5-2 Alexandros Ntovas-中国南海研究院.pdf

Maritime Labour Standards and the principle of ‘no more favourable treatment’ Dr Alexandros Ntovas Queen Mary University of London, School of Law / CCLS Panel 5: Shipping Cooperation and Engagement in the Asia Pacific Region Forty-second Annual Conference of the Center for Oceans Law & Policy Beijing, China / May 24–25, 2018 Maritime Labour Standards & the Maritime Labour Convention, 2006 o Developed by the International Labour Organization - adopted on 23 Feb 2006 / entered into force on 20 Aug 2013 / 86 ratifications – 91% of world gross tonnage / implementation and review on a tripartite basis o Main reasons for adopting the MLC 2006: - evolving nature of the maritime profession / industry - consolidation / codification / progressive development of labour standards - strengthening enforcement / compliance o Increased substantive scope of standards (arranged in ‘4 titles’) - fundamental rights and principles - employment and social rights o No applicability to ships engaged in fishing, or similar, pursuits - C188 – Work in Fishing Convention, 2007 Maritime Labour Convention, 2006 & the principle of ‘no more favourable treatment’ o Enforcement regime - ‘Title 5’: Compliance and enforcement - flag-State / labour-supplying State(s) / port-State Control / seafarers complaint procedures - certification-declaration as prima facie evidence of compliance / detailed inspections on ‘clear’ or ‘reasonable’ grounds / notification & rectification of deficiencies / detention in port o Article V, (Implementation and enforcement responsibilities) - enforced against flags of not ratifying States / directed to portState Members / conditioned access to ports - to ensure a ‘level playing field’ Evolution in maritime-related treaties  the International Convention for the Prevention of Pollution from Ships, 1973; Article 5 (Certificates and special rules on inspection of ships)  the Protocol of 1978 relating to the International Convention for Safety of Life at Sea of 1 November 1974, 1978; Article II (Application)  the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (as amended 1995/2010); Article X (Control) Subsequent drafting in maritime-related treaties  the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001; Article 3 (Application)  the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004; Article 3 (Application)  the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 (not yet in force); Article 3 (Application) A subtle aspect for reflection o nature of the commitment: ‘absolute’ or ‘discretionary’? - unclear textual inferences; Cf., “…shall apply …as may be necessary…” with “…shall implement its responsibilities…as to ensure…” - in various policy briefs/ information documents, eg.:  “the clause…means that working and living conditions on these ships may be subject to inspection by port States” (ILO re MLC2006)  “under the principle…port States…are obliged to apply these rules and standards…” (IMO re mandatory instruments)  nb., potential conflict of principles between regimes; eg., IMO Position (2009) at UNFCC COP 15 The Asia Pacific Region – Shipping importance o a key region - leading world seaborne trade region - rising region of world’s merchant shipping fleet - 60% of the 1.2 million world’s seafarers - extensive network of international ports o strong MLC 2006 ratification (appellation and classification according to ILO – 35 States) - high regional concertation: 21/31 (plus 4 land-locked) region  Non-parties: Cambodia; Cook Islands; Pakistan; Papua New Guinea; Solomon Islands; Timor-Leste; Vanuatu; Northern Mariana Islands; American Samoa; Brunei Darussalam (and Afghanistan; Lao People’s Democratic Republic; Mongolia; Nepal) o Memorandum of Understanding on Port State Control in the AsiaPacific Region,1993 - expected MLC ratification to be entry requirement for new members The Asia Pacific Region UNCTAD, Review of Maritime Transport (2017) The Asia Pacific Region UNCTAD, Review of Maritime Transport (2017) The Asia Pacific Region UNCTAD, Review of Maritime Transport (2017) MoU Tokyo, Annual Report on Port State Control in the Asia-Pacific Region (2017) Maritime Labour Standards and fisheries o Of particular significance to the Asia/Pacific region - economic, social, and political reasons o C188 – Work in Fishing Convention, 2007 - ‘no more favourable treatment’ provided in art. 44 - ‘General principles’ / ‘Implementation’ per art. 6 o Not ratified, till date, by any State in the Asia/Pacific region Scope for further engagement in the region o Maritime labour as a technical matter for cooperation - Agreement on Maritime Transport between the Governments of the Member Countries of the Association of Southeast Asian Nations and the Government of the People’s Republic of China, Singapore, 2 November 2007 - Memorandum of Understanding between the Governments of the Member States of the Association of Southeast Asian Nations and the Government of the People’s Republic of China on Maritime Consultation Mechanism, Bandar Seri Begawan, 12 November 2010 - Joint Ministerial Statement of ‘The Tenth ASEAN and China Transport Ministers’ Meeting, Phnom Penh, Cambodia, 16 December 2011 o As to fisheries - ASEAN Regional Forum Thank you for your kind attention Maritime Labour Standards and the principle of ‘no more favourable treatment’ Dr Alexandros X.M. Ntovas Queen Mary University of London, School of Law CCLS Cooperation and Engagement in the Asia Pacific Region Forty-second Annual Conference of the Center for Oceans Law & Policy Beijing, China / May 24–25, 2018