Consolidated Maritime Labour Convention (ILO
Consolidated Maritime Labour Convention (ILO : Shipping has always been international by vocation. It is today the most globalized of all industries. This was unanimously recognized by the social partners (Shipowners and Seafarers) when they adopted, in January 2001, within the framework of the ILO's Joint Maritime Commission (JMC), a resolution concerning the review of relevant ILO maritime instruments. This resolution, known as the "Geneva Accord", agreed that the shipping industry required an appropriate international regulatory response. The resolution called for the development of an instrument that would bring together into a consolidated text as much of the existing body of ILO maritime labour instruments as it proved possible to achieve in order to improve the relevance of those standards so as to meet the needs of all stakeholders in the maritime industry. It also provided that the instrument should comprise a number of parts concerning key principles of such labour standards as may be determined, together with annexes that incorporate detailed requirements for each of the parts, and should provide for an accelerated amendment procedure that would ensure that the annexes were kept up to date. In keeping with the resolution, a High-level Tripartite Working Group (HLTWG) and a Sub-group of the High-level Group were established to assist with the development of the instrument. This was followed by a Preparatory Technical Maritime Conference in September 2004, and a Maritime Session of the International Labour Conference is scheduled for early in 2006. This article is based on the outcome of the Preparatory Technical Maritime Conference. At the first meeting of the HLTWG in December 2001, the Shipowners' and Seafarers' representatives and the Government representative set the objectives of the new instrument as regards its substantive content, structure and approach. It was envisaged that the Convention would: incorporate, as far as possible, the substance of all relevant maritime labour standards with any necessary updating; be easily updatable to keep pace with developments in the maritime sector; be drafted in such a way as to secure the widest possible acceptability; place emphasis on the means of enforcing its provisions in order to establish a "level playing field"; and be structured in such a way as to facilitate the achievement of the above objectives. With respect to the substance of the instrument, the concerns of both the Shipowners and Seafarers were essentially to bring the system of protection contained in existing standards closer to the workers concerned. This was to be done in a form that was consistent with this rapidly developing, globalized sector and that would improve its applicability so that Shipowners and Governments interested in providing decent conditions of work would not have to bear an unequal burden in ensuring such protection. Regarding the structure of the Convention, it was agreed that the proposed instrument 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. They could only be changed by the General Conference within the framework of article 19 of the Constitution of the International Labour Organization. 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, except for Title 5, can be amended through a simplified procedure set out in the Convention. The Regulations and the Code are organized into general areas under five Titles: Minimum requirements for seafarers to work on a ship; Conditions of employment; Accommodation, recreational facilities, food and catering; Health protection, medical care, welfare and social security; Compliance and enforcement. The simplified amendment procedure that exists in the new consolidated Convention has been developed to ensure that it would be easily updatable. Article XIV of the Convention provides that it can be amended by the General Conference within the framework of article 19 of the ILO Constitution. In addition, the Code could be amended by a simplified process that has been developed to meet the need for more rapid updating of the technical parts of the Convention, without the need for an entire revision. Article XV introduces the most important innovation of the new Convention: the amendment of certain provisions (the Code) through a simplified amendment procedure based on what is called "tacit acceptance" rather than express ratification. This simplified amendment procedure is similar to that provided for in Conventions adopted within the framework of the International Maritime Organization (IMO), but has been adapted to the special features of the International Labour Organization, and above all its tripartite structure. 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. The Convention provides for six steps for the simplified amendment procedure involving: (i) the submission to the Director-General of the amendment proposal meeting certain conditions; (ii) circulation of the proposal; (iii) submission to the special tripartite Committee for consideration and adoption; (iv) submission to the International Labour Conference for approval; (v) notification to ratifying Member States; and (vi) amendment taking effect for all ratifying Members that have not expressed disagreement (or taken similar action) within a prescribed time limit unless the number of States expressing disagreement attains a specified level or weight. The consolidated Convention therefore respects the principle that, once a Member has accepted the text of a Convention by ratification, it cannot be bound, against its will, by any changes to that text while new ratifying Members are in a different situation. If they decide to ratify the Convention, they must accept the text as amended. The provisions in the new Convention concerning compliance and enforcement represent another innovative aspect. While other Conventions frequently contain provisions relevant to enforcement, such as the requirement to keep records, to establish penalties for non-compliance, and to have adequate internal complaints or recourse procedures, the innovation in the new consolidated Convention takes the various aspects of enforcement at the national level and places them in a separate part (Title 5) transcending the whole Convention. For traditional enforcement practices in the maritime sector through flag and port State inspections and corrective actions, the provisions in Title 5 draw on the text of the existing ILO standards in the area of compliance and enforcement such as, inter alia, the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147). Title 5 will provide for a level playing field among Member States of the Organization concerning the provision and implementation of the principles and rights of the Convention, as well as the employment and social rights for seafarers. For this reason, the principle of "no more favourable treatment" is one of the important legal foundations for the provisions on compliance and enforcement in Title 5 of the new Convention. According to this principle, ships of States that had not ratified the Convention would not be able to provide the certification and documentation required by the consolidated Convention. Such ships would therefore always be liable to inspection by port States and the provisions on port state control of the Convention would apply to them. This principle may thus provide an incentive for ratification of the Convention and help to secure a level playing field with respect to employment rights. One of the major aspects of the enforcement regime consists of a requirement for each Member to establish a system of certification and documentation of compliance covering conditions on board ship, as well as an overall system of quality standards and control covering implementation of the Convention in general. The system proposed in Title 5 embodies aspects of the well-accepted certificate-based system of the IMO. It has, however, been adapted in the proposed Convention to meet the ILO context and the special concerns raised by international labour standards. The proposed maritime labour standards certification system would require each ship to carry: (1) a maritime labour certificate, confirming that the working and living conditions on the ship have been inspected and meet the requirements of the flag State's national law implementing the Convention and that measures adopted by the shipowner to ensure ongoing compliance are satisfactory; together with (2) a declaration of labour compliance, which would state what those requirements are and how they are to be complied with. The consolidated Convention will create a continuity of "compliance awareness" at every stage from the national systems of protection up to the international system. It would start with the individual seafarers, who - under the Convention - would have to be properly informed of their rights and of the remedies available in case of alleged non-compliance; it would continue with the shipowners, who would be required to develop and carry out plans for ensuring that the laws, regulations or other measures to implement the Convention are actually being complied with. The masters of the ships concerned would then be responsible not only for carrying out the plans, but also for keeping proper records to provide evidence of implementation of the requirements of the Convention. In addition to the traditional functions of inspection of ships, the flag States would have to control the shipowners' plans and ensure that they were actually in place and being implemented. They would 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 22 of the Constitution would need to provide information on their inspection and certification systems, including on their methods of quality assessment. This general system in the flag State would be complemented by procedures to be followed in countries that are also or even primarily the source of the world's supply of seafarers, which would also be reporting under article 22 of the ILO Constitution, and the mechanisms of port state control would help to reduce any failings on the part of flag States. A special tripartite committee will be established by the ILO Governing Body. It will be charged with generally reviewing the working of the new Convention, and will be given specific functions with respect to the proposed simplified amendment procedure for the Code. It will consist of representatives of Governments that have ratified the new Convention and of Shipowner and Seafarer representatives chosen by the Governing Body (who might in practice be the same as the members of the Joint Maritime Commission). The Government representatives of non-ratifying Members could participate in the committee but would have no right to vote. See: Working time in the maritime sector (ships using Community ports)
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