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The ILO’s Maritime Labour Convention, 2006: Filling a Gap in the Law of the Sea

Thursday, 07 April 2011
by Moira L. McConnell, Professor of Law and Associate at the Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia, Canada, Advisor to ILO
The ILO’s Maritime Labour Convention, 2006: Filling a Gap in the Law of the Sea

1. The Relevance of  International Labour and Social Standards to Achieving Marine Environmental Protection

An article concerned with an international labour instrument, even if dealing with maritime sector, may seem an unusual topic for the MEPIELAN E-BULLETIN with its primary focus on marine environmental and ecosystem concerns. The fact that the instrument in question, the Maritime Labour Convention, 2006[1] (MLC, 2006), is a multilateral maritime convention adopted in 2006 by the tripartite International Labour Conference of the International Labour Organization (ILO)[2], rather than the more familiar International Maritime Organization (IMO), only serves to adds to the mystery about its relevance.
This article argues that, not only are labour, social and economic matters relevant to marine environmental protection, they should be viewed as central concerns. Too often, the human and economic dimensions are left out of discussions about preventing ship source operational or accidental harms to the marine environment.[3] However this concern – the working and living conditions and social rights for ocean workers/ seafarers/ fishers, or, perhaps in the future, other ocean dwellers, is so sparsely dealt with in the 1982 United Nations Convention on the Law of the Sea (LOSC) that it can be considered a regime gap[4]. Certainly the human condition as distinct from the activities of humans received significantly less attention than marine environmental protection, navigational freedoms or fishing or marine scientific research the LOSC[5]. This is not say there is an absence of international instruments addressing social and labour conditions for ocean workers – seafarers and fishers[6] - the point is that these matters are not generally seen as a LOSC concern.
However, as indicated in the following extract from Preamble, the MLC, 2006 is expressly and firmly anchored in the wider LOSC regime and international maritime regulatory regime:
…Recalling that the United Nations Convention on the Law of the Sea, 1982, 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 94 of the United Nations Convention on the Law of the Sea, 1982, 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,..
It will also be recalled that when the LOSC was adopted it was understood as creating  “…a legal order for the seas and oceans” ( Preamble. LOSC).[7] The key provisions of the LOSC concerning rights and responsibilities for labour and social standards are found in Article 94[8]:

Article 94 - Duties of the flag State
1. 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…
3. 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 manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; …
5. In taking the measures called for in paragraphs 3 and 4 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. 

2. Overview of the ILO’s Maritime Labour Convention, 2006 ( MLC, 2006)

The MLC, 2006 comprising over a 100 pages of text, elaborates a comprehensive code, developed over 5 years of complex tripartite international negotiations that sets out  rights and responsibilities as well as more technical minimum standards for working and living conditions for a diverse and wider range of workers (inclusively called” seafarers”[9]) in this industry. Consistent with the complexities of the earliest of the globalize economic sector[10] the Convention establishes a system based on responsibilities for flag States, port States, and to a a lesser degree coastal States, as well as introducing a new “face”  for State responsibility under the LOSC framework, the State with labour-supplying responsibilities   Sometimes described as the “Seafarers’ bill of rights”  the MLC, 2006 is an instrument that seeks to achieve both social and labour rights (“decent work”) that are  interwoven with more economic fair competition considerations (achieving a level-playing field for shipowners).  It has been described as the “fourth pillar” of the international maritime regulatory regime complementing the major IMO conventions, SOLAS, MARPOL and STCW, all of which are intended to ensure the safety, security of shipping  and the protection of marine environment from ship source pollution.[11]

From an ILO’s  perspective the MLC, 2006  brings together  and modernizes the majority of  the ILO ‘s legal instruments adopted since 1920 (37 Conventions and related Recommendations) for this sector.  It sets out minimum requirements for seafarers to work on a ship (e.g., minimum age, medical fitness), conditions of employment, including important matters  such as a contract of employment (seafarers’ employment agreement (SEA)) minimum hours of work or rest, wages, leave, repatriation, on board accommodation, recreational facilities, food and catering, as well as occupational safety and health protection, medical care, access to seafarer welfare centres and  social security protection.

Importantly, it presents a very interesting example of inter-institution learning as it  builds upon, and, arguably, develops the best practices under the international regulatory regime.[12] In that respect the MLC, 2006 establishes a compliance and enforcement system based on inspection and certification of labour and social conditions for seafarers, carried out by the authorities of the flag States and complemented by  port State inspection (port State control – PSC) , as well as being linked to the extensive and long established ILO supervisory system that examines State level implementation obligations. In order to encourage fair competition, the Convention requires port States to ensure that ships of non-ratifying States do not receive more favorable treatment during port State inspections than ships of ratifying States receive.[13] The Convention expressly seeks to attract widespread ratification through a mix of firmness on rights combined with flexibility on implementation supported by a tripartite approach to implementation at the national level.

But it goes even further as it establishes a comprehensive system for compliance and enforcement that goes beyond  State level compliance to specifically affect private actors. The system allows for the possibility of complaints by individual seafarers, and moves through to flag State inspection, port State control and ultimately links to the ILO’s supervisory system (that also includes the possibility of complaints by workers and employers regarding State level compliance).  In that respect the MLC, 2006 is one of the new generation of  international conventions that seek to achieve “effectiveness”  by reaching beyond the State by more directly interacting with and affecting  behaviours of  private or individual actors in the State.  In so doing it cuts across traditional international law divides between public and private actors and notions of “State responsibility”.[14]  

Typically for an ILO Convention it allows implementation in laws and/or regulations or  collective agreements or  other measure,  thus emphasizing the important role of the national social partners, the workers and employers, in implementing  international obligations.

3. Ratification and Implementation of the MLC, 2006

February 2011 witnessed the 5th anniversary of the adoption of the MLC, 2006, an event marked by  Switzerland’s ratification.  It is a point of interest that despite what was essentially unanimous adoption in 2006, the Convention has not  yet achieved the ( admittedly challenging) formula for entry into force (12 months after ratification by 30 Members (ILO Member States)  with a total share in the world gross tonnage of ships of at least 33 per cent (Article VIII)).  Curiously and, perhaps even ironically, although all the major flag State have ratified the Convention, and ratifications currently cover seafarers on nearly 48% of the world fleet, the Convention has only been ratified by twelve (12) countries.[15] This means that eighteen (18)  more ratifications must be obtained to achieve the entry into force formula  in 2011, with actual entry into force 12 months later.  It was expected, with the decision by the European Union (EU) in 2007 regarding ratification by its Members by the end of December 2010 and the agreement between the social partners in the EU - an agreement that will become a Directive once the Convention enters into force[16]- that the other aspect, the ratification by at least 30 Members would be achieved by December 2010. Although December 2010 has now passed, the goal of five years may still be possible, as there  has been significant progress in other countries, particularly in the Asia, Southeast Asia and Pacific region. Many countries in the Caribbean are moving forward now, as well as several countries in Africa.  But, not surprisingly, the global economic destabilization and other political events and major natural disasters have had an impact on national legislative agendas.

4. Conclusion: The Need to Bring the MLC, 2006, Into Force

This brings me back to my original point regarding the somewhat overlooked environmental importance of the MLC, 2006.  From an environmental perspective we cannot ignore the fact that too often ship-source pollution, especially in the case of accidents, is often attributable to fatigue or other “human element” factors.  With the growing pressure to reduce operating costs on ships, as a matter of competitiveness, the pressure to reduce the cost of the labour component will increase.  Yet according to the IMO, the industry is also facing a future scarcity of qualified seafarers[17].  Poor working conditions mean that seafaring is not an attractive career choice for many young people, particularly for women.  It is, however, clear from concerns voiced at the IMO that there is an urgent need to ensure trained personnel as well as establishing working conditions that avoid fatigue or other occupational safety and health hazards arising from workplace conditions.[18] Along with the decent work requirements under the MLC, 2006 these are key elements in ensuing safer ships and better protection of the marine environment in all regions of the world.


* Moira L. McConnell is an  author of Moira L. McConnell, Dominick Devlin, Cleopatra Doumbia-Henry, The Maritime Labour Convention, 2006. A Legal Primer to an Emerging International Regime (Leiden/Boston: Martinus Nijhoff/Brill: 2011); see: http://www.brill.nl/mlc_2006

Endnotes

  1. ILO, “Maritime Labour Convention, 2006,” available at http://www.ilo.org/global/standards/maritime-labour-convention/WCMS_090250/lang-en/index.htm. The MLC, 2006, adopted on 23 February 2006, is available in (8) eight languages ( it was adopted in English and French and both language versions are considered equally authoritative  (Art. XVI)  MLC, 2006).
  2. The ILO is the earliest of what came to be (after 1945) the United Nations specialized organizations. It was established in 1919 under the Treaty of  Versailles. Under the Constitution of the International Labour Organisation 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 using a weighted voting formula.
  3. The idea of the a move seaward into ocean space as the new “frontier” was embraced in the, perhaps naοve, optimism of the 1960 and 70s, and is now seeing some resurgence of interest as activities are more viable further from shore. See for e.g., Maria Gavouneli, Functional Jurisdiction in the Law of the Sea, Volume 62, Publications on Ocean Development (Leiden: Martinus Nijhoff Publishers, 2007) or Bernard Oxman “ The Territorial Temptation: A Siren Song at Sea” Centennial Essays, (2006) 100 AJIL 830- 851.
  4. M. L. McConnell, “‘Making Labour History’ and the Maritime Labour Convention, 2006: 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, 2009), 349–384.
  5. Consider for example, Part XII dealing with protection of the marine environment.
  6. The ILO has over 70 instruments on maritime labour matters.  In 2007 it also adopted the comprehensive Work in Fishing Convention, 2007 (Convention No. 188) 
  7. Arguably, the treatment of labour and social issues was reduced in 1982 in comparison to the provisions in the relevant predecessor convention, the 1958 Convention on the High Seas. For example, paragraph 3(b) of Article 94 1982 LOSC refers to labour conditions and only requires States to ‘take account’ of international instruments, rather than international labour instruments as required under the 1958 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: Convention on the High Seas, Geneva, 29 April 1958, 450 U.N.T.S. 82, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_1_1958_high_seas.pdf, at Article 10 (emphasis added):
      1. 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 manning of ships and labour conditions for crews taking into account the applicable international labour instruments;
      2. 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.
  8. 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 significantly different regulatory regimes in the exclusive economic zone or territorial sea of other States.
  9. Article II, paragraph 1 (f) seafarer means any person who is employed or engaged or works in any capacity on board a ship, to which the Convention applies.  A ship is also inclusively defined in Art. II, paragraph 1 (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. There are very few  exclusions for ships and unlike IMO conventions there is no minimum tonnage for application of the Convention. The exclusion under Article II, paragraph 4 are:“ Except as expressly provided otherwise, this Convention applies to all ships, whether publicly or privately owned, ordinarily engaged in commercial activities, other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks. This Convention does not apply to warships or naval auxiliaries.”
  10. We cannot ignore the fact, as noted in Cleopatra Doumbia-Henry, Dominick Devlin and Moira L. McConnell, The Maritime Labour Convention, 2006 Consolidates Seafarers’ Labour Instruments (2006) Vol 10, Issue 23, ASIL Insight (e- publication), that:

    The maritime sector, in particular international shipping, is one of the earliest and most internationalized, with the beneficial ownership of ships often based in one State even though the ships operate under the jurisdiction of yet other States (flag States) and the seafarers on board are drawn from numerous States. The jurisdictional problems this can create and the issue of ensuring flag State responsibility have been topics of concern for this sector since the 1950s .

  11. Speech to the ILC by Mr. Efthimios Mitropoulos, Secretary-General, International Maritime Organization, 94th ( Maritime) Session, ILC, February 20, 2006, Fourth Sitting, Provisional Record 10,  p. 2. The three IMO convention are: International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS); International Convention on Standards of Training, Certification and Watchkeeping, 1978, as amended (STCW); International Convention for the Prevention of Pollution from Ships, 73/78 (MARPOL).
  12. Although now primarily concerned with the IMO conventions, it is interesting to note that the Paris MOU  on PSC was developed in response to an ILO convention adopted in 1976.
  13. MLC, 2006  Article V, paragraph 7.
  14. For an interesting analysis of this issue generally see: Natasha A. Affolder, “The Private Life of Environmental Treaties,” (2009) 103 American Journal of International Law 510. 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. 511).
  15. In order of  ratification they are:  Liberia, Marshall Islands, Bahamas, Panama, Norway, Bosnia and Herzegovina, Spain, Croatia, Bulgaria, Canada, St Vincent and the Grenadines, and, most recently, Switzerland.
  16. The Council adopted a Decision on 7 July 2007 authorizing member States to ratify the ILO’s MLC, 2006 in the interests of the European Community, preferably before 31 December 2010 (see EU Official Journal: L 161/63, 22 June 2007). On 19 May 2008, the EU social partners representing management and labour in the maritime transport sector (European Community Shipowners’ Associations (ECSA) and the European Transport Workers' Federation (ETF)) entered into the Agreement on the MLC, 2006, and requested the European Commission to propose a Council Directive giving effect to their Agreement and its Annex A under EU law, in accordance with article 139 of the Treaty. A Directive was adopted in February 2009. See:"Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners Association the European Transport Workers' Federation on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC". It will enter into force at the same time as the MLC, 2006.
  17. IMO “Go to sea” campaign, launched in 2008: see  http://www.imo.org/ourwork/humanelement/gotosea
  18. See the recent “Manila amendments” of June 2010 to the STCW regarding, inter alia, minimum hours of rest and medical examinations that largely replicate the MLC, 2006.

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