Maritime Law

International Labor Convention and Recommendation

By

Oladokun Sulaiman Olanrewaju

Lecture outline

• International shipping policies:

– The key challenge: Regulating a globalised industry

– International regulations and agreements

– International co-operation

• Key players

– Ship-owners

– Port states

– Flag states

– Classification societies

The development of a globalised

shipping industry

• Shipping has evolved from being an

international industry to the first truly global

industry

– Before 1920s: National industries in an

international market

– After WW2: Mobile means of production, open

registries and market liberalisation

– Gradually globalization of technologies, capital

and labour

– 1970/80s: Shipping the first globalised industry

Open registries: A key necessary

condition for a globalised industry• Characteristics of open registries:

– No nationality requirements on crewing

– No/low tax business environment

– Liberal company legislation

– Many without national shipowners

• E.g. Panama, Liberia, Bahamas ...

• Creating a global capital and labour market in shipping

• Facilitating the development of a globalised industry

National regulations not sufficient

• National or regional regulations may be both

ineffective and inefficient:

– May be evaded

– Different national regulations cause inefficiencies

and competitive distortions

• Global standards necessary to avoid a “race to

the bottom”

• A globalised industry requires global

regulations

Regulatory framework and institutions

• Market access:

– WTO (1995)

– National

– UNCTAD/OECD

• Safety and environment:

– IMO (1948)

• Working conditions and social standards:

– ILO (1919)

• Competition policy:

– National / Regional (EU)

– UNCTAD / OECD

International Maritime Organization

(IMO)• Established in 1948

• Secretariat in London

• 163 member states

• Mission: ”Safer

shipping and cleaner

oceans”

• Establishes minimum

standards for ship

– construction, and

– operation

How the IMO works

• Proposal is assigned to a committee or a sub-

committe

• Adopted by a special conference

• Conventions typically enter into force on ratification

by 15 countries representing at least 50% of world

tonnage

• Lengthy process to adopt, amend and ratify

conventions. Some may be amended by simplified

procedures

• Conflict between states with strong environmental

safety concerns and developing/open registry states

Regional vs. Global regulations

The case of doble hulling• Exxon Valdez grounding in Alaska, 1989

– Oil spill of 37 000 tons crude oil

– Triggered the US Oil Pollution Act (OPA 90)

• Double hull requirement for new oil tankers

• Phasing out existing single hull tankers by 2015

– MARPOL Annex I amendments

• Erika, France 1999– EU pressure for accelerated phasing out of single hull tankers

• MARPOL Annex I amended April 2001

• Prestige, November 2002– Unilateral EU-regulation (Regulation (EC) No 417/2002) –

(Cat 1: 2007, Cat 2 and 3: 2015)

– MARPOL Annex I amended December 2003 (Cat 1: 2005, Cat 2 and 3: 2005-2010)

The challenge of enforcement

• To be sustainable global standards must

– Meet the legitimate requirements of

• Shippers

• Shipowners

• Environmental interests

• Consumer interests

• The general public

– Be credibly enforced by

• Flag states

• Port states

• Classification societies

International Labour Organization

(ILO)• Established in 1919, UN:

1946

• Secretariat in Geneva

• General conference once a

year

• Conventions on work

conditions and labour

standards

• Maritime Conference

every 10 years

• Adopted 32 maritime

conventions and 25

recommendations

(minimum wage)

International Labour Organisation

• Philadelphia Declaration 1944

– FUNDAMENTAL PRINCIPLES OF ILO

a. labour is not a commodity

b. freedom of expression and association are essential to sustain progress

c. poverty anywhere constitutes a danger to prosperity everywhere

d. 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 representative 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

ILO Legal Instruments

• Two types:

– International Convention

– Recommendations

• Each member of ILO has 18 months to bring the Convention before the national authority/authorities for the enactment of national legislation or other actions

• Members have to inform the Director General (DG) of ILO of the measures taken

• Members also have to communicate the formal ratification of the Convention to the DG

Convention and Recommendation

• Convention

– Requires ratifications from Members to make effective the

provisions of such convention

– Once ratified requires reporting on the status of

implementation

– Requires explanation from Members for non-ratification

• Recommendation:

– Does not require ratification from Members

– No further obligations from Members

Article 19.3, ILO Constitution

• “In framing any Convention or Recommendation of general application the Conference shall have 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….”

Existing ILO instruments for the

fishing sector

• Five Conventions

• Two Recommendations

Existing ILO Instruments

• Hours of Work Recommendation, 1920, No. 7

• Minimum Age Convention, 1959, No. 112 (29 of which 20 have been denounced)

– Does not apply to fishing in ports, harbours, estuaries of rivers

• Medical Examination Convention, 1959, No. 113 (29)

– Flexible based on national competent authority

• Article of Agreement Convention, 1959, No. 114 (22)

– Flexible based on national competent authority

• Competency Certificates Convention, 1966, No. 125 (10)

– Does not apply to vessels below 25 tons and 24.4 metres

• Accommodation of Crews (Fishermen) Convention, 1966, No. 126 (22)

– Does not apply to vessels below 25 tons and 24.4 metres

• Vocational Training (Fishermen) Recommendation, 1966, No. 126

Minimum Standards in Merchant Ships, 1976

(No 147)

• For ocean going ships

• Seagoing ships determine by national legislature that deal with:

-Safety , competency, hours of work, Manning and social security

- Shipboard condition of employment

- Procedure – employment of seamen & investigation of complaints & reporting procedures

- Member states to verify compliance with ratified convention by i.e inspection

- Official inquiry to be on serious marine casualty & loss of life at sea

- Ship not unnecessarily detained

Minimum Age for Employment 1921(No 15)

• Not to employ person under age of 16yr

• Ship master to keep list and DOB of person

under 16

Minimum Age for Employment 1973(No 138)

• National policy to abolish child labor

• Member to specify minimum age <15 yr

• Register of names under 18yr of age to be kept

by the employer

Minimum requirement for masters and

officers 1936 (No 53)• Master = person in command of the vessel

• Navigation officer in charge of watch- person actually in charge of navigation and maneuvering of a vessel , other than a pilot

• Chief engineer- person responsible for mechanical propulsion of a vessel

• Engineer officer in charge of watch= person who is for a particular time in charge of vessel engine.

• Person to hold appropriate COC

• Condition for granting CON

• national legislature prescribe = minimum age & minimum period of professional experience of candidates for each grade of COC

• National legislation to prescribe penalty for cases of non compliance & forge documents

Minimum Wage, Hour of work,

Manning• Minimum wage rate for able seamen , normal hour for officer & rating at

sea, in port & on day of arrival/ departure ports

• Collective agreement & national legislature for compensation for overtime worked in excess of normal hours

• For the following no overtime:

• Urgent work for safety of vessel , cargo & person

• Work for assisting person or vessel in distress

• Emergency drills

• Work for customs, quarantine or health requirements

• Normal relieving of watch

• No person under the age of 16 yr to work at night

• Ship sufficiently manned to : ensure safety of life at sea

• Giving effects to provision regarding hours f work

• Preventing excessive overtime to crew

• Machinery for removal of complaints & disputes

Prevention of occupation accident to

seafarers 1970(No 134)

• Obligation of national authority to