Compliance and Conformity in Maritime Labour Law. The Maritime Labour Convention

Compliance and Conformity in Maritime Labour Law. The Maritime Labour Convention Assistant professor Oana ADĂSCĂLIŢEI1 Abstract The Maritime Labour Convention (MLC 2006) contains all updated maritime labour standards and provides effective procedures to ensure their implementation by the Member States, as well as a mechanism for monitoring compliance. As an element not found in any of the International Labour Organization's (ILO) conventions, its provisions introduce a certification system for social and working conditions on merchant ships. The Maritime Labour Convention of 2006 establishes three distinct levels of regulatory authority in the maritime industry: flag state, port state, and maritime labour supply states. The system established to ensure compliance with the provisions of the Convention consists of inspections, reports, monitoring measures, and legal proceedings in accordance with the applicable legislation. The verification of conformity concerns only compliance with the working and living conditions on board ships. In the event that the fundamental rights of seafarers as provided for in Article III of the Convention are violated, the only way to remedy this is to resort to national enforcement mechanisms or supervisory procedures established under the ILO Constitution. In this article, we intend to present the actual procedures that ensure the implementation of maritime labour standards by the Member States. The article is based on ILO sources and EU legislative provisions and is accompanied by a doctrinal analysis. Keywords: Maritime Labour Convention, flag state responsibilities, port state responsibilities, labour-supplying states responsibilities, on board and onshore complaint procedures. JEL Classification: K31 1. Introductory aspects The MLC 2006 is a universal instrument known as the fourth pillar of the international regulatory regime for international shipping that complements four other core International Maritime Organization conventions 2. The adoption of the MLC 2006 Convention follows an agreement reached between international shipowners' and seafarers' representatives, the Geneva Agreement of 2001, on the need to adopt a new Convention and a new approach based on efficiency and ensuring widespread ratification3. Romania ratified the Convention in 2015 4. The Articles and Rules set out the fundamental principles and rights as well as the obligations of Member States ratifying the Convention 5. The Code contains the details necessary for the implementation of the Rules. It consists of Part A (mandatory standards) and Part B (guiding principles of a recommendatory nature). 6 The Convention contains sixteen articles that outline principles, rights, and responsibilities, as well as provisions for amending the Convention and concluding clauses7. The convention's approach is characterised by the use of broad definitions and a degree of flexibility8. The Articles serve as the foundation for many of the Convention's provisions on enforcement cooperation, promote social dialogue at the national level, particularly in the context Oana Adăscăliţei - Maritime University of Constanta, Romania, . Christodoulou-Varotsi, Iliana, Maritime Safety Law and Policies of the European Union and the United States of America: Antagonism or Synergy? Springer Verlag, Berlin Heidelberg, 2009, p.75. 3 McConnell, M., L. Making Labour History and the Maritime Labour Convention: Implications for the International Law Making (and Responses to the Dynamics of Globalization), in A. E. Chircop, T. Mc Dorman, & S. Rolston (Eds.), The future of ocean regimebuilding: essays in tribute to Douglas M. Johnston, (pp.349-384). Brill/Martinus Nijhoff Publishers, 2009, p.366. 4 Law No. 214 of July 21, 2015 on the ratification of the Maritime Labour Convention (MLC 2006), adopted on February 23, 2006 in Geneva at the 94th session of the International Labour Organization, and the 2014 Amendments to the Maritime Labour Convention (MILC 2006), approved at the 103rd session of the International Labour Organization in Geneva on June 11, 2014. 5 Explanatoy Note, paragraph 3 MLC 2006. 6 Explanatoy Note, para. 4 MLC 2006. 7 Doumbia, Henry, C., Devlin, D., McConnell, M., L. The Maritime Labour Convention, 2006 Consolidates Seafarers' Labour Instruments, ASIL Insights, 23 (10), 2006, p. 3. 8 Dűrler, Reto, The Maritime Labour Convention, 2006: a major step forward in maritime law, in: Serving the Rule of International Maritime Law, Essays in Honour of Professor David Joseph Attard, Norman A. Martin Gutierez (eds.), London and New York, Routledge, Taylor and Francis Group, 2010, pp.297-304, International Labour Organization, p. 300. 1 2 Perspectives of Law and Public Administration Volume 11, Issue 4, December 2022 492 of a globalised industrial sector, and establish the conditions for fair competition 9.The Rules and the Code establish five distinct areas, each with its own distinct title. The MLC 2006 contains several specific structural innovations related to ILO values, including tripartism and the encouragement of social dialogue at the national level as a means to address implementation issues 10. 2. Compliance and enforcement In accordance with the provisions of the Convention, Member States are required to exercise effective jurisdiction and control over ships flying their flag by establishing their own system to ensure compliance with the provisions of the Convention, including through regular inspections, reports, monitoring measures, legal measures and procedures in accordance with applicable law 11. Member States must prohibit violations of the provisions of the Convention and have an obligation under international law to establish sanctions or require the adoption of corrective measures in accordance with its law to discourage violations12. The Convention establishes three different levels of regulatory power in the shipping industry: flag state, port state and maritime labour supply states13. An important innovation introduced by the MLC 2006 in respect of flag States, as reflected in the provisions of the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) and the Labour Inspection (Seafarers) Convention, 1996 (No. 178), is the requirement for ships to hold a Maritime Labour Certificate and a Declaration of Maritime Labour Compliance 14. The certificates attest to compliance with the provisions of the MLC 2006 and must be accepted by the port states without further investigation15. Blue certificates are issued by the International Workers Federation and are granted to shipowners after the conclusion of collective labour agreements for their own ships or fleets operating on the same basis, guaranteeing that the ship in question complies with international labour standards16. Port state control is the authority responsible for verifying compliance with national and international requirements on maritime safety, pollution prevention, and working and living condition (...truncated)