s requirements, especially with respect to domestic shipping, and – in the case of gaps or inconsistencies: – the extent to which national law or practice can be adjusted, and – the provisions of the Convention for which such adjustment would be difficult. Overview of the approach (b) With this approach, the Government would: – first, exclude from its consideration ships that are not covered by the Convention; – second, take account of the exclusions or exemptions that may be made in accordance with the Convention: – either in the case of a provision or provisions causing difficulty anywhere in the Code contained in the Convention, – or with respect to particular provisions or to a particular category of provisions; – third, take account of the flexibility that is provided under the Convention, – for implementing the requirements of the Convention in general (i.e., flexibility in the form of substantial equivalence and flexibility related to the status of Part B of the Code, and – for choosing the legal means of implementing the requirements (i.e., through legislation or other measures, and – for implementing particular provisions; – ensure that social dialogue can be put into operation, especially in all cases where it is a precondition to deciding upon an exclusion or exemption or exercising flexibility under the Convention; and – finally, – identify the gaps in the coverage of the Convention’s requirements under the country’s laws and regulations and other measures, with respect to certain ships or certain seafarers that are covered by the Convention, and – consider how those gaps might be filled, taking account of the flexibility provided under the Convention.

59

Extract and edited proposals for an approach prepared in . On file with the co-author.

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The term ‘shipowner’ in Article II, paragraph (j) is aligned with the IMO conventions and is almost identical to the definition of ‘company’60 found in the ISM Code to SOLAS and the STCW. It also based on, inter alia, the definition in the ILO’s Convention No. .61 This comprehensive and complex definition has been designed to capture all known variations on corporate organizational, management, and operational practices in the sector. Importantly it specifically reflects the principle that ‘shipowners’ (as defined) are the responsible employers under the Convention with respect to all seafarers on board a ship.62 At the th ILC, the last clause of paragraph (j), “. . . regardless of whether any other organization or persons fulfil certain of the duties or responsibilities on behalf of the shipowner”, was added and the word ‘agent’ proposed as a deletion. The reasons and concerns were explained as follows: . The Government member of the United Kingdom explained that the amendment comprised two elements. The deletion of the word “agent” was proposed solely for the sake of consistency, since a very similar definition of “shipowners” was provided in the International Safety Management (ISM) Code, . The additional text had been drafted to clarify the provision and remove any uncertainty regarding the definition of regarding the definition of a shipowner. . . . . The Government member of Japan indicated that he would oppose the amendment, which would modify wording which was basically that contained in several international Conventions, including the SOLAS and STCW Conventions, the International Ship and Port Facility Security (ISPS) Code and ILO Conventions No.  and the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ). By introducing new language, there was a danger that serious

60 International Convention for the Safety of Life at Sea, , London,  November ,  U.N.T.S. , as amended (SOLAS), Chapter IX of the Annex, Regulation , para. ; IMO Resolution A.(), International Safety Management (ISM) Code, , available at http://www.imo .org/SharePoint/mainframe.asp?topic_id=, para. ..; and STCW, supra note , Amended Annex, Chapter , Regulation I/, paragraph .. 61 Article , paragraph (c). See also: Final Report, supra note , Annex , Report of the Drafting Group on Definitions, which had considered adding another definition of employer:

. Re: adding a new definition of “employer” It was concluded that the current definition of shipowner, which is consistent with ILO and IMO Conventions, should be retained. It was decided that the term “employer” should be defined in the specific parts of the Code where it is used and should not be defined in the Articles. 62

Report I(A), supra note , Note  (Article II): . . . . The definition reflects the principle that shipowners are the responsible employers under the Convention with respect to all seafarers on board their ships, without prejudice to the right of the shipowner to recover the costs involved from others who may also have responsibility for the employment of a particular seafarer. This is expressly stated in Standard A. (paragraph ) on repatriation.

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chapter six administrative difficulties could be caused if the meaning of the term “shipowner” differed from that used in other related instruments Moreover if, as indicated by the sponsors of the amendment, there was no intent to introduce a substantive change, the amendment was not needed. Rather than increasing clarity, its effect would be to amplify uncertainties. The problem arose in situations in which a particular shipowner (“A”) decided to delegate certain operating or managerial responsibilities to another party (“B”), who would then pass certain responsibilities to a third party (“C”) making it extremely difficult for the seafarer or the public authorities to identify the party truly responsible for fulfilling the obligations under the Convention, for example in relation to the payment of wages. The risk was that the proposed new wording would create a situation in which responsibilities could be endlessly passed from one party to another and in which it would be very difficult to identify the actual shipowner. The inclusion of such a clause would help unscrupulous shipowners to avoid their responsibilities.

In the end the word ‘agent’ was not deleted, but the proposed clause was adopted. Importantly, despite some debate over wording, the forgoing indicates there was a clear tripartite consensus on the idea that shipowners should be the central point for responsibility, irrespective of individual contractual arrangements.63 The practical issue raised by vesting responsibility for all seafarers in the shipowner is the situation of seafarers employed (also) by another employer. A possible approach with respect to contractual arrangements in relation to the requirement under Regulation . (requiring a SEA between the shipowner (or representative) and the seafarer) is discussed in Chapter . Scope of Application—Article II, Paragraphs  and  To determine who or what the MLC,  applies to, both the definition and, perhaps even more importantly, the scope of application provisions must be considered. This section examines the provisions that are truly scope (Article II, paragraph  (seafarers) and  (ships)). The balance of scope of application provisions (Article II, paragraphs , , , and ) dealing with borderline cases “in the event of doubt” as to application and with a possible exercise of national flexibility for some ships will be considered in the following section. Scope proved to be one of the most difficult issues to resolve during the development of the MLC, . This is not surprising and would be the case in the negotiation of most treaties. Questions of scope, irrespective whether they are rolled into the definitions or dealt with separately, requires that the discussion

63

Consolidated Maritime Labour Convention (Preliminary Second Draft), Commentary, HLTWG, (Fourth Meeting), Nantes, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf [hereinafter Office Report], Comment  (on Article II).

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move from general considerations of principles and rights to that of application, that is, which sectors will be affected/regulated and, in the case of the MLC, , which seafarers are to be protected (or not). In either case, important economic consequences and policy considerations turn on these determinations. In the MLC,  this issue coalesced around the question of whether there should be a general tonnage limitation for the application of the entire Convention. Such a limitation, for example,  GT, would generally follow the approach adopted in other international maritime conventions,64 with their focus on larger ships that go on international voyages. Thus domestic fleets have been left largely in the realm of national legislation rather than subject to international standards and, critically, not affected by the increasingly effective ship certification and shipboard level port State control enforcement regime. As the above discussion on the definition of a ship indicated, the question of coverage of ships that do not travel internationally, and smaller tonnage ships, (i.e., primarily the domestic fleet), was not resolved at the PTMC in , despite the efforts of working parties. Agreement on the majority of the provisions on the scope of application was achieved, only very late in the process, on the basis of a tripartite consensus on a negotiated package of solutions at the Intersessional Meeting in . The Office Report for the th ILC outlined this package as follows (with italicized text showing the agreed to principles and solutions adopted to implement them).65 – . . . This overall package consists of the following carefully balanced set of principles developed through a working group process, as the best way to address the difficult questions regarding the scope of application mentioned [above], including application of the Convention to ships operating within its flag State’s waters only: There would be no general or overall exclusion of ships below a certain gross tonnage or of ships not engaged in international voyages; however, the Convention could include some specific scope-related provisions under the various Titles to address particular concerns about application. It was therefore agreed that the words “Except as expressly provided otherwise,” should be added at the beginning of Article II, paragraph , of the Convention (as previously indicated). – Ships below a certain gross tonnage, which might be  gross tonnage or less, could be excluded from the application of certain provisions of Title  on accommodation. A provision corresponding to paragraph  of Standard A. was accordingly agreed. It allows Members, after tripartite consultation, to exempt ships below a

64 For example, SOLAS, supra note , and the International Convention for the Prevention of Pollution from Ships, London,  November ,  U.N.T.S. , as amended by Protocol of  relating to the International Convention for the Prevention of Pollution from Ships of , London,  February ,  U.N.T.S.  (MARPOL /). 65 Report I(A), supra note , Note  (Article II), para. . References to other parts of this Report have been removed. See also: Unresolved Issues, supra note , Note  (Article II), para. .



– –

– – –

chapter six certain gross tonnage from the requirements of specified provisions on accommodation, taking account of the size of the ship and the number of persons on board and subject to the general rule on exemptions set out in paragraph  of the Standard. Article II would not contain any provision allowing the exclusion of ships not engaged in international voyages. The certification requirements in Title  would apply to ships of  gross tonnage or over that either are engaged in international voyages or are operating in foreign ports. This limitation of the scope of application is contained in the first part of a new paragraph  of Regulation .. The concept of an international voyage should be based on the definition in the SOLAS Convention. A definition which follows this approach is found in the second part of the new paragraph  of Regulation ... The certification system under Title  must be available, on request, to shipowners that request a certificate, even if the ship is not required to have a certificate. This is provided for in the new paragraph  of Regulation ... Control measures in port States for ships that do not have a certificate would follow existing port state control practice already used with respect to IMO conventions for ships below “convention size”.

As explained above in connection with the definition of a ship, even with this package, these issues were still controversial at the th ILC. In fact, to the extent that these solutions did not meet particular concerns, the focus shifted to reducing the scope of application through use of the definitions. However, the above solutions and several other elements, for example, provisions in Title  to address construction and equipment of existing (older) ships, were, except for the issue of ships in the domestic fleet, for the most part adopted as proposed. The package of principles, involving considerations cutting across several Titles, including, importantly, the enforcement provisions on the certification66 of working and living conditions on ships, is illustrative of both the complexity of the issues and the need to appreciate the careful linkages between provisions in the Convention. As discussed above in connection with Article II, paragraph , reference was made to the use of the formula ‘unless or except as expressly provided otherwise’ to allow for the possibility of narrowing coverage in specific parts of the Convention. It was noted that there are no examples of this use in connection with the definitions. The same formula is used for the two scope provisions on ships and seafarers. There are also no provisions narrowing application of any provisions for seafarers. The result is that, as paragraph  states, “. . . this Convention applies to all seafarers” (on ships covered by the Convention). However, there is some flexibility available ‘in the event of doubt’ (see the discussion in the following section regarding paragraph ). 66

See Chapter .

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In the case of ships, there is some narrowing of the application with exclusions in the scope provision in paragraph , as well as ‘expressly provided otherwise’ situations in Article II and in Title  in relation to the application of some provisions to older ships and smaller ships.67 In accordance with paragraph , the Convention applies to all ships (as defined in paragraph (i), based on geographic parameters), whether publically or privately owned, “ordinarily engaged in commercial activities”.68 Paragraph  also contains only a very few exclusions for ships engaged in fishing or similar pursuits69 and ships of 67 Report I(A), supra note , Note  (Article II), para. . However, arguably the specific, narrowed application of some provisions may not be cases of non-application of the Convention. 68 Committee of the Whole Report, supra note . With respect to the term ‘ordinarily’, a proposal was made to remove it but not accepted:

. The Worker Vice-Chairperson observed that the issue raised by amendment D. had already been discussed at previous meetings. Discussion had revolved around ships that had been taken away from their commercial activities for one voyage to carry government cargo. Leaving the term “ordinarily” in this provision would mean that those ships were covered by the Convention, since their non-commercial activities were only occasional. It had been argued that the UNCLOS Article  provisions on sovereignty were relevant to this issue; however, those provisions only related to the protection and preservation of the marine environment and so were not applicable in this case. Being on board a ship requisitioned for one non-commercial voyage was not sufficient reason to remove those seafarers from the protection of this Convention. The term ‘ordinarily’ was also used in earlier ILO Conventions, for example, C (in ) up to about C. C, supra note , adopted in , used the following formula (Art. , para. ): . Except as otherwise provided in this Article, this Convention applies to every sea-going ship, whether publicly or privately owned, which is engaged in the transport of cargo or passengers for the purpose of trade or is employed for any other commercial purpose. . National laws or regulations shall determine when ships are to be regarded as sea-going ships for the purpose of this Convention. Interestingly, the formulation differed in two conventions adopted in . A version of the C formulation was adopted in Convention No.  on social security, as part of the definition of seafarers (ship and vessel were used interchangeably): Article  (c) the term seafarers means persons employed in any capacity on board a seagoing ship which is engaged in the transport of cargo or passengers for the purpose of trade, is utilised for any other commercial purpose or is a seagoing tug, with the exception of persons employed on . . . On the other hand, Convention No. , on repatriation, contained the following definition, which is closer to the MLC,  and earlier formulations (Art. , para. ): This Convention applies to every seagoing ship whether publicly or privately owned which is registered in the territory of any Member for which the Convention is in force and which is ordinarily engaged in commercial maritime navigation and to the owners and seafarers of such ships. 69

In the early stages of the development of the Convention there was debate about the exclusion of fishing vessels. However, the ILO Governing Body took what proved to be a wise decision

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traditional build such as dhows or junks. In addition an exclusion for warships or naval auxiliaries was adopted by the th ILC after debate on the question of when a ship would be considered an auxiliary.70 The other exclusions in paragraph  were the subject of extensive discussion, especially during the PTMC in  and the Intersessional Meeting in , mainly in connection with the tonnage limitation71 and also whether to include to develop a new comprehensive convention specifically addressing working and living conditions for fishers. This sector is much more disparate in both ownership and employment relationships and economic considerations, as well as in its representation in tripartite discussions, than the ‘maritime’ sector. Initially, this new convention tried to follow the approach taken in the MLC,  but this was not adopted by the ILC in a very close vote in June . See: Nineteenth sitting, ILC, rd Session,  June , ILO Doc. No. PR , p. , curiously the recommendation was adopted. Subsequently a reformatted convention and recommendation were adopted in , the Work in Fishing Convention,  (No. ), Geneva,  June , available at http://www.ilo.org/ilolex/english/convdisp.htm, and the Work in Fishing Recommendation,  (No. ), Geneva,  June , available at http://www.ilo.org/ilolex/english/recdisp.htm. The parameters of ‘fishing’ in the MLC,  are not defined, but the predecessor effort at consolidation in , C, supra note , made specific exclusions in Article , paragraph (). “This Convention does not apply to . . . (b) ships engaged in fishing or in whaling or in similar pursuits”. The Working Fishing Convention, , which is in force, defines commercial fishing in Article I, paragraph (a) as “all fishing operations, including fishing operations on rivers, lakes or canals, with the exception of subsistence fishing and recreational fishing”. 70 This exclusion was an important concern for a few governments that required express exclusion rather than relying on the implicit exclusion related to commercial operations and the fact that port State control would not extend to foreign warships. Committee of the Whole Report, supra note : . The Worker Vice-Chairperson pointed out that the wording in Article III(a) of the STCW Convention was the same . . . He reminded the Committee of an earlier discussion on the term “ordinarily engaged” that had already addressed the exclusion of warships. His group could understand the reasons for a short, explicit exclusion of warships and naval auxiliaries, but did not support the full language found in the STCW Convention. It was not clear why privately owned ships which just happened to transport state-owned cargo should be exempt from the inspection of the seafarers’ working and living conditions on board. These inspections would not concern the cargo but would focus only on labour issues, such as food and water supplies on board and crew accommodation. . . . . The Government member of Norway expressed the view that warships and naval auxiliaries were already exempt, in virtue of the wording of Article II, paragraph . Since these vessels could not be understood to be “ordinarily engaged in commercial activities”, they fell outside the scope of the Convention. An explicit exemption was therefore unnecessary. . The Government member of the Bolivarian Republic of Venezuela indicated that an explicit exemption was necessary, since some naval vessels were in fact engaged in commercial activities. . The Government member of the United States reiterated her delegation’s desire for an explicit exclusion of warships and naval auxiliaries. Such exemption would be in line with other international instruments. She supported the suggestion to ask the Drafting Committee to devise appropriate wording. 71

For example, extract from Committee No.  Report, supra note , shows the nature of the debate:

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a proposed exclusion for offshore exploration or exploitation rigs or mobile offshore drilling units (MODUs). These structures present special difficulties as to their ‘maritime’ status as they are not always regarded as ships or necessarily regulated by the flag States72 when not navigating. They were partially excluded from the major existing ILO maritime convention, C, “. . . when not engaged in navigation”73 and other conventions on the basis of consultation.74 At the PTMC there was extensive discussion of the issue, and a working group was struck to resolve the issue. The resolution they reached was to not . The Shipowner Vice-Chairperson proposed keeping the text of Article , paragraph , subparagraph (a) and to limit the scope of the Convention to ships of more than  gross tons. . The Seafarer Vice-Chairperson said that the rights of seafarers should not be related to the size of the ship they work on; issues such as hours of work and minimum working conditions were not tonnage related. He therefore proposed that subparagraph (a) be removed. . The Government member of the United Kingdom agreed. It was of fundamental importance to protect seafarers with this Convention. He suggested introducing size limits of ships in Titles  and , as the absence of such limits in some cases would create a serious burden to the governments for regular inspection. . The Government member of the Netherlands stated that seafarers had rights on small vessels as well but agreed with the Government member of the United Kingdom regarding the burden to the Governments for regular inspection of small vessels. Report of the Discussion, Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/ptmc/ptmc-.pdf: . The Seafarer spokesperson agreed that the Convention should be ratifiable, but disagreed with the Shipowner spokesperson on the definition of ships to be covered by it. He recalled the importance of compliance and enforcement in this Convention. The Convention ought to cover all seafarers, whether on large or small vessels and whether in domestic or worldwide trade. He could not accept that seafarers on vessels of less than  gross tons or trading in national waters did not require protection. In fact, seafarers on these vessels might need more protection rather than less. Thus, the Convention should apply to all ships, irrespective of size or trade. Arguments to the contrary would have to be very convincing. Institutionalized “maritime apartheid” was unacceptable. Referring to exceptions in the application of the Convention, i.e. ships engaged in fishing or in similar pursuits and traditional vessels, he saw these as clear cases . . . 72 See also: Final Report, supra note , Annex , Report of the Working Party on Tonnage Issues in the draft proposed Convention. For example, under MARPOL /, supra note , Article , Definitions, “() Administration means the Government of the State under whose authority the ship is operating. . . . With respect to fixed or floating platforms engaged in exploration and exploitation of the seabed and subsoil thereof adjacent to the coast over which the coastal State exercises sovereign rights for the purposes of exploration and exploitation of their natural resources, the Administration is the Government of the coastal State concerned”. 73 C, supra note , Art. , para. . 74 Recruitment and Placement of Seafarers Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. , para. .

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include an exclusion in paragraph , rather the Convention would be silent on the matter and each flag State could decide for itself whether an MODU would be covered or not. The result is that the Convention does not exclude MODUs and, presumably, they would be covered if or when the flag State regards them as a ship under the Convention’s definition. This is essentially the status quo. The status of MODUs is a potentially important and divisive issue, as is the related issue regarding the dredging industry. This issue did not recur at the th ILC75 in . Thus, the discussion at the  PTMC regarding a proposed exclusion, “(d) for oil rigs and drilling platforms [when not engaged in navigation]. (modified C.A/(c))”, is reproduced below76 (emphasis added): . The Shipowner Vice-Chairperson stated that the text in square brackets in Article II, paragraph , subparagraph (d) should be deleted, since the Convention should not apply to oil rigs and drilling platforms. The Government member of Norway agreed, stating that the suggested text would mean that during repositioning, a different legal regime would need to be applied to the same rig. . The Seafarer Vice-Chairperson noted that different types of mobile maritime drilling units existed, some with large seafarer crews and others with much smaller seafarer crews. In both cases, seafarers that were not covered by shore regulations needed to be identified and covered by the Convention. . The Government member of the United Kingdom stated that fixed rigs were treated as land-based structures and, as such, were not under the jurisdiction of the maritime authority. When rigs were not drilling but were being moved they were treated as vessels. The suggested text should be kept, allowing the provisions to be applied to rigs in movement and excluding fixed rigs. . The Seafarer Vice-Chairperson reiterated that seafarers were still present on board mobile maritime offshore units even when fixed, and suggested examining the formulation concerning seafarers serving on maritime mobile offshore units found in Article I, paragraph  of the Recruitment and Placement of Seafarers Convention,  (No. ) . The Government member of the Netherlands drew the attention of the Committee to the dredging sector, which, according to the present definitions for “seafarer” and “ship”, would fall in the ambit of the Convention. Dredgers were seagoing vessels registered as ships and had certificates of seaworthiness. While suction dredgers were not self-propelled, mostly worked in a stationary position in ports and could not navigate, hopper dredgers were self-propelled. Due to their special structure, they would not satisfy the requirements of the Convention relating to accommodation or other provisions. Suction dredgers should be exempted from the Convention, and appropriate flexibility regarding accommodation requirements should be applied for hopper dredgers. 75

Although there was a discussion in connection with Regulation . regarding medical care, which suggests that it was assumed that MODUs would be covered. See: Committee of the Whole Report, supra note , paras –. 76 Committee No.  Report, supra note .

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. The Seafarer Vice-Chairperson felt that these concerns were sufficiently covered in paragraph , subparagraph (i), and paragraph . . The Government member of Mexico suggested deleting the text in square brackets in paragraph , subparagraph (d). The main purpose of drilling platforms was the exploration and production of petroleum, not navigation. If these platforms were treated as ships, any person employed on-board, including drilling and other petroleum specialists, would need to be considered to be a seafarer in accordance with Article II paragraph (i). However, provisions such as wages, port state inspection, working conditions and working schedules were not applicable to them. The Government of Mexico would not be able to ratify the Convention if the suggested wording was allowed to remain. The Government members of Denmark and Norway supported the deletion of the text in square brackets. . The Government member of the Republic of Korea pointed out that the suggested wording originated from Article I paragraph (c) of the Merchant Shipping (Minimum Standards) Convention,  (No. ). Since this wording created a volatile legal situation, the subparagraph (d) should read “permanently fixed oil rigs and drilling platforms”. Personnel on-board platforms other than seafarers could be excluded according to paragraph , after consultation. . The Seafarer Vice-Chairperson deemed the proposal by the Government member of the Republic of Korea to be helpful, since fixed drilling platforms needed to be distinguished from self-powered mobile platforms. Since his group wanted all seafarers on moveable platforms to be protected, even while these units were anchored to the seabed and drilling, it would only agree with the deletion of the bracketed text, if they were adequately protected as other workers on platforms. A situation where seafarers on moveable platforms would be treated as seafarers under IMO instruments (e.g. the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers,  (STCW) and the International Safety Management Code, ), but would not fall under this Convention and would not be adequately covered otherwise, needed to be avoided. . The Government member of the United Kingdom stressed that moving mobile offshore drilling units were considered ships under IMO regulations, as well as in ILO Conventions Nos.  and . . The Government member of Norway did not support the proposal by the Government member of the Republic of Korea. The act of navigation should not automatically lead to a different legal regime for one and the same activity. Therefore, the concept of temporary application of the Convention needed to be abolished. The Government member of Mexico supported this position. . The Government member of Qatar suggested that the whole of subparagraph (d) should be deleted, since working conditions on oil rigs and platforms were generally better than on ships. The Seafarer Vice-Chairperson expressed interest for this proposal. . The Committee set up a tripartite Working Party on this issue comprising Government members from Mexico, Norway and the United Kingdom; Shipowner members from Denmark, France, Mexico and Norway; and Seafarer members from the Netherlands, Norway and Sweden. . The Government member of Norway reported that in its first discussion the Working Party had identified six possible options: . . .

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. He concluded that the Working Party had done as much as had been possible within its remit . . .. . The Seafarer Vice-Chairperson suggested that the Working Party should reexamine the issue with the participation of the IMO, as it had great experience in the application of maritime instruments in the area of mobile maritime offshore units. Although it was clear that different countries had different regimes, the important thing was to ensure that all seafarers were adequately protected and to recognize that some people employed on offshore rigs were in fact seafarers. . The Government member of Mexico supported this suggestion. The emphasis needed to be on formulating a text that would ensure all seafarers on rigs were covered by the Convention, while excluding all those who were not seafarers. . It was agreed that the Working Party should reconvene, with some written suggestions from the Office. At the suggestion of the Government member of the United Kingdom, it was agreed that one or two additional Government members could participate, in view of the divergent views of the three existing Government members. . The Government member of Norway said that the Working Party had at first not reached a common position. The Seafarers’ group had proposed a new draft, which had not been accepted by the Shipowners and was considered problematic by the Government members. Finally, the Working Party suggested deleting paragraph , subparagraph (d) in its entirety, thereby leaving the Convention silent on this issue. This would mean States could apply the provisions fully, partially or not at all to these vessels, at their discretion.

A further application difficulty in connection with paragraph  relates to the decision not to include an exclusion for commercially-operated yachts, particularly when this is combined with no tonnage limitation. An exclusion of ships powered in part or entirely by sail had often been included in previous ILO conventions.77 For some countries there are problems in applying the Convention, particularly in relation to seafarer accommodation requirements for smaller yachts that are either fully or seasonally commercially operated and travel internationally, for example, sailing between small island States. There is some flexibility78 with respect to the accommodation requirements for ships less than  GT. However, commercially operated yachts between  GT and  GT or over (the ‘super yachts’) indicate that they may have some difficulty complying 77

For example, C, supra note , Art. , para. , provides: This Convention does not apply to – (a) ships primarily propelled by sail, whether or not they are fitted with auxiliary engines; . . . (c) small vessels and vessels such as oil rigs and drilling platforms when not engaged in navigation, the decision as to which vessels are covered by this subparagraph to be taken by the competent authority in each country in consultation with the most representative organisations of shipowners and seafarers.

78

See Standard A., para. . See also Chapter .

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with the construction and equipment related requirements for seafarers’ accommodation.79 Many of these difficulties can probably be addressed through national social dialogue and the application of flexibility using substantial equivalence (under Article VI).80 Alternatively, these questions of application to specific sectors of the maritime industry may be in the category of issues that will be considered by the Special Tripartite Committee (MLC, , Article XIII), once it is established. Application Issues (Doubt and Flexibility)—Article II, Paragraphs , , , and  In addition to the definitions and the two scope provisions set out above, Article II contains provisions (paragraphs , , and ) that provide some national flexibility to deal with particularly difficult application problems and address borderline cases where a determination on application can be made either in or after consultation with the seafarers’ or shipowners’ organizations concerned. Aside from specific issues of wording, there are two more subtle textual points in these provisions. The first point to note is that the Convention adopts various terms to describe the exercise of discretion or flexibility by either the ratifying State or its competent authority. In most cases81 these decisions are described as ‘determines’ or determinations. In all cases this term signals an obligation to engage in consultation with the relevant social partners. The second related point is the distinction between the terms ‘in consultation’ and ‘after consultation’. The phrase ‘after consultation’ is used in paragraphs  and  and the phrase ‘in consultation’ in paragraph .82 These two phrases were the subject to an opinion83 by the ILO’s Legal Adviser at the third meeting of the HLTWG in : . . . . the two terms were not absolutely identical but that there was a difference between them in respect of the continuity of the process of consultation. In the event of the term “in consultation with the shipowners’ and seafarers’ organizations”, it would be a continuous process of consultation. In the event of the term “after consultation with the shipowners’ and seafarers’ organizations”, the process of consultation would be completed once the decision had been taken, and that decision would be taken once and for all. . . .

79

Standard A.. This appears to be the case even for ships that are still to be built. See Final Report, Preparatory Tripartite MLC,  Committee, Geneva, – September , ILO Doc. No. PTMLC/, available at http://www.ilo.org/wcmsp/groups/public/ed_norm/-normes/documents/meetingdocument/wcms_.pdf, paras – and . 81 In Title , the term ‘permit’ or ‘variance’ is also used. 82 See also the exchange on this matter at the th ILC, Committee of the Whole Report, supra note , paras  and. 83 Final Report, supra note , paras –. 80

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. A Government representative asked whether she understood the meaning of continuous process correctly. Before issuing legislation, her Government sent the draft text to the social partners for comments, but only some of them were taken into account. She inquired whether, for the purpose of a continuous process, it was necessary to contact them again. . The Legal Adviser answered that the understanding of the Government representative was correct. He explained that the continuous process did not mean that the Government had to revert to the issue, once the decision had been taken. However, the question whether to continue to exclude that category of vessels might be raised again and be re-examined depending on the developments in general and in the decision. In this way the process became a continuous process. . . . . The Legal Adviser clarified that consultations did not represent negotiations. It was not necessary to have an agreement, but rather consultations with the social partners in good faith and with good will. The results of those consultations, i.e. the opinions expressed by the social partners, were to be considered fairly and justly, which did not mean that an agreement had to be reached. “In consultation”, therefore, did not require an agreement, but rather implied that the consultation process might continue depending on the circumstances.

A further complication, particularly for countries with open registries, is ascertaining who to consult if the country does not have a representative organization for seafarers or for shipowners, or if the national organization which does exist only represents seafarers and shipowners in its domestic fleet, not its international fleet. One of the underlying ILO approaches and themes in the Convention is strengthening and supporting national social dialogue to encourage establishment of national representative organizations in the long term. Recognizing this problem, the MLC,  provides an innovative, global industry solution in the form of mandatory84 consultation, under Article VII, with the Special Tripartite Committee to be established under Article XIII. Turning to the specific flexibility provisions under Article II, as noted above, the MLC,  applies to all seafarers (on ships covered by the Convention). Despite this firm principle, there will be borderline cases where some persons might on a very strict reading be regarded as seafarers under the Convention, but their situation is not one that the Convention is intended to address, for example, an entertainer on board for a few nights or, more obviously, inspectors coming on board to inspect a ship. Paragraph  allows for a determination by the flag State competent authority “after consultation” “in the event of doubt as to whether any categories of persons are to be regarded as seafarers”. It is important to note that the provision does not allow for the exclusion of any category of workers that are seafarers. Rather it only allows for a determination that some categories of workers are not considered seafarers under the Convention and thus are not covered by the Convention. Paragraph  does not allow 84

See discussion, infra, of Article VII. Article VII provides “may . . . only be decided . . .”.

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selective application of provisions in the Convention. In order to provide guidance for national authorities, the th ILC adopted an important resolution that contains ‘information’, that is, advice that was agreed to on a tripartite basis.85 Most importantly, it sets out the following criteria for making these determinations: (i) (ii) (iii) (iv) (v)

the duration of the stay on board of the persons concerned; the frequency of periods of work spent on board; the location of the person’s principal place of work; the purpose of the person’s work on board; the protection that would normally be available to the persons concerned with regard to their labour and social conditions to ensure they are comparable to that provided for under the Convention.86

This resolution is not binding on countries or on the ILO supervisory system, as an interpretation of Article II, paragraph . However, it seems likely that it would be persuasive in the event that a country’s determination came under question. The important objectives of this resolution are: . . . the International Labour Organization should seek to ensure uniform implementation of the Convention and invites member States to maintain the intent of Article II, paragraph (f), through the application of Annex . . . . The Convention recognizes in Article II, paragraph , that there may be doubts whether a particular category or categories of persons who may perform work on board a ship covered by the Convention should be regarded as seafarers for the purpose of the Convention. This Annex has therefore been adopted by the General Conference of the International Labour Organization to assist administrations in resolving any difficulties that might arise . . . 85

Selection Committee Reports, supra note , Resolution concerning information on occupational groups, p. –/. It outlines situations whereby an administration may have doubts about categorizing a person working on board as a seafarer under Article , paragraph (f) (emphasis added) because: (i) the nature of their work is not part of the routine business of the ship (for example, scientists, researchers, divers, specialist offshore technicians, etc.); (ii) although trained and qualified in maritime skills, the persons concerned perform key specialist functions that are not part of the routine business of the ship (for example, harbour pilots, inspectors or superintendents); (iii) the work they perform is occasional and short term, with their principal place of employment being onshore (for example, guest entertainers, repair technicians, surveyors or portworkers). A person or category of persons should not automatically be excluded from the definition of seafarers solely on account of falling within one or more of the categories listed above. These lists are simply illustrative of situations where doubts may arise. Special factors in the situation may lead the administration to determine when a person is or is not a seafarer. 86

Ibid.

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Article II, paragraph , provides similar flexibility, again “[i]n the event of doubt” with respect to ships. However, in the case of ships, the determination could be with respect to a single ship or a “particular category of ships”. In principle, following on from the logic of the application and exclusions provisions in paragraph , the determination is not whether the ship is to be regarded as a ship, but rather whether the Convention applies to the ship (i.e., already considered a ship under Article II, paragraph (i)). However the wording in paragraph  is not entirely clear and might also be considered as applicable to cases of doubt regarding the application of the definition in Article I paragraph (i).87 The formulation in paragraph  is based on earlier ILO conventions, however those conventions did not contain a definition of a ship but, instead, as discussed above, used the phrase ‘seagoing ships’, with cases of doubt as to whether any ships are to be regarded as a ‘seagoing ships’ to be determined by the competent authority.88 As discussed above in connection with the definition of a ship, several countries at the th ILC had difficulty with the application of the Convention to smaller ships that do not go on international voyages. What is now paragraph  was proposed by the ‘Friends of the President’ to resolve this problem.89 The 87 The difficulty is that the definition of ship under Article II(i) can be read as also calling, a vessel that does not fall under the definition of a ship, a ship, that is, “a ship other than one which . . .”. This is because, as discussed above, the wording was based on the STCW definition, which distinguishes between ‘seagoing ships’ and other ships (not covered by the Convention). This may lead to the question of whether Article II, paragraph , “in event of doubt”, applies to both the paragraph  determinations and to the definition under Article II, paragraph (i). One argument against this approach, aside from the conceptual distinction between definition and scope, is that paragraph  only mentions ‘a ship’ or ‘particular category of ships’ which suggest more to do with ships that would otherwise be covered. If it does apply to the definition then it would import also a consultation obligation regarding the geographic determination. 88 See for example the Seafarers’ Hours of Work and Manning of Ships Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. , paras  and . 89 In fact, a similar provision existed as early as the HLTWG in June :

. A Member may, after consultation with the shipowners’ and relevant seafarers’ organizations, exclude from the scope of its application ships that do not undertake international voyages, provided that the rights of seafarers’ rights in Articles III and IV are protected by national laws and regulations. At the PTMC in  the following was considered and not included in the text proposed to the th ILC: . [A Member may, [in] [after] consultation with [representatives of] the shipowners’ and seafarers’ organizations concerned [in its territory], exclude from the scope of application of this Convention ships that do not undertake international voyages, provided that the fundamental rights of seafarers referred to in Article III [and seafarers’ employment and social rights referred to in Article IV, paragraphs  to ] are protected by national laws and regulations. (HLTWG,  W. proposal)].

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result is carefully worded and might, at a first glance, appear to allow the total exclusion of the domestic fleet under  GT: . Where the competent authority determines that it would not be reasonable or practicable at the present time to apply certain details of the Code referred to in Article VI, paragraph , to a ship or particular categories of ships flying the flag of the Member, the relevant provisions of the Code shall not apply to the extent that the subject matter is dealt with differently by national laws or regulations or collective bargaining agreements or other measures. Such a determination may only be made in consultation with the shipowners’ and seafarers’ organizations concerned and may only be made with respect to ships of less than  gross tonnage not engaged in international voyages.

However, this is not a blanket exclusion of smaller ships (less than  GT) in the domestic fleet (not engaged in international voyages) as the requirements set out in the Regulations would still apply. Rather, the flexibility is only with respect to cases where a competent authority determines “it would not be reasonable or practicable at the present time” to apply “. . . certain details of the Code . . . . to a ship or particular categories of ships” and then only “. . . to the extent that the subject matter is dealt with differently by national laws or regulation or bargaining agreement or other measures”. The details of implementation (in the Code) may differ, but must still be addressed. As explained at the th ILC (emphasis added): . The Worker Vice-Chairperson requested clarification on three issues. First, he enquired whether the wording “a ship or particular categories of ships flying the flag of the Member” meant that the new paragraph would only apply to national ships and not to foreign-flagged ships. Second, he asked for confirmation as to whether the phrase “the relevant provisions of the Code shall not apply to the extent that the subject-matter is dealt with differently by national laws or regulations or collective bargaining agreements or other measures” implied that having the subject matter unregulated was not an option. . . . . The representative of the Secretary-General responded to the first question by explaining that the new paragraph indeed only referred to national ships and not to foreign ships in the waters of a Member concerned. With respect to the second question, she confirmed that the wording implied that the subject matter had to be dealt with by national laws or regulations or collective bargaining agreements or other measures. The idea was precisely to avoid gaps in seafarers’ protection and to ensure protection for those who would be excluded from the coverage of the Code . . ..90

Paragraph  of Article II provides a further layer to the Convention’s compliance and enforcement system. Paragraph  is a transparency-oriented provision with respect to national implementation. It requires that “any determinations” (i.e., exercises of flexibility) under paragraphs ,  or  “. . . shall 90

Committee of the Whole Report, supra note .

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be communicated to the Director-General of the International Labour Office, who shall notify the Members of the Organization”. This means that ILO must develop a database and communication process for this (and other) information that would, presumably, be linked to the ILO’s supervisory system for consideration during reviews of the Article  reports. Article III—Fundamental Rights and Principles As discussed above,91 the ILO Legal Adviser issued an opinion on the legal consequences of references to fundamental rights and principles, which was provided initially in connection with Article III. The PTMC considered two options for wording.92 A third form, the current text of Article III, Fundamental rights and principles, was adopted after obtaining a Legal Opinion on its implications: Each Member shall satisfy itself that the provisions of its law and regulations respect, in the context of this Convention, the fundamental rights to:

91

See pp. – and notes  and . Consolidated Maritime Labour Convention, Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ standards/relm/maritime/pdf/cmlc-draft.pdf. The first option for Art. III, Fundamental rights, read as follows (underlining in the original deleted): 92

[Each Member reaffirms its commitment to respect, in the context of this Convention, the fundamental rights to: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation as referred to in the ILO Declaration on Fundamental Principles and Rights at Work, .] *** (Alternative) . [Each Member understands and recognizes that the seafarers’ employment and social rights set forth in Article IV below can be meaningfully achieved only in a context where the fundamental principles and rights at work are respected, promoted and realized for all seafarers, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. . Therefore, each Member shall satisfy itself that the provisions of its laws and regulations are substantially equivalent to the provisions contained in the Conventions covering the fundamental principles and rights set out in this Article, in so far as the Member is not otherwise bound to give effect to the Conventions in question.]

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(a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.

As discussed earlier, some States were concerned about the legal implication of a reference to the ILO Declaration on Fundamental Principles and Rights at Work,  or, even indirectly, referencing (as in ‘the alternative’) the fundamental conventions. The ILO Legal Adviser’s opinion set out below93 on the what is now the final text addresses the nature of the obligation on a country to ‘satisfy itself ’ and any future reporting obligations to the ILO supervisory system as to these principles and rights (emphasis added): . The reference to the ILO Declaration on Fundamental Principles and Rights at Work, , would be moved to the Preamble of the proposed Convention. . The Chairperson of the Committee sought Members’ views on the new text now before it. He also requested the Legal Adviser to provide his opinion in writing so that it could be included in the Committee’s report. . This opinion is set out below: The Legal Adviser has been requested by the Chairperson of the Committee to put in writing his replies to the issues raised concerning Article III of the future Convention. . With regard to the legal status and the consequences of including the “wording” of the ILO Declaration on Fundamental Principles and Rights at Work in the provisions of Article III, as proposed by the President of the Conference, the Legal Adviser observed that the “wording” of the Declaration was not included in the proposal; rather there was reference to the fundamental rights together with an obligation for Members who ratify the future Convention to satisfy themselves that the provisions of their national legislation respect those fundamental rights in the context of the future Convention. The status of the Declaration and its “wording” reflect, through reference to the fundamental principles and rights, the promotional character of that instrument, which varies significantly from an international labour Convention. . The reference to the fundamental rights in the text of Article III of the future Convention would not create any reporting obligations on the content of the Declaration to the ILO supervisory bodies. The two instruments are different and the ILO supervisory bodies have no competence to examine the implementation of the Declaration, which has its own follow-up mechanism. . Article III will be, as with all obligatory provisions of the Convention, subject to examination by the bodies responsible for the supervision 93

Committee No.  Report, supra note . See also Report I(A), supra note .

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chapter six of the implementation of ILO standards. The important issue is to identify the obligation that will be the focus of this supervision. Each Member who ratifies the future Convention will be obliged, in accordance with Article III, to satisfy itself that its legislation respects, in the context of this Convention, the four categories of fundamental rights. As with all obligations arising out of international labour Conventions, this should be carried out in good faith. Subject to what the ILO Governing Body may decide concerning the details to be requested in the report form in the framework of Article  of the ILO Constitution, examination by the supervisory bodies will concern this specific obligation. This provision does not impose any additional obligation on States that have ratified one or more of the fundamental Conventions, because those Conventions already cover, without exception, the workers who are the subject of the future Convention. . With regard to the issue of whether the reference to the four categories of fundamental rights in Article III would create a reporting obligation under the ILO Declaration outside the scope of its follow-up mechanism, the reply is that it would not, as explained above. . Finally, on the consequences of including a reference to the Declaration in the Preamble to the future Convention, . . .

The reporting obligation was ultimately adopted by the ILO Governing Body in 94 for the Article  reports on the MLC,  obligations. As pointed out by Payoyo,95 although the MLC,  reintroduced a fair competition or economic argument for international labour standards, it is also squarely based on human rights arguments for the universal application of fundamental rights and on the complementarity of human rights and labour standards. The text in Article III follows the approach in Convention No.  with respect to the concept of ‘satisfy itself ’. However, Payoyo suggests that the MLC,  does not go as far as the earlier convention, at least on paper, if not in practice, regarding the potential for enforcement of some of the fundamental conventions, most notably ILO Convention No.  on Freedom of Association and Protection of the Right to Organize Convention,  and Convention No.  on the Right to Organize and Collective Bargaining Convention, . He comments (footnotes not included): The situation [in the MLC, ] contrasts with the regime established in ILO Convention , which recognized the legal position that labour standards em94

Supra note . Peter B. Payoyo, “The contribution of the  Maritime Labour Convention,” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, Aldo Chircop, Ted L. McDorman, and Susan J. Rolston, eds. (Leiden/Boston: Martinus Nijhoff/Brill, ), – at . He notes that this complementarity and ‘mutual enrichment’ of human rights norms and labour standards in the developmental process was identified in  by C.W. Jenks in Human Rights and International Labour Standards (London: Stevens & Sons. Ltd, ).

95

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bodied in the Freedom of Association Convention,  (No. ) and the Right to Organize and Collective Bargaining,  (No. ) are appropriate subjects for international regulation through port State control. While these “fundamental” Conventions have been excluded, in practice, in the inspection procedures of the regional port State control authorities, it could be observed that the enforcement possibilities for these fundamental Conventions (Nos  and ) are more expansive under ILO Convention  than under the MLC. Under the MLC, Conventions  and  have been removed from the oversight and control of port states. On the other hand, the specific content of “seafarers’ employment and social rights” is given particularity in the MLC and is transposed as the regulations, standards and guidelines in the MLC. . . . These labour standards are in turn justified on the basis of the existence of, and commitment to, seafarers’ rights defined as the employment and social rights listed in Article V.96

While this view regarding the net effect of the ‘satisfy itself ’ obligation under Article III might be correct, it may also overstate the nature of possible port State obligations under Convention No. .97 Further, it does not consider the interaction between this provision and the evaluation, during port State control, of the seriousness of a breach98 and what can be considered a breach of the requirement of the Convention (including seafarers’ rights). It is clear that the issue of port State control with respect to human rights practices in flag States, including freedom of association and the right to collective bargaining, is sensitive, as evidenced by the difficulties associated with the development of the text of Article III. Contrary to Payoyo’s analysis, although concern at the preparatory meetings was primarily with respect to reporting obligations, there was also a question of whether these rights would be inspected and/or certified or subject to port State control at the shipboard level. This issue was raised, as noted above, in connection with the definition of the term ‘requirements of this Convention (including seafarers’ rights)’, which are subject to flag State inspection and port State control. Since there is no term ‘seafarers’ rights’ as such in the Convention, it is not entirely clear what 96

Payoyo, ibid., p. . Under Convention No. , supra note , Article , paragraph , the legal obligation (a ‘may’ obligation) in situations where it “receives a complaint or obtains evidence” is limited to preparing a report to the flag State with a copy to the Director-General of the International Labour Office. Rectification may also be required in cases where conditions are “clearly hazardous to safety or health”. In addition, the flag State obligation under Convention No.  with respect to implementation of a list of conventions (including Nos.  and ) is to “satisfy itself ” that the provisions in its laws or regulations are “substantially equivalent” to these conventions in so far as the State is not otherwise bound to give effect to the conventions in question (Art. , para. (a)). This is complemented by obligations regarding enforcement at the shipboard level (Art. , para. (b), (c), and (d)). 98 Guidelines for Port State Control Officers, supra note , pp.  and ff and infra. See also Chapter  on Title , pp. –. 97

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the term refers to. It could refer to Article III and, in particular, Article IV as they are seen as cornerstones of the ‘seafarers’ bill of rights’. Arguably a violation of the rights in Article III could be seen as a breach of requirements of the Convention and, if not directly subject to inspection, goes to question of the seriousness of a breach. This is supported by guidance in the text of the MLC,  as well as the recommendations in the ILO Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention, , which were adopted in  by a Tripartite Committee of Experts.99 Guideline B..—Inspections in port, of the MLC,  regarding national policy for detention of foreign ships provides (emphasis added): . When developing a policy relating to the circumstances warranting a detention of the ship under paragraph  of Standard A.., the competent authority should consider that, with respect to the breaches referred to in paragraph (b) of Standard A.., the seriousness could be due to the nature of the deficiency concerned. This would be particularly relevant in the case of the violation of fundamental rights and principles or seafarers’ employment and social rights under Articles III and IV. For example, the employment of a person who is under age should be considered as a serious breach even if there is only one such person on board. In other cases, the number of different defects found during a particular inspection should be taken into account: for example, several instances of defects relating to accommodation or food and catering which do not threaten safety or health might be needed before they should be considered as constituting a serious breach.

Article IV—Seafarers’ Employment and Social Rights The structure and organizational importance of Article IV was discussed in Chapter  and referred to above in the discussion of Article III. Article IV is essentially the beginning of the cascade of the rights and obligations set out in the regulations and the Code. Although the rights in Article IV, paragraphs – do not neatly correspond to the Titles of the Convention, taken together, they encompass all the provisions within those Titles. As noted above in the quote by Payoyo, the rights set out in Article IV are given content in the rest of the Convention. These rights, as he correctly notes, are not primarily established as individual rights “granted to or endowed on seafarers qua individuals which would give them a basis to legally take action against their governments for violation of these rights”.100 However, in a globalized work force, this kind of right seems irrelevant and, in fact, the real remedy of the individual is much more pragmatic. It lies in the ability to make complaints at either the shipboard level, with the possibility of the immediate remedy such as having the ship detained, or at the level of international ‘supervi99 100

Ibid., para. . Payoyo, supra note , p. .

principles and rights

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sory’ scrutiny and having the laws of the country in question reviewed. In many cases, the relevant government concerned is not the government (country of residence or nationality) of the individual concerned, but simply the State of registry, the (flag) State, of the workplace in question, that is, the ship. Thus the traditional State versus its citizens dichotomy does not easily apply. Although less obviously important, a key aspect of Article IV, particularly with respect to the form of national implementation, is the paragraph that follows the enumeration of the four rights. Paragraph  provides that: . Each Member shall ensure, within the limits of its jurisdiction, that the seafarers’ employment and social rights set out in the preceding paragraphs of this Article are fully implemented in accordance with the requirements of this Convention. Unless specified otherwise in the Convention, such implementation may be achieved through national laws or regulations, through applicable collective bargaining agreements or through other measures or in practice.

As pointed out in the Office Report for the th ILC: . . . . Paragraph  makes it clear that the “seafarers’ employment and social rights”, set out in paragraphs –, are to be fully implemented, not in the abstract but, rather, “in accordance with the requirements of this Convention”—i.e. in accordance with the relevant provisions of the Articles, Regulations and Part A of the Code.101

Although apparently not a national ‘flexibility mechanism’, this is nonetheless an important provision for flexibility regarding the form of implementation. Paragraph  clearly allows, except where specified otherwise in the Convention, a country to implement the requirements of the Convention through laws or regulations, collective bargaining agreements, or other measures or in practice, or a combination of these. Thus the regulations and standards in the MLC,  require a review to determine whether a law or regulation is actually required or whether implementation can occur in some other way. In a few cases, the Convention requires implementation through laws or regulations. For example, Standard A., paragraph , requires that seafarers’ employment agreements, and how they are to be concluded, must be established by laws or regulations, while laws and regulations are required to specify the matters that are to be covered in these agreements. However, the Standard does not require that the content of the measures dealing with those matters be established by law or regulation, except in the case of minimum notice periods (Standard A., paragraphs  and ). The legal implementation of many of the Convention requirements relating to working and living conditions could, in principle, be solely implemented 101

Report I(A), supra note , Note  (Article IV), para. .

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by an approved standard SEA, supplemented by any applicable collective bargaining agreements, except where the Convention indicates that a particular requirement has to be established in laws and/or regulations. This would not be the case where the Convention says, “Each Member shall adopt laws or regulations or other measures to ensure” (emphasis added). The only cases in which the means of implementation must take the form of legislation alone are where the Convention refers to the adoption of laws or/and regulations without giving the option of ‘other measures’.102 Sometimes, the use of laws and regulations is required, as under Regulation ., which refers to “laws and regulations and other measures” (emphasis added). The idea that a State can implement its treaty obligations through a private or corporate actor’s contractual arrangement to which the State would not be a party is of particular interest. It is common in ILO conventions, but is unusual from a wider international law perspective, where the concern is with action by the State itself.103 The wide range of topics and differing situations covered in the Convention, which undoubtedly cross several national departments, raises the question of whether the Convention’s requirements, which must be implemented in laws or regulations, can be done in different sets of legislation applying to different seafarers and, perhaps, involving different aspects of the law with requirements for the various sub-sectors that the Convention does not specifically address. Under a country’s legislative regime, if seafarers’ conditions are governed by more than one piece of legislation, the Member State must ensure that the minimum standards established by the Convention are respected in total when all the legislation concerned is considered. In addition, there is no requirement that all seafarers have exactly the same conditions of employment (provided that the minimum standards are met), although the legislation must not be discriminatory.104 It is clear from paragraph  that the possibility of a country taking advantage of exclusions, exemptions, or other flexibility is considerably diminished if there are no representative “shipowners’ and seafarers’ organizations concerned” to be consulted or to conclude collective bargaining agreements relating to permitted variations from the requirements of the Convention.105 102

For example, Standard A.. In a different but relevant context see the analysis by Natasha A. Affolder, “The private life of environmental treaties,” ()  American Journal of International Law , considering both the use and performance of treaties by private (non-State) actors. 104 For example, it would not be discriminatory in the sense of Article III if the different treatment is due to the seafarer being engaged in domestic or overseas shipping. 105 In addition to the generally applicable possibilities for flexibility, there are specific provisions that can be adapted to the special circumstances of the country concerned. For example, 103

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Moreover, even in cases where consultations or collective agreements are not required to exercise flexibility in implementation, difficult questions arise that could be resolved with more certainty of validity, if the solution adopted resulted from tripartite consensus. For example, is a national measure substantially equivalent to a requirement in Part A of the Code or is a departure from the guidance in Part B of the Code properly implementing the related requirement in Part A? This approach encourages the development of representative worker and employer organizations and national social dialogue and ultimately achieving social justice by using tripartism to deal with the challenges posed by globalization. Article V—Implementation and Enforcement Responsibilities The Office Report for the th ILC summarizes the impact of Article V as follows: . Article V provides the legal foundation for the provisions on compliance and enforcement in Title  of the Convention. These obligations are implicit in the Merchant Shipping (Minimum Standards) Convention,  (No. ), and the Labour Inspection (Seafarers) Convention,  (No. ), both of which are consolidated by this Convention. . Paragraphs  and  are directed to encouraging each Member to effectively exercise its jurisdiction through the adoption of a systematic approach to compliance and enforcement of the legal standards.106

An important but less obvious point to note is that this article establishes three kinds of State responsibility: flag State, port State, and a third role, laboursupplying responsibilities. As noted in Chapter , the latter can be seen as a new actor in the international law of the sea regime. These provisions directly correlate with the more detailed provisions in Title , Compliance and Enforcement, namely, Regulation .—Flag State responsibilities; Regulation .—Port State responsibilities, and Regulation .—Labour-supplying responsibilities. Article V strengthens the rights in the Convention without adding any obligations that do not already exist in the regulations and the Code, Part A. The wording of most Article V provisions, which draw heavily on the approach in IMO conventions, was relatively uncontroversial, however there are some important points to note.

collective agreements may provide for a different but no less favourable basis for the normal working hours’ standard (Standard A., para. ). Or, for example, Standard A., paragraph  enables variations in the required standards for seafarer accommodation that are justified by religious and social practices. 106 Report I(A), supra note , Note  (Article V).

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First, paragraph  is the foundation for the new and innovative approach to ship-level enforcement of labour standards, including the requirement for certification of conditions for seafarers working and living on a ship. This shifts the focuses in an international legal instrument to corporate/private actor compliance and enforcement, away from State compliance. Paragraphs  and  are key to ongoing compliance. Paragraph , which builds on Article  of Convention No.  and the IMO conventions, is a ‘may’ obligation with respect to a port State’s inspection of foreign ships entering its ports. The word ‘may’ reflects the principle that the decision by a State to exercise control over a foreign ship in its ports is voluntary. It is a responsibility of a ratifying State that is not necessarily an obligation. Regulation .., paragraph , provides: Every foreign ship calling, in the normal course of its business or for operational reasons, in the port of a Member may be the subject of inspection in accordance with paragraph  of Article V for the purpose of reviewing compliance with the requirements of this Convention (including seafarers’ rights) relating to the working and living conditions of seafarers on the ship.

It is generally understood that port State inspection is a matter of right rather than obligation or permission. However, there is no correlative international obligation to carry out such inspections, other than State agreement through the various regional port State control MOUs. The exact nature of the ‘may’ obligation is difficult to ascertain; perhaps it could best be described as a discretionary obligation buttressed by the obligation on all Members under Article I, paragraph , to cooperate in effective implementation and enforcement. Paragraph , in line with the broader international maritime regulatory regime, refers to “requirements of this Convention”, that is, as explained earlier, the regulations and standards. Thus, while the Convention provides significant national flexibility, the initial concern at the port State level is considering compliance with the Convention, even though ships are certified with respect to compliance with national standards implementing the Convention. De facto this means that documents on the ship would essentially operate as a defense, providing an explanation to port States, in the event that conditions on the ship do not appear to meet the Convention requirements (regulations and standards, but not Part B of the Code). Superficially this differs from the IMO conventions, which are directed to uniformity. However, this difference in approach is probably more relevant to the Article  reports and ILO supervisory system review than at the shipboard level.107

107

This issue is discussed in more detail in Chapter .

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Paragraph  addresses the basic requirement that States impose some form of sanction for breach of their national laws implementing the Convention. The main difficulty encountered with what might seem a basic proposition was to avoid wording that required punishment for activities outside the territorial jurisdiction of a State.108 Paragraph  indirectly imposes the Convention requirements on ships of non-ratifying States. It is intended to provide an incentive to ratify by removing any advantage at the shipboard level to not ratifying. This provision is key to achieving the Convention’s objective regarding the ‘level playing field’ among shipowners. Article V, paragraph  is what is described as a ‘no more favourable treatment clause’. It exists in the IMO conventions,109 however it is new to ILO conventions. Conceivably paragraph  could apply in various situations, however, in practice it is only referred to in the context of port State control. This is illustrated in Resolution IV concerning the development of guidelines for port State control, which as noted earlier, was adopted by the ILC at the same time as the MLC, .110 The Resolution notes that paragraphs  and  of Article V, and Regulation .., Standard A.., and Guideline B.. “. . . provide for port State responsibilities and control under the term of ‘no more favourable treatment’.” This should not, however, mean that ships flying the flags of non-ratifying countries are treated more harshly, rather it means that they are treated the same as a ship of a ratifying State.111 108

Earlier drafts of the Convention included standard form text from MARPOL /, supra note , “. . . and that are equally severe irrespective of where the violations occur”. However, this proved to be difficult for some countries, hence the modified wording. 109 MARPOL /, ibid., Art. , para. ; SOLAS, supra note , Regulation . It is also found in LOSC, supra note . 110 Selection Committee Reports, supra note , Resolution concerning the development of guidelines for port State control, pp. –/––/. 111 Guidelines for Port State Control Officers, supra note , at paragraph  proposes, for ships that are not certified, that: . Inspection in a foreign port applies even if the ship is flying the flag of a country that has not ratified the MLC, , because the MLC, , obliges the States that ratify it to give no more favourable treatment to ships of States that have not ratified (Article V, paragraph ). This means that these ships may be the subject of a more detailed inspection as provided under the MLC, .5 Footnote : The MLC, , does not expressly address the requirements for these ships; however, the Convention was intended to operate as consistently as possible with existing practices in the maritime sector and key international conventions of the International Maritime Organization. Based on the example found in IMO resolution A.(), section ., on port State control, the following would apply as the appropriate approach: “All Member Parties should as a matter of principle apply the procedures set out in these guidelines to ships of non-ratifying States and ships of ratifying States that, for reasons related to size, are not carrying documents required by the MLC, , in order to ensure that equivalent inspections are conducted and that equivalent level of seafarers’ working

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As noted above, Article V, paragraph , provides that a foreign ship (whatever its flag) may, “in accordance with international law”, be inspected by a Member when the ship is in its ports to determine whether it is in compliance with the requirements of the Convention. To the extent that a country that has ratified the MLC,  takes on the responsibility under Regulation .. to inspect foreign ships visiting its ports, it is also required by paragraph  of Article V to apply the relevant provisions, in particular those set out in Standard A.., to ships flying the flag of States that have not ratified the Convention. Thus such ships could or must (in the cases mentioned in the last sentence of paragraph  of that Standard) be the subject of a detailed inspection to ascertain the working and living conditions on board the ship, since they would not be carrying the documents mentioned in Standard A.., paragraph (a).112 Article V obligations under paragraph  with respect to control and regulation of seafarer recruitment and placement services in their territory are also important and link to the specific obligations under Regulations . and .. It is important to note that this provision does not require that these services be established. The obligation to regulate arises only “if these are established”. The wording, ‘if ’, was significant for some ILO Members who do not have such services in their territory and wanted it to be clear that there is no obligation on this point.113 Article VI—Regulations and Parts A and B of the Code Article VI deals with two significant matters. The first is the legal relationship between the differing parts of the Convention, in particular the nature of the obligations on the ratifying State with respect to the Code, Part B. The second is the ‘flexibility’ provisions in paragraphs  and , that is, the ‘substantial equivalence’ of national implementation measures.

and living conditions (including seafarers’ rights) apply on board these ships. The seafarers’ working and living conditions on such ships should be compatible with the aims of the provisions of the MLC, ; otherwise, the ship should be subject to such requirements as are necessary to obtain a comparable level with the MLC, .” A similar approach is also reflected in the Paris Memorandum of Understanding on Port State Control. 112

Under Standard A.., para. , if the ship is found not to conform to the requirements of the Convention and the conditions on board are clearly hazardous to the safety, health, or security of seafarers, or the non-conformities constitute a serious or repeated breach of the requirements of the Convention (including seafarers’ rights), the port State control officer must take steps to ensure that the ship does not proceed to sea until the non-conformities have been rectified, or until the officer has accepted a plan of action to rectify such non-conformities and is satisfied that the plan will be implemented in an expeditious manner. See Chapter  discussion. 113 See the discussion in Chapter  at note , in connection with Regulation ..

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As noted in Chapter , the provisions relating to the legal relationship between parts of the Convention, which relate to its structure, were the result of an explicit agreement reached at the fourth meeting of the HLTWG in January . In addition, an Opinion from the ILO’s Legal Adviser was provided to assist governments with understanding their obligations with respect to implementation of the provisions in Part B of the Code.114 It will be recalled that Part B of the Code is complex and that its provisions do not correspond to existing ILO recommendations because it also contains provisions from existing ILO conventions,115 whose level of detail may have precluded ratification by some States. The issue was raised by governments at the third HLTWG meeting in June . The extract reproduced below from the record116 of that meeting sets out the basis for the final agreement reached in , and is now the current text. It demonstrates the extent of government unease with both the change in the structure of the Convention and related implications for the nature of the obligations in the Convention (emphasis added). . A Government representative reiterated her concern about the legal status of Part B of the Code and asked for the advice of the Legal Adviser. Firstly, she asked how the provisions of Part B of the Code with their hybrid status fitted in the articulation between ILO Conventions and ILO Recommendations. Secondly, with regard to the wish of many Members that Part B of the Code have the status of a Recommendation, she inquired whether provisions with the status of a Recommendation could be an integral part of a Convention and what would be the legal consequences. Finally, she pointed out that more than half of the provisions of the Code were in Part B and had a hybrid status. . . . . In reply . . . the Legal Adviser provided clarification on the new Convention’s status and its Parts A and B. The new consolidated Convention would—in a formal sense—be a regular ILO Convention. Provisions in Part A would be mandatory, while provisions in Part B were not mandatory (cf. Article VI). Such inclusion of non-mandatory provisions in a Convention did not interfere with the ILO Constitution and precedents for the inclusion of non-mandatory parts in ILO Conventions existed. One example was Article  of the Occupational Health Services Convention,  (No. ). Instead of “shall”, which indicated cogent provisions, “should” had been used in this case to indicate that member 114

See Figure , Chapter , Legal Adviser’s Opinion on the Status of Part B of the Code, p. . See, for example, the Guidelines on repatriation (Guideline B .) and on seafarers’ accommodation and recreational facilities (Guideline B.) in Appendix  of this book. The seafarers’ spokesperson noted:

115

. The Seafarer spokesperson drew attention to the overall structure of the instrument. Part B was a guideline and non-mandatory but he expected States to give “full consideration” to its contents since many of its provisions would have been moved down from Part A. Part B should not become irrelevant; if this was to be the case, he would demand a substantial amount of the text to be moved back to Part A. 116

Final Report, supra note .



.

.

.

.

chapter six States were not obliged to follow these provisions. The new Convention’s only real innovation was that in the new Convention the amount of nonbinding provisions was much higher than in any earlier Convention. Furthermore, the inclusion of non-binding text in International Conventions would not be new to most national legislators, since such provisions were prominently featured in instruments, such as SOLAS, and had not raised constitutional concerns. Elaborating on the above, the Legal Adviser added that Parts A and B had been created in the interest of greater flexibility. Members were obliged to comply with Part A, but were given discretion in regards to Part B. The provisions contained in Part B would shed light on the mandatory provisions in Part A and be seen as the ideal way to compliance with Part A. States were free to adopt whatever measure they deemed right, as long as the mandatory provisions of Part A were fulfilled. Members, which fully implemented Part B, would automatically be held to comply with Part A. The implementation of Part B would imply that Part A had been sufficiently dealt with. Member States that did not adopt provisions in Part B were free to do so, but might have to prove to the Organization that they were in compliance with Part A, if doubts arose. . . . In regard to a Government representative’s question on the legal implications of “full consideration” (as suggested by Article VI, paragraph ), the Legal Adviser noted that according to Article XIX ()(c) of the Constitution, Recommendations were to be given “consideration” by member States. The Legal Adviser deemed these two wordings interchangeable and stated that no relevant legal difference existed. Members needed to look upon non-mandatory provisions in good faith. Summing up the legal advice given, two Government representatives described the provisions contained in Part B as guidance and declared that their national legislators would thoroughly scrutinize them before taking any decisions on the best way to implement the Convention. Reference was made to SOLAS, which had similar provisions that assisted member States in their implementation efforts. A Government representative reminded the meeting that the content of Part B was the pool from which amendments would possibly be added to Part A in the future (emphasis added).

Despite this advice the issue remained of concern for governments. The fourth meeting of the HLTWG reached the following agreement on the status of Part B of the Code, which now uses the term ‘due’ rather than ‘full’ consideration wording recommended117 at the June  meeting: . The High-level Group considered the status of Part B of the Code. A consensus was reached on the status as follows: The present wording of the relevant provision—paragraph  of Article VI of the preliminary second draft—can be retained on the following understandings: 117

Final Report, supra note : . A Government representative addressed the legal status of the Code, Part B, and felt that the paragraph should not read “full consideration” but rather “due consideration”. This would permit flexibility and enable more countries to ratify it. He stressed that this would allow for a simple amendment procedure to apply to Part B.

principles and rights Question: Answer: Question: Answer: Question: Answer: Question: Answer:



Is Part B mandatory? No. Can Part B be ignored by ratifying Members? No. Is the implementation of Part B verified by port state inspectors? No. Does the ratifying Member have to follow the guidance in Part B? No, but if it does not follow the guidance it may—vis-à-vis the competent bodies of the International Labour Organization— need to justify the way in which it has implemented the corresponding mandatory provisions of the consolidated Convention.

These understandings would need to be clearly reflected in the Convention itself or in related documentation.118

As this agreement indicates, part of the solution to concerns about the status of Part B of the Code related to the performance of the Convention’s obligation by non-State actors (shipowner/shipboard level) and the scope of inspections of ships in foreign ports. This issue was resolved, as discussed earlier, with the adoption of the formula phrase and the definition in Article II, paragraph (e), “requirements of this Convention”. The concern about State responsibility for implementation and the related obligations to report to the ILO supervisory system is now addressed in the Article  report that was adopted in .119 The other approach adopted was to include an illustration in the Explanatory Note to the Regulations and Code of the Maritime Labour Convention of how Part B could be used by governments: . Paragraph  provides for an interaction within the Code of the Convention, under which Members are to give “due consideration” to implementing their responsibilities under Part A of the Code “in the manner provided for in Part B of the Code”. This provision paved the way for the shift of many of the detailed requirements in existing Conventions from the Standards in Part A to the Guidelines in Part B of the Code. In order to assist Members, an “Explanatory note” following the Articles of the Convention has been included in the text of the Convention. . . . This note (in paragraphs  and ) [which] reflects the opinion given by the ILO Legal Adviser on the subject to the High-level Group at its third meeting, indicates the general context of Part B and gives an example of Part B’s interaction with Part A. An explanation, rather than a legal text, does indeed seem to be the best approach.120

118 119 120

Ibid. Supra note . Commentary to the Recommended Draft, supra note , Comment  (on Article VI), p. .

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The second important element of Article VI is the ‘flexibility’ provision in paragraphs  and . This is the concept of implementation of obligations through national provisions which are ‘substantially equivalent’. The concept is drawn121 from ILO Convention No. 122 and borrows from the ideas in a 121

The early draft of these provisions considered at the February  meeting clearly points to concepts that were considered and either eliminated or reformulated and now appear elsewhere, for example, Article II, paragraphs  and . The draft text (Preliminary Draft for a Consolidated Maritime Labour Convention, Tripartite Subgroup of the HLTWG (Second Meeting), Geneva, , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/ sector/techmeet/stwgmls/stwgmls-r.pdf) considered in February  by the Subgroup at its second meeting contained the following provisions, most of which were eliminated from this article, although some of the initial wording in paragraph  remains. It is interesting to note that this text expressly allowed for the adoption of lower standards and also provided for notification to the ILO. Interestingly, it sought to apply the concept of substantial equivalence to ships flying flags of non-ratifying countries. . However, a Member which is not in a position to implement the principles and rights in the manner set out in Part A of the Code may – (a) implement Part A of the Code through provisions in its laws and regulations which can be demonstrated to be substantially equivalent to the provisions of Part A; or (b) implement an initial lower standard, to the extent expressly permitted in the Code, and make adequate provision for the progressive achievement, in the shortest possible time, of the full standards set out in Part A of the Code. . Subject to any directions or guidance that may be given in the Code with respect to particular provisions, a law, regulation or other implementing measure shall, for the purpose of paragraph (a) above, be considered to be substantially equivalent to a provision of this Convention if – (a) it is conducive to the full achievement of the general object or purpose of the provision concerned, and (b) in all material respects, it complies with the specific requirements of the provision or has effects that are equivalent to those resulting from such compliance. . A Member may avail itself of the flexibility provided for in paragraph (b) only if the lower standard to be initially applied is specified in a declaration in or accompanying its instrument of ratification of this Convention. Such declaration shall have been made by the Member after consultation with the organizations of shipowners and seafarers concerned, where such exist. In no case may a Member apply a standard lower than any standard of an international labour Convention that was applicable to the Member at the time of ratification of this Convention. . Any Member availing itself of the flexibility provided for in paragraph (a) shall, in its reports upon the application of this Convention submitted under Article  of the Constitution of the International Labour Organization, indicate the measures that have been taken or are proposed to be taken to achieve the full standards set out in Part A of the Code. . With respect to ships entitled to fly the flag of a State which is not a party to this Convention, each Member shall apply standards that are substantially equivalent to those under the Regulations and Part A of the Code, to the extent necessary to ensure that no more favourable treatment is given to such ships. 122

Convention No. , supra note , Art. , “Any Member which ratifies this Convention undertakes (a) to have laws or regulations laying down, for ships registered in its territory . . . and to satisfy itself that the provisions of such laws and regulations are substantially equivalent to the

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provision entitled, ‘Equivalents’, commonly found in IMO conventions, usually for technical or specific application provisions.123 However, the concept set out in paragraphs  and  of Article VI is different from both and should be regarded as sui generis. The Office Report for the th ILC explains: . It will be noted that the definition in paragraph  of Article VI will apply “for the sole purpose of paragraph ” (i.e. only as far as the provisions of Part A of the Code are concerned) and only “in the context of this Convention”; it is therefore not intended to affect the meaning that might be given to the term “substantially equivalent” in other ILO Conventions (Conventions Nos.  and ) that may remain or come into force for some Members.

Paragraphs  and  of Article VII were the subject of extensive debate, including debate about the meaning of the words,124 and resulted in a request for advice Conventions or Articles of Conventions referred to in the Appendix to this Convention, in so far as the Member is not otherwise bound to give effect to the Conventions in question” (emphasis added). 123 See, for example, MARPOL /, supra note , Annex , Regulation , or SOLAS, supra note , Annex, Chapter I, Part A, Regulation . In the IMO, where an administration has accepted something (usually an apparatus, materials, or fitting) as equivalent, this information is communicated to the IMO, which in turn circulates this information to the other Contracting Parties. In some cases there is also provision for objections by other Contracting States. Thus the equivalence is in relation to the application of specific materials or equipment required, with the standard for equivalent being “at least as effective” as that required by the relevant regulation or the annex to the Convention. Under MARPOL the authority to accept ‘equivalents’ does not extend to operational methods. See also: STCW, supra note , Art. IX() regarding the adoption of “other educational and training arrangements . . . provided that the . . . has a preventative effect as regards pollution at least equivalent to the requirements of the Convention”. By contrast the provision in Convention No. , supra note , relates to determinations regarding national legislative implementation and requires that the Member “satisfy itself ” with no particular standard for that determination. The concept of ‘substantial compliance’ is also found in the port State control regime. For example, Section , Inspection procedures, rectification and detention, of the Paris Memorandum of Understanding on Port State Control,  January , as amended, available at http://www.parismou.org/upload/pdf/amendedMoUcleanaccepted November.pdf, which provides (emphasis added): . In fulfilling their commitments the Authorities will carry out inspections, which will consist of a visit on board a ship in order to check the certificates and documents as referred to in section  of Annex . Furthermore the Authorities will satisfy themselves that the crew and the overall condition of the ship, including the engine room and accommodation and including hygienic conditions, meets generally accepted international rules and standards. In the absence of valid certificates or documents or if there are clear grounds for believing that the condition of a ship or of its equipment, or its crew does not substantially meet the requirements of a relevant instrument, a more detailed inspection will be carried out, . . . 124 Committee No.  Report, supra note , for example: . In response to questions concerning the hierarchy of the terms “similar”, “comparable” and “substantially equivalent”, the Legal Adviser responded that the term “substantial equivalence” contained a further element going beyond “comparable”, while “similar” introduced a semantic nuance suggesting more than just “substantial equivalence” and implying a slightly lower level of assessment for Members.

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from the ILO Legal Adviser at the PTMC in September .125 Although that opinion was directed to assisting the PTMC to evaluate the difference between two proposals for wording for the text in paragraph , neither of which were accepted, the ILO Legal Adviser noted, inter alia, that (emphasis added): . Paragraph  of Article VI of the recommended draft before the Conference is intended to clarify the flexibility clause in paragraph , which reads as follows: . A Member which is not in a position to implement the principles and rights in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A of the Code through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A. . It is clear that the context in which “substantially equivalent” appears in the above paragraph is significantly different from that of Article (a) of Convention No. . The intention of the new instrument is to ensure the adoption of legislative or other provisions which will be substantially equivalent to those of Part A of the Code, where the Member is not in a position to implement the principles and rights set out in the Regulations “in the manner set out in Part A”. . . . . Under the terms of paragraph , a Member ratifying the Convention and deciding to invoke the provisions of this paragraph must in good faith adopt measures that meet the criteria of substantial equivalence.

As noted in the Office Report for the th ILC, the definition of ‘substantially equivalent’ ultimately adopted in paragraph  means that: . . . a national provision implementing the rights and principles of the Convention in a manner different from that set out in Part A of the Code will be considered as “substantially equivalent” if the Member concerned “satisfies itself ” that the relevant legislation or other implementing measure “is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned” and “gives effect to the provision or provisions of Part A of the Code concerned”.126

In connection with the expression ‘satisfies itself ’, as noted earlier the following extract from the ILO Legal Adviser’s advice127 at the PTMC on another matter (Article III) with this phrase also appears relevant:

. The Government member of the United States affirmed that the term “equivalent” was at the top of the hierarchy of these terms, with “substantially equivalent”, “comparable” and “similar” coming below it. Since “substantial equivalence” was tautologically defined with reference to “equivalence”, this paragraph only defined the term “substantially” and was, therefore, superfluous. 125 126 127

Ibid., para. . Report I(A), supra note , Note  (Article VI), para. . Committee No.  Report, supra note .

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. . . . . The Member’s obligation is principally to “satisfy itself ”, which nevertheless does not imply total autonomy, since it is incumbent on the authorities responsible for monitoring implementation at the national and international levels to determine not only whether the necessary procedure of “satisfying themselves” has been carried out, but also whether it has been carried out in good faith in such a way as to ensure that the objective of implementing the principles and rights set out in the Regulations is adequately achieved in some way other than that indicated in Part A of the Code.

It is likely that some questions of interpretation may arise in the future in connection with the appropriate application of the two-part definition of ‘substantial equivalence’ in paragraph , which is confined to “the context of this Convention”: . For the sole purpose of paragraph  of this Article, any law, regulation, collective agreement or other implementing measure shall be considered to be substantially equivalent, in the context of this Convention, if the Member satisfies itself that: (a) it is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned; and (b) it gives effect to the provision or provisions of Part A of the Code concerned.

Assuming the ‘good faith’ standard under ‘satisfies itself ’, these two clauses require some consideration as to the meaning of ‘full achievement’ and the ‘general object and purpose’ of the provisions in Part A as well as what it means to ‘give effect’ to them but not to apply them. Clearly the intention of such a provision is to achieve the objectives or goals (principles and rights) while providing flexibility as to the precise approach or method that a country adopts to meet those objectives. The issue is not higher or more stringent national provisions, since in those cases the Convention requirements are clearly being met, rather it is the difference in approach. In the abstract this seems simple, but it may be more difficult to apply in practice. For example, in connection with Standard A. on seafarer accommodation, one could raise questions as to the general objective and purpose of the provisions on the size of sleeping rooms or ratio of washbasins to seafarers, or the requirement that men and women have separate sleeping rooms. The purpose clause for Regulation . might be of some assistance here where it states the purpose as “ensuring that seafarers have decent accommodation”. This does not provide much guidance, however. More specific questions on the purpose of these Code Part A provisions in connection with ensuring ‘decent accommodation’ and ultimately what could be considered as substantially equivalent in the event that a government concludes that it is not in a position to implement the Standard with respect to a specific category of ships or ship is not addressed. Arguably sleeping room matters relate to

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personal ‘space’ and privacy, and perhaps personal security, all of which essentially relates to mental and physical health and physical well-being. How else can these be achieved in a way that gives effect to these provisions? Would extra hours of shore leave achieve this objective? Or, if the equivalent measure needs to be of the same character or form as the requirement, in the case of spatial requirements, could this be achieved by giving seafarers access to other spaces on the ship, for example, use of offices or recreational space not required by the Convention? There is no clear answer. It is possible that these kinds of questions will arise in the context of the ILO supervisory system, or as matters considered by the Special Tripartite Committee under Article XIII of the MLC, , perhaps as an issue that requires clarification through amendment or guidance. Other aspects of this concept are likely to trigger national level difficulties in application. First, under paragraph , the concept of substantial equivalence relates only to the standards in Part A of the Code. Thus, as with Article II, paragraph , the requirements in the regulations still apply. Second, substantial equivalence can be used ‘unless expressly provided otherwise in this Convention’. Its application is only excluded with respect to the standards in Title  on compliance and enforcement. Since, aside from Regulation .. (on-board complaint procedures), Title  provisions are directed to government inspection and enforcement responsibilities for the requirements under the Convention, this makes sense. It is also important to note that, under paragraph , the Member (State) would need to conclude that it is not in a position to implement its laws and regulations or measures. This appears to focus implementation at the point of national law making in the initial process to implement the Convention, rather than by a later administrative decision by a relevant competent authority of the Member. The wording ‘not in a position’ is a phrase that entered the text in its preliminary drafts. It was not the subject of comment or legal opinion, however, it could be understood as implying a less stringent standard than ‘not able’. Although the State would be responsible for this initial evaluation it could, therefore, be asked to explain to the ILO supervisory bodies why it had this difficulty. Since many provisions in the MLC,  can be implemented through a range of measures, careful analysis, before resorting to substantial equivalence, is required to evaluate whether, if legislation seems problematic, a standard could be implemented using other measures. Similarly, under paragraph , the substantially equivalent provisions could be in the form of “law, regulation, collective agreements or other implementing measures”. Finally, it is important to note the connection of this State responsibility provision with the shipboard level performance of these obligations. The Declaration of Maritime Labour Compliance, Part I, which is part of the

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certification documentation that must be carried by some ships, requires128 that the flag State administration state any “substantial equivalencies” in relation to  listed areas of the Convention and indicate whether any “equivalency has been granted”.129 This information is intended to avoid difficulties for ships entering foreign ports during port State control. Unlike the IMO provisions or the flexibility under Article II of the MLC, , there is no requirement130 that a notice regarding substantial equivalencies be sent to the Director-General of the ILO other than through information contained in the Article  report. Article VII—Consultation with Shipowners’ and Seafarers’ Organizations As noted earlier, Article VII can be seen as an example of an innovative approach to the situation of globalized/transnational workforces and employers. It forms part of the underlying structural pattern in the Convention of

128

See the model Declaration of Maritime Labour Compliance, Part I, MLC, , Appendix A-II, and Guideline B.., . The statement of national requirements in Part I of the declaration of maritime labour compliance should include or be accompanied by references to the legislative provisions relating to seafarers’ working and living conditions in each of the matters listed in Appendix A-I. Where national legislation precisely follows the requirements stated in this Convention, a reference may be all that is necessary. Where a provision of the Convention is implemented through substantial equivalence as provided under Article VI, paragraph , this provision should be identified and a concise explanation should be provided. Where an exemption is granted by the competent authority as provided . . .

129

The latter wording could create some confusion as it may give an impression of a ship specific determination by an administrative agency rather than the question of whether the flag State has implemented the Convention using substantial equivalence with respect to matters and that substantial compliance is relevant to the ship in question. Essentially the purpose is to address situations, particularly for port State control, where a ship may appear not to be in full conformity with the Convention, but in fact is in compliance with the flag State’s implementation of the Convention. There would then be the possibility of scrutiny of the State implementation through the ILO’s supervisory system. 130 This idea had been initially considered in an internal draft but was not included in the draft reviewed by the third meeting of the HLTWG in June  (Consolidated Maritime Labour Convention (First Draft) Articles and Regulations, HLTWG, (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf). This may have been because this practice of circulating information among Members was not a usual aspect of the ILO process. In that respect it is interesting to note that a version of this approach was adopted in the text following the fourth HLTWG meeting in January , in connection with Regulation .., Authorization of recognized organizations. See: Standard A.., para. . In addition “determinations” under Article II are to be communicated to the Director-General “who shall notify the Members of the Organization” (not just the States party to the Convention).

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strengthening national social dialogue by requiring consultation in most instances where national flexibility is exercised.131 Article VII was introduced relatively late in the process of developing the text. It was introduced as square bracketed text in the draft convention considered by the fourth and last meeting of the HLTWG in January . The Office Report on that draft notes: This is a proposal for a new provision made by the Seafarers’ representatives at the third meeting of the High-level Group as a way to respond to the situation where there may be no representative organization of shipowners or seafarers in a jurisdiction to consult with (as required by a number of provisions). The wording has been slightly modified by the Office to achieve legal precision. The proposal was initially presented in conjunction with the discussion of the Article II exemptions for the coasting trade . . .; however the provision appeared to engage the broader obligation to carry out tripartite consultation, that is found throughout the Convention and has consequently been taken into account as a separate Article.132

Article VII was adopted with no debate at both the PTMC in  and the th ILC.133 Under Article VII, when the Convention requires consultation to exercise flexibility (in various forms, e.g., derogation, exemption, or other flexible application) and representative organizations do not exist in the country, flexibility “may . . . only be decided” through consultation with the Special Tripartite Committee to be established under Article XIII. The difficulty with this provision lies with the initial period before the Convention enters into force. Although Article XIII does not expressly state that the Committee can only be established once the requirements under Article VIII for entry into force are met, the voting and membership procedures suggest that this would be the case. This means that as countries move to implement and ratify the Convention in

131

Consultation is not specifically required with respect to substantial equivalence or a decision to implement provisions in a way that differs from the Guidelines in Part B of the Code. 132 Office Report, supra note , Comment  (on Article VII). 133 Committee of the Whole Report, supra note , para. ; Committee No.  Report, supra note : . The Shipowner Vice-Chairperson had no objections to Article VII and proposed removing the brackets so that the Article could be adopted. . The Seafarer Vice-Chairperson noted that, as was highlighted in the Office report to the draft Convention, Article VII had been originally proposed by the Seafarers’ group and therefore he fully supported the Shipowners’ proposal to remove the brackets. Article VII would enable a pragmatic approach in areas of the Convention that needed flexibility. In cases where some flag States might not have organizations of seafarers or shipowners, consultation and dialogue could still be conducted with the Maritime Committees in order to guarantee the rights of seafarers.

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order to allow it to enter into force, there may be difficulty in exercising flexibility. This poses a particular problem for countries where the national practice does not allow ratification until national legislative provisions to implement it are in place. This seems to apply even when the Convention, under Article VIII, provides a -month ‘grace’ period following ratification.134 In addition, in some cases, for example, in connection with ship certification, legislation may be needed to authorize what may be an extensive process to inspect and certify ships that go on international voyages within this -month period.135 Whether an organization is viewed as representative of the seafarers or the shipowners concerned is also a problem for countries with substantial international fleets and international seafarers, even if there is a national organization that represents workers or employers. The best but longer term solution would be to encourage national organizations to develop an international section dealing with the interests of all seafarers on the country’s flag ships.136 However, this initial phase before the Convention enters into force is problematic. The decision of the ILO Governing Body at its th Session in November  to establish a preparatory committee modeled on the Special Tripartite Committee might have been of some assistance in providing tripartite advice to such countries.137 Articles VIII–XVI The remaining Articles, VIII–XVI, are a mix of, essentially, standard form treaty provisions, for example, authoritative languages and depository functions, and provisions dealing with the operation of the Convention itself rather than State obligations under the Convention, for example, amendment procedures, entry into force, and effect of entry into force.138 For provisions such as Articles IX and XIII (depositary functions of the Director-General of the International Labour 134

In addition the Article  report would not be required until a later date (i.e.,  months). This problem was foreseen by the th ILC and a resolution adopted to assist the States that help to bring the Convention into force. Selection Committee Reports, supra note , Resolution concerning the practical implementation of the issue of certificates on entry into force, pp. –/– –/. See also Chapter . 136 A government could also consult the local seafarers’ or workers’ and employers’ representative bodies, if any, on the question as to which organizations should be considered as the ‘organizations concerned’ with respect to these kinds of global issues. 137 The decision of the ILO Governing Body at its th Session in November  to establish a preparatory committee modelled on the Special Tripartite Committee could have been of some assistance in providing tripartite advice to such countries. However the meeting of the Committee in September  was of the view that no interim procedures could be established. See: Final Report, supra note . 138 As explained in the ILO Drafting Manual, supra note  (citations omitted): 135

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Office) and Article XVI (Authoritative Languages), the standard ILO provisions were adopted with no discussion. There are, however, several points of legal interest in some of these operational provisions, such as entry into force, the effect of entry into force, and amendment procedures. Article VIII—Entry into Force For the most part, the entry into force provisions are not controversial and reflect standard ILO drafting practice.139 However, the precise formula for entry .. Final provisions ... International law and practice . The final provisions are an integral part of the operative provisions of any international convention or treaty and have binding force in law. Nevertheless, the final provisions have a different purpose from the other provisions. They are usually technical in nature and are intended as guidance for the implementation of the instrument, relating specifically to its entry into force, its expiry and ratification formalities. For this reason, they are sometimes referred to as “formal clauses” or “standard clauses”. . Final provisions in multilateral treaties vary in nature. Most contain articles on: the settlement of disputes; amendment and revision of the instrument; the status of any annexes; signature; ratification; accession; entry into force; duration; denunciation; reservations; designation of the depositary and the associated functions; registration; and authoritative language versions. Depending on the nature and substance of the instrument, there may also be other provisions referring to a transitional period; suspension of the instrument’s provisions; or its relationship with previous instruments. 139

It is notable that even the more standard aspects varied from the standard clauses with the addition of the first paragraph that appears to simply state the practice for ratification. It may also introduce a question about the implications of the phrase ‘formal ratifications’. See: ILO Drafting Manual, supra note , comments (citations omitted): . The Constitution of the ILO contains no provisions regarding the conditions of ratification of Conventions, their entry into force, revision or denunciation, or notification of ratifications to Members. These matters are determined by the provisions contained in the Final Articles of Conventions. The ILO has generally used standard provisions reproduced without any major modifications in the Final Articles of each new Convention. These standard provisions have been adopted as such by the ILC. ... . The standard final provisions adopted by the Conference have comprised two types of significant developments. The first concerns entry into force, which was significantly modified in some of the maritime labour Conventions adopted since . . . . .... Entry into force of the Convention (Standard provision B) . Article . . . in the final provisions governing entry into force now has the following form: Article . . . . This Convention shall be binding only upon those Members of the International Labour Organization whose ratifications have been registered with the Director-General of the International Labour Office.

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into force was a matter that was not settled until agreement was reached by a working group140 at the th ILC on provisions that also dealt with the formula for amendment procedures in Articles XIV and XV. The entry into force formula is also linked to the amendment of the Convention obligation, . It shall come into force [twelve] months after the date on which the ratifications of [two] Members have been registered with the Director-General. . Thereafter, this Convention shall come into force for any Member [twelve] months after the date on which its ratification has been registered. 140

Committee of the Whole Report, supra note , concerning Article VIII: . At the suggestion of the Steering Committee, a Working Party was established to examine the provisions on entry into force and certain aspects of the amendment procedures. The Working Party was given the following tasks: . To make proposals to fill the gaps left in Article VIII, paragraph , Article XIV, paragraph , and Article XV, paragraph , of the proposed Convention, with any consequential adjustments to the text. . To make a proposal to fill the gaps left in Article XV, paragraph , of the proposed Convention, with any consequential adjustments to the text. . To clarify the issues concerning a possible inconsistency between Article XIV, paragraph , and Article XV, paragraph , with respect to the event (e.g. adoption, deemed acceptance, entry into force) after which an amendment will be binding on newly ratifying Members when it enters into force, and to set out options for resolving any such inconsistency, if necessary. After the completion of each task, the Working Party would report to the Steering Committee on the progress of its work. . The Chairperson invited the Committee to discuss in general terms the issues to be covered by the Working Party so as to give it guidance in its work. . The Employer Vice-Chairperson indicated that a variety of views had been expressed within the Employers’ group on the issues to be covered by the Working Party and that the Employer members of the Working Party would represent this range of views. The Employers’ group had not fixed specific figures for the number of member States and the tonnage of world shipping required for the entry into force of the Convention. In view of the broad support for the Convention, such figures were only of relative importance, although a decision would have to be taken on the subject. . The Worker Vice-Chairperson expressed the hope that, with regard to the complex issues involved in Article XV, paragraph , and the possible inconsistency between Article XIV, paragraph , and Article XV, paragraph , the Working Party would be able to propose solutions that were readily understandable. On the subject of the entry into force provisions, he recalled the position expressed previously by the Workers’ group that  member States and one-third of world shipping tonnage might be appropriate figures. A balance would be required between a realistic approach that would allow the Convention to enter into force within a reasonable period, such as five years, while not setting thresholds that were too low. Current ratification rates of the maritime Conventions varied widely. Another issue was whether reference should be made to the actual world tonnage of shipping or ILO member State tonnage. There were countries, such as the Marshall Islands, which were not ILO member States, but had a considerable shipping tonnage. It would

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an innovation for ILO conventions. As explained in Chapter , ordinarily ILO conventions are revised though the adoption of a new instrument by an International Labour Conference, which would include States not party to the Convention concerned, rather than being amended. Leaving aside the issue of amendment, the main concern regarding entry into force was the formula that would trigger entry into force of the Convention. The final formula adopted is more stringent141 than previous ILO conventions and is specifically aimed at ensuring key actors, particularly flag and port States, in the sector are party.142

therefore be preferable to refer to ILO member State tonnage. One solution might be to provide a formula that combined the two criteria of tonnage and member States. . The Government member of China, speaking on behalf of the Government group, stated that on Article VIII, paragraph , there was general support for requiring ratification by  Members for entry into force. There was also general agreement that gross tonnage should refer to world tonnage and not to ILO member State tonnage. Finally, a majority supported  per cent of gross tonnage for entry into force, while some Governments favoured higher figures of up to  per cent of gross tonnage. Regarding Article XV, paragraphs  and , there had been general agreement on the figure of five Governments to allow for the proposal of amendments to the Code, although other views had also been expressed for larger and smaller numbers [. . .] The Government group shared the view that references to both tonnage and member States should be kept. 141

As discussed in Chapter , Convention No. , supra note , also had a fairly large tonnage figure and, for an ILO convention, a high number of ratifications. Article , paragraph , requires registered ratifications by at least ten Members with a total share of the world shipping gross tonnage of  per cent. Typically, ILO conventions need very few ratifications to enter into force. See: ILO Drafting Manual, supra note , para. . 142 To some extent the gross tonnage figures are at a best an estimate. They are drawn from IHS Fairplay, World Fleet Statistics, available at http://www.ihsfairplay.com/Maritime_data/ World_Fleet_Statistics/World_Fleet_Statistics.html?product=Report,WorldFleetStatistics&i=. This annual publication shows “the composition of the current self-propelled, sea-going merchant fleet of  GT or above, as at  December”. These figures may rely on national definitions of ‘seagoing’ and the tonnage does not have the same coverage as the Convention. However, it can be viewed purely as an agreed upon formula that is accepted in the sector. Interestingly, the recently adopted Work in Fishing Convention, , supra note , requires ratification by coastal States (Art. ). However, coastal States would not necessarily have flag State responsibility for distant water fleets. Recommendation No. , supra note , adopted with the Convention, provides in paragraph : . A Member, in its capacity as a coastal State, when granting licences for fishing in its exclusive economic zone, may require that fishing vessels comply with the requirements of the Convention. If such licences are issued by coastal States, these States should take into account certificates or other valid documents stating that the vessel concerned has been inspected by the competent authority or on its behalf and has been found to be in compliance with the provisions of the Convention.

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. This Convention shall come into force  months after the date on which there have been registered ratifications by at least  Members with a total share in the world gross tonnage of ships of at least  per cent.

The rationale and policy considerations behind the final requirements were explained by the Working Party when making the proposal as follows (emphasis added): . With regard to Article VIII, paragraph , the Working Party had deemed it appropriate to keep the figures for the entry into force of the Convention high enough to give legitimacy to the instrument, yet low enough to allow the Convention to enter into force within the next five years. After lengthy discussion, the members of the Working Party had unanimously suggested a figure of  registered ratifications and  per cent of the world or global tonnage for the gaps left in Article VIII, paragraph . The Working Party had also unanimously agreed on the same results for Article XIV, paragraph , on the entry into force of amendments to the Articles and Regulations of the Convention, given that these provisions related to the core principles of the Convention. It should be noted that for both of these provisions, some participants of the Working Party had felt that the numbers were too high, while others had felt that they were too low, and others had felt that ILO tonnage, not world tonnage, should be used. After long debates, in the spirit of finding a way forward and getting the job done, compromises had been made by the participants.143

Clearly the participants at the th ILC envisaged a fairly lengthy lead time to bring the Convention into force, that is, within five years. This view, if anything, proved to have been somewhat optimistic.144 143

Committee of the Whole Report, supra note . See also: Report I(A), supra note , which noted that: . In addition to the consideration related to the “no more favourable treatment” clause, account needs to be taken of the position adopted by constituents concerning the effects of the Convention’s entry into force that result from Article X of the Convention. . . . the Convention reflects the view that existing maritime labour Conventions should, in most cases, be globally replaced by the new consolidating maritime labour Convention. This means, for example, that a country which is not in a position to ratify the comprehensive maritime labour Convention, but would like to ratify important existing Conventions such as Convention No. , would not be able to ratify these after the new Convention has come into force. This position concerning Article X would therefore be justified only if a relatively high level of ratifications is required before the new Convention can come into force. Taking the suggestion (consistent with what has just been said) that the number of ratifying Members should be set at , paragraph  of Article VIII might be worded as follows: . This Convention shall come into force  months after the date on which there have been registered ratifications by at least  Members comprising at least half the number of States with a share of at least [one] per cent of the gross tonnage of the world’s merchant ships. 144

The International Labour Office subsequently (September ) adopted the comprehensive

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A further point to note in these provisions relates to what may, outside the Charter of the United Nations (Article ), be a unique ILO practice. This relates to what may simply appear to be the description of an administrative record-keeping action, the ‘registration’ of the ratifications. However, as noted in the International Labour Office guidance on this point (emphasis added), . Paragraph . . . of [this standard form] Article . . . nevertheless goes somewhat beyond the final sentence of Article  of the Constitution, in stipulating that for a Convention to be binding on Members, ratification must be registered by the Director-General. Such a condition is unusual in international treaties, and would appear to be a special feature of ILO Conventions. If a ratification communicated to the Director-General is for any reason not registered, the Member would not be bound by the Convention that had been ratified. The effect of ratification thus depends on a positive act—namely, registration—by the depositary. By contrast with the usual role of the depositary under international law,113 the Director General of the ILO can refuse to register a ratification for reasons that go beyond questions of form. For example, a ratification which involved lack of conformity on a matter of substance, or which would effectively constitute a reservation, can be refused by the ILO Director-General himself.114 Paragraph . . . of Article . . . above thus imposes a procedural condition, in addition to that of Article  of the Constitution and general international law according to which normally the mere fact of ratification gives rise to obligations. In practice, this additional condition has been useful as a means of ensuring that ratifications accompanied by declarations having the effect of reservations (which are not admissible) are revised and amended by the States concerned.145

The MLC, , unlike the predecessor Convention No. , does not expressly set any conditions on ratification (or registration). However, a question might arise as to whether the requirement under paragraph  of Standard A. on social security, that “Each Member shall at the time of ratification specify the branches for which protection is provided in accordance with paragraph  of this Standard. . . . The Director-General shall maintain a register of this information and shall make it available to . . . ”, is a condition of registration. Alternatively, since this requirement is in the Code rather than an article or five-year Action Plan to achieve widespread rapid ratification followed by efforts to ensure effective implementation of the Maritime Labour Convention,  (Action Plan –), available at http://www.ilo.org/global/standards/maritime-labour-convention/WCMS_/langen/index.htm. 145 ILO Drafting Manual, supra note , citing at note , P. Reuter, Introduction to the law of treaties, Pinter Publishers, , para. ; and at footnote , “One particularly clear example of this is the simultaneous ratification by Malta of C and C. Although C did not have the effect of closing C to ratification, the ratification of the former did entail ipso jure denunciation of the latter. Consequently, ratification of C ceased to have any purpose, which the Director-General cited as a reason for non-registration”.

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even a regulation, it may simply be that this is another substantive requirement and that failure to file this information is a matter that could be a subject of comment under the ILO supervisory system. A further point in connection with the entry into force date relates to when the requirements, especially those related to ship construction and accommodation, will be applicable. Often maritime conventions have a particular period or date for application of requirements once it enters into force, irrespective of the date that a particular State ratifies. As noted above, the MLC,  follows ILO practice and allows for a -month period before entry into force for the first  States required to trigger entry into force. Thereafter each State that ratifies also has  months from the date of ratification before the provisions apply.146 As the Office Report for the th ILC in  points out: . It is also important to note that paragraph  of Article VIII proposes a -month period before ratification becomes effective for a Member ratifying after the Convention has come into force. This is the normal period in the ILO and it is particularly important in the context of Title  and the transitional provision it contains for older existing ships and may also be relevant to the issue of adjustments within the domestic systems and to ship construction.147

Although this creates what might be seen as a potential disincentive to ratification for registries that may be attractive to older ships, port State control in 146

This has been described as an objective and a subjective phase for entry into force. See: ILO Drafting Manual, supra note : . Paragraphs . . .. of Article . . . set the date of entry into force of the Convention, which is essential for the Convention to give rise to obligations on member States. The paragraphs draw a distinction between two phases of entry into force. The first is the initial or “objective” entry into force with regard to the ILO, which is the starting point for the purpose of reckoning time limits for denunciation (see denunciation) and brings into effect the obligations and rights under Articles ,  and  of the Constitution. It also marks the entry into force of the Convention for member States which ratified it  months or more before this date (paragraph . . .). The second phase of entry into force is the individual or “subjective” entry into force for each Member that ratifies the Convention after its initial entry into force (paragraph . . .). These time limits are not set by the Constitution of the ILO or by any provision of public international law.

147

Report I(A), supra note , Note  (Article VII). The existing ship provision in Title , Regulation ., paragraph , provides (emphasis added): . The requirements in the Code implementing this Regulation which relate to ship construction and equipment apply only to ships constructed on or after the date when this Convention comes into force for the Member concerned. For ships constructed before that date, the requirements relating to ship construction and equipment that are set out in the Accommodation of Crews Convention (Revised),  (No. ), and the Accommodation of Crews (Supplementary Provisions) Convention,  (No. ), shall continue to apply to the extent that they were applicable, prior to that date, under the law or practice of the Member concerned. A ship shall be deemed to have been constructed on the date when its keel is laid or when it is at a similar stage of construction.

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the context of the no more favourable treatment provisions in Article V, paragraph , are also an incentive to ratify. One question may arise in relation to the extent of implementation required when ratifying. The depositary authority would not extend to verifying whether or not a ratifying country is fully in a position to implement the Convention at the time of ratification,148 because implementation is not required until entry into force of the Convention for the country concerned, that is, twelve months (or more in the case of ratifications leading up to entry into force of the MLC, ). The first report for a country under Article  of the ILO Constitution is not requested until twelve months after entry into force for the country concerned, that is, at least  months after ratification for a country ratifying after the MLC,  has entered into force. However the impact of port State control and the requirements for a Declaration of Maritime Labour Compliance, Part I, means that in fact most matters must be addressed at ratification or within  months, once the Convention is in force. Article IX—Denunciation Article IX is a standard ILO provision. It provides that the countries that have ratified the Convention cannot denounce it until ten years after the Convention’s entry into force, with the denunciation becoming effective  months later.149 There are two points of special interest to note in Article IX. First, the tenyear period is based on the Convention’s date of initial entry into force rather than the date of entry into force for the country concerned. Second, as described below, since Article X the MLC,  revises  existing conventions, subject to a few exceptions,150 any of those conventions that have been ratified by a 148

Although as a matter of national law and practice some countries require this before ratification. 149 See: “Denunciation,” ILO Drafting Manual, supra note , section .... As noted by the Legal Department of the ILO: . Denunciation is the act whereby a Member may terminate its obligations under a Convention it has ratified, as well as its constitutional obligations with respect to that Convention. [. . .] There are broadly two types of denunciation: those that follow automatically from the ratification of a Convention revising an earlier Convention . . .; and “pure” denunciations effected by an act of denunciation communicated to the Director-General of the International Labour Office. 150

Regulation ., paragraph , is a transitional provision regarding the Certification of Able Seamen Convention,  (No. ). These training responsibilities were ‘transferred’ to the IMO to be dealt within in connection with the review of the STCW. However, until the IMO adopts mandatory provisions that enter into force or five years after entry in force of the MLC, , whichever date is earliest, existing obligations under Convention No.  remain applicable. The IMO adopted such provisions in June  (Manila Amendments, supra note ). See

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country will be ipso jure (automatically without a further act by the country) denounced by the act of ratifying the MLC, . However, the existing obligations would remain in force until the MLC,  enters into force. Article X—Effect of Entry into Force Initially it was expected that the MLC,  would consolidate all existing upto-date maritime labour conventions. However, the final text lists  conventions, some of which are not considered as ‘up-to-date’ by the ILO or are not even in force, and does not include four conventions. Two of these, the Seafarers’ Identity Documents Convention,  (No. ) and its revising convention, Seafarers’ Identity Documents Convention (Revised),  (No. ), were included in early drafts of the MLC, . However the rapid growth in border security concerns meant that a convention entering into force more rapidly than the MLC,  was needed.151 Although Convention No.  could have been included as of , there were concerns about potential difficulties with respect to implementation if the topic was included in the MLC, . A decision was made at the PTMC in  not to include the topic and these two conventions. Two other conventions were not included for different reasons. The Minimum Age (Trimmers and Stockers) Convention,  (No. ) is considered an out-of-date convention.152 The change in ship technology means that its provision are not consolidated in the MLC,  other than in the general minimum age requirements. The Seafarers’ Pension Convention,  (No. ) had been included in the Article X list of the text considered by the th ILC. However, in  the Seafarers’ Group was of the view that its obligations were not in fact revised in the text of the MLC,  and proposed instead an amendment that would add a new regulation on pensions. This was not accepted by the employers at the th ILC and the decision was taken to leave Convention No.  out of the list of revised conventions.153 Chapter  regarding the STCW review. In addition, conventions adopted prior to  did not have provisions allowing for ipso jure termination of obligations through revision. 151 These documents confirm a seafarer’s professional identity as a seafarer. They are used to facilitate access for shore leave and use of welfare services in foreign ports and to transit foreign countries to join or leave ships. Convention No.  includes several modern enhanced security features. 152 Arguably, its concerns are covered by Regulation . and minimum age and hazardous work restrictions. 153 See also the discussion in Chapter . Committee of the Whole Report, supra note : . The Chairperson opened a general discussion on the issues raised in amendment D., which was sponsored by the Workers’ group and sought to add square brackets around the words “Seafarers’ Pensions Convention,  (No. )”. . The Worker Vice-Chairperson explained that this amendment related to a technical issue. In so far as the proposed Convention did not contain any provisions on seafarers’ pensions,

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Although the MLC,  revises the  conventions and seeks to establish a single set of international standards, States are party to different conventions. Thus “[u]ntil the consolidating Convention is ratified by all of the States that have ratified the existing maritime labour Conventions, it will necessarily have to coexist to varying degrees (depending on their ratification levels) with the obligations under the present international maritime labour Conventions”.154 As noted above under Article IX, once the MLC,  enters into force, a country that has ratified will ipso jure denounce, subject to few exceptions, any of the conventions that it has previously ratified. The exceptions are conventions that although listed in Article X, were adopted before . The Office Report for the th ILC proposed that a “pragmatic commonsense approach will need to be take with respect to Conventions ratified before ”.155 The Office proposal was developed to help ensure a coherent approach

. . . . . .

it could not be deemed to revise the Seafarers’ Pensions Convention,  (No. ), which had been ratified by  member States. Instead of deleting the reference, his group preferred, however, to include provisions on pensions in the proposed Convention and would submit an amendment to that effect. He therefore suggested that consideration of the inclusion or deletion of the reference be postponed. The Employer Vice-Chairperson had no objection to deferring a decision with respect to the reference to Convention No. . He gave clear warning, however, that any reopening of the discussion on Regulation . regarding social security would have grave consequences. The Worker Vice-Chairperson suggested that the issue could be dealt with in a new Regulation. The Employer Vice-Chairperson replied that the question of pensions was part and parcel of the social security debate which his group was unwilling to reopen. The Worker Vice-Chairperson rejoined that a formal revision of the Seafarers’ Pensions Convention,  (No. ) would not be acceptable, unless the issue of pensions was specifically addressed in the maritime labour Convention. The Chairperson concluded that consideration of this issue would be postponed. As a result of later discussions on Title , it was agreed that amendment D., subamended to delete the reference to Convention No. , was adopted. Article X, with the exception of the reference to the Seafarers’ Pensions Convention,  (No. ) was adopted.

154

Report I(A), supra note , Note  (Article X). Ibid., footnote . The Legal Department of ILO explained the situation as follows in the ILO Drafting Manual, supra note , footnote :

155

This means that the mechanism for closure to ratification and automatic denunciation is absent from C to C. Despite the adoption of a revising Convention, these Conventions remain open to ratification and explicit denunciation is required for them to cease to be enforceable with regard to a State ratifying the revised Convention. For example, Serbia and Montenegro ratified C and C on maternity protection on the same date ( November ). However, once the Constitution of the International Labour Organisation Instrument of Amendment, , will have come into force, it will be possible for the Conference to abrogate any Convention that has lost its purpose or that no longer makes a useful contribution to attaining the objectives of the Organization.

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to achieving the intention behind Article X of bringing all existing commitments listed in Article X in line with the MLC,  when it comes into force. This approach involved a proposal to ratifying countries that have also ratified pre- conventions that, unless they communicate otherwise to the International Labour Office, the Director-General, as depository, would regard ratification of the MLC,  as having the effect of denunciation of these earlier conventions. That denunciation would then be registered on the date that the MLC,  comes into force for the country concerned. Clearly a parallel system will also be required under the ILO supervisory system for a period of time as the  conventions will remain in force for countries that have ratified them but not ratified the MLC, . This means that only parties to the MLC,  will be able to file the single Article  report for the MLC, , as required by the ILO reporting cycles;156 non-ratifying countries will continue to file reports on each ratified convention. However, the  conventions listed in Article X will be closed to further ratifications as of the (initial) entry into force of the MLC, . The MLC,  is often described as consolidating nearly  instruments (initially  now  conventions and related recommendations). The situation of recommendations now contained in the MLC,  provisions differs, and they are not listed in Article X. Recommendations are not binding obligations under international law. As pointed out in the Office Report for the th ILC: . . . . If considered necessary or desirable, the existing Recommendations, as well as the listed Conventions that have not yet entered into force can, in due course, be withdrawn by decision of the International Labour Conference taken in accordance with Article bis of its Standing Orders. The process of withdrawing outdated Recommendations . . . is in fact under way. In any event, should the provisions of any Recommendation conflict with any part of the new Convention, these would be regarded as superseded.157

One issue that may arise for governments, since the MLC,  in consolidating also modifies and updates existing conventions, relates to the impact of the Convention on existing national standards adopted under an earlier convention, if they appear to be ‘higher’. This issue would arise in connection with Article , paragraph , of the ILO Constitution, which is referenced in the Preamble to the MLC, . Under this provision, the ratification of any convention by a Member must be deemed not to affect any law, award, custom, or agreement that ensures more favourable conditions to the workers concerned than those provided for in the convention. If a national law appears to establish more favourable conditions for seafarers, then these would apply. However, in 156 157

See Chapter . Report I(A), supra note , Note  (Article X).

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almost all cases, the more favourable provisions would be in line with the MLC,  since it only sets out minimum requirements. In addition, it incorporates the substance of most of the revised/denounced conventions, while providing some flexibility as to the details of application. However, the question of what is a more favourable condition may not be obvious. For example, in the context of accommodation and recreational facilities, the requirements in Standard A. of the MLC,  should be considered as a whole, if the benefit to seafarers of the requirements under the Standard A. package is at least equivalent to the benefits given by the convention(s) previously ratified by the country concerned. The fact that certain aspects under the previous law appear in isolation to be more favourable to seafarers could then, probably, be ignored. There could, however, be cases where it may not be easy to weigh the benefits concerned, especially where the MLC,  has adopted an approach different to that of existing conventions. However, these cases would be unusual. Articles XI and XII—Depositary Functions These two articles are, essentially, standard form administrative provisions confirming the obligations of the Director-General of the ILO to notify ILO Member States about the status of the Convention and to transmit information about ratifications to the Secretary-General of the United Nations. Article XIII—Special Tripartite Committee The Article XIII Special Tripartite Committee was referred to in connection with Article VII. This Committee will be established by the ILO’s Governing Body once the Convention receives sufficient ratifications to enter into force. Its main function is, as stated in Article XIII, paragraph , “keeping the working of this Convention under continuous review”. It also has, as previously explained, a specific function in connection with international global social dialogue. Importantly, as set out in Article XV, it has a central role in connection with the accelerated amendment procedure for the Code of the MLC, . The Special Tripartite Committee comprises two representatives of governments that have ratified the MLC,  and shipowner and seafarer representatives chosen by the Governing Body on the advice of the JMC. Non-ratifying Members may also participate in meetings. An interesting institutional aspect of this new committee, once established, will be considering its role relative to the oversight work already undertaken by the Committee of Experts under the ILO supervisory system.158 The possible nature of that relationship was explained as follows (emphasis added):

158

See Chapter .

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. The representative of the Secretary-General responded that the proposed Convention was unprecedented in terms of the detailed explanatory information available as to the evolution of each provision over the four years of preparatory work. Hence, the real intention of the drafters should be clear. Also, unlike the Merchant Shipping (Minimum Standards) Convention,  (No. ), the proposed maritime labour Convention contained a clear definition of “substantial equivalence” in Article VI. The Committee of Experts would be relieved to have so many elements on which to evaluate compliance. She concluded by recalling that a Special Tripartite Committee was provided for by the Convention and would provide useful inputs to the Committee of Experts with regard to the practical application of the Convention.159

Aside from its role, as discussed above in connection with Article VII, in filling a gap in tripartite social dialogue for a globalized sector, another interesting feature of this Committee is that it may, in some respects, echo the more usual treaty approach whereby ratifying countries consider amendments to conventions to which they are a party, as opposed to the more usual ILO practice160 whereby all countries are involved, even if they have not ratified the convention in question. This seems like a logical step given the need for a more rapid amendment procedure for the Code (Part A, Standards), which contains the detailed operational provisions in the Convention. Since voting rights are involved, a point of some debate during the adoption of this article was the formula for voting rights and the (––) balance struck in Article XIII, paragraph , between the votes of governments’, shipowners’, and seafarers’ votes.161 Nevertheless the Committee will also remain linked to ILO practices as all Members may participate in meetings, with voting rights linked to ratification. Non-ratifying countries will also have the right to propose amendments and will take part in the process for the approval of such amendments in the ILC on the same basis as the Members that have ratified the Convention.

159 160 161

Committee of the Whole Report, supra note . See Chapter . Report I(A), supra note , Note  (Article XIII): Paragraph  provides for the Governments on the committee to have twice the voting power of the Shipowner and Seafarer representatives on the committee. This –– configuration will mean that, in the (probably unlikely) event of a formal vote being needed in the committee, the Governments will have  per cent of the votes, and the Shipowners and the Seafarers will each have  per cent. In addition, in the case of the adoption of amendments to the Code, paragraph (c) of Article XV protects any one of the three tripartite groups from being outvoted: a vote will not be carried if it does not have the support of at least half the voting power of each of the three groups.



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Articles XIV and XV—Amendments The Office Report for the th ILC suggests that, at least from an ILO perspective, the amendment provisions in this Convention, particularly in Article XV dealing with amendments to the Code, are one of its most innovative aspects.162 It will be recalled, from the discussion in Chapters  and  that the usual ILO process for changing provisions in a convention is to adopt a new convention revising the existing convention. Hence, in part, the reason for the proliferation of conventions and patchwork of coverage in terms of ratifications. The amendment provisions in Articles XIV and XV were subject to extensive debate mainly with respect to getting the voting balances agreed. The main legal point to note is that Article XIV, Amendment of this Convention, provides for amendments to the entire Convention (any level of provision) by the General Conference of the ILO in the framework of Article  of the ILO Constitution. Under the process in Article XIV, in accordance with ILO practice, all ILO Member States, not just those that are party to the MLC, , are involved in the process of adopting amendments. Further, the process requires express ratification of the amended Convention. This is in contrast with Article XV, Amendments to the Code, which addresses only amendments to the Code through an accelerated amendment process that was developed to meet the need for more rapid updating of the technical parts of the Convention, without the need for a revision version of the Convention. The latter process draws on IMO convention procedures using what is sometime called ‘tacit acceptance’, which does not require express ratification. The Office Report for the th ILC,  explains the conceptual differences and also provides information regarding expectations for future use of these two articles, again much as the distinction in the amendment procedures in IMO conventions: Note  . . . . Article XIV sets out the procedures, in the framework of Article  of the Constitution, for amendment of the Convention as a whole, involving an express ratification procedure. The procedure envisaged will be an innovation for the ILO, but the legal effects of this amendment procedure will be the same as that of the procedures used in the ILO for the revision or modification of instruments, with one important exception: there will be no separate revising Convention or Protocol; there will be a single amended Convention. . . . . . . . Although the procedure under Article XIV can be used for the amendment of any provision of the Convention, it is likely (because of the costs and potential delays involved) to be used only if there were an unavoidable need to amend major provisions of the Convention (in the Articles and Regulations). It is therefore reasonable for Members considering ratification of 162

Ibid., Note  (Article XV).

principles and rights



the Convention to assume that such essential amendments will eventually enter into force. If, however, a Member wishes to have complete certainty in this respect it should take steps to ratify the Convention at an early date. . . . Indeed, under the Article XIV procedure, amendments could take several years to enter into force (or reach the stage of deemed acceptance), thus helping to perpetuate the coexistence of substantially different versions of the same Convention.163

The formula under Article XIV to trigger entry into force of the amended Convention is set out paragraph  and is the same as the formula for the MLC,  set out in Article VIII, including the -month ‘grace’ period between ‘date of acceptance’ (meeting the formula) or registration of the ratification if after ‘date of acceptance’. Article XIV also provides, in paragraph , for the situation of a country that is party to the MLC,  but does not ratify the amendments to the Convention and, in paragraph , for countries to ratify the MLC,  text after an amendment has been adopted but is not in force. This is consistent with ILO practice in that the existing conventions are not closed to ratification by a revising convention until the latter enters into force. As noted above Article XV, Amendments to the Code, provides for a process sometimes described as ‘accelerated amendment’. It is based on the tacit acceptance procedure adopted for one form of amendments of IMO conventions and is also the process available for the amendment of some provisions in the  LOSC.164 The IMO approach was seen as important and useful, but was adopted with some modifications to meet concerns for the ILO processes.165 The tacit 163 164

Report I(A), supra note , Note  (Article XIV). See: LOSC, supra note , Art. , Amendment by simplified procedure, . A State Party may, by written communication addressed to the Secretary-General of the United Nations, propose an amendment to this Convention, other than an amendment relating to activities in the Area, to be adopted by the simplified procedure set forth in this article without convening a conference. The Secretary-General shall circulate the communication to all States Parties. . If, within a period of  months from the date of the circulation of the communication, a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected. The Secretary-General shall immediately notify all States Parties accordingly. . If,  months from the date of the circulation of the communication, no State Party has objected to the proposed amendment or to the proposal for its adoption by the simplified procedure, the proposed amendment shall be considered adopted. The Secretary-General shall notify all States Parties that the proposed amendment has been adopted.

165

Report I(A), supra note , Note  (Article XV): . This simplified or accelerated amendment procedure developed for the consolidated maritime labour Convention is similar to that provided for in Conventions adopted in the framework of the IMO, such as SOLAS. The procedure has, however, been adapted to the special features of the International Labour Organization, in particular its tripartite



chapter six

acceptance procedure basically shifts from express ratification of an amendment to requiring express refusal or objection in order to prevent adoption or non-application of an amendment. Silence by a State that has ratified a convention is taken as tacit acceptance. This approach reflects the view that often countries do not disagree with the provisions in an international agreement, but may not be able to rapidly implement the necessary national legal steps to formally agree and be bound by an amendment. This puts some onus on governments to actively respond if there is a serious difficulty with a proposed amendment. As mentioned, Article XV deals only with amendments to the Code, in particular the standards in Part A, since these are the binding provisions. It not clear whether an amendment could be made to the Part B (Guidelines) provisions alone in any other way since the guidelines are not binding as such. Although the Convention does not distinguish between Parts A and B, presumably the Article XV procedures also apply to Part B of the Code. In practice an amendment only to Part B seems unlikely, since the guidelines in Part B are intended to provide guidance for the implementation of the binding obligations in Part A and the regulations: changes to Part B would, presumably, also involve amendments to Part A of the Code. Article XV is lengthy with  paragraphs setting out details of voting procedures and the consequences of the adoption of amendments at the shipboard level under port State control. The process is complex and was so new to the ILO that the Office Report for the th ILC used a flow chart to explain it.166 For purposes of this chapter it is not necessary to examine all the details, however, several features are notable, particularly in connection with the role of the Article XIII Special Tripartite Committee and the countries that have ratified the MLC, . Paragraph  establishes who can make proposals for amendments. A proposal for an amendment is submitted to the Director-General of the ILO by the group of shipowners’ or seafarers’ representatives on the Article XIII Special Tripartite Committee or by the government of any Member of the Organization. Proposals made by governments must be supported by a group or by a least five governments that have ratified the Convention or by the group of shipowners’ or seafarers’ representatives. The Director-General is then required to communicate the proposal to all ILO Members. structure and the pre-eminent role, given by the Constitution to the Organization as a whole, through the International Labour Conference, with respect to the adoption and revision of Conventions; in particular, the revision of a Convention is a matter for the Organization as a whole rather than only for the Members that have ratified it. 166

Report I(A), supra note , Appendix E.

principles and rights



After no less than three and no more than nine months, the proposal and a summary of observations or suggestions received is transmitted to the Article XIII Special Tripartite Committee for consideration with a view to adoption (subject to the approval of the ILC). Under paragraph , an amendment can be adopted by the Committee if at least half the ratifying Members are represented at the meeting and a two-thirds majority votes in favour of adoption of an amendment and the majority voting mix comprises half of the government (ratifying countries) and half of the shipowner voting power and half the seafarer voting power of Committee members registered at the meeting. The procedures under Article XIII mean that all countries that are Members of the ILO can participate in the discussions, but only the members of the Special Tripartite Committee can vote (i.e., the ratifying Members in the case of governments). If the vote is in favour, the next step is notification and transmission of all amendments to be considered and approved by a vote167 at the next ILC. However, the role of the ILC in question is limited under the MLC, . It cannot reformulate the amendment, and if approval is not obtained, the amendment is referred back to the Special Tripartite Committee. The procedures for approved amendments—the submission of approved amendments for consideration—is very similar to the IMO procedures. The amendments are notified only to Members that have ratified the Convention, which are given a period to react (normally two years); other ILO Members receive a copy for their information.168 The amendment is deemed to have been accepted unless a formal expression of disagreement by  per cent of the Members ratifying the Convention, representing not less than  per cent of the gross tonnage of the Members that have ratified the MLC, , is received by the end of the two years or another period (but at least one year) set by the Conference. It is notable that this formula differs from the Article VIII and Article XIV entry into force requirements. Clearly the focus in this provision is the Special Tripartite Committee and the views of the ratifying countries as to whether an amendment will be adopted. It is evident that this simplified or accelerated procedure nevertheless reflects several ILO safeguards based on ILO practice that do not exist under the IMO conventions. 167

See Article XV, para. . Article XV does not specifically refer to the question of applicability of an amendment to Members that ratify the Convention after the amendment has been approved by the Conference but before the amendment enters into force. However, paragraph  provides that, after an amendment enters in force, the Convention may only be ratified in its amended form. This can be understood as implying that the Convention can be ratified in its original form before the amendment enters into force. It would be up to the ratifying country to clarify, perhaps in a declaration (i.e., as per Art. XIV, para. ), whether its ratification relates to the Convention without the amendments.

168

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Article XVI—Authoritative Languages Since it was established in , ILO conventions have had a provision to the effect that the English and French versions of the text are equally authoritative.169 Conclusion This chapter is lengthy. However, as explained above, the articles set out the overarching principles and rights in the ‘cascade’ of obligations under the MLC, . Importantly, the articles address the central concern—who the Convention applies to as well as establishing the legal basis for flexibility in the implementation of the Convention at a national level. Aside from setting out the core seafarer rights, the articles also contain the key ‘no more favourable treatment’ provision that helps to establish the ‘level playing field’ for shipowners. Although the more administrative articles relating to the operation of the Convention may not seem important to the Convention’s broader policy objectives, they are significant in terms of changes to the ILO procedures and to the future operation and development of the Convention. The next five chapters provide a detailed consideration of the five Titles containing the regulations and the Code, Parts A and B, which articulate the specific content, primarily at the shipboard level, of the seafarers’ right to decent work.

169

ILO Drafting Manual, supra note , section ..., Authoritative language versions, paras  and .

chapter seven TITLE 1: MINIMUM REQUIREMENTS FOR SEAFARERS TO WORK ON A SHIP

General Introductory Note1 Chapters  to  examine each of the regulations and associated Code provisions in Titles  to  of the MLC,  highlighting points of particular interest or difficulty. The annotated version of the Convention (see Appendix ) provides additional information regarding the ILO conventions and recommendations that are consolidated in the MLC, . Additional interpretive resources2 for the MLC,  include the Article  Report,3 which provides supplementary information on the expectations of the ILO’s international supervisory system4 regarding ratifying States’ obligations to implement the Convention. The Guidelines for Flag State Inspections under the Maritime Labour Convention, 5 and the Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention, 6 address the more practical implementation and matters, such as ‘how to check’ for compliance, at the shipboard level, with national legislation or other measures implementing the MLC, .

1 This introductory note is included in Chapters  to  as an aide-memoire to summarize key information about the structure and approach adopted in the MLC, . Chapters  and  explore these issues in detail. 2 See Chapter  at p. . 3 The Article  report form for the MLC,  can be found in Appendix IV of ILO Doc. No. GB.// (Rev) (ILO, Governing Body, Reports of the Committee on Legal Issues and International Labour Standards: Second report: International labour standards and human rights, Geneva, March ), pp. –, available at http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm. 4 See Chapter . 5 See also Chapter , pp. –, on the role of these guidelines in implementing the MLC, . International Labour Office, Guidelines for Flag State Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www.ilo.org/wcmsp/groups/public/ed_norm/-normes/documents/publication/wcms_.pdf. 6 International Labour Office, Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www .ilo.org/wcmsp/groups/public/-ed_norm/-normes/documents/publication/wcms_.pdf. These guidelines are called for in the MLC,  (Guideline B.., para. ), and both guidelines are the result of resolutions adopted by the th ILC in  when it adopted the Convention



chapter seven

This chapter examines the regulations and the provisions in Part A (Standards) and Part B (Guidelines) of the Code of the MLC,  in Title . As discussed in Chapter  of this book these provisions are organized in a topical and vertically integrated manner with each Title comprising a number of regulations and the associated Parts A and B of the Code setting out more detailed requirements to implement the relevant regulations.7 Each regulation has a purpose clause indicating its objective in ‘plain language’.8 In turn, these regulations and the Code provisions set out more detailed specific implementation of the social and employment rights (and related obligations) generally set out in Article IV and the implementation and enforcement obligations under Article V.9 The provisions in the Titles are, as a matter of international law, directed to States, primarily as flag States, with an international obligation to regulate conditions on board ships that fly their flag. As applicable, regulations are also directed to coastal or port State or States that have a labour-supplying interest and require that the State take implementing action at the national level. It will be recalled that under Article IV, paragraph , unless specified otherwise States, can use various approaches to implement these obligations, including adopting legislation or through collective bargaining agreements or other measures.10 The provisions in Titles  to  and, in part, Title  are ‘regulatory’ in that they set specific minimum requirements for working and living condition for seafarers, primarily on board ships.11 In this way the Convention operates at two

(See: Reports of the Selection Committee, Second Report, ILC, th (Maritime Session), Geneva, , ILO Doc. No. PR– (Rev.), pp. –/–/ and –/–/). Initially it was thought that the port State control guidance would be adopted as a priority, with adoption of flag State guidance following. However, it became clear that the flag State guidance needed to be developed first as it provided the basis for port State control. 7 Regulations, like articles, are not subject to amendment using the more rapid tacit acceptance procedure in Article XV, nor are they subject to substantial equivalence under Article VI. Thus any analysis of the obligations, particularly in connection with exercising flexibility, must carefully consider the obligation in the regulations relative to the mandatory obligations in Parts A and B of the Code that must be given ‘due consideration’. Chapters  and  discuss the structure of the Convention in detail, as well its effect on future approaches to amendments (Chapter ). 8 Although the approach to interpretation of the application of the concept of substantial equivalence is not yet settled, presumably this would be one source to consider when evaluating whether a measure is “conducive”, as required under Article VI, paragraph (a), of the “general object and purpose” of the provision or provisions. See Chapter , footnote . 9 As discussed in Chapter , the articles mainly comprise general statements of principles and rights and obligations directed specifically to ratifying States. 10 See Chapter , pp. –. 11 It must also be recalled that Article II of the Convention regarding the definitions of seafarer and ship represents a fundamental change in the scope of the Convention, which in turn affects national implementation. A much wider group of workers, indeed all persons working at sea with very few exclusions for categories of ships, are now covered as ‘seafarers’ under the MLC, 

title : minimum requirements



levels: the State obligation to implement Convention obligations and regulate shipowners and other actors, and through the enforcement and compliance system in Title  where they pierce international law’s ‘corporate veil’ of the State to affect the actors that essentially ‘perform’ the majority of the Convention’s obligations. Failure at the shipboard level can, of course, also be evidence of a failure on the part of a State to implement or effectively implement its international obligations to regulate the issue in question. Thus the two levels are intertwined and mutually re-enforcing. It must also be emphasized that there is significant interaction among the provisions of these Titles, particularly in connection with Regulation . on seafarers’ employment agreements, which, especially from a ship inspection perspective, contain aspects that cuts across most Titles. The two Appendices in Title  list  areas that are drawn from all Titles. These areas are subject to certification for some ships and inspections under port State control. Under Title , flag States will need to address these areas in developing the document12 regarding their national requirements while shipowners must address them in the document13 that they are to prepare. Both documents must14 be carried on board ships  GT and over engaged in international voyages or voyaging from or between ports in another country (other than the flag State). Linkages to these provisions will be noted when they arise in each of the regulations. Overview of Title : Regulations . to . and the Code, Parts A and B Title  comprises regulations and the related Code Part A, Standards, and Part B, Guidelines, on four topics: – – – –

Regulation .—Minimum age Regulation .—Medical certificate Regulation .—Training and qualifications Regulation .—Recruitment and placement

provisions. Further, when a country has made a determination under Article II, paragraph , in connection with ships below  GT that do not go on international voyages, the national law or other measures would still need to comply with the regulations. 12 Appendix A-II—Declaration of Maritime Labour Compliance, Part I, see p.  of this book. 13 Appendix A-II—Declaration of Maritime Labour Compliance, Part II, see p.  of this book. 14 Regulation .., para. . Shipowners may also request their ships be certified even if not within these categories. See: Regulation .., para. . It should be noted that the system established under Title  requires that all ships must be inspected by the flag State.

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Title  may seem anomalous as both its name, ‘Minimum Requirements for Seafarers to Work on a Ship’, and content does not appear to address seafarer’s social and employment rights. The first three regulations establish minimum requirements that seafarers must meet to work on board a ship while the fourth, Regulation ., addresses minimum requirements for the operation of seafarer recruitment and placement services, essentially the regulation of an onshore business.15 However, the content of these regulations can be understood as relating to rights in the sense of broader protection of workers from exploitation. For example, the purpose clauses articulate concerns that are essentially interventions to protect workers from situations that may be harmful to themselves and/or others. This includes the protection of young people, protection of seafarers’ health, and the safety of other seafarers and passengers through training and medical examination requirements as well as avoiding exploitation of seafarers through the regulation of seafarer recruitment and placement services. Initially, this group of regulations also included provisions consolidating a convention16 on seafarers’ identity documents. However, with the developments of enhanced security after , a decision was taken to adopt a revising convention in , the Seafarers’ Identity Documents (Revised) Convention,  (No. ) to address modern enhanced border security concerns. Ultimately, as discussed in Chapter  in connection with Article X, a decision was taken by the HLTWG not to include this topic under the MLC, .17 In connection with the ship inspection and certification system established under Title  (see Chapter ) it should be noted that all the regulations under Title  are matters that must be inspected on all ships to which the Convention applies. In addition, they are also all on the list of  areas that must be certified by flag States, largely for purposes of port State control, for ships subject to mandatory certification,18 that is, ships  GT and above that engage in international voyages or voyages from or between ports in another country. Further, many of the regulations in Title  are also addressed by the IMO STCW Convention at least for seafarers carrying out duties that are covered by the requirements of the STCW. Thus, there is the potential for possible 15

The name of the Title is a modified version of a heading ‘Prerequisites for going to sea and related provisions’ developed in one of the earliest drafts of the Convention. It seems to be based on a prior ILO publication compiling existing maritime labour conventions and recommendations. 16 Seafarers’ Identity Documents Convention,  (No. ), Geneva,  May , available at http://www.ilo.org/ilolex/english/convdisp.htm. 17 Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. PTMC/ /–, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/pdf/ptmc--.pdf, paras –. 18 See: Regulation .., paras  and .

title : minimum requirements



inconsistency or conflict between provisions adopted in two different fora. However the text of the MLC,  was drafted to take account of the wording of the STCW Convention provisions. Subsequently the ‘Manila’ amendments to the STCW, adopted in June ,19 were drafted to avoid conflict between these international instruments. Regulation .—Minimum Age As indicated by its purpose statement, Regulation . and the related Standard A. and Guideline B. are “to ensure that no under-age persons work on a ship”. The Regulation has three paragraphs dealing with a simple prohibition: no person below the minimum age shall be employed or engaged to work on a ship. The minimum age is initially set at  years, with the possibility that a higher minimum age may be provided in the Code. The reference to ‘person’ rather than seafarer reflects the idea that a person under the minimum age is, de facto, not a seafarer under the MLC, . The interesting features of the Regulation, which consolidates existing conventions from  and , are, first, the level of detail found in a regulation and second, its interaction with fundamental rights. In principle, the regulations, while topic specific, should contain only core or general statements of principle or rights since they can only be amended in the same way as the articles. Given this approach it may appear surprising to find a specific age set out in an international regulation since it is foreseeable that this may alter as social ideas change. Paragraph  is, however, carefully worded to set the minimum age “at the time of entry into force” of the Convention. In order to accommodate future changes, a higher age can be designated in the ‘Code’ (standards), whose provisions can be more easily updated. There was significant debate during the development of the Convention on this issue as some governments had proposed a lower minimum age, such as  (the minimum age under the  Convention20) to allow for training 19

See: IMO, Conference of Parties to the STCW Convention, Adoption of the Final Act and Any Instruments, Resolutions and Recommendations Resulting from the Work of the Conference, Attachment  to the Final Act of the Conference Resolution , The Manila Amendments to the annex to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), , Text adopted by the Conference, STCW/CONF./,  July , available at http://www.md.go.th/seaman/pdf/STCW-CONF.-.pdf [hereinafter the Manila Amendments]. 20 Minimum Age (Sea) Convention (Revised),  (No. ), Geneva,  May , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. . This moved the age up from , with some exceptions for training purposes, under the Minimum Age (Sea) Convention,  (No. ), Genoa,  July , available at http://www.ilo.org/ilolex/english/convdisp.htm. Both



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programs, family businesses, or child entertainers. Others, in particular the seafarers’ representative, took the view that the age should be . This age would be in line with the ILO’s fundamental conventions on minimum age, the Minimum Age Convention,  (No. ), which sets  as the minimum or work “likely to jeopardize the health, safety or morals . . . ”,21 and the Worst Forms of Child Labour Convention,  (No. ), which also sets  as the minimum for work that by its “nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children”.22 This is consistent with a view that seafaring would necessarily be considered hazardous work. The solution was to retain the minimum age of  with a prohibition in Standard A. of the Code on night work and employment that is likely to jeopardize the health or safety for seafarers under the age of . The reason for setting a minimum age in a regulation was that it was thought that this might be a matter of importance to governments when considering ratification as most countries23 are also party to the two general minimum age conventions. The Commentary for the PTMC in  with respect to the interaction between these two conventions, particularly the Worst Forms of Child Labour Convention , is of interest. . . . .. If employment as a seafarer necessarily involves hazardous work, it might well come within the category of worst forms of child labour. Whether or not it does is a debatable question, but it is not one that has only arisen since Convention No. . Already in , the minimum age of  for hazardous work had been established by the Minimum Age Convention (No. ) in its Article . Nevertheless, the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ), sets the age of  as the minimum for work in its Part III on the manning of ships. For these reasons, Regulation . of the proposed Convention sets the initial minimum age at , which could be changed later in Part A of the Code to provide for a higher age.24

Under Standard A., paragraph , the prohibition regarding employment, engagement, or work on board ship of any person under the age of  is repeated. Paragraphs  and  address the issue of night work (with specific conventions allowed work under the minimum age on vessels where only family members are employed. 21 Minimum Age Convention,  (No. ), Geneva,  June , available at http://www .ilo.org/ilolex/english/convdisp.htm, Art. , para. . 22 Worst Forms of Child Labour Convention,  (No. ), Geneva,  June , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. (d). 23 Relatively few ILO Members are not party to the ILO’s eight fundamental conventions. 24 Consolidated Maritime Labour Convention: Commentary to the Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo .org / public / english / standards / relm / ilc / ilc / ptmc / pdf / cmlc-comment.pdf, Comment  (on Title , Regulation .).

title : minimum requirements



parameters for what is considered ‘night’) with a possible exception for night work where a seafarer is in a training program. Under this provision ‘national law and practice’ is required to define ‘night’ in each country. Similarly the employment, engagement, or work of seafarers under  is to be prohibited where it is likely to jeopardize health or safety. Perhaps reflecting the ‘modernization’ approach in the MLC, , the reference to morals is no longer included. The question of what kind of work on board a ship falls into this restricted category is a matter that is to be determined by laws or regulations or by the competent authority after consultation. Although not specifically referenced in the standard, some guidance on this point can be found in other provisions in the Convention. For example, Title , Guideline B.., Safety and health education of young seafarers, links this issue to medical examinations (from a health protection/prevention perspective) and also provides a list of some on-board work that should be restricted.25 Minimum age and protection of young seafarers, that is, seafarers between ages  and , is also relevant in other Titles. For example, Standard ., paragraph , requires ships’ cooks to be  or older. In other places, the Convention either requires, in standards, or recommends, in the guidelines, that special measures be taken to protect young seafarers by, for example, specific limits on hours of work or rest, repatriation rights, occupational safety and health, and, as in the next regulation to be discussed, medical certificates. In addition, from a verification and inspection perspective, a seafarer’s date of birth is a matter that must be included in the mandatory seafarers’ employment agreement (SEA) under Standard A., paragraph (a). The overall importance of protection for younger seafarers is also emphasized in Guideline B.. As discussed in Chapter , Article VI, paragraph , requires that States give due consideration to Part B of the Code when implementing their obligations. This guideline was introduced at the th ILC when the Convention was adopted. Although located under the minimum age requirement, it is clear from its wording that the intention is that the guidance, “[w]hen regulating working and living conditions, Members should give special attention to the needs of young persons under of ”, would apply across all requirements. As explained in the Office Report regarding its introduction: . The Government member of Norway introduced amendment D., which was sponsored by the Government members of Norway and Sweden and sought to insert the following text in Guideline B.: “When regulating working and living conditions, Members should give special attention to the needs of young persons under the age of , in particular with regard to their inexperience as 25

See discussion in Chapter , in connection with Regulation . at p. .



chapter seven seafarers”. The amendment sought to improve the instrument by paying more explicit attention to the needs of young seafarers.26

It is also important to note a further important interaction in the context of ship inspections and the possible refusal to allow a ship to sail under flag State inspection or a detention under port State control. Minimum age, as noted above, is also linked to the fundamental rights in connection with the abolition of child labour. As explained in Chapter  of the Guidelines for Flag State Inspection,27 non-compliance with the minimum age requirement is considered as a “serious breach” and could amount to the violation of a fundamental right (Article III (c)) and the national provisions implementing these rights. This is in-line with the Convention’s guidance that even a single case of employment of a person who is under age should be considered as a serious breach of the MLC, 28 that would prevent a ship from sailing.29 Regulation .—Medical Certificate Regulation . and the Code provisions were relatively, perhaps even surprisingly, uncontroversial, even though they consolidated two much older conventions adopted in  and .30 As its name suggests, Regulation . sets out a requirement that seafarers undergo a medical examination and hold a certificate. However, there are some points of subtlety in the wording adopted in the MLC, . As the purpose clause states, the objective of this requirement is “[t]o ensure that all seafarers are medically fit to perform their duties”.

26

Report of the Committee of the Whole, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. PR(Part I), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr-i.pdf. The text was subamended before adoption: . The Government member of Greece proposed a subamendment to delete the words “in particular with regard to their inexperience as seafarers”. He indicated that young age and inexperience were not necessarily synonymous.

27

Guidelines for Flag State Inspections, supra note , para. . See also: Guidelines for Port State Control Officers, supra note , para. . See also Chapter  on Title . 28 Guideline B.., para. . This relates in part to an elaboration of the intention behind the phrase ‘requirements of this Convention (including seafarers’ rights)’. Although Article II, paragraph (e) and Article V, paragraphs  and , do not contain the phrase in brackets, the provisions in Title  on compliance and enforcement does. 29 Appendix B-I of the MLC,  provides an example in connection with the Declaration of Maritime Labour Compliance, Parts I and II, of how a government and shipowner might indicate compliance with this requirement at the shipboard level. 30 Medical Examination of Young Persons (Sea) Convention,  (No. ), Geneva,  November , and Medical Examination (Seafarers) Convention,  (No. ), Seattle,  June , both available at http://www.ilo.org/ilolex/english/convdisp.htm.

title : minimum requirements



The phrasing ‘to perform their duties’ or ‘to perform the duties they are to carry out at sea’ and the related reference ‘genuinely reflect their health in light of the duties they are to perform’ is repeated in Regulation ., paragraph , and Standard A., paragraphs  and . The idea behind this wording is that the assessment of medical fitness is not fitness per se in relation to an absolute standard, but rather that it is contextual.31 The assessment is to relate to the specific duties the individual seafarer is expected to undertake on board ship. To some extent, of course, this is artificial given the two-year validity period of the certificates. It is based on the idea that examination and certification should instead provide a range of information, including indicating particular activities that a seafarer may not be able to carry out safely. This contextual approach is important given the much larger group of seafarers now covered by the MLC,  and the increased awareness of the need to ensure that access to employment is not based on discrimination with respect to disability or medical conditions. This is a matter that has subsequently proved controversial in the context of the IMO’s review of the STCW Convention during which a standard table for ‘minimum fitness’ was proposed as mandatory text. However, at the June  conference that adopted amendments to the STCW Convention, this table was moved to Code B as non-mandatory text.32 The amended text, when 31 See, for example, a discussion regarding the shift from ‘disease-eliminating to working ability’ in Heikki Saarni, “Medical examination of seafarers, who is fit for work at sea?” th International Symposium on Maritime Health, , Spain, available at http://www.mersante.com/ medicalexamination.pdf (accessed  February ). The author advocates a move from temporary medical examination to continuous long-term medical follow-up because of the nature and stresses of the work and the difficulty in rapid access to land-based medical care on some voyages. 32 Draft Resolution , supra note  (emphasis added),

Section A-I/ Medical standards  Parties, when establishing standards of medical fitness for seafarers as required by regulation I/, shall adhere to the minimum in-service eyesight standards set out in table A-I/ and take into account the criteria for physical and medical fitness set out in paragraph . They should also take into account the guidance given in section B-I/ of this Code and table B-I/ regarding assessment of minimum physical abilities. These standards may, to the extent determined by the party without prejudice to the safety of the seafarers or the ship, differentiate between those persons seeking to start a career at sea and those seafarers already serving at sea and between different functions on board, bearing in mind the different duties of seafarers. They shall also take into account for any impairment or disease that will limit the ability of the seafarer to effectively perform his/her duties during the validity period of the medical certificate.  The standards of physical and medical fitness established by the party shall ensure that seafarers satisfy the following criteria: . have the physical capability, taking into account paragraph  below, to fulfil



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in force, now requires a certificate and, while not mirroring the MLC, , is clearly consistent with it. Paragraph  of Regulation . provides for the possibility of permitting exceptions only “as prescribed in the Code”. The Code only provides for two

  





all the requirements of the basic training as required by section A-VI/, paragraph ; . demonstrate adequate hearing and speech to communicate effectively and detect any audible alarms; . have no medical condition, disorder or impairment that will prevent the effective and safe conduct of their routine and or emergency duties on board during the validity period of the medical certificate; . are not suffering from any medical condition likely to be aggravated by service at sea or to render the seafarer unfit for such service or to endanger the health and safety of other persons on board; and . are not taking any medication that has side effects that will impair judgment, balance, or any other requirements for effective and safe performance of routine or and emergency duties on board. Medical fitness examinations of seafarers shall be conducted by appropriately qualified and experienced medical practitioners recognized by the Party. Each Party shall establish provisions for recognizing medical practitioners. A register of recognized medical practitioners shall be maintained by the Party and made available to other Parties, companies and seafarers on request. Each Party shall provide guidance for the conduct of medical fitness examinations and issuing of medical certificates, taking into account provisions set out in section B-I/ of this Code. Each Party shall determine the amount of discretion given to recognized medical practitioners on the application of the medical standards, bearing in mind the different duties of seafarers, except that there shall not be discretion with respect to the minimum eyesight standards for distance vision aided, near/immediate vision and colour vision in table A-I/ for seafarers in the deck department required to undertake look-out duties. A Party may allow discretion on the application of these standards with regard to seafarers in the engine department, on the condition that seafarers’ combined vision fulfils the requirements set in table A-I/. Each Party shall establish processes and procedures to enable seafarers who, after examination, do not meet the medical fitness standards or have had a limitation imposed on their ability to work, in particular with respect to time, field of work or trading area, to have their case reviewed in line with that Party’s provisions for appeal. The medical certificate provided for in regulation I/, paragraph  shall include the following information as a minimum: . Authorizing authority and the requirements under which the document is issued . Seafarer information .. Name: (Last, first, middle) .. Date of birth: (day/month/year) .. Gender: (Male/Female) .. Nationality . Declaration of the recognized medical practitioner .. Confirmation that identification documents were checked at the point of examination: Y/N

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exceptions, in two distinct situations.33 The first is providing a competent authority with discretion to permit a seafarer to sail without a valid certificate in “urgent” cases (Standard A., paragraph ). The second is expiry of a certificate while a seafarer is on a voyage (Standard A., paragraph ). Both are subject to a three month maximum. At the th ILC in , a provision in Regulation . that essentially confirmed that some persons (e.g., port workers) that go on board ships but would not be considered seafarers and thus would not be covered by this regulation, was deleted.34 The only other debate on this issue related to the .. .. .. ..

Hearing meets the standards in STCW A-I/? Y/N Unaided hearing satisfactory? Y/N Visual acuity meets standards in STCW A-I/? Y/N Colour vision* meets standards in STCW A-I/? Y/N ... Date of last colour vision test. .. Fit for look-out duties? Y/N .. No limitations or restrictions on fitness? Y/N If “N”, specify limitations or restrictions. .. Is the seafarer free from any medical condition likely to be aggravated by service at sea or to render the seafarer unfit for such service or to endanger the health of other persons on board? Y/N .. Date of examination: (day/month/year) .. Expiry date of certificate: (day/month/year) . Details of the issuing authority .. Official stamp (including name) of the issuing authority .. Signature of the authorized person . Seafarer’s signature—confirming that the seafarer has been informed of the content of the certificate and of the right to a review in accordance with paragraph  of section A-I/  Medical certificates shall be in the official language of the issuing country. If the language used is not English, the text shall include a translation into that language. 33 Although the amendments proposed to STCW regulations only envisaged one exception, two exceptions, consistent with the MLC, , Standard A., paragraphs  and , were in fact adopted. See: supra note :

Reg I/  If the period of validity of a medical certificate expires in the course of a voyage, then the medical certificate shall continue in force until the next port of call where a medical practitioner recognized by the Party is available, provided that the period shall not exceed three months.  In urgent cases the Administration may permit a seafarer to work without a valid medical certificate until the next port of call where a medical practitioner recognized by the Party is available, provided that: . the period of such permission does not exceed three months; and . the seafarer concerned is in possession of an expired medical certificate of recent date. 34

The inclusion of the provision that had been adopted by the PTMC in , stating that “[t]he provisions under this Regulation do not apply to persons not ordinarily employed at sea,



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situation where a seafarer might be able to work without a valid certificate and a question concerning whether or not certificates must be in English for seafarers engaged on international voyages. At the PTMC in , however, there had been more debate not only about the concept but about the specific wording of the provisions. An important concern was to ensure that the wording avoided conflict with the STCW provisions. This even extended to the Intersessional Meeting in .35 This problem has now been addressed with the  review of the STCW which limits the validity of certificates under STCW to the same validity periods as the MLC, . Until the comprehensive review of the STCW, although a medical examination was required, there was no stated requirement in the STCW for a certificate. However, many governments already follow the ILO requirements for a certificate under the  Convention and use a version of the sample form for a certificate appended to the  ILO/WHO Guidelines for Conducting Presea and Periodic Medical Fitness Examinations for Seafarers.36 The question of whether colour vision is a matter that needs to be retested was a point of some discussion. It was decided that a colour vision certificate would be also required, as this would be important for some duties on board a ship.37

such as pilots, travelling dockers and portworkers”, might have created significant uncertainty as it might have inadvertently give rise to an a contrario reading, for example, by specifically mentioning these groups in one regulation it might have implied that they could be covered by other regulations, unless mentioned are not covered. 35 Report of the Discussion, Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/ptmc/ptmc-.pdf. The meeting agreed with the seafarers’ proposal to add “to perform their duties at sea”. This was supported as the shipowners and governments: . The Shipowner spokesperson stated that, while a seafarer might be on shore during leave or while visiting the offices of a shipowner’s organization, these areas were not of concern to the Convention. Rather, the Convention dealt with a seafarer’s fitness while at sea and the medical certificate indicated this. 36

ILO, Sectoral Activities Programme, Guidelines for Conducting Pre-sea and Periodic Medical Fitness Examinations for Seafarers, Part , ILO/WHO/D./, available at http://www.ilo.org/ public/english/dialogue/sector/techmeet/ilowho/meden.htmHeading. These guidelines are being revised concurrently with the STCW review. They are another example of cross-agency cooperation in areas of shared competency, in this case the ILO and World Health Organization (WHO). 37 The Commentary to the PTMC , supra note , states: Comment  (on Regulation .) . In paragraph  . . .. It has been suggested that since colour vision is permanent there may be no need to require examinations every six years. However, it appears colour vision defects can be acquired through ageing and eye disease some retesting would seem appropriate. Convention No.  provides for six years.

title : minimum requirements



The MLC,  was also specifically drafted to avoid the problem of a potential conflict with STCW on many small points of wording by providing, under Standard A., paragraph , that a certificate issued in accordance with the requirements of STCW shall be accepted and that a medical certificate meeting the substance of the requirements for seafarers not covered by STCW shall be similarly accepted. While express cross-referencing of instruments adopted by other organizations is not generally accepted in the IMO, the approach adopted in the MLC,  appears to be to ‘mainstream’ and simplifies implementation at a national level by expressly recognizing these linkages and overlaps. This more pragmatic approach reveals relatively less concern for questions of institutional ‘jurisdiction’ and may stem from the tripartite nature of the ILO. In addition, the validity period is stated as a maximum38 and expressly accommodates a potentially shorter period under the current provisions of STCW. The MLC,  does not contain a model certificate. However, Standard A., paragraph , does require that each certificate must state “in particular” that: (a) the hearing and sight of the seafarer concerned, and the colour vision in the case of a seafarer to be employed in capacities where fitness for the work to be performed is liable to be affected by defective colour vision, are all satisfactory; and (b) the seafarer concerned is not suffering from any medical condition likely to be aggravated by service at sea or to render the seafarer unfit for such service or to endanger the health of other persons on board.

At the PTMC in  there was also a change in terminology to reflect evolving understanding regarding accommodation of persons with differing abilities and changing ideas about illness. The term ‘disease’, which is used in the Convention No.  adopted in , was replaced, as above in paragraph (b), with ‘medical condition’, a term thought to capture a broader range of conditions, such as obesity, that are now understood to be matters falling within health and safety concerns.39 The other area of debate at the PTMC related to the precise wording in paragraphs  and . As noted above, these two paragraphs provide exceptions to the requirement for a valid medical certificate. They reflect an important change from the existing ILO Convention No. 40 which is less restrictive, allowing a seafarer with a certificate that expires in the course of a voyage to continue until 38

Standard A., para. . Commentary to the PTMC , supra note , Comment  (on Regulation .), para. . This is the term used in the  ILO/WHO Guidelines, supra note , providing international guidance (taking into account of ILO, IMO, and WHO standards) to medical practitioners administering the examinations. 40 Convention No. , supra note , Art. , para. . 39



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the end of the voyage, potentially a very long period, and certainly longer then the next port where she or he could get an examination. Much of the debate related to the question of when and whether a seafarer could be expected to get a valid certificate within the three-month maximum provided for this flexibility.41 Thus the careful phrasing in both cases is “. . . the next port of call where the seafarer can obtain a medical certificate from a qualified medical practitioner”. As explained in the provisional records: . The Shipowner Vice-Chairperson suggested deleting the portion of the paragraph in square brackets “until the next port of call where he or she can obtain a medical certificate from a qualified medical practitioner”, as it might be difficult to find a qualified doctor in the next port of call. . The Seafarer Vice-Chairperson recalled that the deletion of this text would leave the provision so open-ended that it could not provide sufficient guarantees that medical certification would be sought. How an urgent medical case would be defined, and by whom, was not clear in this provision. Safeguards were needed to ensure that everyone on board was fit, and it was important that the exception not dilute the rule. Generally, the seafarer should be required to obtain a medical certificate in the next port of call. There was a grey area between the Shipowner group’s concerns and the protection of seafarers. . The Chairperson observed the text said “. . . the next port of call where he or she can obtain . . .”, meaning a port where a medical certificate from a qualified medical practitioner could be obtained.42

There was no conclusion reached in connection with paragraph (b) (urgent cases) where a seafarer can be allowed to sail if he or she is in possession of an expired certificate of “recent date”. This matter came up at the th ILC. 41

Committee No.  Report, supra note : . The Seafarer Vice-Chairperson said further clarification was still needed, particularly with reference to the limit of three months. Did this mean the “next” available port because it was probable that there could be access to other ports before three months? He expressed concern about diluting the original text. If a vessel did not have the minimum manning, and was in port, it was necessary to recruit a seafarer and ensure that he or she obtained medical certification at the next available opportunity. . The Government member of Denmark remarked that the proposed text to paragraph  was not speaking of new seafarers but of those who previously had a clean medical certificate. Three months provided flexibility and would normally be enough time for the seafarer to get back to his or her own country for the required medical certification from a known doctor. . The Chairperson proposed that the new wording for paragraph  as formulated by the Government member of Denmark be referred to the Drafting Committee and re-worded as Appropriate. . . . . The Chairperson said that the provision was clear, and that a medical certificate should be obtained at the next port of call. The time-limit was only in case this could not be done. With this explanation, the text was adopted.

42

Ibid.

title : minimum requirements



Although an amendment specifying the meaning of ‘recent’ was not adopted, the following view was recorded as to what it might mean: . The Government member of Chile withdrew his amendment, but stressed the need to specify  days as the valid time frame for “recent date”.43

It is notable that paragraph  requires permission from a competent authority while the triggering element in paragraph  is “during” a voyage. One practical question that arises, largely because of the transnational nature of the industry, is whether the examination of seafarers in their home country will be recognized by the flag State or whether they have to undergo an examination in the flag State. This is particularly a question for non-STCW seafarers. It is not entirely clear in the Convention text, but as a practical matter, a flag State can either require an examination by a practitioner that it recognizes or simply accept another State’s determination of ‘duly qualified medical practitioner’ for the purpose of the certificate. Another issue that might also arise relates to whether a ship’s doctor could issue a certificate. It seems likely that this would not be acceptable under the requirement for “full professional independence” in Standard A., paragraph . One area that will be increasingly important in the future relates to concerns about discrimination against persons with differing abilities or with various medical conditions. The MLC,  does not address this issue, except indirectly, as discussed above, in connection with fitness for the specific duties. However Standard A., paragraph , requires that seafarers have an opportunity for further examination by an independent medical referee in the case of a limitation imposed on the nature of the duties that the seafarer can undertake. Regulation .—Training and Qualifications This regulation has an important history and a unique place in the MLC,  as one of two regulations that has no Code (standards or guidelines) and the only one that does not envisage any in the future.44 It would be unwise to assert that a Code will never be adopted in an amendment, however, it is clear from the negotiating history that the intention in the Convention is 43

Committee of the Whole Report, supra note . See also Regulation .., Marine casualties, which has headings for Standard A.. and Guideline B.. but has no specific provisions for either. To a large extent, this issue has also been addressed by the IMO. See, for example, International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty) Investigation Code, adopted by the IMO Maritime Safety Committee (MSC), th session, – May . The PTMC in  decided that Regulation . should not be followed by any indication that its provisions could be the subject of standards or guidelines. 44

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to reduce the ILO’s role in establishing technical requirements for the training of seafarers, at least for those involved in traditional positions related to a ship’s navigation and operation. To the extent that seafarers have specific training related to the navigation of the ship, as opposed to, for example, training as a lifeguard, for ships that have swimming pools, or a medical practitioner, it was determined that this was a matter that should be formally ‘transferred’ to the IMO as the appropriate body to deal with the issue in a comprehensive way.45 This potentially unique transfer is, again, another example of the overall approach throughout the development of the MLC,  to mainstream these labour standards and to work cooperatively with the IMO to develop complementary rather than competing or conflicting international standards. The issue was explicitly considered and settled as follows at the  PTMC: Regulation .—Training and qualifications . The Chairperson read from a letter from the International Maritime Organization dated  June , addressed to the Director-General, as follows: The IMO Sub-Committee on Standards of Training and Watchkeeping (STW), at its th session (– January ), agreed that competence for ratings could be included within the STCW Convention and deferred the consideration of preliminary proposals for the development of competence for ratings until the outcome of the Preparatory Technical Maritime Conference of the ILO was available. In considering the advice of the STW Sub- Committee, the Maritime Safety Committee at its th session (– May ) recognized that currently there are no international standards for the competence of ratings other than those for able-bodied seamen. The Committee agreed that IMO is the appropriate body to deal with standards related 45 It was originally imagined that ships’ cooks’ training would also transfer. This concept was discussed as early in the process as the first Subgroup meeting in June  (Final Report, Tripartite Subgroup of the HLTWG (First Meeting), Geneva, – June , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ stwgmls/stwgmls-r.pdf):

. The secretary of the Seafarers’ group said that consideration should be given to the integration of the ILO training and certification instruments into the STCW Convention. What was important was that there would be no vacuum on training issues. Perhaps there was a need to include certain principles concerning training and certification in the new Convention in view of the role the ILO is afforded in the Articles of the IMO STCW  Convention. However, specific provisions, such as the training requirements for able seafarers and ships’ cooks might better be incorporated in the STCW Convention. . The observer from the International Maritime Organization said that he saw no reason why such issues as training of able seamen and ships’ cooks could not be brought into the STCW Convention. He noted, however, that the existing ILO requirements were not very detailed, and that if such matters were included in the STCW Convention, it would be necessary to develop detailed provisions on the competencies required.

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to competences for ratings, except for the ship’s cook, and instructed the Secretariat to convey this decision to the ILO for consideration by the PTMC . . . . There was some discussion about the advisability of agreeing to transfer the entire responsibility for training and qualifications of seafarers to the IMO, or whether the services of the joint IMO/ILO Training Committee should also be involved, as proposed by the Shipowners. Clear instructions needed to be given to the IMO and a smooth transition phase ensured. . Consensus emerged that, as a consequence of the contents of the letter from the IMO reproduced above, all references to training and qualifications under Regulation . (with the exception of those concerning ships’ cooks) could be dealt with by the IMO, through its Sub-Committee on Standards of Training and Watchkeeping, taking the provisions of the STCW Convention and the ISM Code into consideration. The involvement of the existing IMO/ILO Training Committee was appropriate, in order only to ensure a smooth transition from one organization to the other, so that no seafarer could be deprived of access to arrangements governing training and qualifications. It was also remarked that Convention No.  (), concerning the certification of able seamen, could not be disposed of without proper consideration.46

As the foregoing extract indicates, the IMO did not agree to take on the task of developing standards for the training of ships’ cooks. That aspect remains with the ILO and is consolidated in the MLC,  as Regulation .. However, it is a matter that is still in need of development since the MLC,  does not provide detailed training standards nor does it require certification of ships’ cooks. Regulation . explicitly recognizes other applicable training requirements, such as those under the STCW Convention, as amended, and provides for transitional arrangements for countries that have ratified the Certification of Able Seamen Convention,  (No. ). At the time the MLC,  was adopted the review process for the STCW had not yet begun, and the extent to which training would be required for the able seafarer category, or the future name of that category, was uncertain. Regulation ., paragraph , provides that, even though the  Convention is revised by the MLC,  under Article X (and therefore automatically denounced), it will remain binding for countries that have ratified it until mandatory provisions have been adopted by the IMO and entered into force, or five years have passed since the MLC,  has come into force.47 The Manila Amendments to the STCW have developed 46 47

Committee No.  Report, supra note . Report I(A) for the th ILC, explains at Note  (Regulation .), para. : Paragraph  paves the way for the transfer to the IMO by providing that training and certification in accordance with the instruments adopted by the IMO shall be considered as meeting the generally worded requirements of the Regulation. In the comments just

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training for categories of ‘able seafarer deck’ and ‘able seafarer engineer’ which should be mandatory by .48 It should be noted that once the MLC,  enters into force, the ILO would no longer have a convention that is open to ratification dealing with the training to attain the status of able seafarer. However, the term remains relevant for the ILO in connection with international minimum wage negotiations though the ILO Joint Maritime Commission. It is also retained in the MLC,  under Guideline B. dealing with wages. Perhaps the most complicated aspect of this regulation is considering what is expected with respect to training of the wider group of non-STCW seafarers. Does Regulation . require that the relevant national maritime labour (competent) authorities supervise training for all positions or qualifications on board a ship, for example, on cruise ships, seafarers that have duties as hair stylists, sport instructors, or retail clerks? The answer seems to be no.49 To the extent that there are national requirements that apply for training or licensing of such personnel, then shipowners must make sure that these requirements are met by seafarers on the ship. However, there is one basic requirement. All seafarers must have successfully completed training for personal safety on board a ship (a basic STCW requirement as well). As explained at the th ILC, “The current provision reflects the advice of the IMO on the appropriate wording to referred to, the IMO has indicated that, at its th Session (May ), the Maritime Safety Committee (MSC) approved the establishment by the Standards of Training and Watchkeeping (STW) Sub-Committee of an intersessional correspondence group under the coordination of the United Kingdom to facilitate the development of standards of competence of ratings. The STW Sub-Committee also proposed that the LO should consider the legal status of those countries that have ratified the Certification of Able Seamen Convention,  (No. ). Accordingly, if the IMO provisions are not sufficiently advanced at the time of the adoption of the present Convention, it might be prudent to add an appropriate transitional provision to this Regulation to take account of Members which have ratified Convention No. . Otherwise, the consolidated Convention would, by providing for the ipso facto denunciation of the revised Conventions, have the effect of diminishing existing protection during the interval preceding the adoption of appropriate arrangements under IMO instruments. Accordingly, the following paragraph  might be considered for inclusion at the end of the Regulation . . .. See: Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/rep-i-a.pdf. 48 Manila Amendments, supra note , Regulation I/: . Able seafarer deck means a rating qualified in accordance with the provisions of regulation II/ of the Convention; . Able seafarer engine means a rating qualified in accordance with the provisions of regulation III/ of the Convention; . . . 49

See Report I(A), supra note , Note , para. .

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ensure that it is consistent with the STCW. However, in its comments the IMO has noted that, unlike the proposed Convention, the STCW does not allow for substantial equivalence, a matter which may be important from the perspective of the ILO oversight process”.50 In fact the question of substantial equivalence is also not relevant under the MLC,  since under Article VI, paragraph , substantial equivalence is not available for matter requirements set out in regulations. Regulation .—Recruitment and Placement Regulation . and the related Code, Part A, Standards, and Part B, Guidelines are among the more complex in the Convention. This is partly because they envisage various scenarios and forms of State responsibility. Although Regulation . and the Code primarily consolidate a relatively modern convention, the Recruitment and Placement of Seafarers Convention,  (No. ), which was directed to States that have labour-supplying responsibilities, it also includes an important development in that it now includes flag State responsibilities. In addition, it contains provisions related to the regulation of three forms of seafarer recruitment and placement services: public, private, and union operated services. This regulation is also complicated because, even though it is focused on the issues under Convention No. , aspects of its wording draw on concepts from a much earlier convention, the Placing of Seamen Convention,  (No. ). The  Convention created an obligation to organize and maintain an efficient and adequate system of public employment offices for finding employment for seamen without charge. It was adopted at a time when most maritime States had merchant marines, publicly-owned shipping services. These offices or registries were to be operated by governments either alone or in partnership with unions. The convention adopted in  did not revise the  Convention, instead it was directed to the prevention and/or regulation of a new entity— private recruitment and placement services for seafarers—an outgrowth of the internationalization of the sector. By the time the MLC,  was adopted, relatively few countries or unions operated these publically-operated employment registries as a way for seafarers to obtain employment. Further, although Convention No.  is in force, it has only had ten ratifications.51

50

Ibid., Note , para. . At the time of the PTMC (), only nine countries had ratified (Croatia ratified in ): Bulgaria; Finland; France; Ireland; Morocco; Nigeria; Norway; the Philippines; and the Russian Federation. 51

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Seafarers consider the Convention to be very important because of their concern about the exploitation of seafarers employed through the largely unregulated ‘middle person’ services. These concerns were expressed at the th ILC in response to an amendment that would have narrowed the application of these provisions because of difficulties regarding the potential impact of the regulation on more general recruitment services that only occasionally deal with seafarers (e.g., seafarers that are entertainers and have other positions on cruise ships).52 The main concern is that not only do some of these services engage in abusive practices such as ‘blacklisting’ or charging seafarers large fees for access to employment, they also created another barrier or entity between the seafarer and his or her employer, the shipowner, thereby creating the problem of ascertaining liability and responsibility. Convention No. , while an important step forward, is primarily directed to countries where these services are located, that is, countries with labour- supplying responsibility, and not necessarily the flag States and shipowners that employ the seafarers. The MLC,  provisions represent a significant development in addressing these problems. A key strategic point that is not explicitly set out in Regulation . is the enforcement of flag State and labour-supply responsibilities under Regulation . at the shipboard level. The use of licensed, certified, or regulated private recruitment and placement services by shipowners is also included in the list set out in Appendices A-I and A-III of the MLC,  as a matter to be inspected, and also certified by the flag State, for ships that require certification, and matters subject to port State control. The seafarers view was that such private services, if they exist, should be certified.53 Indeed they sought to 52

Committee of the Whole Report, supra note ,

. The Worker Vice-Chairperson drew the Committee’s attention to the stated purpose of Regulation ., which was “to ensure that seafarers have access to an efficient and well regulated seafarer recruitment and placement system”. The issues dealt with in this regulation were of major concern to seafarers. While passenger ships certainly employed seafarers who provided service to passengers, defining who among them also had duties related to the safe operation and navigation of the ship was virtually impossible. The amendment sought to limit the scope of application of the regulation of private recruitment and placement agencies. That was incompatible with the Recruitment and Placement of Seafarers Convention,  (No. ). The amendment would permit the continued exploitation of seafarers who had to pay large sums of money to find a job and would encourage the criminal activity of agencies that lured people into paying for jobs that did not even exist. The amendment, if adopted, would exclude precisely those areas that most needed to be regulated. The Office text aimed to help solve such problems. 53

Although mandatory certification of services was not completely achieved in the MLC, , it is a logical ‘market response’ to the provision that some services will move to certification.

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discourage shipowners from using services in countries that do not ratify the MLC, . This inclusion of a flag State responsibility was seen as posing difficulties for flag States as they often had no way of verifying the situation in other countries where seafarers were recruited. This is especially true if the country where the seafarer is recruited has not ratified the MLC, . Several flag State requested a detailed explanation by the Secretary-General at the Intersessional Meeting in . Figure , reproduced as an appendix to the Report provided for the th ILC, clarifies flag State responsibilities in the area of recruitment and placement.54 See, for example, the certification offered by Det Norske Veritas (DNV), Revised “Standard for Certification of Crew Manning Offices, Private Recruitment and Placement Services— .,” (October ), available at http://www.dnv.com/industry/maritime/servicessolutions/ statutoryservices/mlc/CMO_Certification.asp. 54 Report I(A), supra note , Appendix F. For an even simpler practical explanation of this from a flag State inspector perspective, see the Guidelines for Flag State Inspection, supra note , which provides in Chapter , pp. –: How to check the basic requirements – Check the national web sites of the competent authority regarding the licensing or regulation of seafarer recruitment and placement services (manning agencies). – Check documentation or other information to allow the inspector to ascertain the following: . Direct engagement Seafarers were recruited and engaged by the shipowner. If this is the case, this fact should be noted and no further action is necessary. . Recruited through a public service Seafarers were engaged through a public seafarer recruitment and placement service in either the flag State or in Guidelines for flag State inspections under the MLC,  another State to which the MLC, , applies. If this is the case, this should be noted and no further action is necessary. . Recruited through a private service (or a service operated by a seafarers’ organization) in a country that has ratified the MLC,  A. If the seafarers were engaged through a private seafarer recruitment and placement service in the flag State, check for documentary evidence confirming that the service concerned is operating in accordance with the national laws or regulations or other measures implementing the MLC, , requirements. Where the supervision of such services is entrusted to another national authority in the flag State, a statement by that authority that the service has been found to be operating in accordance with the relevant law is sufficient for this purpose. B. If the seafarers were engaged through a private seafarer recruitment and placement service in another State that has ratified the MLC, , no action need be taken unless the inspector has received a clear indication that basic rights have been violated (such as charging seafarers for use of services). . Recruited through a service that is based in a country that has not ratified the MLC, 

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Figure . Inclusion of the area of recruitment and placement in Appendices A-I and A-III . A question has been raised by the Government representative of Japan concerning the inclusion, in the lists of areas to be inspected, of a reference to the use of recruitment and placement services. Is it appropriate to include this area for flag state inspection, bearing in mind in particular that, in the relevant Regulation (.), the obligations expressly placed on flag States are limited to regulating their shipowners in connection with recruitment services based in non-ratifying countries (Regulation ., paragraph )? And, if the area is included, what should be the scope of the responsibility of a Member with respect to ships that fly its flag? . It should be noted that the Regulations in the draft Convention are normally expressed as rights that are generally applicable to all seafarers. With respect to minimum age for example, the flag State inspectors must ensure that the requirements of the Convention under Regulation . are observed in the case of all seafarers on ships that fly their country’s flag. . However, the basic obligations concerning recruitment and placement services have been worded to take account of their special nature. While the obligation under paragraph  of Regulation . is general in nature, the obligations under paragraphs  and  are linked to the place where the recruitment and placement services concerned are based. In this connection, there are three possible situations to be considered: A. Shipowners using private recruitment and placement services based in the Member’s own territory B. Shipowners using recruitment and placement services on the territory of Members ratifying the Convention C. Shipowners using recruitment and placement services based in countries that have not ratified the Convention . The situation under A above is covered by paragraph  of Regulation .: “Seafarer recruitment and placement services operating in a Member’s territory shall conform to the standards set out in the Code”. This is an obligation on each Member as such, irrespective of the capacity in which it is acting. If therefore recruitment and placement services were included on the list of areas to be inspected, the obligation would be relevant in the context of the

If the seafarers were engaged through a seafarer recruitment and placement service based in a country that has not ratified the MLC, , check documentation showing that the shipowner has, as far as practicable, verified through a proper system that the service is operated consistently with the MLC, . This system may, for example, take account of information collected by the flag State, as well as any audits or certifications concerning the quality of services operating in countries that have not ratified the MLC, . Other evidence which shipowners could provide might be checklists against the MLC,  requirements or an RO [recognized organization] audit of a recruitment and placement service based in a country that has not ratified the MLC, .

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flag state inspections of the Member, which could of course rely on the supervision of the recruitment and placement services that have already been carried out by the Member. . The situation under C above is covered by paragraph  of Regulation .: “In respect of seafarers who work on ships that fly their flag, Members shall require that shipowners who use seafarer recruitment and placement services that are based in countries or territories in which this Convention does not apply, ensure that those services conform to the requirements set out in the Code.” This inspection would essentially relate to ensuring that the shipowners of the flag state have a proper system for verifying the conformity of the manning agencies concerned with the Convention’s requirements. . The situation under B is covered implicitly by the fact that the obligation under paragraph  is limited to countries that have not ratified the Convention. The flag State would therefore not be expected to carry out any inspection in this situation unless of course they had received clear indications that the basic rights in paragraph  of the Regulation were not being observed with respect to seafarers on the ship that was being inspected.

The wording of Regulation . and the Code require a close reading to determine the nature of the obligations regarding the services to be regulated. Both the purpose clause and Regulation ., paragraph , which refer to all seafarers having access to efficient and well-organized seafarer recruitment and placement services, hearken back to the  Convention, and may, on first reading, appear to imply an obligation to establish these services. However, it is clear from the Provisional Records, and on a close reading of the text, that there is no obligation on a State to do so. There is, however, an obligation to regulate or operate services in accordance with Standard A. and Guideline B. where such services exist. This is clear under Article V, paragraph , which provides that “Each Member shall effectively exercise jurisdiction and control over seafarer recruitment and place services, if these services are established in its territory” (emphasis added).55 This conditional approach is also found in the wording in Standard A., paragraphs  and , which provide (emphasis added),

55 See Chapter , p. , for the preliminary draft of paragraph  (then paragraph ) of Article V considered by the HLTWG at its meeting in June . See: Consolidated Maritime Labour Convention (First Draft) Articles and Regulations, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/ sector/techmeet/twgmls/twgmls-r-.pdf. As a result of concerns voiced by governments of countries where private services do not exist as to whether this created an obligation to develop these services, and by the Seafarers’ Group which did not want to encourage the proliferation of these services, a conditional ‘where’, and finally ‘if ’, was introduced and the latter phrase removed to avoid confusion with the flag State obligations under Regulation .. The Commentary to the PTMC , supra note , describes the obligation, which was accepted at both the PTMC and the th ILC, as follows:

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“. Each Member that operates a public seafarer . . . . Where a Member has private . . . ” Paragraph  also makes the same point in negative terms: . Nothing in this Standard or Regulation . shall be deemed to: (a) prevent a Member from maintaining a free public seafarer recruitment and placement service for seafarers in the framework of a policy to meet the needs of seafarers and shipowners, whether the service forms part of or is coordinated with a public employment service for all workers and employers; or (b) impose on a Member the obligation to establish a system for the operation of private seafarer recruitment or placement services in its territory.

It is also equally clear that Regulation . does not require that shipowners use such services. As pointed out in the Report provided to the th ILC: . Paragraph  of the Regulation obliges flag States to require shipowners using recruitment and placement services that are based in countries where the Convention does not apply to ensure that those services conform to the requirements in the Code. It should be noted that this Regulation and Standard would not, however, require that a shipowner use a recruitment and placement service, but rather that, if a service is used, it must be licensed, or certified or regulated in accordance with the Convention.56

As mentioned above, Standard A. addresses three forms of seafarer recruitment and placement services. It includes certain operating practices for public services. This created some difficulties for governments in that it was considered problematic to have one department of government regulate or licence another department. This led to a bifurcation in the Convention text. Regulation ., paragraph , states simply that, “Seafarer recruitment and placement services operating in a Member’s territory shall conform to the standards set out in the Code”. The first three paragraphs of the Code, Standard A., establish three different regulatory streams. Paragraph  deals with public seafarer recruitment and placement services in countries “that operate” these services. There is a basic mandatory requirement that the Member “ensure that the service is operated in an orderly manner that protects and promotes seafarers’ employment rights as provided in this Convention”. Aside from general provisions in paragraphs  Comment  (on Article V) . Paragraph , relates essentially to the complementary responsibilities of Members from which the world’s seafaring workforce are drawn. It requires Members to exercise “effective jurisdiction and control” over seafarer recruitment and placement services, if these are established in its territory. This lays the foundation for the licensing and, if agreed, a certification system for private recruitment and placement services that is proposed in Title  of the Convention. 56

Report I(A), supra note , Note  (Regulation .), para. .

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

and  relating to supervision and a complaint mechanism, the details of what is considered as an ‘orderly manner’ is elaborated in Guideline B., paragraph , as “should consider”. As a guideline these provisions must be given due consideration, if applicable. Paragraph  of Standard A. provides the main obligation with respect to private services “where” these operate in the Member’s territory. It requires that the State establish “a standardized system of licensing or certification or other form of regulation”. The details of this system, which can only be changed after consultation with shipowners’ and seafarers’ organizations, are set out in Standard A., paragraph . The third form of service was a matter that arose only at the th ILC in  and provoked significant discussion.57 It relates to the continuing practice in some countries for example, the United States of America, of using ‘hiring halls’ operated by the relevant Seafarer’s Union. . The Worker Vice-Chairperson pointed out that Standard A., paragraph (a) [now (a)], was only applicable to private recruitment services. Hiring halls were neither private companies, nor manning agencies. Hiring halls were governed by national labour law and were most akin to public agencies, which were exempt 57 With respect to the introduction of an amendment to include what is now paragraph  of Standard A.. See: Committee of the Whole Report, supra note :

. The Government member of Canada supported the amendment. As part of its preparations to implement the proposed Convention, his Government had examined issues related to national recruitment and placement systems. Canada did not supply a large number of seafarers to other countries, but a small number of organizations did provide placement services in an attempt to alleviate seafarer shortages. Cooperation between shipowners and seafarers’ trade unions in providing this service was a normal practice in North America. . The Government member of the United States supported the amendment, stating that it went to the heart of the United States maritime employment system that sought to guarantee seafarers’ social rights. The first amendment to the United States Constitution guaranteed freedom of association. The maritime industry in the United States was largely unionized and hiring halls were a product of collective bargaining. They were run by trade unions and regulated by national legislation. Employers paid for the operation of the halls and the complaints procedure was subject to the national Labour Relations Act. These hiring halls had been in existence for decades and had proved to be effective and efficient. . The Government member of Argentina supported the amendment. In her country, there were no private placement agencies for seafarers. Her country was a signatory to Convention No.  and, in meeting its obligations to that Convention, had established a placement centre through a collective agreement between workers and employers. Regulations designed for private agencies could not easily be applied to services provided by trade unions and shipowners, who, as unions and employers, had other responsibilities in addition to placement. . The Government member of Australia supported the amendment of the Workers’ group as subamended by the Employers’ group, since it provided the flexibility for workers and employers to work together without regulation by the Government.



chapter seven from this provision. Hiring halls were however, operated through the collective bargaining process guaranteed by Article III. The amendment was limited to legally recognized trade unions and shipowners located in the Member whose flag a ship flies. The relevant recruitment and placement services did not supply seafarers to all flags of the world. This constituted a major difference from private agencies working for profit. The issue of opening a door to exemptions, raised by the Government member of the United Kingdom, needed some thought, especially in the light of “yellow unions”. [58] However, the amendment only covered legally recognized maritime trade unions. The speaker reminded the Committee that unless this issue were [was] resolved, it could lead to ratification difficulties for the two countries in question.59

Many countries were concerned whether the wider definition of seafarer under the MLC,  meant that they had to regulate all employment services, not just those specializing in seafarer recruitment. This question really relates to the definition of seafarer recruitment and placement services. It will be recalled that Article II, paragraph , defines this term as follows: (h) seafarer recruitment and placement service means any person, company, institution, agency or other organization, in the public or private sector, which is engaged in recruiting seafarers on behalf of shipowners or placing seafarers with shipowners.

The issue of definition arose at the PTMC in : . The Shipowner Vice-Chairperson stated that the issue was whether certain workers on ships, such as performing artists, scientists and doctors, were to be included in the scope of application of Regulation .. The issue especially concerned passenger vessels and those on which scientific activities were conducted or entertainment provided. . The Seafarer Vice-Chairperson pointed out that if such persons were recruited directly, there was no problem as they were unlikely to be forced to accept a  per cent agency fee, as many seafarers had to. The aim was to protect persons 58

Ibid.,

. The Worker Vice-Chairperson drew the Committee’s attention to the stated purpose of Regulation ., which was “to ensure that seafarers have access to an efficient and well regulated seafarer recruitment and placement system”. The issues dealt with in this regulation were of major concern to seafarers. While passenger ships certainly employed seafarers who provided service to passengers, defining who among them also had duties related to the safe operation and navigation of the ship was virtually impossible. The amendment sought to limit the scope of application of the regulation of private recruitment and placement agencies. That was incompatible with the Recruitment and Placement of Seafarers Convention,  (No. ). The amendment would permit the continued exploitation of seafarers who had to pay large sums of money to find a job and would encourage the criminal activity of agencies that lured people into paying for jobs that did not even exist. The amendment, if adopted, would exclude precisely those areas that most needed to be regulated. The Office text aimed to help solve such problems. 59

Ibid.

title : minimum requirements



who were not otherwise protected in a mostly unregulated industry operating in a global environment. If such workers were being exploited at sea for long periods and were not protected, then the recommended draft should apply to them. The problem was defining an exception without diluting the regulation. . After some debate about the necessity of distinguishing between specific seafarers’ jobs and other jobs, or whether any individual working on a ship was a seafarer, the Chairperson reminded the Committee that the definition of seafarer was set out in Article  (“any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”).60

This issue emerged again at the th ILC.61 In part, this controversy reflects the problem that the regulation of private employment agencies in many countries would not necessarily be a matter addressed by the maritime authority. . The Government member of Germany introduced amendment D., submitted by the Government members of Australia and Germany, to insert the words “whose main purpose is to carry out seafarer recruitment and placement” after the words “operating in its territory” in Standard A., paragraph . The amendment addressed two concerns. First, Standard A., paragraph , should not be imposed on placement agencies whose main purpose was not the recruitment of seafarers, but of workers for all industrial sectors. Second, due to the wide definition of “seafarer”, if a recruitment and placement agency placed a hairdresser or a dancer on board a ship, the agency would be required to comply with Standard A.. This was problematic. Flexibility was required. In response to Workers’ concerns regarding a narrowing of the scope of coverage that would exclude many seafarers, this amendment related to recruitment and placement agencies, not to seafarers. His delegation was flexible on the wording but called for support as regarded the purpose of the amendment.

The solution is the current wording in Standard A., paragraph  (emphasis added): . Where a Member has private seafarer recruitment and placement services operating in its territory whose primary purpose is the recruitment and placement of seafarers or which recruits and places a significant number of seafarers, they shall be operated only in conformity with a standardized system of licensing or certification or other form of regulation. This system shall be established, modified or changed only after consultation with the shipowners’ and seafarers’ organizations concerned. In the event of doubt as to whether this Convention applies to a private recruitment and placement service, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned. Undue proliferation of private seafarer recruitment and placement services shall not be encouraged.

A further question that was not specifically addressed, but may arise, is whether direct recruitment by a shipowner or its subsidiary company is considered a 60 61

Committee No.  Report, supra note . Committee of the Whole Report, supra note .



chapter seven

private seafarer recruitment and placement service. A related question is whether a clear line can be drawn between a local ‘liaison person’, who may be an employee (or more likely a related or subsidiary corporation) of the shipowner, and a person who is ‘acting on behalf of the shipowner’ to recruit seafarers (who would then be a private service that should be regulated under the MLC, ). The extracts of comments on Regulation . reproduced above, particularly the Seafarers’ Group’s comments at the PTMC concerning the applicability or not of substantial agency fee,62 support the view that the Convention does not prevent shipowners from directly recruiting seafarers. The provisions of Regulation . are directed at discouraging shipowners from using private recruitment and placement services (where they exist in a country) that are not regulated. Of course the more practical question of whether a shipowner is legally allowed to recruit directly in a particular country, where there may also be regulated services, would be a matter for national law regarding activities that can occur, or enterprises that can operate, in its territory. There may, however, be several scenarios that could affect this view. For example, a shipowner may be recruiting seafarers with whom it has come into direct contact, perhaps because they have previously served on one of its ships or because they applied directly for a job or were recommended to the shipowner by another shipowner. These are likely to be considered legitimate cases of direct recruitment.63 Alternatively, a shipowner may be recruiting seafarers through a local liaison person or enterprise that is engaged in recruiting seafarers on behalf of a shipowner or placing seafarers with the shipowner, as a service provided to the shipowner or more than one shipowner. Such a person or enterprise might be considered as falling within the definition of a recruitment and placement service in Article II()(h). Another potentially challenging development for some governments is the new64 requirement out in Standard A., paragraph (c)(vi) respecting the 62

Committee No.  Report, supra note , para. . If the flag State has ratified the MLC, , there should be no problem about substandard treatment of seafarers. If the flag State has not ratified, the labour supply country should advise its seafarers about possible problems of signing on to a ship flying the flag of a country that has not ratified the Convention (Standard A., para. ). 64 Standard A., paragraph (c)(vi) is based on Article , paragraph (f), of Convention No. . At the PTMC in , this provision was further developed to include the phrase relating to failure by the relevant shipowner (that is, the client of the service). This change in wording was not discussed at the th ILC. At the PTMC this provision, the then numbered paragraph (c)(vii), was adjusted to contain the phrase ‘or the relevant shipowner under the seafarers’ employment agreement’. (The phrase had been placed in ‘curly’ { } brackets for consideration by Technical Committee  of the PTMC, an approach which the Officers of the HLTWG had proposed to distinguish between proposals for wording that were considered controversial and matters that needed discussion and a decision. Curved or soft brackets with broken underlining, that is, {xxxx}, were used to indicate proposals that had not yet been discussed (which might or might not 63

title : minimum requirements



operation of private recruitment and placement services. Paragraph  sets out the matters that must be addressed in connection with private services through laws, regulations, or other measures. Paragraph (c)(vi) provides that a Member: (vi) establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them.

It should be noted that the provisions in Standard A., paragraph , do not require that the Member establish the specific system of protection. Rather it calls on States to ensure that private recruitment and placement services (if any) establish protection by way of insurance or an equivalent appropriate measure. In connection with paragraph (c)(vi), a question might arise as to whether it means that if a shipowner fails to pay the salary of a seafarer, then their recruitment and placement service has the obligation to pay the salary on behalf of the shipowner. The MLC,  does not explicitly address this point however, it could involve a country requiring that the service have insurance or other measures for its own failure and also that the service ensure some form of protection vis-à-vis failures by its clients. With respect to the meaning of the term ‘monetary loss’, the Convention does not specify the scope of that term, which covers any financial loss suffered, particularly due to the non-payment or insufficient payment of the seafarers’ entitlements (e.g., unpaid wages) and costs incurred by the seafarer because of the shipowner’s non-compliance (e.g., repatriation costs). The PTMC records do not set out the reasons for the acceptance of this change in wording, but it may be linked to the development of views on this issue after  and the adoption of Convention No. . In particular, in May , a Tripartite Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers adopted a “Consensual Statement of the meeting of experts”.65 One of the principles set out in the Consensual Statement was:

be controversial).) The text had been initially proposed at a HLTWG meeting in Nantes. There appears to have been no concerns expressed about inclusion of this phrase when it was adopted by the PTMC as the report of the meeting states only that: “The Committee agreed to take out the curly brackets in paragraph , subparagraph (c), clause (vii)”. Committee No.  Report, supra note , para. . 65 Final Report, Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers, Geneva, – May , ILO Doc. No. MEWLCS//, available at http://www.ilo.org / public / english /dialogue /sector /techmeet /mewlcs /mewlcs-.pdf, para. .



chapter seven

. In States where manning agencies are legally established, the manning agencies shall be made jointly and severally liable with shipowners, regardless of their domicile, for breach of the contract of employment and/or articles of agreement.

There may be questions about the potential scope of the liability in light of the many provisions in the MLC,  where shipowners are already required to provide some form of insurance or other financial guarantees to cover potential monetary losses, for example, repatriation under Regulation . (repatriation), Regulation . (shipowners’ liability in the event of illness, etc.), and Regulation . (ship’s foundering). As noted above, the meaning of the term ‘monetary loss’ is not defined. However, a service might be entitled to rely on a duty of diligence on the part of the seafarer allowing a restriction to several months of unpaid salary, for example.66 The requirement in Standard A., paragraph (c)(vi), could also be seen as an indirect means of achieving the key objective of a level playing field for quality shipowners. It should discourage recruitment and placement agencies from providing their services to shipowners that are a poor risk and are likely to fail to meet the requirements of the MLC,  and their obligations under seafarer employment agreements. Finally, it should be noted that paragraph  of Standard A. contains an important requirement, derived from the Merchant Shipping (Minimum Standards) Convention,  (No. )67 that is more generally applicable than the topic of Regulation .. It requires that ratifying countries advise their nationals about the possible problems of signing on to work on a ship of a State that has not ratified the Convention. Conclusion This chapter has considered Title  which comprises the first four regulations and related Code of MLC, . It has explored the linkages between these provisions for example in connection with minimum age, and the provisions in 66 A shipowner’s default with respect to a seafarer’s employment agreement and the requirements of the Convention, including payment of wages, are matters that can be the subject of an inspection and a complaint in the context of both flag State inspections and port State control. This means that, in addition to the existing remedies relating to maritime liens, a ship could also potentially be detained for nonpayment of wages or other failures. This suggests that, even in the absence of a national limitation relating to ‘monetary loss’, a situation in which the recruitment and placement services could be held liable for an extended period of default on the part of a shipowner seems unlikely. See: Final Report, Preparatory Tripartite MLC,  Committee, , ILO.Doc. No. PTMLC// available at: http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm, paras –. 67 Merchant Shipping (Minimum Standards) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. .

title : minimum requirements



other Titles, particularly Title  on compliance and enforcement, and the question of fundamental rights, especially in connection with ship-level enforcement actions. The requirements in Title , in particular, also have a significant overlap with the STCW Convention. The extracts in this chapter demonstrate that there was a conscious policy of integration—even to the point of transferring responsibility to another competent UN organization—to avoid conflicting requirements in international agreements. The examination in this chapter has also shown the development and modernization of provisions found in earlier maritime labour conventions.

chapter eight TITLE 2: CONDITIONS OF EMPLOYMENT

General Introductory Note1 Chapters  to  examine each of the regulations and associated Code provisions in Titles  to  of the MLC,  highlighting points of particular interest or difficulty. The annotated version of the Convention (see Appendix ) provides additional information regarding the ILO conventions and recommendations that are consolidated in the MLC, . Additional interpretive resources2 for the MLC,  include the Article  Report,3 which provides supplementary information on the expectations of the ILO’s international supervisory system4 regarding ratifying States’ obligations to implement the Convention. The Guidelines for Flag State Inspections under the Maritime Labour Convention, 5 (hereinafter Guidelines for Flag State Inspections) and the Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention, 6 (hereinafter Guidelines for Port State Officers) address the

1

This introductory note is included in Chapters  to  as an aide-memoire to summarize key information about the structure and approach adopted in the MLC, . Chapters  and  explore these issues in detail. 2 See Chapter  at p. . 3 The Article  report form for the MLC,  can be found in Appendix IV of ILO Doc. No. GB.// (Rev) (ILO, Governing Body, Reports of the Committee on Legal Issues and International Labour Standards: Second report: International labour standards and human rights, Geneva, March ), pp. –, available at http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm. 4 See Chapter . 5 See also Chapter , pp. –, on the role of these guidelines in implementing the MLC, . International Labour Office, Guidelines for Flag State Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www.ilo.org/wcmsp/groups/public/ed_norm/-normes/documents/publication/wcms_.pdf. 6 International Labour Office, Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www .ilo.org/wcmsp/groups/public/-ed_norm/-normes/documents/publication/wcms_.pdf. These guidelines are called for in the MLC,  (Guideline B.., para. ), and both guidelines are the result of resolutions adopted by the th ILC in  when it adopted the Convention (See: Reports of the Selection Committee, Second Report, ILC, th (Maritime Session), Geneva, , ILO Doc. No. PR– (Rev.), pp. –/–/ and –/–/). Initially it was thought that the port State control guidance would be adopted as a priority, with adoption of flag State



chapter eight

more practical implementation and matters, such as ‘how to check’ for compliance, at the shipboard level, with national legislation or other measures implementing the MLC, . This chapter examines the regulations and the provisions in Part A (Standards) and Part B (Guidelines) of the Code of the MLC,  in Title . As discussed in Chapter  of this book these provisions are organized in a topical and vertically integrated manner with each Title comprising a number of regulations and the associated Parts A and B of the Code setting out more detailed requirements to implement the relevant regulations.7 Each regulation has a purpose clause indicating its objective in ‘plain language’.8 In turn, these regulations and the Code provisions set out more detailed specific implementation of the social and employment rights (and related obligations) generally set out in Article IV and the implementation and enforcement obligations under Article V.9 The provisions in the Titles are, as a matter of international law, directed to States, primarily as flag States, with an international obligation to regulate conditions on board ships that fly their flag. As applicable, regulations are also directed to coastal or port State or States that have a labour-supplying interest and require that the State take implementing action at the national level. It will be recalled that under Article IV, paragraph , unless specified otherwise States, can use various approaches to implement these obligations, including adopting legislation or through collective bargaining agreements or other measures.10 The provisions in Titles  to  and, in part, Title  are ‘regulatory’ in that they set specific minimum requirements for working and living condition for seafarers, primarily on board ships.11 In this way the Convention operates at two

guidance following. However, it became clear that the flag State guidance needed to be developed first as it provided the basis for port State control. 7 Regulations, like articles, are not subject to amendment using the more rapid tacit acceptance procedure in Article XV, nor are they subject to substantial equivalence under Article VI. Thus any analysis of the obligations, particularly in connection with exercising flexibility, must carefully consider the obligations in the regulations relative to the mandatory obligations in Parts A and B of the Code that must be given ‘due consideration’. Chapters  and  discuss the structure of the Convention in detail, as well its effect on future approaches to amendments (Chapter ). 8 Although the approach to interpretation of the application of the concept of substantial equivalence is not yet settled, presumably this would be one source to consider when evaluating whether a measure is ‘conducive’, as required under Article VI, paragraph (a), of the ‘general object and purpose’ of the provision or provisions. See Chapter , footnote . 9 As discussed in Chapter , the articles mainly comprise general statements of principles and rights and obligations directed specifically to ratifying States. 10 See Chapter , pp. –. 11 It must also be recalled that Article II of the Convention regarding the definitions of seafarer and ship represents a fundamental change in the scope of the Convention, which in turn affects national implementation. A much wider group of workers, indeed all persons working at sea with

title : conditions of employment



levels: the State obligation to implement Convention obligations and regulate shipowners and other actors, and through the enforcement and compliance system in Title  where they pierce international law’s ‘corporate veil’ of the State to affect the actors that essentially ‘perform’ the majority of the Convention’s obligations. Failure at the shipboard level can, of course, also be evidence of a failure on the part of a State to implement or effectively implement its international obligations to regulate the issue in question. Thus the two levels are intertwined and mutually re-enforcing. It must also be emphasized that there is significant interaction among the provisions of these Titles, particularly in connection with Regulation . on seafarers’ employment agreements, which, especially from a ship inspection perspective, contain aspects that cuts across most Titles. The two Appendices in Title  list  areas that are drawn from all Titles. These areas are subject to certification for some ships and inspections under port State control. Under Title , flag States will need to address these areas in developing the document12 regarding their national requirements while shipowners must address them in the document13 that they are to prepare. Both documents must14 be carried on board ships  GT and over engaged in international voyages or voyaging from or between ports in another country (other than the flag State). Linkages to these provisions will be noted when they arise in each of the regulations. Overview of Title —Regulations .–. and the Code, Parts A and B Title  comprises regulations and the related Code Part A, Standards, and Part B, Guidelines on eight topics: – – – – –

Regulation .—Seafarers’ employment agreements Regulation .—Wages Regulation .—Hours of work and hours of rest Regulation .—Entitlement to leave Regulation .—Repatriation

very few exclusions for categories of ships, are now covered as ‘seafarers’ under the MLC,  provisions. Further, when a country has made a determination under Article II, paragraph , in connection with ships below  GT that do not go on international voyages, the national law or other measures would still need to comply with the regulations. 12 Appendix A-II—Declaration of Maritime Labour Compliance, Part I, see p.  of this book. 13 Appendix A-II—Declaration of Maritime Labour Compliance, Part II, see p.  of this book. 14 Regulation .., para. . Shipowners may also request their ships be certified even if not within these categories. See: Regulation .., para. . It should be noted that the system established under Title  requires that all ships must be inspected by the flag State.



chapter eight

– Regulation .—Seafarers’ compensation for the ship’s loss or foundering – Regulation .—Manning levels – Regulation .—Career and skill development and opportunities for seafarers’ employment

As its name suggests, Title  deals with ‘conditions’ of employment. However, as this list of regulations indicates, this Title address a wider range of issues than the conditions of an individual seafarer on board ship and includes matters such as the number of seafarers required on a ship (manning level) and obligations regarding national employment promotion policies. At the same time it does not contain all the key monetary conditions such as subsistence costs and conditions and medical coverage, which are found in Titles  and . In general, however, Title  can be understood as setting out the basic framework for employment conditions—pay, hours of work, leave, specification of some minimum benefits, etc. Importantly, it contains a regulation that could be considered ‘the heart’ of the Convention: it sets the requirement that each seafarer must have a contract of employment, a seafarers’ employment agreement (SEA), that identifies the responsible employer/shipowner and establishes the minimum information that must be stated in the SEA. This development of the law is important from a number of perspectives. It reinforces the MLC,  compliance and enforcement system under Title  (see Chapter ), and is a valuable source of information for the flag State inspection. This requirement also introduces some interesting challenges from a contract law perspective. In should also be noted in connection with the ship inspection and certification system established under Title , perhaps surprisingly given that they are ‘conditions of employment’, that not all regulations under Title  are matters that must be inspected on the ships to which the Convention applies. Only four of the eight topics are on the list of  areas that must be certified by flag States, largely for purposes of port State control, for ships subject to mandatory certification,15 that is, ships  GT and above that engage in international voyages or voyages from a port or between ports in another country. However, one of the  areas to be certified is the SEA, de facto including, as an aspect of certification, several areas in Titles  and  that are not expressly subject to certification.16 Further, one of the regulations in Title  contains a key issue, how to define ‘rest’, a matter also addressed in the IMO’s STCW Convention, as least for seafarers carrying out duties that are covered by the requirements of the STCW.

15

See: Regulation .., paras  and . Namely, Regulation .—Entitlement to leave; Regulation .—Repatriation; and Regulation .—Shipowners’ liability. 16

title : conditions of employment



Thus there is the potential for possible inconsistency or appearance of conflict between provisions adopted in these two different fora. In fact, there is, if not a conflict, at least potential inconsistency between the MLC,  and the STCW provisions, which, as will be noted in connection with Regulation ., will be addressed once the Manila Amendments adopted in  by the STCW review enter into force.17 The amendments to the STCW Code, while not exactly the same as the MLC,  provisions, were expressly drafted to try to avoid, as much as possible, conflict between these two international instruments. Regulation .—Seafarers’ Employment Agreements The purpose of Regulation . is “to ensure that seafarers have a fair employment agreement”. The provisions in Regulation . and the Code deal with both the process of entering into that agreement and the minimum content of the agreement. Both are intended to achieve ‘fairness’. Other than the provisions regarding termination and minimum notice periods, Regulation . does not itself address substantive matters. Fairness, therefore, resides in providing the seafarer, in accordance with the Regulation ., paragraph , and Standard A., paragraph (b), with the opportunity to examine and seek advice on her or his employment agreement and to “freely accept” before signing. The other element of fairness relates to access to information (Standard A., paragraph (d)) and the requirement that the SEA contain, at a minimum, the information specified in national laws and regulations that have been in accordance with Standard A., paragraph . The substantive content of the SEA is established through compliance with the national laws or regulations or collective bargaining agreement (CBA) or other measures implementing the regulations and standards in Titles  to  of the Convention. This is evident18 in the basic obligations in Regulation ., paragraph , which requires that (emphasis added):

17

IMO, Conference of Parties to the STCW Convention, Adoption of the Final Act and Any Instruments, Resolutions and Recommendations Resulting from the Work of the Conference, Attachment  to the Final Act of the Conference Resolution , The Manila Amendments to the annex to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), , Text adopted by the Conference, STCW/CONF./,  July , available at http://www.md.go.th/seaman/pdf/STCW-CONF.-.pdf. See note  and ff infra. 18 This could be read more narrowly to simply mean Standard A. and Guideline B. rather than the content of other regulations. However, given the obligation to implement all regulations and the express linkages between Standard . and other regulations, the result would be the same.

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. The terms and conditions for employment of a seafarer shall be set out or referred to in a clear written legally enforceable agreement and shall be consistent with the standards set out in the Code.

The Code, Standard A., paragraph , provides (emphasis added): . Each Member shall adopt laws or regulations requiring that ships that fly its flag comply with the following requirements: (a) seafarers working on ships that fly its flag shall have a seafarers’ employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner (or, where they are not employees, evidence of contractual or similar arrangements) providing them with decent working and living conditions on board the ship as required by this Convention;

Thus it is clear that the requirements of the MLC,  are considered synonymous with ‘decent work’ and are also a fair agreement. It should be noted that Standard A., paragraph , contains wording that is specifically drafted to avoid a possible problem of contracting out of the MLC, .19 Where a seafarer is self-employed, his or her legal arrangements/contract would still need to provide for the same matters. This is also reflected in the inclusive wording of the definition of the term ‘seafarers’ employment agreement’ in Article II, paragraph : (g) seafarers’ employment agreement includes both a contract of employment and articles of agreement;

There was, in fact, no specific legal document in ILO maritime labour conventions called a SEA before the MLC,  introduced the term.20 It was adopted 19

Consolidated Maritime Labour Convention (Preliminary Second Draft), Commentary, HLTWG (Fourth Meeting), Nantes, , ILO Doc. No. TWGMLS//, available at http:// www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf, Comment  (Title ): . . . . For example, Standard A. requires that Members adopt laws and regulations that provide for some basic matters. Comments after the third meeting raised the situation of self-employed personnel. This is now covered by the requirements in Standard A., paragraph (a). That Standard also requires (paragraph ) that Member adopt laws and regulations for the essential terms that must be in each agreement.

20

The first preliminary draft considered in October  (First Preliminary Draft of Provisions for the New Consolidated Maritime Labour Convention, HLTWG (Second Meeting), Geneva, – October , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-.pdf) used the heading “Regulation .. Contracts of employment and articles of agreement”. The report of the second Subgroup meeting in February  contained the following description of what the shipowners and seafarers expected: . . . All seafarers shall sign articles of agreement, which shall incorporate an agreed written and enforceable contract setting out the terms and conditions of employment incorporating any applicable collective bargaining agreement.

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to cover a wide range of documents that exist in various jurisdictions. It also reflects the terminology and practice in countries that have ratified the convention consolidated by Regulation ., the Seamen’s Articles of Agreement Convention,  (No. ), a convention that has a very high ratification level.21 As noted in the June  Commentary to the draft of the Convention in which this term first appeared in Article II and Regulation .: . Some concerns had been raised about use of the terms “contract of employment” and “articles of agreement”. It appeared that they posed difficulties for some legal systems. In addition the system of articles was seen by some Members as falling into disuse. Other Members had raised the situation of lump sum task-oriented arrangements. The all embracing term “seafarers’ employment agreement” is proposed in this first draft.22

A further aspect of this inclusive definition relates to the relationship of the SEA to CBAs. Regulation ., paragraph , provides: . To the extent compatible with the Member’s national law and practice, seafarers’ employment agreements shall be understood to incorporate any applicable collective bargaining agreements.

This point is also alluded to in paragraph , which speaks of terms being “set out or referred to”. The wording with respect to this relationship was a topic of some debate on two matters.23 First, there was concern that this would mean that each Final Report, Tripartite Subgroup of the HLTWG (Second Meeting), Geneva, – February , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/ sector/techmeet/stwgmls/stwgmls-.pdf, Annex , Joint paper by the Shipowners’ and Seafarers’ groups on the principles to be embodied in the consolidated Convention Articles of agreement. 21 Seamen’s Articles of Agreement Convention,  (No. ), Geneva,  June , available at http://www.ilo.org/ilolex/english/convdisp.htm, has been ratified by  countries as of October . 22 Consolidated Maritime Labour Convention (First Draft) Commentary, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf, Comment  (on Title , Regulations and Code, Parts A and B). 23 Final Report, HLTWG (Fourth Meeting), Nantes, – January , ILO Doc. No. TWGMLS /  / , available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf, Working Party D: . This provision generated a great deal of discussion over two days. Paragraph  retained square brackets on “sign” and “signify acceptance”. The requirement for signature was a problem for one Government representative. The Seafarers’ group were unable to accept what they viewed as a less than legally binding arrangement. It was agreed that paragraphs  and , regarding the relationship between a collective bargaining agreement (CBA) and a seafarers’ employment agreement could be collapsed into one provision and the square brackets removed around paragraph  and around the word “shall”. “May” is deleted as is paragraph . It was clarified that the term “incorporation” did not require

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seafarer’s SEA would have to include the entire text of a CBA, an instrument to which he or she would not be a party. It was clarified that the wording such as ‘incorporates’ simply means that the individual SEAs would only have to identify the relevant CBA rather than reproduce the entire text.24 The relationship with the CBA is dealt with more specifically and clearly in Standard A., paragraphs (d), , and (j). These three provisions deal with, as paragraph (d) indicates, the informational aspect of ‘fairness’ and to the role that the SEA plays in compliance and enforcement. Where a CBA applies, the SEA will indicate the relevant provision, as required under Standard A., paragraph (j). Paragraph  then clarifies: . Where a collective bargaining agreement forms all or part of a seafarers’ employment agreement, a copy of that agreement shall be available on board. Where the seafarers’ employment agreement and any applicable collective bargaining agreement is not in English, the following shall also be available in English (except for ships engaged only in domestic voyages): (a) a copy of a standard form of the agreement; and (b) the portions of the collective bargaining agreement that are subject to a port State inspection under Regulation ..

As this indicates, the MLC,  envisages a situation where, aside from individual identification and position information and signatures, the entire content of a SEA could, in principle, be in a CBA, if all the matters required under Standard A., paragraph , are contained in the CBA. The requirement regarding English language relates, as it also states in Standard A., paragraph (d), to the port State control responsibilities under Title  and to the importance of having on board documentation that can be read in foreign ports.25 The requirement under paragraph (b) appears to require, to the extent that the CBA addresses them, that only the  matters listed in Appendix -III need to be translated. However, in cases where a CBA applies the physical inclusion of the CBA text in the seafarers’ employment agreement but only required a reference to the applicable CBA. The term “incorporation by reference” best captures this idea. 24 Consolidated Maritime Labour Convention: Commentary to the Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo .org / public / english / standards / relm / ilc / ilc / ptmc / pdf / cmlc-comment.pdf, Comment  (on Title , Regulation .), para. . 25 Final Report, supra note , Working Party D (emphasis added):

. Square brackets were added to subparagraph (d) of Standard A. around the reference to “collective bargaining agreement” to respond to the concern some felt about translating into English collective agreements on international voyages. The Seafarers’ group proposed that only the sections of an agreement that relate to port state control be translated if it was major problem. It was decided that this was a matter for Working Party C in connection with port state control.

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and addresses matters listed in Standard A., paragraph , that are not on the port State control list (e.g., repatriation or annual leave), these provisions would also need to be translated. The reference to a standard form is again an example of the interplay of pragmatism with law in this Convention. It means that the SEA of each seafarer does not have to be translated into English. Rather the ‘standard form’, if one exists, that sets out the relevant terms and conditions would need to be carried on board ship for review. The second issue regarding the CBA related to concerns by some governments that there might be a problem if it was mandatory that a SEA incorporate a CBA. Thus the wording ‘to the extent compatible with the Member’s national law and practice’ and subsequent references to ‘any applicable’ or ‘where’ or ‘if applicable’ are included. There are several other aspects of the wording in Standard A. that are of interest. These will be discussed below, particularly in connection with the interaction between the SEA and the requirements in other regulations and the inspection system in Title . From a legal perspective, the expanded coverage under the MLC,  to include a much wider group of workers, including ships’ masters, as ‘seafarers’ introduces the most complexity. There is also, of course, the fraught conflict of law questions about the applicable contract law, especially in light of potentially applicable instruments such as the Rome Convention,  (for European Union countries).26 26

Although not a comment specifically directed to the MLC, , an article by Patrick Chaumette, “The evolution of seafarers’ employment law—Deconstruction/Reconstruction,” ()  Revue Hellénique de Droit Maritime, Athènes, presented at the Maritime Labour in Europe Conference, Department of Employment Law, Faculty of Law, Genoa University,  May  (references removed) is instructive in terms of the potential legal complexity of this issue, especially for the EU Member States that are subject the  Rome Convention on the law applicable to contractual obligations (consolidated version) Official Journal C , //, pp. – , available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:A :EN:NOT. Chaumette explains (emphasis added): Traditionally, the crew is subject to the law of the Flag State. But the law of flag of convenience States nearly always provides only for individual employment contracts, sometimes supplemented by a company-wide agreement or an ITF [International Transport Workers’ Federation] agreement. . . . German law seems to be part of a wider trend challenging the applicability of the law of the Flag State. In , the Federal Labour Court ruled out the application of the law of the Flag State to a ferry cashier. This ferry was sailing under the German flag, but the [cashier’s] contract contained close links to the United Kingdom, which entailed the application of British law by taking into account the employee’s nationality and place of residence. The contract contained no express or explicit reference to the law selected to govern the contract; the court therefore ruled out the application of the law of the Flag State, as well as the connection with the state in which the hiring company was located—in this case, coincidentally, Britain, though there was some uncertainty in this regard. Since this ruling, the ship has no longer been recognised as a workplace endowed

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In what is, perhaps a legally naïve manner, Standard A. simply obliges flag States to adopt laws or regulations requiring that seafarers working on ships under its flag have a SEA signed by the seafarer and the shipowner (or with a nationality. International industrial relations have since then had to be connected, in the absence of the employment contract’s explicitly selecting a law to govern it, to the national law with which the contract is most closely connected. This ruling seemed to anticipate the application of the Rome Convention of  June , which came into effect on  April , on conflicts of law with respect to contractual obligations. The judge did not seek to invent an implied law selected by the contracting parties on the basis of a joint intention that they had not expressed, but strove to objectivise the contractual relationship, which does not explain the disappearance [sic!] of the ship and its flag. The Federal Labour Court has continued this trend challenging the applicability of the law of the Flag State to the crew: Indian seafarers were working on a German-flagged ship that was registered on the German international register; the law of the Flag State, as the law of the place where their work was carried out, was ruled out, on the grounds that a ship is not a State, a piece of detached territory; the same went for the law of the place where the employer, i.e. the shipowner commercially operating the ship, was established, i.e. German law. The employment contracts were therefore most closely connected to India, irrespective of whether or not they expressly referred to the seafarers’ nationality or their places of residence. The Rome Convention of  June  deals only with Community relations, internationalisation within the territory of the Community. Article  thereof states that the law designated by this Convention shall be applied even if this is a law of a State that is not a party to the Convention. The Convention has universal applicability; it comes into play as soon as a judge of a member state of the European Union is competent. It is as much international law as Community law. It is leading to uniformity in dispute resolution for Community countries with respect to international contracts. . . . Article  is especially devoted to the employment contract . . . The parties may select only the law of the contract, not the contractual provisions. Whichever law they have selected, the employee may not be deprived of the protection afforded him by the law of his customary workplace; the concept of industrial public order is clearly at work here. The nationality of the employee or the employer is irrelevant. The Rome Convention stipulates that the law of the workplace shall apply to any employee working in the Community . . . The Convention provided for complementary points of attachment, relating to employees who carry out their activities in several countries. The permanent point of connection will be the establishment that hired the employee (which is not necessarily the same thing as the company’s registered office). This rule holds for sales reps and workers in international transport. Workers on oil rigs would be connected to the company’s registered office . . . The determination of the law of the customary workplace has given rise to debate on mobile workers, seconded employees, flight personnel, and work carried out on oil rigs. When there is no one country in which the employee customarily perform his work, the Convention states that he shall be governed by the law of the place where he was hired. This would seem to apply to pilots and oil-rig workers. For the seafarer, the law of his customary workplace is traditionally that of the country under whose flag his ship is sailing, which may leave room, to a greater or lesser extent, for the employment contract concluded with the shipowner or a crewing agency, which may be subject to a law other than that of the Flag State . . . The underlying rationale is that the applicable law should be the law of proximity. But what is meant by proximity? The law applicable to the contract governs its interpretation, the discharging of the obligations contained therein, the consequences of failing to discharge those obligations, the termination of the obligations, statutes of limitations, the effects of nullity, and the terms applicable to and consequences of the contract’s being breached. As regards the form of the employment contract, Article  of the Convention

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

representative, usually the ship’s master). The flag State is to adopt national laws and regulations that require that the SEA contain, at a minimum, the information listed in Standard ., paragraph . These are essentially matters of form. Irrespective of where the SEA is signed or questions such as applicable law, it is a flag State obligation, and shipowners would need to make sure that the SEA they use complies, at a minimum, with the flag State requirements on form. However, the actual content of the SEA is also primarily a flag State responsibility. This is in accordance with the  LOSC regarding the responsibilities of flag States for ships on the high seas.27 It could, as noted provides a choice: either the law governing the contract’s content or the law of the country where the contract was concluded. The grounds for voiding the contract flow from this law of form. Community Directive / of  October  requires a document, and applies to all contracts that are subject to the law of a member state . . . The situation would be different for seafarers recruited to serve on board a ship, which always sails under the flag of a State. Nevertheless, the shrinking influence of the law of the Flag State is tending to favour the application of the law selected by the shipowner or crewing agency, except with respect to disciplinary matters. The international market tends to “de-territorialize” the ship as much as possible, so that the seafarer works abroad and not on the territory of a member state; it also tends to loosen the ties between the seafarer and the shipping company, and even with the shipowner, in favour of ties to the crewing agency, an intermediary that is also “deterritorialized”. Could the internationalised maritime employment contract end up with no points of connection to any nation state? 27

Chaumette, ibid. (references removed; emphasis added), but quaere views on the territorial sea: The status of the ship The fact that the law of the Flag State no longer reigns supreme on board ship, due to the inroads made by the law selected by the parties to the employment contract, seems to be modifying the status of the ship, which of course remains a workplace for the crew, but also clears the way for connections to various different legal systems. The status of the ship—a thing endowed with a nationality, a name and a port of registry, a registered movable that is often treated as real estate due its value, the collateral of maritime creditors, a centre of competing interests—is therefore directly at stake. The civil, merchant, fishing or cruise ship is not an extension of the territory of the Flag State. Despite the ruling of the Standing Court of International Justice in the Lotus case of  September , the theory of territoriality has not flourished, because the ship leaves international waters, the high seas, to enter the territorial waters of a State and put in at a port. In registering a ship, the Flag State thereby confers its nationality on it. This mark of the Flag State’s sovereignty creates a connection, which should be substantial. This connection has been exclusive on the high seas since the Brussels Convention of  May  on criminal jurisdiction in the event of collisions; this exclusivity was confirmed by the  Geneva High-Seas Convention, and then by the United Nations Convention on the Law of the Sea of . . . . However, this does not apply in the territorial waters of a State whose flag the ship is not sailing under, all the more so since the inertia of many Flag States is leading to the growth of complementary connections. . . . With respect to the international registers, it is widely accepted that the seafarers work abroad, outside the territory of the Flag State. The income of Community officers is thus exempted from taxation, which constitutes a subsidy to the shipping companies. This mechanism does not appear to be limited to taxation,

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above, in some cases, give rise to questions of potentially conflicting laws. However, one of the impacts of international conventions that are regulatory in their approach is that they promote a high level of uniformity, at least with respect to the minimum needed to achieve compliance. The question of whether this provision is also directed to States with laboursupply interests was settled during the development of the Convention. At the fourth meeting of the HLTWG in January  it was decided to remove text in the Regulation that would have also established labour-supplying obligations. The report of the meeting states: . There was an extended debate relating to the phrase “in their territory” and whether Standard A. should cover both flag state obligations and labour-supply obligations to regulate the content of seafarers’ employment agreements. Several Government representatives were opposed to legislating for other than their flagships in this matter. This resulted in the deletion of the phrase “in its territory” and the inclusion in the chapeau of a phrase limiting the provision to seafarer contracts on the Members’ flagships. It also resulted in the consequential deletion of paragraph . The Seafarers’ group strongly supported the idea of highlighting the flag state responsibility under paragraph (a) in the chapeau and of the deletion of paragraph . However, in their view, although their primary concern is directed to ensuring flag state responsibility, the need to also put in place an equally strong system of labour-supply responsibility is also required. There is a need to require that labour-supply governments also legislate in the same way as flag state governments to ensure that the coverage is comprehensive. For this reason the Seafarers’ group did not want to delete the provision on this matter in Regulation ., paragraph .28

It will also be recalled from the discussion of Article V, and in connection with Title , Regulation .,29 that a preliminary draft of Article V, paragraph  (then paragraph ), considered by the HLTWG at its June  meeting, read as follows (emphasis added): . Each Member shall exercise effective jurisdiction and control over seafarer recruitment and placement services in its territory, as well as effective jurisdiction over seafarers’ employment agreements that are concluded in its territory.

The decision to focus on flag State responsibility and the resulting potential conflict of laws questions relate to the fact that Standard A. consolidates Article  from the Seamen’s Articles of Agreement Convention,  (No. ): but is implicitly extended to the terms of employment on board, including those of nonCommunity seafarers. This whole issue requires clarification, at a time when the law of the workplace seems to be disappearing to the benefit of the seafarer’s personal status. . . . 28

Final Report, supra note , Working Party D. See: Chapter  at footnote . See also: Consolidated Maritime Labour Convention (First Draft) Articles and Regulations, HLTWG (Third Meeting), Geneva, , ILO Doc. No. 29

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

. Articles of agreement shall be signed both by the shipowner or his representative and by the seaman. Reasonable facilities to examine the articles of agreement before they are signed shall be given to the seaman and also to his adviser. . The seaman shall sign the agreement under conditions which shall be prescribed by national law in order to ensure adequate supervision by the competent public authority. . The foregoing provisions shall be deemed to have been fulfilled if the competent authority certifies that the provisions of the agreement have been laid before it in writing and have been confirmed both by the shipowner or his representative and by the seaman. . National law shall make adequate provision to ensure that the seaman has understood the agreement. . The agreement shall not contain anything which is contrary to the provisions of national law or of this Convention. . National law shall prescribe such further formalities and safeguards in respect of the completion of the agreement as may be considered necessary for the protection of the interests of the shipowner and of the seaman.30

However, this convention dates from a period before the rise of international registers and the transnational maritime work force. It assumes considerable oversight of this sector by governments that are both the flag State and the State in which the SEA/articles of agreement are signed and apply. This provision is also the basis for the process aspects of ‘fairness’. However, in the current context, a flag State may not be able to regulate this issue if the SEA was signed in another country. It can, however, require that shipowners verify their practice, and the practice of companies that recruit seafarers on their behalf, on this point. The scope of flag State responsibility for seafarers that enter into SEAs elsewhere also relates to the enforcement of the requirements under Regulation ., where recruitment services are used. The Office Report for the th ILC explains: . Regulation . deals with the conditions under which a seafarer signs an employment agreement. As much as possible it seeks to ensure that they are signed under conditions that ensure informed consent by the employee to the terms governing their employment. The extent to which a Member can monitor each situation is, of course, limited. This is a problem common to all areas of regulatory activity.31

TWGMLS /  / , available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf. 30 Supra note , Art. . 31 Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/rep-i-a.pdf, Note  (Regulation .). In terms of compliance and enforcement at the shipboard level, this is a matter that would most likely be checked through private interviews with seafarers by flag State inspectors or emerge in complaints by seafarers to the flag State or in the context of port State control.

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The requirement under the MLC,  that each seafarer must have an original32 of the SEA signed by the seafarer and the shipowner (or representa32

Report of the Committee of the Whole, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. PR(Part I), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr-i.pdf. There was a surprisingly lengthy debate at the th ILC about the question of whether the SEA can be a copy of the original. . The Government member of the Russian Federation, speaking also on behalf of the Government members of Estonia and Latvia, submitted amendment D. to replace, in subparagraph (c) before the word “copy”, the word “a” by “an equally authentic”. While the Office text merely required a copy, national legislation in his country required equally authentic copies to be in the possession of the seafarer and the shipowner. The Office text failed to make this clear. His delegation could accept different wording as long as it ensured that both copies had equal force under the law. . The Employer Vice-Chairperson stated that his group had initially opposed the amendment due to concerns with regard to the term “authentic”, which seemed to imply that notarization would be required. The problem could be overcome by wording such as “original copy” that would ensure that both parties had copies bearing the signatures of both parties. . The Worker Vice-Chairperson indicated that his group had also expressed concern about the possible cost implications of the amendment. He was prepared, however, to accept the wording proposed by the Employers’ group on the understanding that an original copy meant that the shipowner and the seafarer each had a copy signed by both parties. . The Government member of the Bahamas drew attention to the problem of cruise ships with several hundred crew members using articles of agreement saying that providing a signed original of the articles for each crew member was impractical. . The Government member of Malaysia affirmed that in his country, articles of agreement were used as seafarers’ employment agreements. It would be problematic for each seafarer to have a signed original copy of the articles of agreement. . The Chairperson suggested that the expression “a signed original of the seafarers’ employment agreement” might be an acceptable alternative. He referred to Article II, paragraph (g), which defined “seafarers’ employment agreement” to include both a contract of employment and articles of agreement. . The Government member of the Russian Federation found this formulation more accurate and supported it, as did the Government members of Algeria, Brazil, Cyprus, Denmark, Ghana, Kenya, Mexico, Pakistan, Singapore and Sri Lanka. . The Government member of France summarized the discussion. The employment contract was to be signed by both the shipowner and the seafarer. Each would receive a copy which had the original signatures of both parties. Two original copies were essential. . The representative of the Secretary-General drew the Committee’s attention to the Seamen’s Articles of Agreement Convention,  (No. ), Article  of which read: . Articles of agreement shall be signed both by the shipowner or his representative and by the seaman. Reasonable facilities to examine the articles of agreement before they are signed shall be given to the seaman and also to his adviser. . The seaman shall sign the agreement under conditions which shall be prescribed by national law in order to ensure adequate supervision by the competent public authority. . The foregoing provisions shall be deemed to have been fulfilled if the competent authority certifies that the provisions of the agreement have been laid before it in writing and have been confirmed both by the shipowner or his representative and by the seaman.

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

tive33) also generates further complexity, especially for seafarers that are (also) employees of subcontractors carrying out business on a ship, for example, retail outlets. This situation would arise most often for seafarers working on passenger or cruise ships, where there may be several thousand seafarers working on board in various capacities and involving differing land-based employers. Put most simply, a question will arise as to who should sign the SEA if the seafarer is hired by an employer that is not covered under the definition of a shipowner in Article II, paragraph (j). The answer under the MLC,  remains the same: the seafarer must have a SEA and it must be signed by the ‘shipowner (or representative)’. Although the issue of other employers and the situation of cruise ships were considered in the development of the Convention, Regulation . and the Code only obliquely address the practical implications. In order to understand a possible legal solution to the requirement that a SEA be signed by the shipowner (or representative) the requirement must be viewed in terms of its objectives and the overall approach adopted in the Convention. The major concern, as reflected in the approach adopted by the MLC, , is that the shipowner should have overall responsibility for all aspects of working and living conditions on board: seafarers should not have to deal with more She noted that even though this instrument made no provision for a copy to be given to the seafarer, it explicitly provided for individual signature. For the countries using articles of agreement, she saw no issue with providing seafarers with signed original copies of the documents they had signed. . The Worker Vice-Chairperson referred to Regulation ., which required the terms and conditions for employment of a seafarer to be set out or referred to in a clear written legally enforceable agreement. It was also required that seafarers’ employment agreements be agreed to by the seafarer under conditions which ensured that the seafarer had an opportunity to review and seek advice on the terms and conditions in the agreement and freely accepted them before signing. He recalled from discussions at previous meetings that the primary concern had been to prevent problems with enforcement. To be legally enforceable both the shipowner and the seafarer needed an original copy of the employment contract signed by both parties It seems clear, therefore, that the seafarer must be given a signed original. However, with respect to the question of photocopies, although not clearly addressed, it seems to meet the basic flag State inspection and port State inspection concern as well as possible questions about legal enforceability: if a jurisdiction requires originals, then a photocopy of a SEA could be carried on board. This is supported by the provision in Standard A., paragraph , for cases where the SEA in part or whole takes the form of a CBA. In these cases, a copy must be on board and, if not in English, relevant portions must be translated into English, or where the SEA is not in English, then a standard form version in English must be on board ship. See also the Guidelines for Flag State Inspections, supra note . In the future it also seems possible that the SEAs or standard agreements produced for port State control or flag State inspection may take the form of electronic copies of the signed SEAs. 33 This would be understood as covering the ship’s master. However, since the ship’s master is also a seafarer, he or she must also have a SEA. Importantly in a globalized workforce, this means that the seafarers can identify their responsible employer (shipowner).

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than one person with respect to their working and living conditions, and that one person should be the shipowner, who should take responsibility for ensuring that those conditions conform to the requirements of the MLC,  and are respected. At the fourth HLTWG meeting, the Commentary prepared for the meeting notes that, in connection with the definition of shipowner in Article II, paragraph (j) (emphasis added): . The definition of “shipowner” in paragraph (i) is based on the definition in Convention No. . It may need to be revisited in the light of decisions taken on other provisions referring to the “shipowner”, such as Standard A., paragraph (b). It is based on the principle of the shipowner’s responsibility with respect to all seafarers, without prejudice to the right of the shipowner to recover the costs involved from other employers responsible for particular seafarers. This is expressly stated in Standard A. (paragraph ) on repatriation.34

From a legal perspective this may seem problematic in that the worker concerned may already have an employment contract with his/her employer, who will be responsible for honouring the obligations in that agreement, in particular those relating to the payment of wages and allowances and social protection obligations, matters that must be included in the SEA. However, it is equally clear that there are certain important elements in the SEA contractual relationship that are of concern to the shipowner rather than to the land-based outside employer (e.g., relating to policies regarding behaviour on board, the authority of the master, and safety at sea).35 This would not mean that the shipowner has to renegotiate an existing agreement between the seafarer and the outside employer: a SEA could, for example, set out the ship-related conditions of employment and then provide, much like the incorporation by reference of a CBA, that all other terms and conditions are contained in the existing agreement concluded between the seafarer and the outside employer. That agreement would be annexed as a schedule to the SEA (and would be subject to flag and port State inspection). The shipowner would, however, have to make sure that the annexed agreement was consistent with the flag State’s national requirements implementing the MLC,  and contained no gaps in coverage.36 34

Preliminary Second Draft Commentary, supra note , Comment  (on Article II). In view of their personal nature, it seems understandable that the related obligations should be entered into by the seafarers themselves (as required by Standard A.) rather than by their outside employer acting as their representative. In principle, the Standard would also allow the outside employer to sign the SEA as a representative of the shipowner, if authorized by the shipowner. However, it seems unlikely that shipowners would consider it advisable to give carte blanche to outside employers to represent them in this way or that an employer would accept all of these responsibilities. Accordingly, the shipowner (or the shipowner’s representative, such as the master) would need to sign some kind of an agreement with seafarers supplied by outside employers. 36 It may also be advisable for the shipowner to conclude a ‘hold harmless’ agreement with a 35

title : conditions of employment

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Leaving aside these legal complexities, Regulation . and the SEA can be seen as the ‘heart’ of the MLC, . This is because of their multiple and essentially ‘arterial’ connection to many other regulations and in regard to the enforcement and compliance system under Title . Specifically, the SEA is a matter on the list of  areas that must be inspected for all ships, and certified for some ships, and is subject to port State control under Appendices A-I and A-III. This means that the SEA is a useful inspection tool on a number of points, most importantly for those matters that are not themselves subject to certification. The connection between the minimum information required in a SEA under Standard A., paragraph , and other regulations, is indicated below with cross- references to other provisions added to illustrate this point (shown in italics): . Each Member shall adopt laws and regulations specifying the matters that are to be included in all seafarers’ employment agreements governed by its national law. Seafarers’ employment agreements shall in all cases contain the following particulars: a) the seafarer’s full name, date of birth or age, and birthplace (Regulation .) b) the shipowner’s name and address; c) the place where and date when the seafarers’ employment agreement is entered into; d) the capacity in which the seafarer is to be employed (Regulation .); e) the amount of the seafarer’s wages or, where applicable, the formula used for calculating them (Regulation .); f) the amount of paid annual leave or, where applicable, the formula used for calculating it (Regulation .); g) the termination of the agreement and the conditions thereof (Regulation ., paragraphs  and ): h) the health and social security protection benefits to be provided to the seafarer by the shipowner (Regulation ., Regulation ., Regulation ., and aspects of Regulation . (see Guideline B., paragraphs  and )); i) the seafarer’s entitlement to repatriation (Regulation .); j) reference to the collective bargaining agreement, if applicable; and k) any other particulars which national law may require.

Clearly, in reviewing a SEA, information can be obtained about compliance with many other key requirements of the Convention. This makes the SEA an essential inspection resource for flag States.37 subcontractor/outside employer to make sure that the shipowner is promptly compensated for any financial loss suffered by the shipowner because of the outside employer’s failure to honour the annexed agreement, such as arrears of wages, repatriation, or medical expenses which the shipowner may have had to pay. 37 This approach is reflected in the Guidelines for Flag State Inspections, supra note , and the Guidelines for Port State Control Officers, supra note , that were adopted by a tripartite meeting of experts in .

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There are several important points to note with regard to the wording of paragraph . First, national implementation of the requirement that SEAs contain this minimum level of information must be through laws and (as opposed to ‘or’) regulations. Second, subparagraphs (e) and (f) contain a phrase “where applicable the formula used to calculate them”. This provision was included “to accommodate a country that calculates annual leave pay on a percentage basis (and therefore could not designate a specific amount and can only provide the formula for calculation)”.38 Subparagraph (h) was also initially controversial “because of concerns that it might require the legislation of each country to be included; however, it was agreed that the idea of including information about the shipowners’ obligations to the seafarer is not controversial and the text should be developed to make it clearer”.39 Further, during the development of the MLC,  the nature of social security protection for seafarers under Regulation . was controversial. In the draft text considered by the PTMC40 paragraph (h) read: (h) the health and social security protection benefits to be provided to the seafarer by the shipowner [including a statement as to applicable national provisions];

It was decided that the phrase in square brackets requiring information about applicable national legislation on social security should be deleted.41

38

Final Report, supra note , para. . This tentative reference in connection with wages also addresses the point that that some countries do not regulate particular wage levels for seafarers. They are not required to do so under Regulation . of the MLC, . But see Guidelines for Flag State Inspections, supra note , pp. –, and Guidelines for Port State Control Officers, supra note , pp. -. 39 Ibid., para. . 40 Consolidated Maritime Labour Convention, Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ standards/relm/maritime/pdf/cmlc-draft.pdf. 41 Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. PTMC/ /–, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/pdf/ptmc--.pdf: . When the discussion was resumed, the Shipowner Vice-Chairperson stated that the sheer volume of social security law in some countries would make it very difficult for shipowners to keep track of changes. . The Seafarer Vice-Chairperson agreed it would be difficult to update employment agreements. But seafarers needed to be aware of the rights available to them in a specific flag State, especially where there were entitlements for non-residents. Information in some form should be available on the vessel. . The Shipowner Vice-Chairperson stressed that it was not possible for shipowners to inform seafarers of constantly changing social security laws. This was to be the responsibility of the appropriate government agencies in the member States. . It was agreed that the words in square brackets [, including a statement as to applicable national provisions] be deleted from paragraph (h).

title : conditions of employment

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The precise termination periods referred to in paragraph (g) and paragraphs  and  of Standard A. were also the subject of debate at the PTMC.42 Paragraph  does not set any minimum periods but does envisage various contract scenarios and requires that information about termination be included in the SEA. Under paragraph , ratifying countries must adopt national laws or regulations to establish minimum notice periods for termination. The minimum period is to be determined after consultation with the shipowners’ and seafarers’ organizations concerned and must not be less than seven days unless it is an exception provided for in paragraph . Paragraph  allows for shorter periods in circumstances “recognized under national law or regulations or applicable collective bargaining agreements as justifying termination” with shorter notice or even without notice. Specifically, the situation of seafarers that may need to terminate a SEA for compassionate or other urgent reasons is noted. There is a further point that is not in the MLC,  text but was added in  by the tripartite meeting of experts that adopted the Guidelines for Flag State Inspections and the Guidelines for Port State Officers. They added, as an example of a possible deficiency, “The SEA contains clauses that violate seafarers’ rights”.43 As noted in the beginning of this chapter, these guidelines are simply guidance and not binding. However, they are viewed as authoritative tripartite advice as to application of the MLC,  at the shipboard level and are also going to form the basis for the development of guidance within the regional port State control regime.44 This requirement is not in Regulation . or Standard A. so it may be difficult to see how it could be a violation of this regulation. However, this could also be seen as implicit in the Title  provisions referring to ‘requirements of this Convention (including seafarers’ rights)’ for flag State inspection and port State control for compliance. It could also perhaps be viewed as implicit in the obligation that a ratifying State satisfy itself with respect to the matters listed in Article III. 42 Ibid., paras –. The final text adopted was developed by the Drafting Committee to address various concerns about wording:

. The Shipowners’ and the Seafarers’ groups agreed that the text should provide for a minimum number of seven days, but were averse to specifying a maximum number. As to the last paragraph, provision should be made for waiving the minimum requirement on compassionate or urgent grounds, and that the Office should be requested to provide guidance accordingly. 43

Guidelines for Flag State Inspections, supra note , p. ; Guidelines for Port State Control Officers, supra note , p. . 44 As of December  the relevant guidelines under the Paris MOU on Port State Control are not finalized. However, internal discussion drafts, for the most part, follow the wording and approach in the ILO  Guidelines. The Paris MOU guidelines will provide the basis for the guidelines to be adopted by the other regional MOUs. See Chapter , at note , and Chapter , at note .

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Guideline B. has only one paragraph providing guidance as to what would be needed to meet the requirement under Standard A., paragraph (e), that a seafarer be given a record of employment.45 It clarifies that the traditional discharge book would satisfy this requirement. A certificate (with a translation into English) identifying the positions held by a seafarer and the periods when those positions were held should be regarded as sufficient as a record of employment for seafarers without a seafarer’s discharge book. Regulation .—Wages Regulation . has a simply stated purpose “to ensure that seafarers are paid for their services”. The Regulation has only one paragraph. . All seafarers shall be paid for their work regularly and in full in accordance with their employment agreements.

Perhaps surprisingly, given the importance of a salary or wages for workers, no maritime labour convention contained the basic proposition that seafarers are to be paid for their work.46 The text of Regulation . and Standard A. are, therefore, new text as they do not consolidate any existing convention. At the same time the propositions and concepts they contain were considered “uncontroversial”47 and, indeed, did not attract discussion at the th ILC.48 A brief history of the issue of seafarers’ wages is, however, useful to fully understand the scope of the obligations contained in Standard A., particularly the wording in paragraph  (see below). Under Article X, the MLC,  consolidates two conventions that appear to address the issue of wages. They are the Wages, Hours of Work and Manning (Sea) Convention (Revised),  (No. ) and Wages, Hours of Work and 45 An interesting problem arises in connection with flag State inspection of this requirement on ships, especially where the ship is newly entered into service or the seafarer is new to a ship. The Guidelines for Flag State Inspections, supra note , address this problem by suggesting that inspectors could require that this information be submitted at a later date. 46 Although there are conventions of general application such as the Convention Concerning the Protection of Wages,  (No. ) that provide workers with a right be paid regularly. 47 Commentary to the Recommended Draft, supra note , Comment  (on Regulation .):

. Regulation . deals with wages. Standard A. contains several mandatory requirements relating to payment methods that are not based on any current international labour Convention but are believed to be uncontroversial. 48

Committee of the Whole Report, supra note :

. Regulation . and Standard A. were adopted without amendment. . Guidelines B. and B.. were adopted without amendment. . Guideline B.., paragraphs ,  and , were adopted without amendment.

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Manning (Sea) Convention (Revised),  (No. ), which revised Convention No. . However, neither convention, both of which sought to establish minimum wage levels, entered into force. They were eventually revised49 in  by the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ), a convention that is now also revised by Regulation . of the MLC, . As the title of Convention No.  indicates, it does not address the issue of wages. Although minimum wage levels and the calculation of wages are matters not set out in a binding international legal instrument, provisions relating to establishing wage levels and a basis for the calculation of wages are set out in an important recommendation, the Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation,  (R). The content of this recommendation is included in the MLC,  as Guideline B..50 Although Guidelines in Part B of the Code are to be given due consideration when implementing obligations under the regulations and the Code, Part A, Standards, the 49 Article  of the Seafarers Hours of Work and the Manning of Ships Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, provides:

This Convention revises the Wages, Hours of Work and Manning (Sea) Convention (Revised), ; the Wages, Hours of Work and Manning (Sea) Convention (Revised), ; the Wages, Hours of Work and Manning (Sea) Convention, ; and the Hours of Work and Manning (Sea) Convention, . As from the date this Convention has come into force, the above-listed Conventions shall cease to be open to ratification. 50

There were a few adjustments made to update the wording in line with the Standard. See: Compendium of Proposed Amendments to the Draft Consolidated Maritime Labour Convention, , Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ptmc /ptmc-.pdf, Amendment : C./D., Guideline B.., paragraph (d), Submitted by the Seafarers: Proposal: In subparagraph (d) of paragraph , replace the words “at regular intervals” by the words “at no greater than monthly intervals”. Context: “records of all overtime worked should be maintained by the master, or a person assigned by the master, and endorsed by the seafarer at no greater than monthly intervals.” Comment: The proposed amendment concerns a provision which is there for the guidance of Members covered by paragraph  of Standard A.. These Guidelines are based on Recommendation No.  and linked to the global minimum wage setting process carried out by the Joint Maritime Commission of the ILO. The proposed amendment appears to be linked to the proposal under C./D. (Amendment  above) and could be regarded as consequential, if the proposal in D. were adopted. See also: Report of the Discussion, Intersessional Meeting on the Follow-up of the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/ptmc/ptmc-.pdf, para : Amendment : C./D., Guideline B.., paragraph (d) . The amendment received tripartite support.

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situation is more complex in the case of wages. This is to respond to the problems posed by a possible obligation to regulate wage levels and to verify the calculation of individual wage payments. Despite the problem of including details on wage payment in a mandatory instrument, the topic of wages was included in an early draft of the MLC, . In February , a preliminary draft contained the following text: Regulation .—Wages . All seafarers shall have the right to appropriate compensation in the form of wages and other remuneration, with due regard to the principle of equal remuneration for work of equal value in the context of the maritime industry. . All seafarers shall on a regular basis be paid their agreed remuneration. Section A.—Wages . Seafarers shall receive their wages every month or at more frequent intervals. . In the establishment and calculation of the wages and other entitlements of seafarers, full account shall be taken of the guidance contained in Section B. of this Code as well as of amounts or criteria established under procedures recommended in that Section.51

The Commentary52 on this text presented to the Tripartite Subgroup of the HLTWG explained: Comment  (on Regulation .; Section A.) Regulation ., relating to wages, refers to the principle of equal remuneration for work of equal value. This principle is enshrined in the preamble to the ILO Constitution and is expressed in the Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation,  (No. ) (Paragraph (a), reproduced in the preliminary draft as Section B. I, paragraph (a)). At the second meeting of the High-level Tripartite Working Group, the Shipowners’ and Seafarers’ representatives presented a proposal on the main content of the Convention, but were unable to reach agreement on the inclusion of the principle referred to. There was insufficient time for their proposal to be discussed at the meeting and the Government representatives have not therefore expressed their views. Regulation . of the preliminary draft tentatively seeks a solution on the assumption that the disagreement relates not so much to the validity of the principle itself, but rather 51

Preliminary Draft for a Consolidated Maritime Labour Convention, Tripartite Subgroup of the HLTWG (Second Meeting), Geneva, , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/stwgmls/stwgmls-r.pdf, pp.  and . 52 Preliminary Draft for a Consolidated Maritime Labour Convention (Annex), Tripartite Subgroup of the HLTWG (Second Meeting), Geneva, , ILO Doc. No. STWGMLS /  /  (Annex), available at http://www.ilo.org/public/english/dialogue/sector/techmeet/stwgmls/ twgmls-r-ax.pdf, pp. –.

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on how it is to be interpreted in a multinational environment like that of the maritime industry. Paragraph  of Section A. relates to the actual obligation to pay wages, which is not contained in existing Conventions.

This wording as it pertains to levels of payment was not accepted.53 The draft considered at the next meeting provided: Regulation .—Wages Purpose: To ensure that seafarers are paid for their services All seafarers shall be paid regularly for their work in accordance with their employment agreements. Standard A.—Wages Members shall take any necessary measures to ensure that seafarers are able to transmit their earnings to their families. (new) Guideline B.—Wages B.. Specific definitions For the purpose of this Guideline: . . ..54

The final text as adopted now contains a provision explaining what is meant by the term ‘regularly’ and also provides for a monthly account of wages due and allotments (a term used to describe a process whereby seafarers can send their 53

First Draft Commentary, supra note : Comment  (on Title , Regulations and Code, Parts A and B) . Regulation . deals with the wages. At present there is no international labour standard explicitly requiring that seafarers are to be paid for their work. An express provision to that effect is now proposed. The principle of equal remuneration for work of equal value is enshrined in the Preamble to the ILO Constitution and is expressed in the Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation,  (No. ). At the second meeting of the High-level Tripartite Working Group, the Shipowner and Seafarer representatives presented a proposal on the main content of the Convention, but were unable to reach agreement on the inclusion of the principle referred to. There has also been some concern expressed by Governments about its inclusion in the mandatory part of the Convention. The principle as contained in Recommendation No.  has been retained in Guideline B., which also provides detailed guidance as to the calculation of wages as set out in that Recommendation.

54

Articles and Regulations, supra note ; Consolidated Maritime Labour Convention (First Draft) Code, Part A, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r- .pdf; and Consolidated Maritime Labour Convention (First Draft) Code, Part B, HLTWG (Third Meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf.

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wages back to families). However, the overall approach is substantially similar to the draft in June . There still remained a concern that the provisions in Part B of the Code would oblige governments to regulate wage levels. The inclusion of this obligation, particularly as it is also included in the list of topics for potential port State control in the MLC, , was resolved through the wording of Standard A., paragraph . Paragraph  was developed as a result of the meeting of the HLTWG in January 55 and reviewed at the PTMC. Paragraph  provides (emphasis added): . Each Member that adopts national laws or regulations governing seafarers’ wages shall give due consideration to the guidance provided in Part B of the Code.

As the following extract from the discussion suggests, a concern remained whether this would make regulating wage levels mandatory: Standard A.—Wages Paragraph  . It was pointed out by the Chairperson that the provision referring to “Members that adopted national laws . . .” was not intended to suggest that Members should adopt national laws. . The Shipowner Vice-Chairperson wished the text to be deleted, considering that it was unnecessary. . The Special Adviser of the Committee explained the text had been included in order to address the concerns of countries which did not regulate wages, as well as to clarify the application of the provisions in Part B of the Code, which referred to the minimum wage.56

The Office Report for the th ILC explains (emphasis added): . Paragraph  is worded to reflect the fact that some countries may regulate seafarers’ wages in national laws while others may not. The purpose is to make it clear that Guideline ., in Part B of the Code, is addressed only to countries that choose to regulate seafarers’ wages by law as the Standard in Part A does not contain a requirement to regulate wages. The Guideline covers methods of calculation of wages and overtime and other matters. Its text is drawn from the Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation,  (No. ). . In paragraph (d) of Guideline B.., the seafarers’ endorsement of overtime records “at no greater than monthly intervals” rather than simply “at regular intervals”, as in the PTMC draft Convention, results from an amendment obtaining tripartite support at the Intersessional Meeting.

55 As noted above in connection with Regulation . at footnote  referencing Final Report, note . 56 Report I(A), supra note , p. .

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. Guideline B.. contains the provisions for the international negotiation of the basic pay or wages of able seafarers . . . 57

Although the wording of paragraph  is not entirely clear, this drafting history supports that view that the reference to ‘adopt laws or regulations governing wages’ is intended to address governments that choose to regulate the level of seafarers’ wages, as opposed to the requirement only that the wages be paid, as set out in the Regulation and the rest of Standard A.. This view is also supported in connection with the reference to wages in the SEA under Regulation . and the inclusion of the phrase ‘payment of wages’ in the list in Appendices A-I and A-III for flag State inspection and port State control. It is phrased to address serious concerns by governments that flag State inspectors and port State control officers might have to inspect the details of individual calculations as to whether a seafarer has been paid the correct wage, as opposed to the simpler but still complicated58 question of whether they have been paid in accordance with their SEA and/or CBA. 57

Report I(A), supra note , Note  (Regulation .). The practical question of what documentation might be on board a ship for inspection as opposed to in the shipowners’ company office regarding payments, particularly with electronic transfers, was the subject of some debate at the th ILC. See: Committee of the Whole Report, supra note : 58

. The Government member of Norway signalled the sponsors’ intention to withdraw the amendment, but wished to explain its reasoning. The amendment was not about the payment or non-payment of wages, but rather about port state control. Appendix A-III provided a list of general areas that were subject to port state inspection. With the exception of “payment of wages”, all the items on that list could either be inspected on board or were documented on board. Seafarers’ wages did not fall into this category of items however. Seafarers’ wages went into bank accounts on shore and while seafarers might keep monthly bank statements on board, these were private documents that they could not be obligated to share. Companies’ accounts confirming the transfer of wages were not available on the vessel either. This made it difficult to find confirmation on the vessel that wages had been paid. In addition, the wide scope of the definition of “seafarer” created problems. A number of seafarers covered by the proposed Convention were not employed by the shipowner. It would, therefore, be impossible to require that their information should be shared with the captain or the shipowner. Non-payment of wages was a serious problem, but it was addressed through the Convention’s complaint procedures. Therefore, the speaker’s delegation wished to state, for the record, that when implementing the Convention, Norway would understand that ships would not be required to carry wage accounts on board for all seafarers. Norway would implement the Convention nationally on the understanding that ships were not required to carry wage accounts on board, and in doing so would cooperate with other Paris MOU States. On a separate issue, the speaker noted that Appendices A-I and A-III were identical. The Committee might wish to ask the Drafting Committee to combine them into a single appendix. . The Worker Vice-Chairperson noted that non-payment of wages was a serious issue and needed to be addressed. The International Transport Workers’ Federation (ITF) had recovered tens of millions of dollars of back pay annually in recent years and these sums represented only the tip of the iceberg. Therefore, the speaker was pleased that

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The particular wording of the phrase “no greater than monthly”59 in Standard A., paragraph , was the subject of an amendment at the Intersessional Meeting held after the PTMC. Amendment : C./D. Standard A., paragraph  Submitted by the Seafarers Proposal: In paragraph , replace the words “monthly or at some other regular interval” by the words “at no greater than monthly intervals”. Context: “Members shall require that payments due to seafarers working on ships that fly their flag are made at no greater than monthly intervals and in accordance with any applicable collective agreement.” Comment: The proposed amendment would require that seafarers be paid once a month as a minimum standard. This could be seen as consistent with the monthly accounting for payments due under paragraph . The existing formulation was originally developed to suggest monthly payment as the appropriate “regular” interval (or whatever is provided for in the relevant employment agreement), but at the same time to seek to provide sufficient flexibility to account for situations where seafarers may be paid under differing contractual arrangements respecting the timing of receipt of payment for services.

The issues that might arise now concerning the current wording are largely matters of practical application in various situations and costs.60 In addition, the amendment would be withdrawn and appreciated the recognition given to this issue. Referring to the proposal to combine Appendices A-I and A-III, it would be best to keep them separate. Although the appendices were identical at this time, they might evolve separately in future. . The Government member of Norway withdrew amendment D.. See also the guidance in the Guidelines for Flag State Inspections, supra note , and the Guidelines for Port State Control Officers, supra note , which deal with this practical question. 59 Compendium of Proposed Amendments, supra note , p. ; see also, Report of the Discussion, supra note , p. : Amendment : C./D. Standard A., paragraph  . The representative of the Government of Greece proposed to add “. . . unless otherwise provided for in any applicable collective agreement.” His concern was that the stipulation of monthly intervals should not contradict any larger interval agreed upon in other collective agreements. . The representative of the Government of the Islamic Republic of Iran proposed to change “and in agreement with any applicable collective agreement” to “or in agreement with . . .” in order to take care of the Greek Government representative’s concern. . The amendment received tripartite support, without subamendment. 60

For example, questions might arise concerning charges imposed by banks (or other e-transfer

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there is some uncertainty, as discussed above, regarding application of Part B of the Code. Regulation .—Hours of Work and Hours of Rest Regulation . and the Standard and Guideline (along with Regulation . on Manning levels) consolidate the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ). The purpose of Regulation . is simply stated as “[t]o ensure that seafarers have regulated hours of work or hours of rest”. This purpose is re-stated in paragraph  of Regulation ., which does not require the adoption of laws or regulations, but does require that a ratifying country ensure that hours of work or rest are regulated. It also establishes maximum hours of work or minimum hours of rest over a given period which are “consistent with the provisions in the Code”. Preventing seafarer fatigue is a subject of concern that the ILO shares with the IMO. Fatigue, particularly in seafarers with watchkeeping responsibilities, is linked to ensuring ship safety and avoiding the risk of maritime incidents. This is a matter that is regulated for watchkeeping personnel under the STCW Convention and is considered as part of ‘fitness for duty’.61 This overlapping concern is recognized in the MLC,  in Standard A., paragraph , which

services) for transfer of funds to families. Standard A., paragraph , requires that seafarers must be able to transmit their earnings to their families through, for example, paragraph (a), allotments of a proportion of their wages for remittance at regular intervals by bank transfer. In the case of such allotments a reasonable charge can be made (paragraph ). In terms of what is a ‘reasonable charge’, this may be a matter addressed in national laws or regulations. If not, however, a common sense approach suggests that the charge could be expected to reflect the extra amount, in time or bank charges, that the shipowner incurs in making two or more different bank transfers, instead of just the one to the account of the seafarer concerned. In addition, payment would not be ‘in full’, as required under Regulation ., paragraph , if unauthorized deductions are made, including unreasonable charges for the allotment of earnings, currency exchange, or travel to or from the ship. 61 As noted earlier, the current text of the STCW Convention has similar but different hours of rest provisions from ILO Convention No. , the text of which was followed in the MLC, . The STCW Code, Part A, Chapter VIII, Standards regarding watchkeeping provides: Section A-VIII/ . All persons who are assigned duty as officers in charge of a watch or a rating forming part of a watch shall be provided a minimum of  hours of rest in any -hour period. . The hours of rest may be divided into no more than two periods, one of which shall be at least  hours in length. . . . . Notwithstanding the provisions of paragraphs  and , the minimum period may be reduced to not less than  consecutive hours provided that any such reduction shall not extend beyond two days and no less than  hours of rest are provided each seven-day period.

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requires that, when “determining the national standards [of minimum hours of rest or maximum hours of work], each Member shall take account of the danger posed by the fatigue of seafarers, especially those whose duties involve navigational safety and the safe and secure operation of the ship”. As will be discussed below, the two regimes differ both in their approach62 and in the specific requirements and their wording. The IMO requirements, consistent with its mandate, address seafarers with navigational and safety duties on board ship, although the recent Manila Amendments appear to have widened this somewhat, at least in connection with fitness for duty and watchkeeping, to expressly include seafarers with safety and security and marine pollution prevention duties.63 In addition, consistent with the IMO approach in other conventions, to the extent that there is flexibility, it is explicitly provided for in the interests of uniformity and consistency. The ILO approach, as discussed below, consistent with the focus on tripartism and its mandate, addresses all seafarers, and provides for autonomy/flexibility in the standards at the national level through CBAs and consultation with the national social 62 In fact ‘working time regulation’ has been the subject of standard setting by the ILO since its inception in . See, for example, Hours of Work (Industry) Convention,  (No. ), Washington,  November ; Hours of Work (Commerce and Offices) Convention,  (No. ), Geneva,  June ; Forty-Hour Week Convention,  (No. ), Geneva,  June ; all available at http://www.ilo.org/ilolex/english/convdisp.htm; and Reduction of Hours of Work Recommendation,  (R), Geneva,  June , available at http://www.ilo.org/ilolex/ english/recdisp.htm. The concern in the ILO context relates not only to worker health but also to wider socio-economic dynamics. Research done by the ILO and others argues that that the impact of working time regulation ‘can contribute to economic efficiency’ (as opposed to constituting a ‘brake on economic growth’). This former argument is a factor in a wide range of variables: workers’ physical and mental health, workplace safety, family and personal life, employment, wage income, labour costs, labour productivity, and economic growth. See, inter alia, a paper and sources cited therein, “How to defend labour Standards: A case study on working hours limits,” presented by Deirdre McCann and Sangheon Lee at the Workshop on the Economic Dynamics of International Labour Standards, ILO, Geneva, – June . Reported in Project on Economic Dynamics of International Labour Standards, Governing Body, Committee on Legal Issues and International Labour Standards, st Session, Geneva, November , ILO Doc. No. GB./LILS/. 63 See Manila Amendments, supra note  and also infra notes – for the final text (emphasis added): Regulation VIII/

Fitness for duty  Each Administration shall, for the purpose of preventing fatigue: . establish and enforce rest periods for watchkeeping personnel and those whose duties involve designated safety, security and prevention of pollution duties in accordance with the provisions of section A-VIII/ of the STCW Code; and . require that watch systems are so arranged that the efficiency of all watchkeeping personnel is not impaired by fatigue and that duties are so organized that the first watch at the commencement of a voyage and subsequent relieving watches are sufficiently rested and otherwise fit for duty.

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partners. In addition, the ILO provisions also address the concepts of ‘normal’ working hours and work week, which in turn relates to questions of wages and overtime, again within the framework of possible flexibility through collective bargaining. The fact that two international conventions with somewhat different standards exist does, however, provide some difficulty in terms of a State’s ability to implement its obligations. To the extent that either the ILO or IMO standard is higher, from a strictly legal perspective, compliance with a higher standard inherently complies with a less stringent standard so it would be possible to comply with both. However, in an industry where certainty and clarity are critical, particularly in the context of increased inspections in foreign ports under the regional port State control MOUs, these differences caused some uncertainty in connection with the earlier ILO Convention No.  and the STCW.64 To some extent this has been addressed, as mentioned earlier and explained below, in the amendment to the STCW Code adopted by the IMO in Manila in June . The amendment is based on the text in the MLC,  with respect to the minimum hours of rest, although there are some differences that remain, and as will be discussed below, they largely reflect differing mandates and focus of the two organizations. The terms ‘hours of work’ and ‘hours of rest’ are specifically defined in Standard A., paragraph : . For the purpose of this Standard, the term: (a) hours of work means time during which seafarers are required to do work on account of the ship; (b) hours of rest means time outside hours of work; this term does not include short breaks. 64

In the course of the preparatory meetings for Convention No. , the Report of the Committee on the Revision of the Wages, Hours of Work and Manning (Sea) Convention (Revised),  (No. ), and Recommendation,  (No. ) states that the requirements of Article , paragraph , of Convention No.  were regarded as consistent with the IMO’s STCW. This concern was further emphasized by a resolution adopted in  along with Convention No. , stating, inter alia, that, . . . nothing in this Convention is intended to enable Members ratifying the Convention which are also Parties to the revised Standards of Training, Certification and Watchkeeping (STCW) to apply provisions to watchkeeping seafarers that are less favourable than those contained in the revised STCW Convention and are inconsistent with the minimum rest period provisions of that Convention. Subsequently, to try to alleviate uncertainty, the IMO and ILO formed a Joint IMO/ILO Working Group on the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ) which met in London, – January , to develop the IMO/ILO Guidelines for the development of tables of seafarers’ shipboard working arrangements and formats of records of seafarers’ hours of work or hours of rest. These guidelines were subsequently published by both organizations.

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Standard A., paragraph , provides (emphasis added): . Each Member shall, within the limits set out in paragraphs  to  of this Standard, fix either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time.

The word ‘either’ is important because although the title of the Regulation refers to hours of work and hours of rest, the obligation is ‘or’. Governments may choose to regulate by establishing (‘fixing’) either minimum hours of rest or maximum hours of work. The two options65 for these limits and the period of time concerned under paragraph  are as follows: (a) maximum hours of work shall not exceed: (i)  hours in any -hour period; and (ii)  hours in any seven-day period;

or (b) minimum hours of rest shall not be less than: (i) ten hours in any -hour period; and (ii)  hours in any seven-day period.

Paragraph  provides a further important parameter on this limitation, while paragraphs  and  deal with the treatment of fire and other drills and seafarers whose jobs require that they be ‘on call’. Paragraph  provides: . Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length, and the interval between consecutive periods of rest shall not exceed  hours.

This paragraph, like paragraph , simply follows the text of Convention No. 66 and was not the subject of debate during the development of the MLC,  or the predecessor convention. However, it was subject to significant scrutiny and debate by the maritime industry throughout  and  when the MLC,  provisions on hours of rest were included in the STCW Code 65 Interestingly, the two options on limits under Standard A., paragraph , do not add up to the same amount of work/rest. The hours of rest parameters would allow seafarers to work more hours in a seven-day period. Not surprisingly, the minimum hours of rest is the option usually selected, perhaps because it also is closer in approach to the STCW. It is unclear why this difference, which was established in the predecessor Convention No. , exists. However, in deciding to follow as closely as possible the content of Convention No. , there was no consideration given to altering either of these formulas in the MLC, . 66 The wording in paragraphs  and  and other provisions consolidates (and does not change) Article , paragraphs  and  of Convention No. , supra note , as adopted in .

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text amendment proposals.67 The fact that this clause had been in existence and apparently implemented by ratifying countries68 for more than a decade without much question is perhaps indicative of the relative impact of the two conventions on the maritime sector. The proposals and subsequent adoption of text in June  by the IMO to amend the STCW Code on this and other matters to mirror the MLC,  is an important step to align the two regimes. As mentioned earlier and discussed below, in connection with Standard A., paragraph , the STCW 67 See: IMO, Conference of Parties to the STCW Convention, Consideration of the Draft Amendments to the Seafarers’ Training, Certification and Watchkeeping (STCW) Code, Draft amendments to Part A of the Seafarers’ Training, Certification and Watchkeeping (STCW) Code, Note by the Secretariat, IMO Doc. No. STCW/CONF./,  February , Annex, Chapter VIII, Standards regarding watchkeeping, p.  [footnotes omitted] (see also notes – infra):

Section A-VIII/, Fitness for duty  Administrations shall take account of the danger posed by fatigue of seafarers, especially those whose duties involve the safe and secure operation of a ship.  All persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: . a minimum of  hours of rest in any -hour period; and .  hours in any -day period.  The hours of rest may be divided into no more than two periods, one of which shall be at least  hours in length, and the intervals between consecutive periods of rest shall not exceed  hours.  The requirements for rest periods laid down in paragraphs  and  need not be maintained in the case of an emergency or in other overriding operational conditions. Musters, fire-fighting and lifeboat drills, and drills prescribed by national laws and regulations and by international instruments, shall be conducted in a manner that minimizes the disturbance of rest periods and does not induce fatigue.  Administrations shall require that watch schedules be posted where they are easily accessible. The schedules shall be established in a standardized format* in the working language or languages of the ship and in English.  When a seafarer is on call, such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work.  Administrations shall require that records of daily hours of rest of seafarers be maintained in a standardized format, in the working language or languages of the ship and in English, to allow monitoring and verification of compliance with the provisions of this section. The seafarers shall receive a copy of the records pertaining to them, which shall be endorsed by the master or by a person authorized by the master and by the seafarers. 68

As of December ,  countries have ratified Convention No. : Belgium; Bulgaria; Denmark; Finland; France; Germany; Greece; Ireland; Latvia; Luxembourg; Malta; Morocco; Netherlands; Norway; Romania; Saint Vincent and the Grenadines; Seychelles; Slovenia; Spain; Sweden; and United Kingdom. Of course the influence is much wider since Convention No.  is one of the conventions listed in the appendix to the Protocol of  to the Merchant Shipping (Minimum Standards) Convention,  (P), which has been ratified by  countries.

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Code amendments adopted by the IMO differ in connection with flexibility regarding the application of the constraints under paragraph . The main concern regarding the application of paragraph  is whether the maximum “two periods” constraint applies only to the minimum ten hours in any hour period or to all hours of rest (including the minimum hours). Related questions are also raised in connection with the treatment of a one-hour meal break69 and the situation for some specific categories of seafarers involved in passenger meal or other entertainment services on board cruise ships.70 The concern is that if ‘hours of rest’ does not refer to the -hour minimum, then all the hours of rest have to be taken in no more than two periods, one of which has to be of at least six hours’ duration, with a maximum between rest periods of  hours. This is likely to be extremely difficult for compliance. Whether the hours of work and rest are compliant may also depend on when the -hour period is considered to have started. Clearly the wording in the Convention does present some difficulties. However, several approaches are possible to achieve the purpose of these provisions, that is, to avoid fatigue, whilst also recognizing the need to mesh with industry needs and practices. One approach, based on a strict or ‘literal’ reading of paragraph  of Standard A., is that it refers to ‘hours of rest’, a term which is defined in paragraph (b), and not to the minimum hours of rest required by paragraph (b) of that Standard.71 In this respect paragraph  of Standard A. contrasts with paragraph  of Standard A., which establishes a requirement that applies only to “the minimum annual leave with pay prescribed in this Standard” (emphasis added). There is, therefore, at least a presumption that it was 69

Under the definition of hours of rest, a ‘short break’ of, for example,  minutes, is not considered rest. Some collective bargaining agreements also do not regard a meal break as a rest period. 70 While hours of rest periods often meet the parameters set by Standard A., paragraph , the maximum division into two under paragraph  can create problems because of meal service schedules. One solution, where it is not possible for certain categories of seafarers to have only two rest periods per day, might be CBAs that provide (on the basis of Standard A., paragraph ) for working schedules based on a three rest period system, with one of those rest periods always being at least six hours in length. In light of the object and purpose of paragraph , the minimum hours of rest in any -hour period could then be set at eleven hours instead of the ten hours provided for in paragraph . 71 A contrary argument might be made to the effect that, at the time of adoption of Convention No. , the current provisions (see above notes –) of the STCW existed and must be understood as being in the contemplation of the delegates, particularly in light of the resolution. The current text of the STCW does not include the definition of hours of rest. It could, as worded, be understood as relating only to the STCW minimum rest periods, called ‘hours of rest’ (ten hours in any  hours), when it provides that “the hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length”. The amendments that were recently adopted (see above note  ff infra), with a potential exception of three periods, support this view. However, the STCW amendments include neither the definitions nor the same form of flexibility provided under the MLC, , paragraph .

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not intended to refer to the minimum (e.g., ten) hours of rest in Standard A., paragraph , since there is no clear link between the ten-hour minimum and the maximum of two rest periods. A more purposive approach to the requirements of paragraph  could be seen as being less strict than that implied by a reference to the phrase “in any -hour period”. That approach is relevant to the calculation of the length of periods of rest, which is contained in paragraph  of Standard A.. It is not used in paragraph  and could result in undue rigidity if it were applied to the calculation of the number of rest periods. The tripartitism that is central to the ILO approach and to the MLC,  is important in resolving these issues. The Convention leaves the details of the way in which the Convention’s requirements are implemented to be decided in the national laws or regulations of the countries ratifying it or, in many cases, through other measures such as CBAs in that country. As a starting point, national measures to implement may result in some differences in approach, but must take into account the essential purpose of the requirement for relatively uninterrupted periods of rest, that is, the avoidance of fatigue, as stated in Standard A., paragraph . If seafarers are provided with uninterrupted periods that significantly exceed the minimum ten hours, the purposes of the Standard are clearly being met, and a flexible approach can be adopted with respect to the details of the national requirements. This flexibility is provided in the MLC, , particularly by Standard A., paragraph , and also by determinations based on substantial equivalence in accordance with Article VI, paragraphs  and . The other important point that may be easily misunderstood is the issue of reconciling the provisions in Standard A., paragraph , regarding the “normal working hours standard” of an eight-hour day with one day of rest per week, with paragraph  which appears to envisage a maximum  hours of work in  days (or minimum  hours of rest). While paragraph  may be an optimal work schedule, essentially its role can be best understood as also relating it to the calculation of pay for overtime. Since the content and the text of Standard A. is almost exactly the same as an existing ILO convention adopted within a decade of the MLC, , in principle, it would seem unlikely to be controversial during the development of the MLC, . However, Standard A. proved to be extremely difficult with significant divisions in the Government Group. The difficulty in connection with the text arose not from the requirements but from their application in the context of the definition of a seafarer, which now includes a much larger group of seafarers (and ships). The predecessor Convention No.  allowed for a national determination regarding ‘seagoing ship’ and the question of who is a seafarer was also subject to similar national discretion in Article  (d):

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(d) the term “seafarer” means any person defined as such by national laws or regulations or collective agreements who is employed or engaged in any capacity on a seagoing ship to which this convention applies.

In many countries ships’ masters, and often engineers, are not considered ‘seafarers’ for purpose of the application of hours of work or rest. During the negotiation to develop the MLC,  many governments did not agree that the master should be covered by hours of work or rest provisions. The Shipowners’ Group largely agreed with this view. Other governments were equally opposed to not requiring that masters be covered. The Seafarers’ Group agreed with this view. As explained in the Commentary72 to the PTMC: Comment  (on Regulation .) . Regulation . deals with hours of work or rest. Paragraphs  and  of Standard A. provide the ability to respond to specific situations at a national level and to emergency events. However, some Governments feel that they need to specifically exclude masters and/or chief engineers from the hours of work and rest requirements. Others feel that the issue is already provided for in the current text and that it is not appropriate to make exceptions, especially in light of growing concerns about the impact of fatigue on safety. The Seafarer representatives have expressed significant concern about the idea of excluding any seafarers from the hours of work and rest provisions and believe that it is contrary to understandings reached with respect to the Seafarers’ Hours of Work and the Manning of Ships Convention (No. ). The Shipowner representatives have indicated support for the concerns of the Governments that wish to have such an exclusion. The High-level Group has on a number of occasions stressed that the new Convention should closely follow the provisions of Convention No. , whose adoption had been the subject of extensive debate and delicate compromises. . The recommended draft includes—inside square [ ] brackets—the two alternative proposals with respect to exclusions from the Regulation that were made by Government representatives at the High-level Group’s last meeting. One is in paragraph  of Regulation .;73 the other is in paragraph  of Standard A..74

The difference between the two alternatives, aside from some subtleties in wording with the text proposed for the standard providing for coverage but allowing for some flexibility, was the significant impact of the choice of place72

Commentary to the Recommended Draft, supra note . . [Seafarers employed in positions such as master and chief engineer which require flexibility in their hours of work and rest are not covered by this Regulation.] 74 . [Nothing in this Standard shall prevent a Member from having national laws or regulations or a procedure for the competent authority to set out different limits on hours of work or rest, subject to paragraph  above, for masters and chief engineers not ordinarily engaged in watchkeeping duties.] 73

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ment in a regulation rather than a standard. Inclusion in a standard would allow for more rapid amendment in the future. These two proposals were heatedly debated at the PTMC. The following extract from the Technical Committee meeting report75 provides a flavour of the debate and principles involved. . The Chairperson referred to Convention No.  regarding scope issues, and reminded the Committee that masters were included in the definition of a seafarer contained in this Convention. . The Chairperson of the Government group reported that the governments were divided on this issue. . The Government member of the United Kingdom said this text had serious implications. In Convention No. , a seafarer was defined as anyone employed on a ship, which definitely included the master and chief engineers. The human element was recognized as a priority in international maritime regulations. Fatigue was a hazard and consequently a prime concern for those seeking to learn from accidents at sea. Indeed, fatigue was often identified as a primary cause of major maritime accidents. How could one set of regulations condone, or implicitly encourage, ships to be operated by people who were unfit because of fatigue? The Shipowners’ alternative text was not acceptable either. His Government refused to accept any exceptions or relaxations in the consolidated Convention to the minimum periods of rest for any seafarers, including masters and chief engineers. . The Government members of France, Germany, Ghana, the Netherlands, Norway and the Syrian Arab Republic supported the position taken by the Government member of the United Kingdom. . The Government member of Japan did not disagree that a master was by definition a seafarer, but considered that the nature of his job was different. Masters had full responsibility for maintaining order on the ship, in both normal and emergency conditions. No one could substitute for the master when he was on board ship, and flexibility was required in terms of hours of rest. The Government member of the Republic of Korea agreed with the Government member of Japan and said that the nature of the work of masters and chief engineers not engaged in regular watchkeeping duties on board was different from that of other seafarers. They had full responsibility for ensuring the safety and health of seafarers, the safe operation of ships and the protection of the marine environment in any circumstances. Therefore a strict limit on hours of work or rest should not be applied to masters and chief engineers. . A show of hands indicated that a large majority of governments were in favour of deleting paragraph  of Regulation .. . The Shipowner Vice-Chairperson was only requesting a relaxation of the requirements, citing the many everyday duties incumbent on the master, including the frequent obligation to be present for compulsory inspections while in port. . The Seafarer Vice-Chairperson considered the text ambiguous, especially the word “flexibility”. The master had a critical central role to play, but in order to retain the capacity to lead, the master needed to rest. 75

Committee No.  Report, supra note , pp. –.

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. The Chairperson announced he would inform the Steering Committee that an impasse had been reached on this issue, which would be returned to subsequently.

A decision was made to delete both proposals.76 However, the issue was not resolved and surfaced at the th ILC. Again, it divided the Government Group and the Seafarers’ and Shipowners’ Groups, when an amendment aimed again at allowing flexibility on this question was proposed, this time formulated as a new guideline in Part B.77 Because of its importance the discussion is set out at length below. . The Government member of Japan, speaking also on behalf of the Government members of Indonesia, Republic of Korea, Malaysia, New Zealand, Pakistan, Philippines, Russian Federation and Thailand, submitted amendment D., which sought to add, after paragraph , the following new paragraph: National laws and regulations may, after consultation with shipowners and seafarers concerned, stipulate that masters are covered by paragraphs ,  and  of this Standard only when engaged in regular watchkeeping and as a consequence to add the following new Guideline B..: Guideline B..—Masters In applying paragraph  of Standard A., the competent authority should pay particular attention to fatigue, and should take into account the nature of masters’ duty, which includes the overall safety and management responsibilities on board the ship. . The speaker explained that masters were the supreme commanders of their vessels and bore heavy responsibility in all matters, including maintenance and discipline on board. It was, therefore, inappropriate to regulate their hours of work even though Standard A., paragraphs  and , did provide for some degree of flexibility. Referring to the situation in his country, he stated that the regulations governing masters’ watchkeeping were stricter than the provisions of the STCW Convention limiting watchkeeping to eight hours, especially in view of the fatigue factor. He believed, therefore, that the Government of Japan took masters’ fatigue more seriously than most other countries. Masters exercised a multitude of functions being responsible, among other things, for port state control issues, complaint procedures and scheduling the crew’s hours of service. Furthermore, in Japan there were about  Laws delegating authority to ship masters, including policing. Masters were expected to fulfil their duties at all times and therefore could not be subject to the ordinary eight-hour per day schedule nor the maximum  hours of work per day. Masters should be able to manage their working hours freely. This view represented the tripartite consensus in Japan. If their hours of work were to be strictly regulated, two or three masters might be required for each ship, which would prevent the normal operation of the ship. 76

Ibid., p. ,

. On the suggestion of the Chairperson, the Committee agreed to delete the text of Regulation ., paragraph  and that of Standard A., paragraph . 77

Committee of the Whole Report, supra note .

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. The Employer Vice-Chairperson recalled that the master of the ship bore ultimate responsibility for the safety of the ship, the passengers, the cargo, the crew and the conservation of the marine environment. Masters required flexibility in the arrangement of their hours of work and rest. He accordingly supported the amendment. . The Worker Vice-Chairperson strongly opposed the amendment. One position which required enhanced protection was that of the master who carried an extensive list of responsibilities and was held accountable for practically everything that happened on board. Most importantly, the master was responsible for the lives of all persons on board. Excluding the master from the application of hours of work and rest regulations was unacceptable. Referring to Annex , paragraph , of the IMO resolution A.() of  concerning principles of safe manning, he stressed that it was widely recognized that every company had the responsibility to ensure that the master, officers and ratings did not work more hours than was safe. He also referred to the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ), Article , which required the shipowner to ensure that the master was provided with the necessary resources for the purpose of compliance with obligations under that Convention, including those relating to the appropriate manning of the ship. . Turning to the issue of fatigue, the speaker quoted an excerpt from the June  study by the United Kingdom Marine Accident Investigation Branch (MAIB) which referred to a worrying number of merchant ships involved in collisions or near misses. While the details of the accidents might vary, the fundamentals remained depressingly consistent: fatigued crews, due to undermanning; falsified hours of work records; no dedicated lookout on the bridge; and poor situational awareness, anticipation and judgment by officers of the watch. These were classic symptoms of fatigue. In , MAIB had conducted a safety study covering , accidents over the last ten years,  of which were examined in detail. The results showed conclusively that poor manning levels and fatigue were major causal factors in collisions and groundings. The speaker would welcome the idea of having three masters on a ship and could not see what might be objectionable with such an eventuality. It was unacceptable for masters to be exempt from the hours of work and rest coverage of the new Convention. Neither the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ) nor the European agreement on the organisation of working time of seafarers () provided for such an exemption. He believed that, in any event, Regulation A., paragraph , offered sufficient flexibility. Many governments took safety seriously. He therefore sought the support of Government members . . . . The Government member of the United Kingdom expected that this new Convention properly recognized the rights of seafarers, the most fundamental of which was the right to life. Seafarers should not be placed at risk of losing their life while serving on board a ship. The master was responsible for everyone on board, and also for adhering to international maritime regulations. Both the IMO and the ILO recognized the importance of addressing the issue of fatigue. Indeed it was the responsibility of all parties to ensure safe manning levels at all times. Fatigue had been identified as the underlying cause of many maritime accidents. The new Convention must not condone nor indeed permit ships to be operated by seafarers who were not fit to perform their duties due to fatigue. There should

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be no exceptions to minimum hours of rest, particularly for masters. Amendment D. was not acceptable. . The Government member of the United States stated that hours of work and rest was a complex matter related to manning, trade patterns, type of ship, type of trade and the issues of responsibilities. The United States had strict hours of work regulations and would therefore, not be affected either way by this amendment. For this reason, her delegation neither opposed nor supported the amendment. She urged the Committee not to resort to a vote; it would be a pity if one side were to win at the expense of the other.

Ultimately the amendment was withdrawn and the matter resolved on the basis of the following, very important, clarification provided by a representative of the ILO’s Secretary-General of the Conference (the Office) regarding the current wording of paragraphs  and  of Standard A.: . The Government member of Japan requested clarification from the Office on the flexibility contained in paragraphs  and . . The representative of the Secretary-General responded to the request of the Government member of Japan. Paragraph  provided that: Nothing in paragraphs  and  of this Standard shall prevent a Member from having national laws or regulations or a procedure for the competent authority to authorize or register collective agreements permitting exceptions to the limits set out. Such exceptions shall, as far as possible, follow the provisions of this Standard but may take account of more frequent or longer leave periods or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ships on short voyages. This paragraph was almost identical in its wording to paragraph  of Article , of the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ). In the first sentence of paragraph , it seemed important to note the reference to collective agreements “permitting exceptions” to the limits in paragraphs  and . Thus, the competent authority might authorize exceptions to be permitted in certain circumstances. The second sentence in paragraph  specified that these “exceptions shall, as far as possible, follow the standards set out, but may take account of more frequent leave periods etc. . . .”. The second part of the sentence, with its use of the word “but”, indicated a contrast with the previous statement. The speaker would understand it as implying that exceptions should seek to follow the standards of the Convention “as far as possible”, except where the variations to the limits were appropriately combined with other elements in the agreement concerning more frequent or longer leave periods or compensatory leave for specified groups of seafarers. Of course, any exception would need to avoid any risk of fatigue. Compatibility between a collective agreement and paragraph  would depend upon whether or not the collective agreement followed the limits set out in paragraphs  and  of the Convention “as far as possible”, and whether sufficient account had been taken of the exceptional nature of reductions of those limits. Such reductions could be regarded as

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. .

. .



permissible for specific categories of seafarers (including masters) and/or in specific circumstances in which it could reasonably be considered not possible to follow the normal standards. Paragraph  stated that: Nothing in this Standard shall be deemed to impair the right of the master of a ship to require a seafarer to perform any hours of work necessary for the immediate safety of the ship, persons on board or cargo, or for the purpose of giving assistance to other ships or persons in distress at sea. Accordingly the master may suspend the schedule of hours of work or hours of rest and require a seafarer to perform any hours of work necessary until the normal situation has been restored. . . . Although a master could not really deliver orders to him or herself, a reasonable reading would require the same flexibility to apply, above all, to the master in the emergency situation concerned. The Government members of Indonesia, Japan and Malaysia withdrew the amendment, in light of the clarification provided by the Office. The Government member of the Republic of Korea supported the withdrawal of the amendment, but asked whether paragraph  covered issues such as marine pollution, security matters, the detention of the ship or other overriding operational circumstances. In response, the representative of the Secretary-General stated that paragraph  could be interpreted to cover those cases as highlighted by the Government member of the Republic of Korea.78 Standard A. was adopted without amendment.

The wording in paragraph  needs to be carefully considered as the English language version might be read as permitting a country to have national laws or regulations generally permitting derogations. However, the French language 78 Given the debate on the wording, this reported statement is puzzling. However, it should be noted the issue was subsequently clarified in . The ILO’s Governing Body convened a meeting of a Preparatory Tripartite MLC,  Committee in Geneva – September  to consider various issues in preparation for entry into force of the Convention. The question was asked about the scope of matters under paragraph  and the following view expressed by the Deputy Secretary-General of the meeting. See Final Report, Preparatory Tripartite MLC,  Committee, , ILO.Doc. No. PTMLC// available at: http://www.ilo.org/global/standards/ maritime-labour-convention/WCMS_/lang–en/index.htm: . The representative of the Government of the Republic of Korea raised a question regarding interpretation of Standard A., paragraph  of the Convention, and asked whether it covered issues such as marine pollution, security matters, the detention of the ship or other overriding operational circumstances. He drew attention to paragraphs  and  of Provisional Record No. , Part I, Report of the Committee of the Whole, th (Maritime) Session, Geneva, . . The Deputy Secretary-General noted that the question raised by the representative of the Government of the Republic of Korea concerned a ship’s master’s right to suspend the hours of rest under Standard A., paragraph . In her view the overriding operational circumstances of the kind referred to would, in any event, often be covered as they would also involve one or more of the kinds of emergency circumstances referred to in paragraph .

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version would not support this reading. Rather, the point is that derogations ‘to the limits’ must be provided for in collective agreements, which are either authorized or registered under ‘national laws or regulations’ or ‘a procedure’. This is an important point to note in connection with the wording of the flexibility option that was adopted, instead of paragraph , in the Manila Amendments to the STCW Convention. A paragraph similar to the flexibility provided in paragraph  was subsequently proposed for inclusion in the STCW Code amendments in .79 Two proposals for a flexibility clause80 proved to be controversial, with seafarers concerned about the potential for contracting out application of the minimum hours of rest.81 Ultimately the clear, if complex, exception in paragraph  was 79 Report to the Maritime Safety Committee, Sub-Committee on Standards of Training and Watchkeeping,  February , IMO Doc. STW //Add., Annex . 80 The proposed amendments to the text of the STCW Code that were to be considered at the Conference provided two alternatives. See above text at note  ff.; Report to the Maritime Safety Committee, Sub-Committee on Standards of Training and Watchkeeping, st Session,  February , IMO Doc. STW //Add., Annex , p. :

[ Nothing in this Convention shall prevent Parties from applying exceptions to the above limits, as provided for by other relevant international Conventions. These exceptions shall under no circumstances be less than  hours of rest in any -day period. bis Such exceptions shall, as far as possible, follow the standards set out, while taking into account the guidance regarding prevention of fatigue laid down in section B-VIII/.] [ Parties may grant exemptions from the required hours of rest in paragraph . above provided that the rest period under no circumstances is less than  hours in any -day period. Such exemptions shall not be given for more than two consecutive weeks and shall, as far as possible, take into account the guidance regarding prevention of fatigue laid down in section B-VIII/.] 81 Draft Report to the Maritime Safety Committee, Sub-Committee on Standards of Training and Watchkeeping, st Session,  January , IMO Doc. STW /WP., p. :

.. ITF (STW //), commenting on documents STW // and STW //, expressed the opinion that any proposal to remove, exclude or exempt the provisions of paragraphs  and  of section A-VIII/, should be rejected as sufficient flexibility, within the -hour work [day] was provided for in the proposed paragraph . Furthermore, reference to exemptions under other non IMO conventions contained in the proposed paragraph  or section B-VIII was inappropriate and should not be included. .. The delegation of the United States, supported by others, expressed their preference for the proposal by Norway. .. The delegation of the Bahamas expressed the opinion that the regulations should be in harmony with those of MLC , otherwise Administrations would have difficulties in implementing the conflicting requirements. .. The delegation of Greece, supported by others, expressed their preference for the proposal by Austria et al., as it would harmonize the requirements of different international conventions as well as provide the necessary flexibility. .. After an in-depth discussion, the Sub-Committee, recognizing that the divergence of opinion could not be resolved at this stage, agreed to retain both proposals in square brackets for a decision by the Conference.

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adopted, as set out in the extract below from the text that was finally adopted in June  (emphasis added; footnotes omitted).82 It reflects a clear effort to coordinate requirements for two international organizations with overlapping interests. At the same time the clear difference between the two organizations in terms of approaches based on concerns for uniformity and the role of tripartism in flexibility is evident. CHAPTER VIII Standards regarding watchkeeping Section A-VIII/ Fitness for duty  Administrations shall take account of the danger posed by fatigue of seafarers, especially those whose duties involve the safe and secure operation of a ship.  All persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch and those whose duties involve designated safety, prevention of pollution and security duties shall be provided with a rest period of not less than: . a minimum of  hours of rest in any -hour period; and .  hours in any -day period.  The hours of rest may be divided into no more than two periods, one of which shall be at least  hours in length, and the intervals between consecutive periods of rest shall not exceed  hours.  The requirements for rest periods laid down in paragraphs  and  need not be maintained in the case of an emergency or in other overriding operational conditions. Musters, fire-fighting and lifeboat drills, and drills prescribed by national laws and regulations and by international instruments, shall be conducted in a manner that minimizes the disturbance of rest periods and does not induce fatigue.  Administrations shall require that watch schedules be posted where they are easily accessible. The schedules shall be established in a standardized format in the working language or languages of the ship and in English.  When a seafarer is on call, such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work.  Administrations shall require that records of daily hours of rest of seafarers be maintained in a standardized format, in the working language or languages of the ship and in English, to allow monitoring and verification of compliance with the provisions of this section. The seafarers shall receive

82

See also notes  and ; IMO, Conference of Parties to the STCW Convention, Adoption of the Final Act and Any Instruments, Resolutions and Recommendations Resulting from the Work of the Conference, Draft Resolution , Adoption of Amendment to the Seafarers’ Training, Certification and Watchkeeping (STCW) Code, Agenda item , STCW/CONF./DC/,  June .



chapter eight a copy of the records pertaining to them, which shall be endorsed by the master or by a person authorized by the master and by the seafarers.  Nothing in this section shall be deemed to impair the right of the master of a ship to require a seafarer to perform any hours of work necessary for the immediate safety of the ship, persons on board or cargo, or for the purpose of giving assistance to other ships or persons in distress at sea. Accordingly, the master may suspend the schedule of hours of rest and require a seafarer to perform any hours of work necessary until the normal situation has been restored. As soon as practicable after the normal situation has been restored, the master shall ensure that any seafarers who have performed work in a scheduled rest period are provided with an adequate period of rest.  Parties may allow exceptions from the required hours of rest in paragraphs . and  above provided that the rest period is not less than  hours in any -day period. Exceptions from the weekly rest period provided for in paragraph . shall not be allowed for more than two consecutive weeks. The intervals between two periods of exceptions on board shall not be less than twice the duration of the exception. The hours of rest provided for in paragraph . may be divided into no more than three periods, one of which shall be at least  hours in length and neither of the other two periods shall be less than one hour in length. The intervals between consecutive periods of rest shall not exceed  hours. Exceptions shall not extend beyond two -hour periods in any -day period. Exceptions shall, as far as possible, take into account the guidance regarding prevention of fatigue in section B-VIII/.  Each Administration shall establish, for the purpose of preventing alcohol abuse, a limit of not greater than .  blood alcohol level (BAC) or . mg/l alcohol in the breath or a quantity of alcohol leading to such alcohol concentration for masters, officers and other seafarers while performing designated safety, security and marine environmental duties. . . .

Several interesting questions have arisen subsequently83 as to the potential interaction between the flexibility cited above in paragraph  of the STCW and the flexibility under Standard A., paragraph , of the MLC, . Do they conflict? For States that are bound by both conventions, does this mean that flexibility under paragraph  can only be exercised for STCW personnel in accordance with parameters in the STCW Convention, paragraph  and, conversely, does it mean the paragraph  STCW flexibility can only be exercised under a collective bargaining agreement as required under the MLC,  paragraph ? The answer to the first, as noted in earlier comments, is that the two flexibility provisions, while differing in approach, do not necessarily 83

See supra note . The Preparatory Tripartite MLC,  Committee meeting in Geneva, – September , considered various issues in preparation for entry into force of the Convention. At the meeting, these questions arose and views along these lines were expressed by the Deputy Secretary General of the Meeting. See: Final Report, supra note , at para. , and paras –. It was also noted that at the Manila meeting the ILO representative had indicated that, for the ILO, a one hour meal break could not be counted in this minimum as an hour of rest. This information was noted in the records of the Conference.

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conflict, although there may be instances where a government in allowing for an exception would need to comply with the higher standard, if they differed, in a particular case. With respect to the interaction between the two provisions, the answer to both questions appears to be, yes. The result of the combination of these two requirements in these two conventions would mean that flexibility for seafarers governed by the STCW provisions would need to be excised in way that complies with both conventions. However, the IMO and ILO respectively would be concerned only with compliance by the State with the particular convention adopted by the organization. Finally, in line with Guideline B., Guideline B .. of the MLC, , contains special provisions for young seafarers. However, paragraph  clarifies that young seafarers are not exempt from the general obligation on all seafarers to work during emergencies as provided for in paragraph  of Standard A., the scope of which was explained above in the extract from the Report of the Committee of the Whole at the th ILC. Regulation .—Entitlement to Leave Regulation . is to ensure that seafarers have adequate leave. It is intended to address concerns that seafarers often work for extended periods without actually taking annual leave. It is difficult to prohibit workers, particularly in the context of globalized employment and short-term contracts, from taking consecutive employment. The notion of paid annual level also presupposes an ongoing employment situation. There are also difficulties in reconciling these kinds of rights and ideas about the details of basic minimum annual leave, which varies considerably from country to country, even among developed countries. This regulation and Code consolidates the Seafarers’ Annual Leave with Pay Convention,  (No. ),84 which provided for  calendar days85 per year, a detail that was difficult for many countries. However it is notable that the Regulation itself only contains two generally worded provisions, paragraph , regarding annual leave, and paragraph , regarding the grant of shore leave. The latter, which complements the provisions of Regulation .—Access to shore-based welfare facilities, is based on “the principle that shore leave should be understood as an important aspect of seafarers’ health and well-being”.86 84

Seafarers’ Annual Leave with Pay Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, has been ratified by  countries. It consolidates the Paid Vacations (Seafarers) Convention (Revised),  (No. ) and the Holidays with Pay (Sea) Convention,  (No. ). 85 All days in a month, including weekends and holidays. 86 Report I(A), supra note , Note  (Regulation .), para. .

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Importantly Standard A., paragraph , requires adoption of laws and regulations determining minimum leave. This appears to require that both must be adopted.87 The requirements for specific minimum leave set out in Standard A. allows for amendment in the future or the use of substantial equivalence under Article VI. The basic obligation under the Standard is that flag States are to require that seafarers be given paid leave which, unless calculated differently in a collective bargaining agreement or in law or regulations providing for an appropriate method of calculation, is calculated on the basis of . calendar days per month of employment. On this point it is noted that Standard A., paragraph , uses the expression ‘subject to’ to indicate that the formula of a minimum of . calendar days per month can be overridden by CBAs or laws and regulations, but only insofar as the method of calculation of leave is concerned and only to meet the special needs of seafarers. For example, the amount of leave could be expressed (by law or in a CBA) as . calendar days per quarter ( × .), if such a solution were designed to take account of the special needs of seafarers. But any lowering of the resulting amount of days as compared with the minimum . per month, could give rise to a representation or complaint under the ILO Constitution. Part B of the Code, Guideline B., reproduces most of the provisions found in the existing Convention No.  and provides guidance as to how matters such as public holidays, etc. should be dealt with in calculating leave entitlements. Importantly, in terms of the principles behind the Regulation, Guideline B.. sets out the concepts of taking annual leave in the place where the seafarer has a substantial connection and for the seafarer to be recalled only in cases of “extreme emergency” and with the seafarer’s consent. This again points to the idea that the purpose is to ensure that seafarers are not only entitled to, but actually take, a break between work periods and, at a minimum, on a yearly basis. It also, as noted above, may reflect ideas about continuing employment with the same shipowner and on ships under the same flag. Despite the importance placed on annual leave, it is not a matter that must be certified on ships that are to be certified as well as inspected except indirectly through the SEA (see Standard A., paragraph (f)). Regulation . and the Code provisions were not especially controversial during the development of the MLC,  and were not discussed at all during the PTMC. Although one minor wording matter was amended88 at the th 87 88

See discussion in Chapter  at pp. –. Committee of the Whole Report, supra note : Regulation .—Entitlement to leave

. Paragraph  of Regulation . was adopted without amendment.

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ILC, Regulation . and Standard A. were not the subject of extended discussion. There are, however, some changes in the wording of Standard . from similar provisions in Convention No.  that may tighten up some flexibility. Paragraph  provides: . Any agreement to forgo the minimum annual leave with pay prescribed in this Standard, except in cases provided for by the competent authority, shall be prohibited.

The predecessor provisions were Articles  and  of Convention No. : Article  In exceptional cases, provision may be made by the competent authority or through the appropriate machinery in each country for the substitution for annual leave due in virtue of this Convention of a cash payment at least equivalent to the remuneration provided for in Article . Article  Any agreement to relinquish the right to the minimum annual leave with pay prescribed in Article , paragraph , or—except as provided, exceptionally, in pursuance of Article  of this Convention—to forgo such leave, shall be null and void.

Clearly, the overall thrust of the Regulation is to try to encourage avoidance of fatigue and to prevent health and other risks related to fatigue. However, in the context of short-term employment contracts, this is difficult to enforce. . The Government member of Norway introduced amendment D. submitted by the Government members of Germany and Norway to replace the text of paragraph  by the following: “Seafarers shall be granted shore leave to ensure their health and well-being and consistent with the operational requirements of their positions.” The amendment was immediately subamended to replace the word “ensure” by “benefit”. The Office text could conceivably be interpreted as meaning that seafarers were to be granted shore leave only if such leave fulfilled two requirements: that it be consistent with their health and wellbeing, and that it be consistent with the operational requirements of their positions. It was to avoid that ambiguity that the sponsors had submitted their amendment. . The Employer Vice-Chairperson said that his group supported the amendment, but suggested that the word “promote” would be preferable to “benefit”. . The Worker Vice-Chairperson also supported the amendment, but preferred the word “benefit”. . The Government members of Germany and Singapore supported the amendment and expressed a preference for the word “benefit”. . The amendment was adopted as subamended by the Government member of Norway. It was referred to the Drafting Committee with a request to pay special attention to the other language versions. . Paragraph  was adopted as amended. . Regulation . was adopted as amended. . Standard A. and Guidelines B., B.., B.., B.. and B.. were adopted without amendment.

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A question that might arise is how this obligation would work in the case of short-term contracts and also whether this means seafarers must, that is are obliged, to take leave (rather than money). One answer could be that the concept of ‘leave’ implies that, during the leave period, seafarers will enjoy all the benefits of the SEA (including social protection) and not just their wages, but will not be required to work or to be in the workplace. In other words, the contract itself would need to include this period of leave. Obviously the policy intention behind this regulation is to try to encourage seafarers’ to take annual leave rather than undertake back-to-back voyages and risk fatigue. However this is difficult to implement in light of contracts that are often of less than  months duration89 and a right to be repatriated in periods less than  months. A further question is what is meant by an “agreement to forgo minimum annual leave with pay”? To ‘forgo’ means to give up a right. If a seafarer chooses to take the pay and then freely decides to work for additional pay, often for a new employer on another contract, during a ‘paid leave’, it is not clear that he or she is necessarily agreeing to forgo an entitlement, as opposed to exercising it. Standard A., paragraph ,90 seems to envisage the case where the SEA states, for example, that they will be paid a specific amount in lieu of (instead of) annual leave. Clearly, unless permitted by the flag State, this would be prohibited.91 It also prohibits agreements that allow a seafarer to take annual leave but with no pay during the leave. At the same time it may be that for contracts for a short period, seafarers could be given only a right to payment in lieu of leave and this may be the kind of case where payment in lieu would be permitted by the competent authority under Standard A. paragraph . Regulation .—Repatriation Repatriation is an extremely important element of working conditions for the international workforce that is involved in seafaring. It refers to the basic need for a worker/seafarer to be able to return home, either at periodic intervals 89

For example, the “ITF uniform TCC collective agreement for crews of flag of convenience ships –” envisages a nine-month contract with paid leave at the voyage end. See: ITF, “ITF Uniform ‘TCC’ Collective Agreement,” available at http://www.itfglobal.org/files/extranet///ITFUniformTCCCBA-.pdf. 90 It should also be noted that Standard A., paragraph , only refers to “the minimum annual leave prescribed in this Standard”, that is,  calendar days per year. For example, if a SEA provides for  calendar days of leave per year, presumably the  extra days would not be covered by the prohibition in paragraph . 91 As noted on page  under the earlier Convention No. , Article , such an agreement to relinquish the right would (unless an exceptional situation) be ‘null and void’.

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during an ongoing contract of employment, or on completion of a contract. Regulation . is intended “[t]o ensure that seafarers are able to return home”. The main issue involved in the right to repatriation is not a question of immigration or border control but rather, under what circumstances it is to occur, who pays for it, and the conditions for travel. A related issue is, of course, what happens if there is a default by the responsible party. Repatriation is a long-standing right and practice in the maritime sector and the idea that the shipowner is to pay for seafarers to return home is not controversial. In fact the first convention on the matter, the Repatriation of Seamen Convention,  (No. ), was adopted  years before the MLC,  and revised in  by the Repatriation of Seafarers Convention (Revised),  (No. ). Both are revised by the MLC, . The  Convention has  ratifications but the  Convention has only been ratified by  countries. One of the reasons for this relatively low ratification is believed to be the high level of detail regarding costs, mode of transport, etc. set out in Convention No. . The MLC,  responds to this issue by comprising a brief regulation, with only two paragraphs, and Code, Part A, Standard A., containing a statement of the general rights and principles. The majority of the details in Convention No.  are now found in the guidelines in Part B of the Code. The current text of Regulation . and Standard A. were relatively uncontroversial except for its potential interaction with a parallel discussion in the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers that had been meeting since .92 The Working Group, chaired by the President of the PTMC and the th ILC, was to address a related problem of abandonment of seafarers, as well as other claims related to Regulation . of the MLC, . These issues remained largely unresolved until a meeting in  where principles for a future mandatory text were agreed.93 92 The Joint IMO/ILO Ad Hoc Expert Working Group was established in  to consider questions of liability and compensation in connection with crew claims; to ensure, through the operation of appropriate international instruments, the rights of crew members/seafarers to adequate compensation for loss of life, personal injury and abandonment; and to formulate suitable recommendations to the IMO Legal Committee and the Governing Body of the ILO, as appropriate. 93 The ninth session of the Joint IMO/ILO Ad Hoc Working Group on Liability and Compensation Regarding Claims for Death, Personal Injury and Abandonment of Seafarers was held – March . See: Provision of Financial Security, Progress report on the work of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers, Note by the IMO Secretariat, Legal Committee, th Session,  July , IMO Doc. LEG //, Annex, pp. –:

. She [the Representative of the International Labour Office] indicated that the draft related to the substance of an agreed proposal for an amendment to the MLC, , which would

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If endorsed by the Tripartite Committee to be established under Article XIII of the Convention, these principles will take the form of amendments to the Code of the MLC, . Two aspects of this discussion influenced the MLC,  and resulted in the inclusion in Regulation ., paragraph , and in Standard A., paragraph (b), of new requirements that a flag State must require that ships/shipowners provide financial security to assure the relevant responsibility. Neither provision addresses the particular form for the security, which could be a State-run system, private insurance, or another form of security such as a bond.94 Regulation ., paragraph , is expected to assist, at least in part, with reducing the number of cases where seafarers are abandoned in foreign countries and unable to return home because a shipowner is not solvent or for other reasons. follow Regulation . and the Standard and Guidelines under it. The proposed text had been developed as a proposal for development of amendments to the Code of the MLC, , using the Article XV procedure. The Special Tripartite Committee to be established under the MLC, , would need to give further consideration to the question of the precise placement and language of the proposed amendments to the MLC, , Code. In particular, consideration would need to be given to the way in which the Standards and Guidelines under Regulation . would be numbered in the amended version of the Convention. In the proposal, the paragraph numbering had not yet been changed so as to enable the text to be more easily compared with previous drafts and to avoid mistakes in cross-referencing. . The representative of the Office further stated that it was understood that there was agreement that the proposed certificate would be a matter for inspection by port States as well as flag States. This could be achieved fairly simply under the MLC, . The proposal for the amendment would also include a proposal for an amendment to the list of inspection areas in Appendices A-I and A-II of the MLC, , with consequential amendments to the Appendix A-III model documents. This would then eliminate the need for specific and perhaps confusing provisions relating to port State control. The precise wording would depend on whether the intention was to address port State control in connection with abandonment only or whether the amendment would relate to Regulation . and Standard A. as a whole. There might also be an amendment proposed for Standard A., paragraph (i), or the addition of a new provision for the seafarers’ employment agreement. The “plain language” purpose provision in connection with Regulation . might also be amended. The principles accepted by this session of the Joint Working Group will be considered by the Special Tripartite Committee to be established under Article XIII of the MLC,  by the ILO Governing Body once the Convention enters into force. 94 As noted in the Office Report for the th ILC, supra note , Note : . In the light of the serious concerns about repatriation, and in view of the discussions still under way within the framework of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers, the PTMC included a new provision (paragraph ) in the Regulation which obliges each Member to require that ships that fly its flag provide some form of financial security to ensure that seafarers are duly repatriated in accordance with the Code.

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

Regulation ., paragraph , makes its clear that seafarers are to be repatriated at no cost to themselves “in the circumstances and under the conditions specified in the Code”. Paragraphs  and (c) of Standard A. make it clear that, except for the limited circumstances outlined in paragraph , seafarers are not responsible for the cost of their repatriation and shipowners cannot collect this cost in advance or deduct it from wages. The limited circumstances where a seafarer could be responsible are where he or she has been “. . . found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations”. This wording suggests that before seafarers can be held responsible for costs there must have been a determination of some sort whereby he or she is ‘found’ to have been in default. Under paragraph  of the Standard, although shipowners are generally responsible for repatriation expenses for all seafarers on their ships, their right to recover costs from others, for example, third parties that may have contractual responsibility to them for these costs, is recognized. This is to address the situation of seafarers who are also employed by subcontractors (e.g., retail outlets on ships). This supports the approach adopted under Regulation . on SEAs where the seafarer is to deal with one person or entity—the shipowner named in the SEA. It will also be recalled that seafarers’ repatriation entitlements are to be set out in the SEA (Standard A., paragraph  (i)). Paragraph  of Standard A. envisages implementation in laws and regulation or other measures or collective bargaining agreements to address the details of repatriation entitlements. Flag States are required to ensure that seafarers “are entitled to repatriation” in the circumstances set out in paragraph (a) to (c). In addition, Standard ., paragraph (b), provides that a seafarer is entitled to be repatriated after a maximum period of service, which is to be less than  months. This does not mean that seafarers’ contracts need expire in one year, rather that they must have the right to be repatriated at least once in a -month period.95 Guideline B.., paragraph , sets out further details as to the circumstances when a right to repatriation should arise:

95

Although not discussed in the development of the Convention or its predecessor, one issue that may cause difficulty involves the interaction between Standard A., paragraph  and paragraph (b). Paragraph  provides (emphasis added): Each Member shall ensure that there are appropriate provisions in its laws and regulations or other measures or in collective bargaining agreements, prescribing: (a) the circumstances in which seafarers are entitled to repatriation in accordance with paragraph (b) and (c) of this Standard; (b) the maximum duration of service periods on board following which a seafarer is entitled to repatriation—such periods to be less than  months; and

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. Seafarers should be entitled to repatriation: (a) in the case covered by Standard A., paragraph (a), upon the expiry of the period of notice given in accordance with the provisions of the seafarers’ employment agreement; (b) in the cases covered by Standard A., paragraph (b) and (c) (i) in the event of illness or injury or other medical condition which requires their repatriation when found medically fit to travel; (ii) in the event of shipwreck; (iii) in the event of the shipowner not being able to continue to fulfil their legal or contractual obligations as an employer of the seafarers by reason of insolvency, sale of ship, change of ship’s registration or any other similar reason; (iv) in the event of a ship being bound for a war zone, as defined by national laws or regulations or seafarers’ employment agreements, to which the seafarer does not consent to go; and (v) in the event of termination or interruption of employment in accordance with an industrial award or collective agreement, or termination of employment for any other similar reason.

Again, curiously, although repatriation is very important and must be inspected by flag State inspectors, it is not included in the list of  areas in Appendix AI that are to be certified and potentially subject to port State control. However, (c) the precise entitlements to be accorded by shipowners for repatriation, including those relating to the destinations of repatriation, the mode of transport, the items of expense to be covered and other arrangements to be made by shipowners. The issue is whether paragraph (b) means that the SEA must be concluded for periods of less than  months or whether a seafarer must be repatriated during the national maximum for the duration of service periods on board. While national laws or regulations or CBAs or other national measures to implement the MLC,  often make repatriation mandatory after that period, the Convention, as worded, does not. The Convention addresses the issue of ‘entitlement’, which a seafarer may decide not to exercise. The precise purpose of paragraph (b) (which corresponds to Article , paragraph , of Convention No. ) is not entirely clear. However, its intention is illuminated by Guideline B.., paragraph  (also from Convention No. ). The Guideline indicates that the concern, which is also reflected in many other provisions in the Convention (such as hours of rest and annual leave), lies with helping to avoid fatigue and ensuring the well-being of the seafarer. Ultimately this ties in with the wider concerns about the human element in shipping in connection with ship safety. Thus its purpose is to expressly require national implementation regarding the particulars of the entitlements set out in Standard A., paragraph . It is clearly linked with Standard A., paragraph (a), which is complemented by paragraph  of Guideline B.. setting the circumstances under which a seafarer is entitled to repatriation. The most normal circumstance is when the SEA expires and the seafarer is abroad (Standard A., paragraph (a)). Since many CBAs and SEAs are for periods of less than one year, the situation provided for in A., paragraph (b)), may never arise. However, if a seafarer serving under a SEA—or, more likely, successive SEAs—has remained with the ship, without going home, for a long period (maximum  months’ service), paragraph (b) would entitle him or her to repatriation even though none of the circumstances referred to in paragraph (a) had arisen. But this would not necessarily mean that the current SEA would be terminated: the seafarer could be repatriated for the purpose of taking annual leave, and later return to the ship.

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as noted above, it is indirectly certified in that it is one of the entitlements that must be listed in the SEA, which is subject to certification. The remainder of Standard A.. sketches out various scenarios for financial responsibility in the event that the required shipowner security fails or was not, in fact, required and the flag State or another State ends up having to pay to repatriate seafarers. Provision is made in paragraphs  and  for recoupment of these costs from the shipowner concerned or from the relevant flag State. One important point, in connection with the legal remedies under Standard A., paragraph , that was the subject of some debate96 related to the wording to avoid a conflict with the potentially applicable provisions of an IMO convention, the International Convention on the Arrest of Ships, , which entered into force in . A State that has paid for repatriation can recover the costs from the shipowner through detention, or requesting detention, of ships of the shipowner concerned to recover costs.

96

Committee No.  Report, supra note , pp. – (Note: Paragraph  was then paragraph ): Standard A.—Repatriation Paragraph  . The Chairperson proposed the text be left in curly brackets, as had been done with Regulation ., paragraph . . The Shipowner Vice-Chairperson considered the text could be dealt with now, and that it was an issue for the governments. . The Seafarer Vice-Chairperson considered the procedure laid down in the text was a logical one. . The Government member of Norway considered the paragraph should be deleted, as such a provision came under the International Convention on Arrest of Ships (). Arrest required a court order, with built-in legal safeguards. The introduction of the concept of detention (in the text under consideration), which might be the decision of a single inspector, would undermine the Convention mentioned above. The Government member of Denmark supported the Norwegian position. . The Government member of Liberia advocated removing the curly brackets and retaining the provision. The International Convention on Arrest of Ships,  (Arrest Convention) covered this, but this provision offered a simplified way of recovering the costs. . The Government member of the United Kingdom supported the point made by the Government member of Norway. . The representative of the International Christian Maritime Association (ICMA) urged that this issue be dealt with at this preparatory Conference in order to provide protection for seafarers in the decades to come. The instrument would be incomplete and weak without such a provision. Funds from judicial sale were often insufficient to cover repatriation costs. Moreover, when a ship sank, such sale was not possible. . The Government member of Norway pointed out that the paragraph referred to a situation where the cost of repatriation had already been paid, and that it proposed a way for Members to recover this cost. ICMA’s concern had already been addressed

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Standard A. also speaks, in paragraphs  and , to international cooperation and requires that ratifying countries facilitate the repatriation of seafarers on ships that call at its ports or pass through its territorial or internal waters, and importantly “shall not refuse the right of repatriation to any seafarer because of the financial circumstances of a shipowner”. Further details of

. . . .

. . .

by the decision taken in the provision. Detaining a ship in port did not necessarily contribute to recovering costs. The Shipowner Vice-Chairperson stated that this was a matter for governments. There was a difference between detention and arrest of a vessel. If governments had the opportunity under the Convention to detain a ship, it might prove useful. The Seafarer Vice-Chairperson added that in any case the seafarer should have already been repatriated. Therefore this was a matter for governments to pursue in recovering their costs. The Chairperson called for a show of hands from the Government group: a large majority were in favour of including paragraph . The Government member of Norway felt that this result would create problems for both flag States and vessels. Under the Arrest Convention a Shipowner could provide financial security to obtain release from arrest, but not so in the case of detention. There was no mention of appeal procedures. The Government member of Denmark suggested that if a reference that took into account other international conventions were added to the provision, governments could thus discharge their obligations under the Arrest Convention. The Committee agreed that paragraph  be referred to the Drafting Committee, taking into account the suggestion made by the Government member of Denmark. The Chairperson introduced two documents. The first was a proposed text from the Drafting Committee to replace existing paragraph  with: Taking into account international instruments, a Member which has paid the cost of repatriation pursuant to this Code may detain, or request the detention of, the ships of the shipowner concerned until reimbursement has been made in accordance with paragraph (a).

The second document was an amendment submitted by the Government members of Denmark and Norway to replace paragraph  with the following: A Member which has paid the cost of repatriation pursuant to this Code and established a financial claim may detain, or request the detention of, the ships of the shipowner concerned in accordance with the provisions of the International Convention on Arrest of Ships,  (the Arrest Convention) and the corresponding national legislation. . The Shipowners and Seafarers were in favour of the Drafting Committee text. . The Government member of Denmark, in presenting the joint proposal, said it was important that fair rules be applied in case of detention of ships for the purpose of recovering the cost of seafarer repatriation. The proposal of the Drafting Committee was perhaps not strong enough, but perhaps reference could be made to the Arrest Convention. . The Shipowner Vice-Chairperson felt that any method of recovering the costs of repatriation was acceptable, including detention. . The Government member of the United Kingdom proposed a subamendment to include a reference to other international instruments, including the Arrest of

title : conditions of employment



international cooperation are set out in Guideline B... Interestingly, the title and the first paragraph of this guideline do not appear to be limited to ratifying countries (unlike paragraph , “[e]ach Member . . . ”). Under paragraph  of Standard A. the flag State’s provisions on repatriation entitlements are to be available to seafarers on board ship in an appropriate language. Regulation .—Seafarers’ Compensation for the Ship’s Loss or Foundering Regulation ., as its language may suggest, consolidates one of the oldest ILO conventions, the Unemployment Indemnity (Shipwreck) Convention,  (No. ). The idea behind the term ‘foundering’ is best captured by the name of the original convention, ‘shipwreck’ or sinking. This one paragraph regulation provides that seafarers are entitled to compensation for injury, loss, or unemployment arising from a ship’s loss or foundering. This potentially expands the scope of Convention No. , which only dealt with unemployment. However, Standard A. only requires that flag States adopt rules ensuring that where a ship is lost or has foundered shipowners have to pay seafarers an indemnity for unemployment resulting from the loss or foundering. The other potential liability posed by the Regulation is addressed only indirectly in that these rules are said to be ‘without prejudice’ to any other rights the seafarer may have regarding loss or injuries. This provision may create some uncertainty as to whether the phrase ‘loss or injury or unemployment’ are to be considered to be the same category of harm that is addressed by this regulation and standard. Certainly illness or other kinds of injury arising during employment would probably be addressed under Regulation .. In retrospect, and in light of the principles proposed for future amendments, to deal with the consequences of abandonment, that may well include some elements of wages and which could occur in a case of a ship’s loss or foundering, it may be that this provision should have been linked to repatriation. On the other hand, this regulation is specific to financial compensation. Guideline Ships Convention. The Government member of the United States seconded the proposal. . The secretariat read out the text as subamended: Taking into account applicable international instruments, including the Convention on the Arrest of Ships,  (the Arrest Convention), a Member which has paid the cost of repatriation pursuant to this Code may detain, or request the detention of, the ships of the shipowner concerned until reimbursement has been made in accordance with paragraph (a). . The Committee adopted the text with the proposed changes.

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B.. provides that indemnity with respect to wages for periods of unemployment may be limited to two months. Regulation .—Manning Levels This regulation and standard (with Regulation . on annual leave) consolidates the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ). It is a matter also addressed in IMO resolutions97 in connection with ship safety and security under which flag States are expected to adopt safe manning levels and approve safe manning documents (SMD) for ships. At the PTMC there was a debate, as the following extract indicates, as to whether the MLC,  needed to contain such a provision at all, given the existing coverage in the IMO instruments. Regulation .—Manning levels . The Shipowner Vice-Chairperson proposed the deletion of the whole Regulation. The subject was already dealt with efficiently by the IMO, and the consolidated Convention should not contain provisions which clashed with or repeated provisions in IMO instruments. . The Seafarer Vice-Chairperson argued that this issue was essential to the minimum requirements of decent work. The IMO did not engage in a 97 IMO Resolution A.(), Principles of Safe Manning, adopted on  November . This resolution was amended by Resolution A.() on  December , Amendments to the Principles on Safe Manning, which concerns the adoption of regulations to address enhanced security requirements after . It is expected that they will be replaced by a resolution to be considered by the IMO in December . The principles in the resolutions have as their objectives the following as stated in the preamble to Resolution A. ():

NOTING that safe manning is a function of the number of qualified and experienced seafarers necessary for the safety and security of the ship, crew, passengers, cargo and property and for the protection of the marine environment, RECOGNIZING the importance of the requirements of the pertinent IMO instruments as well as those adopted by ILO, ITU and WHO relevant to maritime safety, security and protection of the marine environment, . . . Resolution A.(), also included the following in its preamble: MINDFUL of the provisions of SOLAS regulation V/ with respect to the issue of an appropriate safe manning document or equivalent as evidence of minimum safe manning, BEING AWARE that the ability of seafarers to maintain observance of these requirements is dependent upon their continued efficiency through conditions relating to training, hours of work and rest, occupational safety, health and hygiene and the proper provision of food, ... The principles note the need to take account of ILO and other instruments and specifically reference matters such as, inter alia, crew accommodation, food, occupational safety and health, medical care, and hours of work or rest.

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tripartite process. This provision did not make the application of IMO standards a problem; it added value. If manning levels were not properly dealt with, the safety of the vessel and its crew were jeopardized. . The Government member of Japan proposed retaining the text but inserting “under all operating conditions” to align the text with Standard A.— Manning levels. This view was supported by the Shipowners. . The Seafarer Vice-Chairperson expressed concern that adding the modification might narrow the provision and would add no further value to the text. . The Chairperson proposed the retention of the existing wording and the removal of the curly brackets. The Committee agreed and the text was adopted. ... Standard A., paragraph  . The Seafarer Vice-Chairperson stated that the IMO only dealt with minimum safety levels. Article , Convention No.  had needed expansion, which was why the Office had proposed the current, modernized text in A.. . The Government members of Brazil, China, France, Japan, Russian Federation, South Africa, Togo, United Kingdom and Venezuela were in favour of retaining the text of A.. . The Government members of Denmark and Norway reiterated that the ILO text was not clear enough in terms of who exactly determined minimum safety manning levels. They expressed concern about over-regulation. The administration took into account the safe manning of each vessel, but going beyond this was very difficult. . Following consultations, the Officers of the Committee proposed keeping the text in the recommended draft, and deleting the last sentence of paragraph : “In particular, the crew assigned to navigation and watchkeeping duties shall be sufficient in number to allow the watch to be strengthened when navigating conditions so require”.98

As this extract indicates, the idea was to avoid conflict with the IMO instrument but at that same time provide for contemporary concerns about seafarer fatigue and other factors. As result of an amendment proposed at the Intersessional Meeting in , an additional paragraph  was included in Standard A.. Paragraph  required that account to be taken of food and catering requirements in the determination of minimum manning levels. The amendment was proposed by the Seafarers’ Group.99 Interestingly, even though it varies from 98 99

Committee No.  Report, supra note , pp. –. Compendium of Proposed Amendments, supra, note : Amendment : C./D., Standard A., paragraph  Submitted by the Seafarers

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the IMO text, this proposal received strong support from the European Union members of the Government Group attending the meeting: Amendment : C./D. Standard A., paragraph  . The representative of the Government of the Netherlands, speaking on behalf of the majority of EU Member States present at the Meeting and Norway, supported the proposal, since it took into account the staffing requirements of the ship’s food and catering services. . The representative of the Government of Japan objected to the amendment because Standard A. concerned manning levels to ensure the safe, efficient and secure operation of the ship. Food and catering had nothing to do with the operation of the ship and should not be considered when determining manning levels. . The representative of the Government of the Netherlands said that food and catering services necessitated work and time, which should be taken into account for the purpose of compliance with the Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ). . The representative of the Government of the Republic of Korea agreed, considering that the ILO manning levels were wider than those of the IMO. . The Shipowner spokesperson, having listened to the arguments, accepted the amendment, which received tripartite support.100

Regulation ., Standard A., and Guideline B.. were adopted with no discussion at the th ILC.101 Regulation .—Career and Skill Development and Opportunities for Seafarers’ Employment The purpose of Regulation ., career and skill development and opportunities for seafarers’ employment, is “[t]o promote career and skill development and employment opportunities for seafarers”. The Regulation has one paragraph which requires that countries “. . . have national policies to promote

Proposal: After paragraph , add the following new paragraph: “When determining manning levels, the competent authority shall take into account all the requirements within Regulation . and Standard A.—Food and catering.” Comment: The proposed amendment would ensure that staffing requirements of the ship’s catering services are taken into account in determining the minimum number of seafarers that Members would require on a ship to ensure that it operates in accordance with Regulation .. 100 101

Report of the Discussion, supra note . Committee of the Whole Report, supra note , paras –.

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employment in the maritime sector and to encourage career and skill development and greater employment opportunities for seafarers domiciled in their territories.” This obligation is one of the few that is not a flag State obligation but rather is directed to countries that have seafarers ‘domiciled in its territory’ and is essentially a labour-supply State responsibility. It is, therefore, not a matter for flag State inspection or ship certification. However, it is a matter reviewed by the ILO supervisory system in the Article  report.102 Paragraphs  and  of Standard A. repeat the Regulation requiring national policies to encourage career and skill development and employment opportunities for seafarers in order to provide the maritime sector with a stable and competent workforce. The aim of these policies is to help seafarers to strengthen their competencies, qualifications, and employment opportunities. Paragraph  requires consultation with the seafarers’ and shipowners’ organizations concerned in relation to training for a specific category of seafarer, that is, those whose duties on board ship relate primarily to safe operation and navigation of ships. Essentially this overlaps with other kinds of training concerns, including ongoing training under STCW. The added non-IMO element is involvement of the social partners. The Guidelines deal with two areas. The first is various measures to promote employment and future employment opportunities including portable competencies (for seafarers moving to onshore jobs), responding to changes in technology, markets, etc. Guideline B.. provides guidance specifically for countries that still operate seafarer registers or lists as a means of obtaining employment. These provisions might appear relatively innocuous, particularly at a time when there is a forecast shortage of seafarers. However, there was a lengthy policy level debate on this regulation and standard at the PTMC.103 As the extract below from the record of the meeting indicates, the debate centered on the movement away from State-operated seafarer registries and regulated hiring. For many countries, both in developed and less developed economies, it was not seen as possible or appropriate that one economic sector or group of workers should be given employment guarantees or dealt with differently from other workers. This aspect of the debate is captured by the square brackets [ ] around the title of the draft Regulation that was considered and replaced by the PTMC. Regulation .—[Continuity of] [Career development and regularity of] employment in the maritime sector

102 103

Supra note . Committee No.  Report, supra note , pp. –.



chapter eight . The Shipowner Vice-Chairperson requested information on the objectives pursued at the time of the adoption of the Continuity of Employment (Seafarers) Convention,  (No. ). Nowhere were continuity and regularity guaranteed in the maritime sector. . The Seafarer Vice-Chairperson observed that although the world had moved on since , when Convention No.  was adopted, it had not necessarily improved. The maritime industry still operated in an environment of insecurity. There were still good reasons to promote such underlying principles because of the unregulated nature of the industry; efforts to promote the industry and to encourage seafarers to remain at sea were essential. These considerations explained why the Seafarers’ group was opposed to deleting references in the regulation to continuity and regularity. . The Government member of Canada referred to the loss of the notion of a register of seafarers. In his opinion, in a post-September  world, the need for such registers was great and he considered that Guideline B..— Register of seafarers should expand on the notion of a seafarers’ register to assist in the certification and employment of seafarers. . The Chairperson reminded the Committee that Convention No.  contained a requirement for a database of seafarers. . The Government member of Norway said that his country no longer regarded seafarers as casual labour, making the provisions of Convention No.  obsolete. Norway favoured a general policy of keeping people in employment, but not necessarily in the same sector. People should be able to choose to enter or stay in the maritime industry. This regulation was unsatisfactory, even its title was unsatisfactory; and minimum periods of employment could not be guaranteed in the industry. The reference to registers harkened back to Convention No.  and to seafarers being “available for employment”, a now outdated notion. His Government therefore wished this reference deleted. . The Government member of the United Kingdom agreed that Regulation . needed modernizing, but considered there was cause for concern regarding the growing shortage of skills in the maritime sector. The emphasis in Regulation . should shift from the notion of continuity to one of skills development. The Government member of the United States agreed with this approach. . The Government member of South Africa agreed with the notion of career development but could not agree with proposals to provide minimum periods of employment for seafarers, nor with anything that might discriminate in favour of seafarers as opposed to other categories of workers. . Observing that there seemed to be agreement to focus on the promotion of career development and skills development in the industry and on the wish to remove references to regularity and continuity, as well as minimum periods of employment, the Chairperson declared that Regulation . through to the end of Guideline B..—Register of seafarers—would be referred to the Drafting Committee.

title : conditions of employment

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The final text was developed by the Drafting Committee at the PTMC. The regulation and standard were adopted without discussion and only minor editorial changes by the Drafting Committee at the th ILC.104 There was one proposed amendment relating to the wording of Guideline .., but it was not accepted. As pointed out in the report prepared for the th ILC: Note  (Regulation .) .[] . . . The approach of these provisions is to consolidate the principles found in the Continuity of Employment (Seafarers) Convention,  (No. ), whilst also taking into account the views of many governments that such a policy with respect to one sector of the workforce is no longer appropriate, although the need to attract people to work in the sector is acknowledged. The provisions were developed to meet the concern about having such a policy for one sector only and are also seen as serving to promote the inclusion of seafarers in full employment policies at a broader national level by focusing on promotion of employment in the sector and on career development and ongoing training and skill development for seafarers.105

Towards the end of , the IMO, in partnership with the ILO and others in the maritime sector, adopted the ‘Go to Sea Campaign’ to address concerns about the shortage of seafarers.106 This shortage will have a significant impact on international trade as it has been estimated that approximately  per cent of the world’s bulk goods are carried by sea.107 This means that the obligation under the MLC,  to promote employment and training particularly, if not only, 104

Committee of the Whole Report, supra note , paras –. Report I(A), supra note , Note  (Regulation .), para.  (in published version numbered  rather than  in error). 106 IMO, “Go to Sea Campaign,” available at http://www.imo.org/OurWork/HumanElement/ GoToSea/Pages/Default.aspx, states: 105

Recent reports have identified a current officer supply requirement of , in , with an officer shortfall of ,. This figure is expected to rise to a projected officer shortfall in  of ,. 107

The IMO promotional publication, “Go to Sea! A Campaign to Attract Entrants to the Shipping Industry”, November  (IMO Circular letter No. ,  November ), available at http://www.imo.org/OurWork/HumanElement/GoToSea/Documents/Gotosea!campaigndocument.pdf, argues: Seafarers provide a vital service to an industry that contributes significantly to global and sustainable development and prosperity by carrying the world’s commerce safely, securely, efficiently and at a fraction of the environmental impact and cost of other modes of transport. Indeed, shipping carries more than   of world trade—and, given that the bulk of this trade consists of commodities such as grain and oil, the data leads to the inescapable conclusion that, without shipping, half the world would starve and the other half would freeze. This immense job is done by close to , merchant ships, manned by over 1/4 million seafarers from all over the world. Against an estimated total world population of . billion, these figures draw a stunning conclusion: that the feeding and heating needs of the entire world are dependent on just over  million seafarers.

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for this sector is likely be a more prominent concern for most governments. In addition to adopting the MLC,  the th ILC adopted two resolutions with respect to promotion of opportunities for women seafarers and recruitment and retention of seafarers (Figure ).108 Certainly for developing economies, the globalized maritime sector with its relatively permeable international entrance qualifications and process provides an important opportunity, assuming that working and living conditions are improved. Equally, if both the living and working conditions and the image of the sector are improved, more people in developed economies might be encouraged to become seafarers.109 Figure . Promotion of employment resolutions adopted by the th ILC110 Resolution concerning the promotion of opportunities for women seafarers The General Conference of the International Labour Organization, Having adopted the Maritime Labour Convention, , Recalling the resolution concerning women seafarers adopted by the th Session of the Joint Maritime Commission, Noting the findings of the Office’s report Women seafarers: Global employment policies and practices, Mindful of the mandate of the Organization to promote equality of opportunity for women and men; Invites the Governing Body of the International Labour Office to request the Director-General to give due priority in the use of resources to examining measures which can further promote career opportunities and appropriate working and living conditions for women seafarers. Resolution concerning recruitment and retention of seafarers The General Conference of the International Labour Organization, Having adopted the Maritime Labour Convention, , Mindful that the core mandate of the Organization is to promote decent work, Being aware that shipping is the engine of the globalized economy and carries around  per cent of world trade in terms of tonnage, and that the shipping industry and the smooth transportation of goods are essential to world trade, which will require the availability of a sufficient number of suitably qualified seafarers, Being aware also that ships are crewed by suitably trained seafarers who have a crucial role in achieving safe, secure and efficient shipping on clean oceans and that it is fundamental to the sustainable operation of this strategic 108

Selection Committee Report, supra note . This is a concern for many countries in the European Union. See, for example, European Economic and Social Committee Section for Transport, Energy, Infrastructure and the Information Society, Enhancing the Attractiveness of the Maritime Professions Conference,  March , Brussels. 110 Selection Committee Report, supra note . 109

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sector that it is able to continue to attract an adequate number of quality new entrants, Noting that there is a projected shortage of suitably qualified seafarers, that many essential shore-based shipping positions require trained seafarers and that filling some of these positions with suitably qualified seafarers is essential to overall maritime safety, Noting also that traditional maritime countries are going through a process of industrial change and have lost substantial parts of their maritime skills base, Noting further that there is a need for proper career paths for officers and ratings alike, Considers that, while there is a need to improve the image of the shipping industry, there is also a need to improve the conditions of employment and of work and opportunities for many seafarers, Considers also that issues such as access to shore leave and security from attack by pirates and armed robbers need to be addressed, Considers further that all flag States should encourage operators of ships which fly their flag to provide training berths for new seafarers and for cadets, Recognizes that the recruitment and retention of seafarers in a global labour market is a complex issue, which involves a social, political and economic dimension and, where appropriate, the provision of suitable policies by governments and industry alike, Believes that the International Labour Office is well placed to undertake work in this area and invites the Director-General to request the Governing Body to convene a tripartite meeting of experts to examine the issues and propose a set of suitable policy recommendations.

Conclusion This chapter has given detailed consideration to Title  comprising eight regulations and the related Code Part A and B provisions. It has explored the linkages between these provisions, particularly the ‘heart’ of MLC, , the SEA, in Regulation . and other provisions in the Convention such as Title  on compliance and enforcement. Like Title , some of the requirements in Title , particularly topics such as hours of work or hours of rest and manning levels, overlap with the IMO instruments. The extracts from the records of the meetings to develop the MLC,  demonstrate that there was a conscious policy of avoiding conflicting requirements in these international agreements, while at the same time pursing wider social and human rights concerns relevant to the ILO mandate. The examination in this chapter has also shown the development and modernization of the existing maritime labour conventions that are consolidated by the MLC,  as well as exploring some areas of potential difficulty in application.

chapter nine TITLE 3: ACCOMMODATION, RECREATIONAL FACILITIES, FOOD AND CATERING

General Introductory Note1 Chapters  to  examine each of the regulations and associated Code provisions in Titles  to  of the MLC,  highlighting points of particular interest or difficulty. The annotated version of the Convention (see Appendix ) provides additional information regarding the ILO conventions and recommendations that are consolidated in the MLC, . Additional interpretive resources2 for the MLC,  include the Article  Report,3 which provides supplementary information on the expectations of the ILO’s international supervisory system4 regarding ratifying States’ obligations to implement the Convention. The Guidelines for Flag State Inspections under the Maritime Labour Convention, 5 (hereinafter Guidelines for Flag State Inspections) and the Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention,  6 address the more practical implementation and matters, such as ‘how to check’ for compliance, at the shipboard level, with national legislation or other measures implementing the MLC, .

1

This introductory note is included in Chapters  to  as an aide-memoire to summarize key information about the structure and approach adopted in the MLC, . Chapters  and  explore these issues in detail. 2 See Chapter  at p. . 3 The Article  report form for the MLC,  can be found in Appendix IV of ILO Doc. No. GB.// (Rev) (ILO, Governing Body, Reports of the Committee on Legal Issues and International Labour Standards: Second report: International labour standards and human rights, Geneva, March ), pp. –, available at http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm. 4 See Chapter . 5 See also Chapter , pp. –, on the role of these guidelines in implementing the MLC, . International Labour Office, Guidelines for Flag State Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www.ilo.org/wcmsp/groups/public/ -ed_norm/-normes/documents/publication/wcms_.pdf. 6 International Labour Office, Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www .ilo.org/wcmsp/groups/public/-ed_norm/-normes/documents/publication/wcms_.pdf. These guidelines are called for in the MLC,  (Guideline B.., para. ), and both guidelines



chapter nine

This chapter examines the regulations and the provisions in Part A (Standards) and Part B (Guidelines) of the Code of the MLC,  in Title . As discussed in Chapter  of this book these provisions are organized in a topical and vertically integrated manner with each Title comprising a number of regulations and the associated Parts A and B of the Code setting out more detailed requirements to implement the relevant regulations.7 Each regulation has a purpose clause indicating its objective in ‘plain language’.8 In turn, these regulations and the Code provisions set out more detailed specific implementation of the social and employment rights (and related obligations) generally set out in Article IV and the implementation and enforcement obligations under Article V.9 The provisions in the Titles are, as a matter of international law, directed to States, primarily as flag States, with an international obligation to regulate conditions on board ships that fly their flag. As applicable, regulations are also directed to coastal or port State or States that have a labour-supplying interest and require that the State take implementing action at the national level. It will be recalled that under Article IV, paragraph , unless specified otherwise States, can use various approaches to implement these obligations, including adopting legislation or through collective bargaining agreements or other measures.10 The provisions in Titles  to  and, in part, Title  are ‘regulatory’ in that they set specific minimum requirements for working and living condition for seafarers, primarily on board ships.11 In this way the Convention operates at two

are the result of resolutions adopted by the th ILC in  when it adopted the Convention (See: Reports of the Selection Committee, Second Report, ILC, th (Maritime Session), Geneva, , ILO Doc. No. PR– (Rev.), pp. –/–/ and –/–/). Initially it was thought that the port State control guidance would be adopted as a priority, with adoption of flag State guidance following. However, it became clear that the flag State guidance needed to be developed first as it provided the basis for port State control. 7 Regulations, like articles, are not subject to amendment using the more rapid tacit acceptance procedure in Article XV, nor are they subject to substantial equivalence under Article VI. Thus any analysis of the obligations, particularly in connection with exercising flexibility, must carefully consider the obligations in the regulations relative to the mandatory obligations in Parts A and B of the Code that must be given ‘due consideration’. Chapters  and  discuss the structure of the Convention in detail, as well its effect on future approaches to amendments (Chapter ). 8 Although the approach to interpretation of the application of the concept of substantial equivalence is not yet settled, presumably this would be one source to consider when evaluating whether a measure is “conducive”, as required under Article VI, paragraph (a), of the “general object and purpose” of the provision or provisions. See Chapter , footnote . 9 As discussed in Chapter , the articles mainly comprise general statements of principles and rights and obligations directed specifically to ratifying States. 10 See Chapter , pp. –. 11 It must also be recalled that Article II of the Convention regarding the definitions of seafarer and ship represents a fundamental change in the scope of the Convention, which in turn affects national implementation. A much wider group of workers, indeed all persons working at sea with

title : accommodation, recreational facilities, and food  levels: the State obligation to implement Convention obligations and regulate shipowners and other actors, and through the enforcement and compliance system in Title  where they pierce international law’s ‘corporate veil’ of the State to affect the actors that essentially ‘perform’ the majority of the Convention’s obligations. Failure at the shipboard level can, of course, also be evidence of a failure on the part of a State to implement or effectively implement its international obligations to regulate the issue in question. Thus the two levels are intertwined and mutually re-enforcing. It must also be emphasized that there is significant interaction among the provisions of these Titles, particularly in connection with Regulation . on seafarers’ employment agreements, which, especially from a ship inspection perspective, contain aspects that cuts across most Titles. The two Appendices in Title  list  areas that are drawn from all Titles. These areas are subject to certification for some ships and inspections under port State control. Under Title , flag States will need to address these areas in developing the document12 regarding their national requirements while shipowners must address them in the document13 that they are to prepare. Both documents must14 be carried on board ships  GT and over engaged in international voyages or voyaging from or between ports in another country (other than the flag State). Linkages to these provisions will be noted when they arise in each of the regulations. Overview of Title — Regulations . and . and the Code, Parts A and B Title  comprises only two regulations and the related Code Part A, Standards, and Part B, Guidelines, dealing with the following areas: – Regulation .—Accommodation and recreational facilities – Regulation .—Food and catering

These two regulations are, however, among the most important for both seafarers and shipowners alike and significantly affect operational costs and ship design. very few exclusions for categories of ships, are now covered as ‘seafarers’ under the MLC,  provisions. Further, when a country has made a determination under Article II, paragraph , in connection with ships below  GT that do not go on international voyages, the national law or other measures would still need to comply with the regulations. 12 Appendix A-II—Declaration of Maritime Labour Compliance, Part I, see p.  of this book. 13 Appendix A-II—Declaration of Maritime Labour Compliance, Part II, see p.  of this book. 14 Regulation .., para. . Shipowners may also request their ships be certified even if not within these categories. See: Regulation .., para. . It should be noted that the system established under Title  requires that all ships must be inspected by the flag State.



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In Title , several provisions are generally worded, requiring, for instance, that particular aspects of accommodation or recreation facilities should be ‘adequate’. The guidelines provide examples of what would be considered as ‘adequate’, but leave it to national provisions to set out the precise requirements. Other provisions in the standards set out very precise requirements that should be included in national provisions (although some flexibility may be possible through ‘substantial equivalence’). Notably, the definitions in Article II of the MLC,  of seafarer and ship will expand the scope of coverage under Title . In particular, the lack of a tonnage limitation on application means that a much larger group of ships is covered by these requirements, which can affect ship design and construction. It should also be noted, in connection with the ship inspection and certification system established under Title , that the two regulations under Title  are matters that must be inspected on all ships to which the Convention applies. They are also matters that are on the list of  areas that must be certified by flag States, largely for purposes of port State control, for ships subject to mandatory certification, that is, ships  GT and above that engage in international voyages or voyages from or between ports in another country.15 Regulation .—Accommodation and Recreational Facilities General Overview of the Structure and Content of Regulation ., Standard A., and Guideline B. Regulation ., Standard A., and Guideline B., in particular, deal with the most tangible decent work matters in the Convention and contain the most ‘technical’ requirements. In fact, the level of specificity, including matters such as the nature of mattresses on berths, berth diameters, floor space, locker sizes, and even the nature of flushing systems for toilets, might be seen as remarkable for a multilateral convention. However, it is these provisions that are the essential and most directly and personally experienced aspect of workplace regulation and seafaring. The workplace for the seafarer is usually also where he or she lives as a ‘home’ for significant periods. Over time, it is these matters that will affect his or her health and well-being. Accommodation and recreational facilities are also matters that are difficult to change in that they relate to ship construction and design. At the same time, these are the elements that are most likely to need updating to keep pace with changes in ship design and construction and technology and changing knowledge regarding environmental

15

See: Regulation .., paras  and .

title : accommodation, recreational facilities, and food  factors and human health, for example, exposure to noise, vibration, or ambient factors. The questions of what is needed and what is feasible concerning accommodation and recreational facilities are largely a matter for industry rather than government expertise. This Title has the most direct impact at the practical or shipboard level, and its development was intertwined with the difficult negotiations on questions of scope of application, tonnage limitations, and specific questions relating to existing and future build/new ships and, also, specific categories of ships. All of the factors that had to be considered meant that the provisions in Regulation . and the Code were among the most structurally complex16 to finalize and were the subject of frequent restructuring and rearrangement, including cross-referencing and the movement of elements that relate more to ship design between Titles  and  (with respect to hospital accommodation and occupational safety and health), to address the issue of the application of Regulation . to existing ships. One anomaly to be noted is that although Regulation . and the Code both address accommodation and recreational facilities, these provisions are separate items on the list of  areas that must be inspected for certification by flag States and are subject to inspection under PSC under Appendices A-I and A-III. In addition, the Standard contains only one very general provision concerning recreational facilities while Guideline B.. addresses “Recreational facilities, mail and ship visit arrangements”. However, it will be recalled that while Part B of the Code must be given due consideration, it is not considered a ‘requirement of the Convention’ for purposes of PSC. Regulation ., Standard A., and Guideline B. present some difficulties in terms of explaining their requirements without simply reproducing the entire text. The approach in this chapter is to first examine the overall structure and the requirements in Regulation . followed by an analysis of Standard A. with reference to the Guidelines, without attempting to go through the details of each provision. The concern, as in other chapters of this book, will be to highlight specific points of wording which may not be easily understood or may pose difficulties and where knowledge of the drafting history is useful to understand the meaning of the requirement. 16 Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/rep-i-a.pdf, Note  (Title , Regulation .):

. The provisions under Regulation ., dealing with on-board accommodation and recreational facilities, are among the most detailed and technical in the Convention and contain numerous requirements affecting the physical design or structural layout of ships. In some instances, they include specific entitlements that are related to the particular duties and positions of seafarers. . . .



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The purpose of Regulation . is perhaps the most obvious of the clauses: “To ensure that seafarers have decent accommodation and recreational facilities on board”. However as explained in Chapters  and , the word ‘decent’ has a special resonance in the ILO context and encompasses all the various elements contained in the Regulation and Code. Like other regulations in the MLC, , Regulation . is fairly brief and general. It will be recalled that this is partly because regulations are understood as ‘authorizing’ the Code and are necessarily more general and more difficult to amend in the future, hence the brevity. Interestingly, the Code in this case is referenced or authorized in Regulation ., paragraph , which also provides for a limited exclusion. Standard A. by contrast is the longest of the standards in the MLC,  with  paragraphs, each with numerous subparagraphs and ‘chapeau’ clauses for many for the provisions. The structure of Standard A. can be visualized as ‘book-ends’. General clauses at the beginning deal with implementation and inspection (paragraphs – and, one anomaly, ) while provisions for some exemptions and other flexibility comprise the end (paragraphs –). Detailed clauses that deal with a range of matters are in between. Guideline B. has  Guidelines which, although not fully concordant,17 can be understand as mostly relating to the content of the requirements in Standard A.. The titles of the Guidelines are helpful to consider as a useful guide to the basic organization of Standard A. and the range of matters it covers. – – – – – – – – – – – – –

Guideline B.—Accommodation and recreational facilities Guideline B..—Design and construction Guideline B..—Ventilation Guideline B..—Heating Guideline B..—Lighting Guideline B..—Sleeping rooms Guideline B..—Mess rooms Guideline B..—Sanitary accommodation Guideline B..—Hospital accommodation Guideline B..—Other facilities Guideline B..—Bedding, mess utensils and miscellaneous provisions Guideline B..—Recreational facilities, mail and ship visit arrangements Guideline B..—Prevention of noise and vibration

17 A fact that may cause some difficulty for future application, a matter pointed out by the Drafting Committee: ibid., Appendix A, Report on the Work of the PTMC Drafting Group:

. A query was raised as to whether the heading of Guideline B.., “Design and construction”, should be aligned with wording used in paragraph  of Standard A. (which refers to “general requirements for living accommodation”), especially as the term “construction” could possibly have implications with regard to the scope of paragraph  of Regulation ..

title : accommodation, recreational facilities, and food  As this list also suggests, there are matters that, to some degree, will also be addressed in Title  in connection with medical care on board ship (Regulation .) and occupational safety and heath (Regulation .), a factor that also caused some difficulty in the development of the text. Regulation . and the Code consolidate two existing conventions, Accommodation of Crews Convention (Revised),  (No. ) and the Accommodation of Crews (Supplementary Provisions) Convention,  (No. ), which are also applied in countries that have ratified the Merchant Shipping (Minimum Standards) Convention,  (No. ) or the Protocol of  to the Merchant Shipping (Minimum Standards) Convention, .18 It was believed that one of the difficulties for ratification of Convention Nos.  and  was the high level of specificity in their binding provisions; they could not be updated rapidly and were, therefore, out of date and did not reflect modern industry standards or terminology, including, for example, being based on an older system of tonnage measurement. The consolidation and ‘modernization’19 of these very detailed binding requirements and related recommendations20 involved an extended negotiation, 18 See ibid., Note , para. . Where a country has ratified Convention No., but has not ratified Convention Nos.  or , they would be required to apply substantially equivalent provisions. See: Merchant Shipping (Minimum Standards) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, Art. (a)(iii). 19 The following discussion at the HLTWG in January  (Final Report, HLTWG (Fourth Meeting), Nantes, – January , ILO Doc. No. TWGMLS//, available at http:// www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf) captures the views of the participants on the mandate to update requirements and illustrates the interests concerned:

. The proposed provision of a floor area per sleeping room of . m2 entailed lengthy debates. The Shipowners’ group and some Government representatives rejected the proposal, as it represented the double of the figure required in Convention No.  for ships of , to , tonnes (. m2 per rating). This Convention should set minimum standards in order to achieve widespread ratification. It was suggested to stay with the original wording of Convention No.  which allowed for variations according to ship size. The Seafarers’ group pointed to the fact that the number of seafarers on board ships was smaller nowadays so that there would be more space for accommodation. The figure of . m2 corresponded to the size of a double bed and was sometimes considered inappropriate for prison cells. It denounced that, since accommodation was fully counted in the measurement of ships, shipowners tended to reduce accommodation space even more, in order to pay less port dues. The improvement of existing instruments had been recommended in the JMC resolution and was feasible, since the new figure would only apply to new ships. A Government representative supported the proposal of the Seafarers’ group indicating that the figure of . m2 would only apply to ships with single-occupancy cabins according to Standard A., paragraph (g), i.e. not to passenger, small or specialized ships but rather to big cargo ships. The issue was left in square brackets. 20

Crew Accommodation (Air Conditioning) Recommendation,  (R), Geneva,  October ; Crew Accommodation (Noise Control),  (R), Geneva,  October ; and

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primarily between the shipowners’ and seafarers’ representatives, with respect to both their content and placement in the MLC, . Specifically it involved the transfer of these detailed provisions (e.g., floor areas for sleeping rooms) from the existing binding standards to the guidelines in Part B of the Code to the MLC,  and, ultimately, their re-transfer back to the mandatory standards in Part A of the Code.21 Many key issues remained unresolved as late as January  when the chairperson of the Working Party dealing with the accommodation and recreation facilities reported on the problem areas: Working Party A: Accommodation . The Chairperson of Working Party A, “Accommodation, recreational facilities, food and catering”, identified three problem areas concerning the scope of application: (a) grandfather clause for existing ships; (b) tonnage variations for smaller ships; and (c) variations for passenger ships. . The Working Party affirmed the need for a grandfather clause. As far as practicable without excessive efforts, the provisions should apply to existing ships. The Working Party agreed that during the text review the requirements would be read as only applying to new ships. The areas where provisions could also be applied to existing ships would be specifically identified at a later stage. It was decided that a grandfather clause with a wording to be proposed by the Office should be inserted in Regulation .. . The Working Party also agreed on the necessity of tonnage variations for smaller ships in certain cases. However, the new instrument should state that tonnage limits were not expressed in GRT (gross registered tonnage) according to the Oslo Convention on a Uniform System of Tonnage Measurements of Ships of  June  but rather in GT (gross tonnage) under the  International Tonnage Convention (ITC, ), which had been recognized at international level. It was suggested to introduce the transitional provisions of the SOLAS Convention for the conversion from GRT into GT according to which , GRT was equivalent to , GT. The High-level Group had already recommended a grandfather clause regarding tonnage limits. The Seafarers’ group argued that every effort should be made to avoid any reference to tonnage. If any tonnage thresholds were needed, the new tonnage Convention which used the term GT should be used. . The Working Party further affirmed the need for variations for passenger ships in certain cases. . . . 22 Merchant Shipping (Improvement of Standards) Recommendation,  (R), Geneva,  October , all available at http://www.ilo.org/ilolex/english/recdisp.htm. 21 The draft Convention text considered by the fourth HLTM in  (Consolidated Maritime Labour Convention (Preliminary Second Draft), HLTWG (Fourth Meeting), Nantes, – January , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/twgmls/twgmls-r-.pdf) contained only eight paragraphs in the Standard with the remainder of the text set out in the Guidelines. 22 Final Report, supra note .

title : accommodation, recreational facilities, and food  As this excerpt suggests, the issues related less to concerns about specific content and more to concern about difficulties of application to specific categories of ships, such as existing ships, smaller ships, training ships, passenger ships, dredgers, and ships engaged only in day voyages that operate outside areas within or closely adjacent to sheltered waters. It will be recalled that it was very late in the process that the question of whether there would be a tonnage limit under Article II with respect to the application of the MLC,  was finally agreed upon.23 With the decision not to have a tonnage limitation for the entire convention, the question then arose as to whether certain elements, such as Regulation . and the ship certification requirements under Title  should have tonnage related limitations to their application, or if not a limit, some national flexibility with respect to providing national exemptions to ‘smaller ships’. These issues, and related issues of application, discussed in Chapter  in connection with Article II, remained difficult up until the th ILC in . Despite the adoption of a final text containing compromise solutions, they remain a challenge for national implementation in connection with some categories of ships.24 Not surprisingly these were the most difficult provisions for the seafarers to agree to place in the B.. Guidelines since they had been long established as binding international requirements. Much of the discussion at the PTMC in  involved moving text back to Standard A., based on agreements reached on specific matters at a meeting, before the PTMC, between the seafarers’ and shipowners’ representatives.25 The Technical Committee dealing with Title  23

See: Report of the Discussion, Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/ public/english/dialogue/sector/techmeet/ptmc/ptmc-.pdf. See also Chapter . 24 See: Background paper, Preparatory Tripartite MLC,  Committee, Geneva, – September , ILO Doc. No. PTMLC/, available at http://www.ilo.org/wcmsp/groups/ public/-ed_norm/-normes/documents/meetingdocument/wcms_.pdf, paras –. 25 Consolidated Maritime Labour Convention: Commentary to the Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo .org/public/english/standards/relm/ilc/ilc/ptmc/pdf/cmlc-comment.pdf: Comment  (Title, Regulation .) . . . . In some cases, agreement has not yet been reached on specific requirements, such as room sizes, and these provisions remain in square [ ] brackets. Subsequent to the Fourth High-level Meeting, representatives of the Shipowners and Seafarers, on the advice of the Officers, met to resolve some areas of disagreement and bring forth recommendations to advance the text for the Conference. The Chair of the Nantes working group on Title  was present for these meetings to assist with continuity in light of the discussion at Nantes. . . . . As much as possible, the technical details have been placed in guidelines in Part B of the Code in order to provide some flexibility. Their placement in the Code (whether

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at the PTMC established a working group26 to try to review these texts and resolve some remaining differences, for example, minimum ceiling height and treatment of passenger ships and ships below  GT. But even this was not fully successful. The final flexibility that is now found in paragraph  regarding smaller ships remained unresolved until the Intersessional Meeting in  where an application and tonnage ‘solution’ was developed by a working party. Even then the solution adopted was problematic, as indicted in the following extract from the record of the th ILC (emphasis added): . The Employer Vice-Chairperson introduced amendment D., which was submitted by the Employers’ group and sought to replace the figure “[]” by “[]” in paragraph . He indicated that  gross tonnage had been the figure that had originally been proposed at the PTMC and the Intersessional Meeting for the exemptions specified in the paragraph, and that a decision on the matter had been postponed pending the adoption of the new Convention on fishing at the Conference in June . However, since no Convention had finally been adopted, he proposed that the original figure be reinstated in the text. . The Worker Vice-Chairperson indicated that his recollections differed quite markedly from those of the Employer Vice-Chairperson. Referring to extracts of the report of the Intersessional Meeting, he recalled that a small tripartite working group, in which the Employers’ spokesperson had participated, had agreed on a compromise figure of , which was the maximum that had been acceptable

in Part A or Part B) will also allow for more rapid updating to meet changes in technology and ship design. . . . . With respect to the requirements for sleeping rooms, it was recommended that any of the provisions in the relevant guideline—under B..—should be moved from Part B of the Code, to Standard A. in Part A: namely, B.., paragraphs , , ,  (except for the last sentence), ,  and . These are in { } brackets to facilitate discussion regarding this shift. 26 Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. PTMC/ /–, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/pdf/ptmc--.pdf. Although it is not verbatim as it was re-arranged in relation to the specific text, the following excerpt is illustrative of the level of detail and difficulties regarding specific matters such as floor size, etc.

. The Committee set up a Working Party, with two representatives from the Shipowners’ group, two from the Seafarers’ group and the Government members of Japan, the Republic of Korea, the Netherlands and the United Kingdom. The Working Party would be chaired by the Government member of the Netherlands, and would deal with all matters in Standard A. relating to headroom and tonnage size. . The Chairperson of the Working Party on figures and measurements in Title  requested an extension of its mandate in order to set a threshold figure for floor area for sleeping rooms for cargo ships smaller than , gross tons, between , gross tons and , gross tons, and another for cargo ships over , gross tons. The Working Party also wanted to discuss whether figures should be placed under Part A or B of the Code. The Committee agreed to extend the Working Party’s mandate.

title : accommodation, recreational facilities, and food 

.

. . .

to the Workers’ group, particularly since the proposed draft of the Convention on fishing then available had set the figure of  gross tonnage. He therefore called on the Employers’ group to withdraw the proposed amendment. The Government member of the United States said that, although she would have preferred the figure of  gross tonnage, she could confirm that the correspondence group which had discussed the matter following the Intersessional Meeting had indeed agreed on the figure of  gross tonnage. The Government member of Norway also recalled that  gross tonnage had been agreed upon at the Intersessional Meeting. The Employer Vice-Chairperson indicated that he stood corrected and, on behalf of his group, withdrew amendment D.. Paragraphs  and  were adopted without amendment.27

As the foregoing suggests,  GT, the figure adopted in the MLC,  with respect to certification requirements under Title , appears to be what could be called a ‘cut-off figure’ that draws the line between ships that are generally engaged in international voyages and subject to the wider IMO related international regulatory regime and those that are not. The MLC, , in deciding to have no tonnage limit for application of the Convention as a whole and adopting a more restrictive tonnage of less than  GT for exemptions in connection with ship construction matters, captures a large number of ships that have not previously been regulated by the international regime. The extent to which the impact of coverage of those ships (the  GT to less than  GT range) was considered is not evident from the records. Certainly it is a matter that may raise difficulties in the future, for example, in connection with the design of large pleasure yachts that are operated commercially.28 It may be that the  GT limit for flexibility on a few specific construction related matters, unless a flag State chooses to establish substantially equivalent requirements, may provide an impediment to ratification by some countries or may even result in amendments to the MLC, , when it comes into force. This brief overview of the chequered drafting history of Regulation . and Standard A. should provide some sense of the difficulty of these provisions from a legal drafting perspective. Not only do they consolidate outdated provisions, they also incorporate new requirements and issues. Further complications arose, as mentioned above, in determining the provisions that should be in Title , which then included an exclusion for existing ships in connection

27

Report of the Committee of the Whole, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. PR(Part I), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr-i.pdf. 28 Although there are reduced requirements in Standard A. for passenger ships, yachts may not carry enough passengers (more than ) to be considered passenger ships, according to the SOLAS definition. See: Standard A., para. (c).



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with construction matters, and Title , in connection with noise and vibration and hospital accommodation.29 Regulation . Although Regulation . contains only three paragraphs, they are very important to understanding the application of Regulation . and the more detailed provisions in Standard A.. The following excerpt from the Office Report for the th ILC30 highlights the key concerns and the complicated problem posed by the application of structural requirements to ships in existence at the time the Convention comes into force (emphasis added): . Paragraph  of the Regulation states the basic right of seafarers to have decent living accommodation and recreational facilities consistent with promoting their health and well-being. An amendment which obtained tripartite support at the Intersessional Meeting makes it clear that the right covered by this Regulation (and the related Standard and Guideline) applies to seafarers working and living on board ship or only working or only living on board.

29 The latter discussion was complex at the PTMC as the Titles were dealt with by two different technical committees both of which developed ideas for draft text. See: Report of Committee No. : Submission, Discussion and Approval, PTMC (Third Sitting), Geneva,  September , ILO Doc. No. PR, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/ pdf/rp-.pdf, pp. / and /:

Ms. DOUMBIA-HENRY (representative of the Secretary-General of the Conference) I think a similar issue arose yesterday when we looked at the Committee No.  report in connection with the recommended draft concerning hospital accommodation; it would appear that both of the technical committees have reflected on texts relating to the same issue, which applies as well to paragraph  of the Committee No.  report. It would appear that the result has been two sets of provisions in two sets of Titles, which are conflicting. We would therefore propose that we meet with the Officers of the two Committees to clarify this particular issue, because clearly we cannot have two sets of conflicting provisions in two different places, in terms of where the decision was made and how it ought to be appropriately reflected. My understanding was, in any event, that the decision as made in Committee No. . Again, the suggestion would be that the secretariat would meet with the Officers, or at least the Chairpersons of the two Committees to sort that out, because it is conflicting in the present draft Convention. If you would agree, we would probably try to sort out the problem, taking into account the comments that have just been made by the Seafarers . . .. In the light of our discussions this morning concerning duplication and conflict in the texts of Title  and Title , concerning hospital accommodation, and, after further consultations, subparagraph (n) of paragraph  of Standard A. is deleted. The amendments proposed and adopted at the Intersessional Meeting transferred these matters to Standard A., paragraph . See: Report of the Discussion, supra note , paras – . 30 Report I(A), supra note , Note  (Title , Regulation .).

title : accommodation, recreational facilities, and food  . It will be recalled that, under paragraph  of Article II, the Convention applies to all ships (as defined in Article II, paragraph (i)), subject to specified exceptions and “except as expressly provided otherwise”. Since the requirements under Title  can have a significant impact on ship design and construction, paragraphs  and  of Regulation . set out transitional clauses (which might be an example of “expressly providing otherwise”), excluding ships that were constructed before a certain date from the scope of certain provisions of the Code implementing the Regulation. . The exclusion in paragraph  covers ships “constructed on or after the coming into force of the Convention for the Member concerned”—that is,  months (or a longer period if the Convention itself was not yet in force) after the Member’s ratification of the Convention (Article VIII, paragraphs  and ). The exclusion in paragraph  concerns the requirements in the Code which relate to “ship construction and equipment”. The other provisions in the Code implementing Regulation . will continue to apply to those ships, as will the basic right set out in paragraph  of the Regulation. . At the Intersessional Meeting, it was recognized that paragraph  would temporarily reduce the protection already available under existing international labour standards. Many of the ships concerned might already be covered by the detailed requirements in Conventions Nos.  and , or by Convention No.  and the Protocol to that Convention, requiring a “substantially equivalent” application of Conventions Nos.  and , where they have not been ratified by the Member concerned. As a result of Article X, the flag States of those ships will be deemed to have denounced all those Conventions and will no longer be bound by the latter as soon as the new Convention comes into force for them. The exclusion of all existing ships from the application of the Code provisions relating to ship construction and equipment would thus result in a lessening of existing protection. This would not be in line with the original intentions behind the Convention or with Article , paragraph , of the ILO Constitution. The Intersessional Meeting agreed with the thrust of an amendment proposed in the PTMC to correct this lacuna. It was suggested that the amendment concerned could be redrafted with the advice of the Office and reviewed at the Conference . . .. . The exclusion in paragraph  of Regulation . covers ships constructed on or after an amendment to the Code relating to the provision of seafarer accommodation and recreational facilities takes effect for the Member concerned—that is, six months after the amendment’s deemed acceptance (Article XV, paragraph ), assuming that the simplified amendment procedure is followed. Those ships will be excluded from the new requirements established by the amendment. However, this exclusion will apply “Unless expressly provided otherwise”: this clause thus allows the amending provision itself to establish the extent to which it will apply to existing ships. . With respect to both paragraphs  and , consideration might be given to what is meant precisely by the concept of ships being “constructed” before a certain date. Article , paragraph , of Convention No.  refers in this context to a ship “of which the keel is laid, or which is at a similar stage of construction”. It is noted that the IMO conventions also adopt extended definitions to clarify this point. Unless the term “constructed” is well understood in the shipbuilding industry or the periods of  months following entry into force of the Convention or six



chapter nine months after an amendment are considered sufficient in any event, the following sentence could be added at the end of the paragraph suggested in paragraph  . . .: A ship shall be deemed to have been constructed on the date when its keel is laid or when it is at a similar stage of construction.

Notably, these requirements apply to a much wider group of ships, including ships that may only undertake day voyages, than the earlier ILO conventions. The draft text proposed by the Office to address the problem of existing ships was adopted by the th ILC. As the above extract indicates, an important point is the limited nature of the exclusion in paragraph .31 It does not mean that existing ships are excluded from the application of the Convention or even from the application of Standard A.. The exclusion is only for requirements in the Code (Standard A.) that relate to construction and equipment. One difficulty with this exclusion is that there is no particular single provision or heading in Standard A. dealing with ‘construction and equipment’. The matter may also be confused by the existence of Guideline B.. entitled “Design and Construction”, which has only six paragraphs and clearly does not cover the full range of issues that might be considered as ‘relating to’ construction and equipment. In each case it would be a matter for national evaluation. However this phrase and exclusion should be read purposively as meaning fixtures and matters such as sleeping room design/size or room locations, which normally would be regarded as problematic or even impossible to alter to bring them in line with the Convention. As noted above, where the ratifying State has previously ratified the Accommodation of Crews Convention (Revised),  (No. ) and/or the Accommodation of Crews (Supplementary Provisions) Convention,  (No. ) or applies those conventions on a substantially equivalent basis because of ratification of the Merchant Shipping (Minimum Standards) Convention,  (No. ) or its Protocol, then the minimum standards in those conventions relating to construction and equipment would continue to apply, to the extent that they already are applied by the flag State. Another important point alluded to in the above extract is that the defining point for an existing ship (‘ships constructed before’) is not the same as for IMO conventions, which use the date the convention comes into force.32 Rather, it is the date when the MLC,  comes into force for the ratifying State, that is, in accordance with Article VIII, paragraphs  and ,  months after ratification (or longer if ratification is before the Convention enters into force). 31

A flag State could, of course, also choose not to apply this exclusion and instead apply the Standard to all ships under its flag. 32 See, for example, International Convention for the Safety of Life at Sea, , London,  November ,  U.N.T.S. , as amended (SOLAS), Chapter II-, Regulation , para. a(ii).

title : accommodation, recreational facilities, and food  The resulting unevenness in application that this might create could be seen as an incentive to delay ratification to attract substandard ships to a particular flag. However, the concept of ‘no more favourable treatment’ under Article V, paragraph , in the context of PSC, would apply to ships operating under the flag of that country, a factor that may provide an incentive to ratify.33 The point in time for identifying a ‘ship constructed before’ is set out in the last sentence of Regulation ., paragraph . These transitional provisions raise the obvious question as to the requirements that would apply to construction and equipment matters on ships flying the flags of countries that have not ratified the earlier conventions. The answer is found in the careful wording of paragraph  as relating only to “requirements in the Code”. This means that Regulation ., paragraph , applies to all ships, and its requirement to provide and maintain “decent accommodation and recreational facilities . . . consistent with promoting seafarers health and well-being” would be the basis for regulatory action, including inspections. . Each Member shall ensure that ships that fly its flag provide and maintain decent accommodations and recreational facilities for seafarers working or living on board, or both, consistent with promoting the seafarers’ health and well-being. 33

This point and the overall operation of paragraph  was explained to the th ILC, supra note , as follows: . The representative of the Secretary-General responded . . . Regulation ., paragraph , provided that the requirements in the Code relating to ship construction and equipment applied only to ships constructed on or after the coming into force of this Convention for the Member concerned. The requirements included in Standard A., paragraph , would, therefore, not apply to existing ships. In Note  of the Office Commentary (Report I(A)) on Regulation ., the Office had made a suggestion that was now the subject of an amendment submitted by the Government member of the United Kingdom. Article , paragraph , of the ILO Constitution provided that the adoption or ratification of a Convention would not affect existing, more favourable conditions under other Conventions. The effect of Article X of the proposed Convention would be the revision of many Conventions (including the Accommodation of Crews Convention (Revised),  (No. ), and the Accommodation of Crews (Supplementary Provisions) Convention,  (No. ) and, thus, their automatic denunciation in case of ratification of the proposed Convention. The reason was that the new Convention would provide comprehensive protection as favourable as the protection provided by the present Conventions. However, the Committee would have to be sure that the new Convention covered the same subject matter as the revised Conventions. This was not the case with Regulation ., paragraph . This provision excluded existing ships, which might be covered by present ILO Conventions, from the detailed protection under the Code that contained the substance of Conventions Nos.  and . It would not be safe to rely on the argument that Article , paragraph , of the ILO Constitution should be considered as making Conventions Nos.  and  applicable to those countries. Not only would arguments of this kind undermine legal certainty as to the new regime under the proposed Convention, but the basic overall obligation in Regulation . would continue to apply to existing ships. Only the details in the Code would be excluded by Regulation ., paragraph . . . .



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Finally, paragraph  of Regulation ., as mentioned above in the extract from the Office Report for the th ILC, deals with the application of future amendments to the Code to ships constructed before the amendment comes into force. It will be recalled that amendments to the Code can occur under the accelerated ‘tacit acceptance’ process under Article XV or under the more traditional procedure under Article XIV. Standard A. and Guideline B. This discussion will not examine each of the  paragraphs in Standard A. and the related guidelines, but will instead note specific points of interest or difficulty with the general provisions and the more detailed requirements. General Implementation Obligations (Paragraphs – and ) The first five paragraphs of Standard A. set out basic principles for seafarer accommodation and repeat, but also elaborate upon, the requirement under Regulation ., paragraph . These five paragraphs are chiefly concerned with implementation and enforcement obligations in flag States. Standard A., paragraphs –, are also designed in a logical structure that moves from the general to increased detail on each of the matters set out in paragraph . Paragraph  provides: . Each Member shall adopt laws and regulations requiring that ships that fly its flag: (a) meet minimum standards to ensure that any accommodation for seafarers, working or living on board, or both, is safe, decent and in accordance with the relevant provisions of this Standard; and (b) are inspected to ensure initial and ongoing compliance with those standards.

It will be recalled that under Article IV, paragraph , ‘unless specified otherwise’ obligations under the MLC,  can be implemented in a variety of ways, including through collective bargaining agreements. However paragraph  “specifies otherwise” and requires that the flag State adopt “laws and regulations” requiring ships under its flag to meet the minimum standards in accordance with Standard A. and that ships be inspected for compliance. Paragraphs  and  address aspects of these laws and regulations and their application; paragraphs  and  elaborate on inspection obligations. One point of difficulty relates to the relationship between paragraph , which requires that “[e]ach Member” (the ratifying State) adopt laws and regulations, and paragraph , which obliges the competent authority to require that ships “meet the minimum standards set out in paragraphs  to  of this Standard”. This appears in part to be result of the amendment to paragraph , discussed below, by the th ILC which added the reference to ‘this Standard’. As a result it is unclear

title : accommodation, recreational facilities, and food  what additional action is expected of a competent authority under paragraph , other than to apply the laws and regulations that are developed under paragraph . However, given the fact that provisions in paragraphs – are the most likely to be updated, perhaps it was envisaged that some other measures could also be used to implement these specific matters. Paragraph  has several points of wording that are of interest. The word ‘any’ was specifically included by the th ILC, along with the wording in paragraph  (dealing with sleeping accommodation), which begins with “[w]hen sleeping accommodation on board ships is required . . . ”, to address concerns about potential application to ships that are covered by the Convention but are not engaged in night voyages.34 The current wording of Standard ., paragraph (a), was substantially reworded, in the same amendment, to add the concept of working or living on board, or both adopted in Regulation ., paragraph .35 The current wording, which essentially repeats the requirement in Regulation ., paragraph , for “decent accommodation” and adds the word 34

Committee of the Whole Report, supra note . With respect to Standard A., para. :

. The Government member of the United Kingdom, speaking also on behalf of the Government member of the Netherlands, introduced amendment D. to replace, after the words “meet minimum standards”, the rest of the text of Standard A., paragraph (a), by the words: “to ensure that any accommodation for seafarers, working or living on board, or both, is safe, decent and in accordance with the relevant provisions of this Standard; and”. He drew the Committee’s attention to the word “any”. The amendment supported the principle of not requiring the provision of unnecessary accommodation. . The Employer and Worker Vice-Chairpersons supported the amendment. . The Committee adopted the amendment and sent it to the Drafting Committee with the request to ensure conformity among the three language versions, and to examine the use of the phrase “or both” for any possible redundancy . . . With respect to Standard A., para.  (in connection with the discussion of the phrase working or living or work or both, in Regulation ., para. ): . The Employer Vice-Chairperson introduced amendment D. to replace the words “working or living on board, or both” by the words “working and living on board”, in paragraph . The amendment sought to ensure that ships that did not sail at night were not required to have sleeping accommodation. . Following informal consultation, it was agreed that the chapeau of Standard A., paragraph , should be amended to read: “Where sleeping accommodation on board ships is required, the following requirements for sleeping rooms shall apply.” . The Employer Vice-Chairperson stated that this amendment indicated that ships trading only during the day would not be required to have sleeping accommodation. Seafarers on those vessels would have access, however, to all other types of accommodation. Amendment D. was withdrawn. . The Committee adopted the amendment to the chapeau of Standard A., paragraph . 35

Proposed Consolidated Maritime Labour Convention, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(B), available at http://www.ilo.org/public/english/standards/relm/ ilc/ilc/rep-i-b.pdf.



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“safe”, may now create some uncertainty as to the meaning of ‘decent’. The combination of “decent” with “and in accordance with the relevant provisions of the Standard” implies that decent may be something other than the provisions in the Standard. The word ‘safe’ in Standard A., paragraph , relates to the provisions in Standard A., paragraph (a), regarding the need to consider the occupational safety and health provisions in Regulation . when developing laws and regulations for accommodation. In addition, several specific requirements in Standard A. reference occupational safety and health matters, for example, exposure to noise and vibration and ambient factors. Standard A., paragraph , elaborates the obligation to adopt laws and regulations and requires that the competent authority in developing them, after consulting the shipowners’ and seafarers’ organizations concerned, take account of the provisions in Regulation . and the Code and “give due consideration to the guidance contained in Part B of the Code”. The latter phrase simply restates the obligation set out in Article VI, paragraph . It will be recalled that the term ‘after consultation’ was the subject of an opinion of the ILO’s Legal Adviser.36 Paragraph  emphasizes that the workplace is also a living space for seafarers, indicating that factors related to occupational safety and health are perhaps even more important. Paragraph  illustrates the cohesiveness of the Convention, whereby obligations relating to implementation are often linked to compliance and enforcement in Title  and the regulations are cross-referenced. It refers to the inspection obligation under Regulation .., which addresses flag State inspections for all ships, not just ships that are subject to certification under Regulation ...37 36 See Chapter , pp. – and Final Report, HLTWG (Third Meeting), Geneva,  June–  July , ILO Doc. No. TWGMLS//, available at http://www.ilo.org /public /english / dialogue /sector /techmeet/twgmls/twgmls-r-.pdf, paras –. The ILC Drafting Committee made an adjustment to clarify the intention. See: Committee of the Whole Report, supra note , p. :

Title —Standard A.—Accommodation and recreational facilities In paragraph  of Standard A., in order to give effect to the intention that advance consultation was to take place in both situations contemplated by subparagraphs (a) and (b) of paragraph , the Drafting Committee moved the reference to consultation into the chapeau, thus aligning the French and English versions. 37

Although Standard A.. does not cross-reference Standard A. it does indicate, at Standard A.., paragraph , that inspections are to be carried out at the intervals specified in Standard A.. and in no case are to exceed three years. However, under Standard A.., paragraph , for ships subject to certification, a Maritime Labour Certificate will cease to be valid when the ship changes flag (is registered) or when “substantial changes have been made to structure or equipment covered in Title ”. The loss of validity of a certificate would de

title : accommodation, recreational facilities, and food  Paragraph  sets out six areas that the competent authority in the flag State is to pay special attention to when ensuring implementation. This paragraph, mostly, but not fully, relates to the various topics covered in paragraphs  to. It was the subject of debate38 as to its utility prior to the PTMC, where it was accepted in principle with discussion relating only to the reference to noise and vibration.39 The Office Commentary for the PTMC noted: . There was a difference of opinion as to the need for paragraph  of Standard A., which is in square [ ] brackets. It simply lists the main subjects for attention. Some felt it would be useful to inspectors as it serves to highlight all the key areas of concerns which are then covered by the subsequent more specific text. Others felt it was unnecessary text. The items listed in paragraph  are not themselves controversial; however, subparagraph (c) dealing with noise and vibration is bracketed { } for discussion as to the inclusion of vibration (not currently addressed in detail in existing texts) and as to the placement of these provisions. In previous drafts of this Convention, noise had been placed in Title  as it was seen as relating to ship and equipment design standards. Vibration concerns would raise similar considerations. Inclusion in Title  would also allow for operation of the transitional provisions . . . to the extent they relate to preventing noise and vibration through hull and equipment design. However, the Shipowner and Seafarer representatives have agreed that the issue is better considered as an aspect of the standards applying to occupational health protection and would be better dealt with under Title , Regulation ., which also required updating. Accordingly the provisions on noise have been moved to Regulation . and associated Code provisions. Some inspection obligations and cross references have, however, also been placed in Title  (see Standard A., paragraph (a), paragraph (c) and paragraph (t)) pending a decision on the best place for this issue and subject to more detailed consideration of the content and approach to occupational safety and health adopted under Regulation . (see comment  below). It may be important in any event to retain a reference in Title  to noise and other ambient factors in that they can negatively affect both the living and workplace on board ship.40

In fact the reason for this listing of specific areas in paragraph  relates more to drafting history than substance. It was initially thought that this paragraph would be the main provision in the Standard41 with the more detailed points facto trigger a flag State inspection for a ship that must be certified. For ships not subject to certification, the obligation to inspect on registration, re-registration, or substantial alteration of seafarer accommodation is, therefore, found in Standard A., paragraph . 38 Final Report, supra note , para. . 39 This provides an opportunity to consider the impact of process and procedure on international treaty negotiation. The bracketing of text de facto focuses the discussion on the specific text and tends to discourage or eliminate discussion or wider questioning. This ‘structured discussion’ may be essential to reaching agreement on lengthy texts. 40 Commentary to the Recommended Draft, supra note , Comment  (on Title , Regulation .). 41 See supra note .

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(now found in paragraphs –) placed in the Guideline in Part B. Once the matters were placed in the Standard, this provision appears to add very little. It is, however, of interest to note that Section . of the Guidelines for Flag State Inspections42 lists the following nine matters: Carry out a visual observation of seafarers’ on-board accommodation and recreational facilities with particular attention paid to the following requirements in the MLC, : – general requirements (Standard A., para. ) – the size of rooms and other accommodation spaces (Standard A., paras , ) – heating and ventilation (Standard A. para. ) – noise and vibration and other ambient factors (Standard A., para. (h)) – sanitary and related facilities (Standard A., paras , ) – lighting (Standard A., para. ) – hospital accommodation (Standard A., para. ) – recreational facilities (Standard A., paras , ) – occupational safety and health and accident prevention (Standard A., paras (a), (h))

This list appears to relate more closely to the matters addressed in paragraphs –  and suggests that all subject areas in the Standard are considered important. As noted earlier, paragraph  simply stipulates that paragraphs – be required. Although located at the end of the Standard, paragraph  is in fact closely linked to the inspection obligations set out in paragraphs  and . It is an elaboration of the requirement in Standard A., paragraph (b), that inspections ensure initial and ongoing compliance. It is also one of the matters that would need to be addressed in a Declaration of Maritime Labour Compliance, Part II (see MLC, , Appendix A-II) prepared by a shipowner. Paragraph  provides: . The competent authority shall require frequent inspections to be carried out on board ships, by or under the authority of the master, to ensure that seafarer accommodation is clean, decently habitable and maintained in a good state of repair. The results of each such inspection shall be recorded and be available for review.

The words ‘decently habitable’ were the subject of debate at the PTMC largely because of their potential subjectivity. Shipowners wanted the words deleted as they found the term “incomprehensible”. Seafarers’ commented that the term “added value” as it described accommodation “that was not only clean and in a good state of repair (which could be achieved on board ship), but also in which 42

Guidelines for Flag State Inspections, supra note .

title : accommodation, recreational facilities, and food  seafarers could actually live decently”. In a spirit of compromise the shipowners agreed to accept the term in the paragraph.43 Additional Flexibility (paragraphs –) Before looking at the specific matters of application in Standard A., it is important to note that the Standard contains some specifically negotiated flexibility with respect to special purpose ships, passenger ships, and ships of less than , GT and the ability to allow for “separate or common mess rooms as appropriate”.44 Aside from two matters, these provisions largely involve setting lower standards for ships in these categories (see below). This provision provides the possibility for discretion at the national level for decisions as to application. Standard A., paragraph , is based on a provision found in Convention No. , which was adopted in .45 It provides that “fairly applied variations” may be permitted to take account of differing and distinctive religious and social practices; however this cannot result in overall facilities that are less favourable than would have existed for seafarers if Standard A. had been applied. Paragraph  expands the flexibility beyond Convention No. , which limited flexibility to specific provisions setting the size of sleeping rooms and requirements for sanitary facilities. Under paragraph  there is no limitation as to the matters in the Standard, therefore this flexibility applies to all areas in Standard A..46 The exercise of this flexibility, like all other areas of flexibility in the MLC, , promotes tripartism and national social dialogue by requiring consultation with shipowners’ and seafarers’ organizations. 43

Committee No.  Report, supra note , para.  [now para. ]: paras –. Standard A., paras . and (b). 45 Accommodation of Crews (Supplementary Provisions) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, Article : In the case of ships the manning of which has to take account, without discrimination, of the interests of crews having differing and distinctive religious and social practices, the competent authority may, after consultation with the organisations of shipowners and/or the shipowners and with the bona fide trade unions of the seafarers concerned, and provided that these two sides are in agreement, permit variations in respect of the provisions of paragraphs  to  and paragraph  of Article  and paragraphs  and  of Article  of this Convention on condition that such variations do not result in overall facilities less favourable than those which would result from the application of the provisions of the Convention. Particulars of all such variations shall be communicated by the Member concerned to the Director-General of the International Labour Office who shall notify the Members of the International Labour Organisation. 46 MLC,  explicitly addresses several issues on which there may be differing social practices, for example, Standard A., paragraph (b), allows common or separate mess rooms “as appropriate”. See: Guideline B...—Mess rooms, para. . Another issue of some concern was differing preferences regarding the nature of mattresses. See: Report of the Discussion, supra note , Amendment : C./D., Guideline B.., paragraph , at para. . 44

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Standard A., paragraphs  and , also allow a country to exempt ships of less than  GT from some specific requirements in certain circumstances, subject to the need to protect seafarers’ health and safety. These two paragraphs did not exist in their current form until after the Intersessional Meeting in . The draft text considered by the PTMC (the text that is now paragraph ) only provided: . {Any exemptions with respect to the requirements of this Standard may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds. Such grounds may not include financial considerations.}

The last phrase relating to financial considerations was deleted at the PTMC.47 A final phrase was added by the Intersessional Meeting as part of the solution that also included adding what is now paragraph .48 To appreciate the reason 47 The precise scope of this provision remains unclear. The following extract from the discussion on this paragraph during Technical Committee No.  is illustrative (supra note ):

. The Shipowner Vice-Chairperson pointed out the Seafarers’ proposal was new text, and wished to hear the Office’s explanation for the wording selected in the text before the Committee. . The Special Adviser explained that the text of Title  was the result of a long process of negotiation. As explained in the Commentary, subsequent to the Nantes meeting there had been further negotiations between the social partners in order to advance the text for this Conference. However, time pressures had prevented the Office from incorporating all these negotiated changes into the text before the Committee, and the passages concerned were marked by curly brackets in the recommended draft text. The intention of the Office had been to draft a clause stating that any exception or derogation should be based on clear, strong grounds other than financial ones. The Office had chosen this format in order to avoid having to insert the same clause after each provision to which it referred. . The Seafarer Vice-Chairperson proposed the deletion of the last sentence on the grounds that “strong grounds” were referred to just before in the provision. . The Shipowner Vice-Chairperson agreed with this proposal. He then proposed the deletion of the word “particular” in the third line. . The Seafarer Vice-Chairperson considered the word “particular” necessary, as one needed to know which circumstances were being considered. . The Shipowners’ group agreed to retain the word “particular”. . The social partners having agreed to the deletion of the last sentence of paragraph , the Chairperson stated that the curly brackets in paragraph  were deleted, and the last sentence deleted. . The Government member of the United Kingdom expressed concern that paragraph  might risk undermining the substantial equivalence provisions contained in the Articles, since this paragraph could allow exemptions not meeting the mere concept of substantial equivalence. . The Seafarer Vice-Chairperson explained that their intention had not been to distance themselves from the concept of substantial equivalence, but that it was a question of the rationale underlying this provision and of how it could be met in some other form. . The Shipowners’ group agreed with the concerns expressed by the Government member of the United Kingdom. 48 Report I(A), supra note , Note  (Title , Regulation .):

title : accommodation, recreational facilities, and food  for this provision and the fraught nature of the discussion, it is important to recall the difficulty posed for smaller ships and inclusion of a much wider range of ships under the MLC, .49 Importantly, the draft text considered at the PTMC in 50 contained the following text in Article II and, as noted above, did not contain what is now paragraph . . This Convention applies to all ships, whether publicly or privately owned, ordinarily engaged in commercial activities (C., C., C., C., C., C., C.) other than: (a) [ships of less than { } gross tons;] (b) ships engaged in fishing or in similar pursuits; (c) ships of traditional build such as dhows and junks; and (d) oil rigs and drilling platforms [when not engaged in navigation]. (modified C.A/(c))

. . . . As a result of the package of solutions regarding the scope of application and tonnage agreed at the Intersessional Meeting (Note , paragraph ), a new paragraph was added to Standard A. providing further flexibility. This paragraph, which now appears as paragraph , allows a Member to exempt smaller ships from the application of specified provisions of the Standard after consultation with the shipowners’ and seafarers’ organizations concerned, “where it is reasonable to do”, and “taking account of the size of the ship and the number of persons on board”. This possibility has to be seen in the light of paragraph , which provides that “Any exemptions with respect to the requirements of this Standard may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety”. The final words in italics were added to the text in the PTMC draft Convention as part of the agreed package. 49

Final Report, supra note : . The Shipowners’ group indicated problems with various requirements as regards passenger, small and specialized ships. While the default was established to be one individual sleeping room for each seafarer, an exception for passenger ships was granted by moving paragraph  of Guideline B.. to Part A, and flexible wording for the competent authority concerning small and specialized ships was inserted. The Working Party also accepted to grant an exemption for passenger ships with respect to the location of the sleeping rooms. Furthermore, the Working Party reached a consensus that the competent authority could, after consultations with the social partners, permit exceptions for small ships regarding the location of mess rooms apart from sleeping rooms. The Shipowners’ group proposed to add the threshold of , GT to the term “small ships” which was used in certain provisions. The threshold was clearer and essential to prepare the installations inside the vessels. This was supported by several Government representatives because the translation of this requirement into national legislation needed a figure, and shipowners had to know when they had the right to ask for an exemption. Other Government representatives and the Seafarers’ group preferred to keep the present text affirming that tonnage thresholds had been removed throughout the draft Convention, and that the term “small ships” provided for more flexibility. The issue was left in square brackets.

50

Consolidated Maritime Labour Convention, Recommended Draft, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ standards/relm/maritime/pdf/cmlc-draft.pdf.

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The Convention text that emerged from the PTMC51 did not contain paragraph (a) (paragraph ) or . Article II provided only that: . This Convention applies to all ships, whether publicly or privately owned, ordinarily engaged in commercial activities (C., C., C., C., C., C., C.) other than: of less than { } gross tons;] (b) ships engaged in fishing or in similar pursuits; and (c) ships of traditional build such as dhows and junks.

The absent subparagraph (a) reflects a decision to ‘blank out’ all controversial provisions to allow them to be reconsidered tabula rasa by the Intersessional Meeting. As noted above, the tonnage limitation problem was resolved on the basis of a package that included paragraph . But even then the precise tonnage level in paragraph  remained controversial even though it had been agreed to by the Working Party. As discussed in Chapter  in connection with Article II, paragraph , the application of the MLC,  to smaller ships that do not engage in international voyages remained problematic at the th ILC. The following extract from the record of the Intersessional Meeting in  provides an insight into the origins of the wording and the  GT figure that was finally adopted in paragraph . It should be noted that the paragraph numbering in Standard A. was substantially adjusted by the PTMC Drafting Group and the current paragraph numbers are shown below in square brackets [ ]. . The representative of the Government of the Philippines considered that it was preferable to have a more general clause for the application of Title  and suggested the following wording: After consultation with the relevant shipowners. and seafarers. organizations, the competent authority may decide to what extent the provisions of this Title do not apply to ships of less than  gross tons. The Shipowner spokesperson agreed with the proposal. . The Seafarer spokesperson stated that the general clause should not apply to the entire Title , which included issues such as food and catering, noise levels, etc. Furthermore, the proposal appeared to allow for the competent authority to consult with the relevant shipowners. and seafarers. organizations and then decide not to apply the whole of the Title to ships of less than  gross tons. He requested further discussion of third suggestion. . The representative of the Government of the United States recalled that Committee No.  of the PTMC recognized that Title  might change depending on consideration of Article II. There were two options: either a flexibility clause introduced for small vessels to each relevant section in Title , or a general exemption clause. She supported the proposal made by the representative of the Government of the Philippines. . . . 51

Draft Maritime Labour Convention, PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/pdf/ ptmc--.pdf.

title : accommodation, recreational facilities, and food  . The Seafarer spokesperson . . . had a different view. Accommodation was an important issue and his group would be unwilling to have a clause that enabled the possible exclusion throughout Title . without a full debate. Even if the flexibility clause applied only to Title ., it would be too broad, since many accommodation issues were important for all ships regardless of size. The proposal made by the Government group was a package and should be referred to the PTMC Drafting Committee. However, a small ad hoc tripartite group of technical experts should meet intersessionally before the deadline for papers for the Conference in order to discuss and make proposals necessary to Title . If a small tripartite group got together during the present Meeting to identify possible areas that the ad hoc tripartite group of technical experts should consider afterwards, it could be useful. . A small tripartite working group, composed of representatives of the Shipowners and Seafarers groups, as well as representatives of the Governments of China, Japan, Republic of Korea, Norway, United Kingdom and United States, met and produced the following proposal for inclusion at the end of Standard A.: [] . Members may, after consultation with the organizations of shipowners and seafarers concerned, exempt ships below  gross tonnes where it is reasonable to do so, in relation to the requirements listed below, taking into account the size of the vessel and the number of persons on board. a. A..(r), (v) and (z/i); b. A..(e) with respect to the air conditioning only; c. A..(aa), (bb), (cc) and (dd) all with respect to floor area only. [now: (a) paras (b); (d) and ; and (b) paras (f) and (h) to (l) inclusive, with respect to floor area only] [] . Any exemptions with respect to the requirements of this Standard may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to the protection of the seafarers. health and safety. . A spokesperson for the group said that, notwithstanding the flexibility in the draft instrument, further flexibility was needed in order to exclude vessels below a certain limit. The working group had agreed on a limit of  gross tonnes. Second, it had agreed that consultation would be necessary before any exemption could be allowed, since the size of the vessel and the number of persons on board must be taken into account. Third, it felt that the nature of the requirement concerned needed to be taken into account. . The Shipowner spokesperson supported the proposed text and the reasoning behind it. . The Seafarer spokesperson said that the results of the working group had fallen short of their expectations. The draft instrument should not include standards lower than those in the proposed Convention on work in the fishing sector that would be considered by the rd Session of the International Labour Conference in June . For this reason, the Seafarers preferred deferring decision on this matter until July , when the final version of the Convention on the fishing sector would be available. . It was agreed that the drafting group’s text could be adopted and sent to the PTMC Drafting Committee with the reference to  gross tonnes in square brackets for consideration at the Maritime Conference.

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. The Chairperson concluded that there was consensus on the way to go forward. The Meeting referred the text to the PTMC Drafting Committee.52

In fact the Working in Fishing Convention,  (No. ) was not adopted until  and is based on differing, much more flexibly worded requirements based on length of the vessel and various tonnage equivalents, with the main concern being for ships of a length and agreed-upon tonnage equivalent of  GT and above.53 It also contains the possibility for phasing in implementation for some countries.54 Despite the clear differences in these sectors and the failure of the initial attempt to adopt the Work in Fishing Convention,  the notion of going ‘no lower than fishing’ remained persuasive and influenced the  GT figure adopted in paragraph .55 In addition, the few areas where exemptions can be made under paragraph , and elsewhere, are relatively limited. As the foregoing analysis suggests, the overall outcome was difficult to achieve because of uncertainty as to whether the Convention would have a general tonnage exemption. The difficulty for compliance by a diverse range of ships, whose situation may not be captured in the reduced standards that are available for the category of ships less than , GT, relates primarily to structural features (see below). However, these issues may be addressed in part by the exclusion of existing ships and other approaches such as substantial equivalence. From one perspective, new regulatory requirements can stimulate developments and improvements in technology or other design or operating matters.56

52

Report of the Discussion, supra note . See: Work in Fishing Convention,  (No. ), Geneva,  June , available at http:// www.ilo.org/ilolex/english/convdisp.htm, Art. . 54 Ibid., Arts  and . 55 Report I(A) to the th ILC, supra note , commented at Note  (Title , Regulation .): 53

. With respect to paragraph , although there was tripartite consensus on the principle to allow the exclusion of smaller ships from some requirements in Standard A., there was no agreement at the Intersessional Meeting on the precise tonnage to be used to designate “smaller ships”. The figure of  gross tonnage, included in paragraph  of Standard A. in the proposed consolidated maritime labour Convention, set out in Report I(B), seemed to be generally acceptable. There was a concern that the figure should be consistent with any similar provision to be adopted in the proposed Convention on work in fishing, which was on the International Labour Conference agenda for June  [sic] (and is again on the agenda for June ). 56 One example of this has been the developments in ship design and equipment in response to an international convention and national regulations regarding the prevention of transfer of harmful aquatic organisms in ships’ ballast water. See: International Convention for the Control and Management of Ships Ballast Water and Sediments, London,  February , available at http://globallast.imo.org.

title : accommodation, recreational facilities, and food  Detailed Requirements and Points of Interest (Paragraphs –) As noted earlier, the initial and final paragraphs of Standard A. are concerned with more general implementation obligations, such as adopting laws and regulations. Standard A., paragraphs –, provide the content and specific minimum requirements on board ships. It is important to emphasize that both paragraphs  and  of Standard A. describe these as ‘minimum standards’. It is a basic point that compliance exists when a standard is higher or greater. This terminology makes it clear that the matters set out in paragraphs –, together with the Guidelines in Part B of the Code, are the ‘minimum’ needed to provide decent accommodation and recreational facilities in accordance with Regulation ., paragraph .57 Many of these ‘minimum standards’ are generally worded, requiring, for instance, that particular aspects of accommodation or recreational facilities should be ‘adequate’ or lighting is ‘proper’. Thus it is necessary for flag States to give due consideration to the relevant guideline for information as to what would be considered ‘adequate’ when developing national provisions. There are, however, some provisions that set out precise minimum standards, for example, floor areas (although some flexibility may be possible where countries apply the concept under Article VI, paragraphs  and , of substantial equivalence). Importantly, many of the provisions contain some potential exemptions or areas for flexibility on specific points. Often they contain an ‘internal’ standard for exercising this flexibility such as ‘is reasonable’, ‘will not result in discomfort to seafarers’, or ‘exceptional cases’, and in most cases require consultation. It is not clear whether use of this flexibility (if not called an “exemption”) would also need to meet the requirements under Standard A., paragraph . The following discussion will consider the various topics in paragraphs  to in numerical order and indicate the related guidelines, with a focus on particular points of difficulty or interest from a legal perspective. As noted earlier a more practical or ships’ inspection perspective is provided by the Guidelines

57

As explained in the overview, Standard A. does not have any organizational subheadings, however the Guidelines B. of the Code are given subheadings and numbered, albeit not precisely concordant with paragraphs –. The particular structure and the inconsistency with the numbering in the Guidelines is a result of the negotiating process described earlier whereby various elements were transferred between both Parts A and B of the Code and also between Standard A. and Guideline B. in Title  and Standard A. and Guideline B.. The draft text emerging from the PTMC before rearrangement by the PTMC Drafting Group comprised nine paragraphs, one of which was paragraph  with subparagraphs (a)–(gg) (comprising essentially the content of paragraphs –). The PTMC Drafting Group restructured this paragraph into the current paragraphs with the introductory phrase or chapeau “[w]ith respect to the requirements for . . ..” for most topics in paragraphs  to , with each chapeau followed by a number of subparagraphs. See: Report I(A), supra note , Appendix A, para. .

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for Flag State Inspections58 which point out many of the structural elements, for example, location of sleeping rooms and floor areas, in these subparagraphs that would be reviewed initially in the context of approval of construction plans for new ship construction. The subsequent inspections would be oriented to verifying that the ship is built as planned, addressing questions of substantial alterations, if any, and determining whether the rooms and equipment are maintained and used as envisaged by the national laws implementing the MLC, , for example, the number of seafarers per sleeping room. General Requirements for Accommodation (Paragraph (a)–(h)) The wording of the introductory phrase or chapeau for paragraph  was the subject of an amendment at the th ILC. Some governments59were concerned that it be clear that the requirements do not apply to ships that do not have seafarers sleeping on board. These ‘general requirements’ are a mix of structural matters, mainly in relation to the location of seafarers’ accommodation and recreational facilities on the ship and various safety and health protection matters.60 The main guidelines in Part B of the Code relevant to paragraph 

58 59

Guidelines for Flag State Inspections, supra note , pp. –. Committee of the Whole Report, supra note :

. The Government member of the United Kingdom introduced amendment D., which was sponsored by the Government members of the Netherlands and the United Kingdom, and sought to replace the words “for living accommodation” by the words “for seafarers’ living and working accommodation” in the chapeau of paragraph . It was intended to achieve coherence in the text and to clarify that the requirements concerning accommodation contained in the instrument only applied to ships on which accommodation was needed in practice. . The Employer Vice-Chairperson proposed a subamendment to modify the chapeau of paragraph  by deleting the word “living”, so that it would read: “With respect to general requirements for accommodation:”. . The Government member of the United Kingdom accepted the subamendment. . The Worker Vice-Chairperson also endorsed the subamendment. . Amendment D. was adopted as subamended. 60

In fact many elements relate to matters also addressed by the IMO, a factor that was explicitly considered. See: Final Report, supra note , . The Shipowners’ group considered that the provisions on bulkheads, insulation and fire prevention were duplicative as already covered by the SOLAS Convention. However, the meeting agreed to keep the requirement of insulation and gas-tight and watertight bulkheads, as this was not specifically provided by SOLAS. As to the reference to SOLAS concerning fire-prevention measures, the Seafarers’ group preferred to retain it for ease of reference. However, some Government representatives argued that the reference did not add value but rather created difficulties due to the recommendatory nature of the mentioned IMO codes of practice. The issue was left in square brackets.

title : accommodation, recreational facilities, and food  are: Guideline B..—Design and construction;61 Guideline B.—Lighting;62 and Guideline B..—Prevention of noise and vibration. Although a number of points, such as the minimum head room (ceiling height), were debated at length, these were ultimately resolved by allowing for some flexibility.63 Equally there was difficulty with some basic sleeping accommodation and safety concerns in connection with differing categories of ships, particularly passenger ships and training/special purpose ships and, to some extent, dredgers,64 to the extent that they are classified as ships under the MLC, . Again, the solution was to expressly allow for flexibility/exemptions within each provision based on specified factors.

61

As noted above, the title of the Guideline may eventually be a problem in terms of scope of Regulation ., paragraph.. See text supra note . 62 It is also relevant to Standard A., paragraph . This duplication is a result of the combination of the transfer of provisions and the later assignment of text by the PTMC Drafting Group. See: Final Report, supra note , . A Government representative felt that for such an important issue as lighting, which was raised in paragraph , the mere reference to proper lighting was insufficient, and suggested to move the first paragraph of Guideline B.. into Part A, thus introducing a requirement for natural and artificial light in sleeping rooms and mess rooms. The Working Party accepted this proposal. 63

This was because of differing views on ‘normal’ heights of seafarers. Final Report, ibid., . The Seafarers’ group suggested to increase the minimum headroom from  to  cm, reminding that the Joint Maritime Commission (JMC) had given the mandate to improve old Conventions. The Seafarers’ group stated that they would try to provide statistics that would confirm that the average height had increased since the entry into force of the existing Convention and would bring these statistics to the attention of the PTMC. The Shipowners’ group rejected the Seafarers’ proposal stating that  cm was the figure originally required in Convention No. . While the genuine height would be  cm due to the installation of sprinklers, the clear height should stay  cm. Some Government representatives also opposed the proposal indicating that the headroom of  cm required in Convention No.  only applied to ships over , tonnes, and that the threshold of  cm was definitely too high for Asian countries. The Chairperson recalled that thorough justification was needed to upgrade existing Conventions. The issue was left in square brackets.

64

The following amendment was proposed at the Intersessional Meeting in . See: Compendium of Proposed Amendments to the Draft Consolidated Maritime Labour Convention, , Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ptmc /ptmc-.pdf: Amendment : C./D., Standard A., paragraph , Submitted by the Seafarers Proposal: In paragraph , between subparagraphs (a) and (b), add the following new subparagraph: “have no part of the ship’s accommodation situated forward of the collision bulkhead; and” . . .

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There are some specific points to note in paragraph  that affect other provisions, in particular paragraph  on sleeping accommodation and paragraph  on sanitary facilities. Paragraph (c) refers to “ships other than passenger ships, as defined in Regulation (e) and (f) . . . ” of SOLAS.65 The special treatment of ‘passenger ships’ was accepted at the fourth meeting of the HLTWG in 66 and the specific aspects of flexibility67 and reduced requirements, especially The debate on this proposal is useful to consider with respect to the situation for smaller ships and dredgers and also, indirectly, attitudes regarding future developments for new ships. See: Report of the Discussion, supra note : Amendment : C./D., Standard A., paragraph  . The representative of the Government of the Netherlands, on behalf of the EU Member States present at the Meeting, indicated that they had no common position on the matter. There had been many concerns regarding small and special ships, such as dredgers. She proposed that the small working group constituted earlier should look at the issue. . The Shipowner spokesperson and the representative of the Government of Greece agreed to refer the matter to the small working group. . The representatives of the Governments of the Bahamas, Denmark, Germany, the Republic of Korea, Liberia, Norway and Sweden supported and strongly recommended support for this amendment considering that the requirement would only apply to new ships. . . . . The Shipowner spokesperson replied that this amendment would cause problems because dredgers were constructed differently from other merchant ships. . The Seafarer spokesperson felt that the Convention would apply to a very limited number of dredgers. The term .ship. was defined as a ship that did not navigate exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations applied. . The representative of the Government of Denmark agreed that most dredgers would fall outside the scope of the Convention. The existing Conventions only stipulated that sleeping rooms should not be situated forward of the collision bulkhead. . The Special Adviser indicated that the term .accommodation. did not include recreational facilities. . The representative of the Government of the Islamic Republic of Iran said that dredgers were not always confined to sheltered waters; they undertook international voyages to do dredging work all over the world. . The amendment did not attract tripartite consensus. 65

SOLAS, supra note , Part A. Regulation : (e) A passenger is every person other than: (i) the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and (ii) a child under one year of age. (f) A passenger ship is a ship which carries more than twelve passengers.

66

Final Report, supra note , para. . For example, Standard ., paragraph (d), allows passenger ships and special purpose ships some flexibility with respect to the requirement that sleeping rooms be located above the load line. Under paragraph (c) there is flexibility in specified circumstances for all ships to allow the location of sleeping rooms in the fore part of the ship. 67

title : accommodation, recreational facilities, and food  regarding floor areas, were agreed to at the PTMC. The definition of passenger ships was included by the th ILC.68 This category of ships is perhaps the most affected by the widened definition of seafarers as they can have more than a , seafarers working on board with diverse duties. Similarly, another IMO text, the Code of Safety for Special Purpose Ships,  (SPS Code) and subsequent versions, is invoked in connection with ‘special ships’ (also called ‘special purpose ships’ in the MLC,  and included in paragraph (d)).69 The reference to this Code and to both special ships and special purpose ships was made to resolve difficulties of terminology mainly in connection with ships used for training seafarers, a category that also envisaged the possibility of reduced standards through Standard A.. The SPS Code was revised in .70 It may be that the cross-reference could cause some

68

Committee of the Whole Report, supra note :

. The Government member of the United Kingdom introduced amendment D., which was sponsored by the Government members of Austria, Belgium, Bulgaria, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovenia, Spain, Sweden and United Kingdom, and sought to add the words: “as defined in Regulation (e) and (f) of the SOLAS Convention adopted by the International Maritime Organization in ,” after the words “passenger ships,” in paragraph (c). He recalled that, as the term “passenger ships” was only used in Title  of the instrument, and was not therefore defined in Article II, the amendment was merely intended to provide a cross-reference to the definition of the term “passenger ship” contained in the SOLAS Convention. . The Employer and Worker Vice-Chairpersons supported the amendment. . Amendment D. was adopted. 69

Committee No.  Report, supra note :

. The Government member of Japan made a proposal to the Committee to replace “specialized ships or ships used for training purposes” with “or special ships constructed in compliance with the Code of safety for special purpose ships adopted in the International Maritime Organization in  and subsequent versions (referred to below as “special purpose ships”).” . The Shipowner Vice-Chairperson believed training vessels were included by definition under special purpose ships, so they supported the Government member of Japan. . The Seafarer Vice-Chairperson preferred the term “special purpose ships” which included training ships as well. Cabins were not required for seafarers who did not live on board. . The Government member of the United Kingdom believed that the proposal from the Government member of Japan added clarity. The Government member of France also expressed support. 70

At the time the MLC,  was adopted, the relevant Code of Safety for Special Purpose Ships (SPS Code) was the code attached to the  IMO Resolution A.() as amended. The SPS Code was revised in  (Resolution MSC.(), Code of Safety for Special Purpose Ships, , Maritime Safety Committee, th Session, IMO Doc. No. MSC//Add., Annex , available at http://www.imo.org/SharePoint/blastDataHelper.asp/data_idD/ .pdf) as described below:

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uncertainty71 as the definition of a special purpose ship under the SPS Code is based on the number of ‘special personnel’ working on board that are neither ‘crew’ nor ‘passengers’. Under the SPS Code of , .. “Crew” means all persons carried on board the ship to provide navigation and maintenance of the ship, its machinery, systems, and arrangements essential for propulsion and safe navigation or to provide services for other persons on board. . . . .. “Passenger” means every person other than: . the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and . a child under one year of age. . . . .. “Special personnel” means all persons who are not passengers or members of the crew or children of under one year of age and who are carried on board in connection with the special purpose of that ship or because of special work being carried out aboard that ship. Wherever in this Code the number of special personnel appears as a parameter, it should include the number of passengers carried on board which may not exceed . Special personnel are expected to be able bodied with a fair knowledge of the layout of the ship and have received some training in safety procedures and the handling of the ship’s safety equipment before leaving port and include the following: . scientists, technicians and expeditionaries on ships engaged in research, non-commercial expeditions and survey; . personnel engaging in training and practical marine experiences to develop seafaring skills suitable for a professional career at sea. Such training should be in accordance with the training programme approved by the Administration; The Maritime Safety Committee, at its eighty-fourth session ( to  May ), adopted, by resolution MSC.(), the Code of Safety for Special Purpose Ships,  ( SPS Code), which had been developed following a thorough revision of the SPS Code adopted in  as resolution A.(). . . . In adopting the  SPS Code, . . . [p]articular attention was paid to the matter of trainees on training ships which lead to a comprehensive revision of the term “special personnel”. The  SPS Code supersedes the SPS Code adopted by resolution A.() for special purpose ships certified on or after  May . For special purpose ships certified before that date, the previous SPS Code (resolution A.()) still applies. A special purpose ship is defined under the Preamble to the  SPS Code as: . . . [A] special purpose ship is a ship of not less than  gross tonnage which carries more than  special personnel, i.e., persons who are specially needed for the particular operational duties of the ship and are carried in addition to those persons required for the normal navigation, engineering and maintenance of the ship or engaged to provide services for the persons carried on board. 71

See Chapter  at pp. – in connection with Article II and cases of doubt regarding who is a seafarer. It will be recalled that th ILC adopted a Resolution concerning information on occupational groups, as guidance as to whether various personnel would be considered seafarers for MLC,  purposes. See: Selection Committee Report, supra note .

title : accommodation, recreational facilities, and food  . personnel who process the catch on factory ships for fish, whales or other living resources of the sea, not engaged in catching; . salvage personnel on salvage ships, cable-laying personnel on cable laying ships, seismic personnel on seismic survey ships, diving personnel on diving support ships, pipe laying personnel on pipe layers and crane operating personnel on floating cranes; and . other personnel similar to those referred to in . to . who, in the opinion of the Administration, may be referred to this group. .. “Special purpose ship” means a mechanically self-propelled ship which by reason of its function carries on board more than  special personnel.72

Another important interaction with the MLC,  that may be difficult to reconcile with the softer ‘take into account’ wording in Standard A., paragraph (a), is the requirement at paragraph (h) that (emphasis added): (h) accommodation and recreational and catering facilities shall meet the requirements in Regulation ., and the related provisions in the Code, on health and safety protection and accident prevention, with respect to preventing the risk of exposure to hazardous levels of noise and vibration and other ambient factors and chemicals on board ships, and to provide an acceptable occupational and on-board living environment for seafarers.

This paragraph also provides a structural design requirement for catering facilities, a matter that is addressed Regulation . and the Code. However, as will be seen in the discussion of Title  in Chapter , one of the difficulties in Regulation . and the Code is that its general wording refers to national level prevention programmes and risk assessment and consultations. The most detailed specific provisions are found in Part B of the Code and Guideline B., although Standard A., paragraph (b), provides: . The laws and regulations and other measures to be adopted in accordance with Regulation ., paragraph , shall include the following subjects: (b) reasonable precautions to prevent occupational accidents, injuries and diseases on board ship, including measures to reduce and prevent the risk of exposure to harmful levels of ambient factors and chemicals as well as the risk of injury or disease that may arise from the use of equipment and machinery on board ships;

The provisions regarding exposure to noise and vibration and ambient factors in shipboard accommodation are set out in Guideline B..—Provisions on occupational accidents, injuries and diseases, paragraph  (e), (f) and (g)73 and Guideline B..—Exposure to noise, and Guideline B..—Exposure to vibration. These guidelines and their placement in Title  or Title , as discussed 72

SPS Code , supra note . In terms of modernizing the provisions it should be noted that Guideline B.., paragraph (g), refers to ambient factors, including exposure to tobacco smoke. 73

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above, was a difficult aspect of the development of the text and in the process at the PTMC. At the HLTWG in  there was also significant difficulty with respect to the question of whether to include specific noise level standards drawn from a relatively dated IMO instrument.74 Ultimately, both matters were resolved by referring to relevant Codes and other guidance and by including specific aspects in both Standard A. and Guideline B..75 and Standard A. and Guideline B.. and Guideline B... 74

Final Report, supra note : . The Working Party decided to delete the exemption of ships with lower tonnage from the noise level requirement, as noise was a major issue for all ships. The Shipowners’ group suggested moving the reference to IMO resolution A.(XII) on noise levels to the nonmandatory Part B. Another suggestion was to include a general reference to the appropriate IMO resolution in the Standard, and insert a specific reference to IMO resolution A. in Part B. The Working Party sought advice from the IMO representative as to whether the inclusion of a recommendatory IMO resolution into the obligatory Part A of the consolidated Convention would be problematic. He answered that the resolution was in principle non-mandatory. If “should” was used when referring to it in a Convention, the resolution would remain of a recommendatory nature and, if “shall” was used, the resolution would become mandatory. Finally, he cautioned that, if an IMO resolution was referred to in an ILO Convention, the amendment procedure of the IMO would apply to it. However, all countries interested in the maritime field at the ILO were Members of the IMO and would be able to participate in the IMO amendment procedure. It would even be possible to create a joint IMO-ILO working group. A Government representative remarked that the procedures and objectives of the IMO were quite different from those of the ILO. Moreover, after studying the Preamble of the Code on noise levels, the Working Party concluded that the Code had not been designed to be incorporated by reference or repetition and become mandatory, and was not applicable to all types of ships and to ships of less than , GT. The Shipowners’ group and some Government representatives further considered that it was unacceptable to establish a separate inspection system as required by the Code on noise levels, and that the term “maximum noise levels” would lead to non-compliance in case of instantaneous exceeding of noise levels in confined spaces. Furthermore, the IMO planned to review IMO resolution A.(XII) in order to take into account rest periods, etc. In light of these discussions, the Working Party decided to avoid the term “maximum noise levels”, and to merely add a general reference to the appropriate IMO instrument without using the word “shall”. The issue was left in square brackets.

75 At the PTMC, Technical Committee No.  developed a new guideline, which with some minor wording adjustments is now Guideline B... See: Committee No.  Report, supra note , para. . The Technical Committee dealing with Title  explored this issue at length, including transferring the issue to Committee No. , and also adopted two guidelines on this matter. See: Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. PTMC//– , available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/pdf/ptmc--.pdf:

. The Shipowner Vice-Chairperson suggested that Guideline B.. (Exposure to noise) and B.. (Exposure to vibration) be transferred to Title . The Seafarer Vice-Chairperson supported this proposal, as did the Government member of the United States. . The Committee discussed Guideline B.. (Exposure to noise) and B.. (Exposure to vibration) together, since the issue had been raised whether these two areas would be more appropriate in Title .

title : accommodation, recreational facilities, and food  Again, these provisions highlight that the location of the workplace and living spaces for seafarers are intertwined and concerns about occupational safety and health also must be considered with respect to living accommodation. For example, standards for permissible levels of exposure to workplace hazards for land-based occupations are unlikely to be appropriate where the exposure is continual, e.g.,  hours, every day, for extended periods. Requirements in Paragraphs – Paragraph , dealing with ventilation and heating, might seem to be an uncontroversial topic. However, there was lengthy consideration of air conditioning and the relationship between air conditioning and a requirement for mosquito protection. Both matters were resolved with no difficulty at the PTMC as paragraphs  and . The report of the discussion in the HLTWG captures the level of detail during the discussion of this part of the MLC, : . The Shipowners’ group invoked that not all ships could have air conditioning and proposed the deletion of the word “fresh” preceding “air conditioning”. The Seafarers’ group opposed this proposal arguing that all modern ships, whether small or big, had air conditioning. Air conditioning was essential at sea and could also provide heating. Some Government representatives underlined that only ventilation and heating were necessary on every ship, and that it would be problematic . The Government member of the Bahamas summarized the position of various Government members of the Committee, while noting that the meeting of the Government group had been short and not all members were able to express their views. With respect to placement of the provisions, the majority of Government members spoke in favour of retaining them in Title . A few governments preferred that they be moved to Title ; some had expressed no preference. However, there was a strong view that wherever the provisions were placed, they should be subject to a clause that would exempt existing ships from meeting the construction requirements (a “grandfather clause”). . As background, the Government member of the Bahamas noted that these Guidelines had been extensively discussed in a special Working Party at the tripartite meeting in Nantes in January  . . .. . The Committee having discussed Guidelines B.. and B.. informed the Steering Committee that it was of the view that the contents involved health and safety issues as well as certain design and construction considerations, and asked that the Steering Committee consider whether Committee No.  should discuss the matter further or whether the issues should be referred to Committee No. . . The Steering Committee, having considered the request regarding Guidelines B.. and B.. on noise and vibration, decided to refer those Guidelines to Committee No. . As a result, Committee No.  would no longer be discussing the Guidelines related to noise and vibration. Government members who wished to submit proposals concerning those provisions, were invited to address such proposals to Committee No. . Despite the decision of the Steering Committee, Technical Committee No.  did end up including Guideline B..—Exposure to noise and Guideline B ..—Exposure to vibration, but they were focused and worded, as they now are, on risk assessment and prevention rather than structural design. See: Draft Maritime Labour Convention, supra note .

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to provide air conditioning for all ships. The Chairperson recalled that the text only dealt with new ships, and that ships of less than  or  GT would be excluded from the Convention. A Government representative informed that the term “fresh” meant “recycled” as opposed to “confined” air. As a compromise, it was proposed to insert an exemption drawn from Recommendation No. , Paragraph , for ships regularly engaged in trade where temperate climatic conditions did not require air conditioning. The issue was left in square brackets. . It was proposed to delete the provision concerning mosquito screens, as they were superfluous in air-conditioned ships. A Government representative and the Seafarers’ group cautioned that malaria was a major cause of mortality according to the WHO, and that air conditioning did not stop mosquitoes. The Shipowners’ group proposed to add “as far as necessary” indicating that in air-conditioned ships openings were closed and accommodation was sealed. An alternative amendment was submitted, according to which ships should be fitted “with appropriate devices, such as protective screens at any opening to the exterior, e.g. a permanently open-side scuttle or door or intake of ventilation or air conditioning”. The rationale was that in ports side scuttles could be left open permanently. Considering that the examples enumerated in the proposal rather represented language for the recommendatory Part B, the Working Party agreed to delete them and include them into Part B at a later stage, as well as to incorporate wording satisfying the Shipowners’ concern.76

Paragraph  addresses the requirements for lighting for sleeping and mess rooms and comprises one sentence requiring light from both natural light and “adequate artificial light”. The former is a matter that would affect the location of accommodation on board. It has already been mentioned as an elaboration of paragraph (g), “proper lighting”. Additional guidance is set out in Guideline B..—Lighting. Paragraph  allows “special arrangements” to be permitted for passenger ships. Paragraph  on sleeping accommodation has  subparagraphs ((a)–(o)), several of which also have sub-clauses. It is the most specific and difficult to apply of all the provisions in the Standard. As noted, in connection with the word ‘any’ in Standard A., paragraph (a), the chapeau refers to “[w]hen sleeping accommodation on board ship is required . . . ” to clarify that the paragraph does not apply to ships that are only on day voyages. Paragraph  deals with interacting factors related to minimum floor area, the number and gender of seafarers allowed to sleep in each room, berth sizes, and the relationship between these factors in connection with flexibility or differing requirements for passenger ships, special purpose ships, and ships less than , GT. It will be recalled that under paragraph  it is possible to exempt ships less than  GT from some of these provisions. Guideline B..—Sleeping rooms covers lighting and other matters such as the need to prevent exposure to hazards 76

Final Report, supra note .

title : accommodation, recreational facilities, and food  under paragraph (h) that are especially relevant to sleeping accommodation. In addition, Guideline B..—Bedding, mess utensils and miscellaneous provisions addresses the expected quality of bedding. The structure of paragraph  is complex in that it sets some basic requirements and potential exemptions. These exemptions contain additional restrictions or minimum standards to be applied even with exemptions, in addition to the overall parameters provided under paragraph . The basic requirement under paragraph (a) is that, other than on passenger ships, seafarers are to have individual sleeping rooms, with possible exemptions for special purpose ships and ships less than , GT. All sleeping rooms are required to be “of adequate size and properly equipped so as to ensure reasonable comfort and facilitate tidiness” (paragraph (c)) with the minimum inside dimension of each berth to be “at least  centimetres by  centimetres” (paragraph (e)). Paragraph (f) sets the minimum floor area of what is ‘adequate’ for individual sleeping rooms, a figure which ranges from . square metres to  square metres depending on the ship’s tonnage. However, if the seafarer in question is performing the duties of a ships’ officer, the floor area ‘per person’ differs depending on whether he or she also has a private sitting room or day room. The ‘properly equipped’ room would also need to have the items described in paragraph  (n) and (o) and, except for passenger ships, a washbasin (paragraph (d)), unless the sleeping room has a private bathroom as proposed in Guideline B... In order to encourage the practice of individual sleeping rooms on ships, where an exemption is possible, a reduced floor area is allowed for these ships, with no established minimum floor area other than the more general standard in paragraph (c) and the equipment and furnishing requirements. As the foregoing discussion indicates, the question of determining what the minimum standard is requires a close reading of the provisions. If the additional flexibility factors relating to passenger ships, special purpose ships, and ships less than , GT are added in as well as ‘constraint’ factors, such as the particular duties of the seafarer (e.g., officer77 or engineer), then an even 77 There was also difficulty at the PTMC and the th ILC regarding the inclusion of a higher minimum for officers, in particular the definition of junior and senior officers. The record of the discussion at the PTMC was in the context of what was then a guideline, but is now Standard A., paragraph  (k) and (l), and the distinction between the level of officers is retained only for passenger and special purpose ships. Committee No.  Report, supra note :

Guideline B., Paragraph bis . The Government member of the Netherlands, Chairperson of the Working Party, summarized the discussion on floor areas as provided for in the paragraph. The social partners had suggested . m2 for junior officers and . m2 for senior officers. However, it was necessary to define the terms “junior” and “senior”. “Senior” could be defined as management or heads of departments. A consistent concept was

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closer reading is required. The balance of the provisions in paragraph  deal with situations where more than one seafarer is sharing a room78 or the seafarer has duties that entail specific entitlements. Although this topic and binding minimums were of interest to the Seafarers’ Group for obvious reasons, perhaps surprisingly, many governments were also interested in having these floor areas as fixed minimums.79

required which could be globally implemented but the Working Party had not found a final workable definition. It was important that a definition be found before the Maritime Session of the International Labour Conference. More intersessional work needed to be done. . The Chairperson, after consultation with the Officers of the Committee, proposed that the figure . m2 be inserted. The Committee agreed and noted that the definition of “junior officers” and the Shipowners’ proposed allocation of . m2 for “junior officers” was not resolved. There was agreement on different floor areas for junior and senior officers. The definition of the two categories needed further work. The distinction between officers was removed by the PTMC for both provisions (Draft Maritime Labour Convention, supra note ). See: Standard A., paragraph (dd) [now  (l)], but inserted again after a relatively lengthy debate at the th ILC (Committee of the Whole Report, supra note , paras –), which again illustrates the importance placed by governments, seafarers, and shipowners on what seem to be matters of detail and also the awareness of the potential interaction with terms and concepts in IMO conventions. 78 It should be noted that Guideline B.., paragraph , references the need to make sure that berth arrangements should take account of any partner that may accompany a seafarer. This is also tied to Guideline B.., paragraphs  and , in connection with Standard A., paragraph , on recreational facilities. ‘Partner’ refers to a person who is the spouse of the seafarer, irrespective of marriage or gender. At one point it had been proposed that berths be expandable (Final Report, supra note , para. ). 79 At the PTMC most of the sleeping room provisions now in paragraph  were in draft Guideline B... See: Recommended Draft, supra note . The report of the discussion concerning paragraph  (Committee No.  Report, supra note ) contains, inter alia: . The Government member of the Russian Federation observed that the reference in the last sentence in paragraph  to the competent authority being able to allow a reduced floor area for passenger ships, special purpose ships and ships of less than , gross tons was not consistent with paragraph (a), which stipulated a minimum floor area per person. . The Government member of the Republic of Korea considered that all paragraphs containing specific figures on accommodation should remain under Part B of the Code (the guidelines). . The Government member of the United Kingdom disagreed and considered that a very clear indication of the size of cabins was required, notably in cases of a change of flag, The paragraphs in question should be moved to Part A of the Code. He agreed with the Government member of the Russian Federation that there was an inconsistency between paragraphs  and : paragraph  encouraged single berths, but the requirements of paragraph (a) along with paragraph (c) may not help seafarers obtain single berths. He proposed the deletion of paragraph (a). . The Shipowners’ and Seafarers’ groups supported this. . Paragraph (a) was deleted and the Committee agreed that this paragraph be moved to the Standard.

title : accommodation, recreational facilities, and food  However, as noted above, there may be difficulties concerning sleeping accommodations for ships between  GT and , GT, as this is a very large range and includes ships that may be subject to mandatory certification under Title  and as well as those that are not.80 The MLC,  also uses a mix of formulas, in some cases setting out minimum square metres per room81 with one or more seafarers and in other cases minimum floor area per person in a room.82 The particular figures for floor area are largely based on text agreed to between the shipowners’ and seafarers’ representatives between the HLTWG meeting in  and the PTMC and the recommendations of a working party at the PTMC. The logic of the final figures is not easy to understand.83 They appear to follow a pattern in the earlier conventions whereby, in shared rooms, the floor area per person is not  percent of a single room but a larger amount, presumably to deal with the relative loss of privacy and unaccounted areas of floor space. One very technical and seemingly minor, but in fact important, practical question that has arisen since the adoption of the MLC,  relates to how to calculate the floor area. Specifically, the question is whether or not adjoining private or semi-private sanitary facilities can be counted as part of the sleeping room space. The MLC,  and predecessor conventions do not address this question. However, an analysis of the provisions suggests that, in general, the answer is no. Each of these conventions distinguishes between a sleeping room, a day room/sitting room, and sanitary accommodation. The MLC,  requires that each seafarer have an individual sleeping room (Standard A., paragraph (a)) (with some exceptions) and that it be of “. . . adequate size and properly equipped . . .” (paragraph (c)), with a minimum floor area (paragraph. (f)). Sanitary accommodation in Convention Nos  and  and the MLC,  (except for one point) is addressed separately from sleeping rooms. Private or personal sanitary facilities, although envisaged by the MLC,  80

For example, Accommodation of Crews Convention (Revised),  (No. ), Geneva,  June , Art. , para. , and the Accommodation of Crews (Supplementary Provisions) Convention,  (No. ), Geneva,  October , Art. , para. , both available at http://www.ilo .org/ilolex/english/convdisp.htm. 81 Standard A., para. (f). 82 Standard A., para. (j). 83 It should be noted that the modernized floor area provisions found in earlier ILO conventions, which in the case of Convention No.  excluded ships below  gross register tonnes (GRT) and Convention No.  excluded ships below , GRT, were based on a minimum floor area ‘per person’ in a sleeping room. The MLC,  uses the current ‘gross tonnage’ (GT) measurement in accordance with the IMO’s International Convention on Tonnage Measurement of Ships, ,  June ,  U.N.T.S. . However, these formulas for calculation of a ship’s size are based on differing approaches to the measurement of space.

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(Standard A., paragraph (c) and (d)), are not required (however, sleeping rooms are to have a washbasin except where it is located in the private bathroom (Standard A., paragraph. (d)). Under Convention No. , Article , paragraph , and Convention No. , Article , paragraph , space occupied by berths, lockers and specified furniture is included in the measurement of floor space, but irregularly shaped spaces “. . . that do not add effectively to the space available for free movement and cannot be used for installing furniture” are excluded. This provision is reproduced in the MLC, , Guideline B.., paragraph . Neither of these three conventions refer to inclusion of space taken up by the mandatory washbasin, perhaps as a matter of basin design. Taken together these provisions suggest, however, that the constituents had turned their minds to the question of what is to be included in floor area measurements. Convention No. , Article , paragraph , has more extensive provisions than the MLC,  regarding separate private bathrooms: it is clear that these are not considered to be part of the sleeping room (and sleeping room floor space). The recommendation in MLC, , Guideline B.., paragraph , that “sleeping rooms should be planned and equipped with a private bathroom, including a toilet” could imply that the sleeping room with a bathroom is seen as a single entity. However, this guidance, which is not based on a prior convention but is new text, must be read in light of the provisions in the Standard and the other guidelines. As noted above, the essential purpose of the minimum floor space requirement is free movement (Convention No. , Article , paragraph , quoted above, and Guideline B.., paragraph ). The floor space in a bathroom cannot “add effectively to the space available for free movement” in the adjoining sleeping room. Thus it seems clear that the existence of private or personal washroom facilities would, as a general rule, have no impact on the minimum sleeping room floor area under Standard A., paragraph (f). However, since, as noted above, private sanitary facilities are not required (see Standard A., paragraph ), it is possible that a flag State could conclude that providing these extra facilities or other similar spaces could constitute substantial equivalence (under Article VI, paragraphs  and ), particularly if the dimensions without the bathroom are close to the required minimum square metres. During the development of the MLC,  an interesting debate took place in connection with paragraph (b), which calls for separate sleeping rooms for men and for women. The provision reflected the need to modernize requirements and to encourage more women to become seafarers. This was a matter that arose during the PTMC and was commented on by the PTMC Drafting Group. The issue relates to the proposal to insert a phrase ‘where necessary’ after paragraph (b). However, the PTMC Drafting Group deleted the phrase since, “at the time of construction of a ship to meet these standards, the

title : accommodation, recreational facilities, and food  gender of the seafarers working on the ship would not be known and would not be fixed”.84 The issue rose again at the th ILC, perhaps because it was related to the more difficult structural question of whether additional sanitary facilities are required or because there may be differing views as to what the requirement means. One interpretation of the requirement is that, when seafarers share a sleeping room, men and women should not share the same room. However, it also could be understood as requiring specially segregated areas, even for individual rooms. The following discussion took place at the th ILC: . The Committee considered jointly amendments D. and D., which were both sponsored by the Government members of China, Japan and the Republic of Korea. Amendment D. sought to add the phrase “where both men and women are on board a ship” at the end of subparagraph (b). Amendment D. sought to add the same phrase at the end of subparagraph (a). . The Government member of the Republic of Korea, introducing both amendments, referred to paragraph  of Appendix A in Report I (A), . . . [However] [i]n many cases, shipowners knew who they would be employing on certain types of ships. Moreover, a great majority of ships were manned only by male seafarers. The deletion of the phrase would result in a situation in which all ships would have to have separate sleeping rooms and sanitary facilities for men and women, even if no women worked on board, which would necessarily have financial implications. The reintroduction of the words “where necessary” might be open to misinterpretation, however, so the amendments proposed clearer wording. . The Employer Vice-Chairperson asked whether accommodation rooms intended for women could be used by male seafarers when there were no women crew members. . The Government member of the Republic of Korea indicated that ships should have a sufficient number of cabins, which would be allocated appropriately in cases where there were women on board. . The Worker Vice-Chairperson criticized the assumption that crews were composed only of male seafarers. There were many women seafarers and their numbers were growing. Separate accommodation should be provided for men and women. The cabins should be the same, but should be allocated separately. If it were helpful, amendment D. could perhaps be subamended to add the words “where necessary”, so that paragraph (b) would read: “separate sleeping rooms shall be provided for men and women, where necessary”. However, he opposed amendment D., since separate sanitary facilities should clearly be provided for men and women. In conclusion, his preference was for the present text of the proposed instrument. . The Government member of Malaysia strongly opposed the reintroduction of the words “where necessary”. During the meeting of the Asia-Pacific group, he had highlighted the fact that the issues involved were highly sensitive, since they related to culture and belief. The speaker preferred the Office text. 84

Report I(A), supra note , Appendix A, para. .

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. The Government member of Croatia also supported the original text of the proposed Convention. Ships needed to be constructed in such a way that facilities could be separated whenever necessary. If this were not done, it would discourage employers from recruiting women and would therefore further prejudice the employment of women seafarers. . The Government members of Ghana, Pakistan, South Africa and United Kingdom, speaking on behalf of the Government members of the Committee Member States of the European Union, preferred the Office text. . The Government members of China and Japan withdrew their support for amendments D. and D.. . The Government member of the Republic of Korea withdrew amendments D. and D..85

Paragraph  addresses the issue of seafarers’ dining areas (mess rooms). The relevant Guidelines are B..—Mess rooms and Guideline B..—Bedding, mess utensils and miscellaneous provisions, for the provision of utensils for use in mess rooms. Paragraph  contains a potential exemption from the structural requirements regarding the location of mess rooms on ships less than , GT. It also contains an important area of flexibility with respect to differing social practices and the question of whether seafarers that are ships’ masters or other officers should eat with other seafarers.86 Although this flexibility could be exercised to address these differences, in practice, under Standard A., paragraph , paragraph (b) expressly provides for flexibility “as appropriate”. Guideline B.., paragraphs  and , emphasizes this point (emphasis added): . Mess room facilities may be either common or separate. The decision in this respect should be taken after consultation with seafarers’ and shipowners’ representatives and subject to the approval of the competent authority. Account should be taken of factors such as the size of the ship and the distinctive cultural, religious and social needs of the seafarers. 85 86

Committee of the Whole Report, supra note . Final Report, supra note : Guideline B..—Implementation of Standard A.: Mess rooms . The Shipowners’ group submitted an amendment according to which mess rooms might be common or separate, subject to the approval of the competent authority and after consultation of the social partners. It explained that such provision would give the flexibility to provide separate mess rooms for seafarers and officers, which was still frequent practice. The Seafarers’ group preferred to stay within the limits set out in Convention No. . The issue was left in square brackets. The Working Party agreed to remove the provision dealing with catering personnel, as the separate treatment of seafarers and catering staff was considered outdated. While the Seafarers’ group proposed to increase the floor area of mess rooms per seafarer to  m2, the Shipowners’ group preferred to stay with the wording of Convention No.  which referred to  m2. The issue was left in square brackets. Similarly, there was disagreement as to whether the permissive clause for exceptions should be deleted or retained.

title : accommodation, recreational facilities, and food  . Where separate mess room facilities are to be provided to seafarers, then separate mess rooms should be provided for: (a) master and officers; and (b) petty officers and other seafarers.

Paragraph , dealing with sanitary facilities, was partly discussed above in connection with the measurement of floor areas and sleeping accommodation. Although treated separately, paragraph , concerning “appropriately situated and furnished laundry facilities”, can also be regarded as part of this topic. The relevant guideline is B..—Sanitary accommodations, which also provides guidance on what would be considered as appropriate furnishings or laundry facilities. In addition, Guideline B..—Bedding, mess utensils and miscellaneous provisions addresses responsibility for the provision of sanitary supplies, that is, soap, towels, and toilet paper. Although there was extensive debate87 at the PTMC on these provisions, it was mainly because more general concerns surfaced on the part of governments about the agreement between seafarers and shipowners to shift text from the guidelines to binding standards. There were also a few specific concerns related to differing treatment of passenger ships and a discussion about appropriate wording to modernize terminology. Specifically the term ‘water closet’ was replaced by ‘toilet’88 and, after some debate at the th ILC, new wording was adopted to describe the nature and operation of the mechanisms used to flush toilets to accommodate the latest developments in sanitary facilities, such as the use of air rather than water for flushing.89 Paragraph  on hospital accommodation and the related Guideline B..— Hospital accommodation essentially repeats the obligation in Article  of the Health Protection and Medical Care (Seafarers) Convention,  (No. ). These provisions, which might appear innocuous, were the subject to extensive debate as to location in the MLC,  and content.90 Paragraph  is ‘structural’ in that it requires separate hospital accommodation on ships carrying  or more seafarers on a voyage longer than three days, although this can be relaxed for ships engaged only in coastal trade (undefined). Ultimately it was placed in Standard A. because of the need for a ‘grandparent clause’ to address the situation of existing ships. There is no similar clause with respect to existing ships in Title  or any other Title. The predecessor convention had a  GT limit as well as other exclusions (Article ).

87

Committee No.  Report, supra note , paras –. Ibid., para. . See also Report I(A), supra note , Appendix A, para. . 89 Committee of the Whole Report, supra note , paras –. 90 Committee No.  Report, supra note , paras –. This paragraph was eventually placed in Standard A. by Technical Committee No.  but later moved back to Standard A.. See Report I(A), supra note , Note  (Title , Regulation .), para. . 88

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The last issue to be considered in this detailed discussion of Standard A. relates to recreational facilities. The main paragraph is , however, paragraph , open space or spaces on deck for seafarers, could also be considered as an aspect of recreational facilities. The relevant Guideline is B..— Recreation facilities, mail and ship visit arrangements. It will be recalled this is a separate topic in the list of matters to be inspected under Appendices A-I and A-III. As noted above, under Standard A., paragraph , Regulation . and the Code applies to recreational facilities. In addition, although paragraph  is a generally worded, “appropriate seafarers’ recreational facilities, amenities and services . . . is to be provided . . . ”, it specifically repeats the provision in paragraph  and in Standard A., paragraph , regarding Regulation . and the associated Code. This must be seen therefore as a specific emphasis. In order to determine what might be considered ‘appropriate’, the Guideline must be considered. Guideline B.. covers a range of issues. While the subject of some debate,91 it was not especially controversial at the PTMC, largely because much of it had already been agreed to by the shipowners’ and seafarers’ representa91 The report of Technical Committee No. , supra note , reported on Guideline B..— Recreational facility (edited and emphasis added):

. The Seafarer Vice-Chairperson then presented the modifications agreed with the Shipowners’ group in April . . . . . The Chairperson stated discussion would be on the basis of the report just made by the Seafarers’ group. . It was agreed to remove the brackets in paragraphs (h) and (j). It was agreed to ask the Drafting Committee to find a suitable place in Title  for Guideline B.., paragraphs  to , and to remove the brackets in these texts. . As to paragraph (a), concerning the provision of a smoking room, the Government member of Egypt considered that smoking seafarers needed some specific place, or they would simply find alternative places to smoke if prohibited from doing so. This provision afforded the necessary protection. . The Chairperson pointed out that the Committee was considering a Guideline only, and it was agreed to remove the brackets in paragraph (a). . The Seafarer Vice-Chairperson reiterated his group’s concern that any costs involved in providing the facilities mentioned in paragraph (c), and indeed those mentioned in any of the subparagraphs under paragraph , should be borne by the shipowners. Though the chapeau stated that “Consideration should also be given to including the following facilities”, his group wished to ensure that this was done at no cost to seafarers. . The Shipowner Vice-Chairperson stated that some provisions included in this Guideline (e.g. ship-to-shore telephone communication mentioned in paragraph (j)) were not paid for by shipowners. The Seafarers’ group agreed that paragraph (j) was an exception. The Shipowner Vice-Chairperson then proposed the insertion of the words “at no cost to the seafarers” in the chapeau to paragraph , so that it read: . Consideration should also be given to including the following facilities, at no cost to the seafarers, where practicable: . The Chairperson sought agreement that the chapeau should now read as specified above; and proposed that paragraph (j) remain unchanged since it referred to charges for the use of these services “being reasonable in amount”.

title : accommodation, recreational facilities, and food  tives and it was not moved to a standard. The two topics that generated discussion at the PTMC were the wording in the chapeau of paragraph  “. . . at no cost to the seafarer, where practicable” as it applied to telephone and Internet usage92 (paragraph (j)) and smoking. It will be recalled that Guideline B.., paragraph (g), refers specifically to exposure to tobacco smoke as an ambient factor. In some countries smoking has been forbidden in work and many public spaces, but this is not the case for all countries. Similarly, the provision relating to bars on board for seafarers was difficult due to differing customs regarding alcohol. In addition, Guideline B.., paragraph  (p), expressly refers to concerns about drug and alcohol dependency, and paragraph  specifically requires that this matter be taken into account in deciding on providing an on-board bar for seafarers. Ship visits by seafarers’ partners has already been discussed in connection with accommodation. The main difficulties with these visits was how they could be facilitated with contemporary enhanced security arrangements and also, as the wording in Guideline B.., paragraph , indicates, concerns about insurance coverage if the partner travels on the ship. Other than these matters the main issue concerning Standard A. and Guideline B. was to update the existing conventions and recommendation to include references to modern entertainment equipment and technology such as DVD or CD players and Internet access. . The Government member of Japan expressed concern about procedure if the wording “at no cost to the seafarer” were inserted where proposed, since this was unbracketed text. . The Chairperson ruled this was a case of a consequential change. It was agreed to make the proposed change to the chapeau to paragraph ; the Chairperson confirmed that this was a decision by this Committee, and one that did not need to be referred to the Drafting Committee. Paragraphs  to  . The Chairperson recalled that the Drafting Committee had been asked to find an appropriate place for these provisions in Title  and to remove the brackets. However, the Drafting Committee had concluded that the current placement, though not ideal, was the most appropriate. The Drafting Committee therefore proposed it be left where it was, amending the title of Guideline .. to read “Recreational facilities, mail and ship visit arrangements”. . The Seafarers’ Vice-Chairperson agreed, so long as there was a reference that this did not apply only to new tonnage. . The Chairperson proposed that the report record that this provision did not apply only to new vessels. The proposed changes were agreed. 92 The ILC Drafting Committee made one adjustment. See: Committee of the Whole Report, supra note , p. : Guideline B..—Recreational facilities, mail and ship visit arrangements In paragraph (j) of Guideline B.., the word “any” before charges was added in order to avoid the possible implication that there should always be charges for the services concerned.



chapter nine Regulation .—Food and Catering

Regulation . and the Code are for the most part concerned with two issues, the provision of seafarer’s food and water on board ship and the need to have trained seafarers on board ship preparing seafarers’ food. Despite basic agreement on the content of the Regulation and Code (i.e., seafarers are entitled to food without charge on board ship and seafarers that are ships’ cooks or work in catering must be trained for their positions), the wording of the requirements in Regulation . were the subject of a surprisingly lengthy and detailed discussion and amendment at the th ILC. The purpose of Regulation . and the Code is clear, “to ensure that seafarers have access to good quality food and drinking water provided under regulated hygienic conditions”. Regulation . and the related Code provisions consolidate and modernize two much older ILO conventions and recommendation, the Food and Catering (Ships’ Crews) Convention,  (No. ), and the Certification of Ships’ Cooks Convention,  (No. ).93 Several requirements in other regulations interact with Regulation . and the Code, again illustrating the effort to provide a cohesive instrument. Although Regulation . is located in Title  the ‘grandparent clause’ for existing ships in Regulation ., paragraph , does not apply to Regulation . other than indirectly in relation to ship construction and equipment matters, for example, location and design of catering facilities/galleys. However, it will be recalled from the discussion under Standard A., paragraphs (a) and (h), that Regulation . and the Code, preventing the risk of exposure to hazardous levels of noise and vibration and other ambient factors and chemicals, also applies to catering facilities, the workplace for some seafarers. Further, as discussed in Chapter  on Regulation .—Manning levels, under Standard A., paragraph , those levels must take into account the requirements in Regulation . and Standard A. regarding food and catering. In addition, Standard A., paragraph , offers an example of a “higher minimum age shall be required in the circumstances set out in the Code” referred to in paragraph  of Regulation . on minimum age: ships’ cooks must not be under the age of . Finally, food and catering is a matter that is subject to flag State inspection and certification on all ships and potential port State control on the lists in Appendices A-I and A-III. Paragraph  of Standard A. expressly references Title  and requires that “frequent documented inspections be carried out on ships, by or under the authority of the master” in relation to several matters. Clearly this is an impor-

93

Report I(A), supra note , Note  (Regulation .), para. .

title : accommodation, recreational facilities, and food  tant matter like the ‘frequent inspections’ requirement under paragraph  in Standard A.. Shipowners’ operational policies described in the DMLC Part II must include this element, together with evidence of practice in the form of documents (documented) of these inspections to ensure ongoing compliance. Although less obvious, there is also a link between the requirement that ships’ cooks or other seafarers engaged in catering and the requirement that seafarers be “trained or certified . . . or otherwise qualified . . . ” in Regulation ., paragraph . Ships’ cooks are not addressed by STCW.94 The position on board ship would also be stated in the seafarer’s employment agreement under Regulation .. Regulation . and the provision in Standard A. are not lengthy, and Guideline B., which has two specific guidelines, is also brief. Nonetheless, they were subject to debate on the precise wording and one of the few provisions that was substantially amended at the th ILC and the PTMC, including movement of text from the Regulation to the Standard. The reason for this interest and difficulty, aside from the obvious point that food is an important health matter, is the challenges posed for inspection as there is relatively little international uniformity on cooks’ training. In addition, inspection for ‘good quality’ food is potentially subjective for ships with multiple nationalities on board. The concern for governments related to the wording to describe the nature of the food to be provided and the details of training expectations. At the th ILC the proposed text for Regulation ., paragraph , read as follows: . Each Member shall ensure that ships that fly its flag have a supply of sufficient food of good quality, drinking water and catering arrangements that secure the health and well-being of seafarers living on board and take account of differing cultural, religious and gastronomic backgrounds. (modified CA)

In the Office Report, the text of Regulation . and the Code was not considered controversial. The comment notes only that the text consolidates the two conventions and that “. . . the WHO suggested that Standard A. or Guideline B. should specifically refer to the WHO Guidelines for Drinkingwater Quality as the accepted point of reference for issues of drinking water safety”.95

94

As noted in Chapter  on Title , initially it was expected that responsibility for this training would transfer, together with Convention No. , to the IMO as part of the STCW Convention. However, this transfer was not taken on as an STCW matter by the IMO. 95 Report I(A), supra note , Note  (Regulation .), para. .

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The wording of paragraph  was not debated at the PTMC and contained the word ‘gastronomic’ in the text considered at the HLTWG in .96 At the th ILC the term ‘gastronomic’ was seen as problematic for governments to implement and inspect as its meaning was seen as unclear and likely to be subjective. These concerns and the intention behind phrases such as ‘adequately covers’, which were adopted instead, were explained as follows during the Conference in : Regulation .—Food and catering . The Government member of Greece introduced amendment D., which was sponsored by the Government members of Austria, Belgium, Bulgaria, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovenia, Spain, Sweden and United Kingdom and sought, in paragraph , to replace the words “cultural, religious and gastronomic” by the words “cultural and religious”. He asked how such a requirement could be regulated in light of the many nationalities of seafarers on board and their various gastronomic backgrounds. Such a requirement would create more problems than it solved. Such a provision might be more acceptable if it were in the form of a guideline. . The Employer and Worker Vice-Chairpersons did not support the amendment. . The Government members of France, Germany and the United Kingdom indicated that such a requirement would be impossible to enforce. . The Government member of Australia saw no reason for the amendment as, in his view, the word “cultural” also covered “gastronomic”. . The Government members of Canada and Germany indicated that they could accept the reference to gastronomic backgrounds in a guideline. . Following consultation with the Employer Vice-Chairperson, the Worker Vice-Chairperson suggested a subamendment that read: “Each Member shall ensure that ships that fly its flag carry on board and serve food and drinking water of appropriate quality, nutritional value and quantity that adequately cover the requirements of the ship and take into account the various cultural and religious backgrounds.” . The Government members of Denmark, Germany and Greece supported the subamendment on the understanding that the phrase “adequately cover the requirements of the vessel” referred to the needs of seafarers. . The Government member of Japan believed that there was a difference in meaning between “have a supply” in the Office text and “carry on board” in the subamendment. In Japan ships did not always carry supplies on coastal voyages as they very frequently put in to ports and procured food ashore. It was therefore not necessary for them to carry provisions on board.

96

A September  meeting of the officers of the HLTWG also considered the term ‘palatable’, but it was replaced with ‘gastronomic’.

title : accommodation, recreational facilities, and food  . The representative of the Secretary-General pointed out that the phrase “adequately covers the requirements of the ship” meant that supplies only needed to be carried where they were needed, which would take into account the concerns of the Government member of Japan. . Amendment D. was adopted as subamended. . Paragraph  was adopted as amended.97

Paragraph  of Regulation ., requiring that seafarers be provided food free of charge, was also the subject to debate at the th ILC98 with respect to wording to capture the issue that had arisen under Regulation ., that is, the concept of working and living on board and covering food costs for seafarers that do not live on board ship. The final wording in the current text does not refer to either, only to ‘seafarers on board’. Interestingly, the rationale advanced and accepted on this point was not considered with respect to the same point under Regulation . and Standard A.. Paragraph  on training, and the related paragraphs – in Standard A., was not the subject of amendment or debate at the th ILC,99 although they were extensively debated at the PTMC. The main concern at the PTMC related 97 98

Committee of the Whole Report, supra note . Ibid.,

. The Worker Vice-Chairperson introduced amendment D., which was sponsored by the Workers’ group and sought, in paragraph  of Regulation ., to insert the words “working or” after the word “seafarers”. He indicated that the purpose of the amendment was to align the text with current practice, according to which those who worked on board for several hours, but did not live on the ship, would be provided with food free of charge. He cited several examples of seafarers, including engineers and pilots, who did not live on board, but might work long hours on a ship and who had to eat on board as there was no alternative. . The Employer Vice-Chairperson opposed the amendment. . The Government members of Denmark, Netherlands and Norway believed that the arrangements in question should be covered by collective agreements and that governments should not be placed under a requirement to interfere in this process. . The representative of the Secretary-General drew attention to the terms of Article IV, paragraph , the second sentence of which provided that “Unless specified otherwise in the Convention, such implementation may be achieved through national laws or regulations, through applicable collective bargaining agreements or through other measures or in practice.” As the requirements of the Convention could be given effect, among other methods, through collective agreements, she believed that this should address the concerns expressed by the Government members of Denmark, Netherlands and Norway. . . . . The Government member of Australia proposed a subamendment to delete the word “living”. He recalled that the definition of seafarers in Article II, paragraph (f), namely “seafarer means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies”, already covered the terms “working or living”, which were therefore redundant in the present provision. . . . . Amendment D. was adopted as subamended. . Paragraph  was adopted as amended. 99

Ibid., paras –.

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chapter nine

to the need to address the lack of international standard training or certification for ships’ cooks (other than as cooks) and that they are not necessarily certified.100 The current provisions seem to provide sufficient flexibility to cover all national situations. A flag State would not have to train ships’ cooks or catering personnel but would need to ensure that they meet the flag State’s national requirements implementing the MLC, . Recognition of training undertaken in other countries that have ratified the MLC,  or in accordance with the predecessor Convention No.  is also noted in Guideline B., paragraph . The two other paragraphs in Standard A. that generated significant debate were also debated at the PTMC, one of which involved text that had been developed and endorsed by the PTMC after much discussion. These two paragraphs are paragraphs  and . They provide for some flexibility regarding the need for a fully trained ships’ cook in some situations and in situations of “exceptional necessity” where the flag State may issue a “dispensation” for up to one month. Much of the debate centered on the parameters for that flexibility, that is, the “prescribed manning of less than ten”. The provision now found in paragraph  is based in a proposed text agreed to between the Shipowners’ and Seafarers’ Groups that was provided to, and then modified by, the PTMC.101 At the th ILC, where the text was discussed again at length, it was proposed that it be amended to clarify its meaning. The following extract of this decision is helpful to understanding what was intended by the current wording. It also illustrates the potential for future difficulty in connection with the wording regarding the criterion involved and ‘prescribed manning’. . The Government member of Japan, speaking also on behalf of the Government members of Australia, China, Republic of Korea, Pakistan, Philippines and Singapore, introduced an amendment (D.) which sought after the words “less than ten” to insert the word “or” and to delete the words “the size of the crew or” in paragraph . The wording, which was an agreement between the Employers’ and the Workers’ groups at the PTMC, was confusing and the amendment would make it linguistically correct. He believed that the reference to the “size of the crew” was redundant, since it was practically the same with the expression “manning of less than ten”. Leaving the text unclear would give rise to interpretation problems and might compromise the ratification process. . The Worker Vice-Chairperson did not support the amendment. As it currently stood, the Office text provided for a single criterion, that is, ships with less than ten crew members. By introducing the word “or”, the proposed amendment would add a second criterion, that is, the trading pattern, which would presumably permit a ship carrying  or more seafarers, for example, not to have a qualified cook on board. 100 101

Committee No.  Report, supra note , paras –. Ibid., paras –.

title : accommodation, recreational facilities, and food  . The Government member of the United Kingdom thought the expression “prescribed manning” in the Office text meant the minimum crew complement required, although nothing prevented a shipowner from having more seafarers on board. He requested clarification from the Workers’ group as to whether ten was considered to be the maximum number of persons working on board. . The Government member of Singapore supported the amendment and explained that if the word “or” in between “size of the crew” and “the trading pattern” was replaced by the word “and”, this would make the text less problematic. . The Government member of Norway supported the Office text. It was not for governments to intervene in matters of seafarers’ welfare which should be settled between the social partners. . The Employer Vice-Chairperson affirmed that the Office text was part of a deal reached at the PTMC and therefore his group did not support the amendment.

Paragraph , as noted above, provides for additional national flexibility. It was introduced at the th ILC.102 The exception provided for in this paragraph was the subject of debate. . The Employer Vice-Chairperson introduced an amendment (D.) which sought to insert the following new paragraph after paragraph : In circumstances of exceptional necessity, the competent authority may issue a dispensation permitting a non-fully qualified cook to serve in a specified ship for a specified limited period, until the next convenient port of call or for a period not exceeding one month, provided that the person to whom the dispensation is issued is able to fill adequately the vacant post in a competent manner, to the satisfaction of the competent authority. . The proposal permitted a special dispensation here limited to one month, similar to that provided for officers under the STCW Convention, in the event that a certified cook fell ill or suffered an injury. Experience had shown that it took some time to replace a person on board, since the personnel department had to find a replacement and then prepare the travel authorizations and address other administrative issues. . The Worker Vice-Chairperson did not support the amendment. . The Government member of Switzerland supported the amendment and referred to the Certification of Ships’ Cooks Convention,  (No. ) which, in Article , paragraph , made provision for possible exemptions. He believed that the onemonth period should be extended. . The Government member of Pakistan concurred that the one-month period was too short and suggested that the dispensation be extended to  days. . . .. . The Worker Vice-Chairperson agreed that the amendment concerned an exceptional, yet real, situation when no qualified person would be available on board. The minimum requirements set out in Standard A., paragraph , should also be applicable to a replacement. He noted that the amendment would require notification of and dispensation by the competent authority. The Workers’ group would support the amendment if it were subamended to read as follows:

102

Committee of the Whole Report, supra note .

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In circumstances of exceptional necessity, the competent authority may issue a dispensation permitting a non-fully qualified cook to serve in a specified ship for a specified limited period, until the next convenient port of call or for a period not exceeding one month, provided that the person to whom the dispensation is issued is trained or instructed in areas including food and personal hygiene and handling and storage of food on board ship. . The Employer Vice-Chairperson accepted the subamendment. . The new paragraph to follow paragraph [sic] was adopted, as subamended.

This is the only use of the term ‘dispensation’ in the MLC, . The concept and wording in paragraph , Standard A., echoes that related to medical certificates under Standard A., paragraph , for “urgent cases”. The remainder of the current text was not debated at the th ILC. Conclusion This chapter has considered the two regulations and the related Code Part A and B provisions in Title . It explored the linkages between these provisions and other provisions, particularly the Title  provisions on compliance and enforcement and Title . Title , especially Regulation . and the Code, which contains both the ‘existing ship’ flexibility and requirements that affect ship construction and equipment are among the most detailed MLC,  provisions. They are also the areas where there is likely to be interest in amendments in the future to address both changes in ship design and difficulties in application of the binding requirements for some categories of ships. The examination in this chapter has also shown the development and modernization of the existing maritime labour conventions that are consolidated by the MLC, .

chapter ten TITLE 4: HEALTH PROTECTION, MEDICAL CARE, WELFARE AND SOCIAL SECURITY PROTECTION

General Introductory Note1 Chapters  to  examine each of the regulations and associated Code provisions in Titles  to  of the MLC,  highlighting points of particular interest or difficulty. The annotated version of the Convention (see Appendix ) provides additional information regarding the ILO conventions and recommendations that are consolidated in the MLC, . Additional interpretive resources2 for the MLC,  include the Article  Report,3 which provides supplementary information on the expectations of the ILO’s international supervisory system4 regarding ratifying States’ obligations to implement the Convention. The Guidelines for Flag State Inspections under the Maritime Labour Convention, 5 (hereinafter Guidelines for Flag State Inspections) and the Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention, 6 address the more practical implementation 1

This introductory note is included in Chapters  to  as an aide-memoire to summarize key information about the structure and approach adopted in the MLC, . Chapters  and  explore these issues in detail. 2 See Chapter  at p. . 3 The Article  report form for the MLC,  can be found in Appendix IV of ILO Doc. No. GB.// (Rev) (ILO, Governing Body, Reports of the Committee on Legal Issues and International Labour Standards: Second report: International labour standards and human rights, Geneva, March ), pp. –, available at http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm. 4 See Chapter . 5 See also Chapter , pp. –, on the role of these guidelines in implementing the MLC, . International Labour Office, Guidelines for Flag State Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www.ilo.org/wcmsp/groups/public/ed_norm/-normes/documents/publication/wcms_.pdf. 6 International Labour Office, Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www .ilo.org/wcmsp/groups/public/-ed_norm/-normes/documents/publication/wcms_.pdf. These guidelines are called for in the MLC,  (Guideline B.., para. ), and both guidelines are the result of resolutions adopted by the th ILC in  when it adopted the Convention (See: Reports of the Selection Committee, Second Report, ILC, th (Maritime Session), Geneva, , ILO Doc. No. PR– (Rev.), pp. –/–/ and –/–/). Initially it was thought that the port State control guidance would be adopted as a priority, with adoption of flag State



chapter ten

and matters, such as ‘how to check’ for compliance, at the shipboard level, with national legislation or other measures implementing the MLC, . This chapter examines the regulations and the provisions in Part A (Standards) and Part B (Guidelines) of the Code of the MLC,  in Title . As discussed in Chapter  of this book these provisions are organized in a topical and vertically integrated manner with each Title comprising a number of regulations and the associated Parts A and B of the Code setting out more detailed requirements to implement the relevant regulations.7 Each regulation has a purpose clause indicating its objective in ‘plain language’.8 In turn, these regulations and the Code provisions set out more detailed specific implementation of the social and employment rights (and related obligations) generally set out in Article IV and the implementation and enforcement obligations under Article V.9 The provisions in the Titles are, as a matter of international law, directed to States, primarily as flag States, with an international obligation to regulate conditions on board ships that fly their flag. As applicable, regulations are also directed to coastal or port State or States that have a labour-supplying interest and require that the State take implementing action at the national level. It will be recalled that under Article IV, paragraph , unless specified otherwise States, can use various approaches to implement these obligations, including adopting legislation or through collective bargaining agreements or other measures.10 The provisions in Titles  to  and, in part, Title  are ‘regulatory’ in that they set specific minimum requirements for working and living condition for seafarers, primarily on board ships.11 In this way the Convention operates at two

guidance following. However, it became clear that the flag State guidance needed to be developed first as it provided the basis for port State control. 7 Regulations, like articles, are not subject to amendment using the more rapid tacit acceptance procedure in Article XV, nor are they subject to substantial equivalence under Article VI. Thus any analysis of the obligations, particularly in connection with exercising flexibility, must carefully consider the obligations in the regulations relative to the mandatory obligations in Parts A and B of the Code that must be given ‘due consideration’. Chapters  and  discuss the structure of the Convention in detail, as well its effect on future approaches to amendments (Chapter ). 8 Although the approach to interpretation of the application of the concept of substantial equivalence is not yet settled, presumably this would be one source to consider when evaluating whether a measure is “conducive”, as required under Article VI, paragraph (a), of the “general object and purpose” of the provision or provisions. See Chapter , footnote . 9 As discussed in Chapter , the articles mainly comprise general statements of principles and rights and obligations directed specifically to ratifying States. 10 See Chapter , pp. –. 11 It must also be recalled that Article II of the Convention regarding the definitions of seafarer and ship represents a fundamental change in the scope of the Convention, which in turn affects national implementation. A much wider group of workers, indeed all persons working at sea with very few exclusions for categories of ships, are now covered as ‘seafarers’ under the MLC,  provisions. Further, when a country has made a determination under Article II, paragraph , in

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

levels: the State obligation to implement Convention obligations and regulate shipowners and other actors, and through the enforcement and compliance system in Title  where they pierce international law’s ‘corporate veil’ of the State to affect the actors that essentially ‘perform’ the majority of the Convention’s obligations. Failure at the shipboard level can, of course, also be evidence of a failure on the part of a State to implement or effectively implement its international obligations to regulate the issue in question. Thus the two levels are intertwined and mutually re-enforcing. It must also be emphasized that there is significant interaction among the provisions of these Titles, particularly in connection with Regulation . on seafarers’ employment agreements, which, especially from a ship inspection perspective, contain aspects that cuts across most Titles. The two Appendices in Title  list  areas that are drawn from all Titles. These areas are subject to certification for some ships and inspections under port State control. Under Title , flag States will need to address these areas in developing the document12 regarding their national requirements while shipowners must address them in the document13 that they are to prepare. Both documents must14 be carried on board ships  GT and over engaged in international voyages or voyaging from or between ports in another country (other than the flag State). Linkages to these provisions will be noted when they arise in each of the regulations. Overview of Title : Regulations . to . and the Code, Parts A and B Title  comprises regulations and the related Code Part A, Standards, and Part B, Guidelines, on five topics: – – – – –

Regulation .—Medical care on board ship and ashore Regulation .—Shipowners’ liability Regulation .—Health and safety protection and accident prevention Regulation .—Access to shore-based welfare facilities Regulation .—Social security

One of the most difficult issues for a globalized work force, the question of responsibility for and provision of social security under Regulation . and connection with ships below  GT that do not go on international voyages, the national law or other measures would still need to comply with the regulations. 12 Appendix A-II—Declaration of Maritime Labour Compliance, Part I, see p.  of this book. 13 Appendix A-II—Declaration of Maritime Labour Compliance, Part II, see p.  of this book. 14 Regulation .., para. . Shipowners may also request their ships be certified even if not within these categories. See: Regulation .., para. . It should be noted that the system established under Title  requires that all ships must be inspected by the flag State.

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the Code was, and remains, one of the most difficult and ‘delicate’ texts in the Convention.15 Title  contains regulations that involve a mix of flag State, and labour supply and coastal or port State responsibilities in the same regulation and Code. This can create some difficulty in ascertaining the precise obligations. From the perspective of flag State inspection, it is especially helpful to consider the Guidelines on Flag State Inspections as well the Article  Report.16 Each of the regulations will be examined in the order in which they are arranged in the Title. Each regulation has a purpose clause to provide a ‘plain language’ indication of its objective. As with the other Titles, interpretation of the application of the concept of substantial equivalence is not yet settled. Presumably this would be one source to consider when evaluating whether a measure is “conducive”, as required under Article VI, paragraph (a) of the “general object and purpose” of the provision or provisions. Several provisions in the regulations and Code in Title  interact with Title , particularly Regulation ., which requires that each seafarer has a seafarers’ employment agreement (SEA) containing specific information, including matters in Title , and with Regulation ., the entitlement to shore leave. It will also be recalled, as discussed in Chapter , that there is interaction between the provisions in Title , on accommodation, recreational facilities, and food and catering and Title , Regulations . and .. In connection with the ship inspection and certification system established under Title , two regulations under Title  are matters that must be inspected on all ships to which the Convention applies. They are also matters that are on the list of  areas that must be certified by flag States, largely for purposes of port State control, for ships subject to mandatory certification,17 that is, ships  GT and above that engage in international voyages or voyages from or between ports in another country. It should also be noted that one of the regulations in Title  contains provisions that overlap with an important matter also addressed by the IMO’s STCW Convention, at least for seafarers carrying out duties that are covered by the requirements of the STCW. Since there is the potential for conflict between pro15

Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. RP(Rev), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/ptmc/pdf/rp.pdf: . The Government member of Germany stressed the magnitude of the work before the Committee in attempting to regulate social protection at a global level, since harmonization had not even been possible in this area for the European Union. He underlined the importance of reaching a common understanding in this area.

16 17

Guidelines for Flag State Inspections, supra note , and Article  Report, supra note . See: Regulation .., paras  and .

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visions adopted in two different fora, as noted below, the text of the MLC,  was expressly drafted to take account of the STCW provisions and to avoid conflict between these international instruments. One difficult aspect of the development of the text in Title , as was discussed in Chapter  in connection with repatriation under Regulation .,18 was the potential interaction with a parallel discussion in the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers that had been meeting since .19 The Working Group, chaired by the President of the PTMC and the th ILC, was to address, inter alia, the issue of liability for some claims related to the MLC, , Regulation .. These issues remained largely unresolved until a meeting in  agreed to principles for a future mandatory instrument, which may take the form of amendments to the MLC, .20 Two 18

See text at Chapter , pp. –. The Joint IMO/ILO Ad Hoc Expert Working Group was established in  to consider questions of liability and compensation in connection with crew claims, to ensure, through the operation of appropriate international instruments, the rights of crew members/seafarers to adequate compensation for loss of life, personal injury, and abandonment, and to formulate suitable recommendations to the IMO Legal Committee and the Governing Body of the ILO, as appropriate. See: ILO, “Shipping: Social Protection,” available at http://www.ilo.org/public/english/ dialogue/sector/sectors/mariti/shipping/socprot.htm. 20 The Ninth Session of the Joint IMO/ILO Ad Hoc Working Group on Liability and Compensation Regarding Claims for Death, Personal Injury and Abandonment of Seafarers was held on – March . See: Provision of Financial Security, Progress report on the work of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers, Note by the IMO Secretariat, Legal Committee, th Session,  July , IMO Doc. LEG //. That report on the ninth session included the following information concerning the proposal for the text on treatment of contractual claims and financial security: 19

. A representative of the Office introduced a text which incorporated the earlier discussions of the meeting. She stated that the draft paper related to the substance of an agreed proposal for an amendment to the MLC, , which would follow Regulation . and the Standard and Guidelines under it. She also explained the changes made in the document and highlighted the issues remaining to be discussed by the meeting, most of which were between square brackets. . The proposed text had been developed as a proposal for development of amendments to the Code of the MLC, , using the Article XV procedure. It understood that there was agreement that this area of the MLC, , would now be a matter for inspection by port States (PSC) as well as flag States. This could be achieved fairly simply under the MLC, . The proposal for the amendment would also include a proposal for an amendment to the list of inspection areas in Appendices A-I and A-III of the MLC, , with consequential amendments to the Appendix A-II model documents. The proposed amendments would refer to the documentary evidence of financial security required under the new Standard. This would be a matter dealt with in the ship certification process and would also apply to all ships covered by the MLC, ; it would, in all cases, be the subject of flag State inspection. All ships irrespective of size or voyage would be required to have documentary evidence of financial security. Accordingly, the corresponding paragraphs



chapter ten

aspects of this discussion influenced the MLC,  and resulted in the inclusion in Regulation . at paragraph  and in Standard A., paragraph (b), of the new requirements that a flag State must require that ships/shipowners provide financial security to assure the relevant responsibility. Neither provision in the MLC,  addresses the particular form for the security, which could be a State-run system or private insurance, or take other some other form of security, such as a bond.21 The current form and content of Title , including its name, is the result of a proposal by the Shipowners’ and Seafarers’ Groups in response to their concern that this issue could prove to be an insurmountable barrier to development of the new convention. As early in the process as the second meeting of the SubGroup of the HLTWG in February , they made the following joint proposal in response to the initial draft text prepared by the International Labour Office: Title . Social security Joint submission by the Shipowners’ and Seafarers’ groups The Shipowners’ and Seafarers’ groups note that the Office draft of Title  is based largely on the provisions of ILO Convention No. . This Convention contains obligations which are not currently accepted by any significant maritime nation. Therefore, if the current draft is maintained, the new Convention is likely to attract few ratifications. In order to avoid such a situation arising, the social partners propose that an alternative approach is adopted to Title . Joint proposal . Title  should be renamed as “Health Protection, Welfare, Medical Care and Social Security Protection”. . The relevant provisions dealing with health protection, welfare and medical care should be transferred from Title  to Title . Title  would then only cover all matters concerning crew accommodation and catering arrangements. and appendix had been modified to facilitate harmonization and integration with the MLC, , certification processes, as recommended. She also recalled the distinction between putting the context and delimiting it. Paragraphs  and  prepared the ground for the financial security system in Standard A..(b). The first paragraph defined contractual claims related to the framework of Title . on occupational injury, death or disabilities. For the settlement of contractual claim, Members should put mechanisms in place. With some modification to the wording, the draft text setting out the basic principles was accepted by the ninth session. It will be considered by the Special Tripartite Committee under Article XIII of the MLC, , to be established by the ILO Governing Body once the Convention enters into force. 21 As noted in Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/ public/english/standards/relm/ilc/ilc/rep-i-a.pdf, Note (Regulation .), para. , and Note  (Regulation .), paras –.

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. However, Title  would deal with shipowners’ liability for sick and injured seafarers, payment of sick pay, social security protection, the provision of medical care and attention on board and ashore and other related issues. . The detailed provisions dealing with specific state social security services, e.g. old-age benefits, etc., should be removed from Title . . The relevant provisions currently in Title  which deal with “General principles” concerning state social security protection (which are taken from Convention No. ) are, however, to be retained in Title . . Consideration could then be given to whether there were any significant provisions affecting health, welfare, medical care and social security protection which have been omitted from the text and which ought to be provided for in some way. . At the end of this process, Title  would include provisions dealing with, among other things: (i) shipowners’ liability for sick and injured seafarers; (ii) medical care on board and ashore; (iii) accident prevention; (iv) welfare on board and ashore; (v) general principles concerning social security protection. . Central to addressing these aspects will be to agree to a suitable balance between the various sections of the Convention. . The social partners appreciate that this proposal might create difficulties with regard to the status of Convention No.  once the new Convention is adopted. Nevertheless, the proposal would allow for the identification of one specific “family” of provisions within one title, and the advantages of this approach are considered to outweigh the disadvantages.22

As this extract indicates, this approach was adopted in the final text. On board welfare (recreational facilities) was moved to Title . Otherwise the basic concept for Title  regarding both content and depth of coverage, particularly in connection with social security protection, was based on this joint proposal. Nevertheless by the PTMC in September  several issues were still seen as presenting significant difficulties. In his opening remarks,23 the Shipowner Vice-Chairperson identified three main concerns regarding Title : – Too broad a scope of application across all titles because of the broad definition of ‘seafarer’; – The need for ratifiable and enforceable social security provisions given that the Social Security (Seafarers) Convention (Revised),  (No. ) had only been ratified by two member States; and – Opposition to provisions concerning any requirement for full occupational health and safety programmes on board ships. 22

Final Report, Tripartite Subgroup of the HTLWG (Second Meeting), Geneva, – February , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/ sector/techmeet/stwgmls/stwgmls-.pdf, Annex . See also Chapter  on structure. 23 Committee No.  Report, supra note , para. .

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The Seafarer Vice-Chairperson called on the Committee to ensure that seafarers received adequate social security protection despite the complexities created by the globalized nature of the shipping industry.24 In particular, flag States must ensure that seafarers have access to their social security systems as necessary and work with employers and resident States to address the long-term social security needs of seafarers. In contrast to the Shipowners’, the Seafarers’ Group did not accept a restricted definition of ‘seafarer’ with regard to Title . The extent to which the approach to social security and other issues in Title , particularly in Regulation . and the Code, was successful in meeting these concerns is evidenced by the fact that, although there was great deal of discussion on a few points, there were no major substantive amendments to the text of Title  proposed to the th ILC.25 There was, however, one substantive question regarding Title  that was raised initially in a proposed amendment that was considered, but not accepted, at the Intersessional Meeting in  following the PTMC and, again, at the th ILC by the Seafarers. This proposal was made in connection with Article X26 and the inclusion of the Seafarers’ Pensions Convention,  (No. ) in the list of conventions revised by the MLC, . The Seafarers’ proposal was 24

Ibid., para. . Report of the Committee of the Whole, ILC, th (Maritime) Session, Geneva, , PR (Part I), available at http://www.ilo.org/public/english/standards/relm/ilc/ilc/pr--i.pdf. The discussion of Title  is reported at paragraphs –. 26 See: Report of the Discussion, Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/ public/english/dialogue/sector/techmeet/ptmc/ptmc-.pdf, paras –. As stated in Compendium of Proposed Amendments to the Draft Consolidated Maritime Labour Convention, , Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/dialogue/ sector/techmeet/ptmc/ptmc-.pdf: 25

Amendment : C./D. Standard A. (New) Submitted by the Seafarers Proposal: Add a new Standard A. and Guideline B. to read as follows: “Standard A.—Pensions . Each Member of the ILO for which this Convention is in force shall, in accordance with national laws or regulations, establish or secure the establishment of a scheme for the payment of pensions to seafarers on retirement from sea service. Guideline B.—Pensions . The pensions provided by the scheme: (a) should be payable to seafarers having completed a prescribed period of sea service on attaining the age of  or  years as may be prescribed by the scheme; and

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either to remove Convention No.  from the list in Article X or to add a new Regulation, ., and Code. The difficulty was that the provisions in Regulation . and Code were considered to be too difficult to reopen at such a late stage. The concern of the seafarers was that the current text did not appear to address the specific obligations under Convention No. . The addition of a new regulation was not accepted by the th ILC, and the decision was taken instead to leave Convention No. , ratified by  countries, open for ratification.27 (b) should, together with any other social security pension payable simultaneously to the pensioner, be at a rate not less than the total obtained by computing for each year of his sea service . per cent of the remuneration on the basis of which contributions were paid in respect of him/her for that year if the scheme provides pensions on attaining the age of  years or  per cent of such remuneration if the scheme provides pensions at the age of  years.” Comment: There is no Regulation ., which would be required in order to support the Standard and Guideline. It may be that this proposal is intended to be included under Regulation . as another Standard, in which case the provisions would need to be renumbered and the text adjusted on one point to account for gender. The text for the proposal is drawn from the Seafarers’ Pension Convention,  (No. ), in force in . It may be important to consider the relationship between this proposal, which is a contribution-based system, and the provisions in Standard A.. See also discussion in Chapter  on Article X. Committee of the Whole Report, supra note :

27

New Regulation . . The Worker Vice-Chairperson wished to refer back to amendment D. previously submitted by his group, which sought to add in Article X square brackets around the words “Seafarers’ Pensions Convention,  (No. )”. As previously explained, this was because the new Convention did not address in any manner the issue of pensions of seafarers nor did it revise the Seafarers’ Pensions Convention,  (No. ). The Workers’ group was prepared to withdraw amendments D., D. and D., which all related to the question of seafarers’ entitlement to pension, on condition that a subamendment to D. could be adopted whereby the Seafarers’ Pensions Convention,  (No. ) would be deleted from the list of revised Conventions in Article X. The Seafarers’ Pensions Convention,  (No. ), which had been ratified by  Members, should continue to stand alone, be open to ratification and applicable to the Members bound by it. . The representative of the Secretary-General clarified that the proposal of the Workers’ group was to condition the withdrawal of amendments D., D. and D. on the acceptance by the Committee of amendment D. as subamended. She recalled that the Workers’ group had initially introduced amendment D. to add square brackets around the words “Seafarers’ Pensions Convention,  (No. )”. The proposed subamendment would delete the reference to the Seafarers’ Pensions Convention,  (No. ) altogether. Should the Committee accept amendment D. as subamended, then the withdrawal of the three amendments would take effect. . The Employer Vice-Chairperson accepted the Workers’ proposal. The proposed maritime labour Convention did not contain any provisions concerning pensions due to the commitment not to reopen discussions on the compromise reached on Standard A. and the branches of social security protection to be provided



chapter ten Regulation .—Medical Care On Board Ship and Ashore

The purpose clause for Regulation . states that it is “[t]o protect the health of seafarers and ensure their prompt access to medical care on board ship and ashore”. Reference to on board and ashore medical care indicates the mix of responsibilities found in this regulation and Code. Unlike the regulations in Titles – where responsibilities were confined to flag States or even labour supplying responsibilities, this regulation is directed to both flag and port States and, in some cases, coastal States. As in other regulations, the flag State is obliged to ensure that standards for medical care, including essential dental care, are met on board its ships and that shipowners respect the seafarer’s right to visit a medical doctor or dentist, without delay, in a port of call. However, even if the flag State requires this access and shipowners give permission and try to facilitate access, no shipowner or flag State can require that a foreign port allow a seafarer access to health care services on shore. Similarly, while shipowners may have communication devices on board to allow ships to call ashore for medical advice, it is the coastal State that will need to provide the reply to these calls. For this reason the list of matters that must be inspected for purposes of certification and port State control, under Appendices A-I and A-III, refers only to “on board medical care”. The obligations in Regulation . (along with Regulation .) also interact28 with Regulation . and the Code on social security as a complementary element in the ‘net’ of provisions aimed at achieving comprehensive social protection for seafarer under the MLC, . Perhaps surprisingly, given how difficult the wording is in the Regulation and the Code, there was relatively little or no debate after the third HLTWG in June  other than in connection with one or two points of detail mainly in relation to when a doctor is to be carried on board a ship.29 by Members at the time of ratification. Accordingly, the Seafarers’ Pensions Convention,  (No. ) should stay intact for the Members that had ratified it or would choose to ratify it in the future. His group supported amendment D. as subamended. . The Government members of Algeria, Australia, Brazil, Croatia, Denmark, Estonia, Ghana, Greece, Pakistan and Turkey also approved amendment D. as subamended. . The Chairperson concluded that amendment D. as subamended had been adopted through tripartite consensus and that amendments D., D. and D. should be considered as withdrawn. . Title  was adopted as amended As of December , Convention No.  has been ratified by  countries, although no ratifications had occurred since : Algeria; Argentina; Bulgaria; Djibouti; Egypt; France; Greece; Italy; Lebanon; Netherlands; Norway; Panama; and Peru. 28 See in particular: Standard A., paras  and . 29 Final Report, HLTWG (Fourth Meeting), Nantes, – January , ILO Doc. No.

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

Regulation ., paragraphs  and , set out flag State responsibilities. The basic obligation is to “ensure that all seafarers on ships that fly it flag are covered by adequate measures”. Regulation . and the related Standard A., paragraph , which also repeats the wording “ensure that measures . . . ”, do not specifically require the adoption of laws and/or regulations to implement this obligation.30 These measures are to ensure protection of seafarers’ health and that they have access to “prompt and adequate medical care whilst working on board”. This protection and care is “in principle” provided at no cost to the seafarers. This wording is partly a consolidation of the obligation under the Health Protection and Medical Care (Seafarers) Convention,  (No. ). As noted in the Office Report for the th ILC: . Regulation . covers seafarers’ entitlement to access adequate medical care on board ship and ashore. The obligation to provide free medical care under the Health Protection and Medical Care (Seafarers) Convention,  (No. ), has been made a little more flexible with the addition of the words “in principle” in paragraph , concerning the requirement that health protection and medical care should be provided at no cost to the seafarers. Paragraph  sets out the duty of coastal States in respect of medical facilities on shore; their obligation is limited to allowing access to existing medical facilities (they will not be required to establish such facilities).31

The ‘in principle’ wording in Regulation . seems to extend the obligation further than Convention No. , which provides, in Article (d), that measures are to “ensure that, in accordance with national law and practice, medical care and health protection while a seafarer is serving on articles are provided free of charge”. The wording of Article  seems to envisage possible limitations under national law to free coverage. It is reproduced in the MLC, , Standard A., paragraph (d), which clarifies the point that protection and costs relate to seafarers when they are on board ship or landed in ports of call. However, it also adds the phrase “to the extent consistent with the Member’s national law and

TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf: . Although the overall topic and text was not controversial, there were a number of concerns and discussion on this provision was extensive. The text of the Regulation was accepted with the text in square brackets in paragraph  deleted. A question was raised about the need to have “no less than” in paragraph  and as to the reference point for comparable shore workers. The representative of the Office clarified that the language comes from Convention No. . In this light, the language and brackets were retained pending further examination. 30

See treatment of this issue in the Article  Report under the ILO supervisory system, supra note . 31 Report I(A), supra note , Note  (Title , Regulation .).

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practice”. In line with the theory that regulations ‘authorize’ the Code provisions, the phrase ‘in principle’ (or a similar qualification, e.g., ‘provided in the Code’) would be necessary in the Regulation to permit the Standard to contain this limitation. The words ‘in principle’ could also be viewed as preventing too wide a use of the ‘to the extent consistent . . . ’ clause. This difficult element in Regulation . and Standard A. must be understood in conjunction with Regulation . on shipowners’ liability for the “financial consequences of sickness, injury or death”, including under Standard A., paragraph (c), defraying the expenses of medical treatment. Given the requirements on shipowners’ liability for costs of medical care set out in Regulation ., it is difficult to know why there was a need to include a possible limitation. Irrespective of whether the port State charges fees for medical services, paragraph  of Standard A. clearly refers to flag State obligations and, therefore, the obligation on shipowners to cover these costs. One explanation may be that this wording is to provide for the possibility that, as discussed below in connection with Regulation . and the Code, a flag State may choose to limit the extent of shipowners’ liability and also to exclude liability in some situations.32 The explanation may also relate to a distinction that appears to be drawn in the nature of the medical care envisaged in Regulations . and .. Regulation . provides liability for “sickness and injury” that have actually occurred while “serving under a seafarers’ employment agreement or arising from their employment under such agreement”.33 The wording in Regulation . refers to what may be a wider range of situations under ‘medical care and health protection services’, which could also cover preventive medicine or treatments for any condition not considered as a sickness or injury under national law, and therefore would not be covered by Regulation ..34 The level or standard for the on board health protection and medical care is “. . . as comparable as possible to that which is generally available to workers ashore”. In the abstract this seems a reasonable approach in that seafarers should not to be worse off than if he or she worked ashore. However, since some of the world’s largest flag States have limited national services for their onshore workers, this comparator or equivalence measure may not be all that helpful, if it is ever actually applied.35 32

See: Standard A., paras , , and . Regulation ., para. . 34 Standard A., para. (d). 35 This point was alluded to by the International Christian Maritime Association (ICMA) an NGO observer at the third HLTWG meeting. See: Final Report, HLTWG (Third Meeting), Geneva,  June– July , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/ public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf: 33

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

Paragraph  of Regulation . provides the coastal and port State with responsibility for ensuring that “seafarers on board ships in its territory in need of immediate medical care are given access to the Member’s medical facilities on shore”. The relevant guidance on this provision is Guideline B..—Medical care ashore, which sets out basic expectations for onshore treatment facilities, including dental services, although it does not refer to costs. The more general Guideline B.., Medical assistance for other ships and international cooperation, provides additional guidance as to what might expected with respect the implementation of Regulation ., paragraph , on other related matters, for example, landing seafarers ashore for emergency treatment, arranging for repatriation of seafarers’ bodies or ashes, or providing for preventive and curative health and medical services in port. It also provides guidance on the wider cooperation expected of all States in connection with improving health protection for seafarers. These activities can also be regarded as examples of the general obligations under Article I, paragraph , on all States (not simply ratifying countries) to cooperate in the effective implementation of the Convention. Standard A. elaborates the obligations, primarily, but not solely, in connection with flag State responsibilities. Paragraphs , , and  and, except for one provision, paragraph , are framed as flag State obligations. One of the more important points that update the earlier convention was the addition of “essential dental care” in paragraph .36 Other than the wording difficulty

. The Seafarer spokesperson noted that to bring Regulation . and Standard A into harmony, the words “and ashore” should be included in Standard A...(d) after the words “on board ship”. There was a need to reconsider the references in A... to tonnage thresholds and the number of seafarers. Paragraphs .. through .. reflected ILO Convention No. , but these should be harmonized with STCW. Standards A..., .. and .. could be placed in Part B. . The Shipowner spokesperson indicated satisfaction with the wording. . A representative of the ICMA warned against a possible erosion of seafarers’ rights in .., since it was the rights of seafarers to medical care that were generally far superior to those of shoreworkers, for example, with regard to employers’ liability to cover all cases of injury and illness, not merely those that were clearly job related. The Convention should not offer governments the opportunity to reduce the rights of seafarers to those of workers on shore. It could instead refer to the provision of a comparable quality of care. . Noting the risks of exposure to HIV/AIDS, one Government representative asked whether the reference to health promotion and health education programmes in A..(e) would require extensive information provision on HIV/AIDS. . The Seafarer spokesperson recommended that a reference to the ILO code of practice on HIV/AIDS and the world of work be placed in Part B, as this was a major issue and would help in ensuring that the existence of the code was widely disseminated. 36

This was accepted at the fourth HLTWG in , supra note ,

. In Standard A., paragraph , it was agreed that dental care would be qualified to relate to necessary or essential care so as to avoid abuse. “Necessary or essential” were deemed

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mentioned above regarding the reference to law and practice in paragraph (d), paragraphs  and  do not require that laws and/or regulations be adopted. At a minimum, this means that the shipowner has operational policies to address the matters in paragraph  ((a) to (e)). Paragraph  refers to prevention and promoting access, and requires that seafarers be given the right (presumably by the shipowners to the extent that this is possible) to visit a qualified medical doctor or dentist without delay in ports of call “where practicable”. The latter phrase could encompass a wide variety of situations but certainly recognizes the limitations that shipowners may have in actually giving effect to this right of access. The wording of Standard A., paragraph (b), regarding access to necessary medical facilities, including necessary medicine, may also raise a question as to who should bear the costs for (and responsibility to provide) medicine where the seafarer has a pre-existing condition that requires medicine. From the point of view of applicable principles, a way that the matter might37 be approached is in connection with Regulation . regarding access to medical care and medicine while on board. Absent national laws or a CBA addressing such coverage for seafarers, reference could usefully be made to the medical care (in the flag State concerned) that is generally available to workers ashore, including prompt access to necessary medicines. This is referred to in Standard A., paragraph (b), implementing Regulation ., paragraph . In terms of what might be viewed as ‘necessary’ in connection with the medicine to be carried on board, a predecessor convention, Convention No. , Article , paragraph , provided that: “In cases of urgent necessity and when a medicine prescribed by qualified medical personnel for a seafarer is not available in the medicine chest, the shipowner shall take all necessary steps to obtain it as soon as possible”. Paragraph  of Standard A. requires that the competent authority of the flag State adopt a standard medical report form to be kept confidential and used

acceptable proposals for alternative language. The Office was asked to redraft to find words that capture this intention. 37

On one view it is possibly also a matter to be addressed under Regulation . in that it places liability on shipowners with respect to sickness or injury occurring between the date of commencing duty and the date of deemed repatriation or arising from employment between those dates (Standard A., paragraph ). Although, particularly under the first clause, this coverage is temporal rather than causation based, the Convention indirectly addresses the question of causation under Standard A., paragraph . One reading of a potential exclusion provided under Standard A., paragraph (c) could be understood as implying that, absent national exclusions, all sicknesses during the period of employment are covered and, even in cases where such an exclusion exists, sickness or infirmity involving a disclosed condition would, in principle, be covered.

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

only to facilitate treatment. This is not the same as the medical report required for seafarers’ medical certificates, but a different report form that is to be carried on board ship. The relevant guidance is Guideline B.., Medical report form, which clarifies that the form is to be used to facilitate the exchange of medical and related information concerning a seafarer between ship and shore in the case of an illness and injury. Paragraph  of Standard A. does require the adoption of laws and regulations by the flag State to deal with requirements for on-board hospital and medical facilities and training. Paragraph  spells out the mandatory minimum content for these laws and regulations. Paragraph  elaborates the content of the general requirements for national laws and regulations under paragraph  and provides that at a “minimum” they must provide for the matters in paragraph  (a) to (d). However, as noted above, although the content of paragraph  is primarily a flag State matter, paragraph (d) is directed to coastal States and, as discussed below, was a matter that presented difficulties for some governments. One of the minimums established under paragraph  relates to hospital facilities. It will be recalled from the discussion in Chapter , that the content of paragraph  of Standard A. and the related guidelines on on-board ship hospital accommodation were moved between Titles  and  at the PTMC and finally settled in Standard A.. This was because the issue related to what is essentially a ship structural design question that needs to consider the situation of existing ships. The requirement to “prescribe and inspect” the content of medical chests and the appropriate level of training for seafarers with medical care duties, and particularly the requirements for a doctor to be carried on board, comprise the subject of most of paragraph  and Guideline B... Paragraph (a) sets out the basic obligations regarding the medicine chest, medical guide, and medical equipment. Although an unusually detailed matter to be addressed as a binding obligation in an international convention, a very important concern relates to the need to have a suitable medicine chest on board (e.g., essential supplies, no out of date medicine, properly stocked and labelled). The relevant guideline on these points is Guideline B.., paragraphs  and , which refers to The International Medical Guide for Ships. This text was produced by the ILO and WHO and prescribes national guides and requirements that should be taken into account. However, the Guideline does not make the Guide mandatory.38 38 WHO proposed at the th ILC that references should be in the Standard rather than the Guideline. See: Report I(A), supra note , Note  (Title , Regulation .):

. In the PTMC draft Convention, paragraph  of the Standard . . .. With respect to subparagraph (a), containing requirements to carry a medicine chest, medical equipment and a

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Standard A., paragraph  (b) and (c), contain the requirements regarding the minimum training for when a seafarer that is a qualified medical doctor is required on board and for training of seafarers with medical responsibilities when a doctor is not required. The relevant guidance is Guideline B.., paragraphs  to . Some of the provisions, as expressly stated in paragraph (c), overlap with the STCW requirements and reflect the distinction it draws between seafarers trained to provide medical first aid and those trained to provide medical care.39 The initial difficulty in drafting the wording in this standard to make medical guide, the WHO has suggested the addition of the following sentence: “In the absence of a national medical guide, the medical guide carried aboard ship shall be the International Medical Guide for Ships, published by the World Health Organization.” There is already a provision on the subject, but it forms part of the Guidelines (Guideline B.., paragraph , read in conjunction with paragraph ), rather than the Standards, and refers to the International Medical Guide for Ships as one of a number of relevant guides. An amendment along these lines was proposed by the seafarers but was not accepted. See: Committee of the Whole Report, supra note : . The Worker Vice-Chairperson introduced amendment D., which was sponsored by the Worker members and sought to insert, at the end of subparagraph (a), the following words: “in the absence of a national medical guide, the medical guide carried aboard ship shall be the International Medical Guide for Ships, published by the World Health Organization;”. In this regard, he drew attention to Note , paragraph  of Report I(A), in which it was indicated that the WHO had suggested the inclusion of the sentence contained in the amendment. . The Employer Vice-Chairperson expressed support for the amendment. . The Government member of the United Kingdom, speaking on behalf of the Government members of the Committee Member States of the European Union, as well as on behalf of the Government members of Bulgaria, Iceland, Norway and Romania, did not support amendment D. and expressed a preference for amendment D., submitted by the Government members of Luxembourg, Netherlands and the United Kingdom, which allowed national authorities greater flexibility with regard to the medical guides to be used. In practice, many countries used national guides produced by other countries. . The Government members of Australia and the Bahamas agreed with the previous speaker and indicated that their countries used the guide produced in the United Kingdom, which they found easier to use than the WHO Guide. . The Government member of Malta added that where a ship was manned principally with seafarers of a certain nationality, it might be more appropriate to that country’s medical guide with which they were more familiar, rather than an international guide. . The Worker Vice-Chairperson withdrew the amendment. 39

Final Report, supra note :

. Paragraph  [now  (b)] generated a great deal of debate. It was agreed that “medical” should qualify the word “doctor”. The square brackets were removed. It was proposed that the text that had been in brackets be moved to Part B. The text presented problems for two Government representatives. A Government representative noted that it has a serious issue with the current text if a person has to be trained and qualified; “or” was proposed. This proposal was not accepted. It was noted that STCW distinguishes between medical care and emergency first-aid training requirements, a distinction that had also been linked to tonnage in the ILO’s text. The Shipowners’ group proposed that the Working Party

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

it consistent with the STCW terminology was achieved through interagency cooperation and advice provided by the IMO Secretariat to the International Labour Office. The procedures adopted at the PTMC meant that the initial focus of the discussion was on unresolved bracketed text. Significant attention was devoted to ships’ structural elements and the provision that is now paragraph  of Standard A.. The reason for this attention to what is hospital accommodation under Title  was a largely a result of the fact that Titles  and  were dealt with by different technical committees with differing views on the question. In addition, at both the PTMC and the th ILC, what may be seen as an inordinate amount of attention was devoted to paragraph (b) and the question of when a seafarer that is trained as a medical doctor is required on board.40 Obviously this is an operational cost matter. The specific concern raised at the th ILC recommend that the Office revise the text to ensure consistency with the STCW since the ILO’s Convention text may not be up to date. 40 Committee of the Whole Report, supra note  (emphasis added). This lengthy extract is included because it provides an insight into expectations as to the various categories of ships, including, for example, mobile offshore drilling units, that would be covered by the MLC, .

. The Employer Vice-Chairperson introduced amendment D., which was sponsored by the Employers’ group, and sought to insert, after subparagraph (b), the following new subparagraph: non-passenger ships to which paragraph (b) applies may carry a registered nurse instead of a qualified medical doctor when engaged in operations entirely within the Exclusive Economic Zone of a coastal State, provided that an arrangement is in place to enable, within a period of  hours, either the evacuation of a person on board to a hospital in that coastal State or the transportation of a medical doctor from that coastal State to the ship; The amendment was based on a proposal from operators which were not normally active in the Employers’ group and was intended to address their specific concerns. The members of the Employers’ group had posed many questions to ascertain the grounds for submitting the amendment and had satisfied themselves that it was appropriate. Marine contractors serving the oil and gas mining industry at sea operated a variety of vessels, including pipelaying vessels and crane vessels, many of which were self-navigating ships, to which the new Convention would apply. The larger vessels carried over  persons, including both the maritime crew and the specialist personnel required for the work in which the vessel was engaged. Such persons were required to be medically examined and declared fit for duty before they were allowed to board the vessels. This category of vessels operated entirely in the Exclusive Economic Zone (EEZ) of a coastal State while engaged in their specialist work. They normally remained at sea for a long period, sometimes for more than a year. Personnel joined and left by crew boat or helicopter. Because the operational area of the vessels was confined to the EEZ of a coastal State, the travelling time from shore to the vessel and vice versa was limited, especially in the case of helicopter transport, when it would take a few hours at most. This meant that, in the case of sudden serious illness or injury, the patient could be evacuated to shore by helicopter, with the possibility of boat transport as a fall-back option. Moreover, a qualified doctor could be brought to the vessel if needed. As ships carrying  or more persons were allowed to sail without a doctor on

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was in relation to ships that transport passengers within a coastal State’s  nautical mile exclusive economic zone (EEZ). After lengthy debate, as pointed out by several governments, the simple answer is that this situation did not seem to be covered by the requirements under paragraph (b) which applies to ships “ordinarily engaged in international voyages of more than three days duration”, although national laws could specify other situations where a medical doctor is required. In accordance with the STCW, as noted above, under paragraph (c),

.

.

.

. . . .

voyages of a duration of less than four days, a maximum of  hours for the evacuation of a person or to bring in a doctor was not only practicable, but also reasonable. The Worker Vice-Chairperson understood the intent of the proposed amendment, but indicated that it gave rise to certain difficulties. The amendment introduced a completely new and substantive subject area that had not been covered in previous discussions. Moreover, he drew attention to the second part of subparagraph (b), which indicated that “national laws and regulations shall also specify which other ships shall be required to carry a medical doctor, taking into account, inter alia, such factors as the duration, nature and conditions of the voyage”. Although acknowledging that subparagraph (b) had not been drafted with a view to covering the types of vessels referred to by the Employers’ group, their needs might already be covered by the subparagraph. He also emphasized that those who manned the ships in question operated in a very hostile environment in which there was a high risk of serious injury. In such cases, the possibility of evacuation within  hours by helicopter, provided that the weather conditions so permitted, was not satisfactory. Moreover, the term EEZ gave rise to difficulties, as it was interpreted in certain cases as extending out to  miles. A preferable term would be “territorial waters”. The suggested period within which a person should be evacuated or a doctor transported to the ship should be set at four hours instead of  hours. Although the Workers’ group was not supportive of the amendment as currently worded, they were prepared to discuss the issues raised involving this category of vessel with a view to finding a solution, possibly in the context of a small working group, which should examine whether another paragraph was in fact needed to cover the question and, if so, whether it needed to be in such complex language. He concluded by noting that this was a substantive amendment to a mature text . . .. The Government member of Brazil also raised concerns related to the coverage of such situations by UNCLOS. Oil-producing operations of this type were dangerous and she therefore questioned the wisdom of having a registered nurse present, rather than a qualified doctor. The Government members of Australia and the Bahamas pointed out that as the vessels concerned by the amendment operated entirely within the EEZ of a coastal State, they were not covered by the provisions of subparagraph (b), which only applied to ships ordinarily engaged in international voyages. There was therefore no need for the amendment. The Government member of Norway suggested that the term “continental shelf ” replace “exclusive economic zone” . . .. The Government member of Norway considered the amendment as unnecessary. Subparagraph (b) applied only to international voyages and the activity referred to in the amendment was not seen by Norway as international voyages. The Government members of Liberia and the United Arab Emirates opposed the amendment. The Employer Vice-Chairperson thanked those who had been involved in seeking a solution to the issue raised by his group and withdrew the amendment.

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seafarers with specified levels of medical training are required when a medical doctor is not required. One issue that remained controversial throughout the negotiations, particularly for one government, including at the th ILC, was the potential budgetary impact of the communication charges for providing medical advice to ships under Standard A., paragraph (d).41 Although subparagraph (d) is 41 The coastal State requirement was raised in almost every meeting, including the th ILC, in connection with the potential budgetary impact for coastal States with respect to communication costs. Committee of the Whole Report, supra note  (emphasis added):

. The Government member of Greece introduced amendment D., which was sponsored by the Government members of Denmark, Greece and the United Kingdom and sought, in subparagraph (d) of Standard A., to replace the words “between a ship and those ashore giving the advice” by “from those ashore giving the advice to the ship”. The amendment sought to address a concern which had been raised in previous meetings that because of the way in which calls were charged over radio or satellite communication systems, the medical service might end up being billed by certain shipowners for the cost of the communication from the ship. Clearly, the specialist medical advice provided was free of charge and the institution providing the advice would not charge for its communications to the ship. However, it should not have to pay for the original communication from the ship. In his opening statement the speaker had focused on the need to resolve issues which would constitute obstacles to ratification of the proposed Convention. If the present amendment were not adopted, an obstacle would remain in the instrument which might prevent certain countries from ratifying it. . The Employer Vice-Chairperson recalled that the same issue had been discussed before the adoption of the Health Protection and Medical Care (Seafarers) Convention,  (No. ), from which the relevant text in subparagraph (d) had been taken. At previous meetings, it had been agreed that the wording of newer Conventions, that is those which had been adopted within the past  years, should not be changed. His group preferred to abide by that decision and therefore opposed the amendment. . The Worker Vice-Chairperson considered that the amendment would entail a change of emphasis. Subparagraph (d) required the competent authority to ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, was available  hours a day. On the high seas, mobile phones were of no use, doctors were not present on board, hospital facilities were out of reach and radio or satellite communication was the only opportunity to contact a specialist. The system was intended in particular for serious cases of illness and injury, in which permission would be sought from the master to call ashore and get advice. It was vital to avoid a scenario in which the master would have to be concerned with budgetary issues in such situations and where the availability of medical advice might depend on a commercial decision. The current Office text should therefore be retained for the reasons indicated by the Employer Vice-Chairperson. He also expressed concerns about the issue of two-way radio communications and the impact of Chapters  and  of the SOLAS Convention. Flag States should not begrudge paying the cost of onward satellite transmission in situations where an injured seafarer needed professional medical advice . . .. . The Government member of Greece replied that the competent authority was not linked to either the flag State or the coastal State. All ratifying Members would have to apply the provision. . The Government member of Germany emphasized that the right of seafarers to medical advice was not at issue. The question was whether the State which provided such advice free

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located in a provision concerned chiefly with flag State laws and regulations, paragraph (d) refers to services to be provided “free of charge to all ships irrespective of the flags that they fly” and is therefore not a flag State obligation but one that is directed to coastal States. This requirement is based on an existing obligation in Article  of Convention No. . The guideline that specifically

.

.

.

.

. . .

of charge should risk subsequently being charged for the cost of the communication. Clearly, such a cost should not be charged to the seafarer, but nor should it be charged to the State that provided the advice. With regard to the previous agreement not to change the wording of recent Conventions, the extremely rapid developments in the area of telecommunications over the past  years needed to be taken into account. He therefore supported amendment D.. The Government member of the United Kingdom emphasized that there was no question of reducing the service provided by the State to a ship seeking emergency medical advice, which would be provided free of charge. Moreover, if the State were unable to provide the medical advice immediately, it would call back at its own expense. The amendment was intended to avoid situations in which the shipowner, after receiving the advice, sent the State the bill for the call seeking such advice. This was unfair to the State that had provided life-saving advice free of charge. The Worker Vice-Chairperson noted that, according to the proposed Convention, medical advice, including the transmission by radio or satellite communication between a ship and those ashore giving the advice, should be available free of charge to all ships irrespective of their flag. This meant that neither the seafarer nor the shipowner would have to bear the relevant cost. If amendment D. were to be adopted, seafarers would still be provided with advice free of cost, but the shipowner would have to pay for the communication from the ship to the shore. The Workers’ group wished to avoid the situation in which a commercial decision had to be made prior to making a call for medical advice for an injured seafarer. There were many ships on which such financial considerations would influence the decision as to whether to make the call or not. The Employer Vice-Chairperson observed that emergency calls for medical advice were free of charge in any case. Shipowners bore high costs in relation to medical care, such as the provision of medical equipment, but did not object to fulfilling their responsibilities in this regard. The Government member of Norway introduced amendment D., which was sponsored by the Government members of the Republic of Korea and Norway and sought to replace, in subparagraph (d) of Standard A., the words “all ships irrespective of the flag that they fly” by “seafarers on board”. The text in the proposed Convention had been drawn from the Health Protection and Medical Care (Seafarers) Convention,  (No. ), which had been ratified by only  countries, including his own country. Under the new Convention, every ratifying Member would be required to ensure that such a system was available. The services involved could be provided directly by the government, or shipowners could subscribe to private medical services if the flag State did not provide the relevant services directly. The amendment allowed the responsibility to be transferred to shipowners. This could remove a potential obstacle to ratification. The Government member of the United Arab Emirates supported the amendment. The Government member of Denmark opposed the amendment, since medical advice should be free of charge for all ships. The Government member of the Republic of Korea pointed out that the Office text had been drafted before the adoption of the GMDSS system in the framework of SOLAS. Until then most telecommunication systems had been public systems. However, the private

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relates to this issue is, however, directed to flag States (Guideline B.., paragraph ) regarding on board equipment and contact information. Even though this is a guideline rather than a standard, the Guidelines for Flag State Inspections recommend that ships be inspected for relevant procedures for this communication, essentially as a logical extension of the coastal State obligation to respond to these calls.42 One ‘orphan’ guideline, Guideline B .., that does not appear to revise any prior convention-based obligation deals with the medical care protection for dependants of seafarers domiciled in its territory (presumably referring to the domicile of both the dependant and the seafarer). It would require that all ratifying countries give due consideration to the provision of medical care for this category of person, if they are not already covered. Its scope is not entirely clear, however, it appears to be primarily directed to securing coverage specifically for this category of persons in countries where there is no general onshore coverage for workers and their dependants that are resident in the country. Regulation .—Shipowners’ Liability The purpose of Regulation . is “[t]o ensure that seafarers are protected from the financial consequences of sickness, injury or death occurring in connection with their employment”. While this is simply stated, its wording raises some questions as discussed below, with respect to concept of ‘in connection with their employment’. Regulation . and Standard A. are intended to address shorter term social protection coverage that was addressed in the Shipowners’ Liability (Sick and Injured Seamen) Convention,  (No. ) and, in part, in the Social Security (Seafarers) Convention (Revised),  (No. ). Shipowners’ liability under the MLC,  for this coverage relates to both the cost of care and the payment of wages during periods of sickness. The idea that the shipowner, as employer, would be liable for this coverage though was generally accepted even if the specific elements, including the mechanism for providing this coverage, were not necessarily settled. As pointed out by an representative of the International Christian Maritime Association, an NGO observer at the PTMC, sector now operated telecommunications systems. Governments would find themselves in the position of allocating public resources to cover the costs of radio or satellite communications provided by private companies, without having the means to control those costs . . . . Paragraph  was adopted without amendment. . Standard A. was adopted without amendment. 42

Adopted in , supra note .

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. . . . This right was ancient, dating from the thirteenth century, and had long been accepted as an obligation by shipowners. The right was purposefully simple, to ensure that it could be rapidly applied without the need for recourse to judicial interpretation. The right implied that where a seafarer was sick or injured, whether or not the illness or injury was connected to his or her employment, the shipowner was under an obligation to provide care until such a time as it was clear the seafarer’s health would not improve. The only exceptions to this liability were in cases of concealment of an existing illness at the time of employment, or of injury caused by wilful misconduct . . . 43

The obligations in Regulation . and Standard A. are on the flag State. The basic obligation under paragraph  is: Each Member shall ensure that measures, in accordance with the Code, are in place on ships that fly its flag to provide seafarers employed on the ships with a right to material assistance and support from the shipowner with respect to the financial consequences of sickness, injury or death occurring while they are serving under a seafarers’ employment agreement or arising from their employment under such agreement.

As indicated by paragraph , which preserves other legal remedies, this liability is not related to any fault on the part of the shipowner. Although this paragraph is generally worded to refer to ‘measures’, it also contains the qualifying phrase ‘in accordance with the Code’. Standard A. is one of the few standards that clearly requires adoption of ‘laws and regulations’ on the liability and also provides for the possibility (‘may’) of a limitation and even exclusion of shipowners’ liability in some situations under national laws or regulations (see below for further discussion on the latter point). Both paragraphs  and  of Standard A. were adopted by the th ILC with no proposals for amendment.44 Aside from difficulties as to the question of the form of financial security for aspects of this liability, the other main difficulties in developing the text of Regulation . and Standard A. related to the wording to cover both the period during which liability could arise and any potential exclusion of liability under national laws and regulations. It is important to note that the wording in the Regulation and Standard, liability is primarily temporal rather than causation based. In other words all illnesses are covered if they arise during a particular period of time or, if an illness or injury manifests itself later, it can be attributed to that period of time. There is one problematic area with the

43

Although he expressed a concern that, “Use of language such as ‘arising from their employment’, or ‘occupational’ disease, implied the need to demonstrate a link between the illness or injury and employment”. See: Committee No.  Report, supra note , para. . 44 Committee of the Whole Report, supra note , para. .

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financial security under Standard A., paragraph (b), which appears to be causation based, where it provides compensation for the “death or long-term disability of seafarers due to an occupational injury, illness or hazard”.45 45 However the wording in the proposed agreed principles elaborating this obligation repeat the temporal reference as well as the reference to Standard A.. Paragraph (b). See: Provision of Financial Security, supra note  (emphasis added):

Proposal for the text of an amendment to the Maritime Labour Convention, , to be presented to the future Special Tripartite Committee with a view to adoption in accordance with Article XV of the Maritime Labour Convention,  Standard A..—Treatment of contractual claims; financial security (new) . For the purposes of this Standard, the term “contractual claim” means any claim which relates to sickness, injury or death occurring while the seafarer is serving under a seafarers’ employment agreement or arising from their employment under such an agreement. . Each Member’s laws and regulations shall ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation referred to in Standard A.. through rapid and fair procedures. . National laws and regulations shall provide that the financial security to assure compensation as provided by Standard A.., paragraph (b), for contractual claims meet the following minimum requirements: (a) the contractual compensation, where set out in the seafarer’s employment agreement and without prejudice to (c) below, shall be paid in full and without delay; (b) there shall be no pressure to accept a payment less than the contractual amount; (c) where the nature of the long-term disability of a seafarer makes it difficult to assess the full compensation to which the seafarer may be entitled, an interim payment or payments shall be made to the seafarer so as to avoid undue hardship; (d) in accordance with Regulation ., paragraph , the seafarer shall receive payment without prejudice to other legal rights, but such payment may be offset against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident. . [Any contractual claim for compensation required to be covered by the financial security system referred to in Standard A.. (b) may be brought directly by the seafarer concerned, or their next of kin, or a representative of the seafarer or designated beneficiary.] . Each Member’s laws and regulations shall ensure that seafarers receive prior notification if a shipowner’s financial security is to be cancelled and be notified immediately if it is not to be renewed. . Each Member’s laws and regulations shall ensure that the flag State is notified by the provider of the insurance if a shipowner’s financial security is to be cancelled, upon cancellation and upon non-renewal. . Each Member shall require that ships that fly its flag provide documentary evidence of financial security issued by the financial security provider. The documentary evidence shall be posted in a prominent position in the seafarers’ accommodation. Where more than one financial security provider provides cover, the document provided by each provider shall be carried on board.

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The more difficult element in the wording of Standard A., paragraph , is the question of what is meant by “while they are serving under a seafarers’ employment agreement or arising from their employment under such an agreement.”46 On one reading it seems clear this is temporal coverage which also . The financial security shall provide for the payment of all contractual claims covered by it which arise during the period for which the document is valid. . The documentary evidence of financial security shall contain the information required in Appendix -I. It shall be in English or accompanied by an English translation. Guideline B. . The parties to the payment of a contractual claim may use the Model Receipt and Release Form (attached as an appendix to Assembly Resolution A.() on claims for personal injury to or death of seafarers adopted on  November ). Appendix -I The documentary evidence of financial security required under Standard A.., paragraph , shall include the following information: (a) (b) (c) (d) (e) (f)

name of the ship; port of registry of the ship; call sign of the ship; IMO number of the ship; name and address of the provider of the financial security; contact details of the persons or entity responsible for handling seafarers’ requests for relief; (g) name of the shipowner; (h) period of validity of the financial security.

46

Committee No.  Report, supra note  (emphasis added): . The Shipowner Vice-Chairperson felt that the Regulation as currently drafted would cover individuals on board ships for whom shipowners should not have long- or interim-term responsibilities. He provided an indicative list of persons who could not be considered seafarers in the context of the proposed Convention, and who should not be covered by its provisions on shipowners’ liability with respect to health and medical care. . The Seafarer Vice-Chairperson noted that Regulation ., paragraph , referred to protection of seafarers “employed on” ships flying the flag of member States and with respect to a right to material assistance and support from the shipowner with respect to the financial consequences of sickness or injury or death occurring “while they are serving under a seafarers’ employment agreement”. This wording would exclude many of the individuals on the Shipowners’ list and therefore responded to their concern. The Seafarers’ group wished to retain the text in square brackets as it broadened shipowners’ responsibility. The Seafarers’ group was supported by the Government member of Norway. . The Government member of Denmark suggested replacing “or arising from their employment under such agreement” with “or arising from their service on board.” The bracketed text in the recommended draft was too broad and the shipowner should be liable only for sickness, injury or death arising from periods during which the individual was on board the ship. Other periods would be covered by Regulation .. . The Government of Japan emphasized the need to ensure that Regulation . and its standard would be as practicable and enforceable as possible. Because seafarers frequently

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recognizes that some illnesses or injury might be incurred during that period but is not manifest until later in time, a familiar concept in connection with tort liability in common law countries. However, the addition of this element and the concept of ‘arising from their employment’ create some uncertainty as this appears to link the illness, injury, or death and the liability to the employment related activities as opposed to general coverage during a particular period of time. This wording is repeated in Standard A.., paragraph (a).

.

. .

.

.

.

.

moved from ship to ship, it was often difficult to determine which shipowner was responsible for a sickness or injury, especially since they might manifest themselves a long time after the seafarer had left the vessel. He stated that this could jeopardize seafarers obtaining a rapid remedy. The language in paragraph  should therefore not be too broad, and the bracketed text should be deleted. . . . The Shipowner Vice-Chairperson did not dispute that the shipowners have some responsibility for providing medical coverage. He understood that the bracketed text in paragraph  aimed at protecting seafarers from a disease or injury that manifested itself after the end of the period covered by the employment agreement. The connection of this disease or injury to a specific period of employment would be difficult to prove, but this was presumably the reason for the inclusion in Regulation ., paragraph , of a reference to “legal provisions providing for liability”. The Shipowners’ group could accept the proposal put forward by Denmark. Wording should be found to enable the seafarer to make a claim after the end of the agreement, though clearly this would require a mechanism to prove the validity of the claim. . . . The Seafarer Vice-Chairperson said that the bracketed text in paragraph  referred to sickness, injury or death “arising from,” rather than “arising during” employment and that it therefore covered only those which resulted from the employment . . . The Government member of the United Kingdom pointed out that paragraph  was aimed at covering two sets of circumstances: the financial protection of seafarers from the consequences of sickness, injury or death which arose during the duration of the employment agreement, and for disease or injury which manifested itself after the period of employment, but was connected to it. He supported maintaining the bracketed text. The Shipowner Vice-Chairperson did not agree that there should be coverage of sickness and accidents which occurred during vacation periods. Shipowners would not generally cover seafarers for eventualities which occur outside their employment, but had a clear liability with regard to service-related illness or accidents. The Government member of Denmark noted that in his country, seafarers could be employed under an employment contract for an indefinite period, sometimes as long as  years, by the same company, although they worked on different ships. In these circumstances, when the seafarers were not on board ship, the shipowners still covered them for sickness benefit and, in special cases, medical treatment. The Government member of the Netherlands suggested that the significant distinction was not in the nature of the employment contract but between short-term sickness and long-term invalidity or illness. A seafarer who was not able to work should be compensated whether or not the disability was caused by his or her work. If the seafarer was permanently disabled, it would be important to identify the cause of the disability in order to compensate him or her under civil law. The Government member of Italy also felt that certain distinctions had to be drawn in the text, in her view between occupational diseases and accidents arising during employment, on the one hand, and sicknesses which occurred, for example, during vacation periods, on the



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In connection with temporal coverage, any sickness or injury occurring during a specified period, irrespective of why it occurs, would be covered (unless expressly excluded under Standard A., paragraph ).47 A question

. .

.

.

.

. .

. 47

other. In her country, two different social security regimes covered each type, and this kind of system would need to be captured by the Convention. The Government member of the Bahamas asked the ILO to clarify the phrase “serving under a seafarers’ employment agreement” as to whether it covered periods during which a seafarer is not working on board. The representative of the Secretary-General observed that Article II, paragraph (g) defined a seafarers’ employment agreement to include both a contract of employment and articles of agreement, thereby, in effect, rendering it a matter for national law and practice. She added that irrespective of regimes such as that in operation in Denmark, seafarers “serving” under an employment agreement would generally be covered while on board, while travelling to the ship or when being repatriated. During vacation periods, generally applicable social security schemes would cover them rather than shipowners’ liability. The bracketed text would cover injury or illness arising out of or in connection with employment on board ship, or while travelling to the ship or being repatriated. The bracketed text was retained and the Committee requested the Drafting Committee to review the text to ensure that the current wording reflected the views of the Committee that the text should ensure that the financial consequences of sickness or injury or death of the seafarer should be restricted to consequences arising from or in connection with employment on board ship or while the seafarer is travelling to and from the ship. The Drafting Committee, rather than proposing a revised version of paragraph , put forward a new paragraph with the aim of clarifying paragraph . The following commentary was received from the Drafting Committee: The existing text of Regulation ., paragraph , would be considered consistent with the views of the Committee if the square brackets are deleted and the concept of “serving under a seafarer’s employment agreement” is defined in the Standard. A provision such as below could be inserted in Standard A. as a new paragraph : . For the purposes of paragraph  of Regulation ., a seafarer shall be considered to be serving under a seafarer’s employment agreement when the seafarer is employed or engaged on an agreement, is in transit to or from a ship and in other circumstances specified in the seafarer’s employment agreement, including periods where a seafarer may be ashore for medical treatment. The Shipowners’ group expressed concerns with a number of elements of the Drafting Committee’s text and concluded that paragraph  of the recommended draft was preferable. It was supported by the Seafarers’ group, who further called for the bracketed text of the recommended draft to be retained. An observer from the International Christian Maritime Association expressed the view that the bracketed text of paragraph  in the recommended draft referred to the timeframe of eligibility, not to the causation of the injury or illness. The Seafarer Vice-Chairperson clarified her group’s view that the unbracketed text refers to responsibilities with regard to the consequences of sickness, injury or death which occurs during the employment agreement; and the bracketed text refers to sickness or injury in connection with, or arising from, work, but which did not manifest itself until later. The proposal to remove the brackets and retain the text was agreed by the Committee and paragraph  of the recommended draft was adopted.

The question arises as to what kinds of illness and diseases might be covered under Paragraph  (a) and (b) of Standard A., including mental illnesses. According to paragraph 

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that often arises is what happens if the seafarer falls sick or gets ill while onshore, for example, a day off in port, during the period that is covered. If the coverage is temporal, unless it is excluded under Standard ., paragraph , the seafarer would be covered. A related question is what is the period of time covered by ‘serving under’ in Regulation ., paragraph . The answer is found in Standard A., paragraph (a). Initially the provision was ‘blanked out’ by the PTMC, but it was resolved on the basis of an agreement between the shipowners and seafarers that also addressed the sensitive question of financial security for liability under paragraph (b). The issue was considered at the Intersessional Meeting in  as follows (emphasis added): Note : Title , Standard A., paragraph (a) and (b) . The Shipowner and Seafarer spokespersons explained that their groups had reached agreement on paragraphs (a) and (b) of Standard A., as follows: (a) shipowners shall be liable to bear the costs for seafarers working on their ships in respect of sickness and injury of the seafarers occurring between the date of commencing duty and the date upon which they are deemed duly repatriated or arising from their employment between those dates. (b) shipowners shall provide financial security to provide compensation in the event of the death or the long-term disability of seafarers due to an occupational injury, illness or hazard as set by national law or the seafarers employment agreement or collective agreement.48

Government representatives from some States, particularly labour-supply States, also expressed concerns about the need for the substitution of the term ‘insurance coverage’ by ‘financial security’ and whether this ensured the compensation set out in the seafarers employment agreement or collective agreement was not lower than the limits set by national law (a particular concern of Singapore).49 In response, the Shipowners’ Group disagreed with concern over use of the term ‘financial security’ and argued that flag States were able to deal adequately with employment contracts of foreign seafarers in national

of Regulation ., sickness, injury or death is covered if it occurs while seafarers are serving under their SEA or if it arises from their employment under such an agreement. The MLC,  does not define the term ‘sickness’. However, bearing in mind the definitions of the contingencies of Parts II and III (Medical Care and Sickness Benefit) of the Social Security (Minimum Standards) Convention,  No. , it appears that sickness would cover a range of illness, including mental illness and disease, absent the application of any national exclusions under Standard A ., paragraph . 48 Report of the Discussion, supra note , para. . 49 Ibid., paras –.

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laws.50 Governments were also cautious about introducing terms that might be mistaken for introducing provisions that establish minimum standards (e.g., a minimum wage). Concluding that any employment agreement below limits set by national laws would be illegal, the Meeting agreed to the text as proposed by the Shipowners’ and Seafarers’ Groups.51 Paragraphs  and  of Standard A. establish the basic liability to cover costs of medical care and “full wages”.52 Paragraphs  and  provide the possibility that the flag State ‘may’ limit this liability in national laws or regulation to not less than  weeks from the date of injury or commencement of sickness. In the absence of such a limitation, it appears that a shipowner’s liability may extend to recovery. Standard A., paragraph , allows (‘may’) for the exclusion of liability under national laws or regulations in three situations, each of which may be difficult to interpret. Interestingly, paragraph (a) provides for exclusion of sickness and injury incurred “otherwise than in the service of the ship”, which seems to potentially provide for the widest national exclusion. This provision was not the subject of any discussion at either the PTMC or the th ILC. However the potential for exclusion under paragraph (b), wilful misconduct, was the subject of fairly extensive consideration at the th ILC, despite the fact that it was a term already established under the Sickness Insurance (Sea) Convention,  (No. ):53 . The Worker members submitted amendment D., which sought to replace the words “act, default or misbehaviour” by “misconduct” in subparagraph (b) of Standard A.. An identical amendment (D.) was submitted by the Government members of the Republic of Korea and the United Arab Emirates. . The Government member of Japan requested the Office to clarify whether the term “willful misconduct” would include serious negligence. . The representative of the Secretary-General explained that if the two amendments were adopted, the provision would exclude liability only in the case of “willful misconduct”. With regard to the question raised by the Government member of Japan as to whether “willful misconduct” included cases of “serious negligence”, national laws used different terminology, and the two terms could be given different meanings. The term “serious” was particularly variable, so it would be preferable to stick to the concept of “willful misconduct” which contained two words “willful” and “misconduct”. The words “willful” and “misconduct” both seemed clear, especially bearing in mind that a narrow interpretation had to be

50

Ibid., paras –. Ibid., para. . 52 Guideline B. provides in paragraph  that this may be exclusive of bonuses. 53 Art. , para. (b), Sickness Insurance (Sea) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm. See also: Committee of the Whole Report, supra note . 51

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given to them as the rights of individual seafarers were involved. The word “willful” implied an intention. It therefore meant more than simply being negligent. “Misconduct”—simply defined—meant doing something which should not be done. Taken together, the words “willful misconduct” also implied at least the intentional doing of something with the knowledge that serious injury or illness was a probable result of the intentional act or “with a wanton and reckless disregard of its possible result”—to use wording taken from a relevant court decision. Depending upon the national case law and legal terminology being considered in a particular case, the term “serious negligence” might also be considered as containing these two elements, namely, intentionally doing something which should not be done, with knowledge of the probable result or with a wanton and reckless disregard of the possible result. It was quite clear that these elements would not be present in a simple negligent act. If, however, the concept of “serious negligence” under a national law or practice necessarily included both elements, it would come within a reasonable definition of “willful misconduct”. . The Government member of Japan stated that, in view of the Office’s explanation, his delegation fully supported the amendment. . The Employer and the Worker Vice-Chairpersons also expressed their support. . The Government member of Cyprus, while endorsing the amendment, said that his country had undertaken its own study in the context of the deliberations related to the European Union Directive on accidental pollution and found that the term “serious negligence” did not have international standing, while “willful misconduct” was a clearly defined legal term. Similarly, the Government members of Ireland and Nigeria supported the amendment.

The coverage of sickness or injury in the context of employment is complex and in some countries is provided for under a public government-administered system. This is addressed under paragraph  whereby national laws or regulations may also exempt shipowners from liability regarding medical care and lodging under paragraph  if there is a public system in place to cover these costs. This is also addressed in Guideline B., paragraph , and with respect to burial expenses, paragraph .54 Paragraph  address an important personal matter, the obligation of the shipowner to take measures to ensure that the onboard property of a sick, injured, or deceased seafarer is kept safe and returned to their family. As discussed above, there is an interaction between Regulations . and . with respect to flag State responsibility for coverage that complements the social security protection to be provided by the country where the seafarer is ordinarily resident as required under Regulation ..55 Given the importance of this coverage it seems anomalous that, like repatriation, this matter is not 54 See also the guidance in Guideline B..(k) regarding flag and port State cooperation to arrange for the repatriation of the bodies or ashes of seafarers to their next of kin. 55 See in particular Standard A., paras  and .

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on the list of  areas in Appendix A-I that must be certified on ships subject to certification as well as flag State inspection. However, it is matter that is indirectly certified as it is one of the mandatory items that must be stated in seafarers’ employment agreements.56 Finally, the process of developing this text was also affected by the slow progress in the Joint IMO/ILO Ad Hoc Working Group on Liability and Compensation Regarding Claims for Death, Personal Injury and Abandonment of Seafarers. The outcome of that process in  means that it is very likely that at least some aspects of Standard A. will be amended in the future to reflect the agreed principles on financial security. Further, the amendments will probably specifically include this matter in the list under Appendices A-I and A-III, as well as give consideration to the particular situation of smaller ships, at least in connection with documentation.57 Regulation . —Health and Safety Protection and Accident Prevention Regulation . and the Code are for the most part new text and, to the extent that they consolidate existing obligations in conventions,58 substantially modernize them. The purpose of these provisions is to “ensure that seafarers’ work environment on-board ships and promote occupational safety and health”. As discussed in Chapter , in connection with Title , Accommodation, Recreational Facilities, Food and Catering, there is an obvious and express linkage between these provisions and Regulation ., particularly in Regulation . and the Code because seafarers’ living and working spaces/environment on board ship are integrated. Thus many considerations relating to living accommodations on board ship are also relevant to workplace or occupational safety and

56 57

Standard A., para. (h). See discussion supra note . See also: Provision of Financial Security, supra note :

. With respect to paragraphs  and , the representative of the Government of Greece requested clarification as to whether the competent authority could derogate from the English language requirement in paragraph  based on Article II, paragraph , of the MLC,  (e.g. for small vessels remaining in national waters). A representative of the Office explained that the MLC, , applied to all seafarers but one could imagine that, in drafting the final texts, it would be possible to accommodate the needs of small vessels as regards language of documentation. . The representative of the Government of the Republic of Korea drew the attention of the meeting to the need to make certain consequential amendments in other parts of the MLC, , such as Standard A... 58

Prevention of Accidents (Seafarers) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm.

title : health protection, medical care, and welfare



health (OSH59) or ‘MOSH’ (maritime OSH) as it is sometimes called.60 As mentioned in the discussion of Standard A.—Accommodation and recreational facilities in Chapter , paragraphs  and , on requirements (emphasis added): . In developing and applying the laws and regulations to implement this Standard, the competent authority, after consulting the shipowners’ and seafarers’ organizations concerned, shall: (a) take into account Regulation . and the associated Code provisions on health and safety protection and accident prevention, in light of the specific needs of seafarers that both live and work on board ship, . (h) accommodation and recreational and catering facilities shall meet the requirements in Regulation ., and the related provisions in the Code, on health and safety protection and accident prevention, with respect to preventing the risk of exposure to hazardous levels of noise and vibration and other ambient factors and chemicals on board ships, and to provide an acceptable occupational and on-board living environment for seafarers.

In addition, the elements of the guidelines regarding noise and vibration affecting ship construction (Guideline B..) were transferred between the two Titles during the PTMC. This was done largely to address concerns about coverage of existing ships and a decision that Title  should not have a ‘grandparent clause’ regarding application to existing ships.

59 One interesting nuanced point relates to terminology in this area. Concerns about a safe and healthy workplace environment are shared between the ILO and WHO and, increasingly in the maritime sector, the IMO. It is referenced in the preamble to the  ILO Constitution. The WHO was established in , and as early as  there were joint initiatives between the two organizations. However, the ILO generally uses the phrase ‘occupational safety and health’ (OSH) and has a “Programme on Safety and Health at Work and the Environment” (SafeWork), available at http://www.ilo.org/safework/lang-en/index.htm. The WHO uses the phrase ‘occupational health and safety’ (OHS), see “Occupational health,” available at http://www.who.int/occupational_health/activities/en/. This distinction indicates differing emphases and competencies although it might appear that there are many overlapping concerns. In the maritime sector, as noted at the PTMC, the IMO has also been active in this field. See: Committee No.  Report, supra note :

. The Government member of the United Kingdom drew the Committee’s attention to work underway by the International Maritime Organization (IMO) to develop guidance on occupational safety and health programmes. She noted that this would be relevant to the Committee’s discussions. It is therefore something of an anomaly for the ILO that the MLC, , Regulation . is entitled “Health and safety protection and accident prevention” although the purpose clause and other references in the provisions adopt the more usual ILO OSH formulation. This was, however, not a matter noted by the Drafting Committee. 60 See, for example, Canadian regulations adopted under pursuant to the Labour Code, the Maritime Occupational Safety and Health Regulations (SOR/–), which were adopted in  to modernize the national regulations and also to implement the MLC, , which Canada ratified in June .



chapter ten

The approach adopted by the MLC,  towards occupational safety and health protection and accident prevention is explained in the Office Report for the th ILC as follows: Note  (Regulation .) . Regulation . deals with occupational safety and health protection and accident prevention. It draws upon the text of the Prevention of Accidents (Seafarers) Convention,  (No. ), and the related Recommendation (No. ), which focus on ensuring that employees have the appropriate equipment and protection to perform their duties safely and are trained how to do so. It also includes requirements for reporting accidents. This is part of a system for monitoring ongoing compliance and conditions on board ship. The PTMC agreed with the need to have provisions encouraging more risk evaluation and management and encouraging the collection and use of statistical information. Much of the text of Regulation . and the associated Code provisions reflect the recommendation of the Officers of the HLTWG, adopted by the PTMC, that the text should now be modernized to include a wide range of human elements affecting occupational safety and health, such as fatigue, drug and alcohol abuse, and other concerns, such as exposure to chemicals and other workplace risk.61

Much like the structure of Regulation ., Regulation . is fairly brief with only three paragraphs followed by the eight paragraphs of Standard A.. However, more like Regulation ., Guideline B.—Health and safety protection and accident prevention comprises eleven guidelines on the following matters: – – – – – – – – – – –

Guideline B..—Provisions on occupational accidents, injuries and diseases Guideline B..—Exposure to noise Guideline B..—Exposure to vibration Guideline B..—Obligations of shipowners Guideline B..—Reporting and collection of statistics Guideline B..—Investigations Guideline B..—National protection and prevention programmes Guideline B..—Content of protection and prevention programmes Guideline B..—Instruction in occupational safety and health protection Guideline B..—Safety and health education of young seafarers Guideline B..—International cooperation

As required under Article IV, paragraph , these are all matters that must be given ‘due consideration’ by governments when implementing their obligations. In most cases, particularly the requirements under Standard A., these will be relatively new concepts and approaches, at least for the maritime sector. These provisions also need to be understood against the backdrop of contemporary approaches in the ILO to OSH and the move away from accidents to a focus on prevention, using risk assessment, policies, and covering a much 61

Report I(A), supra note .

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

broader range of matters as OSH such as stress related factors (e.g., alcohol and drug abuse) and ambient factors affecting worker health and safety. To fully appreciate the conceptual underpinning of Regulation . and the Code, which are markedly different in their regulatory approach from other provisions in the MLC, , it is useful to consider the following extract from the recent ILO Survey on OSH (references removed): . OSH is generally defined as the science of anticipation, recognition, evaluation and control of hazards arising in or from the workplace that could impair the health and well-being of workers, taking into account the possible impact on the surrounding communities and the general environment. In , the ILO-WHO Joint Committee on Occupational Health considered that occupational health should “aim at the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations”. The realization of this aim requires a risk assessment and an OSH management system which is absolutely fundamental to a strategy of prevention. Like other areas of human activity, a balance has to be struck. The complexity of that balance in OSH stems from the constantly changing nature, the rapid pace of scientific and technological progress and efforts to minimize the harm caused to those who are at the frontline of these developments. OSH is based on the principles that were developed to manage the risks generated by a galloping industrialization and its demand for highly and inherently dangerous energy sources and transport systems, as well as for increasingly complex technologies. . . . . The [key ILO OSH] Convention and Recommendation are both innovative in that they clearly adopt a comprehensive approach based on a cyclical process of development, implementation and review of a policy, rather than a linear one laying down precise legal obligations. It ensures that the national OSH system is continuously improved and capable of addressing issues arising from a constantly changing world of work. They also define the goal of such continuous improvement, namely prevention. The shift of emphasis from the mere prescription of protection measures to preventative measures has been an important step in the development of standard setting in OSH. As total prevention is an ideal goal, it implies in real terms a constant effort to improve worker protection. Accordingly, instruments adopted since  place due weight on the priority to be given to preventative measures, while protective measures are considered as a last resort, to be used when exposure to risks cannot be prevented, minimized or eliminated. The requirement to consult the representative organizations of employers and workers in the development, implementation and review of the national OSH policy is also a major innovation that reflects the fact that OSH is fundamentally a matter to be dealt with primarily through close cooperation between the social partners.62

62

Report III (Part B), General Survey concerning the Occupational Safety and Health Convention,  (No. ), the Occupational Safety and Health Recommendation,  (No. ), and the Protocol of  to the Occupational Safety and Health Convention, , ILC, th Session, , Third item on the agenda: Information and reports on the application of Conventions and Recommendations Report of the Committee of Experts on the Application of Conventions and Recommendations (Articles ,  and  of the Constitution).



chapter ten

Even though these developments were occurring in connection with OSH generally, there was relatively little that specifically addresses the situation of seafarers, who both live and work on ships. For these workers, exposure to hazardous substances or other factors such as noise and vibration is not limited to specific ‘work hours’ but can be continual and for months at a time. This aspect of hazard in itself puts in question, for example, the applicability of any ‘safe’ exposure levels developed for onshore occupations. The widening conceptualization of OSH to include workplace relationships, for example, workplace violence, as an aspect of a ‘safe environment’ will also provide a challenge on board ships.63 These potential difficulties, as well the importance of promoting greater integration between the ILO and the IMO on this matter, prompted the th ILC to adopt the Resolution concerning occupational safety and health which states that: The General Conference of the International Labour Organization, Having adopted the Maritime Labour Convention, , Mindful that the core mandate of the Organization is to promote decent working and living conditions and a global strategy on occupational safety and health, Recognizing that the occupational safety and health of seafarers and the risks they face on board vessels are inextricably linked to the effective implementation of the International Safety Management (ISM) Code of the International Maritime Organization, which endeavours to ensure the safe management of ships, Noting the importance of a culture of safety on board ships, addressed by the provisions contained in the ILO code of practice on accident prevention on board ship at sea and in port, Emphasizing the need to promote the establishment of shipboard safety committees and to appoint crew safety representatives; Urges the Governing Body of the International Labour Office to allocate resources for the promotion of awareness of the health, safety and accident prevention provisions contained in Title  of the Maritime Labour Convention, Requests the Director-General to invite the Governing Body to convene a tripartite expert working group on seafarers’ occupational safety and health, to consider how best to undertake this work.64

The change from a more specific accident and occupational incident oriented approach to a broader healthy ‘environment’ and a safety and health manage-

63 64

See the example of Canada, supra note . Selection Committee Report, supra note .

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

ment systemic approach lead to significant debate at the PTMC as to the appropriateness of adopting this approach under the MLC, .65 As the following extract from the official report of Technical Committee No.  at the PTMC indicates, the wording of paragraph , Regulation ., on this point was sufficiently difficult that a working party was struck to develop text that could resolve the differing views. The extract shows the high level of awareness among delegates, particularly the representatives of the Shipowners’ and Seafarers’ Groups, of potential interaction with the IMO’s International Safety Management (ISM) Code and the need to avoid duplication or conflicting provisions (emphasis added). . The Government member of Japan reported on the work of the Working Party, which proposed the following text to replace paragraph  with the aim of securing sound management of occupational safety and health on board ships: 65

Committee No.  Report, supra note  (emphasis added):

. The Shipowner Vice-Chairperson noted that the regulation, standard and guideline referred frequently to occupational safety and health management systems, which had been the subject of in-depth discussion at the st Session of the International Labour Conference (June ). Since  had been only a first discussion on the matter, and was aimed at the promotion of management systems rather than making them mandatory, the subject was not yet mature enough to be included in a Convention. He stated that there were many existing OSH programmes on board ships, and health and safety committees were set up under IMO requirements. There were also a number of national laws covering the issue. His group proposed the deletion of all references to “occupational safety and health management systems” in the text, for example the reference in paragraph  was considered inappropriate and should be deleted. Paragraph , however, was more operational, and could possibly be amended. . The Seafarers’ group submitted that the reference to occupational safety and health management systems was important since there was a need for more emphasis on data collection, risk assessment and prevention and other topics raised by the systems approach. . The representative of the Secretary-General stressed the importance of occupational safety and health for the ILO, and its promotion of the modern approach of occupational safety and health management systems, which could be found in published ILO guidelines such as the ILO Guidelines on Occupational Safety and Health Management Systems, (ILOOSH, ). Paragraph  . The Shipowner Vice-Chairperson proposed the deletion of the reference to occupational safety and health management systems. While they had no objection to a promotional approach in this area, the text was not considered appropriate in an industry that was already well advanced in the area of occupational safety and health. The Shipowners wanted the focus to remain on occupational safety and health issues, rather than requiring bureaucratic systems. The paragraph should be reworded to give more emphasis to consultations with the social partners with regard to the development of occupational health and safety measures. . . . . The Seafarer Vice-Chairperson stressed the need for risk evaluation and statistics. She noted in particular that there was at present a low reporting rate of casualty statistics, making it difficult to address the causes of casualties. These were clearly elements that could be in a Convention.



.

.

. .

.

. . .

chapter ten The competent authority in each Member shall, [in/after] consultation with representative organizations of shipowners and seafarers concerned, and taking into account relevant international standards and guidelines, develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly its flag. The Shipowner Vice-Chairperson was broadly in agreement with the Working Party’s proposed text. It addressed the concern which had been voiced by the Shipowners over the reference to occupational safety and health management systems in paragraph . With regard to the choice between “in” and “after” in the Working Party’s proposed text, the Seafarers’ group felt strongly that the term should be “in consultation”. They were supported by the Government members of Canada, Finland, Namibia and the United States. The Shipowner Vice-Chairperson suggested that “after” would be more appropriate than “in”, given the procedural requirements of many national legal processes. This preference was shared by the Government members of Algeria, the Bahamas, Denmark, Egypt, France, Ghana, Japan, Philippines, Russian Federation, Singapore, Sweden, Tunisia and the United Kingdom. The Committee agreed to use the word “after”, although the Seafarers’ group reiterated their strong preference for “in”. The Seafarers’ group proposed to replace the reference to “relevant international standards and guidelines” with one to “applicable codes, guidelines and standards recommended by international organizations, administrations and maritime industry organizations”. This language was preferable because it was drawn from the International Safety Management (ISM) Code, which itself draws on a number of other international instruments. The Shipowner Vice-Chairperson supported the proposal, as did the Government members of Algeria, the Bahamas, Canada, Denmark, Egypt, Finland, France, Ghana, Japan, Namibia, Norway, the Philippines, Singapore, Tunisia, the United Kingdom and the United States. The Seafarers’ proposal was accepted by the Committee. The representative of the Secretary-General suggested that, for clarity, “national” should be inserted before “administrations”. The Committee adopted the following text: The competent authority in each Member shall, after consultation with representative organizations of shipowners and seafarers and taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations, develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly the flag of the Member.66

In fact the final wording in the Convention reversed the order of the text with the emphasis now placed on the Member State’s responsibility to develop and promulgate guidelines. Further, the reference to the competent authority

66

Ibid.

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

was removed, perhaps as drafting matter, to be consistent with the other two paragraphs in the Regulation which refer only to “[e]ach Member”.67 . Each Member shall develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly its flag, after consultation with representative shipowners’ and seafarers’ organizations and taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations.

As noted earlier, Regulation . comprises three paragraphs setting out three specific but interrelated obligations for Members as flag States. The first, under paragraph , is the obligation to “ensure” that seafarers on ships flying its flag are “provided with occupational health protection and live, work and train on board ship in a safe and hygienic environment”. The emphasis on occupational health is something of an anomaly as an ILO OSH requirement simply because of the placement of the word health as opposed to safety. Part of the reason for this formulation is that this paragraph is a based in part on Article (a) of the Health Protection and Medical Care (Seafarers) Convention,  (No. ). This convention is mainly consolidated under Regulation . and deals with access to medical care on board and ashore, as discussed earlier in this chapter. Under Article (a) of Convention No. , the obligation is to apply any “general provisions on occupational health protection . . . relevant to the seafaring profession, as well as special provisions peculiar to work on board”. The word ‘ensure’ seems a strong, perhaps even absolute, term from a legal perspective. However, as with the other regulations in the MLC, , the obligation would be met by implementing the obligations in paragraphs  and  of the Regulation and in Standard A.. Paragraph  of the Regulation is concerned with the development and promulgation of national guidelines, while paragraph  requires that the Members adopt national laws and regulations and 67 The reason for this change is not entirely clear as it was not the subject of amendment by the th ILC. It appears to have been a drafting change made by the th ILC Drafting Committee in the final text that was adopted, although the specific change is not mentioned in the Report and the format does not appear to follow the approach proposed by the Committee in its Report. Committee of the Whole Report, supra note , containing the Report of the Drafting Committee of the Tenth Maritime Conference:

General The Committee noted and took action, as appropriate, . . . In all provisions in which the term “the competent authority” appeared as the sole referent for “ships that fly its flag”, the Drafting Committee replaced the term “competent authority” with words referring to the Member whose flag was being referred to, such as “the competent authority of the Member”.



chapter ten

other measures to address the matters in the Code. Importantly it also requires the Member to “set standards for occupational safety and health protection and accident prevention on ships that fly its flag”. Both paragraphs  and  emphasize the need take into account other existing international instruments and guidance and, for the reasons set out above, in the extract from the Working Party at the PTMC.68 In addition, paragraph  of Standard A. confirms that: . Compliance with the requirements of applicable international instruments on the acceptable levels of exposure to workplace hazards on board ships and on the development and implementation of ships’ occupational safety and health policies and programmes shall be considered as meeting the requirements of this Convention.

Thus the flag State is obliged to consult with the shipowners and seafarers organizations to develop national guidelines, laws, and regulations and other measures that apply on ships, and to regularly review and revise these instruments, as well as to carry out inspections on ships for compliance by shipowners with these national requirements. In that respect it is important to note that this is one of the areas that is subject to flag State certification and potential port State control under the list of  matters set out in Appendices A-I and A-III. Given the emphasis on flag State action and promotional steps, there are some difficulties, as will be discussed below, to ascertain precisely what is expected of shipowners and on board ships. The eight paragraphs that comprise Standard A. were substantially revised to address concerns about language and the use of terms such as ‘risk’, ‘programme and policies’, references to ‘diseases’ and, in line with the changes made to paragraph  of the Regulation, the removal of references to ‘management systems’. The current text of Standard A. paragraphs  to  and Guideline 68

Among the guidelines that are potentially relevant the following were set out in the Consolidated Maritime Labour Convention: Commentary to the Recommended Draft (PTMC, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/ptmc/pdf/cmlc-comment.pdf) at Comment , paragraphs  and  and note : Guidelines on Occupational Safety and Health Management Systems (ILOOSH, );  (ILO, R.); Safety in the use of chemicals at work: An ILO code of practice, ; Globally Harmonized System for the Classification and Labelling of Chemicals (GHS) (United Nations Economic Commission for Europe: ); Ambient factors in the workplace: An ILO code of practice, ; Drug and Alcohol Abuse Prevention Programmes in the Maritime Industry (A Manual for Planners (Revised)) (ILO/UNDCP, ); Management of alcohol and drug-related issues in the workplace: An ILO code of practice, ; Recording and notification of occupational accidents and diseases: An ILO code of practice, ; HIV/AIDS and the world of work: An ILO code of practice, ; Protection of workers’ personal data, . The table of maximum noise levels based on IMO Resolution A XII, adopted in , and for vibration as referenced in Guideline B.. of the MLC,  the ILO code of practice, Ambient factors in the workplace, . See also the ILO code of practice, Accident prevention on board ship at sea and in port,  referred to in Guideline B.., paragraph .

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

B..—Provisions on occupational accidents, injuries and diseases is also largely the result of a text prepared during the PTMC by the Working Party mentioned earlier. The reporter for the Working Party explained the approach to the text as follows: . The Government member of Japan, as reporter of the Working Party, introduced the revised text of Standard A. and Guideline B.. that it had prepared. The agreed principles guiding the work of the Working Party were that it was necessary to delineate respective responsibilities clearly and ensure that existing procedures could be maintained.69

Despite the efforts of the Working Party there was still extensive debate70 at the PTMC over the text, including a proposal to explicitly include the concept of a contemporary approach based on ‘preventative principles’.71 . The Government member of Denmark proposed an addition to Standard A., paragraph (c), to insert after the words “implementation and”, the following: . . . take due account of the preventive principles where, among other things, combating risks at the source, adapting the work to the individual, 69 70

Committee No.  Report, supra note . Ibid.,

. The Shipowner Vice-Chairperson indicated that the text of the Working Party was broadly acceptable, though his group would be proposing specific changes. In particular, his group wanted to have a reference to occupational safety and health “policies”, since it acknowledged an important role of governments and, in practice, policy statements were usually the starting point for both governments and shipowners. He noted that implementation and promotion were normally based on policies. Noting that the Seafarers’ group had expressed a preference for the term “programmes” over “policies”, he indicated that it could be possible to refer to both “policies” and “programmes”. In paragraph (d), his group objected to the use of the word “powers”, preferring “responsibilities” as this would be more commonly understood. With respect to paragraph , contrary to the comment in the text, his group supported the inclusion of the words “and diseases”; however, they felt it was more appropriate for the words “taking into account the guidance provided by the International Labour Organization with respect to the reporting and recording of occupational accidents and diseases” to be included in the Guidelines and not in the Standard. They raised the same concern regarding similar wording in paragraph . . The Seafarers’ Vice-Chairperson agreed that the text of the Working Party showed substantial consensus and was broadly acceptable to her group if outstanding substantive issues could be resolved. Her group preferred the term “programmes” over “policies”, as the latter was too weak. In paragraph  of the proposed text, she suggested that “periodically” be changed to “regularly”. The Shipowners’ group agreed to this change. She also called for a rewording of paragraph  to make it clear that such risk evaluation and management should take place, without leaving it to the discretion of the shipowner and also that there be statistical information. . On the issue of paragraph , the Shipowner Vice-Chairperson commented that his group was not as concerned with when a risk evaluation took place, but objected to the use of the words “and management” . . . 71

Committee No.  Report, supra note .



.

.

.

.

.

chapter ten especially as regards the design of workplaces, and replacing the dangerous by the non-dangerous or less dangerous have precedence for protective equipment for seafarers. The Shipowner Vice-Chairperson noted that the proposal embodied a wellestablished principle of occupational safety and health. While the Convention would benefit from the inclusion of this principle, it should be in the Guidelines rather than the Standard. The Government member of the Bahamas agreed. The Seafarers’ group requested confirmation that the proposed change was intended to ensure that precedence be given to preventive principles before recourse to protective equipment, rather than implying that personal protective equipment plays no role. On receiving confirmation from the Government member of Denmark, the group supported the proposed amendment. It stated that it followed on logically from the notion of continuous improvement and should therefore remain in paragraph (c). . . . The Shipowner Vice-Chairperson proposed an amendment to paragraph (c) to add after “implementation” the words “taking account of preventive measures including engineering and design control, substitution of processes and procedures for collective and individual tasks and use of personal protective equipment.” The Seafarer Vice-Chairperson supported this amendment, as did the Government members of China, Denmark, Egypt, Finland, Germany, Japan, Malta, the Netherlands, Norway, Singapore, Tunisia, the United Kingdom and the United States. Paragraph (c) of the Working Party text was adopted as amended.

The specific elements originally proposed, as constituting ‘preventative measures’, are now set out in Guideline B.., paragraph . The majority of the provisions in Standard A. relate to the content of the regulatory measures to be adopted for requirements on board a ship flying its flag. There is also clear interaction with the requirements in Standard A.— Accommodation and recreational facilities. For example, Standard A., paragraph (b), calls for “reasonable precautions to prevent . . . including measures to reduce the risk of exposure to harmful levels of ambient factors and chemicals”. In addition there is clear connection between the obligations in Standard A., paragraph (b), regarding seafarers under the age of 72 and Regulation . on minimum age and, more specifically, under Standard ., paragraph , and Guideline B ., whereby: Standard A.-Minimum age . The employment, engagement or work of seafarers under the age of  shall be prohibited where the work is likely to jeopardize their health 72

Paragraph (b) reads: “clearly specify the obligation of shipowners, seafarers and others concerned to comply with the applicable standards and with the ship’s occupational safety and health policy and programme with special attention being paid to the health and safety of seafarers under the age of ”.

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

or safety. The types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. Guideline B.-Minimum age . When regulating working and living conditions, Members should give special attention to the needs of young persons under the age of .

In addition, specific matters to be considered on this point are set out under Guideline B..—Safety and health education of young seafarers, which provides detailed guidance on matters where work should be restricted. This list, at paragraph , can be understood as also setting out the matters that would form the content of requisite national restrictions under Standard A., paragraph .73 Standard A. requires several specific matters be addressed in relation to ensuring ongoing on-board compliance. Paragraph (d) requires that national laws and regulations and other measures include requirements for inspection and reporting and correcting unsafe conditions and investigation and reporting of on-board occupational accidents. Paragraph (d) requires national laws and regulation require the establishment of a ship safety committee where there are five or more seafarers on board. The committee must include seafarer representatives who are to have authority to participate. These seafarer representatives are also to be involved in the implementation of prevention oriented on-board programmes (Standard A., paragraph (c)). Guidance as to the potential functions and activities of these committees and programmes is provided in Guideline ..—Content of protection and prevention programmes. Shipowners are also required to conduct a “risk evaluation” under Standard A., paragraph . Although it does not address the full range of shipowners’ potential obligations, Guideline B ..—Obligations of shipowners, refers to “any obligation on the shipowner to provide protective equipment and other accident prevention safeguards” and to older ILO conventions regarding the safe operation of machinery. The term ‘any obligation’ implies that this would be a question of national requirements. The central question of the scope of matters potentially included under Regulation . is generally addressed in Regulation and Standard A.. However Guideline B.., paragraph , refers to matters “in particular” to be (given due consideration) addressed in national guidelines:

73

See Chapter  at note , p. .



chapter ten Guideline B..—Provisions on occupational accidents, injuries and diseases . The provisions required under Standard A. should take into account the Code of practice on Accident prevention on board ship at sea and in port,  and subsequent versions and other related ILO and other international standards and guidelines and codes of practice regarding occupational safety and health protection, including any exposure levels that they may identify. . The competent authority should ensure that the national guidelines for the management of occupational safety and health address the following matters, in particular: a) general and basic provisions; b) structural features of the ship, including means of access and asbestosrelated risks; c) machinery; d) the effects of the extremely low or high temperature of any surfaces with which seafarers may be in contact; e) the effects of noise in the workplace and in shipboard accommodation; f) the effects of vibration in the workplace and in shipboard accommodation; g) the effects of ambient factors, other than those referred to in subparagraphs (e) and (f), in the workplace and in shipboard accommodation, including tobacco smoke; h) special safety measures on and below deck; i) loading and unloading equipment; j) fire prevention and fire-fighting; k) anchors, chains and lines; l) dangerous cargo and ballast; m) personal protective equipment for seafarers; n) work in enclosed spaces; o) physical and mental effects of fatigue; p) the effects of drug and alcohol dependency; q) HIV/AIDS protection and prevention; and r) emergency and accident response. . The assessment of risks and reduction of exposure on the matters referred to in paragraph  of this Guideline should take account of the physical occupational health effects, including manual handling of loads, noise and vibration, the chemical and biological occupational health effects, the mental occupational health effects, the physical and mental health effects of fatigue, and occupational accidents. The necessary measures should take due account of the preventive principle according to which, among other things, combating risk at the source, adapting work to the individual, especially as regards the design of workplaces, and replacing the dangerous by the non-dangerous or the less dangerous, have precedence over personal protective equipment for seafarers. . In addition, the competent authority should ensure that the implications for health and safety are taken into account, particularly in the following areas:

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

a) emergency and accident response; b) the effects of drug and alcohol dependency; and c) HIV/AIDS protection and prevention

As these provisions indicate, the matters now considered under the purview of OSH are very broad. They include most74 contemporary concerns, for example, exposure to asbestos and tobacco,75 both of which are increasingly of significant concern for seafarers’ health. As well they include stress-related matters such as alcohol and drug dependency or concerns about HIV/AIDS. Although this modernization of the regulatory approach may seem difficult for some countries the fact that it is coupled with an ongoing ILO promotion of OSH for all sectors should mean that it is generally accepted. However, a difficult question remains. Given the extent to which Regulation . and Standard A. are focused on State action, what is to be expected on board a ship? The  ILO Guidelines for Flag State Inspections76 are of 74 Although in some countries workplace violence is also included in OSH. See above at note , concerning Canada. 75 Committee No.  Report, supra note :

. The Government member of the United Kingdom, supported by the Government members of Brazil and Denmark, proposed that specific mention be made to “tobacco smoke” in the context of ambient factors. . An observer from the International Christian Maritime Association proposed the inclusion of a reference to ingress and egress systems, including gangways and accommodation ladders. A representative of the Secretary-General suggested that more appropriate wording would be “means of access”. . The Government member of the Philippines indicated that his Government wished to retain as far as possible the list in the recommended draft text of paragraph . . The Shipowner Vice-Chairperson supported the inclusion of ambient factors. With respect to asbestos-related risks, however, this was not necessarily relevant, since ships are no longer permitted to be built using asbestos. The Seafarers’ group stressed that this issue was important to seafarers as some ships still contain asbestos. In fact some studies suggest that asbestos exposure may still be a serious concern for existing ships certainly for seafarers that may be on board ships that are being sent for ship recycling. See, for example, H. Saarni, J. Pentti, E. Pukkala, “Cancer at sea: A case control study among male Finnish seafarers,” ()  Occupational Environmental Medicine – (citations removed): . . . Asbestos, which in previous years was widely used on board ship, has been suggested to increase lung cancer among seafarers. Asbestos is the only known cause of malignant mesothelioma. As a result of the vibration of the ship and various repair works of asbestos containing constructions, asbestos fibres can be loosened and spread into the indoor air on board ship. During their work on board ship, seafarers may be exposed to various other chemical and physical potentially cancer activating substances. Paints, pigments, and cutting oils needed in ship maintenance could increase the risk of bladder cancer. Exposure to transported substances such as benzene, petrol, styrene, and vinyl chloride during loading, unloading, and tank cleaning operations on tankers can be a possible cause of leukaemia, renal cancer, liver cancer, and bladder cancer. 76

Guidelines for Flag State Inspection, supra note .

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assistance in this regard. While not constituting interpretation, they provide an international tripartite view of the minimum that inspectors should expect on board ships and consequently matters that should be addressed by shipowners in the DMLC, Part II, which could also replicate or at least reference any applicable ISM Code provisions. The Guidelines provide, inter alia, that: Regulation .—Health and safety protection and accident prevention Standard A.; Guideline B. * Inspected and certified ** Review DMLC, Part II . . .. How to check the basic requirements – Check relevant documents, such as the on-board occupational accident reports, and the reports of risk evaluations undertaken for the management of occupational safety and health on the ship. – Check for documents evidencing membership and meetings of the safety committee (e.g. records and minutes of the meetings, etc.) if the ship has more than five seafarers. – Check documents related to the ship’s on-board ongoing occupational safety and health policy and programme, to confirm that: – it is available to seafarers; – it is consistent with national provisions; – it includes risk evaluation, training and instruction for seafarers; – it pays special attention to the health and safety of young seafarers; – adequate preventive measures are being taken; – appropriate personal protective equipment is being used and maintained correctly. – Check that relevant occupational safety and health and accident prevention notices and official instructions with respect to particular hazards on the ships are posted on the ship in a location that will bring it to the attention of seafarers (Standard A., paragraph ). – Check that appropriate protective equipment is available for seafarers to use. – Check that a reporting procedure for occupational accidents is in place. – Interview, in private, a representative number of seafarers to confirm onboard occupational safety and health programmes and practices. – Check that, with respect to health and safety protection and accident prevention, special consideration is given to any national requirements covering: – the structural features of the ship, including means of access and asbestos-related risks; – machinery; – the effects of the extremely low or high temperature of any surfaces with which seafarers may be in contact; – the effects of noise in the workplace and in shipboard accommodation;

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

– the effects of vibration in the workplace and in shipboard accommodation; – the effects of ambient factors (other than noise and vibration) in the workplace and in shipboard accommodation, including tobacco smoke; – special safety measures on and below deck; – loading and unloading equipment; – fire prevention and fire-fighting; – anchors, chains and lines; – dangerous cargo and ballast; – personal protective equipment for seafarers; – work in enclosed spaces; – physical and mental effects of fatigue; – the effects of drug and alcohol dependency; – HIV/AIDS protection and prevention; – emergency and accident response. Examples of deficiencies – Conditions exist on board which may impair efforts to prevent accidents. – No evidence of an on-board policy and/or programmes for the prevention of occupational accidents, injuries and diseases. – No established or functioning ship’s safety committee when there are five or more seafarers working on board. – Personal protective equipment is in poor condition or being incorrectly used or not being used. – Risk assessments are missing. – Seafarers are unaware of the measures adopted by the management to provide OSH and to prevent accidents. – Risks posed to young seafarers have not been addressed. – Occupational accidents are not being investigated or reported in accordance with the ship’s procedures.

However, as indicated during the discussion at the meeting in  to adopt the Guidelines,77 there was concern about clarifying the wording of the MLC, 77

Final Report, Tripartite Expert Meeting to Adopt Guidelines on Flag State Inspections under the Maritime Labour Convention, , Geneva, – September , ILO Doc. No. MEF// (emphasis added): . The Shipowner Vice-Chairperson and a few Government participants requested clarification as to whether the examples enumerated under the last bullet point were drawn from Part B of the Code, as this would elevate non-binding guidelines to items subject to inspection. The flag State inspector would end up inspecting the implementation of the competent authority rather than the compliance of the ship. Moreover, Guideline B..() of the MLC mentioned another layer of guidelines, namely national guidelines for occupational safety and health management addressing the listed items. The fact that the present guidelines now elevated the national guidelines referred to in the non-binding B..() to items inspected by the inspector was unacceptable. The inspector should only inspect items laid down in national law.

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 and the need to distinguish between ship compliance and flag State compliance, particularly in connection with matters under Part B of the MLC,  Code. The meeting adopted the phrase ‘special consideration to any national requirements’ to make it clear that individual governments should decide whether or not to translate Part B into national laws and/or regulations. Any problems with flag State implementation would be addressed through the ILO supervisory system. Regulation .—Access to Shore-based Welfare Facilities Regulation . differs in several respects from the other requirements in the MLC, . First, other than indirectly, it is not directed to flag States, but to port States. Secondly, the obligations are essentially promotional, except for the requirement regarding non-discrimination (essentially national human rights legislation) that is applied to any shore-based seafarers’ welfare centres that exist in a country. The obligations under this regulation can be seen as another example, much like the obligation to assist with facilitating the repatriation of seafarers, of the general obligations under Article , paragraph , on all ILO Member States to “to cooperate with each other for the purpose of ensuring

. A representative of the Office confirmed that the examples were mainly taken from the Guidelines in the MLC. However, the fact that Part B of the Code was non-mandatory but member States had to give due consideration to it, would mean that member States implementing the provisions of the Guidelines in the MLC could choose to translate them into national laws and regulations. While countries were free to decide, the wording of Standard A.()(a) required them to take the Code provisions on health and safety protection, including B..(), into account, which could narrow down possible actions of the country. The Seafarer Vice-Chairperson believed that it was appropriate that the inspector took Part B of the Code into account and satisfied himself that national guidelines were applied aboard ship. . The expert from the Government of the United Kingdom suggested changing the chapeau of the last bullet to read “Check that, with respect to health and safety protection and accident prevention, special consideration is given to any national requirements covering:”. The Meeting so decided, as the language made it clear that Governments could decide whether or not to translate Part B of the Code into national laws or regulations. . Regarding ILO Conventions and Recommendations dealing with health and safety protection and accident prevention, without excluding certain categories of workers like seafarers, e.g. the Promotional Framework for Occupational Safety and Health Convention,  (No. ) and the related Recommendation No. , the question was raised whether it was possible for an administration to implement those ILO standards in the framework of the inspection system under the MLC. The Deputy Secretary-General of the Meeting replied that, under Convention No. , Members needed to develop a national health and safety policy, system and programme, and nothing prevented them from taking a holistic approach provided it met the MLC requirements for occupational safety and health. . The text concerning the seventh and eighth bullet points, as proposed by the Technical Drafting Committee was adopted without further discussion.

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effective implementation and enforcement of the Convention”. The purpose of Regulation . and the Code is “[t]o ensure that seafarers working on board a ship have access to shore-based facilities and services to secure their health and well-being”. This wording echoes the phrasing found in Regulation .—Entitlement to leave, paragraph , which is directed to flag States (and shipowners) and requires that each “[s]eafarer shall be granted shore leave to benefit their health and wellbeing”. It is also linked to the right of seafarers to be given leave (by shipowners) to come ashore to obtain medical and dental care under Regulation ., paragraph (c) and the requirement under Regulation ., paragraph , that “[e]ach Member shall ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore”. Regulation . could therefore be seen as the other end of the flag State obligation to require shipowners to provide shore leave and is directed to access to use the welfare facilities where they exist in a port, assuming the seafarers can come ashore. However, it does not go as far as providing a right (other than the obligation of the port or coastal State concerning medical situations, as noted above) to come ashore or even require that welfare facilities exist. Both are sensitive matters for many States. The right of seafarers to come ashore in a port underpins the Seafarers’ Identity Documents Convention (Revised),  (No. ) and the Seafarers’ Identity Documents Convention,  (No. ). The latter, discussed in Chapter , was initially included in the MLC,  but is not consolidated in the Convention. Due to the urgency and complexity of security matters, its provisions took the form of a stand-alone convention that was adopted in . Convention No. , like its predecessor Convention No. , facilitates the granting of shore leave, as well as admission to a territory for professional purposes. These are essential workplace rights for seafarers. Despite the adoption in  and coming into force of Convention No.  in  the question of a ‘right’ to come ashore remains difficult for many countries concerned with border security and control. In addition, seafarers’ welfare facilities in most ports are established by NGOs.78 Thus one of the main concerns of governments was to ensure that the obligations under the MLC, 78

For example, the international charity, International Committee on Seafarer’s Welfare (http://www.seafarerswelfare.org/index.php); or the International Christian Maritime Association (http://www.icma.as/) which “currently represents  seafarers’ centres and  chaplains in  countries”. Seafarers welfare centre and research is often supported though the ITF Seafarers’ Trust. A useful study that broadly discusses seafarers’ welfare needs is a report of a – survey carried out under the auspices of the Seafarers’ International Research Centre, Cardiff University, and supported by the ITF. See: Erol Kahveci, “Port-based welfare services for seafarers, ,” available at http://www.itfglobal.org/seafarers-trust/welfarerpt.cfm.

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 did not require that there be any financial responsibility on their part to establish or fund these centres. As pointed out in the Office Report for the th ILC in , Note  (Regulation .) . Regulation . consolidates the obligations in the Seafarers’ Welfare Convention,  (No. ), and deals with seafarers’ access to onshore welfare facilities. It is part of a ratifying Member’s duty to cooperate and provide onshore relief for seafarers, within the limits, of course, of a State’s national requirements relating to, for example, security matters. The Regulation and related Code provisions reflect the concern expressed by some governments regarding the need to ensure that the wording refers to an obligation to promote the development of shore-based welfare facilities without importing any financial obligations to provide or establish these facilities.79

Consequently, the requirements under Regulation . and Standard A. were carefully drafted to address these concerns, with the result that there was very little debate over the proposed text at either the PTMC or the th ILC. At the PTMC, the discussion focused on specific wording in Guideline B..—Financing of welfare facilities80 and whether this might imply 79

Report I(A), supra note . Most of the provisions in the Code, Part B, Guideline ., are based on the Seafarers’ Welfare Recommendation,  (R), Geneva,  October , and Seafarers’ Welfare Recommendation,  (R), Geneva,  October , both available at http://www.ilo.org/ilolex/english/recdisp.htm. 80 Committee No.  Report, supra note  (emphasis added): . The Shipowner Vice-Chairperson submitted that it was curious to include the wording in paragraph  in a guideline. . The Government member of Sweden proposed changing the order of paragraphs  and  ... . The Shipowner Vice-Chairperson, supported by the Seafarers’ group, expressed concern that the language of the provision, wherever it was placed, could result in undermining the continuation of existing financial support. There did not seem to be a need for such a provision, since nowhere in the instrument could it be inferred that the governments might have a financial obligation to support welfare facilities. The concern may arise because of the reference in paragraph  to “grants from public funds”. Consideration should also be given to the need to include a definition of “welfare facilities”. . The Government member of Sweden reiterated his Government’s proposal to place paragraph  after paragraph , since it was more appropriate to place the positive provision before the negative. As background, he noted that the provision was based on the Seafarers’ Welfare Convention,  (No. ). It had been clear in the Provisional Record of the International Labour Conference debate on Convention No.  that the Convention was not intended to impose any financial obligations on the Government. It was, therefore, important to state this expressly in the present text in order to ensure maintenance of the status quo of Convention No. . This proposal was supported by the Government members of Denmark, Egypt and Malta. The Government member of Egypt noted that at the meeting in Nantes in January , the governments had raised the need for an express provision to ensure they had no financial obligation in this area. The Government member of Denmark added that

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any obligation on governments to provide funds. At the th ILC there was only one proposal to amend paragraph  of Standard A. regarding welfare boards and that was to add ‘where they exist’.81 This was not accepted. All

.

.

. .

.

.

. .

81

a provision similar to paragraph  should also be included in the mandatory section of the instrument. The representative of the Secretary-General drew attention to the Commentary to the recommended draft on this point, noting that the main concern of many governments related to ensuring that the wording of the provisions referred to an obligation to promote the development of shore-based welfare facilities without imparting any financial obligations. She also noted that Convention No.  had been the subject of several requests for interpretation from governments as to whether they were obliged to provide financial support. She also noted that the term “welfare facilities” was clearly defined in Article  of Convention No.  as follows: “the term welfare facilities and services means welfare, cultural, recreational and information facilities and services”. This is reflected in the current text in Regulation ... A Seafarer spokesperson stated that there was nothing in the obligatory part of the instrument that could imply a financial obligation on governments with respect to welfare facilities, and any reference to financial support in paragraph  was governed by “national conditions and practice”. The Government member of France supported the views of the Shipowners and the Seafarers and saw no need to upset the balance of Convention No. . The Government member of the Philippines agreed that paragraph  could be deleted, but drew attention to the fact that this could entail consequential amendments to paragraph . Financial support could still be provided, but it would depend on what the country could afford. The Government member of the Bahamas raised the concern with respect to paragraph  that if there were no voluntary contributions, public funds would need to be made available. Even if this were not the intention of the provision, it could be read in that manner; therefore, further clarification was needed. The Government member of the United Kingdom considered that the wording of paragraph  implied that the wording of Standard A. was not clear. The clarification provided in Guideline B.. should instead be part of Standard A. since it was A. that was being explained. However, it would make more sense to clarify the obligations in A. to avoid any vagueness regarding governments’ obligations. The representative of the Secretary-General indicated that in preparing the recommended draft on welfare facilities, there had been no intention to impose any obligation on governments for financial support. The Committee agreed to delete paragraph , on the understanding that it was not the intention of the Committee that such deletion should imply any financial obligation on the part of Governments with respect to welfare facilities. Guideline B.. was, therefore, adopted with the suggested changes.

Committee of the Whole, supra note :

. Regulation . was adopted without amendment. . Standard A., paragraph , was adopted without amendment. . The Government member of Liberia, speaking also on behalf of the Government members of the Bahamas, Canada and the United States, introduced amendment D. to insert in paragraph  after the word “concerned” the words “and with welfare boards where they exist,”. He explained that this would achieve consistency with other provisions of the Convention, in particular paragraph  of the same Standard and Guideline B.., which

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other provisions were adopted as proposed with no debate.82 Under Regulation ., paragraph , the qualifying phrase ‘where they exist’ essentially sets out the extent of governmental obligations.

. .

. .

. . .

.

.

. . . . 82

provided for the promotion of the development of welfare facilities and the encouragement of the establishment of welfare boards. The Employer Vice-Chairperson supported the amendment. The Worker Vice-Chairperson opposed the amendment, as the tripartite consultation arrangements of the Convention were clear. Any encouragement of the establishment of welfare boards should be channelled through existing tripartite structures which involved governments, management and labour. In this connection, he drew attention to Guideline B.., paragraph , which provided that welfare boards should include among their members representatives of shipowners’ and seafarers’ organizations. His group therefore preferred the Office text. The Government members of Denmark, Greece, Namibia, Norway, Pakistan and Saudi Arabia also opposed the amendment. The Government member of the Bahamas supported the amendment. He agreed that shipowners’ and seafarers’ organizations needed to be consulted. If, however, a greater spectrum of organizations related to the provision of welfare existed, they should also be involved. The Government members of Canada and the United States concurred and expressed their willingness to give a higher level of support to the numerous seafarers’ welfare organizations established in their respective countries. The Government members of the Libyan Arab Jamahiriya and the Russian Federation supported the amendment and thought that no organizations should be excluded from consultations. The Government member of the Republic of Korea said he could not understand the opposition of the Workers’ group, since Standard A., paragraph , intended to encourage the establishment of welfare boards and therefore consultations with welfare boards would be to the benefit of all. The Government member of Liberia was also surprised by the reaction of the Workers’ group. Many charitable organizations provided services for the benefit of seafarers; they were, alongside the social partners, included in the welfare boards. Since they were involved in providing welfare services, it was important to consult them in the context of Standard A., paragraph . The Worker Vice-Chairperson replied that welfare boards could mean different things in different countries. They differed in their constitutional framework, objectives and intentions. It was, therefore, important that consultations in the context of Standard A., paragraph , be tripartite. He recalled that in preparatory discussions his group had originally asked governments to fund welfare facilities. Governments had, however, opposed, since they did not want to have to collaborate with charitable organizations. In practice, some governments contributed to welfare facilities, as did the International Transport Workers’ Federation (ITF), which used its resources in accordance with its convictions and provided considerable funds. The Government member of Liberia withdrew the amendment. Standard A., paragraphs  and , were adopted without amendment. Standard A. was adopted without amendment. Guidelines B., B.., B.., B.., B.., B.. and B.. were adopted without amendment.

Although as noted in Report I(A), supra note , at Note  (Regulation .):

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

. Each Member shall ensure that shore-based welfare facilities, where they exist, are easily accessible. The Member shall also promote the development of welfare facilities, such as those listed in the Code, in designated ports to provide seafarers on ships that are in its ports with access to adequate welfare facilities and services . The responsibilities of each Member with respect to shore-based facilities, such as welfare, cultural, recreational and information facilities and services, are set out in the Code.

The specific obligations in Standard A. are essentially focused on non-discrimination in access and promoting the development of services in ports. Determination regarding appropriate ports for such services is to be carried out after consultation with the shipowners’ and seafarers’ organizations concerned. These services must be available for the use of all seafarers, irrespective of nationality, race, colour, sex, religion, political opinion, or social origin and irrespective of the flag State of the ship on which they are employed or engaged or work, as noted above. The MLC,  also specifically requires that countries encourage the establishment of welfare boards to review welfare facilities and services regularly to ensure that they are appropriate to the changing needs of seafarers. Guideline B.—Access to shore-based welfare facilities contains six guidelines on the following topics: – – – – – –

Guideline B..—Responsibilities of Members Guideline B..—Welfare facilities and services in ports Guideline B..—Welfare boards Guideline B..—Financing of welfare facilities Guideline B..—Dissemination of information and facilitation measures Guideline B..—Seafarers in a foreign ports

Governments must give due consideration to these guidelines when carrying out their obligations under the MLC, . All are important, however Guideline B.. is increasingly relevant in the context of a concern shared by the ILO, IMO, and industry for fair treatment of seafarers who may be detained in a foreign port because of, for example, an incident involving ship-source pollution.83 Guideline B.. provides:

. The PTMC Drafting Group queried the reference to “welfare taxes” in paragraph  of Guideline B.., and the use of the term “competent authorities” in the plural in paragraphs  and  of Guideline B.. (Appendix A, paragraphs  and ). 83 “Guidelines on fair treatment of seafarers in the event of a maritime accident,” available at http://www.imo.org/Legal/mainframe.asp?topic_id=, were adopted by IMO’s Legal Committee at its st session, – April . The Guidelines, developed by a Joint IMO/ILO Ad Hoc Expert Working Group on the Fair Treatment of Seafarers in the Event of a Maritime Accident, were also adopted by the ILO Governing Body in June .

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. For the protection of seafarers in foreign ports, measures should be taken to facilitate: a) access to consuls of their State of nationality or State of residence; and b) effective cooperation between consuls and the local or national authorities. . Seafarers who are detained in a foreign port should be dealt with promptly under due process of law and with appropriate consular protection. . Whenever a seafarer is detained for any reason in the territory of a Member, the competent authority should, if the seafarer so requests, immediately inform the flag State and the State of nationality of the seafarer. The competent authority should promptly inform the seafarer of the right to make such a request. The State of nationality of the seafarer should promptly notify the seafarer’s next of kin. The competent authority should allow consular officers of these States immediate access to the seafarer and regular visits thereafter so long as the seafarer is detained. . Each Member should take measures, whenever necessary, to ensure the safety of seafarers from aggression and other unlawful acts while ships are in their territorial waters and especially in approaches to ports. . Every effort should be made by those responsible in port and on board a ship to facilitate shore leave for seafarers as soon as possible after a ship’s arrival in port.

The th ILC also adopted the following resolution that focuses on the problem of access to welfare facilities.84 Despite concerns about not imposing financial responsibility on governments, it implies that this should be a government responsibility as opposed to relying on charitable organizations: Resolution concerning seafarers’ welfare The General Conference of the International Labour Organization, Having adopted the Maritime Labour Convention, , Recalling the resolution concerning seafarers’ welfare adopted by the th Session of the Joint Maritime Commission, Mindful that the core mandate of the Organization is to promote decent working and living conditions and that seafarers’ welfare facilities are important in this regard,

84

Selection Committee Report, supra note : . The Seafarer Vice-Chairperson introduced the resolution, as revised jointly by the Shipowners’ and Seafarers’ groups, which provided for the replacement of the word “regretting”, by “recognizing also” in paragraph , as well as the deletion of paragraph ; and the insertion of a new paragraph , to read: “Recognizing the vital role of the voluntary organizations and their expertise in providing welfare facilities”. . The Chairperson of the Government group indicated that the Governments did not express objections to the resolution. The Government member of the United Kingdom insisted on the vital importance of the text, and expressed his support. . The resolution as amended was adopted.

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Considering that, given the global nature of the shipping industry, seafarers need special protection and that the provision and access to seafarers’ welfare facilities is important in this regard, Noting that, because of the structural changes in the industry, seafarers have fewer opportunities to go ashore and, as a consequence, welfare facilities and services for seafarers are needed more than at any time, Recognizing the vital role of the voluntary organizations and their expertise in providing welfare facilities, Noting also that the new security regime and the denial of shore leave mean that seafarers may not be able to take advantage of welfare facilities provided for them in ports, Noting further that the port facilities in certain countries are making excessive charges or imposing unreasonable procedures in order for seafarers to leave the ship and visit welfare facilities provided for them in ports, Recognizing also that many governments rely solely on voluntary or charitable organizations and in many cases transfer their responsibilities to regional/local governmental bodies in order to maintain such welfare facilities and services for seafarers, Requests the Governing Body of the International Labour Office to invite the Director-General to take all necessary measures to strongly encourage member States to ensure that seafarers on ships in their ports are able to secure access to seafarers’ welfare facilities, Requests also that the Director-General propose to the Governing Body convene a tripartite meeting of experts to examine the provision of and difficulties in securing access to seafarers’ welfare facilities.

Regulation .—Social Security The inclusion of requirements for social security protection of seafarers was, as noted above, one of the more challenging areas to be included in the MLC, . Certainly the resulting text, a delicate compromise, is probably the most difficult or ‘slippery’ text to fully understand in terms of appreciating the precise nature of the various State responsibilities. The practical difficulty arises largely because of the globalized workforce in this sector and the disparity in national social security coverage for workers in general, and for this sector in particular. Before looking at the specific elements of the text, it is useful to consider what is meant by ‘social security’ versus the other obligations in Title . Social security has been defined as: The adoption of public measures to ensure basic income security to all in need of protection, in order to relieve want and prevent destitution by restoring up to a certain level income which is lost or reduced by reason of inability to work or to obtain remunerative work due to the occurrence of various contingencies:

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chapter ten sickness, unemployment, old age, employment injury, family responsibilities, maternity, invalidity85 or death of the breadwinner.86

85 ILO, Setting Social Security Standards in a Global Society: An analysis of present state and practice and of future options for global social security standard setting in the International Labour Organization Social Security Policy Briefings, Paper  (Geneva: ILO, ), at p. , footnote , the authors note that:

The term “invalidity” is used here with reference to a person’s inability to engage in any gainful activity where such inability is likely to be permanent, as it is used in ILO social security Conventions. The authors are aware that it is a contingency that is now referred to as “disability” under United Nations human rights Conventions. For purposes of consistency [in reference to the ILO Conventions], however, the term invalidity will be used throughout the document. 86 The ILO has a department specifically concerned with promotion of social security coverage (“SECSOC”) which produces studies such as Setting Social Security Standards, ibid (see: ILO, “Social Security Department,” available at http://www.ilo.org/public/english/protection/secsoc/). The authors of this book derive this definition from international human rights instruments, ILO constitutive documents, and social security conventions and recommendations subsequently adopted by the ILO such as the Universal Declaration of Human Rights (UN General Assembly Res. A (III), , Article ); International Covenant on Economic, Social and Cultural Rights (UN General Assembly Res. A(XXI), , Article ); the Constitution of the International Labour Organisation, ; the Declaration of Philadelphia, ; Income Security Recommendation,  (R); and Social Security (Minimum Standards) Convention,  (No. ). The ILO has adopted more than  conventions since  to address social security as noted in the  study at pages – (references removed):

A review of nearly nine decades of ILO standard-setting activities in the field of social security shows that, historically and conceptually, social security standards can be classified into three different groups or generations of standards, according to the approach of social security that they embodied at the time of their adoption. The first generation of standards corresponds to the instruments adopted from the creation of the ILO to the end of the Second World War. Most of these standards envisage social insurance as the means for their application. They are aimed at establishing compulsory social insurance systems for specific branches and at covering the principal sectors of activity and the main categories of workers. Those standards cover the fields deemed most urgent and suited to international action at the time of their adoption (maternity, employment injury, sickness, etc.). The second generation of standards corresponds to the era of social security. While no ILO Conventions were adopted between  and , these were years of intensive creation in the field of modern social security, with standard-setting activities taking on a more global and broader conception of social security. The new approach consisted in unifying and coordinating the various social protection schemes within a single social security system covering all contingencies and extending social security coverage to all workers. Two important Recommendations, adopted in , set forth this new conception: the Income Security Recommendation,  (No. ), and the Medical Care Recommendation,  (No. ). These Recommendations opened the way for the adoption of the Social Security (Minimum Standards) Convention,  (No. ), which is the landmark Convention in the field of social security. The third generation of standards corresponds to the instruments adopted after Convention No. . Modelled on the latter, they offer a higher level of protection in terms of the population covered and the level of benefits and revise firstgeneration standards. Since the establishment of the ILO, the International Labour Conference has adopted  Conventions and  Recommendations on social security. The first

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The ILO views social security as a basic human right under the major United Nations human rights instruments87 and is aligned with the United Nations initiative to achieve a social protection floor for all.88 The ILO also takes the view that: It is widely recognized today that social security is fundamental to the creation of social cohesion, the furtherance of political inclusion and the development of democracy, and that it is an important tool for the prevention and alleviation of poverty through the enhancement of productivity. In conjunction with a growing economy and active labour market policies, social security constitutes an instrument for sustainable social and economic development.89

Unlike the social protection provided under Regulations . and ., social security under Regulation . refers to benefits or a ‘safety net’ provided under schemes generally operated by a State.90 This can result in significant public expenditures supported by taxation systems and other national contributory scheme requirements. The question of how to provide social security coverage is difficult in an industry where the flag State is the country with international responsibility for social matters on ships flying its flag, but where seafarers usually are on relatively short-term SEAs, working on ships operating under different flags, and are not resident in, or nationals of, the flag State concerned. For countries with international Convention on social security (maternity protection) was adopted at the st Session of the Conference, in , while the most recent one, revising earlier standards on maternity protection, was adopted in . Interestingly although the MLC,  covers social security and broader social protection for a specific sector and introduces a new approach, it does not appear to be regarded by the ILO as a ‘social security convention’. Its adoption in  is not included in this study other than as possible structural approach to updating the social security conventions (at p. ): Another alternative could be the consolidation of the up-to-date ILO social security instruments, namely Recommendations Nos.  and  and Conventions Nos. , , ,  and , into a single new overarching social security Convention, similar to the new Maritime Labour Convention (). Such a Convention could take into account the need for a basic benefit package for everyone and the principle of equivalence between contributions of the insured individual and the amount of benefits. New social security conceptions could also be encompassed while the language of the new consolidated Convention could reflect the societal realities and needs of today. 87

See examples used by the authors cited ibid. See: ILO, “What is the social protection floor?” available at http://www.socialsecurityextension.org/gimi/gess/ShowTheme.do?tid=. 89 Setting Social Security Standards, supra note , at footnote , Resolution and Conclusions concerning social security, International Labour Conference, th Session, . 90 Some of the protection under ‘shipowner’ obligations in Regulation . and the ‘public coverage’ under Regulation . can be provided through a variety of mechanisms, including private insurance or publically-operated contributory schemes. 88

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large fleets it is obviously a sensitive fiscal question. Where either the flag State or the country of a seafarer’s residence does not have social security in place for any workers the problem is compounded. Interestingly one possibility for addressing the ‘gap’ in coverage, which was considered during the development of the Convention, was a proposal that international funds be established to provide such coverage.91 Regulation . and the Code consolidates the Social Security (Seafarers) Convention (Revised),  (No. ) and aspects of the Medical Sickness Insurance (SEA) Convention,  (No. ). As of the PTMC in , Convention No.  had only two ratifications. Subsequently the Philippines ratified it in November , joining Hungary () and Spain (), to bring the total to three ratifications since its adoption nearly  years before the adoption of the MLC, . The Commentary prepared for the PTMC in  explained the differing 91

Final Report, supra note  (emphasis added): . Following these amendments, there was a discussion as to whether social protection should be provided, inter alia, through the employment agreement as stipulated in paragraph (a) of the Office text. . . . However, it suggested that paragraph (a) of the Office text should be replaced by Standard A., paragraph  of the proposal of the French Government (attached in Annex ). The representative of the Government of France explained that in his proposal the employment contract would only specify the applicable social security system while the flag State would have to ensure that the required contributions be paid. The Shipowners’ group rejected the French proposal as it should not be the responsibility of the flag State to ensure that the required contributions were paid. This would fall much more under the responsibility of the country of residence where the seafarer would be insured. The representative of the Government of France further explained that, in the proposal, in case the seafarer was not covered by any social security system, the employer would have to pay the relevant contribution to a scheme which would be selected by the ILO’s JMC. To have established such an international scheme would further avoid seafarers being subject to many different social security systems. The Seafarers’ group and some Government representatives welcomed the French proposal, especially as it would guarantee social security protection to seafarers who otherwise would not be covered. The Seafarers’ group was not against such an international scheme; however, it would prefer more flexibility with regard to such a scheme and saw difficulties for the JMC concerning the establishment of such a scheme. It also referred to collective bargaining as an important component which may not be left out. It suggested amending Standard A., paragraph , of the French Government’s proposal (Annex ) which covers this issue, to read: “In the case where there is no applicable national social security system, the flag State must ensure that seafarers are covered by its own scheme or one nominated by it.” Several Government representatives thought that such an international scheme and its implementation needed further consideration. The representative of ICMA proposed that such a fund could be initiated under the responsibility of the Tripartite Maritime Committee referred to in Article XIII of the new Convention. . The Shipowners’ group rejected the proposal on a safeguard for seafarers who are not covered in their country of residence with the argument that not all seafarers wanted to be covered by social security and prefer to spend their income differently than paying insurance contributions. In reply, the Seafarers’ group confirmed once again the urgent need for social security coverage for all seafarers.

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considerations and difficulties concerning social security protection through national security systems: . Regulation ., and the associated Code provisions, on “social security protection” address social security protection provided through national security systems, are presented only as headings with a purpose statement. Although there was agreement in the High-level Group as to the importance of including social security protection (now dealt with by, inter alia, the Social Security (Seafarers) Convention (Revised),  (No. )) in this new Convention, there was no agreement reached with respect to precise content . . . . In general there seemed to be some agreement with the idea that it is intended to complement rather than duplicate the social security protection that is provided through shipowners’ liability, primarily under Regulation ., for shorter-term protection. The content of Regulation . and associated Code provisions has been a matter of extensive debate. The debate in the High-level Group has related to developing an acceptable text to address the very complex problem of seafarers working on foreign-flag ships, who may not be eligible for protection under the social security system of the flag State and whose country of residence or nationality may also not provide social security protection. The overall concern is to avoid the situation where, because of reasons relating to either national laws that do not extend coverage to non-residents or to non-nationals or the lack of any system in the country of residence or nationality, seafarers are left without any protection at all for themselves or their dependants. This gap in coverage for some seafarers raises concerns about equality and decent work and also undermines one of the objectives of this Convention—that is, seeking to ensure that seafarers’ employment conditions present, as much as possible, a “level playing field”. An additional broader problem in this area relates to the differing range of coverage between national social security systems, where they do exist.92

The provisions in the MLC,  significantly adjust the obligations under Convention No. , which appear to impose flag State obligations and expressly provide for “protection of foreign or migrant seafarers”.93 The provisions in Convention No.  are a complex list of ‘rules’ including conflict of laws rules and various specific exceptions relating to minimum residency requirements for specific ‘non-contributory’ benefits. These rules are predicated on the existence of legislation covering seafarers and principles of equality of treatment. Article  of Convention No.  sets out the key principles concerning social security protection: With a view to avoiding conflicts of laws and the undesirable consequences that might ensue for those concerned either through lack of protection or as a result of undue plurality of contributions or other liabilities or of benefits, the legislation 92

Commentary to the Recommended Draft, supra note , Comment  (on Regulation .). Social Security (Seafarers) Convention (Revised),  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm, Part IV, Arts –.

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chapter ten applicable in respect of seafarers shall be determined by the Members concerned in accordance with the following rules: (a) seafarers shall be subject to the legislation of one Member only; (b) in principle this legislation shall be – the legislation of the Member whose flag the ship is flying, or – the legislation of the Member in whose territory the seafarer is resident; (c) notwithstanding the rules set forth in the preceding subparagraphs, Members concerned may determine, by mutual agreement, other rules concerning the legislation applicable to seafarers, in the interest of the person

The lack of ratification of this convention is suggestive of the difficulties the Convention posed for most governments.94 Regulation . and the Code reflect the core principles95 of Convention No. , that is, efforts, including cooperation and bilateral arrange94 See Chapter , pp. – for an extract of the debate from various countries perspectives in connection with a proposal for flag State inspection responsibilities. 95 Although the draft text prepared by the Office and considered by the fourth HLTWG in Nantes was substantially revised by an tripartite expert working group in April , the connection with these principles and the approach adopted in C was even clearer in the earlier draft text. See: Consolidated Maritime Labour Convention (Preliminary Second Draft), HLTWG (Fourth Meeting), Nantes, , ILO Doc. No. TWGMLS//, available at http://www.ilo .org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf:

Regulation .—Social protection Purpose: To ensure that measures are taken with a view to providing seafarers with access to social protection . Members shall ensure that seafarers working on ships that fly their flag and, where applicable, their dependents, are entitled to participate in and benefit from a social protection system schemes as provided for in the Code. . Each Member undertakes to take steps, according to its national circumstances, individually and through international cooperation, to achieve progressively comprehensive social protection for seafarers. Standard A.—Social protection . Members shall require that the social protection referred to in paragraph  of Regulation . be specified in the seafarer’s employment agreement. . Social protection for seafarers, and where applicable their dependants, shall be provided through: (a) the relevant seafarers’ employment agreement or applicable collective bargaining agreement; or (b) the legislation of the Member in whose territory the seafarer is resident; or (c) the legislation of the Member whose flag the ship is flying; or (d) a combination of the measures referred to above. . With a view to avoiding conflicts of laws the legislation applicable in respect of seafarers who are or have been subject to the legislation of one or more Members shall be determined by the Members concerned in accordance with the following rules: (a) seafarers shall, in principle, be subject to the legislation of one Member only;

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ments,96 must be made by governments to ensure that all seafarers are protected. However the th ILC, in adopting the MLC, , clearly placed primary responsibility under Regulation . and the Code on the country where the seafarer is ‘ordinarily resident’. Flag States are encouraged to protect nonresident seafarers where the seafarer’s country of residence does not provide social security protection. This decision regarding placing the obligation on the country of residence is clearly reinforced under Title , Regulation .— Labour-supplying responsibilities which provides (emphasis added): Purpose: To ensure that each Member implements its responsibilities under this Convention as pertaining to seafarer recruitment and placement and the social protection of its seafarers . Without prejudice to the principle of each Member’s responsibility for the working and living conditions of seafarers on ships that fly its flag, the Member also has a responsibility to ensure the implementation of the requirements of this Convention regarding the recruitment and placement of seafarers as well as the social security protection of seafarers that are its nationals or are resident or are otherwise domiciled in its territory, to the extent that such responsibility is provided for in this Convention.

This was a very difficult position for the seafarers to accept. Their view during the development of the MLC, 97 was that this should be a flag State (b) the Members concerned may, however, determine, by mutual agreement, other rules concerning the legislation applicable to seafarers, in the interest of the persons concerned; . . .. (C.A+A). 96

Convention No. , supra note , Art. : Members may derogate from the provisions of Articles  to  and Article  by making special arrangements in the framework of bilateral or multilateral instruments concluded amongst two or more of them, on condition that these do not affect the rights and obligations of other Members and provide for the protection of foreign or migrant seafarers in matters of social security under provisions which, in the aggregate, are at least as favourable as those required under these Articles. 97 In contrast, the shipowners would have preferred not to include social security in the MLC, . The differing views are captured in the following extract from the fourth HLTWG final meeting report, supra note  (emphasis added). After this meeting a tripartite expert group was established to meet separately to develop a solution. . The Shipowner spokesperson said that they would have preferred social security protection not to be included in this Convention at all. Although they were in favour of providing social protection to all seafarers and that shipowners would contribute to social protection schemes, they were reluctant to include complex provisions on social security in the Convention as they would be an obstacle to ratification. . . . . The Working Party further discussed the responsibilities which should be assigned to the flag State, the country of residence and shipowners by the new Convention with regards to short-term and long-term benefits. The Shipowner spokesperson expressed the view that the country of residence of the seafarer should be responsible for the provision of long-term

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responsibility.98 They argued that ships should not merely be considered “floating factories” with the same type of system applied as for shore-based workers.99 Instead, they emphasized the importance of social protection for seafarers “irrespective of their nationality or place of residence” and urged the inclusion of social security protection in the Convention that is not less favourable than for shore-based workers.100 The provisions that are currently adopted, particularly the regulations, which are less likely to be amended, are ambiguous in their wording, perhaps deliberately so, largely to allow for future developments. Much of the debate revolved around providing a clear direction, now reflected in the Standard, as to which State has responsibility, while at the same time not excluding the possibility that other States may also provide coverage and have some level of obligation. There was also a need to clarify the relationship between this longer-term State-level obligation and the short-term protection to be provided by shipowners, mainly under Regulations . and .. The interaction of the obligations in Regulations . and . with Regulation . and the Code are described as complemen-

social protection and that it would be unacceptable to fix social security in the employment agreement. The Seafarer spokesperson regarded social protection as the primary responsibility of the flag State and the shipowners. . . . . The Shipowners’ group stated that, since there seemed to be support for the inclusion of long-term social security in the Convention, it felt that the discussion of the Working Party should be on the basis of their proposed text. It reiterated its position that the responsibility for providing long-term social protection benefits should rest with the country of residence. . The Seafarers’ group rejected the Shipowners’ text and the proposal to use that text as the basis of discussions. They pointed out that the primary responsibility for the supervision of such protection lies with the flag State, but saw the provision of social security as a shared responsibility between the flag State, the shipowners and the country of residence. With regard to the responsibility of short-term protection, it felt that the responsibility lay with the shipowners. . All the Government representatives were of the view that long term social security should be provided by the country of residence of seafarers. However, many Government representatives suggested that the flag States should be responsible for requiring that all seafarers be covered by social security, especially short-term issues covered in Regulations . and ., controlling the application of national law on vessels and ensuring that the appropriate contributions are paid. Some drew attention to the fact that flag States should ensure that seafarers whose country of residence did not have a system were also covered, with one Government representative suggesting that there should be an international system to cover those situations. Most Government representatives did not express clear views on the branches of social security which should be available to seafarers as a minimum . . .. 98 While in principle this view can be understood in term of potential enforcement possibilities, many of the larger flag States are less developed economies where social security systems do not exist for any worker or are relatively undeveloped. 99 Final Report, supra note , para. . 100 Ibid., para. .

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tary101 elements in the ‘net’ of provisions aimed at achieving comprehensive social protection for seafarers under the MLC, . This solution, encapsulated in Regulation . and the Code, was the result of a tripartite meeting of experts in April  after the failure to reach agreement at the fourth HLTWG meeting. A report outlining the intention behind the proposed provisions that became Regulation . and the Code was submitted to the PTMC. Even with these expert recommendations, the provisions were extensively debated by the PTMC,102 including the wording of one provision in the Guidelines that was not resolved until the Intersessional Meeting in . In addition, as discussed in Chapters  and , a problem arose regarding the extent to which Regulation . and the Code consolidates Convention No.  on pensions.103 Ultimately the text proposed by the expert Working Group, with a few amendments by the PTMC, was adopted by the th ILC with no amendments proposed.104 However, the th ILC did adopt, again after some debate,105 the Resolution concerning social security. The Resolution provided (emphasis added): 101 102 103 104

See in particular: Standard A., paragraphs  and . Committee No.  Report, supra note , paras –. See above notes  and . Committee of the Whole Report, supra note , paras –. Committee of the Whole Report, ibid.:

. Regulation . was adopted without amendment. . Standard A. was adopted without amendment. . Guideline B. was adopted without amendment. 105

Selection Committee Report, supra note : Resolution concerning social security . The Chairperson indicated to the Committee that the revised text of the resolution submitted by the Shipowners’ and Seafarers’ groups had emerged from an informal discussion with Government members but there had not been tripartite consensus on every point. . The Vice-Chairperson of the Government group stated that his colleagues in the Government group would be able to support the resolution, if the sponsors of the revised text could accept the deletion of the phrase “irrespective of their country of residence” in the first operative paragraph, which they felt went beyond the understanding reached in the Committee of the Whole. . The Government member of Denmark supported the revised text. The issue of social security, however, had already been extensively debated in the Committee of the Whole, where a delicate balance had been achieved, and his delegation was concerned that the seventh preambular paragraph did not reflect that balance. It could therefore support the resolution only if, in addition to the deletion of the phrase referred to, that paragraph should also be modified to conform to the wording of paragraph  of Regulation .. . The Seafarer Vice-Chairperson said that in the area of social security protection a great deal remained to be done and many Governments seemed to feel that the problem was insurmountable. However, the new consolidated maritime Convention



chapter ten The General Conference of the International Labour Organization, Having adopted the Maritime Labour Convention, , Noting the Declaration of Philadelphia of  concerning the aims and purposes of the International Labour Organization, which include the extension of social security measures to provide a basic income to all in need of such protection and comprehensive medical care, Noting also that the principal aim of the Organization is the achievement of decent work for all and that social protection is one of the four pillars of the ILO’s Decent Work Agenda, Noting further that the provision of social protection and the other pillars of decent work are mutually reinforcing in addressing poverty reduction, which is one of the principal aims of the Millennium Development Goals, Being aware of the considerable work undertaken by the Organization to enhance the coverage and effectiveness of social protection for all, Noting that the Maritime Labour Convention, , requires that member States provide seafarers with social security protection no less favourable than that enjoyed by shoreworkers resident in their territory,

.

. .

.

.

should be shown as capable of accommodating progressive developments. The phrase “irrespective of their country of residence” and the call for an inventory on the provision of social protection and social security for seafarers reflected precisely the desire of the social partners to look to future opportunities to promote the effective protection for seafarers everywhere. In response to the Government member of Denmark, he emphasized that the wording of the seventh preambular paragraph was taken word for word from paragraph  of Standard A.. He wished to know what the position was of the Government members present in the Committee, and if they were prepared to back the resolution if the phrase in question was deleted from the first operative paragraph. The spokesperson for the Shipowners’ group said that his group supported the new text as presented. He did not want to see the promotion of social protection curtailed because of a seafarer’s country of residence. He too would like the Government members present to clarify their position. Questioned by the Chairperson, the Government members present indicated their readiness to support the resolution provided the phrase “irrespective of their country of residence” was deleted. The Seafarer Vice-Chairperson said that, on that understanding, his group was prepared to accept the deletion of the phrase. The Shipowner Vice-Chairperson said that his group likewise accepted the deletion of the phrase. The representative of the Secretary-General observed that in her view the seventh preambular paragraph did not change the sense of the proposed consolidated maritime Convention and that the concerns of the Government member of Denmark were taken into account. The Government member of Denmark wished it to be placed on record that he was not in favour of the resolution, because he believed that the seventh preambular paragraph did not reflect the content of the Convention as adopted in the Committee of the Whole. With that reservation, the revised text of the resolution was adopted as amended.

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Recalling that the Social Security (Minimum Standards) Convention,  (No. ), establishes the framework for the promotion of social protection by the Organization, Considering that, although Article  of ILO Convention No.  expressly excludes seafarers and sea fishers from the application of that Convention, the ILO should not exclude these sectors from the ongoing work of the Organization to secure effective social protection for all, Considering also that, given the global nature of the shipping industry, seafarers need special protection; Invites the Director-General of the International Labour Office to promote the provision of effective social protection and social security for seafarers, Suggests that such work could be facilitated by an inventory on the provision of social protection and social security for seafarers, Further invites the Director-General to propose to the Governing Body that such a document be prepared by the Office and discussed at a future tripartite meeting of experts.

It is important to understand the intentions that inform the approach in Regulation . and the Code. Although there was still extensive debate at the PTMC, the text proposed in the report106 from the tripartite expert Working Group that met in April , was for the most part accepted. Since there was no discussion of this text at the th ILC, the report of the Working Group and the comments during the debate at the PTMC and the Intersessional Meeting in  are the most reliable source of information as to the drafters’ intentions with respect to some of the more difficult wording in the various provisions. The following lengthy extract is from the report of the Working Group (emphasis added and paragraph references are shown with corresponding re-numbering, where applicable, in the final version): . The provisions are under the proposed heading “Social security”, recommended by the experts, who pointed out that the term “social protection” was normally used in a much wider sense. . . . The terms used in the Convention would not of course affect the terminology used in ratifying countries. . The proposed Regulation clarifies that the obligations of ratifying Members relate to the matters or branches identified in the Code with respect to seafarers and their dependants that are subject to their social security legislation. It also reminds Members of the overriding obligation under the ILO Constitution that the adoption and the ratification of international labour Conventions do not affect other provisions ensuring more favourable conditions for workers (paragraph ). Paragraph  would look forward to the progressive achievement of comprehensive social security protection for seafarers (and, to the extent provided for in

106

Commentary to the Recommended Draft, supra note , Addendum, pp. –.



.

.

.

.

chapter ten national laws, their dependants), who would (paragraph ) in any event be entitled to protection not less favourable than shoreworkers. Despite the history of some difficulty with respect to this topic a high degree of agreement was achieved among the experts consulted. . . . the branches, identified in Standard A., paragraph , are the nine branches that form the subject of the Social Security (Minimum Standards) Convention,  (No. ), in so far as they complement the shorter term protection offered by shipowners that is already provided for under Regulations . and . of the maritime labour Convention (as well as other provisions of the Convention, such as those relating to the seafarers’ employment agreement, repatriation and the shipwreck indemnity). Thus, the Title  protection would begin with the short-term protection, which is provided by shipowners and regulated by flag States, relating to medical care and sick pay. The protection would continue where applicable into the medium term in accordance with provisions such as paragraph  of Standard A. on sick pay. This basic protection would include responsibility for occupational illness and injury in the short term, and also in the long term in the sense that the shipowner is to obtain insurance for death or long-term liability in accordance with paragraph (b) of Standard A.. Although this latter paragraph has been placed inside square [ ] brackets as its precise terms are controversial, its general substance was considered an essential part of the protection to be provided under the Convention. At the time of ratification, Members would be required to provide protection in at least three of the branches (paragraph ). This is drawn from the requirements of Convention No.  and should not be an onerous requirement, particularly as paragraph  of Guideline B. recommends that those branches should be medical care, sickness benefit and employment injury benefit, already provided for by shipowners to the extent indicated above. Paragraph  of Standard A. refers to the obligation of the State in which the seafarer is ordinarily resident to take steps to provide “complementary protection” (to that already to be provided by shipowners) in the branches selected. While it must be at least equivalent to the protection enjoyed by shoreworkers in the country concerned, it may be provided through various mechanisms such as international agreements or contribution-based systems. In the latter case, the flag State should be responsible for ensuring that the contributions are paid (paragraph  of Guideline B.). Paragraph  [now ] of the Standard refers to the obligations of the flag State with respect to ensuring matters under Regulations . and . and also to the responsibilities inherent in its general obligations under international law, which would include in particular the obligation to exercise jurisdiction and control in social matters . . .. The Seafarer experts at the meeting . . . considered that this paragraph did not adequately cover the responsibilities of the flag State with respect to social security. One Government expert also considered that the paragraph could be developed. This paragraph in the Standard is complemented by paragraph  of Guideline B., which was proposed by the Seafarer experts but did not obtain agreement. The proposed Guideline recommends that each flag State “should seek to take steps . . . according to its national circumstances and as far as practicable” to ensure that all seafarers serving on its ships are able to benefit from the same branches of social security protection as seafarers resident and insured on its territory.

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

. Paragraph  [now ] of the Standard addresses the important question of how Members’ longer term (not ., .) social security obligations towards seafarers are to be implemented in the absence of protection from the entities normally responsible for providing it. For example, the State in which the seafarer is ordinarily resident may not have ratified the Convention or it may not be able to provide protection in the branch concerned. This is a serious gap in the social security protection coverage for seafarers and can undermine the idea of a level playing field. In such cases, the country of residence and/or the flag State, as the case may be, must “give consideration” to the various ways in which comparable benefits will be provided in accordance with national law and practice. Methods for providing comparable benefits are suggested in paragraph  of Guideline B.. This provision means that Members should seriously consider ways of providing benefits that are comparable to those that are missing and to strive to provide such benefits to the extent that this is feasible and in accordance with their national law and practice. . Considerable flexibility is also given to the means by which Members will implement their social security obligations, in general. In particular, paragraph  [now ] of the Standard would allow them to take account of collective bargaining agreements and even private schemes. To the extent that their obligations are satisfied by appropriate agreements or schemes, there would be no requirement for legislation or other state measures. . Paragraph  [now ] of the Standard deals with the question (covered by Convention No. , for example) of the “seamless” maintenance of social security rights of seafarers, who will often serve under many shipowners and under many different flags in the course of their career. . Paragraph  [now ] of the Standard, on fair and effective dispute settlement procedures, is complemented by paragraphs  and  of Guideline B., which emphasize that the procedures developed by each Member (with respect to the social security protection for which it is responsible) should be able to deal with all disputes concerning the coverage concerned, irrespective of the mechanism for providing the coverage (private or public). . Paragraphs  and  [now  and ] of the Standard are usual provisions for international labour Conventions. . The question of conflict of laws is dealt with in paragraph  of Guideline B., which requires Members whose legislation may apply, to cooperate in determining which legislation should apply, with the more favourable type and level of protection as well as seafarer preference accorded a primary role in the choice of law. . Paragraph  of Guideline B. addresses the treatment of the social security aspects in the seafarers’ employment agreement. It would therefore need to be coordinated with the provisions of Title  of the recommended draft Convention, in connection with paragraph (h) of Standard A., which relates to the same subject . . .. Paragraph  represents the greatest consensus that could be reached on an initial proposal by the Seafarer experts, which the Shipowner experts considered to be administratively burdensome.

One important point to note, again largely because of the allocation of State responsibilities, is that this is not a topic that must be certified as well as inspected by a flag State. However some elements, namely, Standard A., paragraph , and Guidelines ., paragraphs  and , may be subject indirectly



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to certification through the inspection and certification of the SEA under Regulation . and specifically Standard A., paragraph (h).107 From the perspective of ascertaining applicable flag State ship inspection obligations, the Guidelines for Flag State Inspections provide guidance at the more practical, shipboard level and describe the obligations.108 Regulation .—Social security Standard A.; Guideline B. * Inspected Basic requirements – Seafarers who are subject to the flag State’s social security legislation, and, to the extent provided for in its national law, their dependants, are entitled to benefit from social security protection no less favourable than that enjoyed by shore workers. 107

As noted, albeit perhaps not entirely correctly, at the PTMC, Committee No.  Report, supra note , . In response to concerns as to how flag States would ascertain seafarers’ social security coverage, the Seafarers’ group pointed to Standard A. (Seafarers’ employment agreements), paragraph (h), which requires member States to ensure that a reference to social security benefits provided by the shipowner is included in all seafarers’ employment agreements.

108

Guidelines for Flag State Inspections, supra note , pp. –: Note: The MLC, , requires that all seafarers be provided with social protection. This covers a number of complementary requirements including prevention-based approaches in connection with occupational safety and health, medical examinations, hours of work and rest and catering. Social protection is mainly addressed in the Title  with respect to Medical care (Regulation .); Shipowner liability (Regulation .); and Social security (Regulation .). Regulation . and the related Standard A. reflect an approach that recognizes the wide range of national systems and schemes and differing areas of coverage with respect to the provision of social security. Under Standard A., paragraph , a ratifying country is required to “take steps according to its national circumstances to provide the complementary social security protection referred to in paragraph  of this Standard to all seafarers ordinarily resident in its territory”. The resulting protection must be no less favourable than that enjoyed by shoreworkers resident in its territory. The main responsibility of flag States is to ensure that the shipowners’ social security obligations are respected for seafarers on their ships, particularly those set out in Regulations . and . (see Standard A., paragraph ). A more general duty, referred to in Standard A., paragraph , and Guideline B., paragraph , is also applicable to flag States. ILO member States are to give consideration to ways in which comparable benefits could be provided to seafarers who do not have adequate social security coverage and to possibly themselves arrange for the needed protection to be provided. This responsibility reflects the fact that all States have an important role in promoting the protection of all seafarers and in cooperating to help ensure such protection. In this way flag States can make an important contribution to the achievement of adequate social security protection for seafarers worldwide. In the context of flag State inspection of ships the main concern lies with confirming the complementary protection to be provided by shipowners and stated in the SEA (Standard A., paragraph (h)).

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

How to check the basic requirements – Check for evidence that, for seafarers covered by the national social security system, the appropriate contributions are being made if it is a contributory system. – Check the SEA to confirm the protection to be provided by the shipowner. – Interview, in private, a representative number of seafarers to confirm that mandatory contributions, if any, are made. Examples of deficiencies – No information on protection in the SEA. – Mandatory contributions are not being made.

With respect to Regulation . the reason for the use of the term ‘social security’ as the heading for this regulation and Code was, as set out above, the advice provided by a working group of social security experts. Interestingly, the purpose clause, which is the most tentative in its wording, still uses the wider ‘social protection’ terminology. The purpose of Regulation . and the Code is to “[t]o ensure that measures are taken with a view to providing seafarers with access to social protection”. Perhaps one of the most difficult provisions to understand in Regulation . is paragraph . It provides: . Each Member shall ensure that all seafarers and, to the extent provided for in its national law, their dependants have access to social security protection in accordance with the Code without prejudice however to any more favourable conditions referred to in paragraph  of Article  of the Constitution.

This paragraph appears to clearly establish an obligation on all ratifying countries to provide protection to “all seafarers” and, to a more limited extent (under national law), their dependents. The key to understanding this obligation lies in the qualifying phrase “in accordance with the Code”. Against the backdrop of competing concerns during the negotiation of the MLC, , this must be understood as indicating a general level of responsibility. However the specific nature of that responsibility is set out in the Code, where responsibilities in relation to flag State and the State of residency are allocated. The more qualified nature of this obligation is also indicated in what might be seen as somewhat circular wording—at least vis-à-vis the question of the parameters of State responsibility—of paragraph , Regulation . (emphasis added): . Each Member shall ensure that seafarers who are subject to its social security legislation, and, to the extent provided for in its national law, their dependants, are entitled to benefit from social security protection no less favourable than that enjoyed by shoreworkers.

Paragraph  also indicates the proposed level for the coverage, which like the protection under Regulation ., paragraph , is based on coverage comparable

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(no less favourable) to the coverage available to shoreworkers in the country concerned. As mentioned above, the provisions in Regulation . were the subject of some debate at the PTMC, but only with respect to the reference to the ILO Constitution.109 However, in a later discussion, there was an explanation of the phrase ‘according to its national circumstances’ found in both the paragraph  of the Regulation and Standard A., paragraph : . . . . proposed a further subamendment to paragraph  [of Standard A.] of the recommended draft text, to include the words “in accordance with their national circumstances”, to bring it in line with the wording of paragraph . . In response to a request by the Seafarers’ group for clarification of the implications of the addition of this phrase, the representative of the Secretary-General stated that this wording was placed in instruments to take into account situations of countries at different levels of development.

109

Committee No.  Report, supra note  (emphasis added): Paragraph  . The Government member of Sweden submitted a proposal that in Regulation ., paragraph , the words “without prejudice however to any more favourable conditions referred to in paragraph  of Article  of the Constitution of the International Labour Organization” should be deleted. The reference to Article  at this point was superfluous since it was already referred to in the Preamble to the Convention. . The representative of the Secretary-General referred the Committee to paragraph  of the Addendum to the Commentary on the recommended draft of the maritime labour Convention concerning Regulation .: Social security, which reads in part that: The proposed Regulation clarifies that the obligations of ratifying Members relate to the matters or branches identified in the Code with respect to seafarers and their dependants that are subject to their social security legislation. It also reminds Members of the overriding obligation under the ILO Constitution that the adoption and the ratification of international labour Conventions do not affect other provisions ensuring more favourable conditions for workers . . . . She recalled that one of the major concerns voiced by the Seafarers’ group during the April  Meeting of Experts was that, while they agreed with the shift in the social security provisions towards a focus on the State of residence, they wanted to ensure that those seafarers already enjoying higher levels of protection would not be disadvantaged by the adoption of the Convention. It was also felt that, while it might represent inelegant drafting, the inclusion of a reference to the ILO Constitution would be reassuring to ordinary seafarers and heighten their awareness of their rights. . Both the Shipowners’ and Seafarers’ groups supported the retention of the text for the reasons outlined by the representative of the Secretary-General. . The Chairperson noted the absence of strong support from governments for the proposal submitted by the Government member of Sweden.

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

In considering the nature of the obligation under paragraph  of Regulation . the each of its elements needs to be carefully considered, in light of the provisions in the Code. Each Member undertakes to take steps according to its national circumstances individually and through international cooperation to achieve progressively comprehensive social security protection for seafarers.

The ultimate aim of Regulation . is for “comprehensive social security protection” to be provided, in the sense of full social security protection to cover all risks in all nine branches referred to in Standard A., for all seafarers. In particular, each ratifying State has an obligation to provide this protection to seafarers who are ordinarily resident in its territory (Standard A., paragraph ). The ratifying State is also given a certain responsibility with respect to seafarers who are not covered by its national system (as they are not ordinarily resident) but are working on ships that fly its flag, to the extent that they are not adequately covered by the national schemes of the country in which they are ordinarily resident or nationals (see Standard A., paragraphs , , and , and Guideline B., paragraph ). The obligation on each country is not to provide such comprehensive coverage outright, but rather to progress towards it: “to take steps . . . to achieve progressively” comprehensive social security protection. While this undertaking is a firm international obligation, the pace at which the Member must show progress towards the ultimate goal is set “according to its national circumstances” and having regard also to the possibilities for progressing “through international cooperation”. Regarding enforcement of this seemingly soft obligation, it is important to note the information that is to be provided to the ILO supervisory bodies in the Article  report: Please indicate any steps taken or plans being made or discussed in your country to improve the benefits currently provided to seafarers or to extend social security protection for seafarers to branches not covered at present. (Regulation ., paragraph ; Standard A., paragraph )110

It is possible that the ILO bodies supervising the application of ratified conventions could ask a country for an explanation if it was progressing more slowly than other countries with similar national circumstances, especially where appropriate bilateral or multilateral arrangements in the field of social security were available to it. In addition, these provisions establish a floor or minimum 110

Article  Report, supra note , p. . See also discussion in Chapter .

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starting point from which each Member is to make progress towards comprehensive social security protection. This minimum must not be less favourable than any of the following three points: . The protection already being provided by the Member at the time of ratification (see paragraph  of Regulation .). . Protection ‘according to its national circumstances’ in at least three of the nine branches for all seafarers ordinarily resident in the Member’s territory (Standard A., paragraphs  and ; see also Guideline B., paragraph ). . The protection enjoyed by shore workers resident in the Member’s territory (Regulation ., paragraph , and Standard A., paragraph ) in the branches just referred to.

Thus the ultimate aim of Regulation . is for comprehensive social security protection to be provided, in the sense of full social security protection to cover all risks in all nine branches of social security, for all seafarers. Although this discussion has referred to a number of specific points in Standard A. and Guideline B., there are a few points of difficulty or interest to note. First, Standard A., paragraphs  and  together require that at least three of the following nine branches of social security protection are to be provided at the time of ratification. The nine branches are as follows: – – – – – – – – –

medical care sickness benefit unemployment benefit old-age benefit employment injury benefit family benefit maternity benefit invalidity benefit survivors’ benefit

Guideline B., paragraph , recommends that the three branches should at least include medical care, sickness benefit, and employment injury benefit. This list, with its reference to medical and sickness benefits, could and did provide some confusion with respect to the relationship between these obligations and the requirements under Regulation . and the related allocation of responsibilities between the flag State (for implementation regarding shipowners’ liability) and the States in which a seafarer is ordinarily resident.111 This

111

At the PTMC there was a lengthy debate about Standard A., paragraphs  and , largely because, despite the recommended text, several governments, including a number that had been involved in the expert Working Group meeting, proposed different versions of paragraph  to better clarify the allocation of responsibilities. Much of the discussion was on the relative merits of these proposed texts which were, ultimately, rejected. The below extract is illustrative of the

title : health protection, medical care, and welfare



difficulty arises from the potentially different ways in which coverage is provided on some matters. Regulation . notionally provides what could be called ‘private’ responsibility, while Regulation . provides ‘public’ responsibility. However, in some countries, coverage is provided by contributory systems problem and also the difficulties relative to Regualtion... See: Committee No.  Report, supra note  (emphasis added): . The Government member of Denmark suggested that a compromise between the proposed amendment and the recommended draft was possible and proposed a subamendment which would retain the proposed amended text of paragraph  and include modified versions of paragraphs  and  of the recommended draft. The text would then read as follows: . The branches to be considered with a view to achieving progressively comprehensive social security protection under Regulation . are medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefits, family benefits, maternity benefits, invalidity benefit, survivors’ benefit. The corresponding benefits are: (a) Medical care relevant to the seafarers’ duties, sickness benefit, disability benefits and survivors’ benefits due to an employment injury, as far as they complement, extend or replace the protection provided for under Regulations ., on medical care, and ., on shipowners’ liability, and under other Titles of this Convention; (b) Medical care in all other cases, unemployment benefit, old-age benefit, family benefits, maternity benefits, invalidity benefit and survivors’ benefit. (Paragraph  of the Office text) Members shall take steps according to their national circumstances to provide the social security protection referred to in paragraph (b) above to all seafarers ordinarily resident in their territory. This responsibility could be satisfied through appropriate bilateral or multilateral agreements or contribution-based systems, for example, the resulting protection shall not be less favourable than that enjoyed by shoreworkers resident in their territory. (Paragraph  of the Office text) The responsibilities of Members with respect to seafarers on ships that fly their flag shall include those provided for by Regulations . and . and the complementary benefits under (a) above, [as well as those that are inherent in their general obligations under international law.] . The Government member of Japan pointed out that the April  Meeting of Experts had reached a considerable degree of consensus on the text, as reflected in the recommended draft, and had concluded that long-term benefits should be the responsibility of States of residence. Paragraph (a) of the proposed amendment, however, allocates long-term benefits to flag States. He cautioned against an amendment that might shift this balance of responsibilities and was supported by the Government member of the Bahamas, who opposed the proposed subamendment, and the Government member of the United Kingdom. . The Government member of Denmark agreed that the Meeting of Experts had allocated responsibility for the provision of long-term benefits to States of residence, but argued that sickness benefit had not been considered a long-term benefit. The countries sponsoring the proposed amendment did not, in any case, consider a separation of benefits into long- and short-term to be useful. They preferred a division between those linked to shipowners’ liability, for which the flag State should be responsible, and those which should be the responsibility of the State of residence, such as family benefits. . An ILO social security expert clarified that long-term sickness benefit is referred to as

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involving employer and/or worker contributions through all periods. The overall concern is that, irrespective of the means for delivery of coverage by the country in which the seafarer is ordinarily resident, the minimum protections are required in both the short and long term. Paragraphs  and  refer to the

.

. .

.

.

.

.

invalidity benefit in ILO terminology, and included among the nine branches of social security covered by the Social Security (Minimum Standards) Convention,  (No. ). “Disability benefit” was not one of the nine branches, although it was included among the long-term benefits identified by the Convention as arising out of employment-related injuries. The Government member of Norway suggested that this explanation implied that the use of the term “sickness benefit” would allow for the kind of flexibility called on by some delegates; while the Government member of Japan questioned whether, given that the ILO classified disability benefit as a long-term liability, flag States would be prepared to assume such a responsibility. The Shipowner Vice-Chairperson suggested that if national laws contain definitions which differed from those of the ILO, the concerns of Governments over the terminology of the Convention text were valid In response to a request from the Government member of Denmark for further clarification concerning the branches covered by Convention No.  and, in particular, the branch of employment injury benefit, an ILO social security expert of the Office stated that Convention No.  covers and defines the nine branches of social security. One of these nine branches is the branch of employment injury benefit, which is defined in Article  of Convention No. . This branch covers four risks, all of them due to an accident or an occupational disease resulting from employment: the first is a morbid condition and corresponds to medical care benefits; the second is incapacity for work, which is the short term sickness benefit; the third is long term disability benefit; and the fourth is survivors’ benefit. These benefits correspond to the benefits listed in paragraph (a) of the proposed amendment. In addition, the proposed amendment covers in paragraph (a) general sickness benefit as under the seafarers’ employment contract, also a general sickness is a sickness resulting from employment. The other branches of Convention No.  that do not result from employment, are covered by paragraph (b) of the proposed amendment. The Government member of the United Kingdom suggested that the confusion of Committee members related to a misunderstanding of the provisions complementing shipowners’ liabilities. This was not intended to be open-ended but be on the basis of contributory insurance; the reason for the amendment was to ensure benefits were provided solely to those who qualified under the principle of insured persons. However, as some member States might provide complementary insurance benefits to all seafarers rather than only its residents, it was necessary to find a formulation that recognized these different situations. The Seafarers’ group asked for confirmation from the Government member of the United Kingdom that the implications of the statement was that based on their understanding of the proposed amendment, flag state responsibilities, and only in respect to persons insured and resident in the flag State. The Government member of the United Kingdom confirmed that the understanding of the Seafarers was correct. The Government member of the Netherlands stated that the flag State was to provide benefits to complement those accruing under shipowners’ liability by means of national legislation. Paragraph (a) of the proposed amendment was intended to cover all seafarers under the flag State, irrespective of the seafarers’ place of residence, whereas paragraph (b) linked to State of residence. The representative of the Secretary-General explained that the recommended draft of the Consolidated Maritime Labour Convention had sought to find language to reflect all national

title : health protection, medical care, and welfare



relationship between the concept of the form of liability/coverage as ‘complementing’, or complementary,112 with the national coverage for seafarers ordinarily resident in a country intended to complement the protection provided for under Regulations ., on medical care, and ., on shipowners’ liability, and under other Titles of the MLC, .

circumstances. It had been formulated with the aim of ensuring that it would be relevant to all systems. It was clear that governments were not prepared to establish a special social security regime for seafarers due to the nature of social security systems. The Office text was built on the following principles: (i) seafarers should benefit from at least three branches of social security; (ii) flag States have certain responsibilities; and (iii) responsibility for the major components of social security should be shifted to the State of residence. Acknowledging that paragraph  of Standard A. might not be as clear as the Members might wish with regard to short and long-term benefits, she stated that it did represent a delicate balance. . The Government member of France, supported by the Government member of Japan, proposed that the Committee adopt the recommended draft text, since there did not seem to be a consensus on the proposed amendment and it did not seem to be clarifying the issues. . The Government member of Denmark, on behalf of the sponsors of the proposed amendment, submitted that they still considered the amendment to be the most appropriate approach to clarifying the issue of respective responsibilities. However, they agreed to withdraw the amendment, on the understanding that they maintained their concerns regarding the Office text. They asked the Committee members to reflect on those concerns, since they would likely be raised again during the subsequent Conference discussions. 112

This wording was also debated. See: Report of Committee No. , ibid.: Paragraph  . The Shipowners’ group submitted an amendment to replace “complementing” by “taking into account” in Standard A., paragraph . The Shipowner Vice-Chairperson acknowledged the need for ensuring enforcement, and this amendment sought to assist Governments to ratify the consolidated Convention, since the word “complementing” seemed to be causing difficulties. Having explained the rationale for the proposed amendment, he withdrew the amendment given the Committee’s time constraints, on the understanding that his group would be raising this issue again during the Maritime Conference. Paragraph  . The Shipowners’ group proposed to delete the word “complementary” from Standard A., paragraph , on the ground that it was redundant. . The representative of the Secretary-General suggested that this word enhanced the text. She referred delegates to paragraph  of the Addendum to the Commentary on the recommended draft of the maritime labour Convention concerning Regulation .: Social security, which indicated that “complementary” had been included in the text to encompass protection over and above the shipowners’ liability provided for under Regulations . and .. . The Shipowner Vice-Chairperson agreed with the representative of the SecretaryGeneral, noting that States could have responsibility for providing complementary social security protection which extended beyond the more limited liability of shipowners. His group therefore withdrew the suggested change.

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As mentioned above, the most important wording in paragraph  is the reference to “all seafarers ordinarily resident in its territory”. This provision defines the scope of the primary obligation regarding social security under the Regulation .. It should be noted that the place of ordinary residence may be, but is not necessarily, the State of nationality for a seafarer. This is the reason for the guidance in Guideline B., paragraph , which addresses the situation of seafarers that may be subject to more than one national legislative regime. The obligation on a ratifying country under Standard A., paragraph , is “to take steps according to its national circumstances” to provide protection— in the branches (listed in paragraph ) that have been selected in accordance with Standard A., paragraph , complementing the coverage to be ensured under Regulations . and . (by shipowners) for all seafarers resident in its territory. The idea of taking steps according to national circumstances reflects, as already noted, Regulation ., paragraph : steps must be taken to progressively achieve comprehensive social security protection for all seafarers ordinarily resident in the country’s territory. The steps are to be taken “according to national circumstances”. This would indicate that at least the protection existing at the time of ratification should be continued and that it should be progressively made more comprehensive as and when national circumstances so permit. The words ‘for example’ appear to allow for a range of alternative approaches, including a range of contributory or other schemes. However, the overriding question remains, to what extent do schemes (combined with other kinds of protection that may be available) provide comprehensive protection in terms of the types and extent of coverage and the seafarers covered? Does the protection meet the requirement of the last sentence of paragraph , Regulation ., for protection no less favourable than that enjoyed by shoreworkers? Finally, are there other complementary means of protection that could be adopted in accordance with the country’s national circumstances at the relevant point in time and what plans are being made to ensure more comprehensive protection in the future? As already pointed out, for the most part, the final text of Standard A. is based on the text proposed by the expert Working Group. However, there was one new113 paragraph, now paragraph , introduced at the PTMC by the European Union countries. The reason for paragraph  was explained as follows: . The Government member of the Netherlands noted that the European Union Member States intended to submit a proposed change related to the relationship between the Convention and regional legal instruments, such as the EU “coordi113

Although not discussed explicitly in the records, this approach was already recognized in Convention No. , supra note , Arts  and .

title : health protection, medical care, and welfare

.

.

.

.



nation law.” This proposal would be towards safeguarding existing rights under EU law. . . . The Government members of Belgium, Denmark, Germany, Greece and the Netherlands submitted a proposal to add a new paragraph after paragraph , which would read as follows: Notwithstanding paragraph  above, Members may determine, through bilateral and multilateral agreements and through provisions adopted in the framework of regional economic integration organizations, other rules concerning the social security legislation seafarers are subject to. The Government member of the Netherlands introduced the proposal, stating that it was aimed at first, ensuring provisions of the Convention would not interfere with the free movement of persons throughout the European Union, and second at safeguarding regulations on the coordination of social security between European Union Member States. The Shipowners’ and the Seafarers’ groups supported the proposal in principle. The Shipowner Vice-Chairperson suggested that consideration be given to adding the new wording to paragraph . The Secretary of the Seafarers’ group queried whether the proposed text would have an impact on any other provisions of the Standard. The representative of the Secretary-General confirmed that it would not. She went on to suggest that the provision be contained in a new paragraph since paragraph  was already lengthy. She also suggested some rewording in the interest of clarity. The Committee then adopted the following new paragraph to be placed after paragraph : Notwithstanding the attribution of responsibilities in paragraph  above, Members may determine, through bilateral and multilateral agreements and through provisions adopted in the framework of regional economic integration organizations, other rules concerning the social security legislation to which seafarers are subject.114

Standard A., paragraphs , , , and , specifically recognize that a range of mechanisms, including legislation, collective bargaining agreements, private schemes, and other measures or a combination of these, may be used to implement a country’s obligations under Regulation .. As these provisions suggest, there is significant flexibility in the mechanisms for the provision of benefits. The fact that protection can be provided though a mix of shipowner liabilityrelated plans, residence-based programmes, and other measures, and through cooperation among States is central to understanding the likely application of these requirements. The current wording of what is now paragraph  (then paragraph ) was also debated as there was some concern about the implications referring to the shorter term protection provided by shipowners under Regulations . and . in the Regulation dealing with long-term social security coverage by the State 114

Committee No.  Report, supra note .

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of ordinary residence. However the representative of the Secretary-General at the PTMC, . . . . clarified that the paragraph did not provide an exhaustive identification of the provisions in the Convention to which it referred. It therefore covered other relevant provisions of the Code . . . [and] . . . the specific reference to Regulations . and . in paragraph  was not simply duplicative. They were included in the provisions on social security to provide a link between the short-term protection provided by shipowners, on which there was already agreement, and the longer term protection for which governments were responsible.115

Paragraphs  and 116 (then paragraphs  and ) are important as they touch on core problem areas. This is the case particularly in paragraph , which most directly raises the problem of coverage for seafarers that do not have social security protection in the State in which they are ordinarily resident. There was 115 116

Ibid., paras –, at  and . Ibid. (emphasis added): Paragraph  [now paragraph ] . The Government member of Denmark proposed to replace Standard A., paragraph , with the following text: To the extent consistent with their national law and practice, Members shall endeavour to cooperate in bilateral or multilateral agreements to ensure the maintenance of social security rights that have been acquired or are in course of acquisition, by all seafarers regardless of residence. . Her Government envisaged problems with the principle of maintenance of acquired rights and the need for more precise guidelines on how to implement this provision. The text appeared to require that member States ensure the maintenance of social security rights that have been acquired or are in the course of acquisition, regardless of the State of residence. This presented difficulties under Danish law, especially with respect to family benefits, old age benefits and early retirement pay, all of which were funded from general taxation and made available only to individuals resident in Denmark. Paragraph  would allow these benefits to be “exported” to seafarers who have worked on a Danish vessel but subsequently taken up residence in another country. This would result in difficulties in systems such as that in Denmark which are not financed by contributions, and make the Convention difficult to implement. The principle of the maintenance of acquired rights should instead be provided for in bilateral or multilateral agreements. This proposal was supported by the Government members of Egypt, Germany and the United Kingdom and by the Shipowners’ and Seafarers’ groups. . It was agreed that the following conclusion would be forwarded to the Drafting Committee: The Committee discussed the Danish proposal on paragraph . The intention of the Danish proposal was to ensure that, irrespective of whether the social security system in a country is contributory or non-contributory, the provision should be formulated so that the obligation of Members is to cooperate through bilateral and multilateral agreements in order to ensure the maintenance of social security rights for all seafarers, irrespective of residence. The provision should be broadly worded to cover all types of systems.

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

extensive discussion, including, as will be discussed in Chapter , a proposal to include a provision on flag State inspection for social security, but no solutions beyond the current text.117 117

Ibid. (emphasis added): Paragraph  [now paragraph ] . The Government member of France submitted in writing a proposal to replace paragraph  of the recommended draft with the following: Members shall ensure that seafarers aboard ships flying their flag benefit from the protection under paragraph  of Regulation . in conformity with the present Convention, whether provided through the legislation of the State of residence of the seafarers, the legislation of the flag State, or other arrangements. . The Government member of France explained that the proposal sought to further clarify the text, and ensure that a flag State could not evade responsibility for ships flying its flag. The proposal sought to ensure that the flag State had oversight responsibility, and to avoid the use of flags of convenience. The proposal also sought to ensure flexibility concerning the type of arrangements that could be established. . The Shipowner Vice-Chairperson opposed the proposal on the grounds that it was beyond the mandate of the Committee, it could not be enforced, it would limit prospects of ratification, and it raised issues of sovereignty discussed previously in the context of the Seafarers’ group’s contribution to the discussion on the proposal of the Government member of the Netherlands. It would also be inappropriate for a government to interfere in the collective bargaining process of another country. . The Seafarers’ group and the Government members of Algeria, Argentina, Brazil, Canada, Italy, Philippines, Spain, Tunisia and Turkey, generally supported the proposal of the Government member of France. . . . . The Government member of Italy, while broadly supporting the proposal, raised the question of how such a system could be implemented and monitored in practice. The Government members of the Bahamas, Cyprus, Denmark, Japan, Liberia, Spain reiterated this concern. The Government member of the Bahamas submitted that the flag State, while being responsible for what went on aboard the ship, could not be responsible for what went on in another country. . The Government member of Denmark agreed with the underlying intention of the proposed text, but noted that issues of monitoring and enforcement were being dealt with by another Committee under Title  of the recommended draft. . The Government member of Malta expressed a preference for the recommended draft of Standard A.. . The Government member of France suggested that the proposed text could be included elsewhere than in Standard A. paragraph , and suggested that the Office look into the issue of appropriate placement. Monitoring and oversight was always a difficult issue but would be an essential component if the Convention were to be enforced. It was not unreasonable to expect flag States to check the relevant legislation in force, or make other pragmatic arrangements with the shipowners to verify information on social security coverage. Documentary proof of coverage would constitute a first level of control, with a second level of oversight only being necessary where complaints were lodged. . The Seafarer Vice-Chairperson stated that the proposed text was flexible. She pointed out that Title  of the recommended draft addressed monitoring, and Title  referred to the employment agreement, including on social security benefits,



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. Each Member shall give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the branches referred to in paragraph  of this Standard.

.

. .

.

. .

. .

.

providing practical avenues for checking social security coverage. While agreeing with the Shipowners’ view that flag States could not interfere with the sovereignty of States of residence, including on issues of collective bargaining, the Seafarers’ group noted that many countries were already linked through bilateral and international agreements regarding social protection. She also pointed to Article  of the United Nations Convention on the Law of the Sea, , which acknowledged that only flag States had jurisdiction over their ships. The Shipowner Vice-Chairperson, also referring to the United Nations Convention on the Law of the Sea, stated that, where there is an alleged violation of Article , the issue can be taken to the appropriate forum under that Convention, and need not be dealt with in the present debate. The Government member of France stated that the United Nations Convention on the Law of the Sea provides that States are to exercise jurisdictions with respect to all social issues on board ships that fly their flags. . . . The Government member of France acknowledged the doubts expressed about the feasibility of his earlier proposal and responded that the legislation of the primary labour supplying States was well-known and shipowners would be aware whether seafarers were covered. Moreover, this coverage could take the form of private insurance and need not necessarily be provided under a statutory system. The Shipowner Vice-Chairperson noted that paragraph  of the recommended draft required that member States “give consideration” to the ways in which comparable benefits are provided to seafarers, whereas the proposed replacement provides they “shall ensure” protection, rendering it mandatory. He opposed the proposed change on the ground that it would prevent the Convention from being widely ratified and enforced. The Seafarers’ group supported the proposed change. They did not feel that the “shall ensure” requirement was inconsistent because flag States are subject to the same level of obligation under Regulations . and .. The Government member of Japan expressed grave concern that seafarers resident in States which have not ratified the Convention would be prevented from serving on ships whose flag States had ratified it, which was not fair treatment of seafarers. The Government member of the Bahamas could not support the proposal for the same reasons. It was also opposed by the Government members of Cyprus, Denmark, Egypt, Germany, Malta, Philippines, Russian Federation, United Kingdom and the United States. The Government member of Argentina supported the proposed change as enhancing the social protection of seafarers. She was supported by the Government members of Canada, Italy, Mexico, Norway, Spain and Turkey. In response to concerns as to how flag States would ascertain seafarers’ social security coverage, the Seafarers’ group pointed to Standard A. (Seafarers’ employment agreements), paragraph (h), which requires member States to ensure that a reference to social security benefits provided by the shipowner is included in all seafarers’ employment agreements. The Government member of Germany objected that States could not rely on such a statement but must confirm that the conditions of insurance were being met.

title : health protection, medical care, and welfare



Guideline B., paragraph , provides guidance on what a flag State should consider to address this problem: . In the circumstances referred to in Standard A., paragraph , comparable benefits may be provided through insurance, bilateral and multilateral agreements or other effective means, taking into consideration the provisions of relevant collective bargaining agreements. Where such measures are adopted, seafarers covered by such measures should be advised of the means by which the various branches of social security protection will be provided.

The elements that should be considered with respect to settlement of disputes under paragraph , Standard A., are set out in Guideline B., paragraph . Paragraphs  and , although described in the report of the Working Group as ‘usual’ in an ILO convention, in fact raise some possible difficulties.118 The MLC,  does not expressly set any conditions on ratification (or registration). However, a question might arise as to whether the requirement under paragraph  that “Each Member shall at the time of ratification specify the branches for which protection is provided in accordance with paragraph  of this Standard. . . . The Director-General shall maintain a register of this information and shall make it available to . . . ” is a condition of registration. Alternatively, since this requirement is in the Code rather than an article or even a regulation, it may be that this is simply another substantive requirement in which failure to file this information is a matter that could be a subject of comment under the ILO supervisory system (see Chapter ). The inclusion of paragraph , and to lesser extent paragraph , of Guideline B. was controversial at the PTMC.119 The wording of paragraph  was not 118 119

See discussion at pp. – in Chapter . Committee No.  Report, supra note  (emphasis added): Guideline B.—Social security Paragraph  . The Government member of Denmark made a written proposal to replace Guideline B., paragraph , with the following text: The requirement of the Convention should not be interpreted as preventing a member from maintaining a principle by which seafarers are covered in the flag State in the event of accident at work and occupational diseases. . She gave two reasons for the proposed text. The first was that there were some doubts about the meaning of the paragraph in the Office text, which the Office had explained was aimed at ensuring flexibility for flag States to provide benefits under their own legislation. There was need for greater clarity in the text, however, as closer reading gave the impression that the aim was to oblige States to provide seafarers residing outside their territories with benefits similar to those of seafarers residing in their territories. In addition, Standard ., paragraph , and the whole of Regulation . were on the basis of the State of residence principle, which he thought should not be applicable. . The Shipowner Vice-Chairperson noted that the proposal referred to workplace

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resolved until the Interssessional Meeting in . The fact that even though these provisions were a ‘softer’ obligation in the sense that they were guidelines is indicative of both the difficulty of the issue and also of the importance that was placed on the guidelines in Part B of the Code.

. .

. .

.

.

.

.

.

.

accidents and occupational diseases and stressed that these are two areas in which both shipowners and flag States should have some responsibilities. The Seafarer Vice-Chairperson said her group had no objection to including the proposed text of the Government member of Denmark in the text of paragraph , but could not agree that it should replace the entire paragraph. The Government member of the Bahamas suggested that the provisions of paragraph  partially overlapped with those of Standard A. (Shipowners’ liability), in particular its paragraph , which provides for flag state responsibility for monitoring shipowners’ liabilities. It may be possible to delete Guideline B., paragraph , while retaining Standard A.. The Seafarer Vice-Chairperson objected to the deletion as social security is complementary to shipowners’ liability, which could endure for only a limited period of time. The Shipowner Vice-Chairperson emphasized that shipowners are not prepared to assume responsibility for long-term and medium-term protection, such as retirement benefits. Neither did supplementing paragraph  add anything of value to the Convention; it should be deleted. The Seafarers’ group noted that the Committee was straying into a subject under discussion in the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers and that the Committee should not pre-empt the work of that group. The Seafarers’ group proposed that paragraph  be transferred to Standard A., arguing that it was of fundamental importance to seafarers and urging the Committee to strengthen the monitoring and oversight role of flag States. The group was supported by the Government members of Argentina and Italy. The Shipowner Vice-Chairperson opposed the proposed transfer since it would detract from the Convention’s prospects for ratification. The proposal was also opposed by the Government members of Bahamas, Germany, Japan, Philippines and the United Kingdom. The Government member of Denmark objected to the proposal on the grounds that it would raise problems for countries in which social security was funded from general taxation rather than by contributions. The Government member of Norway suggested that paragraph  was outdated now that most seafarers are not residents of the flag States of their vessels and that there is no relationship between their terms and conditions and what is applicable to the residents of the flag States; therefore, the paragraph should be deleted. He was supported by the Government members of Cyprus, Denmark, Germany and Japan. In response to a request for clarification from the Government member of the Netherlands, the representative of the Secretary-General referred to paragraph  of the Addendum to the Commentary, which pointed out that paragraph  complements Standard A., paragraph . She explained that paragraph  amplifies the general obligations of flag States under international law. In this regard, the Seafarers’ group referred to Article  of the United Nations Convention on the Law of the Sea, which allocates to the flag Sate responsibility for “social matters”. In response to a request for clarification by the Shipowner Vice-Chairperson, the representative of the Secretary-General explained that the reference to “national circumstances” was intended to provide flexibility by recognizing that it was not feasible for

title : health protection, medical care, and welfare



Guideline B., paragraph , was discussed at the Intersessional Meeting. As the extract below indicates, although they had disagreed at the PTMC, the representatives of the seafarers’ and shipowners’ organizations actively worked between sessions to resolve difficult issues and disagreements. However the terminology adopted referring to national seafarers or non-national seafarers, as opposed to residents and non-residents, appeared to pose difficulties for governments.120 Ultimately the Secretary-General of the meeting indicated that “following consultations with the Office’s social security experts, and in light of Standard A., paragraph , the wording ‘nationals or non-nationals’ was probably more appropriate than ‘residents or non-residents’ ”.121 The draft text was circulated for comment and the matter reported to the th ILC.122

.

. . .

all countries to extend to seafarers coverage under all the branches of social security applicable to their residents. The Committee decided to recommend to the Steering Committee that paragraph  should remain between square brackets, that all the views expressed by the delegates should be reflected in the report, and that this matter should be referred to the Maritime Session of the International Labour Conference. The Steering Committee returned paragraph  to the Committee and asked it to reconsider the text and come to a decision. The Shipowners reiterated their position that the paragraph should be deleted, and the Seafarers emphasized that they considered it fundamental and wanted it to be placed in Part A of the Convention. The Committee agreed to inform the Steering Committee that no further progress could be made in the discussion of paragraph  due to time constraints.

Paragraph  . The Shipowners’ group proposed that Guideline B., paragraph  should be deleted. The employment agreement was a matter for seafarers and shipowners and should not be included in the Convention. . The Seafarer Vice-Chairperson said that it should be retained. They noted that the employment agreement was significant; the paragraph was a means of ensuring that seafarers could be made aware of the social security protections available to them. The text had been agreed at the April  Meeting of Experts as a “compromise position” and Standard A. (Seafarers’ employment agreements), paragraph (h) stated that these agreements should contain particulars on the health and social security protection benefits to be provided by the shipowner. 120

Report of the Discussion, supra note , Note  (Guideline B., paragraph ), paras –. Ibid., para. . 122 Report I(A), supra note . The comments of governments are of interest as they reveal the significant variations in practices with respect to social security coverage: 121

Note  (Regulation .) . The provision that remained unresolved at the end of the PTMC was paragraph  of Guideline B. relating to the responsibilities of the flag State in the area of social security protection. The wording of this paragraph results from the Intersessional Meeting and was based on a compromise text proposed by the Shipowners’ and Seafarers’ groups, which obtained tripartite support at that Meeting. This wording



chapter ten Conclusion

This chapter has given consideration to the five regulations and the related Code Part A and B provisions in Title . It has explored the linkages between these provisions and other provisions, such as Regulations . and . and Title  on compliance and enforcement. The examination in this chapter has also shown the development and modernization of the existing maritime labour conventions that are consolidated by the MLC, , particularly in the area of OSH. This chapter has also demonstrated the awareness of the importance of ensuring consistency with the IMO conventions, particularly STCW. It was provided to constituents for comment following the Intersessional Meeting. The following comments were received. Argentina: Whatever the merits of establishing residence as the criterion for access to social security protection, flag States cannot disclaim all responsibility in this respect. Because of the criterion of ordinary residence for social security coverage, social security protection in the case of labour-supplying countries, in general, only applies to seafarers working in ships flying the country’s flag, and not when they are working on ships under the flags of other countries, whether flags of convenience or otherwise. Since obviously these countries have very few ships flying the country’s flag, coverage is almost non-existent. In the absence of relevant contributory systems, the low-cost engagement of these workers leads to a distortion of the global labour market for fishing and maritime navigation and to unfair competition with respect to other fishing vessels, engaging the “more expensive” workers benefiting from social security protection. The compromise text, which obtained tripartite consensus on the subject of flag state responsibility in the area of social security at the Intersessional Meeting, represents a great advance, although the Government’s preference, as it stated in the discussions, is that this provision should be placed in the mandatory part of the Convention. Brazil: This provision is supported. It is noted that under Brazilian law all insured employed or self-employed seafarers enjoy universal coverage for health, social security and welfare, whether Brazilians or foreigners residing and working in the country. Health and welfare rights are not subject to payment of contributions, while the right to social security is acquired through payment of contributions, and covers all seafarers, whether Brazilian or foreigners residing and working in the country or on ships flying the Brazilian flag. Egypt (General Trade Union of Maritime Workers): In its comments transmitted by the Government, the union stressed the importance of social protection on the part of flag States. Panama: Social security protection should be in accordance with the system in each country and should establish clear and parallel obligations for shipowners to provide coverage for seafarers not covered by the flag state system, so that seafarers are provided with social protection and security. Under Panamanian law, a social insurance fund covers workers of Panamanian nationality (or married to nationals or with children whose mothers are nationals) that are resident in Panama and working on ships registered in Panama. The national system covers workers abroad as long as the employee and employer contributions are paid. This means shipowners must ensure affiliation with the national insurance scheme for these workers. The system provides coverage for incapacity resulting from occupational risk and disability, illness and maternity. Under Panamanian

title : health protection, medical care, and welfare



also explored some areas of potential difficulty in application, particularly in connection with what is still, to a large extent, an unresolved area relating to developing a mechanism to ensure provision of social security for all seafarers, irrespective of the country of residence. It has also noted one area where it is likely that an amendment will occur in the future, namely shipowners’ liability for death and long-term disability.

law, shipowners are required to provide private insurance coverage for foreign seafarers working on ships flying the Panamanian flag and to note in the articles of agreement details of the insurance including the risks covered and limits on coverage. South Africa: The provision of social security for national seafarers should be provided for in national legislation. Coverage for non-nationals poses a problem because it is normally funded by the national revenue funds: it can be prohibitively expensive to cover nonnationals if they do not contribute to the system. These issues should be regulated on the basis of either national legislation and/or multinational or bi-national agreements. The maintenance of social security rights should be regulated by multinational or bi-national agreements between the receiving and the accepting countries. With respect to the usage of terms such as resident or non-resident, the terms “nationals” and “non-nationals” are preferred.

chapter eleven TITLE 5: COMPLIANCE AND ENFORCEMENT

General Introductory Note1 Chapters  to  examine each of the Regulations and associated Code provisions in Titles  to  of the MLC,  highlighting points of particular interest or difficulty. The annotated version of the Convention (see Appendix ) provides additional information regarding the ILO conventions and recommendations that are consolidated in the MLC, . Additional interpretive resources2 for the MLC,  include the Article  Report,3 which provides supplementary information on the expectations of the ILO’s international supervisory system4 regarding ratifying States’ obligations to implement the Convention. The Guidelines for Flag State Inspections under the Maritime Labour Convention, 5 (hereinafter Guidelines for Flag State Inspections) and the Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention, 6 (hereinafter Guidelines for Port State Officers) address the 1

This introductory note is included in Chapters  to  as an aide-memoire to summarize key information about the structure and approach adopted in the MLC, . Chapters  and  explore these issues in detail. 2 See Chapter  at p. . 3 The Article  report form for the MLC,  can be found in Appendix IV of ILO Doc. No. GB.// (Rev) (ILO, Governing Body, Reports of the Committee on Legal Issues and International Labour Standards: Second report: International labour standards and human rights, Geneva, March ), pp. –, available at http://www.ilo.org/global/standards/maritimelabour-convention/WCMS_/lang--en/index.htm. 4 See Chapter . 5 See also Chapter , pp. –, on the role of these guidelines in implementing the MLC, . These guidelines are not to be confused with the ‘Guidelines’ in Part B of the Code of the MLC, . They are critical to understanding how governments and organizations representing shipowners and seafarers agreed that the requirements in Title  regarding flag State inspection and certification of ships and the inspection of foreign ships in port should be carried out at the practical, shipboard level. International Labour Office, Guidelines for Flag State Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www.ilo.org /wcmsp/groups /public /-ed_norm/-normes/documents/publication/wcms_ .pdf. 6 International Labour Office, Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention,  (Geneva: ILO, ), available at http://www .ilo.org/wcmsp/groups/public/-ed_norm/-normes/documents/publication/wcms_.pdf.



chapter eleven

more practical implementation and matters, such as ‘how to check’ for compliance, at the shipboard level, with national legislation or other measures implementing the MLC, . This chapter examines the regulations and the provisions in Part A (Standards) and Part B (Guidelines) of the Code of the MLC,  in Title . As discussed in Chapter  of this book these provisions are organized in a topical and vertically integrated manner with each Title comprising a number of regulations and the associated Parts A and B of the Code setting out more detailed requirements to implement the relevant regulations.7 Each regulation has a purpose clause indicating its objective in ‘plain language’.8 In turn, these regulations and the Code provisions set out more detailed specific implementation of the social and employment rights (and related obligations) generally set out in Article IV and the implementation and enforcement obligations under Article V.9 The provisions in the Titles are, as a matter of international law, directed to States, primarily as flag States, with an international obligation to regulate conditions on board ships that fly their flag. As applicable, regulations are also directed to coastal or port State or States that have a labour-supplying interest and require that the State take implementing action at the national level. It will be recalled that under Article IV, paragraph , unless specified otherwise States, can use various approaches to implement these obligations, including adopting legislation or through collective bargaining agreements or other measures.10

These guidelines are called for in the MLC,  (Guideline B.., para. ), and both guidelines are the result of resolutions adopted by the th ILC in  when it adopted the Convention (See: Reports of the Selection Committee, Second Report, ILC, th (Maritime Session), Geneva, , ILO Doc. No. PR– (Rev.), pp. –/–/ and –/–/). Initially it was thought that the port State control guidance would be adopted as a priority, with adoption of flag State guidance following. However, it became clear that the flag State guidance needed to be developed first as it provided the basis for port State control. 7 Regulations, like the articles, are not subject to amendment using the more rapid tacit acceptance procedure in Article XV, nor are they subject to substantial equivalence in Article VI. Thus any analysis of the obligations, particularly in connection with exercising flexibility, must carefully consider the obligations in the regulations relative to the mandatory obligations in Parts A and B of the Code that must be given ‘due consideration’. Chapters  and  discuss the structure of the Convention in detail, as well its effect on future approaches to amendments (Chapter ). 8 Although the approach to interpretation of the application of the concept of substantial equivalence is not yet settled, presumably this would be on source to consider, when evaluating whether a measure is “conducive”, as required under Article VI, paragraph (a), of the “general object and purpose” of the provision or provisions. See Chapter , note . 9 As discussed in Chapter , the articles mainly comprise general statements of principles and rights and obligations directed specifically to ratifying States. 10 See Chapter , pp. –.

title : compliance and enforcement



The provisions in Titles  to  and, in part, Title  are ‘regulatory’ in that they set specific minimum requirements for working and living condition for seafarers, primarily on board ships.11 In this way the Convention operates at two levels: the State obligation to implement Convention obligations and regulate shipowners and other actors, and through the enforcement and compliance system in Title  where they pierce international law’s ‘corporate veil’ of the State to affect the actors that essentially ‘perform’ the majority of the Convention’s obligations. Failure at the shipboard level can, of course, also be evidence of a failure on the part of a State to implement or effectively implement its international obligations to regulate the issue in question. Thus the two levels are intertwined and mutually re-enforcing. It must also be emphasized that there is significant interaction among the provisions of these Titles, particularly in connection with Regulation . on seafarers’ employment agreements, which, especially from a ship inspection perspective, contain aspects that cuts across most Titles. The two Appendices in Title  list  areas that are drawn from all Titles. These areas are subject to certification for some ships and inspections under port State control. As discussed in detail in this chapter, flag States will need to address these areas in developing the document12 regarding their national requirements while shipowners must address them in the document13 that they are to prepare. Both documents must14 be carried on board ships  GT and over engaged in international voyages or voyaging from or between ports in another country (other than the flag State). Thus the compliance and enforcement in Title , itself a substantive obligation, is a key aspect of the effective implementation of State obligations found in other Titles and the articles.

11 It must also be recalled that Article II of the Convention regarding the definitions of seafarer and ship represents a fundamental change in the scope of the Convention, which in turn affects national implementation. A much wider group of workers, indeed all persons working at sea with very few exclusions for categories of ships, are now covered as ‘seafarers’ under the MLC,  provisions. Further, when a country has made a determination under Article II, paragraph , in connection with ships below  GT that do not go on international voyages, the national law or other measures would still need to comply with the regulations. 12 Appendix A-II Declaration of Maritime Labour Compliance, Part I, see p.  of this book. 13 Appendix A-II Declaration of Maritime Labour Compliance, Part II, see p.  of this book. 14 Regulation .., paragraph . Shipowners may also request their ships be certified even if not within these categories. See: Regulation .., paragraph . It should be noted that the system established under Title  requires that all ships must be inspected by the flag State.



chapter eleven Overview of Regulations .–. and the Code, Parts A and B

Although Title , Compliance and Enforcement 15 comprises regulations and the related Code Part A, standards, and Part B, guidelines, it is structurally different from the four Titles examined in Chapters –. It contains four ‘floating’ introductory paragraphs that have no specific heading or purpose clause, which are followed by three major regulations and ‘sub-regulations’. It also contains the very important appendices (A-I, A-II, A-III, and B-I) to the Convention. Figure  shows the three core regulations and ‘sub-regulations’ that comprise Title , the associated Code provisions, and in two cases, appendices. As the list of regulations (Figure ) indicates, each regulation (other than the introductory paragraphs) has Code, Parts A (Standards) and B (Guidelines), provisions associated with them. This Title provides the regulatory content for the generally-worded obligations in Article V, Implementation and enforcement responsibilities, discussed in Chapter . It will be recalled that Article V refers to three kinds of responsibilities, two of which, flag State and port State responsibilities, are traditional responsibilities under the law of the sea and the overall international maritime regulatory regime. Article V also introduces a third form of maritime responsibility, States with ‘labour-supplying responsibilities’. The core responsibilities under Article V are to enforce national laws and other measures implementing the requirements of the Convention and, in the case of port States, to provide for the possibility (‘may’) that foreign flag ships will be inspected when in a port for compliance with the MLC,  as implemented by the relevant flag State. It will also be recalled that Article V, paragraph , contains the ‘no more favourable treatment clause’ regarding port State treatment of ships flying the flag of countries that have not ratified the Convention.

15 The name of Title  was entered into the Convention text considered by the third HLTWG meeting in June . The prior draft simply used the word ‘enforcement’. The Commentary prepared for the meeting explains the intention (Consolidated Maritime Labour Convention (First Draft) Commentary, HLTWG (Third meeting), Geneva, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r- .pdf), Comment  (on Title , Regulations and Code, Parts A and B):

. Title  deals with compliance and enforcement and is linked to the obligations of ratifying Members under Article V. It encompasses both traditional enforcement practices through inspection and sanctions and more contemporary practices aimed at ensuring continual compliance between inspections.

title : compliance and enforcement



Figure . Overview of Title  regulations (and sub-regulations) Introductory paragraphs Regulation .—Flag state responsibilities – Regulation ..—General principles – Regulation ..—Authorization of recognized organizations – Regulation ..—Maritime labour certificate and declaration of maritime labour compliance – Regulation ..—Inspection and enforcement – Regulation ..—On-board complaint procedures – Regulation ..—Marine casualties Regulation . - Port state responsibilities – Regulation ..—Inspections in port – Regulation ..—Onshore seafarer complaint-handling procedures Regulation .—Labour supplying responsibilities Appendix A-I (The working and living conditions of seafarers that must be inspected and approved by the flag State before certifying a ship in accordance with Standard A.., paragraph ) Appendix A-II (Maritime Labour Certificate; Declaration of Maritime Labour Compliance—Part I; Declaration of Maritime Labour Compliance—Part II; Interim Maritime Labour Certificate) Appendix A-III (General areas that are subject to a detailed inspection by an authorized officer in a port of a Member carrying out a port State inspection pursuant to Standard A..) Appendix B-I (Example of a national Declaration (Parts I and II))

Although Title  clearly builds on the provisions in the Merchant Shipping (Minimum Standards) Convention,  (No. ) regarding port State control and consolidates the provisions of the Labour Inspection (Seafarers) Convention,  (No. ) and the related the Labour Inspection (Seafarers) Recommendation,  (No. ), it also contains one of the most important developments in any ILO convention. It establishes, for the first time, a certification system for labour and social conditions. This development and these provisions are oriented to the goal of bringing labour and social conditions in line with the more general international maritime regulatory regime for the IMO conventions.16 Many of the provisions in this Title expressly incorporate and, arguably,

16

At one point the idea of a single certificate for ships, to cover both IMO and ILO requirements, was even considered. See: Ibid., Comment  (on Title , Regulations and Code, Parts A and B):



chapter eleven

develop—with an ILO ‘spin’ at the level of mandatory provisions—the practices and approaches in the IMO conventions and related resolutions. The provisions in Title  are also intended to recognize and work within the regional cooperative enforcement system under the various regional memoranda of understanding on port State control (PSC MOUs).17 As explained in the Office Report18 for the th ILC (emphasis added): . . . . For more contemporary practices, aimed at ensuring continual compliance between inspections, the system provided for in Title  embodies aspects of the well-accepted certificate-based system of the IMO, which has been developed in significant maritime Conventions such as the SOLAS Convention, , as amended, and its related Codes such as the International Safety Management Code and MARPOL /, and its various annexes. However, the IMO system, as it has evolved to include ongoing compliance and system management and human resource management matters, has been adapted in the proposed Convention to meet the ILO context and the special concerns raised by international labour standards, in particular the inclusion of flag state and on-board and onshore complaint provisions and reporting mechanisms to support and complement the inspection provisions. The certification system in Title  will be closely coordinated with the related maritime certifications and inspections, particularly those required under IMO conventions, and will be supported by the procedures under the regional Memoranda of Understanding for port state control. Such an integrated approach is considered essential to the success of the Convention. It does not add a significant new administrative burden for governments or shipowners, but instead operates as much as possible within existing inspection and certification frameworks. . Most of the new features in Title  are, in fact, developments of measures provided for in existing international labour Conventions, in particular the addition of a system of certification to the inspection system, an extension of the grounds under Convention No.  for detention of ships in foreign ports and the procedures for the handling of seafarers’ complaints or disputes as well as the provisions relating to reports to the ILO Director-General. The real novelty of the Convention in this area resides in its approach to compliance and enforcement. Title  comprises . . . . In addition, the system proposed in Title  draws upon aspects of the well accepted certificate-based system of the IMO that is found in Conventions such as MARPOL and SOLAS including the International Safety Management (ISM) Code, but adapts these approaches to the ILO context and concerns. The system adopted in the Convention could be closely coordinated with related certifications, particularly those required under IMO conventions, so that there could perhaps be a single certificate covering all related aspects in the country concerned. Such a feature was considered essential by some Government representatives in the High-level Group. 17 As explained in Chapter  at note , the concept of port State control dates back to  following the sinking of the ‘Titanic’ and is now implemented through PSC MOUs in most regions of the world, with the Paris MOU between maritime authorities in Western Europe perhaps the most well known. 18 Adoption of an Instrument to Consolidate Maritime Labour Standards, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(A), available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/rep-i-a.pdf, Note  (Title ).

title : compliance and enforcement



a detailed set of provisions on principles and rights, at the same level of importance as the other Titles, relating to substantive rights, and inseparable from those Titles in keeping with its character of a sine qua non.

Title  also formally recognizes and seeks to regulate the role that private sector organizations, that is, ‘recognized organizations’ (ROs)—primarily the ship classification societies19—play in the operation of contemporary flag State ship inspections. These organizations, while indispensable to the viable operation and existence of open registries, many of which are based in countries that lack the capacity to undertake the many technical inspections required of flag States, are equally important, perhaps even essential, to the operation of maritime administrations in many developed economies.20 Both the ship inspection and, where required, certification system, and the explicit recognition of probable delegation of flag State inspection of labour standards on ships to ROs, and the extended provisions on PSC found in Title  reflect an important transition and a challenge for national institutional approaches to implementing the MLC, . In most cases, the national departments responsible for implementing or putting into operation the ship inspection and certification system and for PSC will be maritime administrations. Since its adoption in  this has presented some difficulties at the national level, especially in countries where the department of labour or human resources has responsibility for labour inspection and regulation. It seems clear that the MLC,  requires inter-departmental cooperation and an integrated approach to achieve effective implementation. 19 See discussion in Chapter . See also the discussion below in connection with Regulation .— General principles, paragraph , and Regulation ..—Authorization of Recognized Organizations. These are similar to ship surveys or, in the case of the ISM Code, ‘audits’ (of the company). See, for example, International Convention for the Safety of Life at Sea, , London,  November ,  U.N.T.S. , as amended (SOLAS), Annex, Part B, Regulation —Inspection and survey; SOLAS , Article III(a); Protocol , Article II(b)—Communication of information. See also: SOLAS, Chapter IX, Regulations  and ; and International Safety Management (ISM) Code, , available at http://www.imo.org/SharePoint/mainframe.asp?topic_id=, Section  and Guidelines on the Implementation of the ISM Code (IMO Resolution A.(), ), section . See also, for example, MARPOL /, Annex , Regulation (c). 20 See: Considerations for provisions on inspection and control in a consolidated maritime labour Convention, HLTWG (Second Meeting), Geneva, – October , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-.pdf, Appendix IIII, Information received from the International Association of Classification Societies (IACS), p. :

. . . IACS members collectively offer statutory certification services to monitor compliance with a number of IMO Conventions (SOLAS, MARPOL, Load Line, etc.). These are provided on behalf of more than  administrations in accordance with relatively uniform procedures and are subject to annual and other periodic surveys prior to renewal of certification at five-yearly intervals throughout a ship’s life.

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As discussed above in the General Introduction, the application of the obligations in Title  regarding the flag State inspection system and the inspection by authorized officers under PSC have been the subject of extended comment and elaboration. In , tripartite expert meetings21 adopted the Guidelines for Flag State Inspections22 and Guidelines for Port State Control Officers.23 The latter guidance to assist ratifying countries in implementing their port State responsibilities results in some difficulties since the regional PSC MOUs have their own elaborate guidelines for PSC, in addition to the resolutions adopted by the IMO. The Guidelines for PSC for the MLC,  are still under development by the Paris MOU (on which most other regional MOU Guidelines are based). It expected that they will largely follow the ILO Guidelines for Port State Control Officers. There are some differences, as will be discussed below in connection with Regulation ., largely concerning reconciliation of the approach in the MLC,  and the PSC practice regarding a ‘walk about’ to verify compliance with on-board documentation. The ILO’s Guidelines for Flag State Inspections also present some conceptual difficulties in that they are essentially aimed at ensuring some level of uniformity in approach, while at the same time flexibility in the Convention is an important element aimed at attracting widespread ratification.24 In both cases there is a tension between the ‘push’ to allow for flexibility with respect to the details of national level implementation and the ‘pull’ to impose uniform requirements as set out in the Convention. As noted in Chapters – in connection with Titles –, although the MLC,  contains significant areas for national flexibility regarding implementation, it is also pragmatic in approach. Generally, shipping is a global industry, and it is in the interest of the industry (both shipowners and seafarers) that as much as possible there is a high degree of uniformity and consistency in expectations and practices, especially with respect to port State control. For shipowners undertaking dubious practices, there may be some interest in encouraging differing flag State inspection regimes. However, given the prevalence of the regional PSC regimes, it seems inevitable that the attraction of differing flags 21 See Chapter . Although they cannot be regarded as legal interpretation, they are a source of tripartite expert advice. See: Final Report, Tripartite Expert Meeting to Adopt Guidelines on Flag State Inspections under the Maritime Labour Convention, , Geneva, – September , International MEFS//; Final Report, Tripartite Expert Meeting to Develop Guidelines for Port State Control Officers Carrying out Inspections under the Maritime Labour Convention, , Geneva, – September , International MELCBS//. 22 Supra note . 23 Supra note . 24 As explained in Chapters  and , flexibility was an important aspect of combining so many different issues under one convention and was behind the transfer of so many detailed provision to the Code, Part B, ‘due consideration’ guidelines.

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may relate to broader corporate fiscal regulation policies rather than to lower international standards. Development of the Title  System Before looking at the specific regulations in Title  it is important to understand the conceptual underpinnings of Title  and the related provisions in the Convention. Building on the early ILO conventions, many Title  provisions, particularly the multi-pronged and multi-level approach to compliance and enforcement of requirements in an international convention, can be traced back to a May  tripartite meeting25 and the adoption of the Consensual Statement of the Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers: . . . The experts stress the need for the strongest possible national and international measures to be taken against breaches of international labour standards, including violations of freedom of association and right to organize and collective bargaining, which undermine decent living and working conditions for seafarers. The experts consider that it is urgent to effectively address the decent work deficits in the shipping industry. It is recognized that conditions of employment, social protection, social security and social dialogue, including collective bargaining, are matters that will require particular attention. . . . The experts recognize that consideration should be given to a possible mechanism by which a performance measurement for flag States in respect of ILO instruments might be introduced. The experts consider that in the context of enforcement, due consideration should be given to the relevant provisions of UNCLOS and the relevant provisions of the ISM Code.26

Further, the experts adopted eight principles and rights, which are reflected in the obligations in Article V and the approach adopted in Title  (Figure ). These ideas were then, initially, elaborated on in a discussion paper prepared by the Office for the second meeting of the HLTWG in October .27 They were further articulated in two key documents, dealing with enforcement and control28 and grievance procedures,29 jointly prepared by the Shipowners’ and 25 Final Report, Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers, Geneva, – May , ILO Doc. No. MEWLCS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/mewlcs/mewlcs-.pdf. 26 Ibid., Appendix, p. . 27 Considerations for provisions on inspection and control, supra note . 28 Final Report, Tripartite Subgroup of the HLTWG, Geneva, – February , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/ techmeet/stwgmls/stwgmls-.pdf, Annex . 29 Final Report, HLTWG (Third Meeting), Geneva,  June– July , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf, Annex , Joint submission by the Shipowners’ and Seafarers’ groups

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Figure . Consensual Statement of Principles and Rights adopted by the Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers, May 30 . In order to effectively exercise its jurisdiction in social matters, every State shall have a sound maritime administration with a firm legislative framework complying with, as minimum international labour standards, and a strong enforcement mechanism. . The flag State has the overall responsibility for ensuring that the rights of seafarers are respected in relation to service on board ships flying its flag. . Every flag State shall have in place means to enforce decent living and working conditions on ships flying its flag wherever they may be in the world. . Every State shall ensure that manning agencies for seafarers legally established within its jurisdiction are subject to government control and shall ensure that seafarers’ rights are respected. . All States shall have in place the necessary mechanism for monitoring living and working conditions on ships visiting their ports, in accordance with international instruments in force. . All inspectors responsible for the control of living and working conditions shall be properly qualified, trained and shall have clear terms of reference. . Every flag State should ensure that shipowners are responsible for making available to the seafarers the applicable laws, regulations and collective agreements addressing their living and working conditions and should, in accordance with national law and practice, ensure that they are enforced. . All States shall provide easy access to simple and inexpensive procedures enabling all seafarers, regardless of nationality and domicile, to make complaints alleging a breach of national legislation on living and working conditions or employment contracts and/or articles of agreement.

Seafarers’ Groups and discussed at the second meeting of the Subgroup of the HLTWG,31 and presented again at the third HLTWG meeting in June .32 The document on enforcement and control and the record of the description of the grievance procedures provided to the February  Subgroup meeting, while lengthy, are set out below (emphasis added) in full as they provide a useful sketch of the comprehensive system, including linkages to the ILO’s supervisory system, initially envisaged by the participants in negotiating the text that was finally adopted.

concerning provisional grievance procedures. The document was also considered at the Subgroup meeting in February , see Annex , supra note . 30 Ibid. 31 Final Report, supra note . 32 Final Report, supra note .

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Joint informal proposal on enforcement and control33 . It has been agreed that the Convention will have to be enforceable and must also be flexible. . Enforceability will be achieved through two channels; through provisions of the Convention enforced in the first instance by the flag States and by port state control; and labour-supplying States. . Port state control will only be able to exercise the right of control over those aspects of the Convention relating to on-board living and working conditions.1 . Flexibility is necessary to allow member States the possibility of ratification within the confines of domestic legislation and practice and will be achieved by the incorporation of relevant provisions within the Convention. However, such flexibility must not prejudice the ability of States to enforce the provisions of the Convention and exercise effective control over ships within their jurisdiction. . The Shipowners’ and Seafarers’ groups consider that the first stage of a proper enforcement mechanism should be the issue by the flag State of a Certificate of Compliance to ships flying their flag. This certificate should attest that the shipboard living and working conditions conform to the provisions of the Convention. . The second stage of the enforcement mechanism should be the issue by the flag State of a document additional to the Certification of Compliance. This document, which would be maintained on board each ship flying the flag of a ratifying State, would contain the provisions of the Convention subject to control by the port State as well as, in the appropriate places, the relevant member States application of the substantially equivalent provisions of the applicable Articles of the Convention together with clear references to the relevant and applicable domestic legislation which should be posted in a central location in English and the working language of the ship. . Certification of Compliance will be made by the flag State, with the primary purpose of providing the ship with prima facie evidence that the provisions of the Convention applicable to the shipboard living and working conditions which are subject to control by the port State are complied with. Port state control would only make further inspections of the ship if there were clear grounds to justify further inspections. . The additional document would be made by the flag State, for the reason that all ships registered under one flag State will be subject to the same interpretation of the Convention. This document would therefore be broadly the same for every ship registered under a certain flag. . The additional document would, furthermore, form a part of the ratifying member States’ follow-up procedure under Article  if the ILO Constitution (described in Appendix II of /) and would therefore be indirectly approved by the ILO as meeting the provisions and intention of the Convention. There could also be a role for the tripartite maritime committee which 33

Final Report, supra note , Annex .

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chapter eleven may be established in the consolidated Convention in the oversight of the various auditing regimes, including the Article  procedure. . The document would therefore have the following uses: – It would describe the conditions under which the Certificate of Compliance would be issued. – It would be used by port state control inspectors to check the on-board living and working conditions subject to control by the port State against the flag States’ interpretation of the substantially equivalent provisions of the Convention. – It would be a reference document for the seafarers serving on board the ship and assist the resolution of disputes and complaints. – It would be a document providing objective standards, easily used by inspectors who might not be experts in labour-related issues and remove the current subjectivity and allow the communication of the provisions of the Convention subject to substantial equivalence to the ILO. Therefore, guidance should be provided in level  of the training of the various inspectors and other relevant officials involved. – It would be used by the member State as evidence of application of the Convention under Article  reporting and other auditing aspects. This should involve the establishment of a link to tripartite maritime structure which may be established in the consolidated Convention. . In addition to the Certificate of Compliance and the additional document, the Convention should also provide a third level of enforcement. Each flag State should adopt a mechanism that will ensure that all relevant Convention requirements are continuously complied. The precise mechanisms to be adopted will be determined by each flag State. Note : Inter alia, minimum age; medical certification; certification of competency; identity documents; articles of agreement/contracts; hours of work; crewing of vessels; accommodation; food and catering; health and safety and accident prevention; medical care; welfare on board/ ashore.

Although there are clearly some differences in the details, the core aspects of this proposal, as well as the eight principles in the Consensual Statement set out above (Figure ) are now contained in Title  and reflected in the Article  report form for the MLC,  that was adopted in .34 Grievance or complaint procedures, an important element in the Consensual Statement, proved to be more difficult for the Seafarers’ and Shipowners’ Groups to agree on. They also proved to be particularly difficult for one government35 in connection with the extent to which a foreign State (the port State) could or should provide a forum for seafarer complaints about breaches of the 34

Supra note . This matter caused great difficulty for the Government of Norway. See, for example, Report of the Discussion, Tripartite Intersessional Meeting on the Follow-up to the PTMC, Geneva, – April , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/ dialogue/sector/techmeet/ptmc/ptmc-.pdf, para. ; see also infra note .

35

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Convention by a shipowner (and de facto a flag State since presumably the complaint could mean that a seafarer’s complaint had not been addressed by the flag State administration). The statement of the shipowners’ representative regarding the “Joint submission by the Shipowners’ and Seafarers’ groups concerning provisional grievance procedures”36 provides a concise outline of the proposed approach and 36 Final Report, supra note , Annex , describes the key principles and offers commentary on the following extract from a document, which is reproduced in full as Annex  of the Final Report, HLTWG , supra note , outlining the history of the discussions on these matters up to  and concluding with a proposal from the Shipowners’ and Seafarers’ Groups on a way forward. Points below in square brackets [ ] are ones where agreement had not yet been reached (Ed note: the superscript reference numbers are as contained in the ILO report of the meeting; the number “” should be ).

At the Second Session of the High-level Tripartite Working Group which met in Geneva from  to  October  there appeared to be a general consensus that the new consolidated Convention should contain a mechanism to ensure that grievances raised by seafarers concerning breaches of Convention requirements applicable to the ship on which they were serving should be properly investigated and resolved . . . After discussion, both groups agreed that it would be best at this stage to develop a procedure that included all the various options for resolving grievances but which avoided establishing a hierarchy or order of precedence as to the order in which the options should be applied. [Both groups acknowledge that when flag state laws or labour-supplying state laws provide for exclusive jurisdiction for settlement of disputes between a seafarer and his/her employer such laws will be upheld.] The following represents the views of both the Seafarers’ and the Shipowners’ groups, and they are mindful that completion of this procedure will require further input from governments, particularly with regard to the shore-based procedures. Definition of “grievance” It was considered that the term “grievance” as used in the Convention should refer to breaches, or allegations of breaches, of the matters specifically covered in the Convention, as accepted and applied by the flag State of the ship on which a seafarer was serving. The groups did not discuss the actions that might be taken in the event that a particular breach or breaches were “proven”, but clearly this is a matter that must be resolved in due course. Internal procedures Grievances should be resolved on board whilst the seafarer raising the grievance is still serving on board. The on-board procedures need to be completed expeditiously and should not delay the seafarer’s normal discharge from the ship. The on-board procedures for dealing with grievances should normally: (a) require the seafarer, in the first instance, to direct any grievance to his head of department; (b) the head of department shall then attempt to resolve the matter within prescribed time limits appropriate to the seriousness of the issue; (c) if the head of department cannot resolve the grievance to the satisfaction of the seafarer it shall be referred to the master who shall handle the matter; 2[sic]

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concerns regarding the onshore procedures in the context of port State control action vis-à-vis complaints by seafarers on foreign ships that are in its ports (emphasis added): Thank you Madam Chairperson. I am very pleased to have the opportunity to address the Subgroup and speak in the Governing Body room for the first time. The Shipowners’ group acknowledges that Convention No.  gives seafarers the right to complain to port state control (PSC) inspectors when they have grievances relating to the requirements of that Convention. It is clear that, when our current

(d) the seafarer should at all times have the right to be accompanied by a friend or wherever practicable union representative; 1 (e) all grievances and the decision should be recorded and a copy provided to the seafarer; (f) if a grievance cannot be resolved on board then it shall be referred ashore to the employer who shall endeavour to resolve the matter within a prescribed time limit and in consultation with the seafarer’s representative; 1 (g) adequate safeguards on confidentiality should be provided and the seafarers should be protected from victimization for raising grievances in accordance with this procedure. 1 Further consideration of how to achieve this in practice will be required. It is considered that the procedures should also be available for the resolution of disputes that are not related to standards and requirements of the Convention, e.g. those relating to contracts of employment and collective bargaining agreements. External procedures The seafarer has the right to raise a grievance relating to standards and requirements of the Convention with appropriate government officials or agencies or through an appropriate legal system. If a grievance is raised with a government official or agency the official concerned should inquire whether the on-board procedures have been exhausted. The extent to which the on-board procedures have been utilized should be taken into account when determining how to handle the seafarer’s grievance. [The relevant government official or agency, or the legal system, which is requested to deal with the grievance will depend upon the circumstances of the case. In addition, the scope of the applicable laws and the effectiveness of the enforcement mechanisms of the flag State, the port State and the seafarer’s country of residence must be taken into account by the seafarer and the seafarer’s representative in deciding on the most appropriate mechanism to use to resolve a grievance.] [sic] 2

Indicates principles which should be inserted in the mandatory sections of the Convention, i.e. the Regulations or Part A.

[Nothing in these procedures shall in any manner prejudice the ability of the seafarers to exercise basic human rights including trade union rights.] General comment A full statement of both the internal and external procedures should be posted on board, in order that all seafarers have the opportunity to familiarize themselves with the procedures. The statement should be in English and the working language of the ship, if different.

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work is concluded, this right will apply in respect of the standards of the full Convention. The Shipowners’ group wants all seafarers to have the opportunity to present such grievances on board their ships using internal procedures. We also wish to encourage seafarers to make use of internal procedures to resolve their grievances. The Shipowners’ and Seafarers’ groups have held discussions prior to and during this meeting of the Subgroup with a view to presenting to governments and the Office a general statement of our thinking. These have resulted in a large measure of agreement with regard to internal grievance resolution procedures. However differences of opinion did become apparent when it came to consideration of how to settle disputes that could not be resolved internally and this is reflected in the document you have before you. Shipowners note that the right of a seafarer to complain to a PSC inspector does not equate to unfettered access to the courts of a port State. We feel it is not the role of an ILO maritime Convention to force port States to open up their legal systems to seafarers who are nationals of other States. Additionally we note that there exist in some flag States and laboursupplying States laws providing for exclusive jurisdiction over disputes involving seafarers resident there or serving on their ships. We would not expect these laws to be undermined. Whilst remaining mindful of these points, the Shipowners agreed with the Seafarers that it would be helpful to consider a range of options without seeking to establish an order of preference . . .. . . . Turning to external procedures, it is our belief that PSC inspectors should inquire whether internal procedures have been used to take the response to this inquiry into account when deciding whether and/or how to deal with the complaint. We recognize that, depending on the circumstances of the case, the PSC inspector may consider it appropriate to take action on a complaint when the internal procedures were not used in full or in part . . ..

Although elements have been modified or elaborated in the text that was finally adopted, much as with the proposed approach to an enforcement system, the core conceptual approach remains as articulated in these early jointly agreed upon proposals. In addition, flag States were required to develop onshore ‘grievance’ or ‘complaint-handling’37 procedures. The next and perhaps most important evolution in the development of the MLC,  text, at least with respect to Title , occurred with the work undertaken at the fourth HLTWG meeting in January .38 The evolution was essentially the final39 step in ‘mainstreaming’ the MLC,  compliance

37 As it came to be known, to avoid confusion with grievances under collective bargaining agreements. 38 Final Report, HLTWG (Fourth Meeting), Nantes, – January , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf. 39 As noted earlier, the ship certification, expanded PSC, and rapid amendment procedures under IMO conventions were an explicit strategic consideration from the earliest stage in the

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and enforcement system with the existing practices for ship inspection and certification and port State control for IMO conventions. The records of this meeting show that the participants expressly adopted and adapted provisions and practices that existed in connection with various IMO instruments. They did so in order to shape a system that would better achieve compliance at the shipboard level by private actors as well as at the international (State) level through the ILO’s supervisory system. Thus many of the provisions developed at the HLTWG in  reflect the wider international maritime regime on these points as they were a codification and/or elaboration of practices set out in IMO resolutions and in regional PSC MOUs. In the MLC,  they were articulated as detailed binding text in a multilateral instrument. Viewed against the existing maritime labour conventions dealing with maritime labour inspections40 and the early form of port State control,41 these mandatory provisions clearly constitute a further development rather than a consolidation of the existing obligations. As discussed earlier42 this ‘mainstreaming’ also included provisions on the authorization (delegation) of some flag State inspection responsibilities to ROs and aligning the timing of inspections and format of on-board documentation related to the ship inspection and certification process with the existing inspection and certification procedures for compliance with the IMO conventions. The fourth meeting of the HLTWG meeting was organized on the basis of four working parties devoted to specific areas of the Convention, one of which, Working Party C, dealt with the certification and inspection system.43 Working Party C proposed important new text and, as noted above, adjusted the draft text to address the inclusion of detailed provisions drawn mainly from an IMO resolution44 regarding the authorization of public institutions or

development of the Convention. See: Two draft papers on enforcement and simplified amendment; Considerations for provisions on inspection and control in a consolidated maritime labour Convention (Draft I); Simplified amendment procedure for the proposed new maritime labour Convention (Draft II), Tripartite SubGroup of the HLTWG (First Meeting), Geneva, , ILO Doc. No. STWGMLS /, available at http://www.ilo.org/public/english/dialogue/sector/ techmeet/stwgmls/stwgmls-.pdf. The audit and monitoring approach adopted by the International Civil Aviation Organization (ICAO) was also considered (ibid., see para. ). 40 Labour Inspection (Seafarers) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm. 41 Namely, the Merchant Shipping (Minimum Standards) Convention,  (No. ), Geneva,  October , available at http://www.ilo.org/ilolex/english/convdisp.htm. See: supra note  and . 42 Supra notes  and  and Chapter . 43 See: Final Report, supra note , paras –. 44 Supra notes  and . See also Chapter  and infra discussion regarding Regulations .. and .., and note .

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other organizations to carry out flag State inspections.45 The Working Party developed the name and content of the on-board documents46 (Appendix A-II), and agreed that they would include the basic identifying information found in certificates issued for compliance with IMO conventions and that they would be ‘model’ (i.e., mandatory format), rather than example, documents, to help ensure uniformity in format and content.47 This meeting also adopted, again in line with the IMO conventions, a five-year validity

45

Final Report, supra note , see paragraph , and see discussion infra on Regulation ... at note  (emphasis added): . . . . The text draws upon existing IMO requirements under the SOLAS Convention, as well as provisions in IMO Assembly resolution A.() concerning guidelines for the authorization of organizations acting on behalf of the administration. A footnote making specific reference to this resolution has also been considered in the guidance text.

In fact the footnote was not included in the final text, however, a specific reference is included in Guideline B.., paragraph , without reference to a specific resolution other than by title. 46 Final Report, supra note : Renaming “declaration of compliance” . The Shipowners’ group proposed that the term “declaration of compliance” (DoC) should be changed to “maritime labour compliance document” (MLDoC) in order to avoid confusion with the “document of compliance” issued under the International Safety Management Code (ISM Code) provisions of the SOLAS Convention, which would therefore have the same acronym, i.e. DoC. The Seafarers’ group indicated a preference for the use of the term “declaration” as proposed in the preliminary second draft. The term “declaration of compliance” therefore appears in square brackets in the text. 47

Ibid. (emphasis added): . It was generally agreed that the maritime labour certification and the “declaration of compliance” should conform to a model provided in an appendix to the Code and not be developed by each Member. This was agreed as, inter alia, it was considered that standard models would avoid confusion by port state control officers and others. The Office was requested to incorporate wording similar to that found in IMO instruments concerning model formats. . Following the above agreement, it was further agreed that the model certificate and “declaration of compliance” should be based on the model provided in document TWGMLS/ / submitted by a Government representative on behalf of the Office and subsequently redrafted following comments by the Working Party. It was suggested that certain information required on the certificate which concerned the shipowner/company should be modelled on information required on the safety management certificate issued in accordance with the ISM Code, that the certificate indicate that intermediate inspections as opposed to annual inspections had been undertaken, and that the provisions concerning the responsibilities of companies in Part III of the “declaration of compliance” should be based on the requirements of SOLAS XI-, Regulation . . . . The Seafarers’ group wanted the Office, when developing the model, to take into account the information required by new Regulation  (Continuous synopsis record) of Chapter XI (Special measures to enhance maritime safety) of the SOLAS Convention and Regulation  (Specific responsibilities of companies) of Chapter XI- (Special measures to enhance maritime security) in as far as they are consistent with the new ILO Convention . . .

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period for the certificates, as well as the inclusion of provisions for intermediate inspections,48 and introduced the concept of provisional or interim certificates.49 Despite the initial agreement between the Shipowners’ and Seafarers’ Groups on the eight principles (Figure ), significant areas of difficulty began to emerge at the fourth HLTWG meeting involving specific concerns from governments. These difficulties were in connection with the scope of application of the Convention and the inspection and certification system (i.e., any tonnage limitations), and the wording regarding the basis for a flag State refusal to allow a ship to sail.50 Although port State control was not discussed at length, there was discussion on whether the MLC,  provisions based on the certificate providing prima facie evidence of compliance was ‘weaker’51 than the 48

Final Report, supra note : . In order to compromise between proposals to make the certificate valid for three or five years, respectively, it was proposed that the maritime labour certificate should be issued for a period not exceeding five years and that the validity of the certificate should be subject to at least one intermediate inspection. Such an intermediate inspection should take place between the second and third anniversary dates of the certificate. After some discussion, it was generally agreed that this intermediate inspection would be a full inspection. A Government representative assisted in the preparation of new text concerning this issue, and the Office was asked to take this into account when redrafting the Regulation, Code and Guidance concerning maritime labour certificates and the “declaration of compliance”.

49

Ibid.: . Following a proposal introduced by the Shipowners’ group concerning “provisional registration”, it was generally agreed that the Standard concerning the maritime labour certificate and “declaration of compliance” should provide for the possibility of an “interim certificate”. However, the number of situations in which issuing such provisional certificates would be appropriate would be very limited. Generally, in keeping with a submission by a Government representative of draft text concerning interim certificates, it was proposed that such a certificate would be provided: to . . .. The idea is that this type of certificate would have a short-term validity and will be used in exceptional circumstances,. The period of validity of such a certificate is still to be determined and the discussion mentioned periods between three and six months (left in square brackets). Text was also proposed concerning what must be verified before the interim certificate could be issued. ...

50

Ibid.:

. Standard A.., paragraph (c), of the Office text was placed in square brackets and the Office was asked to suggest new wording. Some Government representatives were concerned that the existing text would mean that all deficiencies would have to be remedied before a ship was permitted to leave port. The Seafarers’ group expressed their concern that current procedures, which generally were aimed at implementing IMO requirements and focused on the ship and its equipment, could not simply be used to inspect labour conditions . . . 51

Ibid. (emphasis added):

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IMO practice set out in its resolutions52 and under the regional PSC MOUs,53 which envisage a tour of the ship as well as inspection of on-board documents. In addition, the nature and scope of PSC, particularly in connection with ship detentions and with the handling of seafarer complaints in foreign ports was controversial. All of these issues came to the fore at the PTMC in September  and, in some cases, remained unresolved until the Intersessional Meeting in . In the case of the tour of the ship and the prima facie role of the on-board documents, although settled in the Convention text, it remains a point of tension even now as the Convention is ratified and implemented, with PSC MOUs developing guidance that includes the usual practices. It should be noted that not all of the matters were resolved in the provisions found in Title . For example, as discussed in Chapter  in connection with Article II,54 it was agreed at the fourth HLTWG that the relationship between Parts A and B of the Code and, specifically, that the Guidelines in Part B, would not be the subject of PSC.55 While the status of such an agreement during the course of negotiation of a convention might be of questionable, the agreement is reflected in the adoption of a defined term in Article II, paragraph (e), and is also expressly stated in paragraph  of the Explanatory Note56 to the Convention (emphasis added):

. Several Government representatives also expressed concern over Regulation .., paragraph , which provided that: “Members shall accept the maritime labour certificate and the declaration of compliance . . . as prima facie evidence of compliance with the standards of this Convention; accordingly, the inspection in their ports shall, except in the circumstances specified in the Code, be limited to a review of the certificate and declaration”. They felt that this provision was weaker than similar provisions in IMO Conventions and in IMO resolution A.() on port state control as amended. They suggested that the Office should revisit this text to provide, for example, that the port state control officer should continue to look at accommodation after boarding the ship and before examining the maritime labour certificate and [declaration of compliance]. The Shipowners’ group indicated that their agreement to the idea of a certificate had been made on the condition that it would be considered prima facie evidence of compliance with the Convention, and they said they did not support changes to the text. 52

For example, Procedures for Port State Control, IMO Resolution A.(),  November , as amended. 53 See, for example, Paris Memorandum of Understanding on Port State Control,  January , as amended, available at http://www.parismou.org/, Section , at .. 54 See: Chapter  at notes  and . “Requirements of this Convention” refers to the requirements in this article and in the regulations and Part A of the Code of this convention, which, as noted in Chapter , primarily appears in Title . 55 See the discussion in Chapter  at pp. –, and Final Report, supra note . 56 See the discussion in Chapter  at pp. –.

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. Members which have ratified this Convention are not bound by the guidance concerned and, as indicated in the provisions in Title  on port State control, inspections would deal only with the relevant requirements of this Convention (Articles, Regulations and the Standards in Part A) . . .

At the PTMC, the draft Convention text was again considered by three technical committees. The text in the preamble, articles, Explanatory Note, Title , and the appendices were reviewed by Technical Committee No. .57 As discussed in Chapter ,58 the few areas of significant disagreement that were not resolved at the PTMC59 were addressed through the device of adopting a draft Convention60 text containing ‘gaps’ or ‘blanked out’ provisions that 57 Report of Committee No. , PTMC, Geneva, – September , ILO Doc. No. PTMC/ /–, available at http://www.ilo.org/public/english/standards/relm/maritime/pdf/ptmc--.pdf. These proved to be very difficult discussions on some matters, leading the rapporteur for the session to comment on presenting the report of the  sittings:

. . . our particular thanks to you, Mr. Chairperson, for guiding us through the debate. You were always fair and friendly but firm—a rare combination that helped us steer past seemingly impossible obstacles. Your use of maritime metaphors helped remind us of the seafarers we are seeking to protect, though I must admit, when our passage became rough and you spoke of running up on the rocks, some of us were feeling a little seasick. Nonetheless, thanks to your careful watchkeeping, we are getting closer and closer to the opposite shore and the goal we all wish to achieve. See: Record of Proceedings , PTMC (Second Sitting), Geneva, – September , (Report of Committee No. : Submission, Discussion and Approval), p. . 58 See Chapter , discussion ‘Procedural Innovations to Deal with Unresolved Issues’ at pp. – . 59 As noted by the Rapporteur for Committee No. , Record of Proceedings, supra note , pp. – , two of the more difficult issues were resolved, one, the case of Article III, through intervention by the President of the Conference (‘Friends of the President’): The contentious issue of Article III was settled after much long and hard debate of which you are all aware. It was settled, thanks to the intervention of our President. Part of the compromise included moving the reference to the Declaration on Fundamental Principles and Rights at Work to the Preamble, as I mentioned earlier. As those of us who have been involved in this work from the start will recall, an essential issue, particularly for Governments, has been reaching agreement on what is meant by the term “substantial equivalence”. This matter was finally settled with the assistance of the Legal Adviser. I believe that, by coming to this agreement, we have opened the door for many countries to ratify the Convention when it is finally adopted by the Maritime Conference a year or so from now. See: Chapter , note , and Chapter , note  and discussion of Article III at pp. –. See also Committee No.  Report, supra note , regarding Article III at paras – and – and concerning ‘substantial equivalence’, the explanation by the Legal Adviser to the ILO at paras  and . 60 Draft Maritime Labour Convention, Preparatory Technical Maritime Conference, Geneva, –  September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/ptmc/pdf/ptmc--.pdf.

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remained controversial or were not otherwise resolved at the PTMC.61 Many of these were located in Title , particularly in relation to the issue of when a ship could be detained. As explained by the rapporteur of the Committee: After a few days, our Committee sank its teeth into what has been referred to as the meat of the Convention itself: Title  on compliance and enforcement. The Regulations, Standards and Guidelines concerning inspection and enforcement provided us with some interesting challenges. Paragraph  of Standard A.., as adopted, would now empower inspectors to prohibit a ship from leaving port until necessary actions were taken when they have “grounds to believe that a case of non-compliance constitutes a breach of the requirements (including seafarers’ rights) provided for in this Convention or represents a significant danger to seafarers’ health, or safety or security”. . . . Finally, our Committee made some progress on the port state control issues by adopting changes to paragraph  of Standard A... Now, when an authorized officer, having come on board to carry out an inspection, finds that there are “reasonable grounds to believe that the ship has changed flag for the purpose of avoiding compliance with this Convention”, he or she may carry out a more detailed inspection. However, the Committee had considerable difficulties with the part that concerns when such an inspection shall be carried out, and we made no further progress on the issue of port state control.62

These ‘blanked out’ provisions were, therefore, essentially tabula rasa when considered at the Intersessional Meeting in April  together with the proposals for amendments that had not been considered at the PTMC due to time constraints. To assist in discussions, the International Labour Office prepared two papers: the first contained proposals for text to address the  areas of unresolved text,63 and the second was a compendium of all proposed amendments with commentary.64 Of the  blanked-out areas only one, the entry

61

See also: Unresolved Issues for the Draft Consolidated Maritime Labour Convention, , Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ ptmc/ptmc-.pdf, paras – :  . . . A different procedure was adopted by the PTMC to deal with proposed amendments to the “unbracketed text”, as there was also insufficient time to discuss them. 62

Record of Proceedings, supra note , p. . Unresolved Issues, supra note . 64 Compendium of Proposed Amendments to the Draft Consolidated Maritime Labour Convention, , Tripartite Intersessional Meeting on the Follow-up of the PTMC, Geneva, , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/dialogue/sector/ techmeet/ptmc/ptmc-.pdf. See also supra note . The PTMC did not finalize several of the  areas of text largely because of minor wording issues or insufficient time for review rather than disagreement over principle or concept (e.g., the description of the content of the DMLC in Standard A.., paragraph ). 63

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into force and the amendment formula, remained blank (unresolved) after the Intersessional Meeting.65 Chief amongst the unresolved issues addressed by the meeting in  was the scope of application66 and inclusion of a general tonnage limitation.67 This was particularly a matter of concern for governments in connection with Title  flag State inspection obligations. An inspection and possible certification obligation for all ships, including those ships not usually addressed by the international maritime regulatory regime (e.g., smaller ships and ships operating in domestic trades), would significantly increase the responsibilities and cost for flag State administrations and/or shipowners if fees for inspections were involved. It will be recalled that a Working Party at the Intersessional Meeting developed a ‘solution package’ of provisions that did not contain a general tonnage limitation for the MLC,  but did contain some ‘tailoring’ of tonnage with respect to mandatory ship certification (see below under Regulation ..). 65

Letter of consultation from the International Labour Office to Members following the Intersessional Meeting. Although on one point the Seafarers’ Group preferred deferring until June  to await the outcome on the Work in Fishing Convention, . 66 See Chapter , ‘Article II—Definitions and Scope of Application,’ pp. –. 67 Unresolved Issues, supra note , Note : Article II, paragraph  (emphasis added), explained that: . . . . In the Recommended Draft, subparagraph (a) of Article II, paragraph , contained a possible exclusion of ships of less than a certain gross tonnage. Agreement was not reached at the PTMC on such exclusion. The subparagraph has therefore been left blank and is the question to be resolved. . Participants in the PTMC who were in favour of such an exclusion referred to ships of less than  gross tons. The Shipowner representatives were in favour as well as a number of Government representatives, who stated that their countries would have problems in applying the requirements of the Convention to small ships. There was also a concern that the Convention should be consistent with other international maritime conventions such as the International Convention for the Safety of Life at Sea (SOLAS), , particularly in light of the certification and port state inspection system provisions. . The Seafarer representatives and a number of Government representatives took the view that that it was fundamentally important for seafarers to be protected regardless of the size of the ship on which they were serving. It was pointed out that a number of the provisions in the Recommended Draft, such as the hours of work and rest or minimum age requirements, were not tonnage related. There should therefore be no exclusion a priori in Article II, paragraph , although specific exclusions could be provided for under the various Titles of the Convention. Some of those Government representatives indicated that there would need to be size limits in Titles  and  of the Convention in view of the ship design and accommodation requirements and also the potentially heavy administrative burden of inspections. However, in the context of Title  (compliance and enforcement), the Shipowner representatives pointed out that, if small ships were to be covered by the Convention and to be subject to port state inspections, they should not be excluded from the benefit of flag state inspection and certification constituting prima facie evidence of compliance. See also: Chapter  pp. – and –.

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Perhaps surprisingly, another area of difficulty for governments during the PTMC68 that was resolved at the Intersessional Meeting was whether the Code, Part A (Standards), in Title  should be subject to the more rapid amendment procedure in Article XV. It had already been agreed that this Part would not be subject to substantial equivalence under Article VI, paragraphs  and .69 The rapporteur for Technical Committee No.  at the PTMC summarized the concerns: We did not reach agreement on preambular paragraph , though the Committee spent some time exchanging views on whether or not Part A of the Code of this Title should be amended in accordance with the procedures set out in Article XIV. The Seafarers and a few Governments indicated that it might not be a good idea to make it difficult to change the Title, primarily because Title  was new and might need to be revisited after we gained experience trying to implement it. The Shipowners and many Governments preferred to make it harder to amend so as to provide the industry and competent authorities with some degree of stability when they invested resources into putting new systems in place.70

The Intersessional Meeting, with very little discussion, resolved this question, in favour of allowing for future changes through the more rapid amendment procedure.71 There were three other matters of disagreement and difficulty that were resolved at least to the point of adopting a draft text for consideration by the th ILC. The first major difficulty, as noted above, related to PSC. Specifically, the wording of Standard A.., paragraph  (final sentence), the first sentence of paragraph , a clause in paragraph , and, importantly, all of paragraphs  and , which deal with the basis for detention of a ship including the guidance in Guideline B.., paragraph . An important step in the resolution of this issue arose from a conceptual proposal put forward at the Intersessional Meeting: 68 See: Committee No.  Report, supra note , paras –. Although the outcome in not entirely clear in the record, the final text emerging from the PTMC was numbered paragraphs , , and  with a ‘blanked out’ space for paragraph , which was considered as not decided. See: Draft Maritime Labour Convention, supra note . 69 See: Consolidated Maritime Labour Convention, Recommended Draft, Preparatory Technical Maritime Conference, Geneva, – September , ILO Doc. No. PTMC//, available at http://www.ilo.org/public/english/standards/relm/maritime/pdf/cmlc-draft.pdf. The controversial paragraph  in Title  stated:

. [The provisions of Part A of the Code in this Title may be amended only in accordance with the procedure set out in Article XIV. Part B and the appendices to Part A may also be amended in accordance with Article XV.] 70

Record of Proceedings, supra note , p. . Report of the Discussion, supra note , Note : Title , paras –. See also: Unresolved Issues, supra note , Note : Title , paragraph . 71

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. The representative of the Government of Japan supported a strong enforcement mechanism of the Convention. However, port state control should only be complementary to flag state inspections, and its criteria should be clear and objective. The second part of the [Office’s] proposal in paragraph  of Note  contained far too subjective language. He suggested the following new wording, inspired from Standard A.., paragraph (c), concerning flag state inspections: .a serious breach of the requirements of this Convention (including seafarers. rights).72

This approach was also supported by the Chair of the Paris MOU, the first and most influential regional PSC MOU, who commented: . An observer (Chairperson of the Paris Memorandum of Understanding), recalling the recent concentrated inspection campaign on ILO issues, recognized that this was a very subjective area. It took port state inspectors much time and effort to do their job properly. Clear guidelines therefore needed to be developed with the ILO for the training of inspectors in this important area. Port state inspectors would need guidance as to what constituted a violation of fundamental principles and rights. The Japanese proposal was attractive because it reflected flag state responsibilities. However, port state control should not go beyond flag state responsibilities but rather ensure that flag States and shipowners complied with the requirements of the Convention.

This concept of ‘mirroring’ between the text in the flag State inspection and the port State control regulation allowed for progress to be made in developing the wording of the final Convention text on this issue.73 The provisions relating to on-board complaint procedures (Regulation ..) and in connection with onshore seafarer complaint handling (Regulation ..) in foreign ports also remained controversial at the PTMC. This was largely because of concerns, in the case of complaints in foreign ports, over their potential infringement of the sovereignty of the flag State, and also the impo72

Report of the Discussion, supra note . Ultimately the Intersessional Meeting adopted text (which was later modified to replace ‘case of non compliance’ with ‘any deficiencies’) based on wording proposed by the seafarers following the suggestion by a representative of the Government of Japan (ibid.): 73

. The Seafarers’ group’s proposal for insertion in Standard A.., paragraph  was as follows: Such inspection shall in any case be carried out where the working and living conditions believed or alleged to be defective could constitute a clear hazard to the safety or the health or the security of seafarers or where the authorized officer has grounds to believe that a case of non-compliance constitutes a serious breach of the requirements of this Convention (including seafarers. rights). . The Seafarer spokesperson also remarked that the Office proposal contained in Note , paragraph , contained interesting wording, and that the allusion to complaints in paragraph (d) of Standard A... seemed rather restrictive. . The Shipowners. group could accept the Seafarers’ group’s proposed text, noting that this would not affect their position on later provisions in the text. . The Meeting accepted the Seafarers’ group’s text.

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sition of additional responsibilities on port States, particularly in connection with potential complaints regarding flag State failures.74 Text for both topics75

74

Ibid. As discussed above at note  and infra note  this matter caused great difficulty for the Government of Norway: . The representative of the Government of Norway recalled that there were considerable concerns about earlier drafts at the PTMC. The explanations provided in paragraph  on page  of document PTMC// were not very helpful. There were diverging national rules, which were not globally recognized through international Conventions. Paragraph  might allow for legal action in each ratifying Member. He questioned whether this was supposed to mean that each port was a potential legal venue. This was strange in light of international treaty law. It was necessary to use a different approach. The legal venue for lawsuits had to be addressed directly, rather than implicitly. If the Seafarers’ group were ready to do it explicitly, his delegation was ready to agree that the state of incorporation of the company owning the ship, or country of legal residence of the respective seafarers were to be included among possible legal venues. There were a certain number of other options in this regard. However, his delegation could not agree that the mere fact of a ship calling into any port created a venue for all legal suits.

75 The difficulties with Regulation .. were less complex than the onshore provisions and in part related to questions of interaction with existing grievance procedures. As described in Unresolved Issues, supra note , Note : Regulation .., Standard A.. and Guideline B.. (emphasis added):

. Regulation .. and the associated provisions in the Code, in the Recommended Draft, related to on-board complaints procedures. The majority of the provisions on this issue were not in brackets in the Recommended Draft as they were not considered controversial. . . . . It is important to place the issue of seafarer complaints about working conditions within the overall system of enforcement and compliance in Title . The flag State has a primary obligation to ensure that ships flying its flag comply with national laws implementing the Convention. It has issued certificates to that effect. However, given the nature of shipping, it is difficult for the flag State to identify breaches of national law. The flag State can ensure continued compliance through the required inspections and through the assistance of port state inspection which will help to verify that continuing compliance. The other way in which the flag State can ensure compliance is through systems whereby concerns can be raised by those protected by the laws (seafarers) regarding possible breaches of national law. Failing this the flag State will not be properly fulfilling its obligation to effectively implement and enforce its laws implementing the Convention. The on-board procedures are one mechanism whereby potential breaches of national law implementing the Convention or related issues can be identified and addressed by the shipowner before the matter requires the intervention of the flag state administration or recourse to other legal proceedings. At the Intersessional meeting the following was agreed (see Report of the Discussion, supra note ): . The Seafarer spokesperson, having mentioned that the procedure in Title  was not to be involved in the present debate, observed that in Regulation .., paragraph  could be discussed, whilst paragraphs {}{} and {}{} had been agreed previously and should be included in the text. Paragraph  was important to the Seafarers’ group, in particular regarding the copy of the complaints procedure to be provided with the employment agreement. In paragraph  there would be amendments, in particular regarding the use of

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developed at the Intersessional Meeting addressed these concerns.76 The text in Regulation .. and Standard A.. was resolved by avoiding the politically sensitive issue of legal venue (although this arose to some extent again, albeit formulated differently (now Title , paragraph ) at the th ILC in ). As explained in the letter of consultation sent out by the International Labour Office after the Intersessional Meeting: . This issue was discussed together with on-board complaint procedures . . .. The provisions concerned had given rise to strong differences of opinion over a number of years during the preparatory work. The basic approach which resulted in the word “victimization”. Guideline B.. could be improved by the Tripartite Drafting Group. Finally, some of the procedures could be moved to Title , but he agreed that it was not for the current discussion . . .. . The Seafarer member of the Tripartite Drafting Group reported that, after much reflection, the group had agreed to revisit the text of on-board complaint procedures in Regulation A.., Standard A.. and Guideline B.. of the Recommended Draft of the consolidated maritime labour Convention, as submitted to the PTMC. It agreed to replace the two alternative texts for paragraph  of Regulation .. with the following text: Each Member shall require that ships that fly its flag have on-board procedures for the fair, effective and expeditious handling of seafarer complaints alleging breaches of the requirements of this Convention (including seafarers’ rights). . . . . The Meeting agreed and sent the text to the PTMC Drafting Committee. 76

Report of the Discussion, ibid.:

. The representative of the Government of China, on behalf of the Government group, stated that . . . As concerned Note  on the onshore complaint-handling procedures, they felt that the text of the Recommended Draft of the consolidated maritime labour Convention, submitted to the PTMC, should be used as a basis and modified to take account of the following stages in the complaint procedures: – right of a seafarer to report a complaint to the port State; – initial investigation of a complaint by the port State, checking that it cannot be resolved by on-board procedures; – seeking early rectification by the ship, where practicable; – where the complaint cannot be resolved at the ship level, the port State to refer it to the flag State, seeking advice and a plan of action for rectification; – where the complaint is not resolved after the foregoing actions have been taken, the port State to report, as appropriate, the matter to the flag State, the ILO, and Shipowners. and Seafarers. representatives in the member State, including any response given by the flag State (as per paragraph  of Standard A..); – recording of complaints relating to the Convention. . The Government group requested that the Tripartite Drafting Group produce a new draft on that basis. The new text should remain silent on, and not explicitly or implicitly refer to, the legal right of the seafarer to pursue a complaint in a court of law, e.g. absence of all references to jurisdiction, hearings and to the International Convention on the Arrest of Ships,  (“Arrest Convention”). In particular, the new draft text should recognize the need to ensure a practical means of redress for the seafarer, while also clearly recognizing the inherent limitations of port state control (paragraph . of the Seafarers’ paper) and that the port state authorized officer should have no obligation to resolve all complaints, only to investigate and resolve, if possible.

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tripartite consensus at the Intersessional Meeting was drawn up by the Government Group. Under this approach, the text would avoid any explicit or implicit reference to the legal right of the seafarer to pursue a complaint in a court of law and to similar questions which had given rise to problems for certain countries under national or international law. It would recognize the need to ensure a practical means of redress for the seafarer, while also clearly recognizing the inherent limitations of port state control . . .: the port state authorized officer should have no obligation to resolve all complaints, only to investigate and resolve, if possible.77

Similarly the question of matters to be included in the list of areas for certification and inspection was also resolved (although the wording was adjusted in the final text to better align it with the Convention text).78 As the foregoing suggests, most of the major areas of disagreement at the PTMC were resolved at the Intersessional Meeting in , at least to the point of proposing agreed upon text. At the ILC in , other than some debate over proposals for a new paragraph relating to non-discrimination in access to courts and additional references to social security, the discussion largely related to specifics of wording of the text (e.g., Members’ reporting requirements to the ILO) rather than major differences in views regarding the concepts or approach in the provisions.79

77

Letter of consultation, supra note . Ibid., para. . 79 See: Report of the Committee of the Whole, International Labour Conference, th (Maritime) Session, Geneva, , ILO Doc. No. PR(Part I), available at http://www.ilo.org/public/ english/standards/relm/ilc/ilc/pr--i.pdf. Despite a lengthy record of the debate concerning Title  (paragraphs –), there was general support for the provisions in Title , as the following excerpt suggests: 78

. The Employer Vice-Chairperson announced that the Employers’ group was completely supportive of the supervisory mechanisms set out in Title . Title  was mainly addressed to Governments, as they would have to implement the instrument. The Employers would nonetheless be operating under these rules and hoped for as little bureaucratic burden as possible. . . . . the Workers shared the Employers’ satisfaction with Title , considered it a balanced compromise, and recognized that it was the most sensitive part of the Convention. . The Government member of China, speaking on behalf of the Government group, indicated that Governments had focused their efforts on fine-tuning some of the details contained in Title . . The Government member of the United Kingdom stated that Title  dealt with the responsibilities of governments, as flag States and port States, and these responsibilities were taken seriously. He welcomed the proposed Convention as a new pillar of the maritime regulatory system, but stressed the importance of a workable instrument. Title  was crucial in terms of government decision-making with regard to ratification of the Convention. . . . The final area of concern related to Guideline B.., paragraph (d), which recommended that the annual report of the competent authority contain statistics

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chapter eleven Analysis of the Title  Text

The balance of this chapter considers the final text that was adopted on Title . Given the length and detail of the provisions in Title  is it is not possible, within the framework of this book, to discuss each paragraph. Rather, as has been the case in the preceding chapters, the focus will be on provisions of specific interest or difficulty. This review begins with the introductory paragraphs and then examines the three key regulations and their sub-regulations. Although they are organized sequentially at the end of the Convention text, the appendices for each regulation will be discussed in connection with the relevant Convention text (i.e., Appendices A-I, A-II, and B - I with Regulation ., Standard A.., and Appendix A- III with Regulation A..). The provisions will be examined in the order in which they are arranged in the Title. As is the case with the regulations under other Titles, the three key regulations have purpose clauses to provide a ‘plain language’ indication of their objectives. It must also be recalled that each Title is primarily directed to governments that must establish a system for compliance and enforcement and is, therefore, not itself a matter for labour inspection at the shipboard level but rather a matter for the ILO’s supervisory system. However, Title  contains one regulation (Regulation ..) that must be considered in the same way as the other substantive provisions set out in Titles – as it is a matter for inspection and, for some ships, certification. For practical application of the provisions in Title , the Guidelines for Flag State Inspections and the Guidelines for Port State Officers80 are also important references. Introductory Paragraphs As noted previously, the structure of Title  differs from Titles – in that it has three primary regulations and related sub-regulations and four ‘floating’ opening or introductory paragraphs that do not have a regulation number, heading, or purpose clause. In some respects they can be regarded as overarching chapeau directed to questions of interpretation. For purposes of this chapter they are described as introductory paragraphs. The tripartite structure of Title , albeit with different terminology, including one introductory or, as described in the Office Commentary81 prepared for the second Tripartite on all seafarers. This provision asked for information that was not always available, such as information on non-national seafarers or national seafarers working on foreign ships. The provision was too far-reaching and should be deleted. 80

Supra notes  and . Note: Both the draft text and the official Commentary/report have the same title however the document numbers differ with the Commentary described as ‘annex’. Preliminary draft for a 81

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SubGroup meeting in February , ‘opening’ paragraph, appears in earliest drafts of the Convention.82 The number of introductory paragraphs expanded to four during the development of the MLC,  to address issues that did not specifically fit under the three regulations dealing with flag State, port State, or labour supply responsibilities. The initial opening paragraph, which responded to the question of whether the rapid amendment procedures could apply to Part A of the Code in Title , was finally deleted, as explained earlier,83 by the Intersessional Meeting in . The current paragraph  was a new addition proposed and adopted after significant debate by the th ILC in . Paragraph , which might seem to state the obvious, was introduced in the draft Convention text considered by the third meeting of the HLTWG in June : . The Regulations in this Title amplify each Member’s responsibility to fully implement and enforce the principles and rights set out in the Articles as well as the particular obligations provided for under Titles , ,  and .84

Aside from one wording change at the fourth HLTWG meeting, paragraph  can be understood as explanatory in that it echoes the existing implementation and enforcement obligations in Articles I and V and explains the relationship between Title  and the obligations in the other four Titles (and, it should be added, Regulation ..). The adjustment in wording, changing ‘amplify’ to ‘specify’ in the current text, was adopted to address concerns that this paragraph should not enlarge obligations.85 Similarly, paragraph  repeats,

consolidated maritime labour Convention, Tripartite Subgroup of the HLTWG (Second Meeting) Geneva, , ILO Doc. No. STWGMLS// (Annex), available at http://www.ilo.org/public/ english/dialogue/sector/techmeet/stwgmls/twgmls-r-ax.pdf, Comment  on Title : This Title, on enforcement, is a conglomerate of three different elements: . . . The opening paragraph is partly based on a suggestion made at the second meeting concerning the simplified amendment procedure (see Comment  above, under Article XIII). As an exception to the normal rule, that procedure would not be applicable for the body of Part A of the Code. It could however be used to amend the appendices, particularly Appendix A. relating to the scope of inspections. 82 Preliminary Draft for a Consolidated Maritime Labour Convention, Tripartite Subgroup of the HLTWG (Second Meeting), Geneva, , ILO Doc. No. STWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/stwgmls/stwgmls-r.pdf. 83 See the discussion supra main body text at notes  and . 84 Preliminary Draft (Annex), supra note , Comment  (Title , Regulations and Code, Parts A and B.) 85 Final Report, supra note  (emphasis added):

. According to paragraph , the regulations in Title  “amplify” each Member’s responsibility to fully implement and enforce the substantive rights provided for in the other parts of the

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perhaps as a matter of clarification, the existing obligations set out under Article IV, paragraph , to implement the regulations in the manner set out in Part A of the Code and to do so giving “due consideration” to Part B. Despite concerns for more flexibility by some governments,86 paragraph  provides that implementation through ‘substantial equivalence’, as provided in Article VI, paragraphs  and , does not apply to Part A of the Code in Title . This approach was adopted to address concerns about uniformity in flag State inspection and certification and PSC practices.87 The last paragraph, paragraph , was introduced88 at the th ILC, initially as a proposed amendment by the Seafarers’ Group to add a new clause, a paragraph , to Regulation .—Flag State responsibilities, Regulation ..— General principles providing that: Seafarers, like shipowners and all other persons, are equal before the law and are entitled to the equal protection of the law and shall not be subject to discrimination in their access to courts, tribunals or other dispute resolution mechanisms. Convention. It was agreed that the word “amplify” should be reviewed to avoid any sense of enlargement of the rights concerned. 86

Ibid.: . Several Government representatives indicated that they wanted substantial equivalence to apply to paragraph , citing specific problems with certain provisions of the mandatory provisions in Standard A of Title . However, it was generally agreed that the square brackets around paragraph  could be deleted and the square brackets were removed. The Government representative of Germany stressed that “substantial equivalence” was absolutely essential in areas of Title  concerning inspection, complaint procedures and compensation.

87

Report I(A), supra note , Note  (Title ): . In the introductory paragraphs to Title , paragraph  precludes the use of substantial equivalence (under Article VI, paragraphs  and , see Note , paragraph ) for the implementation of Part A of the Code under Title . It thus removes part of the flexibility that is given to ratifying Members in their implementation of the Titles on substantive rights. The PTMC agreed with the view that this restriction was necessary as there should be greater uniformity among Members in the area of enforcement

See also: Consolidated Maritime Labour Convention (Preliminary Second Draft), Commentary, HLTWG (Fourth Meeting), Nantes, , ILO Doc. No. TWGMLS//, available at http:// www.ilo.org/public/english/dialogue/sector/techmeet/twgmls/twgmls-r-.pdf, Comment  (on Title ) (emphasis added): . . . . The preceding paragraph, also in square brackets, would preclude the use of substantial equivalence (under Article VI, paragraphs  and ) for the implementation of Part A of the Code under Title . This provision reflects views expressed at the third meeting, especially by the Shipowners’ representatives. In a subsequent comment the ISF [International Shipping Federation] stated that it was most important that control and enforcement procedures were implemented strictly in accordance with the agreed provisions. 88

Committee of the Whole Report, supra note , para. .

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On the face of it, this assertion might seem as unusual in its wording and may even give rise to concerns as to whether inclusion of such a provision only applies for this Title. The Worker [Seafarer] Vice-Chair explained: . The Worker Vice-Chairperson explained that the amendment related to the right of seafarers to exercise their rights before the law and to take their complaints ashore, for example to a port state control officer, since some ships never returned to their home port. Title  contained a carefully balanced provision to facilitate the filing of complaints, but additional clarity was necessary. The proposal’s reference to “shipowners” was in relation to the fact that the shipowners had reserved for themselves the right of redress in the case of unjustified seizure of their ships. Seafarers also had this right of redress. The proposal’s reference to “other persons” underscored the fact that this right was universal and enshrined in Articles  and  of the Universal Declaration of Human Rights. Although the Preamble of the proposed Convention made reference to this instrument, it was necessary to go further and mention this right in the provisions on compliance and enforcement. Precedents existed in other ILO Conventions for such a provision, . . . 89

As noted above, one of the difficulties at the PTMC and prior meetings related to concerns by some governments about State sovereignty in the context of the onshore complaint process in port States. The matter had been resolved at the Intersessional Meeting by avoiding any reference to courts or jurisdictions to hear matters raised in a complaint by a seafarer under Regulation .. when in a foreign port. Not surprisingly, this proposal was subject to extensive debate at the th ILC.90 It was ultimately resolved by adding a clarification in the 89

Ibid. Ibid., paras –. The following extract identifies the basic concerns and the solution proposed by the International Labour Office that was adopted (emphasis added): 90

. The Employer Vice-Chairperson did not believe the proposal added value to the Convention. It repeated rights that already existed and went against a prior decision to remove all references to access to the courts. The Employers’ group did not support the amendment in its current form, but if the Workers were amenable to a subamendment, a compromise might be possible. . . . . The Government member of the United Kingdom, speaking for the Austrian presidency of the European Union on behalf of the Government members of the Committee Member States of the European Union, as well as for the Government members of Bulgaria, Iceland, Norway and Romania, did not support the amendment, which caused potential confusion regarding legal venues provided for in other international instruments. . . . . Following consultations, the representative of the Secretary-General read the following wording which, in her understanding, reflected the various proposals of the Committee. The text would be included as a new paragraph  in the chapeau of Title  and would read as follows: “The provisions of this Title shall be implemented bearing in mind that seafarers and shipowners, like all other persons, are equal before the law and are entitled to equal protection of the law and shall not be subject to discrimination in their access to courts, tribunals or other dispute resolution mechanisms. The provisions of this Title do not determine legal jurisdiction or legal venue.” . The Employer and Worker Vice-Chairpersons supported the proposed wording.

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final sentence to the effect that the provisions in Title  do not “determine legal jurisdiction or legal venue”.91 Regulation .—Flag State Responsibilities Regulation .—Flag State responsibilities comprises six sub-regulations and the related Code, Parts A and B provisions, and three of the appendices to the Convention relevant to these regulations. – Regulation ..—General principles – Regulation ..—Authorization of recognized organizations – Regulation ..—Maritime labour certificate and declaration of maritime labour compliance – Regulation ..—Inspection and enforcement – Regulation ..—On-board complaint procedures – Regulation ..—Marine casualties – Appendix A-I—The working and living conditions of seafarers that must be inspected and approved by the flag State before certifying a ship in accordance with Standard A.., paragraph  – Appendix A-II—Maritime Labour Certificate; Declaration of Maritime Labour Compliance—Part I; Declaration of Maritime Labour Compliance —Part II; Interim Maritime Labour Certificate – Appendix B-I—Example of a national Declaration (Parts I and II)

The only purpose clause for the topic is under Regulation . which, in turn, has no provisions other than those set out under the (sub) Regulations ..– ... The purpose of Regulation . is very clear, “to ensure that each Member implements its responsibilities under this Convention with respect to ships that fly it flag”. Since the majority of the provisions in the MLC,  are directed . The Government members of Argentina, Bahamas, Belgium, Brazil, Bulgaria, Cyprus, Denmark, Ecuador, Egypt, France, Ghana, Japan, Kenya, Mexico, Namibia, Netherlands, Nigeria, Norway, Pakistan, Panama, Russian Federation, South Africa, Sweden and Turkey accepted the proposal . . .. This proposal was preceded by another controversial proposed amendment to add a clause to Regulation A.. regarding flag State responsibilities for verification with respect to social security coverage for foreign seafarers. This resulted in a vote and the amendment was not accepted. See: Ibid., paras –. 91 Depending on the particular issue, questions of applicable law or venue are usually determined under relevant contractual provisions, if any, on choice of law or through the application of general principles of private international law with respect to the conflict of laws (or in some countries the application of treaty law, e.g., for countries in the European Union, Rome I Regulation (Regulation (EC) No. / of the European Parliament and of the Council of  June  on the law applicable to contractual obligations (Rome I) (Council Regulation (EC) No. /) or the Brussels I Regulation (Council Regulation (EC) No. / of  December  on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (or Council Regulation (EC) /)).

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to flag States, that is, the State with responsibility under international law 92 for the social and administrative conditions on board ships, this is clearly a key area of Title . The regulations on flag States responsibilities comprise the detailed provisions that are linked to the more generally stated obligations and principles in Article V, paragraphs – and . For the most part, the implementation provisions in Title , while containing some reporting elements93 tied to the ILO’s supervisory system, are directed to ensuring that flag States take steps to ensure that national laws or regulations or other measures implementing the requirements of the Convention are implemented on board ships. These provisions are designed to set out a regulatory blueprint that will operate to secure compliance at the shipboard level, that is, by private non-State actors and, only implicitly, at the State level. It is assumed, therefore, that the system of inspections and, if required, certification combined with PSC, if established as required by the MLC, , would ensure compliance by ships. It is entirely possible that private actors might well choose to operate in compliance with the Convention requirements but that a country may still be found to have failed to implement its obligations from the legal perspective of the ILO’s supervisory system or the converse. However, in the latter situation, from a systems perspective, it could be assumed that repeated failures in compliance at the shipboard level are indicative of a broader regulatory failure on the part of the responsible State. Regulation ..—General Principles Regulation .. and the Code, Part A, Standard A.. and Guideline B.. are entitled “General principles”. Although numbered in the same way as the other five regulations, from a structural perspective, Regulation ., Regulation .., and the Code provisions can be viewed as having an over-arching function, much like the articles relative to the regulations and the Code in the rest of the MLC, . The five paragraphs in Regulation .. paint, in broad strokes, the basic framework for the more detailed provisions contained in the remaining five regulations on flag State responsibilities for compliance and enforcement of under the Convention. Paragraph  restates the purpose clause and the general responsibility of each Member (in its role as a flag State) to ensure implementation of its obligations under the Convention on ships that fly its flag. Paragraph  requires a flag State to establish an effective system for inspection and certification of “maritime labour conditions”, an undefined term, in accordance with Regulations ..

92 93

See Chapter , pp. – discussion of LOSC, Article , Duties of the flag State. See, for example, Regulation .., paragraph , and Regulation .., paragraph. .

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and ... This system is to ensure that the “working and living conditions”, also an undefined term, for seafarers “meets and continue to meet the standards in the Convention”. Neither of these undefined terms was debated during the development of the Convention.94 They are both used in paragraph  and in paragraph . The latter term is combined with the phrase “requirements of this Convention”, a term, as discussed above,95 that is specifically defined in Article II, paragraph (e), and is of particular importance in connection with the scope of PSC. The Office Report for the th ILC noted that Regulation .., paragraph  (emphasis added), . . . is an obligation founded on Convention No. , Article (b), and Convention No. . This is to be done through an effective system of inspection and certification. A distinction is thus made between the working and living conditions that are to be subject to the certification system and the broader range of issues covered by the Convention for which flag States are responsible.96

This comment, albeit obliquely, raises a point that did not explicitly surface in the discussion leading up to the adoption of the Convention, although some comments in the trauvaux préparatoires indicate differing understandings on this point. The issue relates to the scope of flag State inspection of ships. What must be inspected by the flag State and, importantly, in the case of certification of ships, what is to be inspected before a ship can be certified? In particular, this relates to the role of the list of  areas in Appendix AI (the working and living conditions of seafarers that must be inspected and approved by the flag State before certifying a ship in accordance with Standard A.., paragraph ), which is substantively connected to Regulation ..— Maritime labour certificate and declaration of maritime labour compliance.97 It seems clear that some delegations understood that the flag State inspection

94 The wording of Regulation .. did not change much on these points from the text considered in  by the HLTWG, except for the addition of paragraph bis (now paragraph ) to address the authorization of ROs, as agreed at that meeting. See: Consolidated Maritime Labour Convention (Preliminary Second Draft), HLTWG (Fourth Meeting), Nantes, , ILO Doc. No. TWGMLS//, available at http://www.ilo.org/public/english/dialogue/sector/techmeet/ twgmls/twgmls-r-.pdf. 95 See: Chapter , notes  and , and this chapter, supra note . 96 Report I(A), supra note , Note  (Regulation .), para. . 97 Standard A .., paragraph , provides that (emphasis added):

The maritime labour certificate shall be issued to a ship by the competent authority, or by a recognized organization duly authorized for this purpose, for a period which shall not exceed five years. A list of matters that must be inspected and found to meet national laws and regulations or other measures implementing the requirements of this Convention regarding the working and living conditions of seafarers on ships before a maritime labour certificate can be issued is found in Appendix A-I.

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and certification obligations would relate only to the  areas.98 However, others, particularly the Seafarers’ Group, understood the scope of flag State inspection to be much wider and to cover all matters in the Convention pertinent to shipowner obligations/shipboard conditions, that is, the  listed areas and other matters in Titles –, which are not on the list, to the extent they are shipboard/shipowner-related obligations.99 The question of scope and terminology is further complicated with the introduction, in Standard A.., paragraph (c), of the phrase “requirements of this Convention (including seafarers’ rights)”.100 In part these differing understandings may relate to the fact that the provisions consolidate (to varying degrees) provisions in the Labour Inspection (Seafarers) Convention,  (No. )101 and the Merchant Shipping Act (Minimum Standards) Convention,  (No. ). The term ‘seafarers’ working and living conditions’ in Article , paragraph (e) of Convention No.  is defined inclusively and provides: e) the term seafarers’ working and living conditions means the conditions such as those relating to the standards of maintenance and cleanliness of shipboard living and working areas, minimum age, articles of agreement, food and catering, crew accommodation, recruitment, manning, qualifications, hours of work, medical examinations, prevention of occupational accidents, medical care, sickness and 98 Committee of the Whole Report, supra note . In the debate about a proposal by the seafarers’ representatives to also refer to social security in addition to working and living conditions (emphasis added),

. The Government member of Japan pointed out that during the preparatory discussions, it had been established that flag States were required to inspect and approve only the working and living conditions of seafarers as stated in Appendix A-I. The amendment sought to extend the scope of required inspection . . . . The Government member of the United Kingdom stated that a specific reference to social security protection would change the scope of on-board inspection. The inspection had to be carried out in accordance with Regulations .. and ..; Standard A.. set out the scope of the inspection by referring to Appendix A-I, which did not contain a reference to social security. This was correct, since it was not possible to verify social security protection coverage on board ships. The obligations to provide social security protection were on other States; the inspectors were only obliged to check the seafarers’ employment agreements which, under Standard A., paragraph (h), only included those health and social security benefits to be provided by the shipowner. . . . 99 As discussed in the other chapters on each of the Titles, some regulations relate only to State obligations (e.g., Regulation .) or contain mixed obligations (e.g., Regulation ., which contains both labour supply responsibilities and shipowner/flag State responsibilities, or Regulation ., which involves obligations for shipowners, port States, and coastal States). 100 See Chapter  discussion on Article II especially text at notes  and  ff. See also in Chapter  in connection with minimum age. 101 In particular, flag State inspection obligations with respect to ‘seagoing ships’ above  GT. Convention No. , supra note , was ratified by  countries as of , many of which ratified during the development of MLC, .



chapter eleven injury benefits, social welfare and related matters, repatriation, terms and conditions of employment which are subject to national laws and regulations, and freedom of association as defined in the Freedom of Association and Protection of the Right to Organise Convention, , of the International Labour Organization.

While there are some similarities in the areas mentioned in this definition, there are also clear differences. It will be recalled that while there is an obligation on Members ratifying the MLC,  to ‘satisfy itself ’ that the fundamental rights under Article III, including freedom of association, are respected, the rights are not matters per se for flag State inspections or PSC under the MLC, .102 Thus, although the MLC,  text clearly builds up and consolidates these earlier conventions, it also represents many different agreements struck during the negotiation of the text. For example, it now expressly covers many more ships with relatively less national discretion to exclude ships (and seafarers) from coverage. In addition, neither of the earlier conventions included a certification system or highly developed PSC and complaint procedures.103 These factors suggest that a better approach to understanding parts of the text of the MLC, , particularly Title , is essentially new text to be considered in light of the preparatory record and the Convention’s objectives. The fact that flag State inspections cover all ships (without a tonnage or voyage related limit), not just those that are certified, for compliance with the requirements of the Convention suggests that the practical outcome, the Guidelines for Flag State Inspection, albeit in the form of ‘guidance’, reflects an appropriate approach to application. From a legal perspective it is, of course, difficult to argue that this guidance adopted later in time by a different body should be considered in resolving a potential ambiguity in the text of a convention. Nevertheless the 102

See Peter B. Payoyo, “The contribution of the  Maritime Labour Convention,” in The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, Aldo Chircop, Ted L. McDorman, and Susan J. Rolston, eds. (Leiden/Boston: Martinus Nijhoff/Brill, ) – at , discussed in Chapter , note . However, a State would also have other national laws or measures implementing its obligations under the fundamental conventions, and a failure to respect these national laws might well be a subject of a seafarer complaint to a flag State inspector. 103 As discussed earlier (see also: Chapter  and Chapter , note ), Convention No. , supra note , resulted in the eventual development of the Paris MOU on PSC, supra note . It contains only one article (Article ), with three paragraphs, that addresses PSC, which envisages a report and possible measures to “rectify conditions” on the ship in some circumstances by a port State on receiving a complaint or evidence that the ship does not confirm to the “standards of this Convention”. While not a defined term, this phrase can be understood as referring to the standards set out in the list of conventions in the appendix to the Convention (including the Freedom of Association and the Right to Organize Convention,  (No. ) and Right to Organize and Collective Bargaining Convention,  (No. )). However, it is also important to recall that the implementation obligation, where a State has not also ratified a convention(s) on the list, is to ‘satisfy itself ’ that its laws and regulations are ‘substantially equivalent’.

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fact that the Guidelines were also a negotiated text involving many of the same tripartite representatives suggests that they could be viewed, at the least, as reliable tripartite advice on the intentions behind the Convention text.104 The Guidelines for Flag State Inspection list  areas,105 four more topics than the lists set out in Appendices A-I and A-III, and explains (emphasis added): . All of the requirements set out below in section . are subject to inspection on all ships covered by the MLC, . For ships that are to be certified, this inspection will result in the certification of the ships as complying with the national requirements in  of the areas set out in section . below, following inspection to verify: – compliance with the national law summarized in the DMLC, Part I; and – implementation of the measures that have been adopted by the shipowner to ensure initial and ongoing compliance (i.e. the measures set out in the DMLC, Part II). 104

Another basis to support the view that more than the  denoted areas are to be inspected is found through a careful reading of Regulation .., paragraph , which refers to certification as prima facie evidence (in connection with port State control) that the ship has been inspected and that the requirements of the Convention are met “to the extent so certified” suggesting that there is a larger group of requirements. 105 Supra note . The  matters listed in chapter . of the Guidelines for Flag State Inspections are: – – – – – – – – – – – – – – – – – –

Regulation .—Minimum age Regulation .—Medical certificate Regulation .—Training and qualifications Regulation .—Recruitment and placement Regulation .—Seafarers’ employment agreements Regulation .—Payment of wages Regulation .—Hours of work and hours of rest Regulation .—Entitlement to leave Regulation .—Repatriation Regulation .—Manning levels Regulation .—Accommodation and recreational facilities Regulation .—Food and catering Regulation .—Medical care on board ship and ashore Regulation .—Shipowners’ liability Regulation .—Health and safety protection and accident prevention Regulation .—Social security Standard A.., para —General principles (copy of MLC,  on board) Regulation ..—On-board complaint procedures

But even they are not entirely clear. See, contra: Guidelines for Flag State Inspections (emphasis added), Maritime Labour Certificate (Regulation ..) . A Maritime Labour Certificate must be issued by the competent authority or by an authorized RO on its behalf, on completion of a satisfactory inspection of the national requirements for the  areas listed in Title , Appendix A-I. A DMLC must be attached for it to be valid. The Certificate must be issued for a period not exceeding five years (but see paragraph ).

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In connection with the  matters set out in the Guidelines for Flag State Inspection it should be noted that the list in Appendix A-I identifies accommodation and recreational facilities as two items although the obligations are under one regulation (Regulation .). It is addressed as one item in the Guidelines. In addition the list in the Appendix A-I (and A-III) uses very specifically worded terms denoting the inspection obligations, which are essentially a subset of the requirements where a regulation combines multiple obligations,106 not all of which are shipowner/on-board matters (e.g., “on board medical care”, “payment of wages”).107 In addition, some regulations are the subject of a review by the ILO supervisory system but are not flag State or on-board matters for shipowners or inspection, for example, Regulation . regarding promotion of career opportunities. Although not as obviously linked to the scope of flag State inspections, one issue that was debated at length108 and, unusually, ended in a vote109 at the th ILC concerned a proposal for an amendment to Regulation .., paragraph , put forward by the Seafarers’ Group: . The Chairperson opened a general discussion on the issues raised in amendment D., which was sponsored by the Workers’ group and sought to insert in paragraph  the words “and social security protection” between the words “the working and living conditions” and “for seafarers on ships that fly its flag meet”.110

This proposal and the ensuing debate, as set out below, was a lightning rod for a discussion that reveals the many differing views on flag State inspection responsibilities. The debate also reflected the efforts of the Seafarers’ Group, despite reaching a difficult compromise on flag State responsibility for social security, in order to ensure inclusion of social security provisions in the MLC,  (as Regulation .111), to reintroduce greater responsibility on the part of flag States to help achieve protection for all seafarers. The explanation and debate, as evidenced in the following edited extract from the report of the meeting,112 are 106 The Guidelines for Flag State Inspection include some matters that are only partially flag State matters, that is, shipowner use (if any) of regulation of private recruitment and placement services under Regulation . or Regulation . shipowner contributions to social security to the extent that a flag State requires mandatory contributions for seafarers (ordinarily resident or otherwise protected perhaps through a bilateral agreement) and ensuring that other obligations (e.g., shipowner liability) are addressed. 107 The Guidelines for Port State Control Officers, supra note , lists  items because it combines accommodation and recreational facilities. However the items also indicate the specific inspection concerns as stated in the Appendix A-I and A- III lists, as well as using the title of the relevant regulation. 108 Committee of the Whole Report, supra note , paras –. 109 Ibid., para. . The amendment was not adopted. 110 Ibid. 111 See discussion in Chapter , pp. –. 112 Committee of the Whole Report, supra note , paras – edited and emphasis added.

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important and of wider relevance because they grapple with deeper issues concerning a globalized workforce. Although the debate is lengthy to reproduce, its inclusion is warranted as the debate involves various perspectives from different regions of the world, ranging from countries with well-established social security systems to those with limited or even no social security system. The extent of alignment of views and concerns is a matter of interest. . The Worker Vice-Chairperson stressed that ensuring compliance was key to the protection of seafarers’ rights and flag States had major responsibilities in this regard. In light of the diverse nationalities of the seafarers on board, many of whom were migrant workers, it had proved difficult to create a uniform set of social security provisions. Standard A., paragraph , therefore gave Members a choice as to which three of the nine areas of social security listed in Standard A., paragraph , they would provide. To ensure compliance it was necessary for flag state inspections to verify that only seafarers who enjoyed social security coverage worked on ships flying their flag. Concretely, the Workers’ group was requesting flag States not to authorize the recruitment and employment on board their ships of seafarers from countries which failed to provide for the minimum three branches of social security protection. . . . . The Government member of Japan pointed out that during the preparatory discussions, it had been established that flag States were required to inspect and approve only the working and living conditions of seafarers as stated in Appendix A-I. The amendment sought to extend the scope of required inspection, since Appendix A-I did not include social security among the items to be inspected. Agreement had been reached that it would be for the seafarer’s State of residence, and not for the flag State, to ensure social security protection. Flag States were not in a position to ensure that every foreign seafarer had social security coverage, since the flag State did not provide that coverage. Reopening discussion on this issue would threaten the delicate balance achieved and would not be beneficial to any party. His delegation did not support the amendment. . The Government member of Greece said that the amendment was of great concern for practical reasons. Regulation .., paragraph , referred to inspection on board ships and social security matters could not, in practice, be the subject of ordinary ship inspection. . The Government member of Pakistan pointed out that port state inspections were carried out on physical features of the living and working conditions onboard foreign ships. It would be difficult to carry out inspections on non-physical aspects, as the inspector would not be able to verify if social security protection existed. . The Government member of Denmark reminded the Committee that after long discussion, a clear choice had been made for the State of residence in social security matters. The suggestion that flag States should examine the seafarers’ social security coverage would be difficult in practice, particularly with regard to nonresident seafarers subject to the legislation of other countries. This exceeded what one could expect from inspectors. Her delegation did not support the proposed amendment. . The Government member of France said that the amendment would not challenge the agreement reached on social security, since it only addressed the question of



.

. .

.

.

.

.

. .

chapter eleven verification, not responsibility. The role of flag States in ensuring compliance was very important. Only the social security protection of seafarers who were not covered by the flag State’s legislation would need to be examined and this could easily be done in a desk review. Expertise in social security protection was one of the requirements set out in Standard A.. for the authorization of organizations which would carry out inspection or certification functions. The Convention could not remain silent on the issue of seafarers without social security protection and could not deny the responsibility of flag States. The Government member of Namibia noted that Standard A., paragraph (h), on seafarers’ employment agreements, expressly referred to social security protection benefits. Since Appendix A-I comprised seafarer employment agreements among the elements which should be inspected and approved, social security protection could be examined. The Government member of Panama concurred that the Convention recognized the issue of social security in dealing with employment agreements, but she supported the views expressed by the Government members of Greece and Japan. The Government member of Denmark observed that Standard A., paragraph (h), required that seafarers’ employment agreements indicate health and social security protection benefits to be provided to the seafarer by the shipowner. Her delegation had interpreted this provision as relating to Standard A. on shipowners’ liability rather than Standard A. on social security. The Government member of Egypt stated that social security was part and parcel of seafarers’ working and living conditions and, in this sense, she could not see how the amendment might harm either the letter or the spirit of the Convention. ... The Government member of Norway did not support the amendment. This was not a matter that could be handled on a ship-by-ship basis. Furthermore, some aspects of social security protection could be handled by the flag State and others by the State of residence. Members could not interfere with the national arrangements of the State of residence. The Government member of Australia appreciated the intent of the Workers’ proposal, but felt that inserting a reference to social security protection into the section dealing with inspection and certification was not logical. Perhaps in future a “white list” could enumerate those member States that ensured social security benefits to seafarers. The Government member of Japan expressed concern over the Workers’ suggestion that if a seafarer resided in a State which did not ratify this Convention and did not provide social security protection, that seafarer should not be recruited. It was not fair to deny a seafarer’s right to employment merely by reason of his country’s failure to provide sufficient social security protection. Considering that large numbers of seafarers already suffered a miserable existence, this would only add misery to misery. . . . The Government member of France suggested that there were other options for the flag State than not hiring an unprotected seafarer, such as private coverage. The Government member of the United Kingdom felt that the proposed amendment was redundant. Other means would suffice to ensure that benefits were provided, in particular, Regulation .., paragraph , read in conjunction with Article  of the ILO Constitution, which required ratifying States to submit regular

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.

.

.

.

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and detailed reports on the application of the Convention. He supported the statement of the Government members of Namibia and Panama regarding seafarers’ employment agreements. The Government member of the Russian Federation understood the concerns of the Workers’ group but did not believe that their proposal would achieve the desired outcome for non-national and non-resident seafarers. It was difficult to carry out verification for those seafarers who were not residents of the flag State. ... The Worker Vice-Chairperson formally introduced amendment D.. It was a seafarer’s basic right to have social security coverage and it was the responsibility of the flag State to verify compliance. In the case of a seafarer from a ratifying State, the flag State would know that the seafarer was covered by at least three of the nine branches under Standard A.. Information would be provided to the ILO as to which three branches each Member had chosen. Unless flag States checked compliance, labour-supplying States would never feel the need to improve their domestic legislation on this issue. For seafarers from countries without national social security systems, alternative methods of coverage could be provided, as the Government member of France had suggested. The speaker did not accept the argument that it was not technically possible to create a system whereby flag state inspection could include verification of social security coverage. The Government member of the Philippines described her country’s efforts as a major labour supplier to meet its responsibilities in the area of social security. Many seafarers were already covered under the national social security system and others were covered under bilateral agreements with other States. The cost to the social security system was not excessive compared to the protection provided to seafarers and taking into account the contributions of both the seafarers themselves and the shipowners. She cited the ongoing support of the social partners in these efforts. Social security was an important right under the Convention and should be supported by the enforcement system of the Convention. The Government member of Spain observed that the flag state responsibility in this case was not a direct responsibility to provide social security protection but a responsibility to verify compliance, which was substantially different. The ultimate goal was to achieve decent work at sea. The obligation of the State of residence combined with the obligation of the flag State to inspect and certify would strengthen the protection of seafarers. His delegation supported the amendment. . . . The Government member of the United Kingdom stated that a specific reference to social security protection would change the scope of on-board inspection. The inspection had to be carried out in accordance with Regulations .. and ..; Standard A.. set out the scope of the inspection by referring to Appendix AI, which did not contain a reference to social security. This was correct, since it was not possible to verify social security protection coverage on board ships. The obligations to provide social security protection were on other States; the inspectors were only obliged to check the seafarers’ employment agreements which, under Standard A., paragraph (h), only included those health and social security benefits to be provided by the shipowner. The other requirements in relation to social security protection were imposed on the seafarer’s State of residence and labour supplying country. These could not be verified on board ships; a system of verification might need to be included in reports in accordance with Regulation

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chapter eleven .., paragraph , but the provision on shipboard inspection was not the right context with which to deal with this issue. The Government member of Singapore opposed the amendment, supporting the statement of the Government member of the United Kingdom. The Government member of Japan supported the position of the Government member of the United Kingdom. Seafarers came from many different nations; thus, tremendous work would be required from the competent authority to verify social security coverage of all seafarers, particularly those from non-ratifying States. While Standard A., paragraph , provided for a reporting requirement that might be useful for determining the social security protection provided by ratifying States, this information would not be immediately useful at the time of entry into force of this Convention, given the small number of ratifications () required for entry into force. The speaker noted that Standard A., paragraph , required that the protection provided be no less favourable than that enjoyed by shoreworkers; this was difficult to determine and would create an insurmountable task for the inspectors. The flag State would not be in a position to properly fulfil its obligation. The Government member of Cyprus asked the social partners to clarify whether a flag State should prohibit employment on its vessels of seafarers whose countries of residence did not provide social security protection. It had been suggested that doing so would place pressure on governments to implement social security protection and would therefore be beneficial to seafarers. Cyprus’ experience from implementing Council Regulation (EC) No. / of  June  on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community had had the opposite effect, however. If the proposal were adopted, market forces would react by favouring countries that did not implement such provisions. It was, therefore, impossible to regulate this area effectively . . . The Government member of the United Arab Emirates opposed the amendment, although he understood the concerns of the Workers’ group. However, the responsibility of the flag State was to ensure that its own seafarers were covered by social security. Depriving a seafarer of employment simply because his country of residence did not provide him with social security only added to his agony. Instead of decent employment, there would be no employment. This practice would also be provocative towards labour-supplying countries that did not provide social security to seafarers. . . . The Employer Vice-Chairperson opposed the amendment, stating that the Employers shared the reservations expressed by several Government members regarding flag state responsibilities for inspection in this domain. The main problem arose when dealing with the social security systems of foreign seafarers. The difficulties of this issue were evidenced by the fact that the Social Security (Seafarers) Convention (Revised),  (No. ) had received only three ratifications. Social security was an extremely complex matter and its laws were constantly changing. It was difficult enough to know one’s own national social security legislation, let alone that of other countries. The Employers’ group recognized social security had to be included in employment agreements. The Worker Vice-Chairperson drew the Committee’s attention to subparagraph (d) of Article III of the proposed Convention, arguing that a State’s failure to ensure that all seafarers on ships that flew its flag enjoyed social security protection

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was discriminatory, particularly in the light of paragraph  of Article IV of the proposed Convention. Moreover, paragraph (h) of Standard A. stipulated that seafarers’ employment agreements must contain particulars of the health and social security protection benefits to be provided to the seafarer by the shipowner. He was therefore unable to see how countries could fail to endorse an inspection system that ensured that persons working in the most globalized of occupations were covered under three of the nine branches of social security, as was required under paragraphs  and  of Standard A.. It was true that, under the Convention, States of residence that had no social security scheme would have to provide seafarers with coverage of three of the nine branches. Among them were labour-supplying countries that benefited so much in financial terms from their seafarers’ employment on foreign ships. There was no requirement that coverage had to be provided by a national system. A separate scheme could be set up to offer the required coverage. It was soul destroying to hear that, for bureaucratic reasons, some countries refused to deliver on rights which they were committed to respecting under Article  of UNCLOS. Governments were only being asked to verify that the seafarers employed on their ships were covered under three of the nine social security branches. Because of time constraints, the Workers’ group would not insist on a record vote on the proposed amendment. A vote by show of hands was called for however. . A vote on amendment D. was held by show of hands. The result of the vote was as follows: quorum: , votes; votes cast: ,; in favour ,; against: ,; abstentions: . The motion did not carry.

As this extract from the debate reveals, there is a clear recognition of the importance of social security for seafarers, beyond the protection provided by shipowners. Equally, however, there is a concern about any increased flag State responsibility to inspect or verify the coverage provided by the seafarers’ country of residence for foreign seafarers. Further, there was also a concern about potentially disadvantaging seafarers from countries that do not have social security coverage. As a result, there was an unusually high level of cohesion among government delegations from countries with very different maritime interests and economic situations. As discussed earlier, Regulation .., paragraph , which recognizes the prevailing practice113 of flag State delegation of inspection or certification or both 113

See discussion on the development of Title  text supra notes , , and  ff. As noted in Report I (A), supra note , Note  (Regulation .), regarding Regulation .—General principles: . Paragraph  reflects the provisions found in the Labour Inspection (Seafarers) Convention,  (No. ), Article (), permitting governments to authorize public institutions and other organizations to carry out labour inspections on their behalf. This delegation or “authorization” of recognized organizations, such as ship classification societies, of the tasks related to ship survey and inspections and even possibly issuance of required maritime certificates is also found in IMO conventions such as SOLAS and MARPOL. In addition to provisions in these Conventions recognizing the practice and requiring that governments report any such authorizations to the IMO for circulation to other States

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to other institutions (primarily private sector actors such as ship classification societies/ROs114), was introduced in the text of the Convention by the fourth meeting of the HLTWG in January .115 Paragraph  establishes the general principle, which is addressed in more detail in Regulation .. and the Code. It builds upon the earlier provisions in Convention No. , Article (), permitting governments to authorize public institutions and other organizations to carry out labour inspections on their behalf and now includes the element of certification. Paragraph  also makes it clear (in line with international law and the cited provision of Convention No. ) that irrespective of the delegation, the flag State retains full responsibility for the inspection and certification of working and living conditions on board ships that fly its flag. Delegation is also possible to the public institutions or organizations of another State provided that it has ratified the Convention. Regulation .., paragraph , deals with what is to be inspected and certified, as discussed below, under Regulation .. and, in connection with PSC, Regulation ... It establishes the basic principle that the on-board documents required for some ships, the maritime labour certificate (MLC), complemented by a declaration of maritime labour compliance (DMLC), “. . . constitute prima facie evidence that the requirements of this Convention relating to working and living conditions of the seafarers have been met, to the extent so certified”. As discussed above, the latter phrase can be understood as indicating that more than the list of  certified areas is to be inspected by flag States. The prima facie evidence phrase essentially relates to PSC and is understood as providing an advantage to ships of ratifying States. In principle there should be a risk of less, or even no, delay as a result of PSC for a ship with valid documentation. As discussed below in connection with Regulation .., this evidentiary advantage is also the reason why a shipowner can require inspection and issuance Parties to the relevant Convention, the IMO has also developed a framework for such delegations, found in IMO Resolutions A.() and A.(). These resolutions set the minimum requirements for these organizations, called “recognized organizations”, and other matters that governments should consider in making such a delegation. Paragraph  makes it clear (in line with the cited provision of Convention No. ) that the flag State still retains full responsibility for the inspection and certification of working and living conditions on board ships that fly its flag. Delegation is also possible to the public institutions or organizations of another State provided that it has ratified the Convention. 114

In some countries these specialized organizations were originally established by or developed as non-commercial organizations by governments, for example, the Russian Registry, which was established in . The Certification Association ‘Russian Register’ (further ‘RR’ or ‘Russian Register’) is legally a non-commercial organization that operates under the law of the Russian Federation. See: “Background about the Certification Association ‘Russian Register’,” available at http://www.rusregister.ru/eng/history.shtml. 115 Final Report, supra note , para. .

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of these documents, even if not mandatory for a ship, as a matter of right. The final paragraph in Regulation .., paragraph , links these ‘system’ provisions to the ILO supervisory system and the Article  report.116 The Code, Standard A.., and Guideline B.. are brief (two paragraphs each) and for the most part are concerned with establishing process elements for the inspection and certification systems. These elements include setting objectives and providing for an assessment the system, promoting cooperation among ROs, and providing for consultation to improve seafarers’ working and living conditions. Interestingly, under Guideline B.., paragraph , even the consultation process is to be determined after consultation. It is important to note that Standard A.. contains one requirement that is not on the list of  areas for certification but is a requirement for inspection by flag States. Paragraph  requires that ships have available on board a copy of the MLC, . Regulation ..—Authorization of Recognized Organizations Regulation .. and the Code provisions, Standard A.. and Guideline B.., contain the detailed requirements for the general principle (Regulation . ., paragraph ) that a flag State may authorize a public institution or other organization “. . . which it recognizes as competent and independent to carry out inspections or issue certificates or to do both”. Regulation .. and the Code provisions were introduced in January  at the fourth HLTWG meeting.117 This provision reflects the general practice in the maritime sector and builds upon a provision found in the predecessor ILO convention. The provisions in Regulation .. and the Code are a clear development, going beyond the IMO instruments,118 in establishing at the level of mandatory text in an international

116

Article  Report, supra note . See Chapter  for details on the ILO supervisory system. Final Report, supra note . See also supra notes , , and ; IMO, Assembly Resolution A.() Guidelines for the Authorization of Organizations acting on Behalf of the Administration, adopted November  . Now mandatory under Chapter XI-I, SOLAS, supra note , and amended by a Resolution of the IMO Maritime Safety Committee, MSC. (),  May . Resolution A.() is also incorporated into EU regional law: Commission Directive //EC of  September  amending Council Directive //EC on common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations, Official Journal L , // P. –. 118 Ibid. and Chapter . See also: Review of the Code for the Implementation of Mandatory IMO Instruments Development of a Code for Recognized Organizations, Report of the Working Group, IMO. Doc. No.  FSI /WP.,  July . Following the discussions, the group accepted a proposal by IACS for a roadmap establishing the framework for the RO Code and agreed on seven elements for the consideration of the Sub-Committee. Paragraph .describes the purpose of the RO Code as follows: 117

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convention provisions regarding delegation. These provisions, including the move to use the term ‘recognized organizations’ despite the more general phrasing ‘public institutions or other organizations’, deliberately follow the approach adopted in the various IMO resolutions and current practice. As discussed in Chapter  and earlier in this Chapter, this term is generally understood as referring to the international classification societies (often but not always private sector actors) that have been authorized to carry out statutory certification and/or inspections (or audits) by flag States on their behalf.119 The provisions in Regulation .. and the Code were sufficiently uncontroversial that they were adopted by the th ILC with no proposals for amendments.120 However, there are some specific points of interest to note in the wording. Regulation .., paragraph , repeats the reference to competence and independence set out in Regulation .., paragraph , with a specific reference to “requirements in the Code”. In addition, Standard A.. addresses many aspects of independence for inspectors (which would include ROs).121 The majority of the provisions in both the Standard and the Guideline are directed to specific points that must be established for authorized organizations. There is also an important point of wording in Regulation .., paragraph , regarding the scope of work that an RO may be authorized to carry out. This point was discussed in the Report of the fourth HLTWG meeting (emphasis added): . . . . The new Regulation provides, inter alia, that “A Member may authorize competent organizations to undertake certain inspection and/or certification duties where expressly provided for in the Code [emphasis added]”. The words “expressly provided for” were included to ensure that it was clear that not all responsibilities for enforcement and compliance in the Convention or in Title  could be . . . the development of a consolidated instrument containing criteria against which recognized organizations are assessed and authorized/recognized, and providing guidance for subsequent monitoring of ROs by Administrations. The ideas for next steps were generally agreed to, with a caveat about the impact of too many audits on ROs’ ability carry out their work. 119 ROs conduct traditional ship ‘survey’ work as well as carrying out company/shipowner safety management system ‘audits’ for certification of these systems as required under the IMO ISM Code (supra note ). See: IACS No.  Procedural requirements for ISM Code Certification. These were updated as of March  to reflect IMO Resolution A.(), Revised guidelines on the Implementation of the ISM Code by Administrators and IMO Resolution A.(), International Safety Management (ISM) Code as amended, available at http://www.iacs.org.uk/ document / public / publications / resolution_changes / pdf/pr__rev._corr._pdf.pdf. For more details on the role of classification societies, see Chapter , pp. –. See also “Classification Societies: What, Why and How?”, IACS, , available at http://www.iacs.org.uk/docu ment/public/explained/Class_WhatWhy&How.PDF. 120 Committee of the Whole Report, supra note , paras –. 121 See Standard A.., paragraph .

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delegated. The new Regulation and Standard text set out the criteria that must be met by another organization before the Member could authorize it to carry out inspections or issue certificates. “Further guidance” addressed the nature and content of the formal agreement for authorization. It was clearly understood that the intention was to ensure that governments will remain responsible for compliance with the Convention regardless of whether they execute control themselves or through authorized organizations. . . . 122

In considering the text of the other regulations under Regulation ., it is important, therefore, to also note in each case whether an RO can be authorized to carry out a particular function. Regulation .. is also connected to the ILO supervisory system through the requirement that the report123 under paragraph  of Regulation .. is to contain information on RO authorization and oversight. In addition, under Standard A.., paragraph , the flag State is to provide the International Labour Office with an up-to-date list of ROs authorized to act on its behalf, specifying the functions it has authorized. The Office is to make the list public. Standard A.., paragraph , requires that the flag State establish a system for communication with, and oversight of, its ROs. In connection with authorizations, Guideline B.., paragraph , expressly references the IMO Guidelines for the Authorization of Organizations Acting on Behalf of Administrations.124 Standard A.., paragraph , requires that “as a minimum” ROs be empowered to require rectification of deficiencies and to carry out inspections in this regard at the request of a port State, presumably in the event that a matter arises during PSC. A question that is not evident in the MLC,  text but arose during the development in  and  of the Guidelines for Flag State Inspections is whether or not ROs should also deal with complaints about conditions on a ship (which they may have inspected and also certified). The ROs were of the view that this was a matter for flag State administrations, although an RO could be asked to investigate such complaints. As set out in the Guidelines (emphasis added), the Tripartite Expert Committee concluded: . When an RO is appointed, the flag State (or its competent authority) needs to specify the scope of the RO’s role with respect to verification of national requirements. Although the attention of an RO carrying out a flag State inspection might be drawn to a possible deficiency on a ship by seafarers and reported to the flag State, the investigation of complaints that are made to the flag State regarding its ships (Standard A.., paragraph ) or the enforcement of the national requirements implementing the MLC,  (see Chapter  of these guidelines) 122 123 124

Final Report, supra note . Article  Report, supra note . IMO Resolution A.(), supra note .

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should be dealt with by the competent authority in each flag State. Information as to the role of ROs and the scope of their authority should also be made available to seafarers in the event that they have a complaint. . The flag State should also have in place an oversight system for ROs that it has authorized. This system should include procedures for communicating with the RO and provision of information on any national measures that differ from the MLC, , provisions (Standard A.., paragraph ). Guideline B.., paragraph , provides additional information about oversight procedure.125

Regulation ..—Maritime Labour Certificate and Declaration of Maritime Labour Compliance Although addressed separately in the MLC,  and this chapter, Regulations .. and .. are linked and must be understood together. Regulation .. and the Code address the technical details of the MLC,  certification procedures while Regulation .. and the Code address the broader issues of ship inspections, inspectors, and complaints to a flag State. As explained earlier, the Guidelines for Flag State Inspections elaborate the practical application of these provisions.126 Although Regulation .. purports to set out the details for the ship certification system, several matters remain to be addressed in national procedures, for example, the approval of new ship plans in connection with structural requirements in Regulations . and .. In addition, although efforts clearly were made to align the terminology, particularly in Regulation .. and the Code, with the existing ship certification system for IMO conventions, some terminology differs and may cause confusion.127 Nevertheless the basic approach is the same, including the validity periods. Regulation .., Standard A.., and Guideline B.. also establish a new certification system for working and living conditions, the first ever for an ILO convention. Further, they contain the provisions that are linked to three of the four appendices to the Convention, namely Appendices A-I, A-II, and B-I.128 Regulation .. and the Code are lengthy, with Standard 125

Supra note . See also: Final Report, supra note . Ibid., and see discussion above regarding Regulation .., and comments, supra notes  and . 127 The Guidelines for Flag State Inspections, supra note , note that: 126

. Inspectors familiar with maritime inspections in connection with the ship safety, human security and marine pollution prevention conventions of the International Maritime Organization (IMO) will note a difference of terminology in the MLC, , in connection with the certification process. The IMO conventions refer to ships being “surveyed” for the purpose of issuing or endorsing a statutory certificate. The MLC, , does not distinguish between a survey and an inspection. In addition some elements can be confused with ISM audit procedures. See Figure , p. , for the titles of the appendices and Appendix  to this book for the text of the Appendices.

128

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A.. comprising  paragraphs. Standard A.. sets out details regarding the inspection and issuance of the on-board documents, namely, the MLC and DMLC. There are several points of technical complexity in these provisions, however only the key points or areas of difficulty will be discussed here. As noted in the introduction to this chapter, there was clear agreement about the development of a shipboard documentation/certificate system. It will also be recalled that a major difficulty, which ships the Convention would apply to, was not resolved until the Intersessional Meeting in . Specifically the issue was whether there would be a tonnage limitation for the Convention and, de facto, the certification system. While there are some variations on specific points in the IMO conventions, in general, a ship certificate is required for ships that go on international voyages (e.g., not the domestic fleet) and, for the most part, these ships are  GT and above. There are significant costs and administrative implications if the certification system is applied to all ships covered under the MLC, , that is, all ships (as defined in Article II, paragraph (i)), with no tonnage limit. In addition, there is a functional aspect to consider. Under the wider maritime certification system these documents are intended to address potential PSC inspections when ships are operating outside the flag State. As stated in Regulation .., paragraph , the certificate and other on-board documents are primarily evidentiary in function. While they could, perhaps, be viewed as a form of permit or license to operate, in principle a ship could operate ‘legally’ without these certificates, for example if the relevant flag State did not require a certificate and/or has not ratified a particular convention. However, such a flag State’s ships would likely encounter various problems including delays when entering foreign ports129 and voyaging in waters other than the high seas, and, also importantly, face the practical consequence of having difficulty obtaining insurance. The compromise adopted at the Interessional Meeting in connection with the agreement not to have a tonnage limitation,130 as discussed earlier, included the provision that forms the first two paragraphs of Regulation ... Although all ships must be inspected for compliance with the requirements of the MLC, , under paragraph  the certification system under Regulation .. is only mandatory for ships  GT and over engaged in international voyages (as defined) or are  GT and over and operating from a port or between ports

129

It is true that the predecessor Convention No.  provides for port State intervention with no certification requirements. See discussion supra notes  and . However, as noted previously, under Article  of Convention No. , interventions are based on complaints or other evidence. 130 See Chapter  discussion of Article II.

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of another country (other than the flag State). Under paragraph , an ‘international voyage’ is defined for the purpose of the Regulation as “a voyage from a country to a port outside such a country”. The definition follows that adopted in IMO conventions (i.e., SOLAS). In addition, for the reasons discussed above in connection with paragraph , Regulation .., under paragraph , shipowners have the right to request certification for ships that do not fall under paragraph  (e.g., below  GT engaged in international voyages or any tonnage not engaged in international voyages). The wording of paragraphs  and  warrant attention as they contain several important points which are then elaborated on in the Standard: . Each Member shall require ships that fly its flag to carry and maintain a maritime labour certificate certifying that the working and living conditions of seafarers on the ship, including measures for ongoing compliance to be included in the declaration of maritime labour compliance referred to in paragraph  of this Regulation, have been inspected and meet the requirements of national laws or regulations or other measures implementing this Convention . Each Member shall require ships that fly its flag to carry and maintain a declaration of maritime labour compliance stating the national requirements implementing this Convention for the working and living conditions for seafarers and setting out the measures adopted by the shipowner to ensure compliance with the requirements on the ship or ships concerned.

Clearly these provisions establish the obligation that flag States must require ships to carry on board and to maintain the MLC and DMLC.131 The purpose of the DMLC is to include “measures to ensure ongoing compliance”, that is, between inspections, which, as set out in paragraph , are measures adopted by the shipowner. This is a systems approach based on that found in the ISM Code. Thus the level of obligation in the regulation is already reaching through the State level to attach to a non-State actor. Importantly, the compliance is with “national laws or regulations of other measures implementing this Convention”, and the DMLC is to “state the national requirements implementing this Convention”. In practice this means that there may be considerable international uniformity with the Convention requirements even though the emphasis on national flexibility means that the certification is for compliance with national requirements rather than the Convention requirements per se. Although the national requirements as stated in the DMLC are not themselves subject to PSC, since implementation by a State is a matter for the ILO supervisory system, this still creates another potential layer of transparency and international accountability. This difference from the IMO convention certificates, which are aimed at uniformity, may seem difficult, in principle, for PSC. However, the difference 131

Final Report, supra note .

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may be more apparent than real because IMO conventions also envisage use of possible substantial equivalents and some national differences. Further, it is likely that most flag States will simply follow the MLC,  requirements in the regulations and Part A of the Code, especially in cases where there is significant regulatory detail (e.g., Standard A.). As will be discussed below in connection with the Standard A.., paragraph , the DMLC can be understood as adopting essentially a ‘negative reporting’ approach with details expected where national implementation differs from the Convention. As discussed above in connection with the development of the text, the fourth HLTWG decided that the Certificate and DMLC, Parts I and II, should be ‘model’ rather than samples since this uniformity would help ensure greater certainty in the PSC context.132 This is indicated in Regulation .., paragraph , and restated in Standard A.., paragraph , with information as to the documents’ content set out in Standard .. and Guideline B... Paragraph  of the Regulation essentially authorizes the more detailed requirements in the Code although, unusually, since it is in the flag State context, it refers to Part A of the Code only, a matter that may give rise to some uncertainty133 since this formulation is not used elsewhere. A flag State is required to keep a publically available record of the certificates it has issued (or authorized to be issued). This requirement, set out in paragraph , appears to be intended to assure greater flag State responsibility, particularly for States that may have delegated much of their activity to ROs. The requirement for record keeping is, however, also important in connection with the requirement that flag States respond to complaints or information about its ships with respects to nonconformity with the MLC,  (Standard A.., paragraph , and Guideline B.., paragraph ), including information in connection with PSC (Standard A.., paragraphs  and ; Standard A.., paragraph ). The provisions in Regulation .. were not the subject of much discussion at the PTMC and, other than a question relating to translation, were not amended at the th ILC. Instead attention was focused on the detailed, technically complex provisions in Standard A...

132

Ibid., paras –. This wording was inserted by Technical Committee No. , supra note , reviewing the text at the PTMC, for the following reasons (in the draft text paragraph  was paragraph ): 133

Paragraph  . The Shipowner Vice-Chairperson noted the need to clarify the reference to the “the Code” as referring only to Part A of the Code, since Part B was not mandatory. . In the absence of any objections, this proposal was adopted by the Committee.

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The basic framework established by Standard A.. is a five-year certificate that can be issued based on an initial inspection and an intermediate (midway) inspection, with the possibility of renewal following inspection. There is also provision for an ‘interim certificate’ to address transfers between flags or a newbuilt ship coming on to a register. The remaining provisions address the content of the documents (MLC and DMLC) and situations where an MLC would no longer be valid or would be withdrawn. Guideline B.., containing only six paragraphs, provides guidance on the content of the DMLC and cooperation between States regarding information transfer in the event a ship transfers flag. Standard A.., paragraph , requires that the listed ( areas) matters (Appendix A-I) must be inspected before a ship can be certified. As explained above in connection with Regulation .., from a flag State perspective, this inspection would also cover a larger group of matters that are not certified, that is, the list is considered to be primarily for purposes of PSC. Although the wording is not very clear in the Convention, this view is supported by the Guidelines for Flag State Inspections which contains more than the  matters for flag State inspection.134 In contrast, the Guidelines for Port State Officers only lists the areas in Appendix A-III. Paragraph  provides that the MLC can be issued for a period “not exceeding five years”, however, under certain circumstances, it can cover periods longer than five years. Paragraph  provides (emphasis added): . Notwithstanding paragraph  of this Standard, when the renewal inspection has been completed within three months before the expiry of the existing maritime labour certificate, the new maritime labour certificate shall be valid from the date of completion of the renewal inspection for a period not exceeding five years from the date of expiry of the existing certificate.135

Under paragraph , each MLC is subject to an intermediate inspection, which is to occur between the second and third anniversary dates of the certificate. The anniversary date is defined in paragraph .136 The combination of these 134

Supra notes –. This wording was introduced in the draft text by the fourth HLTWG meeting in  (Final Report, supra note ). Although there is no specific explanation in the record, it is believed that it accords with existing certification practices. 136 This definition of the term was introduced at the th ILC when adopting the Convention (Committee of the Whole Report, supra note ): 135

. The Chairperson opened a general discussion on the issues raised in amendment D., which was sponsored by the Government members of Finland and the Russian Federation and sought to insert, between the second and third sentences of paragraph , the following new sentence: “Anniversary date means the day and month of each year which will correspond to the date of expiry of the maritime labour certificate”. . The Government member of the Russian Federation explained that several dates were specified on the maritime labour certificate, as contained in Appendix A-II, namely the

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time frames and marker dates does give rise to one possible inconsistency in the MLC,  text when read with Standard A.., paragraph , which requires that inspection intervals are not to exceed three years. This provision was probably intended as a more general provision to cover minimum periods of inspection periods for ships other than those that are certified. However, that is not clear on the wording.137 date of issue of the certificate, the date of the expiry of the validity of the certificate, and the completion date of inspection on which the certificate was based. It was therefore unclear which of these dates should be used as the anniversary date referred to in Standard A.., paragraph . The same problem had been encountered when drawing up the ISM Code and the solution proposed was based on the wording of that Code. The purpose of the proposal was therefore to clarify the text and avoid any confusion in relation to the various dates mentioned in the certificate, particularly for example in cases in which a certificate was first issued on a provisional basis subject to further inspection. The anniversary date would correspond to the date of expiry of the maritime labour certificate. . . . . The Government member of the United Kingdom, speaking on behalf of the Government members of the Committee Member States of the European Union, supported the amendment, which aligned the Convention with standard IMO procedures. 137

Standard A.., paragraph , provides: . Inspections shall take place at the intervals required by Standard A.., where applicable. The interval shall in no case exceed three years.

The first sentence of paragraph  relates to certification and the second sentence is based on Convention No. . The words “in no case” could suggest that the three-year limit referred to would also apply to inspections required under Standard A.., which provides for an initial inspection and for an intermediate inspection to take place “between the second and third anniversary dates of the certificate”, that is, normally less than three years after the initial inspection. No interval is prescribed in that paragraph if there is more than one intermediate inspection. The interaction of the ‘in no case’ provision in Standard A.., paragraph , presents a probably unintended difficulty where (as is normal) there is only one intermediate inspection. In this case, as noted above, the inspection must be carried out between the second and third anniversary dates of the certificate (Standard A.., paragraph ). It would be reasonable to assume that shipowners would have one year in which to arrange for the intermediate inspection after the second anniversary date. That may often not be the case with respect to a certificate issued after a renewal inspection, which may under the circumstances set out in Standard A.., paragraph , cover a period that could be as much as three months (less one day) more than five years. This possible problem arises principally from the sentence in paragraph  of Standard A.. defining the term ‘anniversary date’ in a way that works backwards from the expiry date of the certificate rather than forwards from its date of issue. The problem is aggravated by paragraph  which, as in the case of IMO conventions, makes it more likely than not that the day and month of expiry will be later than the day and month of issue. The three-year rule was considered important by the Seafarers’ Group, especially for ships that were not subject to certification. On the other hand, an important consideration in the formulation of the rule in Standard A.., paragraph , relating to the intermediate inspection, was to align the MLC,  rule with IMO practice. It was not envisaged at the time that this rule would be affected by the second sentence of Standard A.., paragraph , which also covers the inspection of ships that do not require certification (i.e., are not under Regulation ..). It is not clear how this rather narrow technical question will be resolved.

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The question of whether and under what circumstances an interim certificate could be issued was a matter of extended debate at the PTMC.138 This is 138

Committee No.  Report, supra note  (emphasis added): Paragraph 

. The Seafarer Vice-Chairperson said there should not be interim certificates. If a ship changed hands, proper arrangements should be made so that the seafarers’ rights were respected from the onset. For reasons of practicality, however, a three-month interim certificate would be acceptable. . The Government of the United Kingdom said he could not accept a three-month interim certificate period, citing flag States’ responsibility to also carry out inspections for the IMO International Safety Management Code,  (amended in ). A three-month interim certificate would mean carrying out three inspections in the space of three months, which was not feasible. It was also important to allow sufficient time to adapt to new procedures. This position was supported by the Government members of Pakistan and the Russian Federation. It was in line with the SOLAS Convention. . . . Paragraphs ,  and  . The Government member of Denmark, speaking on behalf of the Government group, indicated the group had re-examined paragraphs ,  and , in order to address the concerns of the Seafarers. There was general support to expand paragraph  to include the issues in Appendix A-I. It was suggested that the text of paragraph , subparagraph (a) be replaced with the words: “The ship has been inspected, as far as reasonable and practicable, for the matters listed in Appendix A-I, taking account of the verification of the items under (b), (c) and (d).” The rest of the paragraph would remain unchanged. This modification might then require a consequential change in the part of Appendix A-II concerning the interim certificate. A consequential modification was also suggested to Standard A..—Inspections in port, paragraph  after subparagraph (c). . The Shipowner Vice-Chairperson supported the language proposed. . The Seafarer Vice-Chairperson indicated his appreciation of the efforts made to accommodate the concerns of seafarers. He requested clarification from the Office on whether the words “as far as reasonable and practicable” were appropriate for use in the mandatory part of the Code, as he believed Part A of the Code should contain unambiguous language. . The Special Adviser replied that wording such as “reasonable” and “as far as practicable” was standard in binding provisions such as Part A, citing a number of instances of similar wording. . The Government member of the United Kingdom said the Government group had made great efforts to accommodate the concerns of the Seafarers. The Governments had carefully examined the items in Appendix A-I, but noted that requirements would be different for ships in different stages of life: under construction, new and those that had changed flag. The best way to address the concerns of the Seafarers was to refer to Appendix A-I and inspect as far as was reasonably possible in the particular circumstances. . The Seafarer Vice-Chairperson said that in the light of the explanation of the Special Adviser and the comment of the Government member of the United Kingdom, the Seafarers could agree to the proposed text. Moreover, in light of the consequential modification proposed for Standard A..—Inspections in port, paragraph , subparagraph (c), the Seafarers could agree to six-month interim certificates. . . . . After further discussion, the Committee agreed to replace the existing text of Standard A.., paragraph , subparagraph (a) with “The ship has been inspected, as far as reasonable and practicable, for the matters listed in Appendix A-I, taking into account of the verification of the items under (b), (c) and (d)”. It was agreed to delete the bracketed text

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addressed in paragraphs  to  of Standard A... Appendix A-II provides a model form for the interim certificate. Paragraph  of the Standard sets out the limited circumstances in which a MLC can be issued on an interim basis: (a) to new ships on delivery; (b) when a ship changes flag; or (c) when a shipowner assumes responsibility for the operation of a ship which is new to that shipowner.

One of the practical reasons for this possibility relates, especially for new ships, to the absence of any history regarding the employment practices on ships (e.g., payment of wages, food services). An interim certificate only can be granted one time by a flag State to a ship for a period not exceeding six months (paragraph ). The grant would be subject to an inspection “as far as reasonable and practicable”, for the matters listed in Appendix A-I (paragraph ), and a full inspection would have to be carried out at the end of the period of validity to issue an MLC and DMLC. Under paragraph , a DMLC need not be issued for the interim MLC, although a shipowner must demonstrate that, inter alia, the ship has adequate procedures as required under paragraph . The linkage with PSC in Standard A.. is important to note. Under Standard A.., paragraph , a more detailed inspection may be undertaken in various circumstances including, (c) there are reasonable grounds to believe that the ship has changed flag for the purpose of avoiding compliance with this Convention.

Situations where a ship has held a series of interim certificates from various flag States could constitute “reasonable grounds” under paragraph (c) to believe that there has been a change of flags to avoid compliance and a full inspection.139 “three” in paragraphs  and , and to adopt the bracketed text “six” in these paragraphs. A consequential modification was made to Standard A..—Inspections in port, adding a new subparagraph after paragraph (b). It was noted that a consequential modification might also be required to the Appendix concerning the certificate. 139

See ibid., comments at paras  and . This is also addressed in detail in the Guidelines for Port State Control Officers, supra note : Step : Determining whether there are reasonable grounds to believe that the ship has changed flag to avoid compliance with the Convention . A PSCO may also decide to undertake a more detailed inspection if there are reasonable grounds to believe that the ship has changed flag for the purpose of avoiding compliance with the MLC,  (Standard A.., paragraph (c)). Any change or changes of flag should be noted in the documentation of the ship concerned, in particular its Continuous Synopsis Record, maintained under Regulation  of the SOLAS Convention, Chapter XI. There must be “reasonable grounds”, rather than “clear grounds”, to believe that the purpose of the change or changes was to avoid compliance. The PSCO could form an opinion on the purpose of changing flag by looking at any relevant inspection report.

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Paragraphs  to  address questions of content, format, language, and posting of the MLC and DMLC. As noted in the Office Report for the th ILC (emphasis added): Note  (Regulation .) . (f) The main content of the declaration of maritime labour compliance is described in paragraph . It will be in two parts. Part I will be drawn up by the competent authority of the Member. It will identify the national provisions implementing the relevant provisions of the Convention, including any substantially equivalent provisions under paragraph  of Article VI. Part II will be drawn up by the shipowner and certified by the competent authority. It is through this part of the declaration, particularly with respect to maintaining records and ensuring ongoing compliance with the national requirements between inspections, that the shipowners and the masters themselves become part of the system of enforcement under the Convention. . . .

Paragraph  is of particular interest and must be considered in connection with the guidance in Guideline B... Under paragraph , a DMLC is to be “attached” to the MLC.140 The Guidelines for Flag State InspecSignificant outstanding deficiencies which have not been transferred to the new flag’s records may be reasonable grounds. The previous flag State may provide information, which could include difficulties it had in enforcing compliance. However, the shipowner’s representative may be able to inform the PSCO of legitimate reasons for changing flag which were not for the purposes of avoiding compliance. 140

Lack of a completed MLC or DMLC is regarded as an incomplete document constituting a basis for a more detailed inspection under the Guidelines for Port State Control Officers, supra note : . Completeness. A Maritime Labour Certificate must have a DMLC attached or it is incomplete. An Interim Maritime Labour Certificate, however, need not be accompanied by a DMLC. The PSCO should ensure that all spaces requiring input from the flag State have been completed in the Maritime Labour Certificate and the DMLC, or in the Interim Maritime Labour Certificate. The check for completeness should then ensure (except in the case of an Interim Certificate) that: – Part I of the DMLC identifies, for each of the  certified areas, the national requirements embodying the relevant provisions of the MLC, , by providing a reference to the relevant national legal provisions as well as setting out, to the extent necessary, concise information on the main content of the national requirements, including ship-type specific requirements. In that connection PSCOs may find it helpful to consider the guidance provided in the MLC, , to flag States to help them complete the DMLC Part I. The MLC, , provides that “The statement of national requirements in Part I of the Declaration of Maritime Labour Compliance should include or be accompanied by references to the legislative provisions relating to seafarers’ working and living conditions in each of the matters listed in Appendix A-I. Where national legislation precisely follows the requirements stated in this Convention, a reference may be all that is necessary. Where a provision of the Convention is implemented through substantial equivalence as provided under Article VI, para-

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tions141 summarize the requirements concerning the DMLC under Regulation ..: . DMLC, Part I—Part I is to be completed by the competent authority. It contains references to the relevant details of the national requirements implementing the MLC, . Any national substantial equivalences and any exemptions granted by the flag State must be specified in the DMLC, Part I. See Standard A.., paragraph , for the contents of Part I with additional guidance in Guideline B.., paragraph . An example of how it might be filled out is provided in Title , Appendix B-I. . DMLC, Part II—Part II is to be completed by the shipowner and must identify the measures adopted to ensure ongoing compliance with the national requirements between inspections and the measures proposed to ensure that there is continuous improvement. Part II is subject to inspection before certification by the competent authority or an RO on its behalf. See Standard A.., paragraph , for the contents of Part II with additional guidance in Guideline B.., paragraphs ,  and . See Title , Appendix B-I for an example of how it might be filled out.

Several concerns arise in connection with the DMLC, from both the flag State and PSC perspectives, largely in relation to the national information in Part I, the information to be provided by the flag State competent authority. Standard A.., paragraph (a), addresses Part I of the DMLC, the Part to be “drawn up” by the competent authority.142 The competent authority shall:

graph , this provision should be identified and a concise explanation should be provided. Where an exemption is granted by the competent authority as provided in Title , the particular provision or provisions concerned should be clearly indicated.” – Part II of the DMLC indicates the main measures adopted by the shipowner to ensure ongoing compliance with the national requirements between flag State inspections; – The results of any subsequent flag State verifications, including those related to measures referred to in Part II of the DMLC are recorded in or attached to the DMLC or made available to the PSCO in some other way, and include information not only on any deficiencies found during the verifications but also the dates when the deficiencies were found to have been remedied. 141

Supra note . This ‘drawing up’ would not seem to require that Part I of the DMLC must be created anew for each ship by the competent authority. Rather the competent authority would draw up the essential (and generic) content of Part I, as established in Standard A., paragraph (a). Such a standardized Part I, containing the competent authority’s signature, could be prepared with the ship-specific elements (at the top of the DMLC) left blank (i.e., the name of ship, IMO number, gross tonnage). An analogy could be made with a national passport: its essential content is drawn up by a competent authority. An individual passport is issued to the national concerned by or on behalf of the competent authority after the latter has added the details of the national concerned in the places provided for in the passport. Similarly, the competent authority, or a duly authorized RO, could add the details of the ship concerned in the appropriate places provided on the DMLC Part I, as well as the shipowner-prepared DMLC Part II details (which could also prepared by

142

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i) identify the list of matters to be inspected in accordance with paragraph  of this Standard; (ii) identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions as well as, to the extent necessary, concise information on the main content of the national requirements; (iii) refer to ship-type specific requirements under national legislation; (iv) record any substantially equivalent provisions adopted pursuant to paragraph  of Article VI; and (v) clearly indicate any exemption granted by the competent authority as provided in Title ; . . .

Despite the illustration provided in Appendix B-I, a question may arise from a flag State perspective, regarding the extent of legal data to be provided. Shipowners (“company”) have some experience preparing documents of compliance regarding their safety management systems to comply with requirements under the ISM Code. However, a government administration preparing a document, to be carried on board a ship, that lists the ways that the State has complied with its obligations under a convention, is a new development. While ILO Member States are used to providing this detailed data in their Article  reports to the ILO supervisory system, there may be some uncertainty in the context of shipboard documents and inspections.143 There is another aspect to the shipboard documentation that is not obvious in the Convention text. While significant initial work is needed to develop the national Part I of a DMLC, this may have an administrative benefit. The DMLC will clearly assist countries in preparing their Article  reports as the report form that has been adopted specifically provides for the possibility of referring to the DMLC as containing complete answers to many of the requests for information.144 Concern about the DMLC Part I largely relates to questions of depth. Does the entire text of legislation need to be included and, if so, do laws need to be translated into English? To fully understand the level of detail to be included, the broader function of the DMLC and the balance struck in the Convention between national autonomy and uniformity must be considered. The DMLC is necessary to provide the option for specific national requirements and to ensure shipowners for a number of ships) after certification. The DMLC would then be issued to the ship. At the th ILC this text was amended to clarify the ability of the RO issue to a DMLC. See: Committee of the Whole Report, supra note , paras –. As stated by the UK, . . . . it was the task of the competent authority to draw up the declaration of maritime labour compliance. However, the competent authority might delegate the task of issuing the certificate to a recognized organization duly authorized for that purpose. It was therefore necessary to introduce additional language to the provision to authorize the recognized organization to carry out this task. 143

While maritime ships’ documentation and inspections is dealt with by maritime administrations in most countries, usually it is the labour administration that is charged with filling out the Article  reports. 144 Supra note .

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that ship compliance is measured against national requirements, especially in connection with PSC. However, as suggested earlier, the overall approach is predicated on reducing administrative burdens and creating, if not a ‘push’, at least ‘a pull’ to uniformity through an approach based on negative reporting. This means that specific information is only needed on points where national implementation differs from the Convention, that is, regulations and both parts of the Code (although Part B is not subject to PSC). Further guidance on the nature of the ‘reference’ to national legislation is provided in the MLC, , Guideline B.., paragraph , which recommends that (emphasis added): . The statement of national requirements in Part I of the declaration of maritime labour compliance should include or be accompanied by references to the legislative provisions relating to seafarers’ working and living conditions in each of the matters listed in Appendix A-I. Where national legislation precisely follows the requirements stated in this Convention, a reference may be all that is necessary. Where a provision of the Convention is implemented through substantial equivalence as provided under Article VI, paragraph , this provision should be identified and a concise explanation should be provided. Where an exemption is granted by the competent authority as provided in Title , the particular provision or provisions concerned should be clearly indicated.

The easiest option provided would be to simply adopt the MLC,  requirements, including Part B, as drafted. The main concern for the flag State is to provide sufficient information in the DMLC Part I to ensure that a PSCO is aware of any areas where the national legislation or measures implementing the MLC,  do not follow the Convention’s requirements precisely. Where the Convention’s requirements are followed, then as stated above, a reference to the relevant law or measure is all that is needed.145 The example of Part I of a DMLC in the MLC,  Appendix B-I (see Appendix  to this book) provides an indication of the length envisaged by the drafters of the Convention; it may also be of assistance in preparing the national DMLC Part I. It is also important to keep in mind that the shipowner’s plan for ongoing compliance in Part II of the DMLC must be reviewed for approval and should also be an aspect of the flag State and PSC inspection of the ship. Another more practical question that might arise in the flag State context146 is what inspectors 145

As stated in the Guidelines for Port State Control Officers, supra note :

. The DMLC is not expected to cover every single national law or regulation or other measure adopted by the flag State to implement the requirements of the MLC, . A DMLC should be considered as complete if it identifies, in each of the  areas, the national law requirements on the matters that are referred to as Basic requirements in Chapter  below. 146

A similar issue may arise in connection with PSC. One concern for PSCOs is whether they might be expected to inspect flag State compliance (as opposed to ship compliance) with MLC,

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are to do if their national Part I DMLC does not seem adequate. The Convention does not address this question. The Guidelines for Flag State Inspection provides the following advice to flag State inspectors: . Flag State inspectors may, however, be unable to find any national provisions or other measures that cover certain of the Convention’s requirements. In the case of apparent gaps in coverage of requirements, inspectors (including ROs) should request clarification from the flag State’s competent authority. Inspectors should alert the competent authority to any relevant deficiency or abuse not specifically covered by existing laws or regulations and submit proposals for improvement (see Guideline B.., paragraph (g)).147

Paragraph  requires that information about subsequent inspections and problems is recorded on the documentation. Paragraph  requires that ships have a “current valid MLC and DMLC accompanied by an English language translation”,148 where not in English, that is to be carried on board and a copy149 posted in a “conspicuous place where it is available for seafarers”. Again, the functional aspect of the compliance and enforcement documentation is clear, as the documents are also to be available to flag and PSC inspectors, as well as representatives of shipowners’ and seafarers’ organizations.

. As noted above, although the certification is with respect to national laws, the Guidelines for Port State Control Officers, ibid., clarifies that: . . . . it is not the function of PSCOs to enforce any national requirements that go beyond the requirements of the MLC, . 147

Supra note . Perhaps redundantly, under paragraph , the requirement for an English translation is not required for ships not engaged in international voyages. Since ships not engaged in international voyages, unless operating between ports in another country, are not required to have an MLC or DMLC, it is not clear why this provision is needed. 149 Committee of the Whole Report, supra note : 148

. The Chairperson opened a general discussion on the issues raised in amendment D., which was sponsored by the Government members of Australia, China, Indonesia, Japan, Malaysia, New Zealand, Norway, Oman, Philippines, Republic of Korea, Saudi Arabia, Singapore and United Arab Emirates, and sought to insert the words “a copy shall be” between the words “and” and “posted” in the first sentence of Standard A.., paragraph . . The Government member of the Republic of Korea explained that this amendment concerned the duty of posting the maritime labour certificate and declaration of maritime labour compliance in a conspicuous place on board (Standard A.., paragraph ). The present wording did not make it clear whether the original or a copy should be posted. In keeping with practice under the SOLAS and MARPOL Conventions, a copy should be posted to prevent damage to or loss of the original. . The Government member of the United Kingdom, speaking for the Austrian presidency of the European Union on behalf of the Government members of the Committee Member States of the European Union, as well as for the Government members of Bulgaria, Iceland, Norway and Romania, supported the amendment.

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Standard A.., paragraphs  to , deal with the situations where a MLC will automatically cease to be valid or must be withdrawn. Aside from one subparagraph of paragraph , the provisions in these four paragraphs were not controversial at the th ILC and were adopted without amendment.150 Paragraph  provides that an MLC will cease to be valid in five situations: (a) if the relevant inspections are not completed within the periods specified under paragraph  of this Standard; (b) if the certificate is not endorsed in accordance with paragraph  of this Standard; (c) when a ship changes flag; (d) when a shipowner ceases to assume the responsibility for the operation of a ship; or (e) when substantial changes have been made to the structure or equipment covered in Title .

Paragraph (d) was amended at the th ILC to better reflect the nature of the transfer of responsibility between owners in a ship transfer.151 It focuses on the 150

However, there was some debate at the PTMC about terminology in paragraph  (then ), Committee No.  Report, supra note , paras –. 151 Ibid.: . The Chairperson opened a general discussion on the issues raised in amendment D., which was sponsored by the Government members of Finland and the Russian Federation, and sought to replace Standard A.., subparagraph (d) by the following new text: “When a shipowner transfers responsibility for the operation of the ship to another shipowner;”. . The Government member of the Russian Federation noted that subparagraph (d) and paragraph (c) of the same Standard used identical language. However paragraph (c) was related to the issuance of a maritime labour certificate, whereas paragraph (d) was related to the cessation of validity of a certificate. The relevant fact in paragraph (d) was that the original shipowner had stopped being the owner and passed on the responsibility. For this reason, it was appropriate to make reference to a shipowner transferring responsibility, rather than assuming it. This was a well-established practice in the delivery of ship documents. The maritime labour certificate did not cease to be valid because a new shipowner had assumed responsibility; it ceased to be valid because the old shipowner had ceased to act as such. The aim of the proposal was to distinguish between the two separate processes of cessation of responsibility and assumption of responsibility. . The Employer Vice-Chairperson supported the proposed text, since it provided additional clarity. . The Government member of the United Kingdom said that the text found in Standard A.., paragraph (c), stemmed from language used in the ISM Code. This very wording was later also used in Standard A.., paragraph (d). Since the latter related, however, to the cessation of the maritime labour certificate, its emphasis was wrong. It should focus on the ship leaving the company. He therefore supported the amendment. . . . . The Government member of the Russian Federation said that a situation could arise where the former shipowner had ceased to exercise his functions, while the new shipowner had not yet assumed his responsibilities. In these cases, according to the proposed Convention, the certificate would not lose its validity, although that had been the original intent. In

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fact that a shipowner has ceased to be responsible as the catalyst, rather than the fact that a new owner has assumed responsibility for a ship. It should also be noted that an MLC can be withdrawn by a competent authority or by an RO (if the RO is authorized to do so). Paragraph (e) refers to substantial changes to the structure and equipment under Title  and is also indirectly linked to provisions on inspection in Regulation ... Essentially, the cessation of validity is a form of enforcement for the requirement in Standard A., paragraph , such that inspections are required when (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered. In Chapter , it was observed that these provisions illustrate the cohesiveness of the Convention.152 As noted above, Guideline B.. provides further information on the content of the DMLC, Part I. It also provides more guidance, in paragraphs  and , to shipowners with respect to the content of the DMLC Part II, including potential referencing of other on-board maritime documents such as the continuous synopsis record.153 Regulation ..—Inspection and Enforcement Regulation ..—Inspection and enforcement is focused on the inspection process and flag State inspectors (who could also be ROs) in the flag State’s inspection and certification system. It addresses inspection of all ships under the country’s flag that are covered by the Convention, not just ships that must inspected and certified. Regulation .. has two paragraphs, with paragraph  referencing Part A of the Code for the “detailed requirements regarding the

order to avoid this situation, the basis for cessation of validity should be the cessation of the exercise of the old shipowner’s responsibility. . Upon further reflection, the Worker Vice-Chairperson supported the proposal. . . . . The Government member of China, speaking on behalf of the Government group, proposed a slightly modified wording that read: “When a shipowner ceases to assume the responsibility for the operation of a ship.” . The Employer and Worker Vice-Chairpersons supported the proposal of the Government group and suggested that the Drafting Committee might be asked to consider whether the word “assume” was the best term in that context. 152

As noted in Chapter , p. , the reason for the difference in wording between Standard A.. and Standard A., paragraph , “seafarer accommodation” and the apparently narrower situation under Standard A..., paragraph , is not clear in the records. It may suggest that all of Standard A. is considered to relate to structure/construction or equipment, or it may simply be that the provisions were developed by two different technical committees at the PTMC. 153 Under amendments to SOLAS, , supra note , to enhance maritime security, Chapter XI-, Rule , all passenger and cargo vessels of  GRT and more in international trade are to carry a record of the ownership history of that vessel, the continuous synopsis record, that is available for inspection at all times.

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inspection and enforcement system”.154 As noted above, Regulation .., the Code, and regulations on PSC (Regulation ..) interact with Regulation ... Paragraph  requires that: Each Member shall verify, through an effective and coordinated system of regular inspections, monitoring and other control measures, that ships that fly its flag comply with the requirements of this Convention as implemented in national laws and regulations.

This is an elaboration of the principle in paragraph  of Regulation .. that the Members establish an effective system for inspection and certification of maritime labour conditions. Again, the emphasis is on “as implemented in national laws and regulations”.155 It will also be recalled the term ‘requirements of this Convention’ is a defined term in Article II, paragraph (e).

154

This limitation to Part A of the Code appears to have been added to the text by the PTMC. However, the reasons are not recorded. Presumably it was added for the reasons indicated above in connection with Regulation .., paragraph . Again, given that that none of the matters in this regulation are matters for PSC but are related to State implementation obligations, there may be uncertainty as to implications for the ‘due consideration’ obligation in Guidelines B... However, the extent of the debate over one element of these guidelines relating to the collection of statistics indicates that they were considered important by governments. See: Committee of the Whole Report, supra note . The debate over Guideline B.., paragraph (d), occupies  paragraphs of this Report (paras –):

. The Government member of the United Kingdom indicated that, although the provision in question only consisted of a guideline, it was his Government’s wish to be able to follow the guidelines as closely as possible. However, subparagraph (d) would require all competent authorities in the various member States to include in their annual reports statistics on all seafarers subject to their national laws and regulations. . . . . The Chairperson considered that a broad agreement existed in support of the suggestion put forward by the Government member of Denmark. The Drafting Committee would be asked to draw up language that would restrict reporting requirements to ships flying the reporting State’s flag and suggested that the Committee would reconsider the issue once a new draft had been drawn up. . . . 155

As explained in Chapter , under Article IV, paragraph , pp. – unless specified otherwise, implementation can occur through other measures, for example, collective bargaining agreements and practice. The reference to national laws and regulations might suggest that there is an intention to limit the scope of inspection. This is especially the case of the wording in Guideline B.., paragraph . However Standard A.., paragraph , refers to measures, which could include both shipowner measures and a wider range of flag State measures (e.g., administrative notices), as listed in the DMLC, Part I and paragraph (b) referred to as ‘standards’. In addition, the predecessor convention consolidated in this regulation and standard, the Labour Inspection (Seafarers) Convention,  (No. ), supra note , uses the term ‘legal provisions’ which was defined in Article , paragraph (c), as including “in addition to laws and regulations, arbitration awards and collective agreements upon which the force of law is conferred”. Further, Article  provides, for example, that (emphasis added):

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As mentioned above in connection with Standard A.., under paragraph (e), flag State inspections are required by the Convention in specified circumstances not related to the validity of a certificate. In particular, Standard A., paragraph , on accommodation requires inspections under Regulation .. to be carried out when a ship is registered or re-registered, or the seafarer accommodation on a ship has been substantially altered. Standard A.. comprises  paragraphs setting out the basic obligations of the flag State to inspect, including the kinds of authority inspectors should have to effectively carry out their responsibilities, for example, the power to require deficiencies to be remedied or prohibiting a ship from leaving port. This echoes the requirement in Standard A.., paragraph , regarding the minimum authority that ROs are to be given. Standard A.. also address professional matters, such as confidentiality with respect to complaints, and specific provisions to help ensure an inspector’s independence (i.e., avoiding a conflict of interest), as well as provisions regarding compensation and penalties. The wording in the provisions of Standard A.. lack clarity with respect to the question of the scope of the inspection and whether it relates only to the  areas in Appendix A-I or to a larger number of areas. Standard A.., paragraph , provides (emphasis added) Each Member shall maintain a system of inspection of the conditions for seafarers on ships that fly its flag which shall include verification that the measures relating to working and living conditions as set out in the declaration of maritime labour compliance, where applicable, are being followed, and that the requirements of this Convention are met.

However, as discussed above in connection with Standard A.., the term ‘requirements of this Convention’ covers all matters, including the  areas. Therefore the distinction is not clear. However, as explained above, it is perhaps best understood as awkward wording related to the need to cover both certified and uncertified ships, both of which would be subject to an inspection for . Inspectors provided with proper credentials shall be empowered: (a) to board a ship registered in the territory of the Member and to enter premises as necessary for inspection; (b) to carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed; [. . .] The term legal provisions was also used in the predecessor to Guideline .., paragraph , the Labour Inspection (Seafarers) Recommendation,  (R). The travaux préparatoire does not indicate any intention to narrow the scope of flag State inspection under the MLC, . Obviously direct enforcement of CBA implementing measures may be complex and, in most cases, the concern of the flag State inspector will be with some form of national legislation. However, in the case of ships that are certified, compliance with the shipowner’s measures under DMLC Part II is also subject to inspection.

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the same matters by the flag State. The phrase ‘where applicable’ was added throughout most of the text as a result of the decision to limit the mandatory certification to the ships referred to in Regulation .., paragraph . The frequency of the inspections (“regular”) referred to in Regulation .., paragraph , is addressed by Standard A.., paragraph , which requires that: Such inspections shall take place at the applicable intervals required by Standard A... The interval shall in no case exceed three years.

As mentioned in the discussion of Regulation ..,156 this three-year maximum interval may, in some circumstances, be inconsistent with the anniversary date and the intermediate inspections under Standard A... The wording of this provision was discussed at the th ILC in the context of adding the phrase ‘where applicable’. However, the ILC discussion, and as proposed in the discussion concerning Regulation .., suggests that it seems at least arguable that paragraph  envisages two different situations for inspections: the three year minimum being the general rule, subject to the more specific intervals for certification.157 It will be recalled that under Regulation .., paragraph , ROs must be both “competent and independent”. This is complemented by Standard A.., paragraphs  and , which impose an obligation on flag States to appoint a 156 157

See discussion supra note . Committee of the Whole Report, supra note :

. The Chairperson opened a general discussion on the issues raised in amendment D., which was sponsored by the Government members of Australia, China, Japan, Singapore and the United States, and sought to insert the words “where applicable” after the words “Standard A..” in the first sentence of Standard A.., paragraph . . The Government member of Japan proposed an editorial change for the first sentence of Standard A.., paragraph . This paragraph, as currently drafted, could be understood to mean that all ships needed to be inspected in accordance with the intervals set out in Standard A... However, those intervals were only applicable to ships that required a maritime labour certificate under Regulation .., paragraph —namely, ships of  GT or over, engaged in international voyages. In order to reflect the decision taken at the Intersessional Meeting to exclude the smaller ships from the certification requirement, it was found necessary to add the words “where applicable” after the reference to the declaration of maritime labour compliance in Standard A.., paragraph , as not all ships were subject to certification. For the sake of consistency, it was important that the words “where applicable” should also be added at an appropriate place in the first sentence of Standard A.., paragraph , to make it clear that the intervals referred to in this sentence applied only to ships requiring certification. . The Worker Vice-Chairperson asked the Office for clarification as to whether under the proposed amendment, inspection would still be required for ships without certificates. . The representative of the Secretary-General explained that Standard A.., paragraph , applied to all vessels and, consequently, paragraph  referred to inspection intervals for all vessels irrespective of whether they were subject to the certification regime. The change introduced by the amendment only concerned the certification system and it did not purport to alter States’ obligations and responsibilities with regard to inspection.

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“sufficient number of qualified inspectors” and to make adequate provision to ensure that these inspectors “have the training, competence, terms of reference, powers, status and independence necessary or desirable to enable them to carry out the verification and ensure the compliance”. These paragraphs must be considered together with the details in other paragraphs in the Standard. For example, paragraph  addresses the need to avoid situations that might give rise to a potential conflict of interest or prejudice in any way the authority or impartiality of the inspectors. Similarly, paragraph  refers to the need for “rules” to “guarantee that inspectors have the status and conditions of service to ensure that they are independent of changes of government and improper external influences”. This provision is directed to the situation of flag State inspectors that are in the public service, although the need for independence is clearly a consideration for the appointment of ROs. The powers and authority to be given to flag State inspectors is set out in paragraphs  and , in light of the guidance that is primarily found in Guideline B.., paragraph . Standard A.., paragraph , requires that flag State administrations have clear guidelines as to the tasks to be performed by inspectors and that the inspectors are also provided with “proper credentials”. Guideline B .., paragraph , also provides that: The competent authority should develop a compliance and enforcement policy to ensure consistency and otherwise guide inspection and enforcement activities related to this Convention. Copies of this policy should be provided to all inspectors and relevant law-enforcement officials and should be made available to the public and shipowners and seafarers.

Guideline B.., paragraphs  to , drawn mainly from the Labour Inspection (Seafarers) Recommendation,  (R),158 essentially set out a blueprint159 158

Adopted at the same time as the Labour Inspection (Seafarers) Convention,  (No. ), supra note , which was ratified by  countries as of August . 159 This guidance is very detailed and, with some revision, could form a job description or part of the guidelines called for in Standard A.., paragraph . This guidance is clearly aimed at establishing a cadre of inspectors employed in the public service. It even includes element of resources, for example, Guideline B.., paragraph (b), which calls for “conveniently situated premises, equipment, and means of transport”. Guideline B.. also provides: . Subject to any conditions for recruitment to the public service which may be prescribed by national laws and regulations, inspectors should have qualifications and adequate training to perform their duties and where possible should have a maritime education or experience as a seafarer. They should have adequate knowledge of seafarers’ working and living conditions and of the English language. . . . . All inspectors should have a clear understanding of the circumstances in which an inspection should be carried out, the scope of the inspection to be carried out in the various circumstances referred to and the general method of inspection. . Inspectors provided with proper credentials under the national law should at a minimum be empowered to:

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

for training, recruitment, and tasks to be undertaken by flag State inspectors. However, as explained previously, perhaps the most important document for flag State administrations is the Guidelines for Flag State Inspection since they were specifically developed to achieve a level of uniformity in national inspection policies and practices under the MLC, .160 One of the most important provisions in Standard A.., paragraph , concerns the powers of flag State inspectors (including those of ROs). In particular, as noted above under subparagraph (c), they must be able “to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken”. It will be recalled that the  Intersessional Meeting developed the idea that flag and port State control should be ‘mirror’ provisions and resolved the more difficult issue in the context of PSC. The wording in paragraph (c) for these actions provides the parameters for the complementary inspection and detention provisions in connection with the control measures in foreign ports under Regulation . and the associated standard.161 The issue of the action to be taken by the flag State inspectors on identifying deficiencies is of such importance that it forms a separate chapter (Chapter ) of the Guidelines for Flag State Inspection and occupies even more text in the Guidelines for Port State Control Officers. For a lengthier discussion of the options available to flag State inspectors it is advisable to review the respective chapters in the two Guidelines. The following extract explains the complexity of the determination and also lists factors that the Tripartite Meeting of Experts agreed were relevant considerations in determining whether a ship should be prohibited from leaving port: . Chapter  contains examples of deficiencies for inspected items. In all cases any deficiencies should be rectified. Rectification of a deficiency related to shipowner use of recruitment and placement services should not, in principle, be to the

(a) to board ships freely and without previous notice; however, when commencing the ship inspection, inspectors should provide notification of their presence to the master or person in charge and, where appropriate, to the seafarers or their representatives; . . . 160 161

Supra note . See also Chapter . As noted in Report I(A), supra note , Note  (Regulation .), para. : . . . In its comments (. . .), the United Nations has noted that, pursuant to paragraph  of Article  of UNCLOS, a flag State is required to prohibit its vessels from sailing unless they comply with the requirements of applicable international rules and standards, including requirements in respect of manning of vessels.

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detriment of the seafarers affected. In some cases a single instance of the deficiency, including a breach of seafarers’ rights, may be sufficient to prevent a ship from going to sea until it is rectified, e.g. a ship with an underage person working as a seafarer. In other cases, a deficiency, for example, a breach of the lighting requirements in one sleeping room, may be rectified within a period of time. However, if there is a history of this problem or, if faulty or inadequate lighting in areas including sleeping rooms indicates an overall occupational safety and health problem (meeting criteria in Standard A.., paragraph (c)), a decision may be taken that the ship should not sail until the deficiencies are rectified. . Flag State inspectors will need to use their professional judgement as to whether a ship should be allowed to sail before the deficiency is rectified and, if it is not rectified, to decide on what action to take including withdrawal of the certificate. [ . . .] . When considering which action or actions to take, flag State inspectors should use their professional judgement. In addition, flag State inspectors should take into account the following when reaching a decision on whether or not to accept a rectification plan or prevent a ship from leaving port and/or recommend withdrawal of Maritime Labour Certificate: – whether or not the non-conformities can be rapidly remedied in the port of inspection; – whether the deficiencies constitute a significant danger to seafarers’ safety, health or security; – the seriousness of the breach of the requirements of the MLC,  (including seafarers’ rights); – length and nature of the intended voyage or service; – size and type of ship and equipment provided; – whether or not the appropriate rest period for seafarers is being observed; – nature of the cargo; – prior history of similar deficiencies; – number of deficiencies identified on the inspection; – safe manning requirements; – prior history with respect to rectifications. . All reasonable efforts are to be made to avoid a ship being unreasonably detained or delayed (Standard A.., paragraph ).162

As this extract indicates there is also a ‘balancing’ of rights for decisions taken under paragraph (c). Further, there is a requirement under paragraph  that there be a right of appeal to a judicial or administrative authority. While this provision (which was not in the predecessor convention) is probably intended 162

Guidelines for Flag State Inspection, supra note . It should be noted that in the flag State context this would not usually be described as detention. In the PSC context especially, the alternative approach to a list of ‘factors to consider’ would be to develop a list of specific deficiencies that would require detention, as is the case for PSC MOUs for the IMO conventions. However, in the MLC,  the issues are more complex and involve, as indicated in the Guidelines, the issue of severity either because of the nature of the deficiency or its repetition.

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for shipowners, in the event that a ship is prohibited from leaving port, in principle presumably ‘any action’ could apply to a decision allowing a ship to leave port. Under Standard A.., paragraph , inspectors are to make reasonable efforts to avoid ships being unecessarily detained or delayed. Paragraph  provides a right to compensation “in accordance with national laws and regulations” for any loss or damage suffered as result of the wrongful exercise of inspectors’ powers. Importantly in that case, the burden of proof (to establish the wrongful exercise of power) is expressly placed on the complainant.163 In addition to provisions concerning withdrawal of a MLC or otherwise prohibiting a ship from leaving port, paragraph  provides a reminder that Members are also to provide for adequate penalties and other corrective measures, inter alia, for breaches of “the requirements of this Convention (including seafarers’ rights)”. In addition to sanctions or remedies at the shipboard level, deficiencies would also de facto constitute breaches of national laws or regulations or other implementing measures.164 This provision is based on Article , paragraph , of Convention No. , which requires penalties for violations of “the legal provisions enforceable by inspectors”. It is also a detailed requirement that implements Article V, paragraph , of the MLC, .165 Standard A.., paragraphs  and , combined with Guideline B.., paragraph , address possible approaches to be adopted (“simple procedures to receive information in confidence”) by flag States to “receive a complaint” or “obtain evidence that a ship that flies its flag does not confirm to the requirement of this Convention” and to “take steps to investigate and ensure actions are taken to remedy any deficiencies found”. This is an important aspect of the three-pronged complaint process that supports State-level compliance and enforcement actions, which are mainly set out in Title . The need for a flag State to provide procedures or a mechanism of some sort is clear in Regulation ..—On-board complaint-handling procedures (which includes seafarers being given a contact number for the flag State competent authority) and in connection with PSC, including the Regulation ..—Onshore seafarer 163

It is clear that this provision is directed primarily to shipowners. However, if national law was to provide for the possibility of a claim for a loss or damage suffered by seafarers, this paragraph does not on the face of it confine the remedy to shipowners. 164 This could be relevant, for example, in the context of deficiencies that are also breaches of fundamental rights such as non-discrimination, freedom of association, or child labour, which would be protected under nation laws or regulations. 165 See Chapter . Article V, paragraph  provides: Each Member shall prohibit violations of the requirements of this Convention and shall, in accordance with international law, establish sanctions or require the adoption of corrective measures under its laws which are adequate to discourage such violations.

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complaint-handling procedures. In connection with PSC, is it especially important that a flag State establish a system where it can receive and rapidly respond to information about problems on board its ships. As noted above under Regulation .., there was a concern that the RO should not be expected to handle complaints unless specifically asked to investigate a complaint. Standard A.., paragraph , and Guideline B.., paragraph , emphasize a critical element in complaint handing—confidentiality—irrespective of whether the information or complaint is received through formal procedures or by flag State inspectors in the course of an inspection. It is also important to encourage the sharing of information and complaints from a functional perspective as an inspection tool/resource. Compliance or, more importantly, non-compliance, with many of the requirements of the MLC,  can best be verified through information provided by seafarers, for example, food quality, noise levels, regular wages, noise levels, and access to medical care. As the Guidelines for Flag State Inspection166 note (emphasis added): . In order to verify that the national requirements are complied with and that the shipowner’s measures have been correctly implemented and are being followed (to the extent possible in the case of newly built ships), the flag State inspector should obtain supporting objective evidence by: – inspecting the relevant areas of the ship; – examining further documentation such as passports or other official documents, medical certificates, training records, crew lists and payroll records, seafarer employment agreements, safe manning documents and work schedules; – interviewing, in private, a representative number of seafarers, taking account of the need to preserve confidentiality and of the seafarers’ work and rest schedules. . As discussed earlier, in section ., ships will be subject to inspection in very different situations. For example, the inspection of a new ship may of necessity be less extensive than that of a ship which has already been issued a Maritime Labour Certificate because for new ships, there will not yet be historical operational information for the ship and in some cases seafarers may not yet have joined the ship and would not be available for interviews. In such a case, the inspection may be carried out, as far as reasonable and practicable, for the issuance of an Interim Certificate (see Standard A.., paragraph ). On the other hand, if sufficient documentation is available for the issuance of a Maritime Labour Certificate, the inspection might involve a review of the shipowner’s measures for the purpose of certifying Part II of the DMLC, a physical inspection of the ship, a review of documentation and seafarer interviews, in private.

166

Supra note .

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

Regulation ..—On-board Complaint-Handling Procedures The discussion on Regulation .. mentioned a ‘three-pronged approach’ to ensuring compliance at the shipboard level on an ongoing basis through the complaint procedures. The three prongs are: the flag State obligation to receive, investigate, and respond to complaints and information (as discussed above); the provisions in connection with PSC; and the provisions regarding on-board complaint handling under Regulation ... These provisions are attempts to codify or institutionalize informal practices. They distinguish the MLC,  (and earlier conventions) from the IMO conventions in that they recognize the wider interest of seafarers and seafarers’ organizations or others in ensuring that there is ongoing compliance on board ships. This approach also recognizes that breaches of rights are often ‘invisible’ and unlikely to be identified during an inspection without a complaint from the seafarer. This approach is also perhaps idealistic in that seafarers, like other workers, will be concerned about job security and the potential repercussion of complaints on future employment, irrespective of the abstract right to complain under an international convention or flag State law. The practice of informal black listing ‘troublemakers’ is still common, and seafarers with relatively short employment contracts are especially vulnerable. Nevertheless the MLC,  attempts to provide some protection and built in this aspect as an inspection tool to help flag States ensure compliance on ships that fly their flag. This additional tier of action was part of the overall system envisaged for the MLC, .167 As pointed out in the Office Report for the th ILC: . Regulation .. represents a new and important element in the provisions of the Convention designed to assure ongoing compliance. It introduces a requirement that ships have on-board complaint procedures and that complaints and the responses to them are documented. The approach is generally based on a joint submission made by the Shipowner and Seafarer representatives to the third meeting of the HLTWG. The objective is to establish effective procedures for the resolution of complaints at the level of the ship or the shipowner. The Regulation and its associated Code provisions were not resolved at the PTMC. At the Intersessional Meeting, the subject was discussed together with onshore complaint procedures. . . . The current texts of the proposed consolidated maritime labour Convention for the Regulation, Standard and Guideline regarding on-board complaint procedures received tripartite support for inclusion. These texts are based, to a large extent, on the relevant provisions of the recommended draft consolidated maritime labour Convention that had been submitted the PTMC.168

167 168

See supra text at notes  and . Report I(A), supra note , Note  (Regulation .), para. .

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Regulation .. and the Code provision were adopted by the th ILC with no discussion or amendment.169 The history of the development of the Regulation .. and the Code will not be revisited here, but key aspects of the requirements will be examined. First and foremost, the existence of on-board complaint procedures is one of the  items in Appendix A-I that must be both inspected and certified in the case of ships that must be certified. Thus this regulation is part of the Convention’s compliance and enforcement system and is itself a substantive requirement. Since it is located in Title , Standard A.. is not subject to implementation through substantial equivalence under Article VI, paragraphs  and . Regulation .., paragraph , obliges a flag State to require that its ships have on-board procedures to provide for “fair, effective, and expeditious handling of seafarer complaints alleging breaches of the requirements of this Convention (including seafarers’ rights)”. Although the Regulation does not require that flag States adopt laws or regulations to implement this obligation, Standard A.., paragraph , requires that “Each Member shall ensure that, in its laws or regulations, appropriate on board complaint procedures are in place . . . ”. Although shipowners may develop their own on-board procedures, Guideline B.., paragraph , provides that “subject to any relevant provisions of an applicable collective agreement, the competent authority should, in close consultation with shipowners’ and seafarers’ organizations, develop a model for fair, expeditious and welldocumented complaint-handling procedures for all ships . . . ”. These models (or presumably any shipowner developed procedures) are expected to take into account the elements in Guideline B.., paragraph  (a) and (b), and “at a minimum” include the procedures set out in Guideline B.., paragraph , reflecting the basic principle that these “procedures should seek to resolve complaints at the lowest level possible” (Standard A.., paragraph ). However, in all cases seafarers are to have the right to complain directly to the master and appropriate external authorities. The latter aspect links complaints to the flag State and also, as will be discussed under Regulation ., those made during PSC inspections and to authorized officers in port States. The subject matter of the complaint as set out in Standard A.., paragraph , can be “related to any matter that is alleged to constitute a breach of the requirements of this Convention (including seafarers’ rights)”. Under Standard A.., paragraph , seafarers must be given a copy of the procedures that apply on the ship,170 including contact information for 169

Committee of the Whole Report, supra note , paras –. Although not in the regulations or Code provisions, the Guidelines for Flag State Inspections, supra note , Chapter , p. , contain an additional provision (emphasis added): 170

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

the flag State competent authority. This is directly linked to the requirements under Standard A.., paragraph , regarding receipt of information and investigation. The procedures are also to state the name of a person or persons on board who can provide advice to seafarers (on a confidential basis) and assist them with the procedures. Regulation .., paragraph , sets out a ‘whistle blower’ provision. Flag States are required to prohibit and penalize any victimization of seafarers for making a complaint. Victimization is defined in paragraph  as “any adverse action taken by any person with respect to a seafarer for lodging a complaint which is not manifestly vexatious or maliciously made”. Although victimization is difficult to establish, Standard .., paragraph , attempts to address this by providing a witness through a right on the part of the seafarer to be accompanied or represented during on-board complaint procedures. Finally, Regulation .., paragraph , contains a clause preserving other potential remedies, in that these rights are without prejudice to a right to seek legal redress through other means. Regulation ..—Marine Casualties Regulation .. comprises two paragraphs and no Code provisions, although it has headings providing for standards and guidelines (thereby foreseeing potential development of a Code171). However, it seems unlikely that Regulation .. will be developed. It was not discussed at the PTMC in  and was adopted without discussion or amendment at the th ILC in .172 This regulation is a flag State obligation taken from Convention No.  (Article (g)) and addresses the flag State’s responsibility to inquire into serious marine casualties involving injury or loss of life on ships that fly its flag and to make public the results of any such inquiry. It is a matter for flag State implementation rather than on-board implementation and, except for the requirement that the results shall normally be made public, refers to matters that are already the subject of IMO instruments.173 These matters were noted in the report of the fourth HLTWG meeting: All seafarers must be provided with a copy of the on-board complaint procedures applicable on the ship. This should be in the working language of the ship. 171

Unlike Regulation ., the only other regulation with no Code provisions, which specifically contains no headings for future Code provisions. 172 Committee of the Whole Report, supra note , paras –. 173 Marine casualties have been the subject of various instruments, in particular the IMO Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code) and other regulations under SOLAS, MARPOL /, and the Load Line Convention. See: IMO, “Casualties,” available at http://www.imo.org/Safety/mainframe.asp?topic_id=.

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. Two Government representatives indicated that this Regulation should be deleted as the matter was already addressed by the IMO in the SOLAS Convention. The text was changed to limit its scope to incidents involving injury or loss of life. The Office was further asked to consult with the IMO to avoid any other duplication.174

Regulation .—Port State Responsibilities It will be recalled that Article V, Implementation and enforcement, of the MLC,  establishes obligations for ratifying countries in three capacities: as flag States, as port States, and as countries with labour-supplying responsibilities. Not all countries have all three interests, and within the three areas of responsibility, as discussed in Chapters  and , the nature and scope of the obligations differ. The majority of the implementation and related compliance and enforcement obligations in the Convention are directed to ratifying countries in their capacity as flag States. The provisions regarding the inspection of foreignflagged ships coming into port (i.e., PSC) was, along with social security under Regulation ., among the more difficult issues to resolve. This is indicative of the increasing impact and effectiveness of the international network of regional PSC MOUs175 that help to ensure that ships going on international voyages meet international standards and that substandard ships and operators are eliminated.176 The development of PSC to complement and, in effect verify or spot check flag State inspection and enforcement activities, is a result of both the practical difficulty of effectively exercising jurisdiction over ships as they voyage internationally and the rise of the open registry flags. Disenchantment177 with

174

Final Report, supra note . See Chapter  and supra note . 176 Unfortunately, in some countries, substandard ships moved into the coastal/domestic trade sector. 177 See Chapter . See, for example, Mathew Gianni, Real and Present Danger Flag State Failure and Maritime Safety and Security (Oslo/London: WWF/ITF, ) and numerous commissions and reports in response to environmental incidents or labour conditions. The ITF has mounted a long-term campaign against ‘flags of convenience’. These concerns have resulted in alliances between environmental, conservation (fisheries), and labour organizations. Most recently, IMO initiatives have focused on flag State audits: 175

The twenty-fourth Assembly in November–December  adopted resolutions A. () Framework and Procedures for the Voluntary IMO Member State Audit Scheme and A.() Code for the implementation of mandatory IMO instruments which provides the audit standard. The adoption of the framework and procedures for the scheme heralded a new era for IMO, in which the Organization has at its disposal a tool to achieve harmonized and consistent global implementation of IMO standards, which is key to realizing the IMO objectives of safe, secure and efficient shipping on clean oceans. See: IMO, “Voluntary IMO Member State Audit Scheme”, available at http://www.imo.org/safety/ mainframe.asp?topic_id=. FAO is developing a similar audit approach for fishing vessels. See:

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the ‘flag State’ as an effective actor in ensuring that ships meet international standards led to strengthening of the regional regimes based on cooperation among maritime authorities through PSC MOUs rather than international conventions. These more informal practical or institutional arrangements developed largely in response to concerns about ship safety and marine pollution control as a result major incidents.178 PSC can be regarded as a form of self-interested international cooperation or interdependence179 that reflects the common concern of all maritime States in ensuring uniform and high standards for ships entering their ports and traversing their waters. Port States are inherently also coastal States, which means that in incidents involving, for example, ship-source marine pollution, the port State will suffer the harm rather than the flag State. As discussed earlier, the concept of inspection of foreign ships coming into port was established as early as the first SOLAS Convention in ,180 and the regime of regional PSC MOUs emerged in the late s and early s. Through subsequent IMO resolutions and guidelines developed in cooperation with the MOUs, primarily the Paris MOU, the procedures and indeed the ‘professionalization’ of the inspectorate, namely, PSCOs, has evolved. Although ILO Convention No.  provided for action to be taken in port, in  it did not elaborate on procedures and practices. The provisions in Regulation . of the MLC, , like those in connection with flag State inspection, ship certification, and regulation of ROs, are a clear effort to develop an approach and text that will fit seamlessly in the already well-established PSC regime. At the same time, it was seen as important that the text reflect ILO values, vocabulary,181 and approaches; the particularity of social and labour

Expert Consultation on Flag State Performance, Rome, Italy, – June , FAO Fisheries and Aquaculture Report, No.  (Rome: FAO, ), available at ftp://ftp.fao.org/docrep/fao// ie/ie.pdf. Such approaches also address the capacity-building issues behind flag State failures to regulate their fleets. 178 As discussed in Chapter  and supra note , the first PSC agreement in  (the Paris MOU) was developed in conjunction with the adoption of ILO Convention No.  and the provision regarding action in ports in response to complaints or evidence. 179 Or ‘complex interdependence’. See: R. Keohane and J. Nye, Power and Interdependence: World Politics in Transition. nd edition (Boston: Little-Brown, ). 180 See Chapter  and supra note . 181 For example, the term ‘authorized officer’ rather than PSCO is used because, although there is a cadre of port State control officers, this term refers to personnel with specific qualifications to carry out PSC under the regional PSC MOUs with expertise largely reflecting concerns under the IMO conventions. In the labour context, however, there may be a wider range of personnel that are considered qualified or appropriate to carry out PSC under the MLC,  (e.g., inspectors from labour departments). It is also notable that the Guidelines for Port State Control Officers, supra note , use the term PSCO and, based on the definition in the Paris MOU, it appears that it is assumed that the same officer will carry out all inspections.

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standards as ‘rights’ rather than equipment; and, of course, the tripartite agreements and compromises reached during the negotiation of the text. In addition, as explained in connection with flag State responsibilities, the emphasis on national implementation also raised some practical issues. The history of the development of the text and the agreement between the Shipowners’ and Seafarers’ Groups participating in the HLTWG has been discussed in some detail earlier in this chapter and need not be repeated here.182 There was no disagreement with the basic concept and with the majority of the text concerning port State responsibilities. Complications arose as a result of the inclusion of the complaints system and the new onshore complaint-handling procedures in Regulation .. in the PSC procedures,183 and concerns about the lack of certainty as to the scope of PSC, particularly in connection with the term ‘including seafarers’ rights’ and with the DMLC Part I. Essentially governments did not want to be in the position of inspecting implementation by other States or enforcing fundamental rights. Regulation . contains the details for the obligation under Article VI, paragraph , and provides the context for operation of the obligation in paragraph  regarding ‘no more favourable treatment’. The paragraphs provide: . A ship to which this Convention applies may, in accordance with international law, be inspected by a Member other than the flag State, when the ship is in one of its ports, to determine whether the ship is in compliance with the requirements of this Convention. . Each Member shall implement its responsibilities under this Convention in such a way as to ensure that the ships that fly the flag of any State that has not ratified this Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it.

As explained in detail in Chapter ,184 these provisions are especially important with respect to key aspects of ongoing compliance. Paragraph , in line with broader international maritime regulatory regime, refers to “requirements of this Convention”, that is, the articles, regulations, and

182

See supra notes – and text. See also Chapter  regarding Article VI. The role and potential limits to PSC have been explored by many scholars. See, for example, Alexandre Charbonneau, Marché international du travail maritim. Un cadre juridique en formation, Doctoral dissertation, Faculté de droit et des sciences politiques, Université de Nantes, , which provides an interesting analysis of the port as “un espacese de bien-être” (Chapter ) and “Le port un espacese de conficts” (Chapter ), as well as his consideration of the application of law in a globalized sector and potential conflict of laws questions. See also: Iliana ChristodoulouVarotsi, “Port state control of labour and social conditions: Measures which can be taken by port states in keeping with international law,” () XXI Annuaire de Droit Maritime et Océanique –. 184 See text at Chapter , pp. – in connection with Article V. 183

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standards.185 It will be recalled that this phrase, and its definition, were added to the text by the fourth HLTWG meeting to reflect the specific arrangements reached as to the nature of Part B of the Code and, importantly, the fact that Part B provisions are not the subject of PSC inspections under Title . Regulation .—Port State responsibilities contains two sub-regulations: – Regulation ..—Inspections in port and the Code and Appendix, A-III, General areas that are subject to detailed inspection by an authorized officer in a port of a Member carrying out port State inspection pursuant to Standard A.. – Regulation ..—Onshore complaint-handling procedures and the Code

Like the flag State provisions in Regulation ., Regulation . has one purpose clause, which emphasizes the international cooperation aspects of port State action: To enable each Member to implement its responsibilities under this Convention regarding international cooperation in the implementation and enforcement of the Convention standards on foreign ships.

This emphasis links the obligations under Regulation . to Article , paragraph , which provides that: Members shall cooperate with each other for the purpose of ensuring the effective implementation and enforcement of this Convention.

Before looking at the text in Regulations .. and .., it is worth noting, as was the case with flag State inspections, the importance of the Guidelines for Port State Control Officers.186 Even more so than for flag State inspections, to the extent international ROs are carrying out inspections for more than one country/flag, there will be de facto uniformity in practices. These guidelines are an important source of information and help to resolve uncertainty about the practical application of the procedures under Regulation .. The Guidelines are directed to harmonization of PSC practices and are expressly called for, for that purpose, in Guideline B.., paragraph . As explained in the preface to the Guidelines: . . . Developing guidelines for port State control officers is thus an important response to the call for “internationally agreed guidelines”, in so far as the implementation of the MLC, , is concerned. However, a harmonized approach to port State control is an ongoing process that includes cooperation among countries and coordination of maritime inspection under several maritime 185

As explained in Chapter  at note  and earlier in this chapter in connection with flag State inspection, supra note . This phrase can be viewed as a ‘term of art’ in this Convention as it has a very specific meaning, see text at Chapter , pp. –. 186 Supra note . See also discussion of the supra notes  and  regarding the wording used in the lists in Appendix A-III and the list of items in the Guidelines for Port State Control Officers.

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chapter eleven Conventions, not just the MLC, , but also particularly the relevant IMO Conventions. . . . Each country or region may have its own practices relating to port State control. These PSCO guidelines seek to fit in with those practices to the extent possible having regard to the special features and approaches of the MLC, , in particular its tripartite character. The port State control authorities of the various countries may wish to adapt these guidelines to fit their current practices. These international guidelines are designed to be of practical assistance to governments in drafting their own national guidelines, especially on the matters referred to in Standard A.., paragraph  mentioned above. It is hoped that they will, at the same time, achieve their primary aim—namely, uniformity worldwide in effective port State control to ensure compliance with the requirements of the MLC, . If this is achieved, seafarers will benefit from decent conditions of work, not only in law but also in practice, and shipowners providing those conditions will know that they are doing so in a level playing field worldwide.187

Regulation ..—Inspections in Port Regulation .. establishes the basic framework for PSC under the MLC, , that is, the inspection of foreign ships coming into port. Despite difficulties with the wording, the same provisions in Standard .. under Regulation .. were uncontroversial. It was not the subject of debate at the PTMC and the th ILC188 adopted it without any amendment, as it did with many of the provisions in the Standard. The main concerns regarding this regulation, as noted above were identified during the fourth HTLWG meeting: . There was only limited time available to discuss port state control issues. The discussion revealed the need to make clear the principle that port States are under no obligation to inspect foreign ships. For this reason, paragraph , of the Regulation was modified to clarify that the obligation to have an effective port state inspection and monitoring system arises only where the port State decides to carry out such control.189

Regulation .. comprises five paragraphs including, in paragraph , the obligation on ratifying countries that are port States to develop “an effective port State inspection and monitoring system”. Further, in paragraph , there is a linkage to the ILO’s supervisory system and the obligation to include information on the method for assessing effectiveness in the Article  report. This is within the framework of paragraph , which is, as noted above, a ‘may’ obligation in that a State is not required, other than in connection with the regional PSC MOU, to carry out PSC on foreign ships. However, if it does such inspections, the inspection, that is, PSC, must meet the system requirements. 187

Ibid. Committee of the Whole Report, supra note , para. . 189 Final Report, supra note , paras –. See also paragraph , supra note , concerning acceptance of the MLC and DMLC as prima facie evidence of compliance with the standards of the Convention. 188

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It should be noted that in Regulation .., paragraph , the phrase “(including seafarers’ rights) relating to the working and living conditions of seafarers on the ship” has been added to the phrase “requirements of that Convention” as set out in Article V, paragraph . Further, paragraph  refers to “Every foreign ship . . . ”. This reference to ‘every’ is related to Article V, paragraph , which requires that ships flying flags of countries that have not ratified the MLC,  must not receive more favourable treatment than ships of countries that have ratified the Convention. This would not mean less favourable treatment but simply that they are treated in the same way as a ship flying the flag of a ratifying country that is not carrying a MLC and DMLC. This is an important aspect of helping to ensure a level playing field for shipowners that comply with the international minimum standards found in the MLC, . Regulation .., paragraph , establishes the status of the MLC and DMLC from a PSC perspective. Where a port State chooses to carry out an inspection of a foreign ship under the Convention, it is required to accept a valid MLC and a DMLC as “prima facie evidence” of compliance by the ship with the “requirements of the Convention (including seafarers’ rights)”. As discussed earlier in connection with Regulation .., paragraph , ‘prima facie evidence’ is a legal term that is usually understood as meaning “evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive” or more simply something that is presumed to be true unless there is proof to the contrary. As noted in the Office Report190 for the th ILC: . (b) . . . [This term] captures the legal nature of the initial port state control action under other maritime Conventions and is a central feature in the balance struck in the certification system between differing interests, including the primacy of flag state jurisdiction over matters on ships that fly its flag. The consequence, as paragraph  goes on to explain, is that the initial inspection must be limited to a review of the maritime labour certificate and the declaration of maritime labour compliance, “except in the circumstances specified in the Code”. . . . (c) The inspection is to be carried out in accordance with the provisions of the Code “and other applicable international arrangements governing port state control inspections”; this latter phrase would, in particular, cover any applicable regional Memorandum of Understanding . . .. The object of inspections is to ascertain conformity with the provisions of the Convention, other than Part B of the Code. . . .

As the foregoing suggests, the difficulty for PSC is whether to inspect for conformity with the flag State’s national requirements or with the Convention itself. Although it is ‘fuzzy’ in the Convention text, in practice, given the negative reporting approach described earlier and the fact that Part B of the 190

Report I(A), supra note , Note  (Regulation .), paras  (b) & (c).

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Code, the main area for flexibility, is not subject to PSC, the PSC will be concerned with compliance with the Convention’s requirements. This also seems clear from a review of the Guidelines for Port State Control Officers.191 Even though the Convention provides significant national flexibility, the initial concern at the port State level is determining compliance with the MLC,  although ships are certified with respect to compliance with national standards implementing the Convention. De facto the DMLC Part I on these ships would operate as a defence, providing an explanation in the event that a ship’s compliance does not appear to meet the Convention requirements (regulations and standards but not Part B of the Code). Superficially this differs from the IMO conventions, which are directed to uniformity. However, this difference in approach is probably more important to the Article  report and the ILO supervisory system review than it is at the shipboard level. Nevertheless this can cause some confusion as it adds another layer of consideration for PSCOs in determining actions to be taken if a problem is indentified, including the potentially difficult problem of documents indicating that the flag State may not be complying with the Convention. There is no easy answer to such problems, however. One approach is to consider whether the ship, irrespective of national laws or regulations or other measures, is in fact in compliance. If so, then the problem at the legislative level is a matter for the ILO supervisory system. However, where the ship is not in compliance with the Convention and it does not appear to be a matter for national flexibility, then the PSC authority would need to address this concern to the flag State administration and possibly also to the International Labour Office. Standard A.. contains the more detailed procedures for PSC. These provisions were unresolved at the PTMC and were ‘blanked out’ gaps, but were resolved at the  Intersessional Meeting. For the most part, the concern was related to paragraph  and circumstances in which a more detailed inspection must take place based on either a complaint or document review, and specifically what might be captured under the phrase “where the authorized officer has grounds to believe that any deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights)” and the question of the scope of an inspection on a complaint. The following discussion emphasized a few critical points but did not revisit every point as the procedures for implementing this Standard were the central discussion and agreement among the tripartite expert meeting that adopted the Guidelines for Port State Control Officers.192

191 192

Supra note . Ibid.

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Paragraph  of Standard A.. sets out the four situations in which an authorized officer, having come on board to carry out an inspection of the on board MLC and DMLC, may decide to carry out a “more detailed inspection” and two situations where he or she “shall in any case” carry out this inspection.193 The wording ‘having come on board’ is a point of difficulty in reconciling the document-only review procedure with the procedures under the IMO conventions as interpreted in resolutions and the PSC MOUs practice of carrying out a tour of the ship as well as reviewing documents. The Guidelines for Port State Control Officers conceptualizes the process as three phases described as follows: . The guidance in this section and in Chapters  and  of these guidelines describes port State control under the MLC, , as a process involving three potential phases or stages, depending on the situation that the PSCO encounters when going on board a ship to initiate the inspection: – review of the Maritime Labour Certificate and the DMLC constituting prima facie evidence of compliance (Chapter ); – more detailed inspection, where applicable (Chapter ); – action to be taken in case of deficiencies or non-conformities (Chapter ).

The problem of coming on board is ‘glossed over’ in an attempt to harmonize with the existing PSC MOU regime whilst also respecting the agreement regarding the prima facie nature of the MLC and DMLC. . A PSCO having come on board should gain an impression of whether the ship is well maintained and operated. It should be borne in mind that the purpose of the inspection is (where applicable) to review the Certificate and DMLC. When on board the PSCO may observe situations or practices that suggest that the working and living conditions on the ship may be inconsistent with the requirements of the MLC, . Except in the case of a deficiency that requires immediate attention, any deficiencies observed should be dealt with after the review of these documents has taken place.194 (emphasis added)

193

In effect it is this conclusion that something has been seen or found that puts into question or counters the prima facie status of the MLC and DMLC. 194 Supra note  (emphasis in the original): . An inspection may end after a satisfactory document review or it may move to a more detailed inspection and end at that point or an inspection may also require that action be taken if deficiencies are identified. At all stages of the inspection, PSCOs should bear in mind the obligation to make all possible efforts to avoid a ship being unduly detained or delayed (Standard A.., paragraph ). . . . . Where the ship carries a Maritime Labour Certificate and DMLC issued by a flag State that has ratified the MLC, , these documents constitute “prima facie evidence that . . . the requirements of this Convention relating to working and living conditions of the seafarers have been met to the extent so certified” (Regulation .., paragraph ). Except in the four situations set out under paragraph (a)–(d) of Standard A.. (see

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The wording in the last sentence of Standard .., paragraph , relating to instances when a more detailed inspection must take place, was only resolved, as noted earlier, at the  Intersessional Meeting on the basis that the PSC inspection process should mirror/complement, but not exceed, flag State inspections195 under Standard A.., paragraph (c). A more detailed inspection is obligatory now “. . . where the working and living conditions believed or alleged to be defective could constitute a clear hazard to the safety, health or security of seafarers or where the authorized officer has grounds to believe that any deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights)”. An important question also arises with respect to ships that do not have a MLC for various reasons. As the Office Report196 for the th ILC explains: Note  (Regulation .) . (f) The first circumstance (subparagraph (a)) is where the “required documents” are not produced or are not in order; this circumstance would not, of course, apply where the documents are not required—namely, in the case of a ship under  gross tonnage . . .. This is why the words “where applicable” were added to the PTMC draft Convention in the introductory part of paragraph . However, if a ship that is not required to carry a certificate produces the documents and they are in order, they would be accepted as prima facie evidence of compliance. In accordance with the principle of “no more favourable treatment”, reflected in paragraph  of Article V . . ., the provisions in Regulation . would apply to the ships flying the flag of States that have not ratified the maritime labour Convention. Such ships would not usually be able to produce the certification and documentation required by the Convention and would be subject to a more extensive inspection. This is the situation that currently applies with respect to other Conventions in this sector and, under the regional port state arrangements, such as the Paris Memorandum of Understanding, to Convention No. .

The issues of complaint handling and the interaction between Regulations .. and .. are also complex. As noted above, it is difficult to understand the role of complaints. Complaints can arise in two situations in connection with PSC. Although the provisions in Regulations .. and .. interact, it is simplest to view them functionally and discretely. Thus the first analysis is of the situation of complaints under Standard A.. where a complaint is defined in paragraph  and inspections related to complaints have a specific section .. below), a port State control inspection, if undertaken, would be limited to carrying out a review of the ship’s Certificate and the DMLC (Regulation .., paragraph ). 195

Supra notes –. See in particular the comment of the representative of the Government of Japan at p. . 196 Report I(A), supra note .

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scope (however a complaint may also serve as the basis for ‘clear grounds’ under paragraph (b) to provide and open the possible decision to carry out a more detailed inspection). A ‘complaint’ under Standard A.., paragraph (d), is defined in paragraph  in the same way as the predecessor Convention No. : In the case of a complaint under paragraph (d) of this Standard, the inspection shall generally be limited to matters within the scope of the complaint, although a complaint, or its investigation, may provide clear grounds for a detailed inspection in accordance with paragraph (b) of this Standard. For the purpose of paragraph (d) of this Standard, “complaint” means information submitted by a seafarer, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the ship, including an interest in safety or health hazards to seafarers on board.197

A complaint can be made to a PSCO by a number of parties with an interest in the matter and potentially lead to a detailed inspection. Paragraph  sets out the scope of a “more detailed inspection”. Again, there is some ambiguity about the scope of the inspection. Paragraph  incorporates by reference the list of  areas under Appendix A-III (which replicates the flag State list in Appendix A-I): Where a more detailed inspection is carried out on a foreign ship in the port of a Member by authorized officers in the circumstances set out in subparagraph (a), (b) or (c) of paragraph  of this Standard, it shall in principle cover the matters listed in Appendix A-III.

The question of what ‘in principle’ means is not clear, however the Guidelines for Port State Control Officers198 provide further information: . It should, however, be borne in mind that except where a ship is evidently substandard, or the PSCO already has clear grounds to believe that aspects of the living and working conditions on a ship are not in compliance with the MLC, , the more detailed inspection by the PSCO may be much less extensive than that carried out by the flag State. If, after visiting the main spaces on the ship and talking to seafarers, the PSCO finds that the ship appears to be well maintained and operated and the seafarers appear to be satisfied with their general conditions of work, the PSCO may decide to choose several of the  areas of the requirements for a closer scrutiny, with a view to ascertaining whether the flag State inspections of the ship have been carried out and whether the 197

Convention No. , supra note , Art. , para. , reads: For the purpose of this Article, “complaint” means information submitted by a member of the crew, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the ship, including an interest in safety or health hazards to its crew.

198

Supra note .

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chapter eleven shipowner’s measures for ensuring ongoing compliance are adequate and are being adequately implemented. Depending upon the results, the PSCO may decide to end the more detailed inspection, or to extend it to more or even all of the other areas referred to in Appendix A-III

It is important to realize that a complaint under paragraph (d) may give rise to an inspection of matters outside the  areas since it could include a breach of the “requirements of this Convention (including seafarers’ rights)”. Paragraphs , , and  of Standard A.. set out what are essentially information and action requirements in the event a PSCO finds that conditions do not conform to the requirements of the MLC, . Under paragraph , the obvious step is to notify the ship’s master with deadlines for rectification. If the requirements are significant or relate to a complaint, they must also notify the appropriate shipowners’ and seafarers’ organizations in the Member (port) State. Interestingly, the obligations regarding flag State notification remains a ‘may’ obligation, as is notification of the next port. Paragraph  establishes the possibility, based on Convention No. , that the port State can also send a copy of the officer’s report to the Director-General of ILO, along with any reply provided by the flag State. Paragraph  also provides information regarding the action that the ILO Director-General would be expected to take if the flag State’s response to the problem was inadequate, namely, action “to ensure that a record is kept of such information and that it is brought to the attention of parties which might be interested in availing themselves of relevant recourse procedures” (e.g., representations or complaints under Articles  or  of the ILO Constitution). Paragraph  is of central importance as it establishes the basis for detention of ships under PSC. The text is the result of tripartite consensus at the Intersessional Meeting. It places an obligation on port States in cases where, if during a more detailed inspection, deficiencies come to the PSCO’s attention. Steps “shall” be taken to ensure that the ship does not proceed to sea until the serious non-conformities are remedied “or until the authorized officer has accepted a plan of action to rectify such non-conformities and is satisfied that the plan will be implemented in an expeditious manner”. Two deficiencies are specified: (a) the conditions on board are clearly hazardous to safety, health or security of the seafarers (b) the non conformity constitutes a serious or repeated breach of the requirements of the Convention (including seafarers’ rights)

Subparagraph (a) follows the provision in Convention No.  with the addition of the word ‘security’. The wording in (b) follows that of paragraph (c) of Standard A.. and, as noted above, paragraph , Standard A.., which in turn reflects the ‘mirror approach’ to the relationship between port State actions

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relative to flag State actions. Paragraph  also sets out the follow-up actions required, with the addition of an invitation for a representative of the flag State to be present. Paragraph , along the same lines as Standard A.., requires that PSCOs be given guidance as to the kinds of circumstances justifying detention of a ship. The guidance referenced is in Part B of the Code. Guideline B.. has three paragraphs that address concerns about consistency. Paragraph  states that the objective of an inspection policy is consistency and that it should be provided to authorized officers, the public, shipowners, and seafarers. Paragraph  is perhaps one of the most useful paragraphs in Part B of the Code in that, as noted above in connection with flag State actions, it sets out the decision-making factors to consider when prohibiting ships from leaving port. The same factors are relevant for both flag State inspectors and PSCOs. Importantly, it highlights the interaction between fundamental rights and deficiencies under the Convention. It is clear that under the MLC, , PSC is not concerned especially with the enforcement of fundamental rights. However this can go to ‘weight’ or seriousness of a deficiency and the decision to detain a ship.199 This is made very clear in the example provided in Guideline B.., paragraph , as noted in the Guidelines for Port State Control Officers: . Guideline B.., paragraph , indicates circumstances warranting the detention of a ship considering that with respect to the breaches referred to in paragraph (b) of Standard A.., the seriousness could be due to the nature of the deficiency concerned. This would be particularly relevant in the case of the violation of fundamental rights and principles or seafarers’ employment and social rights under Articles III and IV. For example, the employment of a person who is under age should be considered as a serious breach even if there is only one such person on board. In other cases, the number of different defects found during a particular inspection should be taken into account: for example, several instances of defects relating to accommodation or food and catering which do not threaten safety or health might be needed before they should be considered as constituting a serious breach.

199

Ibid.:

. In deciding whether or not to accept a proposal for rectification, the following considerations may also be relevant: – whether or not the non-conformities can be rapidly remedied in the port of inspection; – the length and nature of the intended voyage or service; – the nature of the hazard to seafarers’ safety, health or security; – the seriousness of the breach of the requirements of the MLC,  (including seafarers’ rights); – any previous history of the non-conformities or similar ones on the ship.



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As is the case with flag State inspections, paragraph  provides that “all possible efforts” be made to avoid ships being unduly detained or delayed, and if a ship is found to be unduly detained or delayed, compensation for loss or damage. Again the burden of proof, as in a flag State inspection, is on the complainant. It is clear, however, in the PSC context, this remedy is intended for shipowners. Regulation ..—Onshore Seafarer Complaint-handling Procedures The provisions in Regulation .. are new and, as explained above,200 provided difficulty for some governments with respect to sovereignty and jurisdiction.201 However, the th ILC adopted the text without discussion or amendment.202 As also noted above in connection with Regulation .., these two regulations are interconnected; indeed both are addressed in the Guidelines for Port State Control Officers. However, they should be considered as two functionally discrete procedures. In effect, even if the same ‘authorized officer’ is involved, he or she should follow two distinct processes. It is also important to remember that a complaint under Regulation .. can be made by a number of people. However, a complaint under Regulation .. relates only to an individual complaint by a seafarer. The obligation under Regulation .. is on the port State is to ensure that there is a “right to report a complaint in order to facilitate a prompt and practical means of redress”. The main difficulty in these provisions is that although a complaint is made by one seafarer, it may raise issues concerning the ship as a whole that warrant a detailed inspection under Standard A.. or even detention of the ship, or it may be an individual problem. The focus in Regulation .. and the Code is on promoting the resolution of the complaint. However, it is also clear that it is not expected that the authorized officer will resolve the problem. Rather he or she is to undertake an initial investigation and, where appropriate, “promote resolution” at the shipboard level. It might also lead to a more detailed inspection under Standard A.. (e.g., it could reveal ‘clear grounds’). If it is a non-conformity that falls under paragraph  of Standard A.., the authorized officer might move into that process or, alternatively, failing resolution, report it to the flag State and, failing any response by the flag State, to the DirectorGeneral of the ILO. As this discussion suggests, there are several avenues of response open to resolving complaints by seafarers. Guideline B.. is

200

Supra notes  and  and accompanying text. The Office Report for the th ILC (Report I(A)), supra note , summarizes the issues at Note  (Regulation .), para. . 202 Committee of the Whole Report, supra note , paras –. 201

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especially helpful with respect to these determinations. As explained by the working group at the Intersessional Meeting that developed the current text: . The representative of the Government of the United Kingdom reported on the Tripartite Drafting Group’s proposed text regarding Regulation .., Standard A.. and Guideline B... The Regulation was open in language and tried not to limit the seafarer regarding the process to be followed. Standard A.. outlined one procedure that might be employed to implement Regulation .., but remained silent on any other possible means. He drew the attention of the Meeting to the use of the word .may. in the first sentence of paragraph . However, once the complaint was reported to an authorized port officer, the rest of the procedure became compulsory (.shall.). In paragraph , the resolution of the complaint at the shipboard level should be distinguished from the on-board complaint procedure. Paragraph  concerned the reporting from port State to flag State in the absence of resolution. If the flag State provided no advice and corrective plan of action, paragraph  required the port State to report to the ILO and to its shipowners’ and seafarers’ organizations. He referred to bracketed text in this paragraph, favoured by some members of the Government group, which would require all complaints, whether unresolved or resolved, to be reported to the ILO; the reason was to have the complaints placed in a database which would give an overview of the global situation. Guideline B.. remained much as it was, except for the new paragraph , which dealt with the case of a positive response of the flag State to the request of the port State in paragraph  of Standard A...203

Regulation .—Labour-supplying Responsibilities The last regulation in Title  is the shortest, with just four paragraphs in the Regulation and one each in the Standard and Guideline. The purpose of the Regulation is clear: “ensure that each Member implements its responsibilities under this Convention as pertaining to seafarer recruitment and placement and the social protection of its seafarers”. The Regulation and the Code were adopted without amendment and only a brief discussion at the th ILC.204 Regulation

203 204

Report of the Discussion, supra note . Committee of the Whole Report, supra note :

. Paragraphs  and  were adopted without amendment. . The Government member of Australia, on the basis of the clear advice provided by the Office that paragraph  would not require the establishment of a specific regulatory framework, withdrew amendment D.. . The representative of the Secretary-General explained that Regulation ., paragraph , did not include an obligation for a Member to establish a specific regulatory framework where it did not have specific recruitment and placement services for seafarers. . Regulation ., paragraph , was adopted without amendment. . Paragraph  was adopted without amendment. . Regulation . was adopted without amendment. . Standard A. and Guideline B. were adopted without amendment.

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. sets out in detail the enforcement-related obligations for ratifying countries under Article V, paragraph : Each Member shall effectively exercise its jurisdiction and control over seafarer recruitment and placement services, if these are established in its territory.

Regulation . also sets out a wider group of obligations, loosely termed laboursupplying responsibilities, a category that had not previously existed under LOSC or the broader maritime regulatory regime. As explained in the Office Report205 to the th ILC: . Regulation . deals with what are described as the “labour-supplying esponsibilities” of a State and complements the obligation found with respect to, for example, recruitment and placement services. . In the discussions leading up to this Convention, emphasis has been given to the important role of labour-supplying countries in the area of enforcement for matters such as recruitment and placement agencies and employment agreements and social security protection. While it is easy to identify the major countries that supply seafarers, that term could not be defined for the purposes of a legal text. Indeed, just as most if not all countries are called upon to act in the capacity of both flag and port States (if they are not landlocked), they may also act as suppliers of seafarers, albeit on a small scale, in the sense that their citizens may serve on ships registered outside their territory. The related responsibilities should, therefore, also apply to them. To avoid the misconception of a limited category of “labour-supplying States”, the Convention simply refers to “labour supplying responsibilities”. It should be noted that the Seafarers have expressed some concern about the concept of States other than flag States having recognized responsibilities for seafarers’ conditions of work. In their view, this may be contrary, rather than complementary, to Article  of UNCLOS. However, the opening words of the Regulation (“Without prejudice to . . .”) address this concern by recognizing the primacy of flag state responsibility. . Paragraph  of Regulation ., like paragraph  of Regulation .. . . ., provides a link between the national system of enforcement and the international supervisory system; it requires Members to establish an effective inspection and monitoring system for enforcing their labour-supplying responsibilities under the Convention and information about this system would be reported to the International Labour Office in accordance with Article  of the Constitution.

It will be recalled from the discussion in Chapter 206 regarding Regulation . that the th ILC adopted a provision that placed primary responsibility for social security on the country where the seafarer is ‘ordinarily resident’ although flag States are encouraged to protect seafarers where the seafarer’s country of residence does not provide social security protection. The obligation on the country of residence is reinforced under Title , Regulation ., which 205 206

Report I(A), supra note , Note  (Regulation .). See Chapter , pp. –.

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

states its purpose as ensuring “that each Member implements its responsibilities under this Convention as pertaining to seafarer recruitment and placement and the social protection of its seafarers”. Further, it provides (emphasis added): . Without prejudice to the principle of each Member’s responsibility for the working and living conditions of seafarers on ships that fly its flag, the Member also has a responsibility to ensure the implementation of the requirements of this Convention regarding the recruitment and placement of seafarers as well as the social security protection of seafarers that are its nationals or are resident or are otherwise domiciled in its territory, to the extent that such responsibility is provided for in this Convention

It should be noted that although this provision refers only to social security and recruitment and placement, the labour-supply responsibilities also extend to, for example, Regulation . regarding promotion of employment opportunities. However, this is obviously not a matter for enforcement and compliance, other than against the State itself in the context of the ILO supervisory system. The rationale for the reference to social security in this context is not clear since it would seem to be a matter for the supervisory system rather than shipboard compliance or actions against private actors. Conclusion This chapter has considered in detail the three regulations and sub-regulations and the related Code, Parts A and B provisions, and appendices in Title . It has explored the linkages between these provisions and other provisions, particularly the provisions in Titles – and the articles as well as the important tripartite expert views expressed in the Guidelines for Flag State Inspections under the Maritime Labour Convention,  and the Guidelines for Port State Control Officers Carrying Out Inspections under the Maritime Labour Convention, , which were adopted in . The examination in this chapter has shown the development, indeed the evolution, of the broader maritime regulatory framework. Title  in particular reflects the ‘mainstreaming’ with existing certification systems and increasingly effective port State control systems adopted under the international regulatory regime that is primarily focused on the IMO conventions. At the same time, Title  reflects developments in the approach to addressing the special characteristics of labour and social rights.

chapter twelve CONCLUSION AND REFLECTIONS

This book was written with several objectives. Primarily it is to provide a comprehensive legal analysis and commentary on the MLC,  text through the detailed, essentially archival, analysis in Part II. As emphasized in Chapter , it also presents a number of arguments, from various perspectives directed at differing fields of expertise, regarding the potential role and importance of the MLC, . The four main perspectives can be loosely categorized as: labour law, law of the sea, maritime law, and finally, more general international law and governance. The detailed commentary in the preceding seven chapters (Chapters –) in Part II and the four more contextual chapters (Chapters –) in Part I are predicated on the view, expressed in Chapter , that from a legal and institutional perspective, labour and social rights in the maritime sector straddles both shipping and labour expertise and practices. In fact, the issue of maritime labour regulation—or seafarers’ rights or, even more broadly, the ocean as a ‘work space’—can be viewed as lacunae if one assumes that some continuity and comprehensiveness is to be expected in the international regulatory system. It has been suggested that this issue, from a legal perspective, falls between legal expertise and institutional areas, both internationally and in domestic legal systems. As also explained in Chapter , this poses a challenges for implementation of an international convention, such as the MLC, , that is at the intersection of maritime and labour law, in part because there is a paucity of people with expertise in both areas and because of the traditional fragmentation of issue management in most countries and internationally. Given the significant impact that this Convention will have when it enters into force, it is important that legal expertise and understanding of the Convention and the topic be developed. This book, whilst providing a scholarly and provocative contribution to advance knowledge in these fields, was also designed—much as was the MLC, —as a ‘one stop shop’,1 a comprehensive guide and resource to researcher and practitioners. The heavily referenced and detailed discussion of the Convention text in the Chapters  to  in Part II has attempted to capture the

1

See Chapter .

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conceptual underpinnings and intentions as well as the sources of text that inform, from a legal perspective, both the ‘operation’ of the Convention and the particular provisions. Similarly, the connection between the MLC,  and the relevant ILO textual and procedural antecedents, as well innovations and the wider law of the sea and international maritime regulatory practices were explored in depth in Part I, particularly in Chapters , , and  and are also indicated in the annotated version of the Convention in Appendix . As these chapters explain, the MLC,  had its genesis, in part, in internal ILO developments predating the Geneva Accord in . However, as noted in Chapter , in retrospect the MLC,  can also be understood as part of the international organization and industry response to the recommendations put forward in the influential  report of the International Commission on Shipping, Inquiry into Ship Safety, Slavery and Competition.2 Notably these recommendations included the mainstreaming and strengthening of the enforcement regime within the international regulatory framework in order to improve living and working conditions of seafarers. As the detailed textual analysis in Part II has also shown, the MLC,  faces some particular challenges—perhaps because of its ambitions. It covers all seafarers with significantly reduced national flexibility on this point over predecessor ILO conventions that excluded ships/seafarers. The MLC,  now includes a sector of the industry also not generally regulated by international maritime conventions, namely the domestic fleet. This approach, combined with no tonnage limitation to the Convention’s coverage, poses particular challenges for some countries, particularly developing economy coastal and archipelagic States that have very large domestic fleets comprising older ships that compete only within the internal transportation service market. Both Parts I and II of this book explicitly or implicitly presented arguments, from various perspectives, about the importance of the MLC, . Chapter  outlined these arguments, particularly focusing on the importance, from an international labour law perspective, of the adoption of certification of labour standards in the workplace as an approach to responding effectively to a globalized sector and better ensuring implementation and enforcement. The move to certification of working and living conditions—within an essentially rightsbased regime that is using the economic realities of the sector as leverage—is an especially important step by the ILO that may be of much wider significance to other globalized workers.

2

See Chapter  at p. .

conclusion and reflections



Of course there remains a question, in the context of globalization, as to whether any or all aspects of the MLC,  approach are in fact transferable to other sectors and issues. Perhaps the maritime regime is sui generis given the high level of cooperation even amidst intense competition and the extent to which international standards set the industry’s operational norms. Clearly the common economic and public interest in the movement of people and goods in a safe manner brings together many differing interests. But even if the specifics of the MLC,  are not transferable, it does offer structural and substantive innovations concerning important ILO values such as tripartism and encouraging social dialogue at the national level. The latter innovation in particular could be a useful mechanism for resolving specific national implementation issues. The process by which the MLC,  was developed and its emphasis on tripartism may also help governments to address the policy dilemma posed by the need to both protect workers and to improve their economic and social conditions while, at the same time, remaining competitive in the global marketplace. The particularity of the maritime regulatory regime, especially the key elements, port State control and no more favourable treatment of ships flying the flag of non-ratifying States, may not be easily replicated outside the fishing sector. However, the elements of flexibility and firmness and the movement to directly achieve through compliance and enforcement at the shipboard level— essentially “street level” change—may be transferable. It has also been argued that the MLC,  is of interest as an example of increased integration of UN organizations and international law-making. Certainly the high level of cross-fertilization and institutional learning/‘lessons learned’ approach between the IMO and ILO is easily evident. At the very least, the MLC,  represents an interesting experiment by the oldest of the United Nation’s specialized organizations to consciously ‘integrate’ or ‘mainstream’ its law-making practices. As noted in Chapter , at the time of writing, the MLC,  is not yet in force, but it is likely that the formula for entry into force will be met in , with entry into force  months later, in . This book began by arguing that when the MLC,  enters in force, it will have a major impact on the maritime sector. As explained in Chapter , it was specifically and strategically designed to place minimum labour and social standards for seafarers, the essential human element of shipping, on the same footing as the increasingly effective regulatory system the IMO conventions adopted to ensure ship safety, security, and protection of the marine environment from ship-source pollution. This idea is informed by the detailed textual discussion in Chapters – and the more context-oriented discussion of the maritime regulatory regime and the ILO’s approach to standard setting and the supervisory system in Part I of this book.

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But will the MLC,  actually achieve its twin objective of ‘decent work’ for seafarers and a level playing field for shipowners? Will it result in change in the day-to-day ship-level experiences of seafarers or shipowners? It is impossible to answer these questions at this point. However, both the text and the history of the Convention’s development show that in seeking to fit ‘seamlessly’ into the wide international maritime regulatory system and build upon and even to move beyond what has been called ‘the paper tiger’ of international law, there is a real possibility of achieving change at the shipboard level for seafarers despite the institutional and legal challenges to implementation at the national level. From an international labour law perspective, Chapters , , and  provide a uniquely informed glimpse, from an expert ‘insider’ perspective, of the story of the MLC, , the procedures by which it was developed, the ILO supervisory system, and the place of the MLC,  in relation to the approaches found in previous ILO conventions. These chapters are aimed at both labour law scholars and practitioners and at maritime and international law specialists less familiar with the practices of the ILO. These three chapters trace the intellectual and political foundations of the MLC, . At the same time they point to significant changes in a UN organization’s legal and procedural activities within a relatively short time frame (five years) for such a large and well established international institution. As explained elsewhere: The principal challenge—and thus one of the reasons why innovation was essential—was to endow the new Convention with a far higher prospect for widespread ratification than had been achieved in the case of more traditional international labour Conventions. Much of the answer lay in allowing sufficient flexibility so as to accommodate national circumstances and economic diversity; but this flexibility had to be provided without prejudicing the strength of protection to be given to seafarers. The innovations relate not so much to the solutions adopted, but rather to their development in the Convention. . . . These innovations in substance and in process reflect a renewed vitality and commitment in the ILO which will be of broader interest to the international community. They signal a vigor and interest in seeking new ways to encourage the use of international law and international standards to balance the broader economic and social changes affecting most sectors in an era of increased globalization.3 3 C. Doumbia-Henry, D. Devlin, and M.L. McConnell, “The Maritime Labour Convention,  consolidates seafarers’ labour instruments,” () () ASIL Insight (electronic publication). The article also notes the link to existing ILO practice and general economic rights:

Flexibility is provided through the distinction drawn between Standards and Guidelines. In addition, the Convention has also been guided (especially in the case of social security protection) by the programmatic approach in the  International Covenant on Economic, Social and Cultural Rights. [] In addition, it includes some provisions to provide national flexibility in implementation based on principles of transparency and accountability.

conclusion and reflections



These approaches are also of wider interest to international law and governance scholars because of the extent of the conscious effort in one—the eldest of the UN organizations—to experiment with a new strategic approach and to squarely tackle the problem of how to secure universal ratification and more effective implementation in a sector closely tied to international economic and trade matters. The combination of structure and content both play into this approach. The innovations in the MLC, , based on the principle of ‘firm on rights: flexible on implementation’, were intended to attract widespread ratification and more effective implementation. Their test will be whether the Convention is indeed ratifiable4 and ratified and, ultimately, whether its goals are achieved. Will the MLC,  be able to achieve these objectives through its mix of structure (Code, Parts A and B) and the flexibility/scope clauses, substantial equivalence, and the certification system, all of which are linked to tripartism, transparency, and accountability? Again, these questions will not be answered for several years, but undoubtedly they will be a source of continuing interest to practitioners and scholars alike. In Chapter  on Title , Enforcement and Compliance, it was pointed out that the MLC,  reflects a tension between the ‘pull’ to allow for flexibility with respect to the details of national level implementation and the ‘push’ to simply impose single uniform requirements as set out in the Convention. The former was, as noted earlier, an important aspect of combining so many different issues in one convention. In fact this was behind the transfer of so many detailed provision to the Code, Part B, ‘due consideration’ guidelines. This means that, although, as noted in Chapters –, in connection with Titles – , the MLC,  contains significant areas for national flexibility regarding implementation, it is also takes a pragmatic approach. In many cases, shipping is a global industry and it is in the interest of the industry (both shipowners Note : UNGA Resolution A (XXI) of  December ,  UNTS  (in force  January ). See, in particular, the approach suggested in Article  of the Covenant and related commentary (see: CESCR General Comment ,  on Art. , para. ) which explicitly recognizes the concept of ‘taking steps’ and ‘achieving progressively the full realization’ of rights. This approach is consistent with the ILO Constitution (Article , Constitution of the International Labour Organisation) which expressly recognizes the importance of recognizing differing climatic, industrial or special circumstances of countries that may affect their ability to implement Convention related obligations. The objective is to encourage initial commitment and implementation with a view to securing increased, and finally, full implementation as national conditions allow (see, e.g., MLC, , Standard A., paragraph , “Each Member shall take steps according to its national circumstances to provide the complementary social security.”). 4 The primary areas of difficulty encountered by governments relate to the application to smaller domestic trade ships and the obligations with respect to social protection for seafarers. The IMO conventions often do not apply the international requirements on smaller domestic trade ships. The MLC, , as noted earlier, does apply but some flexibility is available.

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and seafarers) that, as much as possible, there is a high degree of uniformity and consistency in expectations and practices, especially with respect to PSC. Shipowners with dubious practices may have some interest in encouraging differing and even reduced stringency in flag State inspections. However, given the prevalence and increasing stringency of the regional PSC regime, it seems inevitable that the attraction of different flags may relate to broader corporate fiscal regulation policies rather than operations with substandard conditions, that is, lower than international standards. The book also asserts that the MLC,  constitutes a further elaboration of the international maritime regulatory regime under the  LOSC5 as it pertains to labour and social conditions on ships on the high seas. Further, the Convention adopts an approach to responding effectively to some of the challenges posed, even to some extent embedded in the LOSC, by this globalized6 sector. The MLC, , while not an amendment to the LOSC itself, is an important step to developing this obligation into a more specific and effective regime.7 From an oceans regime and ‘systems’ perspective, the MLC, , as well as the Work in Fishing Convention, ,8 are finally tackling the idea of ‘ocean space’, especially outside national waters, as a workplace and dealing with the legal problem of extra-territoriality. The MLC,  develops, in detail and at the level of what will certainly be a widely ratified, comprehensive, multilateral convention, explicit responsibilities for both flag States, in connection with the inspection and certification of labour conditions on ships, and for port States that choose to inspect foreign ships. It also introduces a new player in the flag/coastal/port State jurisdictional web—States with labour-supply responsibilities that arise independently of those of the flag State. This book argues that the MLC,  is of interest not only to international and domestic labour law and maritime law scholars and practitioners but also to international law theorists and scholars with an interest in wider systemic questions. As discussed in Chapter , of particular interest is the self-conscious ‘regulatory design’ approach that was adopted for both structure and substance, including, ultimately, a negotiated package solution, not unlike the ten-year process to adopt the LOSC, on sensitive issues such as a tonnage limitation 5

United Nations Convention on the Law of the Sea,  December , UN Doc. A/Conf. /,  I.L.M.  (entered into force on  November ), available at http://www.un.org/ depts/los/convention_agreements/texts/unclos/closindx.htm. 6 See Chapter , note . 7 See generally papers in, for example, O. Young, ed., The Effectiveness of International Environmental Regimes: Causal Connections and Behavioural Mechanisms (Cambridge, MA: MIT Press, ). 8 Work in Fishing Convention,  (No. ), Geneva,  June , available at http://www .ilo.org/ilolex/english/convdisp.htm.

conclusion and reflections



and or social security.9 The various elements of these ‘packages’ are not easy to unwrap as they are woven through the Convention and not necessarily obvious without a close reading. Ultimately, however, once identified, the inner logic and coherence and indeed durability of the MLC,  becomes evident. Does this Convention and the way in which it was developed present a model of a workable process whereby international conventional law can be designed to be (more) effective and, in particular, in such a way as to affect the behaviour of non-State actors10 directly, while at the same time operating primarily at the level of State responsibility? The multi-pronged strategy aimed at compliance enforcement is particularly interesting in that it appears to combine a spectrum of the possible actions to enforce essentially international standards/obligations. Action can be taken by the individuals affected or by the worker or employer organizations representing them, at multiple levels— ship board, flag or port State authorities, or, ultimately, at the international level through the ILO’s supervisory system. Action can also be taken by other State parties at the shipboard level, at the administrative level through communications to the flag State authority and relevant seafarer and shipowner organizations, and also to the ILO directly. In addition the State’s implementation of its obligations (in all capacities, e.g., flag, port, and labour-supplying responsibilities) are subject to scrutiny at the international level by the ILO supervisory system. The Convention’s system of connecting individual seafarers to State-level authorities in both the flag and port States and, less directly, with the international supervisory system, combines with the possibility of immediate remedial ship-level action through PSC. This system to address concerns or secure rights is an important advance in the development of international law. In part, it addresses the problem of failures by State to implement obligations effectively, including enforcement of national laws and other measures. The MLC,  is also an example of an approach to addressing contemporary problems in sustainable economic development and the relative lack of effective governance with respect to transnational corporations. This convention, with its inclusion of social security protection and other social protection 9 As pointed out at a ILO international standards workshop: ‘design matters’. See: Presentation by Raymond Torres, Head of the Employment Analysis and Policy Division, OECD, ILO Workshop on the Economic Dynamics of International Labour Standards, Geneva, – June ; Project on economic dynamics of international labour standards, Report to the Committee on Legal Issues and International Labour Standards, ILO Governing Body, th Session, Geneva, November , ILO Doc. No. GB./LILS/; and, see also, R.B. Mitchell, “Regime design matters: Intentional oil pollution and treaty compliance,” () International Organization () . 10 This could be through, for example, the detention of ships or no more favourable treatment of ships of non-ratifying States.



chapter twelve

elements such as occupational safety and health standards, does not provide a detailed blue print or even, in the case of social security, resolve this difficult issue. Nonetheless, it has potential implications for transnational or globalized workers and workplaces. The Convention can also be seen as relevant to questions posed by some scholars regarding the potential role of international law and global standards. Are these elements relevant in the face of economic diversity and the trend to regionalism? Again, the answer, so far, appears to be ‘yes’, particularly if the impact and role of private actors, the shipowners, seafarers, recognized organizations, and insurers that are already taking action to implement it, often ahead of governments, is considered. Finally, the MLC,  offers an important example of an effort by a UN organization, albeit in response to strong encouragement from its civil society (employer and worker representatives) constituents, to integrate its approach with that of other regimes and institutions, as a strategy to securing better implementation. In principle, efforts at the international level should also serve to encourage better national level integration and regulatory design.11 But the MLC,  as adopted in  was not designed to be the last word. It will be recalled from the discussion in Chapter  on structure and Chapter  on the articles that it was expressly designed with a view to amendment as technology changes, needs arise, or matters that simply could not be resolved during the negotiation gradually resolve themselves. Already, as mentioned in the Chapters  and  dealing with Titles  and  of the MLC, , the first potential amendments to address the very important problems of seafarer abandonment and shipowner liability for death and disability are agreed to in principle12 and awaiting consideration once the Convention enters into force. In this sense the MLC,  perhaps has some advantages over other framework conventions such as the LOSC, which although intended to be comprehensive, clearly has gaps but has prohibited amendment for a 11 For example, implementing the MLC,  will typically engage maritime administrations, labour departments and agencies, and/or departments involved in social security. 12 See: Recommendations made in Appendix I, Proposal for the text of an amendment to the MLC,  to be presented to the future Special Tripartite Committee with a view to adoption in accordance with Article XV of the MLC, , Final Report, Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers, th Session, Geneva, – March , ILO/IMO/WGPS///, available at http://www.ilo.org /gb / GBSessions / lang-en /docName-WCMS_ /index.htm, pp. –. The principles accepted by the ninth session will be the first to be considered by the Special Tripartite Committee under Article XIII of the MLC, , to be established by the ILO Governing Body once the Convention enters into force. See: Final Report, Preparatory Tripartite MLC,  Committee, , ILO.Doc. No. PTMLC// available at: http://www.ilo.org/ global / standards / maritime-labour-convention / WCMS_ / lang--en / index.htm.

conclusion and reflections



significant period of time after entry into force. As a result, LOSC has had to adopt the sleight of hand of ‘implementing agreements’ to elaborate unresolved issues. This could be an approach adopted by other conventions. However, the MLC, , by allowing for future, more rapid amendments though the tacit acceptance procedure may, offer a cleaner approach.13 Ultimately, the MLC, , as concluded in Chapter , . . . reflects a unique legal regulatory framework for labour standards on the global scale for the most globalized of economic sectors—a truly global response to a global problem. It is a ‘bill of rights for seafarers’ and provides a level playing field for shipowners as well as seeking to assist States in the compliance of their international obligations. It is truly an international regulatory response of an appropriate kind and a beacon for the future. In the words of the  ILO Declaration on Social Justice for a Fair Globalization, its objective is to make globalization fair and thus work for the people most concerned: the world’s more than . million seafarers.14

13

The latter approach may serve to avoid the problem of a patchwork of obligations among ratifying States that have agreed to some but not all changes, see for example, the Barcelona Convention system problem whereby numerous amending instrument have been adopted with a resulting patchwork of obligations among ratifying States. Nevertheless, there is some risk of that situation occurring under the MLC,  if there are too many significant changes with key flag States expressly rejecting the amendment. The question of whether the discipline imposed by the structural concept that the provision in a standard must operate within the ‘authorizing’ regulation will hold the system together will also be a matter of future interest, as discussed in Chapter , pp. –. 14 Chapter , p. .

APPENDICES

appendix  NEGOTIATION HISTORY LEADING TO THE MARITIME LABOUR CONVENTION, 2006 International Labour Conference, th (Maritime) Session, Geneva, – February  (th ILC) Tripartite Intersessional Meeting on the Follow-up to the Preparatory Technical Maritime Conference, Geneva, – April  (PTMC) Preparatory Technical Maritime Conference, Geneva, – September  High-Level Tripartite Working Group on Maritime Labour Standards (HLTWG) First meeting, – December  Second meeting, – October  Third meeting,  June– July  Fourth meeting, – January  Tripartite Subgroup of the High-Level Tripartite Working Group on Maritime Labour Standards First meeting, – June  Second meeting, – February  A comprehensive list of the reports of these preparatory meetings (travaux préparatoires) and other documents is available at http://www.ilo.org/global/standards/ maritime-labour-convention/preparatory-reports/lang-en/index.htm.

appendix  ANNOTATED MARITIME LABOUR CONVENTION, 2006 Editorial Note The Maritime Labour Convention,  set out in this appendix contains subscript annotations in parentheses () showing the  source maritime labour conventions and related recommendations that were consolidated in the final text. These annotations are not part of the Convention. They are based on the information in the official ILO Report I(B)1 to the th ILC in  and have been updated to the final text. Key to the Consolidated Conventions and Recommendations Until the MLC, , each ILO convention had a number assigned to it, for example, Minimum Age (Sea) Convention,  (No. ), as set out in Article X of the MLC, . The annotation uses ‘C’ to refer to the Convention (‘P’ if a Protocol) or ‘R’ to refer to Recommendations and the number refers to the Convention / Recommendation number. C C C C C C C C C C C C C C C C C C C C C C C 1

Minimum Age (Sea) Convention,  Unemployment Indemnity (Shipwreck) Convention,  Placing of Seamen Convention,  Medical Examination of Young Persons (Sea) Convention,  Seamen’s Articles of Agreement Convention,  Repatriation of Seamen Convention,  Officers’ Competency Certificates Convention,  Holidays with Pay (Sea) Convention,  Shipowners’ Liability (Sick and Injured Seamen) Convention,  Sickness Insurance (Sea) Convention,  Hours of Work and Manning (Sea) Convention,  Minimum Age (Sea) Convention (Revised),  Food and Catering (Ships’ Crews) Convention,  Certification of Ships’ Cooks Convention,  Social Security (Seafarers) Convention,  Paid Vacations (Seafarers) Convention,  Medical Examination (Seafarers) Convention,  Certification of Able Seamen Convention,  Accommodation of Crews Convention,  Wages, Hours of Work and Manning (Sea) Convention,  Paid Vacations (Seafarers) Convention (Revised),  Accommodation of Crews Convention (Revised),  Wages, Hours of Work and Manning (Sea) Convention (Revised), 

Proposed Consolidated Maritime Labour Convention, ILC, th (Maritime) Session, Geneva, , ILO Doc. No. Report I(B), available at http://www.ilo.org/public/english/standards/relm/ ilc/ilc/rep-i-b.pdf.

 C C C C C C P C C C C C C C R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

appendix  Wages, Hours of Work and Manning (Sea) Convention (Revised),  Accommodation of Crews (Supplementary Provisions) Convention,  Prevention of Accidents (Seafarers) Convention,  Continuity of Employment (Seafarers) Convention,  Seafarers’ Annual Leave with Pay Convention,  Merchant Shipping (Minimum Standards) Convention,  Protocol of  to the Merchant Shipping (Minimum Standards) Convention,  Seafarers’ Welfare Convention,  Health Protection and Medical Care (Seafarers) Convention,  Social Security (Seafarers) Convention (Revised),  Repatriation of Seafarers Convention (Revised),  Labour Inspection (Seafarers) Convention,  Recruitment and Placement of Seafarers Convention,  Seafarers’ Hours of Work and the Manning of Ships Convention,  National Seamen’s Codes Recommendation,  Unemployment Insurance (Seamen) Recommendation,  Repatriation (Ship Masters and Apprentices) Recommendation,  Labour Inspection (Seamen) Recommendation,  Seamen’s Welfare in Ports Recommendation,  Hours of Work and Manning (Sea) Recommendation,  Seafarers’ Social Security (Agreements) Recommendation,  Seafarers (Medical Care for Dependants) Recommendation,  Vocational Training (Seafarers) Recommendation,  Bedding, Mess Utensils and Miscellaneous Provisions (Ships’ Crews) Recommendation,  Ships’ Medicine Chests Recommendation,  Medical Advice at Sea Recommendation,  Seafarers’ Engagement (Foreign Vessels) Recommendation,  Social Conditions and Safety (Seafarers) Recommendation,  Wages, Hours of Work and Manning (Sea) Recommendation,  Vocational Training (Seafarers) Recommendation,  Seafarers’ Welfare Recommendation,  Employment of Seafarers (Technical Developments) Recommendation,  Crew Accommodation (Air Conditioning) Recommendation,  Crew Accommodation (Noise Control) Recommendation,  Prevention of Accidents (Seafarers) Recommendation,  Protection of Young Seafarers Recommendation,  Continuity of Employment (Seafarers) Recommendation,  Merchant Shipping (Improvement of Standards) Recommendation,  Seafarers’ Welfare Recommendation,  Repatriation of Seafarers Recommendation,  Labour Inspection (Seafarers) Recommendation,  Recruitment and Placement of Seafarers Recommendation,  Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation, 

annotated maritime labour convention, 



Maritime Labour Convention,  Preamble The General Conference of the International Labour Organization, Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its Ninety-fourth Session on  February , and Desiring to create a single, coherent instrument embodying as far as possible all up-todate standards of existing international maritime labour Conventions and Recommendations, as well as the fundamental principles to be found in other international labour Conventions, in particular: – the Forced Labour Convention,  (No. ); – the Freedom of Association and Protection of the Right to Organise Convention,  (No. ); – the Right to Organise and Collective Bargaining Convention,  (No. ); – the Equal Remuneration Convention,  (No. ); – the Abolition of Forced Labour Convention,  (No. ); – the Discrimination (Employment and Occupation) Convention,  (No. ); – the Minimum Age Convention,  (No. ); – the Worst Forms of Child Labour Convention,  (No. ); and Mindful of the core mandate of the Organization, which is to promote decent conditions of work, and Recalling the ILO Declaration on Fundamental Principles and Rights at Work, , and Mindful also that seafarers are covered by the provisions of other ILO instruments and have other rights which are established as fundamental rights and freedoms applicable to all persons, and Considering that, given the global nature of the shipping industry, seafarers need special protection, and Mindful also of the international standards on ship safety, human security and quality ship management in the International Convention for the Safety of Life at Sea, , as amended, the Convention on the International Regulations for Preventing Collisions at Sea, , as amended, and the seafarer training and competency requirements in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, , as amended, and Recalling that the United Nations Convention on the Law of the Sea, , sets out a general legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained, and Recalling that Article  of the United Nations Convention on the Law of the Sea, , establishes the duties and obligations of a flag State with regard to, inter alia, labour conditions, crewing and social matters on ships that fly its flag, and Recalling paragraph  of Article  of the Constitution of the International Labour Organisation which provides that in no case shall the adoption of any Convention or



appendix 

Recommendation by the Conference or the ratification of any Convention by any Member be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation, and Determined that this new instrument should be designed to secure the widest possible acceptability among governments, shipowners and seafarers committed to the principles of decent work, that it should be readily updateable and that it should lend itself to effective implementation and enforcement, and Having decided upon the adoption of certain proposals for the realization of such an instrument, which is the only item on the agenda of the session, and Having determined that these proposals shall take the form of an international Convention; Adopts this twenty-third day of February of the year two thousand and six the following Convention, which may be cited as the Maritime Labour Convention, . General obligations Article I . Each Member which ratifies this Convention undertakes to give complete effect to its provisions in the manner set out in Article VI, in order to secure the right of all seafarers to decent employment. . Members shall cooperate with each other for the purpose of ensuring the effective implementation and enforcement of this Convention. Definitions and scope of application Article II . For the purpose of this Convention and unless provided otherwise in particular provisions, the term: (a) competent authority means the minister, government department or other authority having power to issue and enforce regulations, orders or other instructions having the force of law in respect of the subject matter of the provision concerned; (C.179, C.180, R.187) (b) declaration of maritime labour compliance means the declaration referred to in Regulation ..; (c) gross tonnage means the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I to the International Convention on Tonnage Measurement of Ships, , or any successor Convention; for ships covered by the tonnage measurement interim scheme adopted by the International Maritime Organization the gross tonnage is that which is included in the REMARKS column of the International Tonnage Certificate (); (d) maritime labour certificate means the certificate referred to in Regulation ..; (e) requirements of this Convention refers to the requirements in these Articles and in the Regulations and Part A of the Code of this Convention; (f) seafarer means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies; (working definition, modified C.185, modified C.180 + C.164; C.166; C.178 + C.179 + C.73A2/1)

annotated maritime labour convention, 



(g) seafarers’ employment agreement includes both a contract of employment and articles of agreement; (h) seafarer recruitment and placement service means any person, company, institution, agency or other organization, in the public or the private sector, which is engaged in recruiting seafarers on behalf of shipowners or placing seafarers with shipowners; (modified C.179A1/1b) (i) ship means a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply; (modified STCW) (j) shipowner means the owner of the ship or another organization or person, such as the manager, agent or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention, regardless of whether any other organizations or persons fulfil certain of the duties or responsibilities on behalf of the shipowner. (modified C.179A1/1c; modified ISM, Reg. 1, paragraph 2)

. Except as expressly provided otherwise, this Convention applies to all seafarers. . In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned with this question. . Except as expressly provided otherwise, this Convention applies to all ships, whether publicly or privately owned. (C.7, C.8, C.15, C.16, C.22, C.23, C.58), ordinarily engaged in commercial activities (modified C.180) other than: (a) ships engaged in fishing or in similar pursuits (modified C.147); and (b) ships of traditional build such as dhows and junks. This Convention does not apply to warships or naval auxiliaries (modified C.180A4) . In the event of doubt as to whether this Convention applies to a ship or particular category of ships, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned. (modified C.147A2, C.180A1/3, C.178A1/7(d)) . Where the competent authority determines that it would not be reasonable or practicable at the present time to apply certain details of the Code referred to in Article VI, paragraph , to a ship or particular categories of ships flying the flag of the Member, the relevant provisions of the Code shall not apply to the extent that the subject matter is dealt with differently by national laws or regulations or collective bargaining agreements or other measures. Such a determination may only be made in consultation with the shipowners’ and seafarers’ organizations concerned and may only be made with respect to ships of less than  gross tonnage not engaged in international voyages. . Any determinations made by a Member under paragraph  or  or  of this Article shall be communicated to the Director- General of the International Labour Office, who shall notify the Members of the Organization. . Unless expressly provided otherwise, a reference to this Convention constitutes at the same time a reference to the Regulations and the Code.



appendix  Fundamental rights and principles Article III

Each Member shall satisfy itself that the provisions of its law and regulations respect, in the context of this Convention, the fundamental rights to: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. Seafarers’ employment and social rights Article IV . Every seafarer has the right to a safe and secure workplace that complies with safety standards. . Every seafarer has a right to fair terms of employment. . Every seafarer has a right to decent working and living conditions on board ship. . Every seafarer has a right to health protection, medical care, welfare measures and other forms of social protection. . Each Member shall ensure, within the limits of its jurisdiction, that the seafarers’ employment and social rights set out in the preceding paragraphs of this Article are fully implemented in accordance with the requirements of this Convention. Unless specified otherwise in the Convention, such implementation may be achieved through national laws or regulations, through applicable collective bargaining agreements or through other measures or in practice. Implementation and enforcement responsibilities Article V . Each Member shall implement and enforce laws or regulations or other measures that it has adopted to fulfil its commitments under this Convention with respect to ships and seafarers under its jurisdiction. . Each Member shall effectively exercise its jurisdiction and control over ships that fly its flag by establishing a system for ensuring compliance with the requirements of this Convention, including regular inspections, reporting, monitoring and legal proceedings under the applicable laws. . Each Member shall ensure that ships that fly its flag carry a maritime labour certificate and a declaration of maritime labour compliance as required by this Convention. . A ship to which this Convention applies may, in accordance with international law, be inspected by a Member other than the flag State, when the ship is in one of its ports, to determine whether the ship is in compliance with the requirements of this Convention. (modified C.147A4) . Each Member shall effectively exercise its jurisdiction and control over seafarer recruitment and placement services, if these are established, in its territory. (modified C.179A22)

annotated maritime labour convention, 



. Each Member shall prohibit violations of the requirements of this Convention and shall, in accordance with international law, establish sanctions or require the adoption of corrective measures under its laws which are adequate to discourage such violations. (modified C.180A15, modified MARPOL 73, Article 4, modified C.178/A7) . Each Member shall implement its responsibilities under this Convention in such a way as to ensure that the ships that fly the flag of any State that has not ratified this Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. (modified SOLAS, Protocol, 1998, Article 1, paragraph 3; STCW, 78, as amended, Article X, paragraph (5))

Regulations and Parts A and B of the Code Article VI . The Regulations and the provisions of Part A of the Code are mandatory. The provisions of Part B of the Code are not mandatory. . Each Member undertakes to respect the rights and principles set out in the Regulations and to implement each Regulation in the manner set out in the corresponding provisions of Part A of the Code. In addition, the Member shall give due consideration to implementing its responsibilities in the manner provided for in Part B of the Code. . A Member which is not in a position to implement the rights and principles in the manner set out in Part A of the Code may, unless expressly provided otherwise in this Convention, implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent to the provisions of Part A. . For the sole purpose of paragraph  of this Article, any law, regulation, collective agreement or other implementing measure shall be considered to be substantially equivalent, in the context of this Convention, if the Member satisfies itself that: (a) it is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned; and (b) it gives effect to the provision or provisions of Part A of the Code concerned. Consultation with shipowners’ and seafarers’ organizations Article VII Any derogation, exemption or other flexible application of this Convention for which the Convention requires consultation with shipowners’ and seafarers’ organizations may, in cases where representative organizations of shipowners or of seafarers do not exist within a Member, only be decided by that Member through consultation with the Committee referred to in Article XIII. Entry into force Article VIII . The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration. (C.147A5) . This Convention shall be binding only upon those Members of the International Labour Organization whose ratifications have been registered by the DirectorGeneral.



appendix 

. This Convention shall come into force  months after the date on which there have been registered ratifications by at least  Members with a total share in the world gross tonnage of ships of at least  per cent. . Thereafter, this Convention shall come into force for any Member  months after the date on which its ratification has been registered. (C.147A6) Denunciation Article IX . A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered. (C.147A7/1) . Each Member which does not, within the year following the expiration of the period of ten years mentioned in paragraph  of this Article, exercise the right of denunciation provided for in this Article, shall be bound for another period of ten years and, thereafter, may denounce this Convention at the expiration of each new period of ten years under the terms provided for in this Article. (C.147A7/2) Effect of entry into force Article X This Convention revises the following Conventions: Minimum Age (Sea) Convention,  (No. ) Unemployment Indemnity (Shipwreck) Convention,  (No. ) Placing of Seamen Convention,  (No. ) Medical Examination of Young Persons (Sea) Convention,  (No. ) Seamen’s Articles of Agreement Convention,  (No. ) Repatriation of Seamen Convention,  (No. ) Officers’ Competency Certificates Convention,  (No. ) Holidays with Pay (Sea) Convention,  (No. ) Shipowners’ Liability (Sick and Injured Seamen) Convention,  (No. ) Sickness Insurance (Sea) Convention,  (No. ) Hours of Work and Manning (Sea) Convention,  (No. ) Minimum Age (Sea) Convention (Revised),  (No. ) Food and Catering (Ships’ Crews) Convention,  (No. ) Certification of Ships’ Cooks Convention,  (No. ) Social Security (Seafarers) Convention,  (No. ) Paid Vacations (Seafarers) Convention,  (No. ) Medical Examination (Seafarers) Convention,  (No. ) Certification of Able Seamen Convention,  (No. ) Accommodation of Crews Convention,  (No. ) Wages, Hours of Work and Manning (Sea) Convention,  (No. ) Paid Vacations (Seafarers) Convention (Revised),  (No. ) Accommodation of Crews Convention (Revised),  (No. ) Wages, Hours of Work and Manning (Sea) Convention (Revised),  (No. ) Wages, Hours of Work and Manning (Sea) Convention (Revised),  (No. )

annotated maritime labour convention, 



Accommodation of Crews (Supplementary Provisions) Convention,  (No. ) Prevention of Accidents (Seafarers) Convention,  (No. ) Continuity of Employment (Seafarers) Convention,  (No. ) Seafarers’ Annual Leave with Pay Convention,  (No. ) Merchant Shipping (Minimum Standards) Convention,  (No. ) Protocol of  to the Merchant Shipping (Minimum Standards) Convention,  (No. ) Seafarers’ Welfare Convention,  (No. ) Health Protection and Medical Care (Seafarers) Convention,  (No. ) Social Security (Seafarers) Convention (Revised),  (No. ) Repatriation of Seafarers Convention (Revised),  (No. ) Labour Inspection (Seafarers) Convention,  (No. ) Recruitment and Placement of Seafarers Convention,  (No. ) Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ). Depositary functions Article XI . The Director-General of the International Labour Office shall notify all Members of the International Labour Organization of the registration of all ratifications, acceptances and denunciations under this Convention. . When the conditions provided for in paragraph  of Article VIII have been fulfilled, the Director-General shall draw the attention of the Members of the Organization to the date upon which the Convention will come into force. (C.180A20)

Article XII The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article  of the Charter of the United Nations full particulars of all ratifications, acceptances and denunciations registered under this Convention. (modified C147A9) Special Tripartite Committee Article XIII . The Governing Body of the International Labour Office shall keep the working of this Convention under continuous review through a committee established by it with special competence in the area of maritime labour standards. . For matters dealt with in accordance with this Convention, the Committee shall consist of two representatives nominated by the Government of each Member which has ratified this Convention and the representatives of Shipowners and Seafarers appointed by the Governing Body after consultation with the Joint Maritime Commission. . The Government representatives of Members which have not yet ratified this Convention may participate in the Committee but shall have no right to vote on any matter dealt with in accordance with this Convention. The Governing Body may invite other organizations or entities to be represented on the Committee by observers.



appendix 

. The votes of each Shipowner and Seafarer representative in the Committee shall be weighted so as to ensure that the Shipowners’ group and the Seafarers’ group each have half the voting power of the total number of governments which are represented at the meeting concerned and entitled to vote. Amendment of this Convention Article XIV . Amendments to any of the provisions of this Convention may be adopted by the General Conference of the International Labour Organization in the framework of Article  of the Constitution of the International Labour Organisation and the rules and procedures of the Organization for the adoption of Conventions. Amendments to the Code may also be adopted following the procedures in Article XV. . In the case of Members whose ratifications of this Convention were registered before the adoption of the amendment, the text of the amendment shall be communicated to them for ratification. . In the case of other Members of the Organization, the text of the Convention as amended shall be communicated to them for ratification in accordance with Article  of the Constitution. . An amendment shall be deemed to have been accepted on the date when there have been registered ratifications, of the amendment or of the Convention as amended, as the case may be, by at least  Members with a total share in the world gross tonnage of ships of at least  per cent. . An amendment adopted in the framework of Article  of the Constitution shall be binding only upon those Members of the Organization whose ratifications have been registered by the Director-General of the International Labour Office. . For any Member referred to in paragraph  of this Article, an amendment shall come into force  months after the date of acceptance referred to in paragraph  of this Article or  months after the date on which its ratification of the amendment has been registered, whichever date is later. . Subject to paragraph  of this Article, for Members referred to in paragraph  of this Article, the Convention as amended shall come into force  months after the date of acceptance referred to in paragraph  of this Article or  months after the date on which their ratifications of the Convention have been registered, whichever date is later. . For those Members whose ratification of this Convention was registered before the adoption of an amendment but which have not ratified the amendment, this Convention shall remain in force without the amendment concerned. . Any Member whose ratification of this Convention is registered after the adoption of the amendment but before the date referred to in paragraph  of this Article may, in a declaration accompanying the instrument of ratification, specify that its ratification relates to the Convention without the amendment concerned. In the case of a ratification with such a declaration, the Convention shall come into force for the Member concerned  months after the date on which the ratification was registered. Where an instrument of ratification is not accompanied by such a declaration, or where the ratification is registered on or after the date referred to in paragraph , the Convention shall come into force for the

annotated maritime labour convention, 



Member concerned  months after the date on which the ratification was registered and, upon its entry into force in accordance with paragraph  of this Article, the amendment shall be binding on the Member concerned unless the amendment provides otherwise. Amendments to the Code Article XV . The Code may be amended either by the procedure set out in Article XIV or, unless expressly provided otherwise, in accordance with the procedure set out in the present Article. . An amendment to the Code may be proposed to the Director-General of the International Labour Office by the government of any Member of the Organization or by the group of Shipowner representatives or the group of Seafarer representatives who have been appointed to the Committee referred to in Article XIII. An amendment proposed by a government must have been proposed by, or be supported by, at least five governments of Members that have ratified the Convention or by the group of Shipowner or Seafarer representatives referred to in this paragraph. . Having verified that the proposals for amendment meets the requirements of paragraph  of this Article, the Director-General shall promptly communicate the proposal, accompanied by any comments or suggestions deemed appropriate, to all Members of the Organization, with an invitation to them to transmit their observations or suggestions concerning the proposals within a period of six months or such other period (which shall not be less than three months nor more than nine months) prescribed by the Governing Body. . At the end of the period referred to in paragraph paragraph  of this Article, the proposal, accompanied by a summary of any observations or suggestions made under that paragraph, shall be transmitted to the Committee for consideration at a meeting. An amendment shall be considered adopted by the Committee if: (a) at least half the governments of Members that have ratified this Convention are represented in the meeting at which the proposal is considered; and (b) a majority of at least two-thirds of the Committee members vote in favour of the amendment; and (c) this majority comprises the votes in favour of at least half the government voting power, half the Shipowner voting power and half the Seafarer voting power of the Committee members registered at the meeting when the proposal is put to the vote. . Amendments adopted in accordance with paragraph  of this Article shall be submitted to the next session of the Conference for approval. Such approval shall require a majority of two-thirds of the votes cast by the delegates present. If such majority is not obtained, the proposed amendment shall be referred back to the Committee for reconsideration should the Committee so wish. . Amendments approved by the Conference shall be notified by the DirectorGeneral to each of the Members whose ratifications of this Convention were registered before the date of such approval by the Conference. These Members are referred to below as “the ratifying Members”. The notification shall contain a reference to the present Article and shall prescribe the period for the communication



.

.

.

. .

. .

appendix  of any formal disagreement. This period shall be two years from the date of the notification unless, at the time of approval, the Conference has set a different period, which shall be a period of at least one year. A copy of the notification shall be communicated to the other Members of the Organization for their information. An amendment approved by the Conference shall be deemed to have been accepted unless, by the end of the prescribed period, formal expressions of disagreement have been received by the Director-General from more than  per cent of the Members which have ratified the Convention and which represent not less than  per cent of the gross tonnage of the ships of the Members which have ratified the Convention. (modified STCW) An amendment deemed to have been accepted shall come into force six months after the end of the prescribed period for all the ratifying Members except those which had formally expressed their disagreement in accordance with paragraph  of this Article and have not withdrawn such disagreement in accordance with paragraph . However: (a) before the end of the prescribed period, any ratifying Member may give notice to the Director-General that it shall be bound by the amendment only after a subsequent express notification of its acceptance; and (b) before the date of entry into force of the amendment, any ratifying Member may give notice to the Director-General that it will not give effect to that amendment for a specified period. An amendment which is the subject of a notice referred to in paragraph (a) of this Article shall enter into force for the Member giving such notice six months after the Member has notified the Director-General of its acceptance of the amendment or on the date on which the amendment first comes into force, whichever date is the later. The period referred to in paragraph (b) of this Article shall not go beyond one year from the date of entry into force of the amendment or beyond any longer period determined by the Conference at the time of approval of the amendment. A Member that has formally expressed disagreement with an amendment may withdraw its disagreement at any time. If notice of such withdrawal is received by the Director-General after the amendment has entered into force, the amendment shall enter into force for the Member six months after the date on which the notice was registered. After entry into force of an amendment, the Convention may only be ratified in its amended form. To the extent that a maritime labour certificate relates to matters covered by an amendment to the Convention which has entered into force: (a) a Member that has accepted that amendment shall not be obliged to extend the benefit of the Convention in respect of the maritime labour certificates issued to ships flying the flag of another Member which: (i) pursuant to paragraph  of this Article, has formally expressed disagreement to the amendment and has not withdrawn such disagreement; or (ii) pursuant to paragraph (a) of this Article, has given notice that its acceptance is subject to its subsequent express notification and has not accepted the amendment; and

annotated maritime labour convention, 



(b) a Member that has accepted the amendment shall extend the benefit of the Convention in respect of the maritime labour certificates issued to ships flying the flag of another Member that has given notice, pursuant to paragraph (b) of this Article, that it will not give effect to that amendment for the period specified in accordance withparagraph  of this Article. (modified SOLAS, 1974, Article VIII(d)(i)(ii))

Authoritative languages Article XVI The English and French versions of the text of this Convention are equally authoritative. (C.147A12)



appendix  Explanatory note to the Regulations and Code of the Maritime Labour Convention

. This explanatory note, which does not form part of the Maritime Labour Convention, is intended as a general guide to the Convention. . The Convention comprises three different but related parts, the Articles, the Regulations and the Code. . The Articles and Regulations set out the core rights and principles and the basic obligations of Members ratifying the Convention. The Articles and Regulations can only be changed by the Conference in the framework of Article  of the Constitution of the International Labour Organisation (see Article XIV of the Convention). . The Code contains the details for the implementation of the Regulations. It comprises Part A (mandatory Standards) and Part B (non-mandatory Guidelines). The Code can be amended through the simplified procedure set out in Article XV of the Convention. Since the Code relates to detailed implementation, amendments to it must remain within the general scope of the Articles and Regulations. . The Regulations and the Code are organized into general areas under five Titles: – Title : Minimum requirements for seafarers to work on a ship – Title : Conditions of employment – Title : Accommodation, recreational facilities, food and catering – Title : Health protection, medical care, welfare and social security protection – Title : Compliance and enforcement . Each Title contains groups of provisions relating to a particular right or principle (or enforcement measure in Title ), with connected numbering. The first group in Title , for example, consists of Regulation ., Standard A. and Guideline B. (relating to minimum age). . The Convention has three underlying purposes: (a) to lay down in its Articles and Regulations a firm set of rights and principles; (b) to allow through the Code a considerable degree of flexibility in the way Members implement those rights and principles; and (c) to ensure through Title  that the rights and principles are properly complied with and enforced. . There are two main areas for flexibility in implementation: one is the possibility for a Member—where necessary (see Article VI, paragraph )—to give effect to the detailed requirements of Part A of the Code through substantial equivalence (as defined in Article VI, paragraph ). . The second area of flexibility in implementation is provided by formulating the mandatory requirements of many provisions in Part A in a more general way, thus leaving a wider scope for discretion as to the precise action to be provided for at the national level. In such cases, guidance on implementation is given in the non-mandatory Part B of the Code. In this way, Members which have ratified this Convention can ascertain the kind of action that might be expected of them under the corresponding general obligation in Part A (as well as action that would not necessarily be required). For example, Standard A. requires all ships to provide prompt access to the necessary medicines for medical care on board ship (paragraph (b)) and to “carry a medicine chest” (paragraph (a)). The fulfilment

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

in good faith of this latter obligation clearly means something more than simply having a medicine chest on board each ship. A more precise indication of what is involved is provided in the corresponding Guideline B.. (paragraph ) so as to ensure that the contents of the chest are properly stored, used and maintained. . Members which have ratified this Convention are not bound by the guidance concerned and, as indicated in the provisions in Title  on port Statecontrol, inspections would deal only with the relevant requirements of this Convention (Articles, Regulations and the Standards in Part A). However, Members are required under paragraph  of Article VI to give due consideration to implementing their responsibilities under Part A of the Code in the manner provided for in Part B. If, having duly considered the relevant Guidelines, a Member decides to provide for different arrangements which ensure the proper storage, use and maintenance of the contents of the medicine chest to take the example given above as required by the Standard in Part A, then that is acceptable. On the other hand, by following the guidance provided in Part B, the Member concerned, as well as the ILO bodies responsible for reviewing implementation of international labour Conventions, can be sure without further consideration that the arrangements the Member has provided for are adequate to implement the responsibilities under Part A to which the Guideline relates.



appendix  Title . Minimum requirements for seafarers to work on a ship Regulation .—Minimum age

Purpose: To ensure that no under-age persons work on a ship . No person below the minimum age shall be employed or engaged or work on a ship. . The minimum age at the time of the initial entry into force of this Convention is  years. (modified C180A12) . A higher minimum age shall be required in the circumstances set out in the Code. Standard A.—Minimum age . The employment, engagement or work on board a ship of any person under the age of  shall be prohibited. . Night work of seafarers under the age of  shall be prohibited. For the purposes of this Standard, “night” shall be defined in accordance with national law and practice. It shall cover a period of at least nine hours starting no later than midnight and ending no earlier than  am (modified C180A6) . An exception to strict compliance with the night work restriction may be made by the competent authority when: (a) the effective training of the seafarers concerned, in accordance with established programmes and schedules, would be impaired; or (b) the specific nature of the duty or a recognized training programme requires that the seafarers covered by the exception perform duties at night and the authority determines, after consultation with the shipowners’ and seafarers’ organizations concerned, that the work will not be detrimental to their health or well-being. . The employment, engagement or work of seafarers under the age of  shall be prohibited where the work is likely to jeopardize their health or safety. (modified C138A3/1) The types of such work shall be determined by national laws or regulations or by the competent authority, after consultation with the shipowners’ and seafarers’ organizations concerned, in accordance with relevant international standards. (modified C182A4/1) Guideline B.—Minimum age . When regulating working and living conditions, Members should give special attention to the needs of young persons under the age of . Regulation .—Medical certificate Purpose: To ensure that all seafarers are medically fit to perform their duties at sea . Seafarers shall not work on a ship unless they are certified as medically fit to perform their duties. (modified C.73A3/1) . Exceptions can only be permitted as prescribed in the Code.

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

Standard A.—Medical certificate . The competent authority shall require that, prior to beginning work on a ship, seafarers hold a valid medical certificate attesting that they are medically fit to perform the duties they are to carry out at sea. . In order to ensure that medical certificates genuinely reflect seafarers’ state of health, in light of the duties they are to perform, the competent authority shall, after consultation with the shipowners’ and seafarers’ organizations concerned, and giving due consideration to applicable international guidelines referred to in Part B of this Code, prescribe the nature of the medical examination and certificate. (modified C.73A4/1) . This Standard is without prejudice to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, , as amended (“STCW”). A medical certificate issued in accordance with the requirements of STCW shall be accepted by the competent authority, for the purpose of Regulation .. (modified C.73A3/1) A medical certificate meeting the substance of those requirements, in the case of seafarers not covered by STCW, shall similarly be accepted. . The medical certificate shall be issued by a duly qualified medical practitioner or, in the case of a certificate solely concerning eyesight, by a person recognized by the competent authority as qualified to issue such a certificate. (modified C73A3/1) Practitioners must enjoy full professional independence in exercising their medical judgement in undertaking medical examination procedures. . Seafarers that have been refused a certificate or have had a limitation imposed on their ability to work, in particular with respect to time, field of work or trading area, shall be given the opportunity to have a further examination by another independent medical practitioner or by an independent medical referee. (modified C.73 A/8)

. Each medical certificate shall state in particular that: (a) the hearing and sight of the seafarer concerned, and the colour vision in the case of a seafarer to be employed in capacities where fitness for the work to be performed is liable to be affected by defective colour vision, are all satisfactory; and (C.73A4/3/a) (b) the seafarer concerned is not suffering from any medical condition likely to be aggravated by service at sea or to render the seafarer unfit for such service or to endanger the health of other persons on board. (C.73A4/3b; Annex C, ILO/WHO Guidelines for Conducting Pre-sea and Periodic Medical Fitness Examinations for Seafarers, 1997)

. Unless a shorter period is required by reason of the specific duties to be performed by the seafarer concerned or is required under STCW , as amended: (a) a medical certificate shall be valid for a maximum period of two years (C.73A5/1) unless the seafarer is under the age of , in which case the maximum period of validity shall be one year; (C.16/A2) (b) a certification of colour vision shall be valid for a maximum period of six years. (modified C.73A5/2) . In urgent cases the competent authority may permit a seafarer to work without a valid medical certificate until the next port of call where the seafarer can obtain a medical certificate from a qualified medical practitioner, provided that: (a) the period of such permission does not exceed three months; and



appendix 

(b) the seafarer concerned is in possession of an expired medical certificate of recent date. (modified C.73A6/1) . If the period of validity of a certificate expires in the course of a voyage, the certificate shall continue in force until the next port of call where the seafarer can obtain a medical certificate from a qualified medical practitioner, provided that the period shall not exceed three months. (modified C.73A5/3) . The medical certificates for seafarers working on ships ordinarily engaged on international voyages must as a minimum be provided in English. Guideline B.—Medical certificate Guideline B..—Guideline B..—International guidelines . The competent authority, medical practitioners, examiners, shipowners, seafarers’ representatives and all other persons concerned with the conduct of medical fitness examinations of seafarer candidates and serving seafarers should follow the ILO/WHO Guidelines for Conducting Pre-sea and Periodic Medical Fitness Examinations for Seafarers, including any subsequent versions, and any other applicable international guidelines published by the International Labour Organization, the International Maritime Organization or the World Health Organization. Regulation .—Training and qualifications Purpose: To ensure that seafarers are trained or qualified to carry out their duties on board ship . Seafarers shall not work on a ship unless they are trained or certified as competent or otherwise qualified to perform their duties. (modified C.53A3/1) . Seafarers shall not be permitted to work on a ship unless they have successfully completed training for personal safety on board ship. . Training and certification in accordance with the mandatory instruments adopted by the International Maritime Organization shall be considered as meeting the requirements of paragraphs  and  of this Regulation. . Any Member which, at the time of its ratification of this Convention, was bound by the Certification of Able Seamen Convention,  (No. ), shall continue to carry out the obligations under that Convention unless and until mandatory provisions covering its subject matter have been adopted by the International Maritime Organization and entered into force, or until five years have elapsed since the entry into force of this Convention in accordance with paragraph  of Article VIII, whichever date is earlier. Regulation .—Recruitment and placement Purpose: To ensure that seafarers have access to an efficient and well-regulated seafarer recruitment and placement system . All seafarers shall have access to an efficient, adequate and accountable system for finding employment on board ship without charge to the seafarer. (modified C.9A4/1) . Seafarer recruitment and placement services operating in a Member’s territory shall conform to the standards set out in the Code.

annotated maritime labour convention, 



. Each Member shall require, in respect of seafarers who work on ships that fly its flag, that shipowners who use seafarer recruitment and placement services that are based in countries or territories in which this Convention does not apply, ensure that those services conform to the requirements set out in the Code. Standard A.—Recruitment and placement . Each Member that operates a public seafarer recruitment and placement service shall ensure that the service is operated in an orderly manner that protects and promotes seafarers’ employment rights as provided in this Convention. . Where a Member has private seafarer recruitment and placement services operating in its territory whose primary purpose is the recruitment and placement of seafarers or which recruits and places a significant number of seafarers, they shall be operated only in conformity with a standardized system of licensing or certification or other form of regulation. This system shall be established, modified or changed only after consultation with the shipowners’ and seafarers’ organizations concerned. In the event of doubt as to whether this Convention applies to a private recruitment and placement service, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned. Undue proliferation of private seafarer recruitment and placement services shall not be encouraged. (modified C.179A2/2) . The provisions of paragraph  of this Standard shall also apply—to the extent that they are determined by the competent authority, in consultation with the shipowners’ and seafarers’ organizations concerned, to be appropriate—in the context of recruitment and placement services operated by a seafarers’ organization in the territory of a Member for the supply of seafarers who are nationals of that Member to ships which fly its flag. The services covered by this paragraph are those fulfilling the following conditions: (a) the recruitment and placement service is operated pursuant to a collective bargaining agreement between that organization and a shipowner; (b) both the seafarers’ organization and the shipowner are based in the territory of the Member; (c) the Member has national laws or regulations or a procedure to authorize or register the collective bargaining agreement permitting the operation of the recruitment and placement service; and (d) the recruitment and placement service is operated in an orderly manner and measures are in place to protect and promote seafarers’ employment rights comparable to those provided in paragraph  of this Standard. . Nothing in this Standard or Regulation . shall be deemed to: (a) prevent a Member from maintaining a free public seafarer recruitment and placement service for seafarers in the framework of a policy to meet the needs of seafarers and shipowners, whether the service forms part of or is coordinated with a public employment service for all workers and employers; or (b) impose on a Member the obligation to establish a system for the operation of private seafarer recruitment or placement services in its territory. (modified C.179A2/1)

. A Member adopting a system referred to in paragraph  of this Standard shall, in its laws and regulations or other measures, at a minimum:



appendix 

(a) prohibit seafarer recruitment and placement services from using means, mechanisms or lists intended to prevent or deter seafarers from gaining employment for which they are qualified; (modified C.179 A4/2) (b) require that no fees or other charges for seafarer recruitment or placement or for providing employment to seafarers are borne directly or indirectly, in whole or in part, by the seafarer, other than the cost of the seafarer obtaining a national statutory medical certificate, the national seafarer’s book and a passport or other similar personal travel documents, not including, however, the cost of visas, which shall be borne by the shipowner; and (c) ensure that seafarer recruitment and placement services operating in its territory: (i) maintain an up-to-date register of all seafarers recruited or placed through them, to be available for inspection by the competent authority; (modified C.179A5/1) (ii) make sure that seafarers are informed of their rights and duties under their employment agreements prior to or in the process of engagement and that proper arrangements are made for seafarers to examine their employment agreements before and after they are signed and for them to receive a copy of the agreements; (modified C.179A5/2) (iii) verify that seafarers recruited or placed by them are qualified and hold the documents necessary for the job concerned, and that the seafarers’ employment agreements are in accordance with applicable laws and regulations and any collective bargaining agreement that forms part of the employment agreement; (iv) make sure, as far as practicable, that the shipowner has the means to protect seafarers from being stranded in a foreign port; (C.179A4/2) (v) examine and respond to any complaint concerning their activities and advise the competent authority of any unresolved complaint; (C.179A6/2) (vi) establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them. (modified C.179A4/2 f.) . The competent authority shall closely supervise and control all seafarer recruitment and placement services operating in the territory of the Member concerned. Any licences or certificates or similar authorizations for the operation of private services in the territory are granted or renewed only after verification that the seafarer recruitment and placement service concerned meets the requirements of national laws and regulations. . The competent authority shall ensure that adequate machinery and procedures exist for the investigation, if necessary, of complaints concerning the activities of seafarer recruitment and placement services, involving, as appropriate, representatives of shipowners and seafarers. (C.179A6/1) . Each Member which has ratified this Convention shall, in so far as practicable, advise its nationals on the possible problems of signing on a ship that flies the flag of a State which has not ratified the Convention, until it is satisfied that standards equivalent to those fixed by this Convention are being applied. Measures taken to this effect by the Member that has ratified this Convention shall not be in

annotated maritime labour convention, 



contradiction with the principle of free movement of workers stipulated by the treaties to which the two States concerned may be parties. (modified C.147A) . Each Member which has ratified this Convention shall require that shipowners of ships that fly its flag, who use seafarer recruitment and placement services based in countries or territories in which this Convention does not apply, ensure, as far as practicable, that those services meet the requirements of this Standard. . Nothing in this Standard shall be understood as diminishing the obligations and responsibilities of shipowners (modified C.179A5/3) or of a Member with respect to ships that fly its flag. Guideline B.—Recruitment and placement Guideline B..—Organizational and operational guidelines . When fulfilling its obligations under Standard A., paragraph , the competent authority should consider (modified R.186): (a) taking the necessary measures to promote effective cooperation among seafarer recruitment and placement services, whether public or private; (b) the needs of the maritime industry at both the national and international levels, when developing training programmes for seafarers that form the part of the ship’s crew that is responsible for the ship’s safe navigation and pollution prevention operations, with the participation of shipowners, seafarers and the relevant training institutions; (c) making suitable arrangements for the cooperation of representative shipowners’ and seafarers’ organizations in the organization and operation of the public seafarer recruitment and placement services, where they exist; (d) determining, with due regard to the right to privacy and the need to protect confidentiality, the conditions under which seafarers’ personal data may be processed by seafarer recruitment and placement services, including the collection, storage, combination and communication of such data to third parties; (e) maintaining an arrangement for the collection and analysis of all relevant information on the maritime labour market, including the current and prospective supply of seafarers that work as crew classified by age, sex, rank and qualifications, and the industry’s requirements, the collection of data on age or sex being admissible only for statistical purposes or if used in the framework of a programme to prevent discrimination based on age or sex; (f) ensuring that the staff responsible for the supervision of public and private seafarer recruitment and placement services for ship’s crew with responsibility for the ship’s safe navigation and pollution prevention operations have had adequate training, including approved sea-service experience, and have relevant knowledge of the maritime industry, including the relevant maritime international instruments on training, certification and labour standards; (g) prescribing operational standards and adopting codes of conduct and ethical practices for seafarer recruitment and placement services; and (h) exercising supervision of the licensing or certification system on the basis of a system of quality standards. (R.186P1)



appendix 

. In establishing the system referred to in Standard A., paragraph , each Member should consider requiring seafarer recruitment and placement services, established in its territory, to develop and maintain verifiable operational practices. These operational practices for private seafarer recruitment and placement services and, to the extent that they are applicable, for public seafarer recruitment and placement services should address the following matters: (a) medical examinations, seafarers’ identity documents and such other items as may be required for the seafarer to gain employment; (R.186P2) (b) maintaining, with due regard to the right to privacy and the need to protect confidentiality, full and complete records of the seafarers covered by their recruitment and placement system, which should include but not be limited to: (i) the seafarers’ qualifications; (ii) record of employment; (iii) personal data relevant to employment; and (iv) medical data relevant to employment; (c) maintaining up-to-date lists of the ships for which the seafarer recruitment and placement services provide seafarers and ensuring that there is a means by which the services can be contacted in an emergency at all hours; (d) procedures to ensure that seafarers are not subject to exploitation by the seafarer recruitment and placement services or their personnel with regard to the offer of engagement on particular ships or by particular companies; (e) procedures to prevent the opportunities for exploitation of seafarers arising from the issue of joining advances or any other financial transaction between the shipowner and the seafarers which are handled by the seafarer recruitment and placement services; (f) clearly publicizing costs, if any, which the seafarer will be expected to bear in the recruitment process; (g) ensuring that seafarers are advised of any particular conditions applicable to the job for which they are to be engaged and of the particular shipowner’s policies relating to their employment; (h) procedures which are in accordance with the principles of natural justice for dealing with cases of incompetence or indiscipline consistent with national laws and practice and, where applicable, with collective agreements; (i) procedures to ensure, as far as practicable, that all mandatory certificates and documents submitted for employment are up-to-date and have not been fraudulently obtained and that employment references are verified; (j) procedures to ensure that requests for information or advice by families of seafarers while the seafarers are at sea are dealt with promptly and sympathetically and at no cost; and (k) verifying that labour conditions on ships where they place seafarers are in conformity with applicable collective bargaining agreements concluded between a shipowner and a representative seafarers’ organization and, as a matter of policy, supplying seafarers only to shipowners that offer terms and conditions of employment to seafarers which comply with applicable laws or regulations or collective agreements. (modified R.186P3)

annotated maritime labour convention, 



. Consideration should be given to encouraging international cooperation between Members and relevant organizations, such as: (a) the systematic exchange of information on the maritime industry and labour market on a bilateral, regional and multilateral basis; (b) the exchange of information on maritime labour legislation; (c) the harmonization of policies, working methods and legislation governing recruitment and placement of seafarers; (d) the improvement of procedures and conditions for the international recruitment and placement of seafarers; and (e) workforce planning, taking account of the supply of and demand for seafarers and the requirements of the maritime industry. (R.186P4) Title . Conditions of employment Regulation .—Seafarers’ employment agreements Purpose: To ensure that seafarers have a fair employment agreement . The terms and conditions for employment of a seafarer shall be set out or referred to in a clear written legally enforceable agreement and shall be consistent with the standards set out in the Code. (modified C.22A3/6) . Seafarers’ employment agreements shall be agreed to by the seafarer under conditions which ensure that the seafarer has an opportunity to review and seek advice on the terms and conditions in the agreement and freely accepts them before signing. (modified C.22A/3) . To the extent compatible with the Member’s national law and practice, seafarers’ employment agreements shall be understood to incorporate any applicable collective bargaining agreements. Standard A.—Seafarers’ employment agreements . Each Member shall adopt laws or regulations requiring that ships that fly its flag comply with the following requirements: (a) seafarers working on ships that fly its flag shall have a seafarers’ employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner (or, where they are not employees, evidence of contractual or similar arrangements) providing them with decent working and living conditions on board the ship as required by this Convention; (b) seafarers signing a seafarers’ employment agreement shall be given an opportunity to examine and seek advice on the agreement before signing as well as such other facilities as are necessary to ensure that they have freely entered into an agreement with a sufficient understanding of their rights and responsibilities; (modified C.22A3/1/6) (c) the shipowner and seafarer concerned shall each have a signed originalof the seafarers’ employment agreement; (d) measures shall be taken to ensure that clear information as to the conditions of their employment can be easily obtained on board by seafarers, including the ship’s master, and that such information, including a copy of the seafarers’ employment agreement, is also accessible for review by officers of a competent authority, including those in ports to be visited; and



appendix 

(e) seafarers shall be given a document containing a record of their employment on board the ship. (modified C.22A5) . Where a collective bargaining agreement forms all or part of a seafarers’ employment agreement a copy of that agreement shall be available on board. Where the language of the seafarers’ employment agreement and any applicable collective bargaining agreement is not in English, the following shall also be available in English (except for ships engaged only in domestic voyages): (a) a copy of a standard form of the agreement; and (b) the portions of the collective bargaining agreement that are subject to a port State inspection under Regulation .. . The document referred to in paragraph (e) of this Standard shall not contain any statement as to the quality of the seafarers’ work or as to their wages. (modified C.22A5/2) The form of the document, the particulars to be recorded and the manner in which such particulars are to be entered shall be determined by national law. (C.22A5/1) . Each Member shall adopt laws and regulations specifying the matters that are to be included in all seafarers’ employment agreements governed by its national law. (modified C.22) Seafarers’ employment agreements shall in all cases contain the following particulars (modified C.22A6/3): (a) the seafarer’s full name, date of birth or age, and birthplace; (b) the shipowner’s name and address; (c) the place where and date when the seafarers’ employment agreement is entered into; (d) the capacity in which the seafarer is to be employed; (e) the amount of the seafarer’s wages or, where applicable, the formula used for calculating them; (f) the amount of paid annual leave or, where applicable, the formula used for calculating it; (g) the termination of the agreement and the conditions thereof, including: (modified C.22A6/10)

(i) if the agreement has been made for an indefinite period, the conditions entitling either party to terminate it, as well as the required notice period, which shall not be less for the shipowner than for the seafarer; (ii) if the agreement has been made for a definite period, the date fixed for its expiry; and (iii) if the agreement has been made for a voyage, the port of destination and the time which has to expire after arrival before the seafarer should be discharged; (h) the health and social security protection benefits to be provided to the seafarer by the shipowner; (i) the seafarer’s entitlement to repatriation; (j) reference to the collective bargaining agreement, if applicable; and (k) any other particulars which national law may require. (modified C.22A6/3) . Each Member shall adopt laws or regulations establishing minimum notice periods to be given by the seafarers and shipowners for the early termination of a seafarers’ employment agreement. The duration of these minimum periods shall be determined after consultation with the shipowners’ and seafarers’ organizations concerned, but shall not be shorter than seven days. (based on C.22A9)

annotated maritime labour convention, 



. A notice period shorter than the minimum may be given in circumstances which are recognized under national law or regulations or applicable collective bargaining agreements as justifying termination of the employment agreement at shorter notice or without notice. In determining those circumstances, each Member shall ensure that the need of the seafarer to terminate, without penalty, the employment agreement on shorter notice or without notice for compassionate or other urgent reasons is taken into account. (based on C.22A10) Guideline B.—Seafarers’ employment agreements Guideline B..—Record of employment . In determining the particulars to be recorded in the record of employment referred to in Standard A.paragraph (e), each Member should ensure that this document contains sufficient information, with a translation in English, to facilitate the acquisition of further work or to satisfy the sea-service requirements for upgrading or promotion. A seafarers’ discharge book may satisfy the requirements of paragraph (e) of that Standard. Regulation .—Wages Purpose: To ensure that seafarers are paid for their services . All seafarers shall be paid for their work regularly and in full in accordance with their employment agreements. Standard A.—Wages . Each Member shall require that payments due to seafarers working on ships that fly its flag are made at no greater than monthly intervals and in accordance with any applicable collective agreement. . Seafarers shall be given a monthly account of the payments due and the amounts paid, including wages, additional payments and the rate of exchange used where payment has been made in a currency or at a rate different from the one agreed to. . Each Member shall require that shipowners take measures, such as those set out in paragraph  of this Standard, to provide seafarers with a means to transmit all or part of their earnings to their families or dependants or legal beneficiaries. . Measures to ensure that seafarers are able to transmit their earnings to their families include: (a) a system for enabling seafarers, at the time of their entering employment or during it, to allot, if they so desire, a proportion of their wages for remittance at regular intervals to their families by bank transfers or similar means; and (b) a requirement that allotments should be remitted in due time and directly to the person or persons nominated by the seafarers. . Any charge for the service under paragraphs  and  of this Standard shall be reasonable in amount, and the rate of currency exchange, unless otherwise provided, shall, in accordance with national laws or regulations, be at the prevailing market rate or the official published rate and not unfavourable to the seafarer. . Each Member that adopts national laws or regulations governing seafarers’ wages shall give due consideration to the guidance provided in Part B of the Code.



appendix  Guideline B.—Wages Guideline B..—Specific definitions

. For the purpose of this Guideline, the term: (a) able seafarer means any seafarer who is deemed competent to perform any duty which may be required of a rating serving in the deck department, other than the duties of a supervisory or specialist rating, or who is defined as such by national laws, regulations or practice, or by collective agreement; (R.187P9)

(b) basic pay or wages means the pay, however composed, for normal hours of work; it does not include payments for overtime worked, bonuses, allowances, paid leave or any other additional remuneration; (c) consolidated wage means a wage or salary which includes the basic pay and other pay-related benefits; a consolidated wage may include compensation for all overtime hours which are worked and all other pay-related benefits, or it may include only certain benefits in a partial consolidation; (d) hours of work means time during which seafarers are required to do work on account of the ship; (e) overtime means time worked in excess of the normal hours of work. (R.187P2) Guideline B..—Calculation and payment . For seafarers whose remuneration includes separate compensation for overtime worked: (a) for the purpose of calculating wages, the normal hours of work at sea and in port should not exceed eight hours per day; (b) for the purpose of calculating overtime, the number of normal hours per week covered by the basic pay or wages should be prescribed by national laws or regulations, if not determined by collective agreements, but should not exceed  hours per week; collective agreements may provide for a different but not less favourable treatment; (c) the rate or rates of compensation for overtime, which should be not less than one and one-quarter times the basic pay or wages per hour, should be prescribed by national laws or regulations or by collective agreements, if applicable; and (d) records of all overtime worked should be maintained by the master, or a person assigned by the master, and endorsed by the seafarer at no greater than monthly intervals. (R.187P3) . For seafarers whose wages are fully or partially consolidated: (a) the seafarers’ employment agreement should specify clearly, where appropriate, the number of hours of work expected of the seafarer in return for this remuneration, and any additional allowances which might be due in addition to the consolidated wage, and in which circumstances; (b) where hourly overtime is payable for hours worked in excess of those covered by the consolidated wage, the hourly rate should be not less than one and one-quarter times the basic rate corresponding to the normal hours of work as defined in paragraph  of this Guideline; the same principle should be applied to the overtime hours included in the consolidated wage;

annotated maritime labour convention, 



(c) remuneration for that portion of the fully or partially consolidated wage representing the normal hours of work as defined in paragraph (a) of this Guideline should be no less than the applicable minimum wage; and (d) for seafarers whose wages are partially consolidated, records of all overtime worked should be maintained and endorsed as provided for in paragraph (d) of this Guideline (R.187P4) . National laws or regulations or collective agreements may provide for compensation for overtime or for work performed on the weekly day of rest and on public holidays by at least equivalent time off duty and off the ship or additional leave in lieu of remuneration or any other compensation so provided. (R.187P5) . National laws and regulations adopted after consulting the representative shipowners’ and seafarers’ organizations or, as appropriate, collective agreements should take into account the following principles: (a) equal remuneration for work of equal value should apply to all seafarers employed upon the same ship without discrimination based upon race, colour, sex, religion, political opinion, national extraction or social origin; (b) the seafarers’ employment agreement specifying the applicable wages or wage rates should be carried on board the ship; information on the amount of wages or wage rates should be made available to each seafarer, either by providing at least one signed copy of the relevant information to the seafarer in a language which the seafarer understands, or by posting a copy of the agreement in a place accessible to seafarers or by some other appropriate means; (c) wages should be paid in legal tender; where appropriate, they may be paid by bank transfer, bank cheque, postal cheque or money order; (d) on termination of engagement all remuneration due should be paid without undue delay; (e) adequate penalties or other appropriate remedies should be imposed by the competent authority where shipowners unduly delay, or fail to make, payment of all remuneration due; (f) wages should be paid directly to seafarers’ designated bank accounts unless they request otherwise in writing; (g) subject to subparagraph (h) of this paragraph, the shipowner should impose no limit on seafarers’ freedom to dispose of their remuneration; (h) deduction from remuneration should be permitted only if: (i) there is an express provision in national laws or regulations or in an applicable collective agreement and the seafarer has been informed, in the manner deemed most appropriate by the competent authority, of the conditions for such deductions; and (ii) the deductions do not in total exceed the limit that may have been established by national laws or regulations or collective agreements or court decisions for making such deductions; (modified R.187P6(h)) (i) no deductions should be made from a seafarer’s remuneration in respect of obtaining or retaining employment; (j) monetary fines against seafarers other than those authorized by national laws or regulations, collective agreements or other measures should be prohibited;



appendix 

(k) the competent authority should have the power to inspect stores and services provided on board ship to ensure that fair and reasonable prices are applied for the benefit of the seafarers concerned; and (l) to the extent that seafarers’ claims for wages and other sums due in respect of their employment are not secured in accordance with the provisions of the International Convention on Maritime Liens and Mortgages, , such claims should be protected in accordance with the Protection of Workers’ Claims (Employer’s Insolvency) Convention,  (No. ), of the International Labour Organization. (modified R.187P6) . Each Member should, after consulting with representative shipowners’ and seafarers’ organizations, have procedures to investigate complaints relating to any matter contained in this Guideline (modified R.187P7) Guideline B..—Minimum wages . Without prejudice to the principle of free collective bargaining, each Member should, after consulting representative shipowners’ and seafarers’ organizations, establish procedures for determining minimum wages for seafarers. Representative shipowners’ and seafarers’ organizations should participate in the operation of such procedures. (R.187P8(1)) . When establishing such procedures and in fixing minimum wages, due regard should be given to international labour standards concerning minimum wage fixing, as well as the following principles: (a) the level of minimum wages should take into account the nature of maritime employment, crewing levels of ships, and seafarers’ normal hours of work; and (b) the level of minimum wages should be adjusted to take into account changes in the cost of living and in the needs of seafarers. (R.187P8(2)) . The competent authority should ensure: (a) by means of a system of supervision and sanctions, that wages are paid at not less than the rate or rates fixed; and (b) that any seafarers who have been paid at a rate lower than the minimum wage are enabled to recover, by an inexpensive and expeditious judicial or other procedure, the amount by which they have been underpaid. (R.187P8(3)) Guideline B..—Minimum monthly basic pay or wage figure for able seafarers . The basic pay or wages for a calendar month of service for an able seafarer should be no less than the amount periodically set by the Joint Maritime Commission or another body authorized by the Governing Body of the International Labour Office. Upon a decision of the Governing Body, the Director-General shall notify any revised amount to the Members of the Organization. (R.187P10) . Nothing in this Guideline should be deemed to prejudice arrangements agreed between shipowners or their organizations and seafarers’ organizations with regard to the regulation of standard minimum terms and conditions of employment, provided such terms and conditions are recognized by the competent authority. (R.187P11)

annotated maritime labour convention, 



Regulation .—Hours of work and hours of rest Purpose: To ensure that seafarers have regulated hours of work or hours of rest . Each Member shall ensure that the hours of work or hours of rest for seafarers are regulated. (modified C.180A3) . Each Member shall establish maximum hours of work or minimum hours of rest over given periods that are consistent with the provisions in the Code. Standard A.—Hours of work and hours of rest . For the purpose of this Standard, the term: (a) hours of work means time during which seafarers are required to do work on account of the ship; (C.180A2/b) (b) hours of rest means time outside hours of work; this term does not include short breaks. (C.180A2/c) . Each Member shall within the limits set out in paragraphs  to  of this Standard fix either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time. (C.180A3) . Each Member acknowledges that the normal working hours’ standard for seafarers, like that for other workers, shall be based on an eight-hour day with one day of rest per week and rest on public holidays. However, this shall not prevent the Member from having procedures to authorize or register a collective agreement which determines seafarers’ normal working hours on a basis no less favourable than this standard. (C180A4) . In determining the national standards, each Member shall take account of the danger posed by the fatigue of seafarers, especially those whose duties involve navigational safety and the safe and secure operation of the ship. . The limits on hours of work or rest shall be as follows: (a) maximum hours of work shall not exceed: (i)  hours in any -hour period; and (ii)  hours in any seven-day period; or (b) minimum hours of rest shall not be less than: (i) ten hours in any -hour period; and (ii)  hours in any seven-day period. (C.180A5/1) . Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length, and the interval between consecutive periods of rest shall not exceed  hours. (C.180A5/2) . Musters, fire-fighting and lifeboat drills, and drills prescribed by national laws and regulations and by international instruments, shall be conducted in a manner that minimizes the disturbance of rest periods and does not induce fatigue. (C.180A5/3)

. When a seafarer is on call, such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work. (C.180A5/4) . If no collective agreement or arbitration award exists or if the competent authority determines that the provisions in the agreement or award in respect of



appendix  paragraph  or  of this Standard are inadequate, the competent authority shall determine such provisions to ensure the seafarers concerned have sufficient rest. (C.180A5/5)

. Each Member shall require the posting, in an easily accessible place, of a table with the shipboard working arrangements, which shall contain for every position at least: (a) the schedule of service at sea and service in port; and (b) the maximum hours of work or the minimum hours of rest required by national laws or regulations or applicable collective agreements. (modified C180A5.7)

. The table referred to in paragraph  of this Standard shall be established in a standardized format in the working language or languages of the ship and in English. (C.180A5) . Each Member shall require that records of seafarers’ daily hours of work or of their daily hours of rest be maintained to allow monitoring of compliance with paragraphs  to  inclusive of this Standard. The records shall be in a standardized format established by the competent authority taking into account any available guidelines of the International Labour Organization or shall be in any standard format prepared by the Organization. They shall be in the languages required by paragraph  of this Standard. The seafarers shall receive a copy of the records pertaining to them which shall be endorsed by the master, or a person authorized by the master, and by the seafarers. (C.180A8/1) . Nothing in paragraphs  and  of this Standard shall prevent a Member from having national laws or regulations or a procedure for the competent authority to authorize or register collective agreements permitting exceptions to the limits set out. Such exceptions shall, as far as possible, follow the provisions of this Standard but may take account of more frequent or longer leave periods or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ships on short voyages. (C.180A5/6) . Nothing in this Standard shall be deemed to impair the right of the master of a ship to require a seafarer to perform any hours of work necessary for the immediate safety of the ship, persons on board or cargo, or for the purpose of giving assistance to other ships or persons in distress at sea. Accordingly, the master may suspend the schedule of hours of work or hours of rest and require a seafarer to perform any hours of work necessary until the normal situation has been restored. As soon as practicable after the normal situation has been restored, the master shall ensure that any seafarers who have performed work in a scheduled rest period are provided with an adequate period of rest. (C.180A7)

Guideline B.—Hours of work and hours of rest Guideline B..—Young seafarers . At sea and in port the following provisions should apply to all young seafarers under the age of : (R153) (a) working hours should not exceed eight hours per day and  hours per week and overtime should be worked only where unavoidable for safety reasons; (R153P4)

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(b) sufficient time should be allowed for all meals, and a break of at least one hour for the main meal of the day should be assured; and (c) a -minute rest period as soon as possible following each two hours of continuous work should be allowed. . Exceptionally, the provisions of paragraph  of this Guideline B.. need not be applied if: (R153P4(2)) (a) they are impracticable for young seafarers in the deck, engine room and catering departments assigned to watchkeeping duties or working on a rostered shift-work system; or (b) the effective training of young seafarers in accordance with established programmes and schedules would be impaired. . Such exceptional situations should be recorded, with reasons, and signed by the master. (R.153P4) . Paragraph  of this Guideline does not exempt young seafarers from the general obligation on all seafarers to work during any emergency as provided for in Standard A., paragraph . (see R.153P5) Regulation .—Entitlement to leave Purpose: To ensure that seafarers have adequate leave . Each Member shall require that seafarers employed on ships that fly its flag are given paid annual leave under appropriate conditions, in accordance with the provisions in the Code. (modified C.153A3) . Seafarers shall be granted shore leave to benefit their health and well-being and consistent with the operational requirements of their positions. Standard A.—Entitlement to leave . Each Member shall adopt laws and regulations determining the minimum standards for annual leave for seafarers serving on ships that fly its flag, taking proper account of the special needs of seafarers with respect to such leave. (modified C.146A3) . Subject to any collective agreement or laws or regulations providing for an appropriate method of calculation that takes account of the special needs of seafarers in this respect, the annual leave with pay entitlement shall be calculated on the basis of a minimum of . calendar days per month of employment. The manner in which the length of service is calculated shall be determined by the competent authority or through the appropriate machinery in each country. Justified absences from work shall not be considered as annual leave. (modified C.146A5&6)

. Any agreement to forgo the minimum annual leave with pay prescribed in this Standard, except in cases provided for by the competent authority, shall be prohibited. (modified C.146A11) Guideline B.—Entitlement to leave Guideline B..—Calculation of entitlement . Under conditions as determined by the competent authority or through the appropriate machinery in each country, service off-articles should be counted as part of the period of service. (C.146A5/2)



appendix 

. Under conditions as determined by the competent authority or in an applicable collective agreement, absence from work to attend an approved maritime vocational training course or for such reasons as illness or injury or for maternity should be counted as part of the period of service. (modified C.146A5/3) . The level of pay during annual leave should be at the seafarer’s normal level of remuneration provided for by national laws or regulations or in the applicable seafarers’ employment agreement. (modified C.146A7/1) For seafarers employed for periods shorter than one year or in the event of termination of the employment relationship, entitlement to leave should be calculated on a pro-rata basis. (based on C.146A4/1)

. The following should not be counted as part of annual leave with pay: (a) public and customary holidays recognized as such in the flag State, whether or not they fall during the annual leave with pay; (b) periods of incapacity for work resulting from illness or injury or from maternity, under conditions as determined by the competent authority or through the appropriate machinery in each country; (c) temporary shore leave granted to a seafarer while under an employment agreement; and (d) compensatory leave of any kind, under conditions as determined by the competent authority or through the appropriate machinery in each country. (C.146A6) Guideline B..—Taking of annual leave . The time at which annual leave is to be taken should, unless it is fixed by regulation, collective agreement, arbitration award or other means consistent with national practice, be determined by the shipowner after consultation and, as far as possible, in agreement with the seafarers concerned or their representatives. (modified C.146A10/1) . Seafarers should in principle have the right to take annual leave in the place with which they have a substantial connection, which would normally be the same as the place to which they are entitled to be repatriated. Seafarers should not be required without their consent to take annual leave due to them in another place except under the provisions of a seafarers’ employment agreement or of national laws or regulations. (modified C.146A10/2) . If seafarers are required to take their annual leave from a place other than that permitted by paragraph  of this Guideline, they should be entitled to free transportation to the place where they were engaged or recruited, whichever is nearer their home; subsistence and other costs directly involved should be for the account of the shipowner; the travel time involved should not be deducted from the annual leave with pay due to the seafarer. (C.146A10/3) . A seafarer taking annual leave should be recalled only in cases of extreme emergency and with the seafarer’s consent. (modified C.146A12) Guideline B..—Division and accumulation . The division of the annual leave with pay into parts, or the accumulation of such annual leave due in respect of one year together with a subsequent period of

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leave, may be authorized by the competent authority or through the appropriate machinery in each country. (C.146A8/1) . Subject to paragraph  of this Guideline and unless otherwise provided in an agreement applicable to the shipowner and the seafarer concerned, the annual leave with pay recommended in this Guideline should consist of an uninterrupted period. (C.146A8/2) Guideline B..—Young seafarers . Special measures should be considered with respect to young seafarers under the age of  who have served six months or any other shorter period of time under a collective agreement or seafarers’ employment agreement without leave on a foreign-going ship which has not returned to their country of residence in that time, and will not return in the subsequent three months of the voyage. Such measures could consist of their repatriation at no expense to themselves to the place of original engagement in their country of residence for the purpose of taking any leave earned during the voyage. (R.153P6(2)) Regulation .—Repatriation Purpose: To ensure that seafarers are able to return home . Seafarers have a right to be repatriated at no cost to themselves in the circumstances and under the conditions specified in the Code. (modified C.166A4) . Each Member shall require ships that fly its flag to provide financial security to ensure that seafarers are duly repatriated in accordance with the Code. Standard A.—Repatriation . Each Member shall ensure that seafarers on ships that fly its flag are entitled to repatriation in the following circumstances: (a) if the seafarers’ employment agreement expires while they are abroad; (b) when their seafarers’ employment agreement is terminated: (i) by the shipowner; or (ii) by the seafarer for justified reasons; and also (c) when the seafarers are no longer able to carry out their duties under their employment agreement or cannot be expected to carry them out in the specific circumstances. (modified C.166A2/1) . Each Member shall ensure that there are appropriate provisions in its laws and regulations or other measures or in collective bargaining agreements, prescribing: (a) the circumstances in which seafarers are entitled to repatriation in accordance with paragraph (b) and (c) of this Standard; (b) the maximum duration of service periods on board following which a seafarer is entitled to repatriation—such periods to be less than  months; and (modified C.166A2/2) (c) the precise entitlements to be accorded by shipowners for repatriation, including those relating to the destinations of repatriation, the mode of transport, the items of expense to be covered and other arrangements to be made by shipowners.



appendix 

. Each Member shall prohibit shipowners from requiring that seafarers make an advance payment towards the cost of repatriation at the beginning of their employment, and also from recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations or other measures or applicable collective bargaining agreements, to be in serious default of the seafarer’s employment obligations. (modified C.166A4/5) . National laws and regulations shall not prejudice any right of the shipowner to recover the cost of repatriation under third-party contractual arrangements. (modified C.166A4/6)

. If a shipowner fails to make arrangements for or to meet the cost of repatriation of seafarers who are entitled to be repatriated: (a) the competent authority of the Member whose flag the ship flies shall arrange for repatriation of the seafarers concerned; if it fails to do so, the State from which the seafarers are to be repatriated or the State of which they are a national may arrange for their repatriation and recover the cost from the Member whose flag the ship flies; (b) costs incurred in repatriating seafarers shall be recoverable from the shipowner by the Member whose flag the ship flies; (c) the expenses of repatriation shall in no case be a charge upon the seafarers, except as provided for in paragraph  of this Standard. (modified C.166A5) . Taking into account applicable international instruments, including the International Convention on Arrest of Ships, , a Member which has paid the cost of repatriation pursuant to this Code may detain, or request the detention of, the ships of the shipowner concerned until the reimbursement has been made in accordance with paragraph  of this Standard. . Each Member shall facilitate the repatriation of seafarers serving on ships which call at its ports or pass through its territorial or internal waters, as well as their replacement on board. (C.166A10) . In particular, a Member shall not refuse the right of repatriation to any seafarer because of the financial circumstances of a shipowner or because of the shipowner’s inability or unwillingness to replace a seafarer. . Each Member shall require that ships that fly its flag carry and make available to seafarers a copy of the applicable national provisions regarding repatriation written in an appropriate language. (modified C.166A12) Guideline B.—Repatriation Guideline B..—Entitlement . Seafarers should be entitled to repatriation: (a) in the case covered by Standard A., paragraph (a), upon the expiry of the period of notice given in accordance with the provisions of the seafarers’ employment agreement; (b) in the cases covered by Standard A., paragraph (b) and (c): (i) in the event of illness or injury or other medical condition which requires their repatriation when found medically fit to travel; (ii) in the event of shipwreck; (iii) in the event of the shipowner not being able to continue to fulfil their

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legal or contractual obligations as an employer of the seafarers by reason of insolvency, sale of ship, change of ship’s registration or any other similar reason; (iv) in the event of a ship being bound for a war zone, as defined by national laws or regulations or seafarers’ employment agreements, to which the seafarer does not consent to go; and (v) in the event of termination or interruption of employment in accordance with an industrial award or collective agreement, or termination of employment for any other similar reason. (C.166A2/1) . In determining the maximum duration of service periods on board following which a seafarer is entitled to repatriation, in accordance with this Code, account should be taken of factors affecting the seafarers’ working environment. Each Member should seek, wherever possible, to reduce these periods in the light of technological changes and developments and might be guided by any recommendations made on the matter by the Joint Maritime Commission. (C.166A2/2)

. The costs to be borne by the shipowner for repatriation under Standard A. should include at least the following: (modified C.166A4/4) (a) passage to the destination selected for repatriation in accordance with paragraph  of this Guideline; (b) accommodation and food from the moment the seafarers leave the ship until they reach the repatriation destination; (c) pay and allowances from the moment the seafarers leave the ship until they reach the repatriation destination, if provided for by national laws or regulations or collective agreements; (d) transportation of  kg of the seafarers’ personal luggage to the repatriation destination; and (e) medical treatment when necessary until the seafarers are medically fit to travel to the repatriation destination. (C.166A4/4) . Time spent awaiting repatriation and repatriation travel time should not be deducted from paid leave accrued to the seafarers. (C.166A7) . Shipowners should be required to continue to cover the costs of repatriation until the seafarers concerned are landed at a destination prescribed pursuant to this Code or are provided with suitable employment on board a ship proceeding to one of those destinations. (C.166A8, C.55A6/4) . Each Member should require that shipowners take responsibility for repatriation arrangements by appropriate and expeditious means. The normal mode of transport should be by air. (modified C.166A4/1) The Member should prescribe the destinations to which seafarers may be repatriated. (modified C.166A3/1) The destinations should include the countries with which seafarers may be deemed to have a substantial connection including: (modified C.166A3/2) (a) the place at which the seafarer agreed to enter into the engagement; (b) the place stipulated by collective agreement; (c) the seafarer’s country of residence; or (d) such other place as may be mutually agreed at the time of engagement. . Seafarers should have the right to choose from among the prescribed destinations the place to which they are to be repatriated. (modified C.166A3/2) . The entitlement to repatriation may lapse if the seafarers concerned do not claim



appendix  it within a reasonable period of time to be defined by national laws or regulations or collective agreements. (modified C.166A8) Guideline B..—Implementation by Members

. Every possible practical assistance should be given to a seafarer stranded in a foreign port pending repatriation and in the event of delay in the repatriation of the seafarer, the competent authority in the foreign port should ensure that the consular or local representative of the flag State and the seafarer’s State of nationality or State of residence, as appropriate, is informed immediately. (R.173P21)

. Each Member should have regard to whether proper provision is made: (a) for the return of seafarers employed on a ship that flies the flag of a foreign country who are put ashore in a foreign port for reasons for which they are not responsible (i) to the port at which the seafarer concerned was engaged; or (ii) to a port in the seafarer’s own country or the country to which the seafarer belongs; or (iii) to another port agreed upon between the seafarer and the master or shipowner, with the approval of the competent authority or under other appropriate safeguards; (b) for medical care and maintenance of seafarers employed on a ship that flies the flag of a foreign country who are put ashore in a foreign port in consequence of sickness or injury incurred in the service of the ship and not due to their own wilful misconduct. (R.107P2) . If, after young seafarers under the age of  have served on a ship for at least four months during their first foreign-going voyage, it becomes apparent that they are unsuited to life at sea, they should be given the opportunity of being repatriated at no expense to themselves from the first suitable port of call in which there are consular services of the flag State, or the State of nationality or residence of the young seafarer. Notification of any such repatriation, with the reasons therefor, should be given to the authority which issued the papers enabling the young seafarers concerned to take up seagoing employment. (R.153P6(1)) Regulation .—Seafarer compensation for the ship’s loss or foundering Purpose: To ensure that seafarers are compensated when a ship is lost or has foundered . Seafarers are entitled to adequate compensation in the case of injury, loss or unemployment arising from the ship’s loss or foundering. (modified C.8) Standard A.—Seafarer compensation for the ship’s loss or foundering . Each Member shall make rules ensuring that, in every case of loss or foundering of any ship, the shipowner shall pay to each seafarer on board an indemnity against unemployment resulting from such loss or foundering. (modified C.8A2/1) . The rules referred to in paragraph  of this Standard shall be without prejudice to any other rights a seafarer may have under the national law of the Member concerned for losses or injuries arising from a ship’s loss or foundering.

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Guideline B.—Seafarer compensation for the ship’s loss or foundering Guideline B..—Calculation of indemnity against unemployment . The indemnity against unemployment resulting from a ship’s foundering or loss should be paid for the days during which the seafarer remains in fact unemployed at the same rate as the wages payable under the employment agreement, but the total indemnity payable to any one seafarer may be limited to two months’ wages. (C.8A2/2)

. Each Member should ensure that seafarers have the same legal remedies for recovering such indemnities as they have for recovering arrears of wages earned during the service. (C.8A3) Regulation .—Manning levels Purpose: To ensure that seafarers work on board ships with sufficient personnel for the safe, efficient and secure operation of the ship . Each Member shall require that all ships that fly its flag have a sufficient number of seafarers employed on board to ensure that ships are operated safely, efficiently and with due regard to security under all conditions taking into account concerns about seafarer fatigue and the particular nature and conditions of the voyage. (modified C180A11)

Standard A.—Manning levels . Each Member shall require that all ships that fly its flag have a sufficient number of seafarers on board to ensure that ships are operated safely, efficiently and with due regard to security. Every ship shall be manned by a crew that is adequate, in terms of size and qualifications, to ensure the safety and security of the ship and its personnel, under all operating conditions, in accordance with the minimum safe manning document or an equivalent issued by the competent authority, and to comply with the standards of this Convention. (modified C.180A11/1) . When determining, approving or revising manning levels, the competent authority shall take into account the need to avoid or minimize excessive hours of work to ensure sufficient rest and to limit fatigue, as well as the principles in applicable international instruments (especially those of the International Maritime Organization) on manning levels. (modified C.180A11/2) . When determining manning levels, the competent authority shall take into account all the requirements within Regulation . and Standard A. concerning food and catering. Guideline B.—Manning levels Guideline B..—Dispute settlement . Each Member should maintain, or satisfy itself that there is maintained, efficient machinery for the investigation and settlement of complaints or disputes concerning the manning levels on a ship. . Representatives of shipowners’ and seafarers’ organizations should participate, with or without other persons or authorities, in the operation of such machinery. (R.109P12)



appendix  Regulation .—Career and skill development and opportunities for seafarers’ employment

Purpose: To promote career and skill development and employment opportunities for seafarers . Each Member shall have national policies to promote employment in the maritime sector and to encourage career and skill development and greater employment opportunities for seafarers domiciled in its territory. Standard A.—Career and skill development and employment opportunities for seafarers . Each Member shall have national policies that encourage career and skill development and employment opportunities for seafarers, in order to provide the maritime sector with a stable and competent workforce. (modified C.145A2/1) . The aim of the policies referred to in paragraph  of this Standard shall be to help seafarers strengthen their competencies, qualifications and employment opportunities. . Each Member shall, after consulting the shipowners’ and seafarers’ organizations concerned, establish clear objectives for the vocational guidance, education and training of seafarers whose duties on board ship primarily relate to the safe operation and navigation of the ship, including ongoing training. Guideline B.—Career and skill development and employment opportunities for seafarers Guideline B..—Measures to promote career and skill development and employment opportunities for seafarers . Measures to achieve the objectives set out in Standard A. might include: (a) agreements providing for career development and skills training with a shipowner or an organization of shipowners; or (b) arrangements for promoting employment through the establishment and maintenance of registers or lists, by categories, of qualified seafarers; or (modified C.145A3)

(c) promotion of opportunities, both on board and ashore, for further training and education of seafarers to provide for skill development and portable competencies in order to secure and retain decent work, to improve individual employment prospects and to meet the changing technology and labour market conditions of the maritime industry. Guideline B..—Register of seafarers . Where registers or lists govern the employment of seafarers, these registers or lists should include all occupational categories of seafarers in a manner determined by national law or practice or by collective agreement. (modified C.145A4/1) . Seafarers on such a register or list should have priority of engagement for seafaring. (C.145A4/2) . Seafarers on such a register or list should be required to be available for work in a manner to be determined by national law or practice or by collective agreement. (C.145A4/3)

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. To the extent that national laws or regulations permit, the number of seafarers on such registers or lists should be periodically reviewed so as to achieve levels adapted to the needs of the maritime industry. (C.145A5/1) . When a reduction in the number of seafarers on such a register or list becomes necessary, all appropriate measures should be taken to prevent or minimize detrimental effects on seafarers, account being taken of the economic and social situation of the country concerned. (C.145A5/2) Title . Accommodation, recreational facilities, food and catering Regulation .—Accommodation and recreational facilities Purpose: To ensure that seafarers have decent accommodation and recreational facilities on board . Each Member shall ensure that ships that fly its flag provide and maintain decent accommodations and recreational facilities for seafarers working or living on board, or both, consistent with promoting the seafarers’ health and well-being. . The requirements in the Code implementing this Regulation which relate to ship construction and equipment apply only to ships constructed on or after the date when this Convention comes into force for the Member concerned. For ships constructed before that date, the requirements relating to ship construction and equipment that are set out in the Accommodation of Crews Convention (Revised),  (No. ), and the Accommodation of Crews (Supplementary Provisions) Convention,  (No. ), shall continue to apply to the extent that they were applicable, prior to that date, under the law or practice of the Member concerned. A ship shall be deemed to have been constructed on the date when its keel is laid or when it is at a similar stage of construction. . Unless expressly provided otherwise, any requirement under an amendment to the Code relating to the provision of seafarer accommodation and recreational facilities shall apply only to ships constructed on or after the amendment takes effect for the Member concerned. Standard A.—Accommodation and recreational facilities . Each Member shall adopt laws and regulations requiring that ships that fly its flag: (a) meet minimum standards to ensure that any accommodation for seafarers, working or living on board, or both, is safe, decent and in accordance with the relevant provisions of this Standard; and (b) are inspected to ensure initial and ongoing compliance with those standards. . In developing and applying the laws and regulations to implement this Standard, the competent authority, after consulting the shipowners’ and seafarers’ organizations concerned (modified C.92A3), shall: (a) take into account Regulation . and the associated Code provisions on health and safety protection and accident prevention, in light of the specific needs of seafarers that both live and work on board ship, and (b) give due consideration to the guidance contained in Part B of this Code, . The inspections required under Regulation .. shall be carried out when:



appendix  (a) a ship is registered or re-registered; or (b) the seafarer accommodation on a ship has been substantially altered. (based on C.133A14)

. The competent authority shall pay particular attention to ensuring implementation of the requirements of this Convention relating to: (a) the size of rooms and other accommodation spaces; (b) heating and ventilation; (c) noise and vibration and other ambient factors; (d) sanitary facilities; (e) lighting; and (f) hospital accommodation. . The competent authority of each Member shall require that ships that fly its flag meet the minimum standards for on-board accommodation and recreational facilities that are set out in paragraphs  to  of this Standard. . With respect to general requirements for accommodation: (a) there shall be adequate headroom in all seafarer accommodation; (modified C.133) the minimum permitted headroom in all seafarer accommodation where full and free movement is necessary shall be not less than  centimetres; the competent authority may permit some limited reduction in headroom in any space, or part of any space, in such accommodation where it is satisfied that such reduction: (i) is reasonable; and (ii) will not result in discomfort to the seafarers; (b) the accommodation shall be adequately insulated; (modified C.92A6/3, 5, 6) (c) in ships other than passenger ships, as defined in Regulation (e) and (f) of the International Convention for the Safety of Life at Sea, , as amended (the “SOLAS Convention”), sleeping rooms shall be situated above the load line amidships or aft, except that in exceptional cases, where the size, type or intended service of the ship renders any other location impracticable, sleeping rooms may be located in the fore part of the ship, but in no case forward of the collision bulkhead; (C.92A10/1&2) (d) in passenger ships and in special ships constructed in compliance with the IMO Code of Safety for Special Purpose Ships, , and subsequent versions (hereinafter called “special purpose ships”), the competent authority may, on condition that satisfactory arrangements are made for lighting and ventilation, permit the location of sleeping rooms below the load line, but in no case shall they be located immediately beneath working alleyways; (modified C.92A10/3)

(e) there shall be no direct openings into sleeping rooms from cargo and machinery spaces or from galleys, storerooms, drying rooms or communal sanitary areas; that part of a bulkhead separating such places from sleeping rooms and external bulkheads shall be efficiently constructed of steel or other approved substance and be watertight and gas-tight; (modified C.92A6/2) (f) the materials used to construct internal bulkheads, panelling and sheeting, floors and joinings shall be suitable for the purpose and conducive to ensuring a healthy environment; (C.92A6/4, 7, 8, 9, 11, 12) (g) proper lighting (C.92A9; C133A11) and sufficient drainage shall be provided; and (C.92A6/13)

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(h) accommodation and recreational and catering facilities shall meet the requirements in Regulation ., and the related provisions in the Code, on health and safety protection and accident prevention, with respect to preventing the risk of exposure to hazardous levels of noise and vibration and other ambient factors and chemicals on board ships and to provide an acceptable occupational and on-board living environment for seafarers. (based on R141; C134; C155)

. With respect to requirements for ventilation and heating: (a) sleeping rooms and mess rooms shall be adequately ventilated;

(modified C.92A7/1)

(b) ships, except those regularly engaged in trade where temperate climatic conditions do not require this, (R.140P1) shall be equipped with air conditioning for seafarer accommodation, for any separate radio room and for any centralized machinery control room; (R.140P1) (c) all sanitary spaces shall have ventilation to the open air, independently of any other part of the accommodation; and (C.92A13/8) (d) adequate heat through an appropriate heating system shall be provided, except in ships exclusively on voyages in tropical climates. (C.92A8/1) . With respect to requirements for lighting, subject to such special arrangements as may be permitted in passenger ships, sleeping rooms and mess rooms shall be lit by natural light and provided with adequate artificial light. (C.133A11/2) . When sleeping accommodation on board ships is required, the following requirements for sleeping rooms apply: (a) in ships other than passenger ships an individual sleeping room shall be provided for each seafarer; in the case of ships of less than , gross tonnage or special purpose ships, exemptions from this requirement may be granted by the competent authority after consultation with the shipowners’ and seafarers’ organizations concerned; (based on C.133A5); (b) separate sleeping rooms shall be provided for men and for women; (c) sleeping rooms shall be of adequate size (C.133A11/1) and properly equipped so as to ensure reasonable comfort and to facilitate tidiness; (C.92A10/21) (d) a separate berth for each seafarer shall in all circumstances be provided; (modified C.92A10/12)

(e) the minimum inside dimensions of a berth shall be at least  centimetres by  centimetres; (C.133A5/10) (f) in single berth seafarers’ sleeping rooms the floor area shall not be less than: (i) . square metres in ships of less than , gross tonnage; (ii) . square metres in ships of , gross tonnage or over but less than , gross tonnage; (iii)  square metres in ships of , gross tonnage or over; (g) however, in order to provide single berth sleeping rooms on ships of less than , gross tonnage, passenger ships and special purpose ships, the competent authority may allow a reduced floor area; (h) in ships of less than , gross tonnage other than passenger ships and special purpose ships sleeping rooms may be occupied by a maximum of two seafarers; the floor area of such sleeping rooms shall not be less than  square metres; (i) on passenger ships and special purpose ships the floor area of sleeping



appendix  rooms for seafarers not performing the duties of ships’ officers shall not be less than: (i) . square metres in rooms accommodating two persons; (ii) . square metres in rooms accommodating three persons; (iii) . square metres in rooms accommodating four persons; (modified C.133A5/3)

(j) on special purpose ships sleeping rooms may accommodate more than four persons, the floor area of such sleeping rooms shall not be less than . square metres per person; (k) on ships other than passenger ships and special purpose ships sleeping rooms for seafarers who perform the duties of ships’ officers, where no private sitting room or day room is provided, the floor area per person shall not be less than: (i) . square metres in ships of less than , gross tonnage; (ii) . square metres in ships of , gross tonnage or over but less than , gross tonnage; (iii)  square metres in ships of , gross tonnage or over; (modified C.133A5/6)

(l) on passenger ships and special purpose ships the floor area for seafarers performing the duties of ships’ officers where no private sitting room or day room is provided, the floor area per person for junior officers shall not be less than . square metres and for senior officers not less than . square metres; junior officers are understood to be at the operational level, and senior officers at the management level; (m) the master, the chief engineer and the chief navigating officer shall have, in addition to their sleeping room, an adjoining sitting room, day room or equivalent additional space; (modified C.133A5/8) ships of less than , gross tonnage may be exempted by the competent authority from this requirement after consultation with the shipowners’ and seafarers’ organizations concerned; (n) for each occupant, the furniture shall include a clothes locker of ample space (minimum  litres) and a drawer or equivalent space of not less than  litres; (modified C.92A10/25) if the drawer is incorporated in the clothes locker then the combined minimum volume of the clothes locker shall be  litres; it shall be fitted with a shelf and be able to be locked by the occupant so as to ensure privacy; (modified C.92A10/22) (o) each sleeping room shall be provided with a table or desk, which may be of the fixed, drop-leaf or slide-out type, and with comfortable seating accommodation as necessary. (C.92A10/23) . With respect to requirements for mess rooms: (a) mess rooms shall be located apart from the sleeping rooms and as close as practicable to the galley; (C.92A11/8) ships of less than , gross tonnage may be exempted by the competent authority from this requirement after consultation with the shipowners’ and seafarers’ organizations concerned; and (b) mess rooms shall be of adequate size and comfort and properly furnished and equipped (including ongoing facilities for refreshment), taking account of the number of seafarers likely to use them at any one time; (modified C.133A6/

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1&2, A11/9&10) provision shall be made for separate or common mess room facilities as appropriate. . With respect to requirements for sanitary facilities: (a) all seafarers shall have convenient access on the ship to sanitary facilities meeting minimum standards of health and hygiene and reasonable standards of comfort, with separate sanitary facilities being provided for men and for women; (based on C.92A13/1; C.133A8/1) (b) there shall be sanitary facilities within easy access of the navigating bridge and the machinery space or near the engine room control centre; (modified C.133A9/1) ships of less than , gross tonnage may be exempted by the competent authority from this requirement after consultation with the shipowners’ and seafarers’ organizations concerned; (c) in all ships a minimum of one toilet, one wash basin and one tub or shower or both for every six persons or less who do not have personal facilities shall be provided at a convenient location; (modified C.133A8/1) (d) with the exception of passenger ships, each sleeping room shall be provided with a washbasin having hot and cold running fresh water, except where such a washbasin is situated in the private bathroom provided; (modified C.133A8/5)

(e) in passenger ships normally engaged on voyages of not more than four hours’ duration, consideration may be given by the competent authority to special arrangements or to a reduction in the number of facilities required; (modified C.92A13/5) and (f) hot and cold running fresh water shall be available in all wash places. (modified C.92A13/6)

. With respect to requirements for hospital accommodation, ships carrying  or more seafarers and engaged in a voyage of more than three days’ duration shall provide separate hospital accommodation to be used exclusively for medical purposes; (modified C.164A11/9) the competent authority may relax this requirement for ships engaged in coastal trade; (C.164A11/1) in approving on-board hospital accommodation, the competent authority shall ensure that the accommodation will, in all weathers, be easy of access, provide comfortable housing for the occupants and be conducive to their receiving prompt and proper attention; . Appropriately situated and furnished laundry facilities shall be available. (C.133A8/6) . All ships shall have a space or spaces on open deck to which the seafarers can have access when off duty, which are of adequate area having regard to the size of the ship and of the number of seafarers on board. (modified C.92A12/1) . All ships shall be provided with separate offices or a common ship’s office for use by deck and engine departments; ships of less than , gross tonnage may be exempted by the competent authority from this requirement after consultation with the shipowners’ and seafarers’ organizations concerned. (modified C.92A15/2) . Ships regularly trading to mosquito-infested ports shall be fitted with appropriate devices as required by the competent authority. (C.92A15/3) . Appropriate seafarers’ recreational facilities, amenities and services, as adapted to meet the special needs of seafarers who must live and work on ships, shall be provided on board for the benefit of all seafarers, taking into account Regulation . and the associated Code provisions on health and safety protection and accident prevention.



appendix 

. The competent authority shall require frequent inspections to be carried out on board ships, by or under the authority of the master, to ensure that seafarer accommodation is clean, decently habitable and maintained in a good state of repair. The results of each such inspection shall be recorded and be available for review. (modified C.92A17/2) . In the case of ships where there is need to take account, without discrimination, of the interests of seafarers having differing and distinctive religious and social practices, the competent authority may, after consultation with the shipowners’ and seafarers’ organizations concerned, permit fairly applied variations in respect of this Standard on condition that such variations do not result in overall facilities less favourable than those which would result from the application of this Standard. (modified C.133A12) . Each Member may, after consultation with the shipowners’ and seafarers’ organizations concerned, exempt ships of less than  gross tonnage where it is reasonable to do so, taking account of the size of the ship and the number of persons on boardin relation to the requirements of the following provisions of this Standard: (a) paragraphs (b), (d) and ; and (b) paragraph (f) and (h) to (l) inclusive, with respect to floor area only. . Any exemptions with respect to the requirements of this Standard may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. Guideline B.—Accommodation and recreational facilities Guideline B..—Design and construction . External bulkheads of sleeping rooms and mess rooms should be adequately insulated. All machinery casings and all boundary bulkheads of galleys and other spaces in which heat is produced should be adequately insulated where there is a possibility of resulting heat effects in adjoining accommodation or passageways. Measures should also be taken to provide protection from heat effects of steam or hot-water service pipes or both. (C.92A6/3) . Sleeping rooms, mess rooms, recreation rooms and alleyways in the accommodation space should be adequately insulated to prevent condensation or overheating. (C.92A6/5) . The bulkhead surfaces and deckheads should be of material with a surface easily kept clean. No form of construction likely to harbour vermin should be used. (C.92A6/7)

. The bulkhead surfaces and deckheads in sleeping rooms and mess rooms should be capable of being easily kept clean and light in colour with a durable, non-toxic finish. (C.92A6/9) . The decks in all seafarer accommodation should be of approved material and construction and should provide a non-slip surface impervious to damp and easily kept clean. (C.92A6/11) . Where the floorings are made of composite materials, the joints with the sides should be profiled to avoid crevices. (C.92A6/12)

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Guideline B..—Ventilation . The system of ventilation for sleeping rooms and mess rooms should be controlled so as to maintain the air in a satisfactory condition and to ensure a sufficiency of air movement in all conditions of weather and climate. (C.92A7/2) . Air conditioning systems, whether of a centralized or individual unit type, should be designed to: (a) maintain the air at a satisfactory temperature and relative humidity as compared to outside air conditions, ensure a sufficiency of air changes in all air-conditioned spaces, take account of the particular characteristics of operations at sea and not produce excessive noises or vibrations; and (R.140P3) (b) facilitate easy cleaning and disinfection to prevent or control the spread of disease. . Power for the operation of the air conditioning and other aids to ventilation required by the preceding paragraphs of this Guideline should be available at all times when seafarers are living or working on board and conditions so require. However, this power need not be provided from an emergency source. (C.92A7/5) Guideline B..—Heating . The system of heating the seafarer accommodation should be in operation at all times when seafarers are living or working on board and conditions require its use. (C.92A8/2) . In all ships in which a heating system is required, the heating should be by means of hot water, warm air, electricity, steam or equivalent. (C.92A8/3). However, within the accommodation area, steam should not be used as a medium for heat transmission. The heating system should be capable of maintaining the temperature in seafarer accommodation at a satisfactory level under normal conditions of weather and climate likely to be met within the trade in which the ship is engaged. The competent authority should prescribe the standard to be provided. (C.92A8/5) . Radiators and other heating apparatus should be placed and, where necessary, shielded so as to avoid risk of fire or danger or discomfort to the occupants. (C.92A8/6)

Guideline B..—Lighting . In all ships, electric light should be provided in the seafarer accommodation. If there are not two independent sources of electricity for lighting, additional lighting should be provided by properly constructed lamps or lighting apparatus for emergency use. (C.133A11/3) . In sleeping rooms an electric reading lamp should be installed at the head of each berth. (C.133A11/4) . Suitable standards of natural and artificial lighting should be fixed by the competent authority. (C.133A11/5) Guideline B..—Sleeping rooms . There should be adequate berth arrangements on board making it as comfortable as possible for the seafarer and any partner who may accompany the seafarer.



appendix 

. Where the size of the ship, the activity in which it is to be engaged and its layout make it reasonable and practicable, sleeping rooms should be planned and equipped with a private bathroom, including a toilet, so as to provide reasonable comfort for the occupants and to facilitate tidiness. (modified C.92A10/21) . As far as practicable, sleeping rooms of seafarers should be so arranged that watches are separated and that no seafarers working during the day share a room with watchkeepers. (C.92A10/28) . In the case of seafarers performing the duty of petty officers there should be no more than two persons per sleeping room. (C.133A5/5) . Consideration should be given to extending the facility referred to in Standard A., paragraph (m), to the second engineer officer when practicable. . Space occupied by berths and lockers, chests of drawers and seats should be included in the measurement of the floor area. Small or irregularly shaped spaces which do not add effectively to the space available for free movement and cannot be used for installing furniture should be excluded. (C.133A5/9) . Berths should not be arranged in tiers of more than two; in the case of berths placed along the ship’s side, there should be only a single tier where a sidelight is situated above a berth. (C.92A10/14) . The lower berth in a double tier should be not less than  centimetres above the floor; the upper berth should be placed approximately midway between the bottom of the lower berth and the lower side of the deckhead beams. (C.92A10/15) . The framework and the lee-board, if any, of a berth should be of approved material, hard, smooth, and not likely to corrode or to harbour vermin. (C.92A10/17) . If tubular frames are used for the construction of berths, they should be completely sealed and without perforations which would give access to vermin. (C.92A10/18)

. Each berth should be fitted with a comfortable mattress with cushioning bottom or a combined cushioning mattress, including a spring bottom or a spring mattress. The mattress and cushioning material used should be made of approved material. Stuffing of material likely to harbour vermin should not be used. (modified C.92A10/19) . When one berth is placed over another, a dust-proof bottom should be fitted beneath the bottom mattress or spring bottom of the upper berth. (modified C.92A10/20) . The furniture should be of smooth, hard material not liable to warp or corrode. (C.92A10/24)

. Sleeping rooms should be fitted with curtains or equivalent for the sidelights. (C.92A10/26)

. Sleeping rooms should be fitted with a mirror, small cabinets for toilet requisites, a book rack and a sufficient number of coat hooks. (C.92A10/27) Guideline B..—Mess rooms . Mess room facilities may be either common or separate. The decision in this respect should be taken after consultation with seafarers’ and shipowners’ representatives and subject to the approval of the competent authority. Account should be taken of factors such as the size of the ship and the distinctive cultural, religious and social needs of the seafarers. (based on C.92A16) . Where separate mess room facilities are to be provided to seafarers, then separate mess rooms should be provided for:

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. . .

.



(a) master and officers; and (b) petty officers and other seafarers. (modified C.92A11/2) On ships other than passenger ships, the floor area of mess rooms for seafarers should be not less than . square metres per person of the planned seating capacity. (modified C.133A6/1) In all ships mess rooms should be equipped with tables and appropriate seats, fixed or movable, sufficient to accommodate the greatest number of seafarers likely to use them at any one time. (C.133A6/2) There should be available at all times when seafarers are on board: (a) a refrigerator, which should be conveniently situated and of sufficient capacity for the number of persons using the mess room or mess rooms; (b) facilities for hot beverages; and (c) cool water facilities. (modified C.133A6/3) Where available pantries are not accessible to mess rooms, adequate lockers for mess utensils and proper facilities for washing utensils should be provided. (C.92A11/9)

. The tops of tables and seats should be of damp-resistant material. (modified C.92A11/10) Guideline B..—Sanitary accommodation . Washbasins and tub baths should be of adequate size and constructed of approved material with a smooth surface not liable to crack, flake or corrode. (C.92A13/7) . All toilets should be of an approved pattern and provided with an ample flush of wateror with some other suitable flushing means, such as air, which are, available at all times and independently controllable. (C.92A13/9) . Sanitary accommodation intended for the use of more than one person should comply with the following: (a) floors should be of approved durable material, impervious to damp, and should be properly drained; (b) bulkheads should be of steel or other approved material and should be watertight up to at least  centimetres above the level of the deck; (c) the accommodation should be sufficiently lit, heated and ventilated; (d) toilets should be situated convenient to, but separate from, sleeping rooms and wash rooms, without direct access from the sleeping rooms or from a passage between sleeping rooms and toilets to which there is no other access; this requirement does not apply where a toilet is located in a compartment between two sleeping rooms having a total of not more than four seafarers; and (e) where there is more than one toilet in a compartment, they should be sufficiently screened to ensure privacy. (C.92A13/11) . The laundry facilities provided for seafarers’ use should include: (a) washing machines; (b) drying machines or adequately heated and ventilated drying rooms; and (c) irons and ironing boards or their equivalent. (C.133A8/7) Guideline B..—Hospital accommodation . The hospital accommodation should be designed so as to facilitate consultation and the giving of medical first aid and to help prevent the spread of infectious diseases. (modified C.164A11/5)



appendix 

. The arrangement of the entrance, berths, lighting, ventilation, heating and water supply should be designed to ensure the comfort and facilitate the treatment of the occupants. (C.164A11/6) . The number of hospital berths required should be prescribed by the competent authority. (C.164A11/7) . Sanitary accommodation should be provided for the exclusive use of the occupants of the hospital accommodation, either as part of the accommodation or in close proximity thereto. (C.164A11/8) Such sanitary accommodation should comprise a minimum of one toilet, one washbasin and one tub or shower. Guideline B..—Other facilities . Where separate facilities for engine department personnel to change their clothes are provided, they should be: (a) located outside the machinery space but with easy access to it; and (b) fitted with individual clothes lockers as well as with tubs or showers or both and washbasins having hot and cold running fresh water. (C.133A9/2) Guideline B..—Bedding, mess utensils and miscellaneous provisions . Each Member should consider applying the following principles: (a) clean bedding and mess utensils should be supplied by the shipowner to all seafarers for use on board during service on the ship, and such seafarers should be responsible for their return at times specified by the master and on completion of service in the ship; (b) bedding should be of good quality, and plates, cups and other mess utensils should be of approved material which can be easily cleaned; and (R.78P2) (c) towels, soap and toilet paper for all seafarers should be provided by the shipowner. (R.78P3) Guideline B..—Recreational facilities, mail and ship visit arrangements . Recreational facilities and services should be reviewed frequently to ensure that they are appropriate in the light of changes in the needs of seafarers resulting from technical, operational and other developments in the shipping industry. (modified C.163A5)

. Furnishings for recreational facilities should as a minimum include a bookcase and facilities for reading, writing and, where practicable, games. (C.133A7/2) . In connection with the planning of recreation facilities, the competent authority should give consideration to the provision of a canteen. (C.133A7/4) . Consideration should also be given to including the following facilities at no cost to the seafarer, where practicable: (based on R.173P23) (a) a smoking room; (b) television viewing and the reception of radio broadcasts; (c) showing of films, the stock of which should be adequate for the duration of the voyage and, where necessary, changed at reasonable intervals; (d) sports equipment including exercise equipment, table games and deck games; (e) where possible, facilities for swimming; (f) a library containing vocational and other books, the stock of which should

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

be adequate for the duration of the voyage and changed at reasonable intervals; (g) facilities for recreational handicrafts; (h) electronic equipment such as a radio, television, video recorders, DVD/CD player, personal computer and software and cassette recorder/player; (i) where appropriate, the provision of bars on board for seafarers unless these are contrary to national, religious or social customs; and (R.173P23) (j) reasonable access to ship-to-shore telephone communications, and email and Internet facilities, where available, with any charges for the use of these services being reasonable in amount. . Every effort should be given to ensuring that the forwarding of seafarers’ mail is as reliable and expeditious as possible. Efforts should also be considered for avoiding seafarers being required to pay additional postage when mail has to be readdressed owing to circumstances beyond their control. (R.173P25) . Measures should be considered to ensure, subject to any applicable national or international laws or regulations, that whenever possible and reasonable seafarers are expeditiously granted permission to have their partners, relatives and friends as visitors on board their ship when in port. Such measures should meet any concerns for security clearances. (R138P20; R173P26/1) . Consideration should be given to the possibility of allowing seafarers to be accompanied by their partners on occasional voyages where this is practicable and reasonable. Such partners should carry adequate insurance cover against accident and illness; the shipowners should give every assistance to the seafarer to effect such insurance. (R.173P26/2) Guideline B..—Prevention of noise and vibration . Accommodation and recreational and catering facilities should be located as far as practicable from the engines, steering gear rooms, deck winches, ventilation, heating and air-conditioning equipment and other noisy machinery and apparatus. (modified R.141P3) . Acoustic insulation or other appropriate sound-absorbing materials should be used in the construction and finishing of bulkheads, deckheads and decks within the sound-producing spaces as well as self-closing noise-isolating doors for machinery spaces. . Engine rooms and other machinery spaces should be provided, wherever practicable, with soundproof centralized control rooms for engine-room personnel. Working spaces, such as the machine shop, should be insulated, as far as practicable, from the general engine-room noise and measures should be taken to reduce noise in the operation of machinery. (R.141P3) . The limits for noise levels for working and living spaces should be in conformity with the ILO international guidelines on exposure levels, including those in the ILO code of practice entitled Ambient factors in the workplace, , and, where applicable, the specific protection recommended by the International Maritime Organization, and with any subsequent amending and supplementary instruments for acceptable noise levels on board ships. A copy of the applicable instruments in English or the working language of the ship should be carried on board and should be accessible to seafarers. . No accommodation or recreational or catering facilities should be exposed to excessive vibration.



appendix  Regulation .—Food and catering

Purpose: To ensure that seafarers have access to good quality food and drinking water provided under regulated hygienic conditions . Each Member shall ensure that ships that fly its flag carry on board and serve food and drinking water of appropriate quality, nutritional value and quantity that adequately covers the requirements of the ship and takes into account the differing cultural and religious backgrounds. (modified C68A5) . Seafarers on board a ship shall be provided with food free of charge during the period of engagement. . Seafarers employed as ships’ cooks with responsibility for food preparation must be trained and qualified for their position on board ship. (modified C.69A3) Standard A.—Food and catering . Each Member shall adopt laws and regulations or other measures to provide minimum standards for the quantity and quality of food and drinking water and for the catering standards that apply to meals provided to seafarers on ships that fly its flag and shall undertake educational activities to promote awareness and implementation of the standards referred to in this paragraph. (modified C68A5) . Each Member shall ensure that ships that fly its flag meet the following minimum standards: (a) food and drinking water supplies, having regard to the number of seafarers on board, their religious requirements and cultural practices as they pertain to food, and the duration and nature of the voyage, shall be suitable in respect of quantity, nutritional value, quality and variety; (b) the organization and equipment of the catering department shall be such as to permit the provision to the seafarers of adequate, varied and nutritious meals prepared and served in hygienic conditions; and (C.68A5/2) (c) catering staff shall be properly trained or instructed for their positions. (C.68A6)

. Shipowners shall ensure that seafarers who are engaged as ships’ cooks are trained, qualified and found competent for the position in accordance with requirements set out in the laws and regulations of the Member concerned. (modified C.69A3/4)

. The requirements under paragraph  of this Standard shall include a completion of a training course approved or recognized by the competent authority, which covers practical cookery, food and personal hygiene, food storage, stock control, and environmental protection and catering health and safety. . On ships operating with a prescribed manning of less than ten which, by virtue of the size of the crew or the trading pattern, may not be required by the competent authority to carry a fully qualified cook, anyone processing food in the galley shall be trained or instructed in areas including food and personal hygiene as well as handling ad storage of food on board ship. . In circumstances of exceptional necessity, the competent authority may issue a dispensation permitting a non-fully qualified cook to serve in a specified ship for a specified limited period, until the next convenient port of call or for a period not exceeding one month, provided that the person to whom the dispensation is issued is trained or instructed in areas including food and personal hygiene as well as handling and storage of food on board ship.

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. In accordance with the ongoing compliance procedures under Title , the competent authority shall require that frequent documented inspections be carried out on board ships, by or under the authority of the master, with respect to: (a) supplies of food and drinking water; (b) all spaces and equipment used for the storage and handling of food and drinking water; and (c) galley and other equipment for the preparation and service of meals. . No seafarer under the age of  shall be employed or engaged or work as a ship’s cook. (modified C.69) Guideline B.—Food and catering Guideline B..—Inspection, education, research and publication . The competent authority should, in cooperation with other relevant agencies and organizations, collect up-to-date information on nutrition and on methods of purchasing, storing, preserving, cooking and serving food, with special reference to the requirements of catering on board a ship. (C.68A12/1) This information should be made available, free of charge or at reasonable cost, to manufacturers of and traders in ships’ food supplies and equipment, masters, stewards and cooks, and to shipowners’ and seafarers’ organizations concerned. Appropriate forms of publicity, such as manuals, brochures, posters, charts or advertisements in trade journals, should be used for this purpose. (C.68A12/2) . The competent authority should issue recommendations to avoid wastage of food, facilitate the maintenance of a proper standard of hygiene, and ensure the maximum practicable convenience in working arrangements. . The competent authority should work with relevant agencies and organizations to develop educational materials and on-board information, concerning methods of ensuring proper food supply and catering services. (C.68A2) . The competent authority should work in close cooperation with the shipowners’ and seafarers’ organizations concerned and with national or local authorities dealing with questions of food and health, and may where necessary utilize the services of such authorities. (C.68A3/1) Guideline B..—Ships’ cooks . Seafarers should only be qualified as ships’ cooks if they have: (a) served at sea for a minimum period to be prescribed by the competent authority, which could be varied to take into account existing relevant qualifications or experience; (b) passed an examination prescribed by the competent authority or passed an equivalent examination at an approved training course for cooks. (modified C.69A4/2)

. The prescribed examination may be conducted and certificates granted either directly by the competent authority or, subject to its control, by an approved school for the training of cooks. (C.69A4/4) . The competent authority should provide for the recognition, where appropriate, of certificates of qualification as ships’ cooks issued by other Members, which have ratified this Convention or the Certification of Ships’ Cooks Convention,  (No. ), or other approved body. (modified C.69A6)



appendix  Title . Health protection, medical care, welfare and social security protection Regulation .—Medical care on board ship and ashore

Purpose: To protect the health of seafarers and ensure their prompt access to medical care on board ship and ashore . Each Member shall ensure that all seafarers on ships that fly its flag are covered by adequate measures for the protection of their health and that they have access to prompt and adequate medical care whilst working on board. (modified C164A4) . The protection and care under paragraph  of this Regulation shall, in principle, be provided at no cost to the seafarers. (modified C164A4/d) . Each Member shall ensure that seafarers on board ships in its territory who are in need of immediate medical care are given access to the Member’s medical facilities on shore. (modified C164A4 & A13) . The requirements for on-board health protection and medical care set out in the Code include standards for measures aimed at providing seafarers with health protection and medical care as comparable as possible to that which is generally available to workers ashore. (modified C.164 A4/b) Standard A.—Medical care on board ship and ashore . Each Member shall ensure that measures providing for health protection and medical care, including essential dental care, for seafarers working on board a ship that flies its flag are adopted which: (a) ensure the application to seafarers of any general provisions on occupational health protection and medical care relevant to their duties, as well as of special provisions specific to work on board ship; (modified C.164A4/a) (b) ensure that seafarers are given health protection and medical care as comparable as possible to that which is generally available to workers ashore, including prompt access to the necessary medicines, medical equipment and facilities for diagnosis and treatment and to medical information and expertise; (modified C.164A4/b) (c) give seafarers the right to visit a qualified medical doctor or dentist without delay in ports of call, where practicable; (modified C.164A4/c) (d) ensure that, to the extent consistent with the Member’s national law and practice, medical care and health protection services while a seafarer is on board ship or landed in a foreign port are provided free of charge to seafarers; and (modified C.164A4/d) (e) are not limited to treatment of sick or injured seafarers but include measures of a preventive character such as health promotion and health education programmes. (modified C.164A4/e) . The competent authority shall adopt a standard medical report form for use by the ships’ masters and relevant onshore and on-board medical personnel. The form, when completed, and its contents shall be kept confidential and shall only be used to facilitate the treatment of seafarers. (modified C.164A12). . Each Member shall adopt laws and regulations establishing requirements for onboard hospital and medical care facilities and equipment and training on ships that fly its flag.

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. National laws and regulations shall as a minimum provide for the following requirements: (a) all ships shall carry a medicine chest, medical equipment and a medical guide, the specifics of which shall be prescribed and subject to regular inspection by the competent authority; the national requirements shall take into account the type of ship, the number of persons on board and the nature, destination and duration of voyages and relevant national and international recommended medical standards; (modified C.164A5/1/2/3/4/& A6/1) (b) ships carrying  or more persons and ordinarily engaged on international voyages of more than three days’ duration shall carry a qualified medical doctor who is responsible for providing medical care; (C.164A8/1) national laws or regulations shall also specify which other ships shall be required to carry a medical doctor, taking into account, inter alia, such factors as the duration, nature and conditions of the voyage and the number of seafarers on board; (C.164A8/2)

(c) ships which do not carry a medical doctor shall be required to have either at least one seafarer on board who is in charge of medical care and administering medicine as part of their regular duties or at least one seafarer on board competent to provide medical first aid; (modified C.164A9/1) persons in charge of medical care on board who are not medical doctors shall have satisfactorily completed training in medical care that meets the requirements of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, , as amended (“STCW”); seafarers designated to provide medical first aid shall have satisfactorily completed training in medical first aid that meets the requirements of STCW; national laws or regulations shall specify the level of approved training required taking into account, inter alia, such factors as the duration, nature and conditions of the voyage and the number of seafarers on board; and (d) the competent authority shall ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available  hours a day; (C.164A7/1) medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, shall be available free of charge to all ships irrespective of the flag that they fly. (C.164A7/2) Guideline B.—Medical care on board ship and ashore Guideline B..—Provision of medical care . When determining the level of medical training to be provided on board ships that are not required to carry a medical doctor, the competent authority should require that: (a) ships which ordinarily are capable of reaching qualified medical care and medical facilities within eight hours should have at least one designated seafarer with the approved medical first-aid training required by STCW which will enable such persons to take immediate, effective action in case of accidents or illnesses likely to occur on board a ship and to make use of medical advice by radio or satellite communication; and



.

.

.

.

.

appendix  (b) all other ships should have at least one designated seafarer with approved training in medical care required by STCW, including practical training and training in life-saving techniques such as intravenous therapy, which will enable the persons concerned to participate effectively in coordinated schemes for medical assistance to ships at sea, and to provide the sick or injured with a satisfactory standard of medical care during the period they are likely to remain on board. (modified C.164A9/2) The training referred to in paragraph  of this Guideline should be based on the contents of the most recent editions of the International Medical Guide for Ships, the Medical First Aid Guide for Use in Accidents Involving Dangerous Goods, the Document for Guidance—An International Maritime Training Guide, and the medical section of the International Code of Signals as well as similar national guides. (C.164A9/3) Persons referred to in paragraph  of this Guideline and such other seafarers as may be required by the competent authority should undergo, at approximately five-year intervals, refresher courses to enable them to maintain and increase their knowledge and skills and to keep up-to-date with new developments. (C.164A9) The medicine chest and its contents, as well as the medical equipment and medical guide carried on board, should be properly maintained and inspected at regular intervals, not exceeding  months, by responsible persons designated by the competent authority, who should ensure that the labelling, expiry dates and conditions of storage of all medicines and directions for their use are checked and all equipment functioning as required. (modified C.164A5/4,5) In adopting or reviewing the ship’s medical guide used nationally, and in determining the contents of the medicine chest and medical equipment, the competent authority should take into account international recommendations in this field, including the latest edition of the International Medical Guide for Ships, and other guides mentioned in paragraph  of this Guideline. (modified C.164A6/3) Where a cargo which is classified dangerous has not been included in the most recent edition of the Medical First Aid Guide for Use in Accidents Involving Dangerous Goods, the necessary information on the nature of the substances, the risks involved, the necessary personal protective devices, the relevant medical procedures and specific antidotes should be made available to the seafarers. Such specific antidotes and personal protective devices should be on board whenever dangerous goods are carried. (C.164A5/6) This information should be integrated with the ship’s policies and programmes on occupational safety and health described in Regulation . and related Code provisions. All ships should carry a complete and up-to-date list of radio stations through which medical advice can be obtained; (C.164A7/3a) and, if equipped with a system of satellite communication, carry an up-to-date and complete list of coast earth stations through which medical advice can be obtained. (C.164A7/3b) Seafarers with responsibility for medical care or medical first aid on board should be instructed in the use of the ship’s medical guide and the medical section of the most recent edition of the International Code of Signals so as to enable them to understand the type of information needed by the advising doctor as well as the advice received. (modified C.164A7/4)

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Guideline B..—Medical report form . The standard medical report form for seafarers required under Part A of this Code should be designed to facilitate the exchange of medical and related information concerning individual seafarers between ship and shore in cases of illness or injury. (modified C.164A12/3) Guideline B..—Medical care ashore . Shore-based medical facilities for treating seafarers should be adequate for the purposes. The doctors, dentists and other medical personnel should be properly qualified. . Measures should be taken to ensure that seafarers have access when in port to: (a) outpatient treatment for sickness and injury; (b) hospitalization when necessary; and (c) facilities for dental treatment, especially in cases of emergency. (R.173P17) . Suitable measures should be taken to facilitate the treatment of seafarers suffering from disease. In particular, seafarers should be promptly admitted to clinics and hospitals ashore, without difficulty and irrespective of nationality or religious belief, and, whenever possible, arrangements should be made to ensure, when necessary, continuation of treatment to supplement the medical facilities available to them. (R.48P8) Guideline B..—Medical assistance to other ships and international cooperation . Each Member should give due consideration to participating in international cooperation in the area of assistance, programmes and research in health protection and medical care. Such cooperation might cover: (modified C164A13) (a) developing and coordinating search and rescue efforts and arranging prompt medical help and evacuation at sea for the seriously ill or injured on board a ship through such means as periodic ship position reporting systems, rescue coordination centres and emergency helicopter services, in conformity with the International Convention on Maritime Search and Rescue, , as amended, and the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual; (b) making optimum use of all ships carrying a doctor and stationing ships at sea which can provide hospital and rescue facilities; (c) compiling and maintaining an international list of doctors and medical care facilities available worldwide to provide emergency medical care to seafarers; (d) landing seafarers ashore for emergency treatment; (e) repatriating seafarers hospitalized abroad as soon as practicable, in accordance with the medical advice of the doctors responsible for the case, which takes into account the seafarer’s wishes and needs; (f) arranging personal assistance for seafarers during repatriation, in accordance with the medical advice of the doctors responsible for the case, which takes into account the seafarer’s wishes and needs; (g) endeavouring to set up health centres for seafarers to:



appendix 

(h)

(i) (j) (k)

(i) conduct research on the health status, medical treatment and preventive health care of seafarers; and (ii) train medical and health service staff in maritime medicine; collecting and evaluating statistics concerning occupational accidents, diseases and fatalities of seafarers and integrating and harmonizing the statistics with any existing national system of statistics on occupational accidents and diseases covering other categories of workers; (modified C164A13) organizing international exchanges of technical information, training material and personnel, as well as international training courses, seminars and working groups; providing all seafarers with special curative and preventive health and medical services in port, or making available to them general health, medical and rehabilitation services; and arranging for the repatriation of the bodies or ashes of deceased seafarers, in accordance with the wishes of the next of kin and as soon as practicable. (C.164A13/2)

. International cooperation in the field of health protection and medical care for seafarers should be based on bilateral or multilateral agreements or consultations among Members. (C.164A13/3) Guideline B..—Dependants of seafarers . Each Member should adopt measures to secure proper and sufficient medical care for the dependants of seafarers domiciled in its territory pending the development of a medical care service which would include within its scope workers generally and their dependants where such services do not exist and should inform the International Labour Office concerning the measures taken for this purpose. Regulation .—Shipowners’ liability Purpose: To ensure that seafarers are protected from the financial consequences of sickness, injury or death occurring in connection with their employment . Each Member shall ensure that measures, in accordance with the Code, are in place on ships that fly its flag to provide seafarers employed on the ships with a right to material assistance and support from the shipowner with respect to the financial consequences of sickness, injury or death occurring while they are serving under a seafarers’ employment agreement or arising from their employment under such agreement. (modified C55) . This Regulation does not affect any other legal remedies that a seafarer may seek. Standard A.—Shipowners’ liability . Each Member shall adopt laws and regulations requiring that shipowners of ships that fly its flag are responsible for health protection and medical care of all seafarers working on board the ships in accordance with the following minimum standards: (a) shipowners shall be liable to bear the costs for seafarers working on their ships in respect of sickness and injury of the seafarers occurring between the date of commencing duty and the date upon which they are deemed

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duly repatriated, or arising from their employment between those dates; (modified C.55A2)

(b) shipowners shall provide financial security to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard as set out in national law, the seafarers’ employment agreement or collective agreement; (c) shipowners shall be liable to defray the expense of medical care, including medical treatment and the supply of the necessary medicines and therapeutic appliances, and board and lodging away from home until the sick or injured seafarer has recovered, or until the sickness or incapacity has been declared of a permanent character; (modified C.55A3; A4; A5) and (d) shipowners shall be liable to pay the cost of burial expenses in the case of death occurring on board or ashore during the period of engagement. (modified C.55A7)

. National laws or regulations may limit the liability of the shipowner to defray the expense of medical care and board and lodging to a period which shall not be less than  weeks from the day of the injury or the commencement of the sickness. (modified C.55A4/2)

. Where the sickness or injury results in incapacity for work the shipowner shall be liable: (a) to pay full wages as long as the sick or injured seafarers remain on board (C.55A5/1) or until the seafarers have been repatriated in accordance with this Convention; (C.165A14) and (b) to pay wages in whole or in part as prescribed by national laws or regulations or as provided for in collective agreements from the time when the seafarers are repatriated or landed until their recovery or, if earlier, until they are entitled to cash benefits under the legislation of the Member concerned. (modified C.55A5/1, C.165A15)

. National laws or regulations may limit the liability of the shipowner to pay wages in whole or in part in respect of a seafarer no longer on board to a period which shall not be less than  weeks from the day of the injury or the commencement of the sickness. (C.55A5/2, C.165A14&15) . National laws or regulations may exclude the shipowner from liability in respect of: (a) injury incurred otherwise than in the service of the ship; (b) injury or sickness due to the wilful misconduct of the sick, injured or deceased seafarer; and (c) sickness or infirmity intentionally concealed when the engagement is entered into. (C.55A2) . National laws or regulations may exempt the shipowner from liability to defray the expense of medical care and board and lodging and burial expenses in so far as such liability is assumed by the public authorities. (C.55A4 and 10) . Shipowners or their representatives shall take measures for safeguarding property left on board by sick, injured or deceased seafarers and for returning it to them or to their next of kin. (modified C.55A8)



appendix  Guideline B.—Shipowners’ liability

. The payment of full wages required by Standard A., paragraph (a), may be exclusive of bonuses. (C.165A14 and 15) . National laws or regulations may provide that a shipowner shall cease to be liable to bear the costs of a sick or injured seafarer from the time at which that seafarer can claim medical benefits under a scheme of compulsory sickness insurance, compulsory accident insurance or workers’ compensation for accidents. (C.55A4/3, A5/3)

. National laws or regulations may provide that burial expenses paid by the shipowner shall be reimbursed by an insurance institution in cases in which funeral benefit is payable in respect of the deceased seafarer under laws or regulations relating to social insurance or workers’ compensation. (C.55A7/2) Regulation .—Health and safety protection and accident prevention Purpose: To ensure that seafarers’ work environment on board ships promotes occupational safety and health . Each Member shall ensure that seafarers on ships that fly its flag are provided with occupational health protection and live, work and train on board ship in a safe and hygienic environment. (based on C.164A3) . Each Member shall develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly its flag, after consultation with representative shipowners’ and seafarers’ organizations and taking into account applicable codes, guidelines and standards recommended by international organizations, national administrations and maritime industry organizations. (based on C.155 and C.134) . Each Member shall adopt laws and regulations and other measures addressing the matters specified in the Code, taking into account relevant international instruments, and set standards for occupational safety and health protection and accident prevention on ships that fly its flag. (based on C.134A4) Standard A.—Health and safety protection and accident prevention . The laws and regulations and other measures to be adopted in accordance with Regulation ., paragraph , shall include the following subjects: (a) the adoption and effective implementation and promotion of occupational safety and health policies and programmes on ships that fly the Member’s flag, including risk evaluation as well as training and instruction of seafarers; (based on C155) (b) reasonable precautions to prevent occupational accidents, injuries and diseases on board ship, including measures to reduce and prevent the risk of exposure to harmful levels of ambient factors and chemicals as well as the risk of injury or disease that may arise from the use of equipment and machinery on board ships; (c) on-board programmes for the prevention of occupational accidents, injuries and diseases and for continuous improvement in occupational safety and health protection, involving seafarers’ representatives and all other persons concerned in their implementation, taking account of preventive

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measures, including engineering and design control, substitution of processes and procedures for collective and individual tasks, and the use of personal protective equipment; and (d) requirements for inspecting, reporting and correcting unsafe conditions and for investigating and reporting on-board occupational accidents. (modified C134A6)

. The provisions referred to in paragraph  of this Standard shall: (a) take account of relevant international instruments dealing with occupational safety and health protection in general and with specific risks, and address all matters relevant to the prevention of occupational accidents, injuries and diseases that may be applicable to the work of seafarers and particularly those which are specific to maritime employment; (modified C.134A4/2) (b) clearly specify the obligation of shipowners, seafarers and others concerned to comply with the applicable standards and with the ship’s occupational safety and health policy and programme (modified C.134A5/1) with special attention being paid to the health and safety of seafarers under the age of ; (c) specify the duties of the master or a person designated by the master, or both, to take specific responsibility for the implementation of and compliance with the ship’s occupational safety and health policy and programme; and (d) specify the authority of the ship’s seafarers appointed or elected as safety representatives to participate in meetings of the ship’s safety committee. Such a committee shall be established on board a ship on which there are five or more seafarers. (based on C.134A7) . The laws and regulations and other measures referred to in Regulation .paragraph , shall be regularly reviewed in consultation with the representatives of the shipowners’ and seafarers’ organizations and, if necessary, revised to take account of changes in technology and research in order to facilitate continuous improvement in occupational safety and health policies and programmes and to provide a safe occupational environment for seafarers on ships that fly the Member’s flag. . Compliance with the requirements of applicable international instruments on the acceptable levels of exposure to workplace hazards on board ships and on the development and implementation of ships’ occupational safety and health policies and programmes shall be considered as meeting the requirements of this Convention. . The competent authority shall ensure that: (a) occupational accidents, injuries and diseases are adequately reported, taking into account the guidance provided by the International Labour Organization with respect to the reporting and recording of occupational accidents and diseases; (modified C.134A2&3; R142P2) (b) comprehensive statistics of such accidents and diseases are kept, analysed and published and, where appropriate, followed up by research into general trends and into the hazards identified; (modified C134A2 and based on Recommendation Concerning the List of Occupational Diseases and the Recording and Notification of Occupational Accidents and Diseases, 2002 (ILO, R.194))

and (c) occupational accidents are investigated. (C.A)



appendix 

. Reporting and investigation of occupational safety and health matters shall be designed to ensure the protection of seafarers’ personal data, and shall take account of the guidance provided by the International Labour Organization on this matter. (based on the ILO code of practice on protection of workers’ personal data, 1997) . The competent authority shall cooperate with shipowners’ and seafarers’ organizations to take measures to bring to the attention of all seafarers information concerning particular hazards on board ships, for instance, by posting official notices containing relevant instructions. (based on C134A9) . The competent authority shall require that shipowners conducting risk evaluation in relation to management of occupational safety and health refer to appropriate statistical information from their ships and from general statistics provided by the competent authority. Guideline B.—Health and safety protection and accident prevention Guideline B..—Provisions on occupational accidents, injuries and diseases . The provisions required under Standard A. should take into account the ILO code of practice entitled Accident prevention on board ship at sea and in port,  and subsequent versions and other related ILO and other international standards and guidelines and codes of practice regarding occupational safety and health protection, including any exposure levels that they may identify. . The competent authority should ensure that the national guidelines for the management of occupational safety and health address the following matters, in particular: (modified C.134A4/3) (a) general and basic provisions; (b) structural features of the ship, including means of access and asbestosrelated risks; (c) machinery; (d) the effects of the extremely low or high temperature of any surfaces with which seafarers may be in contact; (e) the effects of noise in the workplace and in shipboard accommodation; (f) the effects of vibration in the workplace and in shipboard accommodation; (g) the effects of ambient factors, other than those referred to in subparagraphs(e) and (f), in the workplace and in shipboard accommodation, including tobacco smoke; (h) special safety measures on and below deck; (i) loading and unloading equipment; (j) fire prevention and fire-fighting; (k) anchors, chains and lines; (l) dangerous cargo and ballast; (m) personal protective equipment for seafarers; (modified C.134A4/3) (n) work in enclosed spaces; (o) physical and mental effects of fatigue; (p) the effects of drug and alcohol dependency; (q) HIV/AIDS protection and prevention; and (r) emergency and accident response. . The assessment of risks and reduction of exposure on the matters referred to in paragraph  of this Guideline should take account of the physical occupational

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health effects, including manual handling of loads, noise and vibration, the chemical and biological occupational health effects, the mental occupational health effects, the physical and mental health effects of fatigue, and occupational accidents. The necessary measures should take due account of the preventive principle according to which, among other things, combating risk at the source, adapting work to the individual, especially as regards the design of workplaces and replacing the dangerous by the non-dangerous or the less dangerous, have precedence over personal protective equipment for seafarers. . In addition, the competent authority should ensure that the implications for health and safety are taken into account, particularly in the following areas: (a) emergency and accident response; (b) the effects of drug and alcohol dependency; and (c) HIV/AIDS protection and prevention. Guideline B..—Exposure to noise . The competent authority, in conjunction with the competent international bodies and with representatives of shipowners’ and seafarers’ organizations concerned, should review on an ongoing basis the problem of noise on board ships with the objective of improving the protection of seafarers, in so far as practicable, from the adverse effects of exposure to noise. (based on R.141; Ambient factors in the workplace: An ILO code of practice, 2001; IMO Resolution A.468(XII) Code on Noise Levels on Board Ships, 1981)

. The review referred to in paragraph  of this Guideline should take account of the adverse effects of exposure to excessive noise on the hearing, health and comfort of seafarers and the measures to be prescribed or recommended to reduce shipboard noise to protect seafarers. (modified R.141P1) The measures to be considered should include the following: (a) instruction of seafarers in the dangers to hearing and health of prolonged exposure to high noise levels and in the proper use of noise protection devices and equipment; (b) provision of approved hearing protection equipment to seafarers where necessary; and (c) assessment of risk and reduction of exposure levels to noise in all accommodation and recreational and catering facilities, as well as engine rooms and other machinery spaces. Guideline B..—Exposure to vibration . The competent authority, in conjunction with the competent international bodies and with representatives of shipowners’ and seafarers’ organizations concerned, and taking into account, as appropriate, relevant international standards, should review on an ongoing basis the problem of vibration on board ships with the objective of improving the protection of seafarers, in so far as practicable, from the adverse effects of vibration. . The review referred to in paragraph  of this Guideline should cover the effect of exposure to excessive vibration on the health and comfort of seafarers and the measures to be prescribed or recommended to reduce shipboard vibration to protect seafarers. The measures to be considered should include the following:



appendix  (a) instruction of seafarers in the dangers to their health of prolonged exposure to vibration; (b) provision of approved personal protective equipment to seafarers where necessary; and (c) assessment of risks and reduction of exposure to vibration in all accommodation and recreational and catering facilities by adopting measures in accordance with the guidance provided by the ILO code of practice entitled Ambient factors in the workplace, , and any subsequent revisions, taking account of the difference between exposure in those areas and in the workplace. Guideline B..—Obligations of shipowners

. Any obligation on the shipowner to provide protective equipment or other accident prevention safeguards should, in general, be accompanied by provisions requiring their use by seafarers and by a requirement for seafarers to comply with the relevant accident prevention and health protection measures. (modified C.134A5/2)

. Account should also be taken of Articles  and  of the Guarding of Machinery Convention,  (No. ), and the corresponding provisions of the Guarding of Machinery Recommendation,  (No. ), under which the obligation to ensure compliance with the requirement that machinery in use is properly guarded, and its use without appropriate guards prevented, rests on the employer, while there is an obligation on the worker not to use machinery without the guards being in position nor to make inoperative the guards provided. (R.142P5)

Guideline B..—Reporting and collection of statistics . All occupational accidents and occupational injuries and diseases should be reported so that they can be investigated and comprehensive statistics can be kept, analysed and published, taking account of protection of the personal data of the seafarers concerned. Reports should not be limited to fatalities or to accidents involving the ship. (modified C.134A2/2) . The statistics referred to in paragraph  of this Guideline should record the numbers, nature, causes and effects of occupational accidents and occupational injuries and diseases, with a clear indication, as applicable, of the department on board a ship, the type of accident and whether at sea or in port. (C.134A2/3) . Each Member should have due regard to any international system or model for recording accidents to seafarers which may have been established by the International Labour Organization. (R.142P2) Guideline B..—Investigation . The competent authority should undertake an investigation into the causes and circumstances of all occupational accidents and occupational injuries and diseases resulting in loss of life or serious personal injury, and such other cases as may be specified in national laws or regulations. (modified C.134A2/4) . Consideration should be given to including the following as subjects of investigation:

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(a) working environment, such as working surfaces, layout of machinery, means of access, lighting and methods of work; (b) incidence in different age groups of occupational accidents and occupational injuries and diseases; (c) special physiological or psychological problems created by the shipboard environment; (d) problems arising from physical stress on board a ship, in particular as a consequence of increased workload; (e) problems arising from and effects of technical developments and their influence on the composition of crews; and (f) problems arising from any human failures. (modified R.142P3) Guideline B..—National protection and prevention programmes . In order to provide a sound basis for measures to promote occupational safety and health protection and prevention of accidents, injuries and diseases which are due to particular hazards of maritime employment, research should be undertaken into general trends and into such hazards as are revealed by statistics. (modified C.134A3)

. The implementation of protection and prevention programmes for the promotion of occupational safety and health should be so organized that the competent authority, shipowners and seafarers or their representatives and other appropriate bodies may play an active role, (modified C.134A8/2), including through such means as information sessions, on-board guidelines on maximum exposure levels to potentially harmful ambient workplace factors and other hazards or outcomes of a systematic risk evaluation process. (modified C.134A9/2) In particular, national or local joint occupational safety and health protection and accident prevention committees or ad hoc working parties and on-board committees, on which shipowners’ and seafarers’ organizations concerned are represented, should be established. (modified C.134A8/3) . Where such activity takes place at company level, the representation of seafarers on any safety committee on board that shipowner’s ships should be considered. Guideline B..—Content of protection and prevention programmes . Consideration should be given to including the following in the functions of the committees and other bodies referred to in Guideline B.., paragraph : (a) the preparation of national guidelines and policies for occupational safety and health management systems and for accident prevention provisions, rules and manuals; (b) the organization of occupational safety and health protection and accident prevention training and programmes; (c) the organization of publicity on occupational safety and health protection and accident prevention, including films, posters, notices and brochures; and (d) the distribution of literature and information on occupational safety and health protection and accident prevention so that it reaches seafarers on board ships.

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appendix 

. Relevant provisions or recommendations adopted by the appropriate national authorities or organizations or international organizations should be taken into account by those preparing texts of occupational safety and health protection and accident prevention measures or recommended practices. (modified R.142P6) . In formulating occupational safety and health protection and accident prevention programmes, each Member should have due regard to any code of practice concerning the safety and health of seafarers which may have been published by the International Labour Organization. (R.142P4) Guideline B..—Instruction in occupational safety and health protection and the prevention of occupational accidents . The curriculum for the training referred to in Standard A., paragraph (a), should be reviewed periodically and brought up to date in the light of development in types and sizes of ships and in their equipment, as well as changes in manning practices, nationality, language and the organization of work on board ships. (R.142P7) . There should be continuous occupational safety and health protection and accident prevention publicity. Such publicity might take the following forms: (a) educational audiovisual material, such as films, for use in vocational training centres for seafarers and where possible shown on board ships; (b) display of posters on board ships; (c) inclusion in periodicals read by seafarers of articles on the hazards of maritime employment and on occupational safety and health protection and accident prevention measures; and (d) special campaigns using various publicity media to instruct seafarers, including campaigns on safe working practices. . The publicity referred to in paragraph  of this Guideline should take account of the different nationalities, languages and cultures of seafarers on board ships. (modified R.142P8)

Guideline B..—Safety and health education of young seafarers . Safety and health regulations should refer to any general provisions on medical examinations before and during employment and on the prevention of accidents and the protection of health in employment, which may be applicable to the work of seafarersSuch regulations should specify measures which will minimize occupational dangers to young seafarers in the course of their duties. (R.153P8) . Except where a young seafarer is recognized as fully qualified in a pertinent skill by the competent authority, the regulations should specify restrictions on young seafarers undertaking, without appropriate supervision and instruction, certain types of work presenting special risk of accident or of detrimental effect on their health or physical development, or requiring a particular degree of maturity, experience or skill. In determining the types of work to be restricted by the regulations, the competent authority might consider in particular work involving: (a) the lifting, moving or carrying of heavy loads or objects; (b) entry into boilers, tanks and cofferdams; (c) exposure to harmful noise and vibration levels;

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(d) operating hoisting and other power machinery and tools, or acting as signallers to operators of such equipment; (e) handling mooring or tow lines or anchoring equipment; (f) rigging; (g) work aloft or on deck in heavy weather; (h) nightwatch duties; (i) servicing of electrical equipment; (j) exposure to potentially harmful materials or harmful physical agents such as dangerous or toxic substances, and ionizing radiations; (k) the cleaning of catering machinery; and (l) the handling or taking charge of ships’ boats. (R.153P9) . Practical measures should be taken by the competent authority or through the appropriate machinery to bring to the attention of young seafarers information concerning the prevention of accidents and the protection of their health on board ships. Such measures could include adequate instruction in courses, official accident prevention publicity intended for young persons and professional instruction and supervision of young seafarers. (modified R.153P10) . Education and training of young seafarers both ashore and on board ships should include guidance on the detrimental effects on their health and well-being of the abuse of alcohol and drugs and other potentially harmful substances, and the risk and concerns relating to HIV/AIDS and of other health risk related activities. (modified R.153P11)

Guideline B..—International cooperation . Members, with the assistance as appropriate of intergovernmental and other international organizations, should endeavour, in cooperation with each other, to achieve the greatest possible uniformity of action for the promotion of occupational safety and health protection and prevention of accidents. . In developing programmes for promoting occupational safety and health protection and prevention of accidents under Standard A., each Member should have due regard to relevant codes of practice published by the International Labour Organization and the appropriate standards of international organizations. . Members should have regard to the need for international cooperation in the continuous promotion of activity related to occupational safety and health protection and prevention of occupational accidents. Such cooperation might take the form of: (a) bilateral or multilateral arrangements for uniformity in occupational safety and health protection and accident prevention standards and safeguards; (b) exchange of information on particular hazards affecting seafarers and on means of promoting occupational safety and health protection and preventing accidents; (c) assistance in testing of equipment and inspection according to the national regulations of the flag State; (d) collaboration in the preparation and dissemination of occupational safety and health protection and accident prevention provisions, rules or manuals; (e) collaboration in the production and use of training aids; and (f) joint facilities for, or mutual assistance in, the training of seafarers in occupational safety and health protection, accident prevention and safe working practices. (modified R.142P9)

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appendix  Regulation .—Access to shore-based welfare facilities

Purpose: To ensure that seafarers working on board a ship have access to shore-based facilities and services to secure their health and well-being . Each Member shall ensure that shore-based welfare facilities, where they exist, are easily accessible. The Member shall also promote the development of welfare facilities, such as those listed in the Code, in designated ports to provide seafarers on ships that are in its ports with access to adequate welfare facilities and services. (based on C.163A2/1) . The responsibilities of each Member with respect to shore-based facilities, such as welfare, cultural, recreational and information facilities and services, are set out in the Code. Standard A.—Access to shore-based welfare facilities . Each Member shall require, where welfare facilities exist on its territory, that they are available for the use of all seafarers, irrespective of nationality, race, colour, sex, religion, political opinion or social origin and irrespective of the flag State of the ship on which they are employed or engaged or work. (modified C.163A3/1) . Each Member shall promote the development of welfare facilities in appropriate ports of the country and determine, after consultation with the shipowners’ and seafarers’ organizations concerned, which ports are to be regarded as appropriate. (modified C.163A3/2)

. Each Member shall encourage the establishment of welfare boards which shall regularly review welfare facilities and services to ensure that they are appropriate in the light of changes in the needs of seafarers resulting from technical, operational and other developments in the shipping industry. (modified C163A5; R.173P7/3 P9)

Guideline B.—Access to shore-based welfare facilities Guideline B..—Responsibilities of Members . Each Member should: (a) take measures to ensure that adequate welfare facilities and services are provided for seafarers in designated ports of call and that adequate protection is provided to seafarers in the exercise of their profession; and (b) take into account, in the implementation of these measures, the special needs of seafarers, especially when in foreign countries and when entering war zones, in respect of their safety, health and spare-time activities. (R.173P3)

. Arrangements for the supervision of welfare facilities and services should include participation by representative shipowners’ and seafarers’ organizations concerned. (R.173P4) . Each Member should take measures designed to expedite the free circulation among ships, central supply agencies and welfare establishments of welfare materials such as films, books, newspapers and sports equipment for use by seafarers on board their ships and in welfare centres ashore. (R.138P14) . Members should cooperate with one another in promoting the welfare of seafarers at sea and in port. Such cooperation should include the following:

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(a) consultations among competent authorities aimed at the provision and improvement of seafarers’ welfare facilities and services, both in port and on board ships; (b) agreements on the pooling of resources and the joint provision of welfare facilities in major ports so as to avoid unnecessary duplication; (c) organization of international sports competitions and encouragement of the participation of seafarers in sports activities; and (d) organization of international seminars on the subject of welfare of seafarers at sea and in port. (R.173P6) Guideline B..—Welfare facilities and services in ports . Each Member should provide or ensure the provision of such welfare facilities and services as may be required in appropriate ports of the country. . Welfare facilities and services should be provided, in accordance with national conditions and practice, by one or more of the following: (a) public authorities; (b) shipowners’ and seafarers’ organizations concerned under collective agreements or other agreed arrangements; and (c) voluntary organizations. (R.173P8/1) . Necessary welfare and recreational facilities should be established or developed in ports. These should include: (R.173P12) (a) meeting and recreation rooms as required; (b) facilities for sports and outdoor facilities, including competitions; (c) educational facilities; and (d) where appropriate, facilities for religious observances and for personal counselling. . These facilities may be provided by making available to seafarers in accordance with their needs facilities designed for more general use. (R.173P12) . Where large numbers of seafarers of different nationalities require facilities such as hotels, clubs and sports facilities in a particular port, the competent authorities or bodies of the countries of origin of the seafarers and of the flag States, as well as the international associations concerned, should consult and cooperate with the competent authorities and bodies of the country in which the port is situated and with one another, with a view to the pooling of resources and to avoiding unnecessary duplication. (R.173P13) . Hotels or hostels suitable for seafarers should be available where there is need for them. They should provide facilities equal to those found in a good-class hotel, and should wherever possible be located in good surroundings away from the immediate vicinity of the docks. Such hotels or hostels should be properly supervised, the prices charged should be reasonable in amount and, where necessary and possible, provision should be made for accommodating seafarers’ families. (R.138P9, R.173P11)

. These accommodation facilities should be open to all seafarers, irrespective of nationality, race, colour, sex, religion, political opinion or social origin and irrespective of the flag State of the ship on which they are employed or engaged or work. Without in any way infringing this principle, it may be necessary in certain ports to provide several types of facilities, comparable in standard but adapted to the customs and needs of different groups of seafarers. (R.138P10)

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appendix 

. Measures should be taken to ensure that, as necessary, technically competent persons are employed full time in the operation of seafarers’ welfare facilities and services, in addition to any voluntary workers. (R.173P8/2) Guideline B..—Welfare boards . Welfare boards should be established, at the port, regional and national levels, as appropriate. Their functions should include: (a) keeping under review the adequacy of existing welfare facilities and monitoring the need for the provision of additional facilities or the withdrawal of under-utilized facilities; and (b) assisting and advising those responsible for providing welfare facilities and ensuring coordination between them. . Welfare boards should include among their members representatives of shipowners’ and seafarers’ organizations, the competent authorities and, where appropriate, voluntary organizations and social bodies. . As appropriate, consuls of maritime States and local representatives of foreign welfare organizations should, in accordance with national laws and regulations, be associated with the work of port, regional and national welfare boards. (R.173P9) Guideline B..—Financing of welfare facilities . In accordance with national conditions and practice, financial support for port welfare facilities should be made available through one or more of the following: (a) grants from public funds; (b) levies or other special dues from shipping sources; (c) voluntary contributions from shipowners, seafarers, or their organizations; and (d) voluntary contributions from other sources. . Where welfare taxes, levies and special dues are imposed, they should be used only for the purposes for which they are raised. (R.173P10) Guideline B..—Dissemination of information and facilitation measures . Information should be disseminated among seafarers concerning facilities open to the general public in ports of call, particularly transport, welfare, entertainment and educational facilities and places of worship, as well as facilities provided specifically for seafarers. . Adequate means of transport at moderate prices should be available at any reasonable time in order to enable seafarers to reach urban areas from convenient locations in the port. (R.173P15) . All suitable measures should be taken by the competent authorities to make known to shipowners and to seafarers entering port any special laws and customs, the contravention of which may jeopardize their freedom. (R.173P18) . Port areas and access roads should be provided by the competent authorities with adequate lighting and signposting and regular patrols for the protection of seafarers. (R.173P19)

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Guideline B..—Seafarers in a foreign port . For the protection of seafarers in foreign ports, measures should be taken to facilitate: (a) access to consuls of their State of nationality or State of residence; and (b) effective cooperation between consuls and the local or national authorities. (R.173P20)

. Seafarers who are detained in a foreign port should be dealt with promptly under due process of law and with appropriate consular protection. (modified R.173P20/3) . Whenever a seafarer is detained for any reason in the territory of a Member, the competent authority should, if the seafarer so requests, immediately inform the flag State and the State of nationality of the seafarer. The competent authority should promptly inform the seafarer of the right to make such a request. The State of nationality of the seafarer should promptly notify the seafarer’s next of kin. The competent authority should allow consular officers of these States immediate access to the seafarer and regular visits thereafter so long as the seafarer is detained. (R.173P20/2) . Each Member should take measures, whenever necessary, to ensure the safety of seafarers from aggression and other unlawful acts while ships are in their territorial waters and especially in approaches to ports. (R.173P22) . Every effort should be made by those responsible in port and on board a ship to facilitate shore leave for seafarers as soon as possible after a ship’s arrival in port. (R.173P27) Regulation .—Social security Purpose: To ensure that measures are taken with a view to providing seafarers with access to social security protection . Each Member shall ensure that all seafarers and, to the extent provided for in its national law, their dependants have access to social security protection in accordance with the Code without prejudice however to any more favourable conditions referred to in paragraph  of Article  of the Constitution. . Each Member undertakes to take steps, according to its national circumstances, individually and through international cooperation, to achieve progressively comprehensive social security protection for seafarers. . Each Member shall ensure that seafarers who are subject to its social security legislation, and, to the extent provided for in its national law, their dependants, are entitled to benefit from social security protection no less favourable than that enjoyed by shoreworkers. Standard A.—Social security . The branches to be considered with a view to achieving progressively comprehensive social security protection under Regulation . are: medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit and survivors’ benefit, complementing the protection provided for under Regulations ., on medical care, and ., on shipowners’ liability, and under other titles of this Convention.

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appendix 

. At the time of ratification, the protection to be provided by each Member in accordance with Regulation ., paragraph , shall include at least three of the nine branches listed in paragraph  of this Standard. . Each Member shall take steps according to its national circumstances to provide the complementary social security protection referred to in paragraph  of this Standard to all seafarers ordinarily resident in its territory. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The resulting protection shall be no less favourable than that enjoyed by shoreworkers resident in their territory. . Notwithstanding the attribution of responsibilities in paragraph  of this Standard, Members may determine, through bilateral and multilateral agreements and through provisions adopted in the framework of regional economic integration organizations, other rules concerning the social security legislation to which seafarers are subject. . Each Member’s responsibilities with respect to seafarers on ships that fly its flag shall include those provided for by Regulations . and . and the related provisions of the Code, as well as those that are inherent in its general obligations under international law. . Each Member shall give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the branches referred to in paragraph  of this Standard. . The protection under Regulation ., paragraph , may, as appropriate, be contained in laws or regulations, in private schemes or in collective bargaining agreements or in a combination of these. . To the extent consistent with their national law and practice, Members shall cooperate, through bilateral or multilateral agreements or other arrangements, to ensure the maintenance of social security rights, provided through contributory or non-contributory schemes, which have been acquired, or are in the course of acquisition, by all seafarers regardless of residence. . Each Member shall establish fair and effective procedures for the settlement of disputes. . Each Member shall at the time of ratification specify the branches for which protection is provided in accordance with paragraph  of this Standard. It shall subsequently notify the Director-General of the International Labour Office when it provides social security protection in respect of one or more other branches stated in paragraph  of this Standard. The Director-General shall maintain a register of this information and shall make it available to all interested parties. . The reports to the International Labour Office pursuant to Article  of the Constitution, shall also include information regarding steps taken in accordance with Regulation ., paragraph , to extend protection to other branches. Guideline B.—Social security . The protection to be provided at the time of ratification in accordance with Standard A., paragraph , should at least include the branches of medical care, sickness benefit and employment injury benefit.

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. In the circumstances referred to in Standard A., paragraph  comparable benefits may be provided through insurance, bilateral and multilateral agreements or other effective means, taking into consideration the provisions of relevant collective bargaining agreements. Where such measures are adopted, seafarers covered by such measures should be advised of the means by which the various branches of social security protection will be provided. . Where seafarers are subject to more than one national legislation covering social security, the Members concerned should cooperate in order to determine by mutual agreement which legislation is to apply, taking into account such factors as the type and level of protection under the respective legislations which is more favourable to the seafarer concerned as well as the seafarer’s preference. . The procedures to be established under Standard A., paragraph , should be designed to cover all disputes relevant to the claims of the seafarers concerned, irrespective of the manner in which the coverage is provided. . Each Member which has national seafarers, non-national seafarers or both serving on ships that fly its flag should provide the social security protection in the Convention as applicable, and should periodically review the branches of social security protection in Standard A., paragraph , with a view to identifying any additional branches appropriate for the seafarers concerned. . The seafarers’ employment agreement should identify the means by which the various branches of social security protection will be provided to the seafarer by the shipowner as well as any other relevant information at the disposal of the shipowner, such as statutory deductions from the seafarers’ wages and shipowners’ contributions which may be made in accordance with the requirements of identified authorized bodies pursuant to relevant national social security schemes. . The Member whose flag the ship flies should, in effectively exercising its jurisdiction over social matters, satisfy itself that the shipowners’ responsibilities concerning social security protection are met, including making the required contributions to social security schemes. Title . Compliance and enforcement . The Regulations in this Title specify each Member’s responsibility to fully implement and enforce the principles and rights set out in the Articles of this Convention as well as the particular obligations provided for under its Titles , ,  and . . Paragraphs  and  of Article VI, which permit the implementation of Part A of the Code through substantially equivalent provisions, do not apply to Part A of the Code in this Title. . In accordance with paragraph  of Article VI, each Member shall implement its responsibilities under the Regulations in the manner set out in the corresponding Standards of Part A of the Code, giving due consideration to the corresponding Guidelines in Part B of the Code. . The provisions of this Title shall be implemented bearing in mind that seafarers and shipowners, like all other persons, are equal before the law and are entitled to the equal protection of the law and shall not be subject to discrimination in their

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appendix  access to courts, tribunals or other dispute resolution mechanisms. The provisions of this Title do not determine legal jurisdiction or a legal venue. Regulation .—Flag State responsibilities

Purpose: To ensure that each Member implements its responsibilities under this Convention with respect to ships that fly its flag Regulation ..—General principles . Each Member is responsible for ensuring implementation of its obligations under this Convention on ships that fly its flag. . Each Member shall establish an effective system for the inspection and certification of maritime labour conditions, in accordance with Regulations .. and .. ensuring that the working and living conditions for seafarers on ships that fly its flag meet, and continue to meet, the standards in this Convention. . In establishing an effective system for the inspection and certification of maritime labour conditions, a Member may, where appropriate, authorize public institutions or other organizations (including those of another Member, if the latter agrees) which it recognizes as competent and independent to carry out inspections or to issue certificates or to do both. In all cases, the Member shall remain fully responsible for the inspection and certification of the working and living conditions of the seafarers concerned on ships that fly its flag. (based on C178A2/3; SOLAS, 1974, Chapter 1, Reg 6,)

. A maritime labour certificate, complemented by a declaration of maritime labour compliance, shall constitute prima facie evidence that the ship has been duly inspected by the Member whose flag it flies and that the requirements of this Convention relating to working and living conditions of the seafarers have been met to the extent so certified. . Information about the system referred to in paragraph  of this Regulation, including the method used for assessing its effectiveness, shall be included in the Member’s reports to the International Labour Office pursuant to Article  of the Constitution. Standard A..—General principles . Each Member shall establish clear objectives and standards covering the administration of its inspection and certification systems, as well as adequate overall procedures for its assessment of the extent to which those objectives and standards are being attained. . Each Member shall require all ships that fly its flag to have a copy of this Convention available on board. Guideline B..—General principles . The competent authority should make appropriate arrangements to promote effective cooperation between public institutions and other organizations, referred to in Regulations .. and .., concerned with seafarers’ shipboard working and living conditions. (modified R.185P1) . In order to better ensure cooperation between inspectors and shipowners, sea-

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farers and their respective organizations, and to maintain or improve seafarers’ working and living conditions, the competent authority should consult the representatives of such organizations at regular intervals as to the best means of attaining these ends. The manner of such consultation should be determined by the competent authority after consulting with shipowners’ and seafarers’ organizations. (R.185P2) Regulation ..—Authorization of recognized organizations . The public institutions or other organizations referred to in paragraph  of Regulation .. (“recognized organizations”) shall have been recognized by the competent authority as meeting the requirements in the Code regarding competency and independence. The inspection or certification functions which the recognized organizations may be authorized to carry out shall come within the scope of the activities that are expressly mentioned in the Code as being carried out by the competent authority or a recognized organization. . The reports referred to in paragraph  of Regulation .. shall contain information regarding any recognized organization, the extent of authorizations given and the arrangements made by the Member to ensure that the authorized activities are carried out completely and effectively. Standard A..—Authorization of recognized organizations . For the purpose of recognition in accordance with paragraph  of Regulation .., the competent authority shall review the competency and independence of the organization concerned and determine whether the organization has demonstrated, to the extent necessary for carrying out the activities covered by the authorization conferred on it, that the organization: (a) has the necessary expertise in the relevant aspects of this Convention and an appropriate knowledge of ship operations including the minimum requirements for seafarers to work on a ship, conditions of employment, accommodation, recreation facilities, food and catering, accident prevention, health protection, medical care, welfare and social security protection; (b) has the ability to maintain and update the expertise of its personnel; (c) has the necessary knowledge of the requirements of this Convention as well as of applicable national laws and regulations and relevant international instruments; and (d) is of the appropriate size, structure, experience and capability commensurate with the type and degree of authorization. . Any authorizations granted with respect to inspections shall as a minimum empower the recognized organization to require the rectification of deficiencies that it identifies in seafarers’ working and living conditions and to carry out inspections in this regard at the request of a port State. (modified SOLAS Chap. I, Reg. 6) . Each Member shall establish: (a) a system to ensure the adequacy of work performed by recognized organizations which includes information on all applicable national laws and regulations and relevant international instruments; and (b) procedures for communication with and oversight of such organizations.

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appendix 

. Each Member shall provide the International Labour Office with a current list of any recognized organizations authorized to act on its behalf and it shall keep this list up to date. The list shall specify the functions that the recognized organizations have been authorized to carry out. The Office shall make the list publicly available. Guideline B..—Authorization of recognized organizations . The organization seeking recognition should demonstrate the technical, administrative and managerial competence and capacity to ensure the provision of timely service of satisfactory quality. . In evaluating the capability of an organization, the competent authority should determine whether the organization: (a) has adequate technical, managerial and support staff; (b) has sufficient qualified professional staff to provide the required service, representing an adequate geographical coverage; (c) has proven ability to provide a timely service of satisfactory quality; and (d) is independent and accountable in its operations. . The competent authority should conclude a written agreement with any organization that it recognizes for purposes of an authorization. The agreement should include the following elements: (a) scope of application; (b) purpose; (c) general conditions; (d) the execution of functions under authorization; (e) legal basis of the functions under authorization; (f) reporting to the competent authority; (g) specification of the authorization from the competent authority to the recognized organization; and (h) the competent authority’s supervision of activities delegated to the recognized organization. . Each Member should require the recognized organizations to develop a system for qualification of staff employed by them as inspectors to ensure the timely updating of their knowledge and expertise. . Each Member should require the recognized organizations to maintain records of the services performed by them such that they are able to demonstrate achievement of the required standards in the items covered by the services. . In establishing the oversight procedures referred to in Standard A.., paragraph (b), each Member should take into account the Guidelines for the Authorization of Organizations Acting on Behalf of the Administration, adopted in the framework of the International Maritime Organization. Regulation ..—Maritime labour certificate and declaration of maritime labour compliance . This Regulation applies to ships of: (a)  gross tonnage or over, engaged in international voyages; and (b)  gross tonnage or over, flying the flag of a Member and operating from a port, or between ports, in another country.

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

For the purpose of this Regulation, “international voyage” means a voyage from a country to a port outside such a country. . This Regulation also applies to any ship that flies the flag of a Member and is not covered by paragraph  of this Regulation, at the request of the shipowner to the Member concerned. . Each Member shall require ships that fly its flag to carry and maintain a maritime labour certificate certifying that the working and living conditions of seafarers on the ship, including measures for ongoing compliance to be included in the declaration of maritime labour compliance referred to in paragraph  of this Regulation, have been inspected and meet the requirements of national laws or regulations or other measures implementing this Convention. . Each Member shall require ships that fly its flag to carry and maintain a declaration of maritime labour compliance stating the national requirements implementing this Convention for the working and living conditions for seafarers and setting out the measures adopted by the shipowner to ensure compliance with the requirements on the ship or ships concerned. . The maritime labour certificate and the declaration of maritime labour compliance shall conform to the model prescribed by the Code. . Where the competent authority of the Member or a recognized organization duly authorized for this purpose has ascertained through inspection that a ship that flies the Member’s flag meets or continues to meet the standards of this Convention, it shall issue or renew a maritime labour certificate to that effect and maintain a publicly available record of that certificate. (modified SOLAS; MARPOL) . Detailed requirements for the maritime labour certificate and the declaration of maritime labour compliance, including a list of the matters that must be inspected and approved, are set out in Part A of the Code. Standard A..—Maritime labour certificate and declaration of maritime labour compliance . The maritime labour certificate shall be issued to a ship by the competent authority, or by a recognized organization duly authorized for this purpose, for a period which shall not exceed five years. A list of matters that must be inspected and found to meet national laws and regulations or other measures implementing the requirements of this Convention regarding the working and living conditions of seafarers on ships before a maritime labour certificate can be issued is found in Appendix A-I. . The validity of the maritime labour certificate shall be subject to an . intermediate inspection by the competent authority, or by a recognized organization duly authorized for this purpose, to ensure continuing compliance with the national requirements implementing this Convention. If only one intermediate inspection is carried out and the period of validity of the certificate is five years, it shall take place between the second and third anniversary dates of the certificate. Anniversary date means the day and month of each year which correspond to the date of expiry of the maritime labour certificate. The scope and depth of the intermediate inspection shall be equal to an inspection for renewal of the certificate. The certificate shall be endorsed following satisfactory intermediate inspection.



appendix 

. Notwithstanding paragraph  of this Standard, when the renewal inspection has been completed within three months before the expiry of the existing maritime labour certificate, the new maritime labour certificate shall be valid from the date of completion of the renewal inspection for a period not exceeding five years from the date of expiry of the existing certificate. . When the renewal inspection is completed more than three months before the expiry date of the existing maritime labour certificate, the new maritime labour certificate shall be valid for a period not exceeding five years starting from the date of completion of the renewal inspection. . A maritime labour certificate may be issued on an interim basis: (a) to new ships on delivery; (b) when a ship changes flag; or (c) when a shipowner assumes responsibility for the operation of a ship which is new to that shipowner. . An interim maritime labour certificate may be issued for a period not exceeding six months by the competent authority or a recognized organization duly authorized for this purpose. . An interim maritime labour certificate may only be issued following verification that: (a) the ship has been inspected, as far as reasonable and practicable, for the matters listed in Appendix A-I, taking into account verification of items under subparagraphs (b), (c) and (d) of this paragraph; (b) the shipowner has demonstrated to the competent authority or recognized organization that the ship has adequate procedures to comply with this Convention; (c) the master is familiar with the requirements of this Convention and the responsibilities for implementation; and (d) relevant information has been submitted to the competent authority or recognized organization to produce a declaration of maritime labour compliance. . A full inspection in accordance with paragraph  of this Standard shall be carried out prior to expiry of the interim certificate to enable issue of the full-term maritime labour certificate. No further interim certificate may be issued following the initial six months referred to in paragraph  of this Standard. A declaration of maritime labour compliance need not be issued for the period of validity of the interim certificate. . The maritime labour certificate, the interim maritime labour certificate and the declaration of maritime labour compliance shall be drawn up in the form corresponding to the models given in Appendix A-II. . The declaration of maritime labour compliance shall be attached to the maritime labour certificate. It shall have two parts: (a) Part I shall be drawn up by the competent authority which shall: (i) identify the list of matters to be inspected in accordance with paragraph  of this Standard; (ii) identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions as well as, to the extent necessary, concise information on the main content of the national requirements; (iii) refer to ship-type specific requirements under national legislation; (iv) record any

annotated maritime labour convention, 



substantially equivalent provisions adopted pursuant to paragraph  of Article VI; and (v) clearly indicate any exemption granted by the competent authority as provided in Title ; and (b) Part II shall be drawn up by the shipowner and shall identify the measures adopted to ensure ongoing compliance with the national requirements between inspections and the measures proposed to ensure that there is continuous improvement. The competent authority or recognized organization duly authorized for this purpose shall certify Part II and shall issue the declaration of maritime labour compliance. . The results of all subsequent inspections or other verifications carried out with respect to the ship concerned and any significant deficiencies found during any such verification shall be recorded, together with the date when the deficiencies were found to have been remedied. This record, accompanied by an Englishlanguage translation where it is not in English, shall, in accordance with national laws or regulations, be inscribed upon or appended to the declaration of maritime labour compliance or made available in some other way to seafarers, flag State inspectors, authorized officers in port States and shipowners’ and seafarers’ representatives. . A current valid maritime labour certificate and declaration of maritime labour compliance, accompanied by an English-language translation where it is not in English, shall be carried on the ship and a copy shall be posted in a conspicuous place on board where it is available to the seafarers. A copy shall be made available in accordance with national laws and regulations, upon request, to seafarers, flag State inspectors, authorized officers in port States, and shipowners’ and seafarers’ representatives. . The requirement for an English-language translation in paragraphs  and  of this Standard does not apply in the case of a ship not engaged in an international voyage. . A certificate issued under paragraph  or  of this Standard shall cease to be valid in any of the following cases: (a) if the relevant inspections are not completed within the periods specified under paragraph  of this Standard; (b) if the certificate is not endorsed in accordance with paragraph  of this Standard; (c) when a ship changes flag; (d) when a shipowner ceases to assume the responsibility for the operation of a ship; and (e) when substantial changes have been made to the structure or equipment covered in Title . . In the case referred to in paragraph (c), (d) or (e) of this Standard, a new certificate shall only be issued when the competent authority or recognized organization issuing the new certificate is fully satisfied that the ship is in compliance with the requirements of this Standard. . A maritime labour certificate shall be withdrawn by the competent authority or the recognized organization duly authorized for this purpose by the flag State, if there is evidence that the ship concerned does not comply with the requirements of this Convention and any required corrective action has not been taken.



appendix 

. When considering whether a maritime labour certificate should be withdrawn in accordance with paragraph  of this Standard, the competent authority or the recognized organization shall take into account the seriousness or the frequency of the deficiencies. Guideline B..—Maritime labour certificate and declaration of maritime labour compliance . The statement of national requirements in Part I of the declaration of maritime labour compliance should include or be accompanied by references to the legislative provisions relating to seafarers’ working and living conditions in each of the matters listed in Appendix A-I. Where national legislation precisely follows the requirements stated in this Convention, a reference may be all that is necessary. Where a provision of the Convention is implemented through substantial equivalence as provided under Article VI, paragraph , this provision should be identified and a concise explanation should be provided. Where an exemption is granted by the competent authority as provided in Title , the particular provision or provisions concerned should be clearly indicated. . The measures referred to in Part II of the declaration of maritime labour compliance, drawn up by the shipowner, should, in particular, indicate the occasions on which ongoing compliance with particular national requirements will be verified, the persons responsible for verification, the records to be taken, as well as the procedures to be followed where non-compliance is noted. Part II may take a number of forms. It could make reference to other more comprehensive documentation covering policies and procedures relating to other aspects of the maritime sector, for example documents required by the International Safety Management (ISM) Code or the information required by Regulation  of SOLAS Convention Chapter XI- relating to the ship’s Continuous Synopsis Record. . The measures to ensure ongoing compliance should include general international requirements for the shipowner and master to keep themselves informed of the latest advances in technology and scientific findings concerning workplace design, taking into account the inherent dangers of seafarers’ work, and to inform the seafarers’ representatives accordingly, thereby guaranteeing a better level of protection of the seafarers’ working and living conditions on board. . The declaration of maritime labour compliance should, above all, be drafted in clear terms designed to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the requirements are being properly implemented. . An example of the kind of information that might be contained in a declaration of maritime labour compliance is given in Appendix B-I. . When a ship changes flag as referred to in of Standard A.., paragraph (c), and where both States concerned have ratified this Convention, the Member whose flag the ship was formerly entitled to fly should, as soon as possible, transmit to the competent authority of the other Member copies of the maritime labour certificate and the declaration of maritime labour compliance carried by the ship before the change of flag and, if applicable, copies of the relevant inspection reports if the competent authority so requests within three months after the change of flag has taken place.

annotated maritime labour convention, 



Regulation ..—Inspection and enforcement . Each Member shall verify, through an effective and coordinated system of regular inspections, monitoring and other control measures, that ships that fly its flag comply with the requirements of this Convention as implemented in national laws and regulations. . Detailed requirements regarding the inspection and enforcement system referred to in paragraph  of this Regulation are set out in Part A of the Code. Standard A..—Inspection and enforcement . Each Member shall maintain a system of inspection of the conditions for seafarers on ships that fly its flag (modified C.178A2/1) which shall include verification that the measures relating to working and living conditions as set out in the declaration of maritime labour compliance, where applicable, are being followed, and that the requirements of this Convention are met. . The competent authority shall appoint a sufficient number of qualified inspectors to fulfil its responsibilities under paragraph  of this Standard. (modified C.178A4 and A2/3) Where recognized organizations have been authorized to carry out inspections, the Member shall require that personnel carrying out the inspection are qualified to undertake these duties and shall provide them with the necessary legal authority to perform their duties. . Adequate provision shall be made to ensure that the inspectors have the training, competence, terms of reference, powers, status and independence necessary or desirable so as to enable them to carry out the verification and ensure the compliance referred to in paragraph  of this Standard. (based partly on C.178A4) . Such inspections shall take place at the intervals required by Standard A... The interval shall in no case exceed three years. (modified C.178A3/1) . If a Member receives a complaint which it does not consider manifestly unfounded or obtains evidence that a ship that flies its flag does not conform to the requirements of this Convention or that there are serious deficiencies in the implementation of the measures set out in the declaration of maritime labour compliance, the Member shall take the steps necessary to investigate the matter and ensure that action is taken to remedy any deficiencies found. (modified C.178A3/2) . Adequate rules shall be provided and effectively enforced by each Member in order to guarantee that inspectors have the status and conditions of service to ensure that they are independent of changes of government and of improper external influences. . Inspectors, issued with clear guidelines as to the tasks to be performed and provided with proper credentials, shall be empowered: (a) to board a ship that flies the Member’s flag; (b) to carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the standards are being strictly observed; and (c) to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken.



appendix 

. Any action taken pursuant to paragraph (c) of this Standard shall be subject to any right of appeal to a judicial or administrative authority. . Inspectors shall have the discretion to give advice instead of instituting or recommending proceedings (C.178A7/2) when there is no clear breach of the requirements of this Convention that endangers the safety, health or security of the seafarers concerned and where there is no prior history of similar breaches. . Inspectors shall treat as confidential the source of any grievance or complaint alleging a danger or deficiency in relation to seafarers’ working and living conditions or a violation of laws and regulations and give no intimation to the shipowner, the shipowner’s representative or the operator of the ship that an inspection was made as a consequence of such a grievance or complaint. (R183P15/c) . Inspectors shall not be entrusted with duties which might, because of their number or nature, interfere with effective inspection or prejudice in any way their authority or impartiality in their relations with shipowners, seafarers or other interested parties. In particular, inspectors shall: (a) be prohibited from having any direct or indirect interest in any operation which they are called upon to inspect; and (R183P15/a) (b) subject to appropriate sanctions or disciplinary measures, not reveal, even after leaving service, any commercial secrets or confidential working processes or information of a personal nature which may come to their knowledge in the course of their duties. (R183P15/b) . Inspectors shall submit a report of each inspection to the competent authority. One copy of the report in English or in the working language of the ship shall be furnished to the master of the ship and another copy shall be posted on the ship’s notice board for the information of the seafarers and, upon request, sent to their representatives. (C.178A9/1) . The competent authority of any Member shall maintain records of inspections of the conditions for seafarers on ships that fly its flag. (C.178A8/1) It shall publish an annual report on inspection activities, within a reasonable time, not exceeding six months, after the end of the year. (C.178A8/2) . In the case of an investigation pursuant to a major incident, the report shall be submitted to the competent authority as soon as practicable, but not later than one month following the conclusion of the investigation. (C.178A9/2) . When an inspection is conducted or when measures are taken under this Standard, all reasonable efforts shall be made to avoid a ship being unreasonably detained or delayed. (C.178A6/1) . Compensation shall be payable in accordance with national laws and regulations for any loss or damage suffered as a result of the wrongful exercise of the inspectors’ powers. The burden of proof in each case shall be on the complainant. (modified C.178A6/2; see also MARPOL, 73A7(2), read with A4(1))

. Adequate penalties and other corrective measures for breaches of the requirements of this Convention (including seafarers’ rights) and for obstructing inspectors in the performance of their duties shall be provided for and effectively enforced by each Member. (modified C.178A7/1) Guideline B..—Inspection and enforcement . The competent authority and any other service or authority wholly or partly concerned with the inspection of seafarers’ working and living conditions should have the resources necessary to fulfil their functions. (R.185P3). In particular:

annotated maritime labour convention, 

.

.

.

.

. . .



(a) each Member should take the necessary measures so that duly qualified technical experts and specialists may be called upon, as needed, to assist in the work of inspectors; and (R.185P9) (b) inspectors should be provided with conveniently situated premises, equipment and means of transport adequate for the efficient performance of their duties. (R.185P11) The competent authority should develop a compliance and enforcement policy to ensure consistency and otherwise guide inspection and enforcement activities related to this Convention. Copies of this policy should be provided to all inspectors and relevant law-enforcement officials and should be made available to the public and shipowners and seafarers. The competent authority should establish simple procedures to enable it to receive information in confidence concerning possible breaches of the requirements of this Convention (including seafarers’ rights) presented by seafarers directly or by representatives of the seafarers, and permit inspectors to investigate such matters promptly, including: (a) enabling masters, seafarers or representatives of the seafarers to request an inspection when they consider it necessary; and (b) supplying technical information and advice to shipowners and seafarers and organizations concerned as to the most effective means of complying with the requirements of this Convention and of bringing about a continual improvement in seafarers’ on-board conditions. (R.185P6) Inspectors should be fully trained and sufficient in numbers to secure the efficient discharge of their duties with due regard to: (a) the importance of the duties which the inspectors have to perform, in particular the number, nature and size of ships subjec to inspection and the number and complexity of the legal provisions to be enforced; (b) the resources placed at the disposal of the inspectors; and (c) the practical conditions under which inspections must be carried out in order to be effective. (R.185P4) Subject to any conditions for recruitment to the public service which may be prescribed by national laws and regulations, inspectors should have qualifications and adequate training to perform their duties and where possible should have a maritime education or experience as a seafarer. They should have adequate knowledge of seafarers’ working and living conditions and of the English language. Measures should be taken to provide inspectors with appropriate further training during their employment. (R.185P8) All inspectors should have a clear understanding of the circumstances in which an inspection should be carried out, the scope of the inspection to be carried out in the various circumstances referred to and the general method of inspection. Inspectors provided with proper credentials under the national law should at aminimum be empowered: (a) to board ships freely and without previous notice; (R.185P5) however, when commencing the ship inspection, inspectors should provide notification of their presence to the master or person in charge and, where appropriate, to the seafarers or their representatives; (R.185P13) (b) to question the master, seafarer or any other person, including the ship-



appendix  owner or the shipowner’s representative, on any matter concerning the application of the requirements under laws and regulations, in the presence of any witness that the person may have requested; (c) to require the production of any books, log books, registers, certificates or other documents or information directly related to matters subject to inspection, in order to verify compliance with the national laws and regulations implementing this Convention; (d) to enforce the posting of notices required under the national laws and regulations implementing this Convention; (e) to take or remove, for the purpose of analysis, samples of products, cargo, drinking water, provisions, materials and substances used or handled; (R.185P12)

(f) following an inspection, to bring immediately to the attention of the shipowner, the operator of the ship or the master, deficiencies which may affect the health and safety of those on board ship; (R.185P15) (g) to alert the competent authority and, if applicable, the recognized organization to any deficiency or abuse not specifically covered by existing laws or regulations and submit proposals to them for the improvement of the laws or regulations; and (h) to notify the competent authority of any occupational injuries or diseases affecting seafarers in such cases and in such manner as may be prescribed by laws and regulations. (R.185P14) . When a sample referred to in paragraph (e) of this Guideline is being taken or removed, the shipowner or the shipowner’s representative, and where appropriate a seafarer, should be notified or should be present at the time the sample is taken or removed. The quantity of such a sample should be properly recorded by the inspector. (R.185P12) . The annual report published by the competent authority of any Member, in respect of ships that fly its flag, should contain: (a) a list of laws and regulations in force relevant to seafarers’ working and living conditions and any amendments which have come into effect during the year; (b) details of the organization of the system of inspection; (c) statistics of ships or other premises subject to inspection and of ships and other premises actually inspected; (d) statistics on all seafarers subject to its national laws and regulations; (e) statistics and information on violations of legislation, penalties imposed and cases of detention of ships; and (f) statistics on reported occupational injuries and diseases affecting seafarers. (R.185P16)

Regulation ..—On-board complaint procedures . Each Member shall require that ships that fly its flag have on-board procedures for the fair, effective and expeditious handling of seafarer complaints alleging breaches of the requirements of this Convention (including seafarers’ rights). . Each Member shall prohibit and penalize any kind of victimization of a seafarer for filing a complaint.

annotated maritime labour convention, 



. The provisions in this Regulation and related sections of the Code are without prejudice to a seafarer’s right to seek redress through whatever legal means the seafarer considers appropriate. Standard A..—On-board complaint procedures . Without prejudice to any wider scope that may be given in national laws or regulations or collective agreements, the on-board procedures may be used by seafarers to lodge complaints relating to any matter that is alleged to constitute a breach of the requirements of this Convention (including seafarers’ rights). . Each Member shall ensure that, in its laws or regulations, appropriate on-board complaint procedures are in place to meet the requirements of Regulation ... Such procedures shall seek to resolve complaints at the lowest level possible. However, in all cases, seafarers shall have a right to complain directly to the master and, where they consider it necessary, to appropriate external authorities. . The on-board complaint procedures shall include the right of the seafarer to be accompanied or represented during the complaints procedure, as well as safeguards against the possibility of victimization of seafarers for filing complaints. The term “victimization” covers any adverse action taken by any person with respect to a seafarer for lodging a complaint which is not manifestly vexatious or maliciously made. . In addition to a copy of their seafarers’ employment agreement, all seafarers shall be provided with a copy of the on-board complaint procedures applicable on the ship. This shall include contact information for the competent authority in the flag State and, where different, in the seafarers’ country of residence, and the name of a person or persons on board the ship who can, on a confidential basis, provide seafarers with impartial advice on their complaint and otherwise assist them in following the complaint procedures available to them on board the ship. Guideline B..—On-board complaint procedures . Subject to any relevant provisions of an applicable collective agreement, the competent authority should, in close consultation with shipowners’ and seafarers’ organizations, develop a model for fair, expeditious and well-documented onboard complaint-handling procedures for all ships that fly the Member’s flag. In developing these procedures the following matters should be considered: (a) many complaints may relate specifically to those individuals to whom the complaint is to be made or even to the master of the ship. In all cases seafarers should also be able to complain directly to the master and to make a complaint externally; and (b) in order to help avoid problems of victimization of seafarers making complaints about matters under this Convention, the procedures should encourage the nomination of a person on board who can advise seafarers on the procedures available to them and, if requested by the complainant seafarer, also attend any meetings or hearings into the subject matter of the complaint. . At a minimum the procedures discussed during the consultative process referred to in paragraph  of this Guideline should include the following:



appendix  (a) complaints should be addressed to the head of the department of the seafarer lodging the complaint or to the seafarer’s superior officer; (b) the head of department or superior officer should then attempt to resolve the matter within prescribed time limits appropriate to the seriousness of the issues involved; (c) if the head of department or superior officer cannot resolve the complaint to the satisfaction of the seafarer, the latter may refer it to the master, who should handle the matter personally; (d) seafarers should at all times have the right to be accompanied and to be represented by another seafarer of their choice on board the ship concerned; (e) all complaints and the decisions on them should be recorded and a copy provided to the seafarer concerned; (f) if a complaint cannot be resolved on board, the matter should be referred ashore to the shipowner, who should be given an appropriate time limit for resolving the matter, where appropriate, in consultation with the seafarers concerned or any person they may appoint as their representative; and (g) in all cases seafarers should have a right to file their complaints directly with the master and the shipowner and competent authorities. Regulation ..—Marine casualties

. Each Member shall hold an official inquiry into any serious marine casualty, leading to injury or loss of life, that involves a ship that flies its flag. The final report of an inquiry shall normally be made public. (modified C.147A.2(g)) . Members shall cooperate with each other to facilitate the investigation of serious marine casualties referred to in paragraph  of this Regulation. Standard A..—Marine casualties (No provisions) Guideline B..—Marine casualties (No provisions) Regulation .—Port state responsibilities Purpose: To enable each Member to implement its responsibilities under this Convention regarding international cooperation in the implementation and enforcement of the Convention standards on foreign ships Regulation ..—Inspections in port . Every foreign ship calling, in the normal course of its business or for operational reasons, in the port of a Member may be the subject of inspection in accordance with paragraph  of Article V for the purpose of reviewing compliance with the requirements of this Convention (including seafarers’ rights) relating to the working and living conditions of seafarers on the ship. . Each Member shall accept the maritime labour certificate and the declaration of maritime labour compliance required under Regulation .. (modified C.147A.4) as prima facie evidence of compliance with the requirements of this Convention

annotated maritime labour convention, 



(including seafarers’ rights). Accordingly, the inspection in its ports shall, except in the circumstances specified in the Code, be limited to a review of the certificate and declaration. . Inspections in a port shall be carried out by authorized officers in accordance with the provisions of the Code and other applicable international arrangements governing port State control inspections in the Member. Any such inspection shall be limited to verifying that the matter inspected is in conformity with the relevant requirements set out in the Articles and Regulations of this Convention and in Part A only of the Code. . Inspections that may be carried out in accordance with this Regulation shall be based on an effective port State inspection and monitoring system to help ensure that the working and living conditions for seafarers on ships entering a port of the Member concerned meet the requirements of this Convention (including seafarers’ rights). . Information about the system referred to in paragraph  of this Regulation, including the method used for assessing its effectiveness, shall be included in the Member’s reports pursuant to Article  of the Constitution. Standard A..—Inspections in port . Where an authorized officer, having come on board to carry out an inspection and requested, where applicable, the maritime labour certificate and the declaration of maritime labour compliance, finds that: (a) the required documents are not produced or maintained or are falsely maintained or that the documents produced do not contain the information required by this Convention or are otherwise invalid; or (b) there are clear grounds for believing that the working and living conditions on the ship do not conform to the requirements of this Convention; or (c) there are reasonable grounds to believe that the ship has changed flag for the purpose of avoiding compliance with this Convention; or (d) there is a complaint alleging that specific working and living conditions on the ship do not conform to the requirements of this Convention; a more detailed inspection may be carried out to ascertain the working and living conditions on board the ship. Such inspection shall in any case be carried out where the working and living conditions believed or alleged to be defective could constitute a clear hazard to the safety, health or security of seafarers or where the authorized officer has grounds to believe that any deficiencies constitute a serious breach of the requirements of this Convention (including seafarers’ rights). . Where a more detailed inspection is carried out on a foreign ship in the port of a Member by authorized officers in the circumstances set out in subparagraph (a), (b) or (c) of paragraph  of this Standard, it shall in principle cover the matters listed in Appendix A-III. . In the case of a complaint under paragraph (d) of this Standard, the inspection shall generally be limited to matters within the scope of the complaint, although a complaint, or its investigation, may provide clear grounds for a detailed inspection in accordance with paragraph (b) of this Standard. For the purpose of paragraph (d) of this Standard, “complaint” means information submitted by a seafarer, a professional body, an association, a trade union or, generally, any person



.

.

.

. .

appendix  with an interest in the safety of the ship, including an interest in safety or health hazards to seafarers on board. (C.147A4/3) Where, following a more detailed inspection, the working and living conditions on the ship are found not to conform to the requirements of this Convention, the authorized officer shall forthwith bring the deficiencies to the attention of the master of the ship, with required deadlines for their rectification. In the event that such deficiencies are considered by the authorized officer to be significant, or if they relate to a complaint made in accordance with paragraph  of this Standard, the authorized officer shall bring the deficiencies to the attention of the appropriate seafarers’ and shipowners’ organizations in the Member in which the inspection is carried out, and may: (a) notify a representative of the flag State; (b) provide the competent authorities of the next port of call with the relevant information. The Member in which the inspection is carried out shall have the right to transmit a copy of the officer’s report, which must be accompanied by any reply received from the competent authorities of the flag State within the prescribed deadline, to the Director-General of the International Labour Office with a view to such action as may be considered appropriate and expedient in order to ensure that a record is kept of such information and that it is brought to the attention of parties which might be interested in availing themselves of relevant recourse procedures. Where, following a more detailed inspection by an authorized officer, the ship is found not to conform to the requirements of this Convention and: (a) the conditions on board are clearly hazardous to the safety, health or security of seafarers; or (b) the non-conformity constitutes a serious or repeated breach of the requirements of this Convention (including seafarers’ rights); the authorized officer shall take steps to ensure that the ship shall not proceed to sea until any non-conformities that fall within the scope of subparagraph (a) or (b) of this paragraph have been rectified, or until the authorized officer has accepted a plan of action to rectify such non-conformities and is satisfied that the plan will be implemented in an expeditious manner. If the ship is prevented from sailing, the authorized officer shall forthwith notify the flag State accordingly and invite a representative of the flag State to be present, if possible, requesting the flag State to reply within a prescribed deadline. The authorized officer shall also inform forthwith the appropriate shipowners’ and seafarers’ organizations in the port State in which the inspection was carried out. Each Member shall ensure that its authorized officers are given guidance, of the kind indicated in Part B of the Code, as to the kinds of circumstances justifying detention of a ship under paragraph  of this Standard. When implementing their responsibilities under this Standard, each Member shall make all possible efforts to avoid a ship being unduly detained or delayed. If a ship is found to be unduly detained or delayed, compensation shall be paid for any loss or damage suffered. The burden of proof in each case shall be on the complainant. (modified C178A6.2)

annotated maritime labour convention, 



Guideline B..—Inspections in port . The competent authority should develop an inspection policy for authorized officers carrying out inspections under Regulation ... The objective of the policy should be to ensure consistency and to otherwise guide inspection and enforcement activities related to the requirements of this Convention (including seafarers’ rights). Copies of this policy should be provided to all authorized officers and should be available to the public and shipowners and seafarers. . When developing a policy relating to the circumstances warranting a detention of the ship under paragraph  of Standard A.., the competent authority should consider that with respect to the breaches referred to in paragraph (b) of Standard A.., the seriousness could be due to the nature of the deficiency concerned. This would be particularly relevant in the case of the violation of fundamental rights and principles or seafarers’ employment and social rights under Articles III and IV. For example, the employment of a person who is under age should be considered as a serious breach even if there is only one such person on board. In other cases, the number of different defects found during a particular inspection should be taken into account: for example, several instances of defects relating to accommodation or food and catering which do not threaten safety or health might be needed before they should be considered as constituting a serious breach. . Members should cooperate with each other to the maximum extent possible in the adoption of internationally agreed guidelines on inspection policies, especially those relating to the circumstances warranting the detention of a ship. Regulation ..—Onshore seafarer complaint-handling procedures . Each Member shall ensure that seafarers on ships calling at a port in the Member’s territory, who allege a breach of the requirements of this Convention (including seafarers’ rights) have the right to report such a complaint in order to facilitate a prompt and practical means of redress. Standard A..—Onshore seafarer complaint-handling procedures . A complaint by a seafarer alleging a breach of the requirements of this Convention (including seafarers’ rights) may be reported to an authorized officer in the port at which the seafarer’s ship has called. In such cases, the authorized officer shall undertake an initial investigation. . Where appropriate, given the nature of the complaint, the initial investigation shall include consideration of whether the on-board complaint procedures provided under Regulation .. have been explored. The authorized officer may also conduct a more detailed inspection in accordance with Standard A... . The authorized officer shall, where appropriate, seek to promote a resolution of the complaint at the ship-board level. . In the event that the investigation or the inspection provided under this Standard reveals a non-conformity that falls within the scope of paragraph  of Standard A.., the provisions of that paragraph shall be applied. . Where the provisions of paragraph  of this Standard do not apply, and the complaint has not been resolved at the ship-board level, the authorized officer



appendix 

shall forthwith notify the flag State, seeking, within a prescribed deadline, advice and a corrective plan of action. . Where the complaint has not been resolved following action taken in accordance with paragraph  of this Standard, the port State shall transmit a copy of the authorized officer’s report to the Director-General. The report must be accompanied by any reply received within the prescribed deadline from the competent authority of the flag State. The appropriate shipowners’ and seafarers’ organizations in the port State shall be similarly informed. In addition, statistics and information regarding complaints that have been resolved shall be regularly submitted by the port State to the Director-General. Both such submissions are provided in order that, on the basis of such action as may be considered appropriate and expedient, a record is kept of such information and is brought to the attention of parties, including shipowners’ and seafarers’ organizations, which might be interested in availing themselves of relevant recourse procedures. . Appropriate steps shall be taken to safeguard the confidentiality of complaints made by seafarers. Guideline B..—Onshore seafarer complaint-handling procedures . Where a complaint referred to in Standard A.. is dealt with by an authorized officer, the officer should first check whether the complaint is of a general nature which concerns all seafarers on the ship, or a category of them, or whether it relates only to the individual case of the seafarer concerned. . If the complaint is of a general nature, consideration should be given to undertaking a more detailed inspection in accordance with Standard A... . If the complaint relates to an individual case, an examination of the results of any on-board complaint procedures for the resolution of the complaint concerned should be undertaken. If such procedures have not been explored, the authorized officer should suggest that the complainant take advantage of any such procedures available. There should be good reasons for considering a complaint before any on-board complaint procedures have been explored. These would include the inadequacy of, or undue delay in, the internal procedures or the complainant’s fear of reprisal for lodging a complaint. . In any investigation of a complaint, the authorized officer should give the master, the shipowner and any other person involved in the complaint a proper opportunity to make known their views. . In the event that the flag State demonstrates, in response to the notification by the port State in accordance with paragraph  of Standard A.., that it will handle the matter, and that it has in place effective procedures for this purpose and has submitted an acceptable plan of action, the authorized officer may refrain from any further involvement with the complaint. Regulation .—Labour-supplying responsibilities Purpose: To ensure that each Member implements its responsibilities under this Convention as pertaining to seafarer recruitment and placement and the social protection of its seafarers

annotated maritime labour convention, 



. Without prejudice to the principle of each Member’s responsibility for the working and living conditions of seafarers on ships that fly its flag, the Member also has a responsibility to ensure the implementation of the requirements of this Convention regarding the recruitment and placement of seafarers as well as the social security protection of seafarers that are its nationals or are resident or are otherwise domiciled in its territory, to the extent that such responsibility is provided for in this Convention. . Detailed requirements for the implementation of paragraph  of this Regulation are found in the Code. . Each Member shall establish an effective inspection and monitoring system for enforcing its labour-supplying responsibilities under this Convention. . Information about the system referred to in paragraph  of this Regulation, including the method used for assessing its effectiveness, shall be included in the Member’s reports pursuant to Article  of the Constitution. Standard A.—Labour-supplying responsibilities . Each Member shall enforce the requirements of this Convention applicable to the operation and practice of seafarer recruitment and placement services established on its territory through a system of inspection and monitoring and legal proceedings for breaches of licensing and other operational requirements provided for in Standard A.. Guideline B.—Labour-supplying responsibilities . Private seafarer recruitment and placement services established in the Member’s territory and securing the services of a seafarer for a shipowner, wherever located, should be required to assume obligations to ensure the proper fulfilment by shipowners of the terms of their employment agreements concluded with seafarers.



appendix  Appendix A-I

The working and living conditions of seafarers that must be inspected and approved by the flag State before certifying a ship in accordance with Standard A.., paragraph : Minimum age Medical certification Qualifications of seafarers Seafarers’ employment agreements Use of any licensed or certified or regulated private recruitment and placement service Hours of work or rest Manning levels for the ship Accommodation On-board recreational facilities Food and catering Health and safety and accident prevention On-board medical care On-board complaint procedures Payment of wages

annotated maritime labour convention, 



Appendix A-II Maritime Labour Certificate (Note: This Certificate shall have a Declaration of Maritime Labour Compliance attached) Issued under the provisions of Article V and Title  of the Maritime Labour Convention,  (referred to below as “the Convention”) under the authority of the Government of: ........................ (full designation of the State whose flag the ship is entitled to fly) by . . . . . . . . . . . . . . . . . . . . . . . (full designation and address of the competent authority or recognized organization duly authorized under the provisions of the Convention) Particulars of the ship Name of ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distinctive number or letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Port of registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date of registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gross tonnage2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IMO number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Type of ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name and address of the shipowner3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . This is to certify: (i) a. That this ship has been inspected and verified to be in compliance with the requirements of the Convention, and the provisions of the attached Declaration of Maritime Labour Compliance. b. That the seafarers’ working and living conditions specified in Appendix A-I of the Convention were found to correspond to the abovementioned country’s national requirements implementing the Convention. These national requirements are summarized in the Declaration of Maritime Labour Compliance, Part I. This Certificate is valid until . . . . . . . . . . . . . subject to inspections in accordance with Standards A.. and A.. of the Convention.

2 For ships covered by the tonnage measurement interim scheme adopted by the IMO, the gross tonnage is that which is included in the REMARKS column of the International Tonnage Certificate (). 3 Shipowner means the owner of the ship or another organization or person, such as the manager, agent or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention, regardless of whether any other organizations or persons fulfil certain of the duties or responsibilities on behalf of the shipowner.



appendix 

This Certificate is valid only when the Declaration of Maritime Labour Compliance issued at . . . . . . . . . . . . . on . . . . . . . . . . . . . is attached. Completion date of the inspection on which this Certificate is based was . . . . . . . . . . Issued at . . . . . . . . . . . . . on . . . . . . . . . . . . . Signature of the duly authorized official issuing the Certificate (Seal or stamp of issuing authority, as appropriate) Endorsements for mandatory intermediate inspection and, if required, any additional inspection This is to certify that the ship was inspected in accordance with Standards A.. and A.. of the Convention and that the seafarers’ working and living conditions specified in Appendix A-I of the Convention were found to correspond to the abovementioned country’s national requirements implementing the Convention. Intermediate inspection: (to be completed between the second and third anniversary dates)

Signed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (signature of authorized official) ........................................ Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate)

Additional endorsements (if required) This is to certify that the ship was the subject of an additional inspection for the purpose of verifying that the ship continued to be in compliance with the national requirements implementing the Convention, as required by Standard A., paragraph , of the Convention (re-registration or substantial alteration of accommodation) or for other reasons. Additional inspection: (if required)

Signed (signature of authorized official) ........................................ Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate)

Additional inspection: (if required)

Signed (signature of authorized official) ........................................ Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate)

Additional inspection: (if required)

Signed (signature of authorized official) ........................................ Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate)

annotated maritime labour convention, 



Maritime Labour Convention,  Declaration of Maritime Labour Compliance—Part I (Note: This Declaration must be attached to the ship’s Maritime Labour Certificate) Issued under the authority of: . . . . . . . . . . . . . (insert name of competent authority as defined in Article II, paragraph (a), of the Convention) With respect to the provisions of the Maritime Labour Convention, , the following referenced ship: Name of ship

IMO number

Gross tonnage

is maintained in accordance with Standard A.. of the Convention. The undersigned declares, on behalf of the abovementioned competent authority, that: (a) the provisions of the Maritime Labour Convention are fully embodied in the national requirements referred to below; (b) these national requirements are contained in the national provisions referenced below; explanations concerning the content of those provisions are provided where necessary; (c) the details of any substantial equivalencies under Article VI, paragraphs  and , are provided under the corresponding national requirement listed below in the section provided for this purpose below (strike out the statement which is not applicable); (d) any exemptions granted by the competent authority in accordance with Title  are clearly indicated in the section provided for this purpose below; and (e) any ship-type specific requirements under national legislation are also referenced under the requirements concerned. . Minimum age (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Medical certification (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Qualifications of seafarers (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Seafarers’ employment agreements (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . Use of any licensed or certified or regulated private recruitment and placement service (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hours of work or rest (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manning levels for the ship (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accommodation (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . On-board recreational facilities (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Food and catering (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Health and safety and accident prevention (Regulation .) . . . . . . . . . . . . . . . . . . . . On-board medical care (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . On-board complaint procedures (Regulation ..) . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of wages (Regulation .) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



appendix  Name: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Title: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Place: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate) Substantial equivalencies (Note: Strike out the statement which is not applicable)

The following substantial equivalencies, as provided under Article VI, paragraphs  and , of the Convention, except where stated above, are noted (insert description if applicable): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......................................................................... No equivalency has been granted. Name: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Title: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Place: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate) Exemptions (Note: Strike out the statement which is not applicable) The following exemptions granted by the competent authority as provided in Title  of the Convention are noted: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......................................................................... No exemption has been granted. Name: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Title: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Place: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate)

annotated maritime labour convention, 



Declaration of Maritime Labour Compliance—Part II Measures adopted to ensure ongoing compliance between inspections The following measures have been drawn up by the shipowner, named in the Maritime Labour Certificate to which this Declaration is attached, to ensure ongoing compliance between inspections: (State below the measures drawn up to ensure compliance with each of the items in Part I) . Minimum age (Regulation .) ..................................................................... . Medical certification (Regulation .) ..................................................................... . Qualifications of seafarers (Regulation .) ..................................................................... . Seafarers’ employment agreements (Regulation .) ..................................................................... . Use of any licensed or certified or regulated private recruitment and placement service (Regulation .) ..................................................................... . Hours of work or rest (Regulation .) ..................................................................... . Manning levels for the ship (Regulation .) ..................................................................... . Accommodation (Regulation .) ..................................................................... . On-board recreational facilities (Regulation .) ..................................................................... . Food and catering (Regulation .) ..................................................................... . Health and safety and accident prevention (Regulation .) ..................................................................... . On-board medical care (Regulation .) ..................................................................... . On-board complaint procedures (Regulation ..) ..................................................................... . Payment of wages (Regulation .) .....................................................................

® ® ® ® ®

® ® ® ® ® ® ® ® ®

I hereby certify that the above measures have been drawn up to ensure ongoing compliance, between inspections, with the requirements listed in Part I.



appendix  Name of shipowner:4 . . . . . . . . . . . . . . . . . . . . . Company address: . . . . . . . . . . . . . . . . . . . . . . . . Name of the authorized signatory: . . . . . . . . . . Title: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature of the authorized signatory: . . . . . . . Date: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Stamp or seal of the authorized signatory)

The above measures have been reviewed by (insert name of competent authority or duly recognized organization) and, following inspection of the ship, have been determined as meeting the purposes set out under Standard A.., paragraph (b), regarding measures to ensure initial and ongoing compliance with the requirements set out in Part I of this Declaration. Name: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Title: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Place: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seal or stamp of the authority, as appropriate)

4

Shipowner means the owner of the ship or another organization or person, such as the manager, agent or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention, regardless of whether any other organizations or persons fulfil certain of the duties or responsibilities on behalf of the shipowner.

annotated maritime labour convention, 



Interim Maritime Labour Certificate Issued under the provisions of Article V and Title  of the Maritime Labour Convention,  (referred to below as “the Convention”) under the authority of the Government of: ........................ (full designation of the State whose flag the ship is entitled to fly) by . . . . . . . . . . . . . . . . . . . . . . . (full designation and address of the competent authority or recognized organization duly authorized under the provisions of the Convention) Particulars of the ship Name of ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distinctive number or letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Port of registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date of registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gross tonnage.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IMO number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Type of ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Name and address of the shipowner6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . This is to certify, for the purposes of Standard A.., paragraph , of the Convention, that: (a) this ship has been inspected, as far as reasonable and practicable, for the matters listed in Appendix A-I to the Convention, taking into account verification of items under (b), (c) and (d) below; (b) the shipowner has demonstrated to the competent authority or recognized organization that the ship has adequate procedures to comply with the Convention; (c) the master is familiar with the requirements of the Convention and the responsibilities for implementation; and (d) relevant information has been submitted to the competent authority or recognized organization to produce a Declaration of Maritime Labour Compliance. This Certificate is valid until . . . . . . . . . . . . . subject to inspections in accordance with Standards A.. and A... Completion date of the inspection referred to under (a) above was . . . . . . . . . . . . .

5 For ships covered by the tonnage measurement interim scheme adopted by the IMO, the gross tonnage is that which is included in the REMARKS column of the International Tonnage Certificate (). 6 Shipowner means the owner of the ship or another organization or person, such as the manager, agent or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention, regardless of whether any other organizations or persons fulfil certain of the duties or responsibilities on behalf of the shipowner.



appendix 

Issued at . . . . . . . . . . . . . on . . . . . . . . . . . . . Signature of the duly authorized official issuing the interim certificate (Seal or stamp of issuing authority, as appropriate)

annotated maritime labour convention, 



Appendix A-III General areas that are subject to a detailed inspection by an authorized officer in a port of a Member carrying out a port State inspection pursuant to Standard A..: Minimum age Medical certification Qualifications of seafarers Seafarers’ employment agreements Use of any licensed or certified or regulated private recruitment and placement service Hours of work or rest Manning levels for the ship Accommodation On-board recreational facilities Food and catering Health and safety and accident prevention On-board medical care On-board complaint procedures Payment of wages



appendix  Appendix B-I—EXAMPLE of a national Declaration See Guideline B.., paragraph  Maritime Labour Convention,  Declaration of Maritime Labour Compliance—Part I (Note: This Declaration must be attached to the ship’s Maritime Labour Certificate)

Issued under the authority of: The Ministry of Maritime Transport of Xxxxxx With respect to the provisions of the Maritime Labour Convention, , the following referenced ship: Name of ship

IMO number

Gross tonnage

is maintained in accordance with Standard A.. of the Convention. The undersigned declares, on behalf of the abovementioned competent authority, that: (a) the provisions of the Maritime Labour Convention are fully embodied in the national requirements referred to below; (b) these national requirements are contained in the national provisions referenced below; explanations concerning the content of those provisions are provided where necessary; (c) the details of any substantial equivalencies under Article VI, paragraphs  and , are provided under the corresponding national requirement listed below in the section provided for this purpose below (strike out the statement which is not applicable); (d) any exemptions granted by the competent authority in accordance with Title  are clearly indicated in the section provided for this purpose below; and (e) any ship-type specific requirements under national legislation are also referenced under the requirements concerned. . Minimum age (Regulation .) Shipping Law, No.  of , as amended (“Law”), Chapter X; Shipping Regulations (“Regulations”), , Rules –. Minimum ages are those referred to in the Convention. “Night” means  pm to  am unless the Ministry of Maritime Transport (“Ministry”) approves a different period. Examples of hazardous work restricted to -year-olds or over are listed in Schedule A hereto. In the case of cargo ships, no one under  may work in the areas marked on the ship’s plan (to be attached to this Declaration) as “hazardous area”.

annotated maritime labour convention, 



. Medical certification (Regulation .) Law, Chapter XI; Regulations, Rules –. Medical certificates shall conform to the STCW requirements, where applicable; in other cases, the STCW requirements are applied with any necessary adjustments. Qualified opticians on list approved by Ministry may issue certificates concerning eyesight. Medical examinations follow the ILO/WHO Guidelines referred to in Guideline B.. .......................................................................... ..........................................................................



appendix  Declaration of Maritime Labour Compliance—Part II Measures adopted to ensure ongoing compliance between inspections

The following measures have been drawn up by the shipowner, named in the Maritime Labour Certificate to which this Declaration is attached, to ensure ongoing compliance between inspections: (State below the measures drawn up to ensure compliance with each of the items in Part I) . Minimum age (Regulation .)

˛

Date of birth of each seafarer is noted against his/her name on the crew list. The list is checked at the beginning of each voyage by the master or officer acting on his or her behalf (“competent officer”), who records the date of such verification. Each seafarer under  receives, at the time of engagement, a note prohibiting him/her from performing night work or the work specifically listed as hazardous (see Part I, section , above) and any other hazardous work, and requiring him/her to consult the competent officer in case of doubt. A copy of the note, with the seafarer’s signature under “received and read”, and the date of signature, is kept by the competent officer. . Medical certification (Regulation .) The medical certificates are kept in strict confidence by the competent officer, together with a list, prepared under the competent officer’s responsibility and stating for each seafarer on board: the functions of the seafarer, the date of the current medical certificate(s) and the health status noted on the certificate concerned. In any case of possible doubt as to whether the seafarer is medically fit for a particular function or functions, the competent officer consults the seafarer’s doctor or another qualified practitioner and records a summary of the practitioner’s conclusions, as well as the practitioner’s name and telephone number and the date of the consultation.

˛

INDEX

Note: ‘Appendices’, ‘Articles’, ‘Guidelines’, ‘Regulations’, and ‘Standards’ sub-entries refer to the relevant MLC,  provisions abandonment (seafarers), n, – , , –, n, ,  able seaman, , n, – Abolition of Forced Labour Convention,  (No. ), n, n accelerated amendment procedure see amendment procedures, simplified accident prevention see occupational safety and health accommodation, , – accompanying partners, n,  air conditioning, , – ambient factors, –, –, , –, , n, , –,  and DMLC, , – and entry into force, – and minimum standards, , – , – and occupational safety and health, , , , , –, – , ,  and passenger ships, – and special purpose ships, – bedding, ,  berths, , –, n &  compliance and enforcement, , – day voyages, n,  ‘decent accommodation’, , , , , – ‘decently habitable’, – design and construction, –, , –, , –, n, , –, –,  exemptions (tonnage), –,

–, , , –, , n, –, – existing ships, –, –, –, , , n, ,  flexibility (national implementation), , –, , –, – , –, ,  floor area provisions, n, , n, , –, –, –, n,  Guidelines, –, , –, –, –, n, , – head room,  heating, ,  hospital accommodation, , , –, , , ,  inspections, , , , –, –, n, ,  laundry facilities,  lighting, , , , ,  mess rooms, , , n, n, – mess utensils,  national regulation, –, –  noise levels, , , –, , , , – Regulations, f, –, , , n,  religious and social practices, , – sanitary facilities, , , , , – sleeping rooms, , n, n, n, , , , n, –, –



index

accommodation (cont.) special circumstances, n Standards, –, , –, n tobacco smoke, n, n, , ,  utensils (eating),  ventilation, , , – vibration levels, , , –, , , , – see also recreational facilities Accommodation of Crews Convention (Revised),  (No. ), n, n, n, , –, n, –, n Accommodation of Crews (Supplementary Provisions) Convention,  (No. ), n, n, , –, n, , n, – , n Algeria, n, n, n, , n ambient factors, –, –, n, –, , n, , –,  amendment procedures, , , , , –, , , , –, –, – , , , , –, –, , , , , –, –  acceptance formula,  and Member States, –, – Articles, –, – proposed amendments (to MLC, ), , n, –, , , –, n, ,  protocols, n simplified, , f, , , , – , , –, –, f, , , –, –, , , –, , , n, , n, ,  see also MLC,  Special Tripartite Committee Argentina, n, n, n, n, n, n articles of agreement, n, , , –, –, n,

n(para), n, f see also seafarers’ employment agreement Australia, –, n, , , n, , n, n, n, , n, n, n Austria, n,  authoritative languages, , –,  Bahamas, n, n, n, n, n, n, n, n, , , n, n, n, n, n, n Belgium, n, n, , , n Bosnia and Herzegovina, n Brazil, n, , n, n, n, n, n, n Bulgaria, n, n, n, n, , n, n, n, n Canada, n, n, –, n, , , n, , n, n, n career and skill development (seafarers), , –,  Guidelines, – Regulations, –,  seafarer shortage, – Standards, – women seafarers, , – see also recruitment and placement Cartier Working Party see ILO Governing Body, Working Party on Policy regarding the Revision of Standards catering see food and catering certification (ship), n, n, , , , , , n, , – , –, , , –, n, , ,  and recognized organizations, –, , , , – Appendices, f, n, , , , , –, –, , , –, , –

index areas subject to, , n, , , , , , –, – , , , , , , – , , n, , –, , , –, , –, , , –,  as prima facie evidence of compliance, , , –, n, n, , –, –  flag State responsibilities, , – , , , n, –, , , , , , , , n, –, , –, , –, , , , – , –, ,  Guidelines, n, , , – , –,  integrated approach (with IMO), –, , –, –, – mandatory, n, –, , , , –, –, , , – , –, , , , , , , , , , n, , –, , , , – , –,  ‘maritime labour conditions’, , –, ,  non-mandatory, –, , , –,  Regulations, , f, , , –, n, –,  Standards, n, , , – , – validity periods, –, n, –, –,  working and living conditions, , , , , , , , – , –, ,  see also compliance and enforcement; Declaration of Maritime Labour Compliance; inspection; Maritime Labour Certificate; no more favourable treatment Certification of Able Seamen Convention,  (No. ), n, , n, , n



Certification of Ships’ Cooks Convention,  (No. ), n, f, , ,  Charter of the United Nations,  child labour, , n, , – Chile,  China, , , –, , , n, n, n coastal State responsibilities, , n, , –, –, –,  collective bargaining, , n, n, –, n, n agreements (CBA), , , n, , , , –, n, , –, n, , , – , n&, , , , , n, , , n, , , n,  right to, n, n, , n, –, , n Commission on International Labour Legislation,  Committee of Experts on the Application of Conventions and Recommendations see International Labour Conference, Committee of Experts Committee on the Application of Standards see International Labour Conference, Conference Committee compensation (ship’s loss or foundering), f, , , – competent authority, n see also maritime administrations complaint-handling procedures (seafarers), –, , –, n, –,  and flag States, , , –, –, , –, – and labour-supplying State, n and port States, –, –, –, , –, –  and recognized organizations, – ,  and SEA, n, n and ship inspection, –, , –, 



index

complaint-handling procedures (cont.) ashore (external), , n, – , , –, –, – , , – confidentiality, ,  Guidelines, , –, – information requirements, – legal venue, –, – on-board (internal), , n, , –, n, –  Regulations, –, , , , , –, , – right to, , , , f, – , , – Standards, –, , –, – victimization prevention,  compliance and enforcement, –, –, , , , –, , , , , , , –, , n, , , , , –, , , – and flag State responsibilities, , , f, , –, – , , –, , , , –, –, , –, –, , –, –, , –, –, , , –, –, – and labour-supplying responsibilities, , , –, , – , , , , –, – ,  and national implementation (of MLC, ), , , , n, , –, , n, , , , , n, , , , , n, , –, n, –, , , , , ,  and port State responsibilities, – , , , f, –, – , , , , , , – , , , , –, , –, –,  and transfers between flags, , , , –, –, 

Appendices, , , , –, –, , , –, ,  Articles, –, , , , –, –, , ,  detention of ship, , , , , n, –, n, n, , , , , – , , –, , , – , n, – Guidelines, , –, , , , n, –, , n, n, , , , , , –, , , , –, , – introductory paragraphs (Title ), –, – negotiation history, , –, – , , –, –, f, n, , n, n, n, , –, –, , , –, –, –, , , , n,  non-ratifying States, –, , , –, , , –, n, n, –,  non-State level, , –, , n, , , , –, , , n, –, , , –, , , , , –, ,  penalties and sanctions, , n, ,  prima facie evidence of compliance, , , –, n, n, , –, – quality assessment,  recruitment practices, , , – , , –, – rectification of deficiencies, , , n, n, n, , –,  regional level, –, , , , , n, , n, n, , , , , , –, , n, –, , , , , 

index Regulations, f, –, , –, , , , , , , , –, n, – , –, – ‘serious breaches’, –, , – , n, , , , – , , , – Standards, –, , , , , , –, , , , n, , –, –, –, –, –, – , –, , – State-level, –, , , –, , n, –, –, , , , –, , –, –, –,  Sub-regulations, –, , –  substantial equivalence, , , , , n, n, n, , n, , n, , , –, , , , , , , n, , , , , –, n, , , – , ,  uniformity, , , ,  see also certification (ship); Declaration of Maritime Labour Compliance; flexibility (national implementation); ILO supervisory system; inspection; Maritime Labour Certificate; port State control; reporting requirements compliance and enforcement documentation see Declaration of Maritime Labour Compliance; Maritime Labour Certificate conditions of employment see seafarers’ employment agreement conflict of laws, , , –, , , , , –, , n, , n Consensual Statement of the Meeting of Experts on Working and Living Conditions of Seafarers on board Ships in International Registers, –, –, 



consultation (with seafarers’ and shipowners’ organizations), , , , n, –, , –, , , , , , , n, , , –, n, , , , ,  ‘after consultation’, –, ,  Articles, – ‘in consultation’, –,  see also tripartism Continuity of Employment (Seafarers) Convention,  (No. ), – continuous synopsis record, n, n,  contract law, ,  Convention Concerning the Protection of Wages,  (No. ), n Convention on the High Seas, , – , n and labour instruments,  cooperation, n, , , n, ,  Articles, –, , –,  duty to cooperate, n, –, , –, , –, – , , –, ,  international, –, , , n, n, , –, , , –, , , , , ,  technical, n, , , n crew, , , , n, , n, n, , n, , –, n, n see also seafarer Crew Accommodation (Air Conditioning) Recommendation,  (R), n,  Crew Accommodation (Noise Control) Recommendation,  (R), n Croatia, n, n, , n cruise ships, , –, n, , ,  see also passenger ships Cuba, n Cyprus, n, n, , , n, n, n, 



index

day voyages, , , n,  decent work concept, , , –, – , –, , , n, n, , –, , , , – ,  Declaration of Maritime Labour Compliance (DMLC), , –, n, – and interim MLC, , , n and port State control, , – and ship inspection, –, – , , –, , , – , , , – and ships not subject to certification, –, –, , n,  and ships without,  and substantial equivalence, – , – Appendices, f, n, f, , , –, , – as prima facie evidence of compliance, , , –, n, n, , – availability and format, , – ,  content, n, , , , –,  flag State responsibilities, –, , –, , –, – , –, – Guidelines, n, , –, –,  incomplete, n ‘models’, f, n, f, ,  Part I, f, –, , f, , , –, , ,  Part II, , f, , , , f, , , –, – , , n,  Regulations, f, , –, –, –, ,  Standards, –, –,  validity periods, –,  see also certification (ship); compliance and enforcement; Maritime Labour Certificate

definitions, – competent authority, n complaint,  construction and equipment,  cooperation, – gross tonnage, n hours of rest, –, –, n hours of work, – ‘Member’, – passenger ship,  recognized organization,  ‘requirements of this Convention’, – seafarer, , –, –, n, –, , – , n, n, –, n, – seafarer recruitment and placement service, –, – seafarers’ employment agreement, , – seafarers’ rights, – ship (existing), n ship, , , –, –, – shipowner, , –, – special purpose ship, n,  substantial equivalence, – tripartism, n, – Denmark, n, , n, n, n, n, , n, n, , n, n, n, n, , –, n, n, n, n, n, , n, n, n, n, n, n, , , n denunciation (conventions), , , – , , n, n, –, , n depository functions, , , ,  detention (ship), , , , , n, –, n, n, , , , , –, , – , , , –, n, –

index ‘determinations’ see flexibility (national implementation) discharge book (seafarers’),  discrimination, n, –, n, –, , , , , n, , , , – Discrimination (Employment and Occupation) Convention,  (No. ), –, n, n Discrimination (Employment and Occupation) Recommendation (R),  Djibouti, n domestic voyages, –, n, , –, , n, –, , , , n, , n ‘near-coastal voyage’, n, n,  dredgers, , , – Ecuador, n Egypt, n, n, , , n, n, n, n, n,  employer, n, n, –, –, , , , –, , –, , – and ILO supervisory system, , – , – see also shipowner employment and social rights, , , , , –, , –, , –, f, –, n, –, –, , –, –, –, , n, , , , –, , , , – Articles, –,  fundamental, –, , , n, –, n, – , n, –, , , , , n, ,  violations, –, , –, n, , , , –, , , – see also seafarers’ rights employment conditions, –,  employment contracts, n, , –, , , , , – , –, , –, –



, n, , n, f, n,  see also seafarers’ employment agreement Employment Injury Benefits Convention,  (No. ), n, n, n Employment Promotion and Protection against Unemployment Convention,  (No. ), n entry into force provisions, –, –, , , , , , –, – ,  and amendments, ,  Articles, –, – effect of, –, –, –  formulas, –, , n, –, ,  Equal Renumeration Convention,  (No. ), n, n Estonia, n, n, , n European Union, , , , n, n, , n, n, –, n, n, n, n exclusive economic zone, –, n,  existing ship provisions, n, – , –, –, , n, , ,  Finland, n, n, n, , , , n, n firmness and flexibility see flexibility (national implementation) fishing vessels, n, , , –, n flag State responsibilities, , , –, –, –, , –, f, , , –, –, –, , –, , –, – , , , , , , – , , , –, , – , –, –, –, –, –, –, – , , , , , n, n, –, –, ,



index

flag State responsibilities (cont.) n, n, –, , – , ,  and complaint-handling procedures, , , –, –, , –, – and DMLC, –, , –, , –, –, –, – and MLC, , –, , – , –,  and port State inspections, –, , , – and recognized organizations, – , – and seafarer recruitment, –, n, f genuine link, , , – inspection, –, –, , , –, n, n, , , , n, , –, , n, , , n, , , , , –, –, –, , n, , , , –, n, –, –, –, –, , , –, , –, – , –, n, , – ,  public availability of MLC,  ship certification, , –, , , n, –, , , , , , , , n, – , , –, , –, , , , –, –, ,  social security, –, –, , , , n, n, n, n, – flags of convenience see ship registration, genuine link & ‘open’ registry flexibility (national implementation), , n, , , , , –, –, , , –, , , n, n, n, , –, –, , , – , –, –, , , –, n, , , n,

–, n, n, , , , , –, – Articles, , –, –, n–, n, –, , , –, –, , , , – ‘determinations’, – devices, , , –, , n,  ‘due consideration’, –, , , , –, , , –, , , , , , , – , , n, , n,  exclusions, n, –, – , , –, , , – , –, –, –, , n, , , n, , n, –, n exemptions, , n, f, –, n, , –, , n, , –, , n, , , –, – , , n, –, – , , , – ‘special circumstances’, –, n see also compliance and enforcement; substantial equivalence food and catering, f, , n, , n catering facilities, ,  compliance procedures,  drinking water safety,  education and training, –, , , – flexibility, – Guidelines, –, , ,  inspection, –,  manning requirements, , – , ,  minimum age (ships’ cooks), , ,  Regulations, f, , –, n religious and social practices, 

index seafarer access to food and drinking water, , ,  ships’ cooks, f, , –, , ,  Standards, –, , –, – Food and Agriculture Organization of the United Nations (FAO), n Food and Catering (Ships’ Crews) Convention,  (No. ), n, n,  forced labour, n,  Forced Labour Convention,  (No. ), n, n Forty-Hour Week Convention,  (No. ), n foundering (ships), n, n, , – compensation, f, , , –  Guidelines, – Regulations,  Standards,  France, n, n, n, n, n, , , n& , , n, , n, n, n, n, n, – freedom of association, –, – , , –, n,  Freedom of Association and Protection of the Right to Organise Convention,  (No. ), , n, n, n, –,  ‘Friends of the President’ Groups, –, n, n, –, n fundamental principles and rights see employment and social rights Geneva Accord, , –, , , ,  see also Joint Maritime Commission Germany, n, , n, , n, n, n, , n, n, , , n, n, n, n



Ghana, n, , , n, , n globalization, –, , , –, , –, , , , , n, , , , , , –, , , , , –, – ‘fair’, , – ‘good faith’ standard, n, , f, n, , , , ,  governance, , –, , , – governments (in MLC,  negotiation), –, , –, , , , , n, –, , – , n, n, , – , –, n, –, , n, n, n, –, –, –, n, n, –, –, n, –, –, –, –, – , n, n, n, , –, –, , –, n, n, – Greece, n, n, n, n, , n, n, n, n, ,  grievance procedures see complainthandling procedures (seafarers) guidelines, –, , , , , n, –, , , –, – , , –, –, n, f, , , , n, , n, , , , , , – Guidelines (under MLC, ) see MLC,  Code, Part B; also by subject Guidelines for Flag State Inspection, –, , n, , , –, , , –, –, , , –, , , –, , –, , n Guidelines for Port State Control Officers, –, , n, , , , n, , n, n, n&, , –, –, – 



index

hazardous work,  Health Protection and Medical Care (Seafarers) Convention,  (No. ), n, , , , , n, ,  high seas, –, –, n High-level Tripartite Working Group on Maritime Labour Standards (HLTWG), , –, – Chairperson’s Summary (st meeting), – First meeting, –, – Fourth meeting, , –, , –, , –, , n, , , , , –, –, n, n, n, –, , –, , , n,  Preliminary Second Draft,  Second meeting, , n, , n Third meeting, , –, – , n, –, , n, n, , ,  working parties, ,  see also Tripartite Subgroup of the High-level Tripartite Working Group on Maritime Labour Standards Honduras, n hospital accommodation see accommodation hours of rest, , ,  and drills,  and emergencies, , , , ,  and fitness for duty, – and ships’ master, – and STCW, – definition, –, –, n derogations, – flexibility, –, – Guidelines, ,  IMO/ILO Guidelines, n limits and period of time, –, –

national regulation, –, , – Regulations, , –, n Standards, , –, –, – hours of work, , , ,  and emergencies, , , , ,  and fitness for duty, – and ships’ master, – and STCW, – definition, – Guidelines, ,  IMO/ILO Guidelines, n limits and period of time, –,  national regulation, –, , – Regulations, , –, n Standards, , –, –, – young seafarers,  Hours of Work (Commerce and Offices) Convention,  (No. ), n Hours of Work (Industry) Convention,  (No. ), , n Hours of Work and Manning (Sea) Convention,  (No. ),  human rights, –, –, , , , , n, , , ,  Hungary,  Iceland, n, , n, n, n ILO, –, –, , , , n,  and IMO, , , , , , , , , , , n, , , n, –, –, , , , , n, , – , , –,  and Member States, n, n, –, , n, n, , n, –,  ILO codes of practice, n, , n,  ILO Constitution, n, –, n, , –, , , –, , , –

index , –, , , , , , , , , , , n, , n, n, n, , , , n and legal status of recommendations, , , , , n, n complaints procedure, n, , –, , , –, –, ,  Declaration of Philadelphia, , , , n, n,  representation procedure, –, , , –, , ,  special procedures, , , –, n ILO conventions, , , , –, – , , –, , –, , n, –, –, , , – , , n, , , , , –, , –, n, n, , , –, , , , – and Member States, , , –, –, –, –, –, , f, –, –, , n, , n consolidation, , –, –, , , , , , , –, , , n, –, , –, , n, , –, , , , , , , n, , , –, , , , , , , , , , ,  final provisions, – fundamental, ,  ratification, –, , –, –, –, , , , –, –, , –, –, , , , , n, n, , , , –, , n revision, , , –, , –, –, –, –, n, , –, –, , –, , , –, n, n, , –, , n, , n see also under individual convention title



ILO Declaration on Fundamental Principles and Rights at Work, , , n, –, – ILO Declaration on Social Justice for a Fair Globalization, n, , n,  ILO Director-General, n, , , , , n, , , , , , , –, , , , n, ,  Decent Work report, – registration of ratifications, n, n, – ILO Governing Body, n, –, , , , n, , , , –, , –, n Committee on Freedom of Association (CFA), –, –, , , – Fact-Finding and Conciliation Commission on Freedom of Association, , ,  Legal Issues and International Labour Standards Committee, n Standing Orders, , , , – , ,  Working Party on Policy regarding the Revision of Standards, –, , n see also ILO supervisory system; Preparatory Tripartite MLC,  Committee ILO Guidelines on Occupational Safety and Health Management Systems, n ILO Legal Adviser (Office of), , f, n, –, –, –, –, –,  ILO recommendations, n, –, , , n, , –, –, ,  see also under individual recommendation title ILO standard setting, , –, –, , , –, –, n, , , n, – see also international labour standards



index

ILO supervisory system, , –, , , , –, –, –, , –, , , , , , , , , , , , , , , ,  ad hoc procedures,  and ILO Constitution, n, –, – and workers’ representation, , – , – Article  report, , , –, , , , , , , , –, , n, , –, , , , n, , , , , n, , –, – , , , , , ,  commissions of inquiry, , , , – institutional framework, , – ‘principle of selectivity’,  tripartite committees, , –,  see also compliance and enforcement; ILO Governing Body; International Labour Conference ILO/WHO Guidelines for Conducting Pre-sea and Periodic Medical Fitness Examinations for Seafarers,  ILO/WHO Joint Committee on Occupational Health,  IMO, –, n, –, –, , n, , n, n,  and ILO, , –, , , , , – , n, –, , , , –, , – Casualty Investigation Code, n Code of Safety for Special Purpose Ships, – flag State audits, n, n Guidelines for the Authorization of Organizations Acting on Behalf of Administrations,  International Safety Management (ISM) Code, , , , , , , –, , – , , n, n, , n, , n

Principles of Safe Manning, n Recognized Organizations Code, n Sub-Committee on Standards of Training and Watchkeeping, –  year of the seafarer,  Income Security Recommendation,  (R), n Indonesia, , , n inland waters, – inspection, n, –, –, , – , –, n, , , , , , –, –, , , –, , , –, , , ,  and complaint-handling procedures, –, , –,  and detention of ship, , , – , , –, , – and DMLC, –, –, , –, , , –, , , – and MLC, –, –, , –, –, –, , , , , – and new ships, –, , ,  and penalties,  and recognized organizations, –, , , , – and rectifying deficiencies, , – , – and ‘requirements of this Convention’, –, –, , , , –, , , , and ship certification, , – and transfers between flags, , , ,  anniversary date, ,  Appendices, f, , –, f, , –, n, –, , , , ,  areas subject to, , f, n, –, , , , –, –, n, , –, , n, –, , , n, , , , –,

index –, n, –, , n, , –, , – , , –, –, , , n, , –, , , – compensation, ,  flag State, –, –, , –, –, n, n, , , , n, , –, , n, , , n, , , , , –, –, –, , n, , , , –, n, –, –, –, –, , , –, , –, – , –, n,  Guidelines, , n, , –  inspectors, n, , , n, n, , n, n, n, , , n, f, , –, , , n, n, –, , , – , , n, , – intermediate (midway), –, –, ,  intervals, n, n, –, –,  more detailed inspections, , , n, , , –, , –,  port State, –, , –, – , –, , , –, –, , , n, , , –, , , –, n, , n, – , n, , n, , , –,  Regulations, n, , f, , , , – ship survey, –, , n, n, n Standards, , , , , , n, –, – training, f, , – undue delay, –, n,  see also certification (ship); compliance and enforcement



International Association of Classification Societies, –, n International Christian Maritime Association, n, n, n, –, n, n, n, n International Commission on Shipping, ,  International Committee on Seafarers’ Welfare, n International Convention for the Prevention of Pollution from Ships see MARPOL International Convention for the Safety of Life at Sea see SOLAS International Convention on Standards of Training, Certification and Watchkeeping see STCW International Convention on the Arrest of Ships, , , n International Convention on Tonnage Measurement of Ships, ,  International Court of Justice, , n, , n International Covenant on Economic, Social and Cultural Rights, n, n International Labour Conference (ILC), n, , , , , , –, n, , –, , , , , , n, ,  th (Maritime) Session, , , , , n, –, , , –, , , , , , –, , , , , , –, –, , –, –, , , , , n, –, – , –, –, , , , n, –, , , –, –, , , , n, n, , , , , , – Committee of Experts, , , , , –, , , –, – Conference Committee, , , , , , , 



index

International Labour Conference (ILC) (cont.) Maritime Sessions, n, –, –, –, n Resolutions, n, , , – , –, , n, , , n, n, –, n, , –, , – ,  see also ILO supervisory system International Labour Office see ILO International Labour Organization see ILO international labour standards, , , –, –, –, –, – , –, –, , , , , –, , , , , , –, , , , , ,  see also ILO standard setting international law, –, , , , , – interpretation of treaties, , n, n, –, n, n, n State sovereignty, , –, , n, , ,  International Maritime Health Association, n International Maritime Organization see IMO international regimes, – high seas, –, –, n labour, –, , , –, , , –, – law of the sea, , –, –, , –, , – maritime, –, –, –, –, , , , , –, , –, , , – International Safety Management (ISM) Code see IMO International Seafarers’ Code,  International Ship and Port Facility Security (ISPS) Code,  International Tonnage Convention see International Convention on Tonnage Measurement of Ships

International Transport Workers’ Federation, n, n, n uniform TCC collective agreement, n international voyages, –, –, , –, –, , n, , , n, ,  and mandatory certification, – , , , –, , , , – Invalidity, Old-Age and Survivors’ Benefits Convention,  (No. ), n Iran, n, n Ireland, n, n, ,  Italy, n, , n, n, n, n Japan, n, –, f, , , , , , , n, –, n, –, , n, –, , , n, n, n, n, n, , , , n, n Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation Regarding Claims for Death, Personal Injury and Abandonment of Seafarers, n, , –, n, , n, n Joint IMO/ILO Ad Hoc Expert Working Group on the Fair Treatment of Seafarers in the Event of a Maritime Accident, n Joint Maritime Commission (JMC), – , , , , n, , n th Session, – and Office Report, , –, – Joint Working Group of Shipowners and Seafarers, –,  see also Geneva Accord Kenya, n, n Korea, Republic of, n, , , , , , , n, n, –, , n, , n, n

index labour economics, –, –, , n, –, – labour law, –, , –, ,  labour market, , , n labour rights see seafarers’ rights Labour Inspection (Seafarers) Convention,  (No. ), , – , n, , , n, , –, n, , n, n,  Labour Inspection (Seafarers) Recommendation,  (R), n, – Labour Inspection Convention,  (No. ),  labour-supplying responsibilities, n, –, , –, , , , , –, n, , , , , , n, n, , – , –,  reporting requirements, – Latvia, n, n law of the sea see under international regimes leave (annual) entitlement, , n, , –, , n,  and SEA, –,  calculation, – Guidelines,  payment in lieu prohibition,  Regulations, –, , , n shore leave, f, , , , n, , n, f, , , – Standards, – Lebanon, n, n level playing field, , , –, –, , –, , –, , , – , , n, , , , , , , ,  see also no more favourable treatment liability and compensation, , n, ,  and SEA, , – and seafarers, , n and ship inspection, 



burial expenses,  compensation, f, , , – , , ,  cost of medical care, , n,  exclusions, , – financial security, , , –, –, ,  Guidelines,  insurance, , , n, –, , , , ,  Joint IMO/ILO Ad Hoc Expert Working Group, n, , –, n, , n, n mental illness, n national regulation, , n, –,  Regulations, –,  shipowners’, , , n, , n, –, , –, , n, –, , , n, n, n, n,  Standards, –, , n temporal coverage, – wages, ,  ‘wilful misconduct’, – Liberia, n, n, n, n, n, n, n, n Libya, n Lindemann, Dierk, , n List of Occupational Diseases Recommendation,  (No. ), n Lithuania, n,  living conditions, , , –, , – , , , –, , –, –, –, , , – , , –, –, , ,  and LOSC, –, –,  LOSC see United Nations Convention on the Law of the Sea Luxembourg, n, n, , n Malaysia, n, , , , n



index

Malta, n, n, n, , n, , n, n mandatory standards see MLC,  Code, Part A Manila Amendments see STCW manning agents see recruitment and placement manning levels, , –, –,  and food and catering, , –, ,  and IMO,  Guidelines,  Regulations, , , n safe manning documents,  Standards, – marine casualties (investigation), n, n, – Regulations, ,  marine environmental protection, , n,  maritime administrations, –, , , f, , , –, – ,  capacity, ,  see also competent authority maritime law, –, , –, ,  maritime security, , , , ,  Maritime Labour Certificate (MLC), –, f, –,  and port State control, , – and ship inspection, –, – , , –, –, –, , , , , –  and ships not subject to certification, –, –, , n,  and ships without, , n,  Appendices, , , , , –  as prima facie evidence of compliance, , , –, n, n, , –, – ‘attachment’ to DMLC, – availability and format, , – , 

flag State responsibilities, , – , , –, –,  Guidelines,  incomplete, n ‘interim certificate’, , , – , n,  ‘models’, n, ,  Regulations, f, , –, n, –, –,  Standards, n, –, –  statement of national requirements, n, , , , –, , –, , – validity periods, –, n, –, – withdrawal, , –,  see also certification (ship); compliance and enforcement; Declaration of Maritime Labour Compliance Maritime Labour Convention,  see MLC,  MARPOL, , , –, n, n, n&, n, n inspection and certification, , n, – Marshall Islands, n master (ships’) see ships’ master Maternity Protection Convention,  (No. ), , n medical advice (telecommunications), , – medical care, –, , –, ,  and cost to seafarer, –, –  and SEA,  ashore, , –,  dental care, , – dependants,  DMLC,  exclusions, n Guidelines, , –, –  guides, 

index hospital accommodation, , , –, , , ,  inspection, , n international cooperation, n,  medicine chests, – national regulation, –, – ,  onboard doctors, , – training, – Regulations, , , –, , , , n, n repatriation,  shipowner liability, , , – , , n,  Standards, –,  see also occupational safety and health medical certificate, –, – and international voyages, , –  and medical examinations, , – ,  and ‘persons not ordinarily employed at sea’,  and STCW Code, –, – colour vision certificate, – competent authority, ,  discrimination (disability or medical condition), , ,  exceptions, –,  flag State,  Guidelines,  Regulations, –, n Standards, –, – validity period and renewal, – medical report forms, – Medical Care and Sickness Benefits Convention,  (No. ), n, n Medical Care Recommendation,  (R), n Medical Examination (Seafarers) Convention,  (No. ), n, n, , , – Medical Examination of Young Persons (Sea) Convention,  (No. ), n,  merchant marine, , , 



Merchant Shipping (Improvement of Standards) Recommendation,  (R), n Merchant Shipping (Minimum Standards) Convention (No. ), n, n, n, , , –, , –, , –, , , n, –, n, n, n, n, n&, , , n, –, –, –, n, , , , –, , , n, , , n, n, , , , , ,  Protocol of  (P), n, –, n, , –  Mexico, n, –, n, n, n Migrant Workers (Supplementary Provisions) Convention,  (No. ),  Millennium Development Goals,  minimum age, –, –,  and health issues, , – Guidelines, , –,  night work, – prohibitions, – Regulations, –, n ships’ cooks, f, ,  Standards, –,  ‘young seafarers’, –,  Minimum Age Convention,  (No. ), n, n, n,  Minimum Age (Sea) Convention,  (No. ), , n, n Minimum Age (Sea) Convention (Revised),  (No. ), n, n,  Minimum Age (Trimmers and Stockers) Convention,  (No. ),  minimum wage, , n, , ,  see also wages MLC, , –, –, , – abstentions, n,  and ‘fundamental conventions’, , , , –



index

MLC,  (cont.) and ILO Members, – and IMO conventions, –, –, , –, –, , , , , , –, , f, , , , , –, , , –, –, –, , , , , , , , n, –, –, – , n, –, n, –, , –, , , ,  and LOSC, –, –, –,  and non-ratifying States, , –, –, –, –, –, –, n, f, n, ,  and regional legal instruments, – , , , , –, , , ,  and STCW Code, , n, n, , –, –, –, –, –, –  availability on board ship, n,  entry into force, –, –, , – , , ,  proposed amendments, , n, –, , , –, n, ,  ratification, –, , , , f, –, –, , –, , n, , , n, , , – text of, – MLC,  articles, –, –, , –, –,  see also by subject matter MLC,  Code, –, –, –, , –, , – , –, ,  Part A, , , –, –, –, –, , –, –, –, –, – , –, –, , – , , , , , –, n, , –, 

Part B, –, , , –, – , –, –, , – , –, –, –, , , –, , n, –, ,  simplified amendment procedure, f, , , , –, , – , –, , , –, –, , , –, , n, , n, ,  MLC,  Explanatory Note, , , , , –, , –, , –, , – MLC,  negotiation, , , – amendments (to Convention text), , n, –, , – , n, , –, – , , –, n, – , –, –, –, n, n, n, , n, n, , n, , , n, n, n, n, , , ,  drafting history, , –, , , , –, –, –, , , , –, , n, – , –, –, –, n, n, , n, , n, , –, – , –, n, –, , –, , –, n, –, –, , n, –, , n, n, –, n, – , –, n, –, –, n, –, – , , n, n, n, –, n, – , –, , , , , , ,  see also by negotiation session MLC, , Preamble, , , , , , –, , , ,  and legal obligations, – MLC, , regulations, , –, –, –, f, –, –, , n, –,

index –, –, , –, –, –, n purpose clause, , ,  see also by subject matter MLC,  Special Tripartite Committee, , , , , , n, , , , –, –, –, –, n, n, n, n and non-ratifying States, – see also amendment procedures MLC,  structure, –, –, –, –, –, –, –, , , , –, –, –, –, –, , –, –, –, , , –  aide-memoire, –, –, –, –, – ‘cascade approach’, , , , –, ,  see also by individual section MLC,  Titles, , , , –, , , –, , , , –, –, –, , –, , –, , , , –, , –, – , n, –, , , , , –, ,  mobile offshore drilling units (MODUs) see oil rigs and drilling platforms Morocco, n, n Namibia, , n, n,  National Seamen’s Code Recommendation (R), , ,  naval auxiliaries,  Netherlands, n, n, , n, , n, n, n, , n, n, n, n, , n, , n New Zealand, , n Nigeria, n, , n Night Work (Women) Convention (Revised),  (No. ), n no less favourable (conditions for seafarer), , , –, ,



–, , –, , ,  no more favourable treatment, , , , , , n, , n, –, , , , , ,  see also certification (ship); level playing field; port State control noise, –, , , n,  Guidelines, , , –, , –,  Regulations, –, , – Standards, , –, – see also occupational safety and health Norway, n, n, n, – , –, n, n, n, , n, n, , , , , n, n, , n, , n, n, n, n, n, , , n, n, n, n, n, n, n, n occupational safety and health, , n, –, n, n, , –, n, –,  ambient factors, , , , , , , –,  and accommodation, , , , , –, –, ,  and non-ratifying States, n and other international instruments, –,  asbestos exposure, ,  data collection, , n definition, n, – drug and alcohol dependency, – , –,  exposure to chemicals, ,  fatigue, , ,  flag State responsibilities, –, –, n Guidelines, –, –, – , , n HIV/AIDS, –,  ILC Resolution, 



index

occupational safety and health (cont.) ILO codes of practice, n, , n, n,  international cooperation,  mental health,  monitoring and compliance, , , –,  national regulation, , , , n, –, – personal protective equipment, , –, – preventative measures, –, n, –, n Regulations, , , –, , –, –, n reporting accidents, , n, , – risk management, –, n, n, , , – ship construction and design,  shipboard measures, , –, , – Standards, , –, –, – tobacco smoke, –,  training,  workplace violence, n young seafarers, , , –, – see also medical care; noise; social security; vibration Officers’ Competency Certificates Convention,  (No. ), n, , n oil rigs and drilling platforms, –, – MODUs, –, n Oman, n on board welfare see recreational facilities on-board documents see Declaration of Maritime Labour Compliance; Maritime Labour Certificate Orrell, Brian,  Pakistan, n, , , , , n, n, n, , n

Panama, n, n, n, n,  Paris Memorandum of Understanding on Port State Control, n, , n, n, n, , , n, ,  passenger ships, n, n, , –, , n, –, –, n,  definition,  see also cruise ships pension schemes see retirement benefits Peru, n Philippines, –, n, , , , , n, n, , n, n, , n Picard, Loic, f Placing of Seamen Convention,  (No. ), n, , , n Plantations Convention,  (No. ), ,  Poland, n,  port State control (PSC), , n, –, –, , , – , –, n, ,  and boarding a ship, – and complaint handling, –, –, –, , –, – and deficiencies, – and flag State inspections, –, , , – and international cooperation, ,  and MLC and DMLC, –, , , –, , –, , , – Appendices, , ,  authorized officer, , , , , , , n, , – compensation,  detention of ship, , , , , –, n, n, , , –, –, , , n, n, – document review, – electronic database, , , 

index Guidelines, , , n, , , –, – inspection, –, , –, –, , –, , , , , –, –, , –, , n, , , , , , –, –, –, –, , , n, , , n, –, n, , n, , , –,  memoranda of understanding (regional), –, , , , n, n, n, , , , , n, –, , , ,  notification requirements, ,  rectification of deficiencies, – Regulations, , –, , – , –, –, , , , , –, , – Standards, –, , –, , , , – ‘substantial compliance’, n undue delay,  see also compliance and enforcement; no more favourable treatment port State responsibilities, , n, , , –, , , , –, –, , , , , , –, –, –, –, – ,  Portugal, n,  poverty reduction, n, , ,  Preparatory Technical Maritime Conference (PTMC), , –, , , n, , , –, , –, n, , , , , n, –, –, – , , –, , –, –, –, n, , , –, n, –, – , n, , –, –, –, , –, , , , –, –, , , , , , –, –, –, –, n, , ,



n, n, , , ,  and Recommended Draft, –, n bracketed text, , n, , , n, –, , n, n, n, , , n, , n, n, , n, n, , n, n, , n, n, n, n, , n, , n, n, n, n,  ‘unbracketed’ text, , n unresolved issues, –, n, , , –, n,  see also Tripartite Intersessional Meeting Preparatory Tripartite MLC,  Committee, , , n, n, n see also ILO Governing Body Prevention of Accidents (Seafarers) Convention,  (No. ), n, n, ,  Prevention of Accidents (Seafarers) Recommendation,  (R), n, ,  principles and rights (at work) see employment and social rights Promotional Framework for Occupational Safety and Health Convention,  (No. ), n Qatar,  ratification, , n, , –, , – , –, , f, n, , , , – and entry into force, –, – , – and existing conventions, –, n, –, ,  and national implementation, – , , n, , –, , , –, n, – , n, , , , – 



index

ratification (cont.) and non-ratifying States, –, – , , ,  and revision of conventions, , – , –, , , –, , n, , , , –, , ,  and supervisory procedures, , –, – and voting rights,  conditions (on ratification), , , –,  denunciation waiting periods, –, ,  levels (other ILO conventions), , , , , n, n registration, n, n, –  reservations,  recognized organizations, –, , n, n, , – and complaints, –,  and flag State responsibility, – , – and port State control, – authorization of, –, , , , – Guidelines, , ,  oversight system, – Regulations, , n, n, , –,  scope of work, –, , , , ,  Standards, , , , ,  see also ship classification society record of employment,  recreational facilities, , –, , –,  Guidelines, , –, n, – inspection,  Regulations, –, , n,  Standards, , n, – see also accommodation recruitment and placement (seafarer), –, , –, – and breach of SEA, –

Appendices, – definition, –, –,  direct engagement, n, n, – Guidelines, , ,  inspection and monitoring, , , –, , –, – labour-supplying responsibilities, , f, – non-ratifying States, –, n, n, f, n,  private services, n, , –  public services, , n, ,  Regulations, –, n, – reporting requirements,  Standards, – union operated services, , –  see also career and skill development (seafarer) Recruitment and Placement of Seafarers Convention,  (No. ), n, –, , , –, n, ,  Reduction of Hours of Work Recommendation,  (R), n repatriation (seafarer), n, , , , , n, , , , – and abandonment, –,  and international cooperation, –  and SEA, – definition, – financial security provisions, , , – Guidelines, , –, – Regulations, –, , n right to, – Standards, – Repatriation of Seafarers Convention (Revised),  (No. ), n, n, , n Repatriation of Seamen Convention,  (No. ), n, n, 

index reporting requirements, , n, , –, –, , n, –, – , , , , , , , –, n, , – Article  report, , , –, , , , , , , , – , , n, , –, , , , n, , , , , n, , –, –, , , , , ,  ship level, , –, , , n, , , , , , , – see also compliance and enforcement ‘requirements of this Convention’, – , –, , , n, , , , –, , –, , –, , , , – , , ,  Resolution concerning the review of relevant ILO maritime instruments see Geneva Accord retirement benefits, –, –, , n Review of Relevant ILO Maritime Labour Instruments see Joint Maritime Commission, and Office Report Right to Organise and Collective Bargaining Convention,  (No. ), , n, n, n, –, n Romania, n, n, , n, n, n Russian Federation, n, n, , , n, , n, n, n, , n, n, n, n safety management (ship), , , , n, , , , , , , , , , , ,  system audits, , n Saint Vincent and the Grenadines, n Saudi Arabia, n, n Schindler, Jean-Marc, 



scope of application (ships), , – , –, –, –, ,  exclusions, –, , –, –, –, –, , n, , , n seafarers, –, , –, –,  sea transport economics, –, –, , – seafarer, , n, –, , , – , –, , , , –  and complaint-handling procedures, , , , f, –, , –, , – and MLC,  negotiations (and Seafarers’ Group), –, – , , –, –, , , –, , n, – , , –, n, n, n, –, , n, , n, , , , n, n, –, n, n, , n, n, –, n, , –, n, n, – , , –, n, , –, n, n, – , –, –, n, n, –, –, – , n, n, –, n, –, –, – , n, n, n, n, –, n, , n, n, n, , –, , , –, , –, n, n, ,  and Special Tripartite Committee, , – definition, , –, –, n, –, , – , n, n, –, n, – duties,  eight preferred solutions, –, – , , –, n



index

seafarer (cont.) nationality, , , –, , , , , ,  women seafarers, , – young seafarer, –, , – , , , –, –  see also crew seafarer recruitment see recruitment and placement seafarer register, – seafarer safety see occupational safety and health Seafarers International Research Centre, n, n Seafarers’ Annual Leave with Pay Convention,  (No. ), – seafarers’ bill of rights, , , , , , , , –, –, , ,  see also seafarers’ rights seafarers’ employment agreement (SEA), –, –, –, , n, ,  and collective bargaining agreement, , –, n, , ,  and compliance and enforcement, ,  and other employers, – and self-employment,  and fairness, , ,  breach of, – complaints, n, n definition, , – English language requirement, – , n,  Guidelines,  inspection, n, –, n, –, ,  minimum information requirement, , – minimum notice periods, , ,  Regulations, –, , , – , , , –, n, – signatures, , –, –

social security provisions, n, –, n, , n, n, n, n, –  ‘standard form’, –, n Standards, –, –, – , n termination provisions, , , ,  see also articles of agreement; employment contracts seafarers’ employment rights see employment and social rights Seafarers’ Engagement (Foreign Vessels) Recommendation (R),  Seafarers’ Hours of Work and the Manning of Ships Convention,  (No. ), n, n, , n, , , , , –, –, –, ,  Joint IMO/ILO Working Group, n seafarers’ identity document (SID), , ,  obligation to recognize,  Seafarers’ Identity Documents Convention,  (No. ), –, , n, , ,  Seafarers’ Identity Documents Convention (Revised),  (No. ), , n, n, n, , , , ,  seafarers’ organizations (consultation with), , , , n, –, , –, –, , , , , , , n, , , –, n, , , ,  Seafarers’ Pensions Convention,  (No. ), n, –, –,  seafarers’ rights, –, , –, , n, , , , ,  violations, –, , –, n, , , , –, , , – see also employment and social rights; seafarers’ bill of rights

index Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation (R), n, , , n,  Seafarers’ Welfare Convention,  (No. ), , , n Seafarers’ Welfare Recommendation,  (R), n Seafarers’ Welfare Recommendation,  (R), n seamen see seafarer Seamen’s Articles of Agreement Convention,  (No. ), n, n, n, , –, n Seamen’s Welfare in Ports Recommendation (R),  Seychelles, n ship: and ‘commercial activities’,  classification, – definition, , , –, – , – nationality, , n scope of application, – ship classification society, –, , –,  see also recognized organization ship design and construction, –, –, –, , –, n, , –, –, , , ,  and entry into force, – ship detention see detention (ship) ship inspection see inspection ship management companies,  ship registration, , , –, , n, , ,  genuine link, , , – ‘open’ registry, , , , n, n, n, ,  transfer between flags, , , , –, – ship safety, , , –, , , , , –, n, , –, , , ,  ship survey see inspection shipboard documents see Declaration of Maritime Labour Compliance; Maritime Labour Certificate



shipowner, , –, , , , , , , , –, –, , , , , , , , f, , , , , , , –, , n, , , , – ,  ‘agents’, – and MLC,  negotiation (and Shipowners’ Group), –, – , , –, , –, , n, –, , n, , n, –, n, n, , , , , n, n, –, – , n, n, , , –, n, , –, n, n, –, – , –, n, n, –, –, –, n, n, n, – , n, –, n, n, n, n, n, –, n, n, , n, n, n, , –, n, , , n, n, ,  and other employers, –, , – and recruitment, n, –, – and seafarer repatriation, –, – and SEA, , –, – and Special Tripartite Committee, , – definition, , –, –  eight preferred solutions, –, –, , –, n liability, , , n, , n, –, , –, , n, –, , , n, n, n, n,  rights, –, , –, , –,  see also employer



index

shipowners’ organizations (consultation with), , , , n, –, , –, –, , , , , , , n, , , –, n, , , ,  Shipowners’ Liability (Sick and Injured Seamen) Convention,  (No. ), n, , n,  ships’ engineer, –,  ships’ master, , , , n, –, –, , ,  ships’ officer, , – shipwreck see foundering Sickness Insurance (Sea) Convention,  (No. ), n, n, n, –,  Singapore, n, n, – , , , , , n, n Slovenia, n, n,  social conditions, , ,  Social Conditions and Safety (Seafarers’) Recommendation (R),  social dialogue, , , , –, , , , , –, ,  national, , , f, –, , –, –, , , ,  social justice, –, , – social partners see under seafarer, and MLC,  negotiation (and Seafarers’ Group); shipowner, and MLC,  negotiation, (and Shipowners’ Group) Social Policy (Basic Aims and Standards) Convention,  (No. ),  social protection, , , , , , n, n, n, n, , , n, –, , , n, , n, –, n, , , –, n, – see also social security; welfare facilities (seafarers) social rights see employment and social rights social security, n, n, –, , –, –, –, , –

and bilateral or multilateral agreements, –, n, , n, n and inspection, – and ordinarily resident (seafarer), –, –, , – , , , –, –  and SEA, n, –, n, , n, n, n, – and special circumstances, – ‘branches’, , –,  comparable benefits, –, , , n, –, , – , – complementary measures, –, –, –, n, , – compulsory schemes, n contribution-based schemes, n, , –, , n, n death benefit, n, , , ,  definition, – dependents, –,  dispute settlement, ,  eligibility, , –, –, – employment injury benefit, , n, ,  flag State responsibilities, –, –, , , , n, n, n, n, –  flexibility (national implementation), , , n, –, n, n Guidelines, , , –, – , –, , – ILC Resolution, – international cooperation, –, ,  international schemes, , n ‘invalidity’ (disability) benefit, , ,  inventory, 

index labour-supplying responsibilities, , n, n, , – , – national obligations (long-term), , –, –, –, –, n, n ‘nationals’/‘non-nationals’,  no less favourable (conditions for seafarer), –, , –, , –, , ,  private insurance schemes, n, , , n, n,  public schemes, n,  Regulations, –, , , – , –, n, , –  retirement benefits, –, – , , n shipowner obligations (short-term), , , n, n, , –, –, n sickness benefit (sick pay), , , n, ,  Standards, –, , , – , –, – survivors’ benefit,  verification (by flag State on contributions), –, n see also occupational safety and health; social protection Social Security (Minimum Standards) Convention,  (No. ), n, , –, n Social Security (Seafarers) Convention,  (No. ), n Social Security (Seafarers) Convention (Revised),  (No. ), , , –, n, –, , –, n,  SOLAS, , , , n, , n, , n, n, n, n, , n,  continuous synopsis record, n, n,  inspection and certification, , n, –, n&, n, 



South Africa, , , , n, n Spain, n, n, n, , , n,  special purpose ships, , n, –, –, n definition, n,  IMO Code of Safety, – Sri Lanka, n St. Vincent and the Grenadines, n standards (under MLC, ) see MLC,  Code, Part A; also by subject STCW, , , , , , n, –, –, –, n, , , , –, –, n definition of ship, – Manila Amendments (STCW Code), , n, n, , – , –, –, – substandard shipping, , , , –, , , n, –, –, , ,  substantial equivalence, , , , , n, n, n, , n, n, , , , , , , n, , , , –, n, –,  and non-ratifying States, n, n Articles, , , –, , , , ,  see also flexibility (national implementation) sustainable development, n, , ,  Sweden, n, n, n, , , n, n, n Switzerland, n,  Syrian Arab Republic,  tacit acceptance procedure see amendment procedures, simplified technical assistance, ,  territorial waters, –, n Thailand,  Togo, 



index

tonnage, n, , n, , n, , n and convention ratification, n, n, n, , –,  and exemptions, –, –, , , –, , n, –, –, n gross tonnage definition, n limitations, , , –, , –, –, , , , –, , – trade union rights, –, –, ,  trade unions, –, n training (seafarer) ships, , ,  training and qualifications, –, –, , –, –,  able seafarer, n, – and STCW requirements, –,  food and catering, –, , , – inspectors, f, , – medical, – personal safety,  Regulations, –, n ships’ cooks, –, , ,  transitional arrangements, n, – Treaty of Versailles, , , – tripartism, , n, –, n, , , , , , , , , , –, , , , , , , –, , , , , , , n, n, , , , ,  see also consultation (with seafarers’ and shipowners’ organizations) Tripartite Consultation (International Labour Standards) Convention,  (No. ), n, ,  Tripartite Intersessional Meeting (), , –, , , n, , n, , –, , , , , , –, – , , , n, n, ,

, , , –, –, , , , , , , ,  see also Preparatory Technical Maritime Conference Tripartite Subgroup of the Highlevel Tripartite Working Group on Maritime Labour Standards, –,  First meeting, n, –, n Preliminary draft for a consolidated maritime labour convention, , –,  Second meeting, , –, , n, –, –, –  see also High-level Tripartite Working Group on Maritime Labour Standards Tunisia, , , n Turkey, n, n, n Unemployment Indemnity (Shipwreck) Convention,  (No. ), n, ,  Unemployment Insurance (Seamen) Recommendation, , n United Arab Emirates, n, n, , , n United Kingdom, n, n, , n, –, , n, , , n, , , n, n, , n, n&, n, , , , n, n, n, , , n, n, n, n, n, n, n, n, n, n, –, n, n, n United Nations Convention on the Law of the Sea (LOSC), –, –, n, n, , –, n, , , , , – amendment provisions, , –  flag State, , , n, , , n, n, n

index genuine link, , – high seas, –,  innocent passage, n ocean as workplace, –, –,  port State control, n ship-source pollution, , n,  United States, n, n, – , n, n, , , , , –, , , n, n, n Universal Declaration of Human Rights, n,  Venezuela, n, n, n, n,  vibration, –, , n,  Guidelines, , , –, , –, n,  Regulations, –, , –  Standards, , –, – see also occupational safety and health Vienna Convention on the Law of Treaties, , n, n, n, n voluntary guidelines see guidelines voting procedures, , n, , , , –,  wages, , , , – allotments, –, n and ships’ foundering, – calculation of, –, ,  equal remuneration, , n Guidelines, , –,  national regulation, –, n non-payment, , n payment intervals, –, –  port State control, –, , n Regulations, –, n, n



Standards, – see also minimum wage Wages, Hours of Work and Manning (Sea) Convention (Revised),  (No. ), – Wages, Hours of Work and Manning (Sea) Convention (Revised),  (No. ), – warships,  welfare facilities (seafarers), –, , –, – access, , –, – financing, – Guidelines, – ILC Resolution, – promotion, – Regulations, , – Standards, – voluntary organizations, , n, n,  welfare boards, n,  see also social protection Work in Fishing Convention, , n, n, n, ,  Work in Fishing Recommendation (R), n workers see seafarer, definition workers’ rights see seafarers’ rights Workers’ Representatives Convention,  (No. ), n working conditions, , , –, – , , , –, –, , , –, –, , –, , –, –, , , –, –, –, , ,  and LOSC, –, n World Health Organization (WHO), n, , n,  Guidelines for Drinking Water Quality,  ILO/WHO Guidelines for Conducting Pre-sea and Periodic Medical Fitness Examinations for Seafarers,  The International Medical Guide for Ships, 



index

World Summit for Social Development,  World Trade Organization,  Worst Forms of Child Labour Convention,  (No. ), , , , n, n, , 

yachts (commercial), n, –,  young seafarer see seafarer