International Labour Law

The globalisation process undergone by the merchant and fishing labour markets has led to the common understanding that the only factor that can balance the scales of global competition in its race to the bottom is international cooperation. However, the unstoppable growth of international trade has not been accompanied by comparable advances in terms of labour rights. In fact, these rights are carefully being excluded from World Trade Organization (WTO) authority, and their defence is being relegated to specific institutions, in particular the ILO, whose activities form the subject matter of the following pages.

It is also important to note that a number of routes have been explored with the aim of making multinational corporations comply with minimum labour standards; for example, the United Nations Conference on Trade and Development (UNCTAD) has suggested introducing a system of generalised tariff preferences for emerging states, granting them export advantages in exchange for participation in and implementation of international conventions, in particular those laying down minimum labour standards. The European Union also plays the role of ambassador for labour rights.152 Nevertheless, difficulties in monitoring the proper implementation of minimum labour standards cast doubt on the effectiveness of these routes.

The ILO is a privileged forum when it comes to issuing rules on international labour law, and the fact that maritime employment deserves special attention has been clearly stated not only in numerous ILO Conventions on the matter but also in several Recommendations issued in cases where the consensus required for a convention was not achieved. The ILO has a unique structure and includes a participatory mechanism in which each national representation consists of four members, two representing the relevant government and two representing workers and employers from each member state respectively.

A rough outline of the set of rights and obligations established by ILO Conventions with regard to maritime employment is provided in the coming pages; as our concern here is private international law and not international labour law, it is neither necessary nor desirable to go into detail. However, a brief run-through of the latter is essential since these conventions set up minimum standards and as such also need to be taken into account from the private international law standpoint. For example, the ILO’s efforts to force flag states to comply with their obligations to seafarers and fishermen are especially noteworthy as they amount to reinforcing flag state jurisdiction, regardless of the fact that other states may also be monitoring shipowners’ compliance with international labour standards.

Within its own set of conventions, which are characterised by a variable number of ratifications, the ILO draws a line highlighting the significance of those containing minimum standards deemed as essential, Convention No. 147 on Minimum Standards for Merchant Shipping (Minimum Standards) being a noteworthy example. In the same vein, it is worth mentioning the Declaration on Fundamental Principles and Rights at Work, adopted by the ILO in its 80th session in Geneva on 18 June 1998, by which the organisation sought to emphasise the core character of the freedom of association and the prohibition of forced and child labour and discrimination at work. All these principles need to be implemented by states regardless of the conventions they have signed.

This dividing line between the types of conventions raises many questions, as it involves advocating—to borrow ILO terminology—core labour standards in a context of growing international trade liberalisation,158 therefore moving away from a more belligerent stance aimed at effectively establishing a more advanced social framework in which the ILO takes a proactive and vigilant role in the implementation of labour rights.

It is for this reason that MLC, 2006, was so welcome: it aimed to establish universally enforceable obligations, i.e., it is binding on all ships irrespective of the fact that they may be flying the flag of a non-member state—MLC, 2006, not only has to be implemented by vessels from the signatory countries but also covers all ships arriving at their ports, irrespective of their nationality. In fact, one of its main strengths is the increase in the number of officers involved in its proper compliance and, therefore, in the proper implementation of the labour rights it establishes. In our globalised world, enforcing rules on minimum working and living conditions is a complex task, and this has been the main cause for criticism of approaches such as that represented by the 1998 Declaration.

Although MLC, 2006, was the result of a consensus that had long been sought by trade unions, its success has been largely due to maritime employers’ contributions. Surprisingly, they were more interested than anyone else in drafting this document, as the Convention was seen as a way of achieving a system of fair competition in the shipping industry, one helping to level the playing field in the international arena.160 Thanks to the guarantees it included, this instrument’s implementation does not only depend on the number of states ratifying it but also depends on the tonnage they represent. This helps ensure that its application does not have detrimental effects on signatory nations and that its ratification does not actually lead to the very opposite of the outcome that the Convention intended to achieve, i.e., unfair competition from non-signatory states that may be benefitting from the fact that signatory nations have to apply stricter rules than non-signatory nations.

Most ILO Conventions and Recommendations do not apply to either artisanal or industrial fishing vessels, as agreed in a resolution adopted at the International Labour Conference of 10 November 1921.161 Building on the momentum generated by MLC, 2006, the ILO has drafted WFC 2007, whose scope goes beyond MLC, 2006, as it takes into consideration the deplorable working and living conditions on many fishing vessels, a factor that makes the Convention’s implementation absolutely essential. We can only hope that it will come into force at the earliest possible date.

The ILO’s intensive work is supported by both international and regional organisations such as the International Maritime Organization and the European Union respectively. In fact, the EU has issued numerous instruments and rules that are relevant to this study, despite the fact that its first steps were somewhat faltering, the result of insufficient legal competences with regard to employment matters, at least in the maritime transport sector163; however, there is a common fishing policy. The Union is currently an active member of the ILO and participated in and influenced MLC, 2006, negotiations. In 2009, the EU issued the Third Maritime Safety Package, designed to improve port state control over living and working conditions on board a ship. Council Decision 2007/431/EC167 and Council Decision 2010/321/UE, by which the EU authorised and encouraged member states to ratify MLC, 2006, and WFC 2007 respectively, are of particular interest. The EU has also reached an agreement on MLC, 2006, with trade unions and business associations with the aim of harmonising national legislation in accordance with the standards set out there,169 and a similar agreement has been reached regarding WFC 2007.

In addition to ILO Conventions, it is worth mentioning that international human rights treaties also apply to seafarers and to fishermen and other employees working on board a ship, including on the high seas. To be more precise, this depends on each international treaty’s scope of application. In this regard, there is already a clear pronouncement on the scope of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR). In the case of Bankovic and others v. Belgium and 16 other States, the European Court of Human Rights (hereafter ECtHR) underlined the territorial nature of jurisdiction according to public international law and emphasised that exterritorial application is also admitted in some cases, as is the case with ships registered under or flying the flag of the state in question. Accordingly, the ECHR is also applicable on board ships sailing under the flag of a state party to the Convention.

Matters are different when it comes to treaties with a restricted scope of application, as exemplified by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the General Assembly in Resolution 45/158 of 18 December of 1990. Article 2 of this Convention specifies that migrant workers are anyone engaged, whether currently or in the past, in a remunerated activity in a country of which they are not nationals; ergo according to this definition, the Convention would be equally applicable to seafarers or fishermen employed on board a vessel registered in a state of which they are not nationals. However, the Convention does not apply to ‘seafarers and workers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the State of employment’. This is a significant exclusion and was adopted in response to pay gaps between countries supplying crew members, given that nowadays workers’ country of origin is taken into consideration when wages are paid.

Source: Piñeiro L.C. (2015) International Maritime Labour Law. Hamburg Studies on Maritime Affairs (International Max Planck Research School for Maritime Affairs at the University of Hamburg), vol 34. Springer, Berlin, Heidelberg

Bibliography

Reference works
•Betten, L., International labour law : selected issues, 2003
•Blanpain, R., The global workplace : international and comparative employment law, cases and materials, 2007
•Humblet, M., International labour standards: a global approach : 75th anniversary of the Committee of Experts on the Application of Conventions and Recommendations , 2002
•Servais, J., International labour law, 2009

Bibliographies
•International Labour Bibliography, Geneva : International Labour Office, 1987- …

Periodicals and Serial Publications
•European Labour Law Journal
•European Labour Law Journal (Online)
•International Labour Law Reports
•International Labour Review
•Official bulletin. International Labour Office. Series A
•Official bulletin. International Labour Office. Series B
•Official bulletin. International Labour Office. Series C
•Revue internationale du travail
•Revue internationale de securite sociale
•Social Charter Monographs

Books
•BARTOLOMEI de la CRUZ, H., The International Labour Organization : the International Standards System and Basic Human Rights, Boulder : Westview Press, 1996
•BERKOWITZ, P., International Labor and Employment Law, Chicago : American Bar Association, 2008
•BLANPAIN, R., European Labour Law, Alphen aan den R?n : Kluwer Law International, 2010
•BRONSTEIN, A., International and Comparative Labour Law : Current Challenges, Basingstoke etc. : Palgrave Macmillan, 2009
•HUGHES, S. and N. HAWORTH, The International Labour Organization (ILO) : Coming in from the Cold, London etc. : Routledge, 2011
•KAHN-FREUND, O., International Encyclopedia of Comparative Law, Part : Vol. 15 Labour Law, The Hague, etc. : Nijhoff
•KELLER, W., International Labor and Employment Laws, Washington, DC : Bureau of National Affairs, 2004

Articles
•CHARNOVITZ, S., “The ILO Convention on Freedom of Association and Its Future in the United States” , 102 American Journal of International Law (2008) 1, pp. 90-107
•CHINERY-HESSE, M., “The International Labour Organisation” , in : From Global Apartheid to Global Village : Africa and the United Nations, Scottsville : University of KwaZulu-Natal Press, 2009, pp. 499-513
•DOOREY, D.J., “In Defense of Transnational Domestic Labor Regulation “, 43 Vanderbilt Journal of Transnational Law (2010) 4, pp. 953-1009
•DUPLESSIS, I., “Soft International Labour Law: the Preferred Method of Regulation in a Decentralized Society” , in : Governance, International Law & Corporate Social Responsibility, Geneva : International Institute for Labour Studies, 2008, pp. 7-36
•KOOIJMANS, J., “The ILO and its Work Against Child Labour : the Normative Framework and Recent Progress” , 14 Tilburg Law Review (2008) 1-2, pp. 31-48

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