On Tuesday, Aug. 20, 2013, the International Labour Organization’s (ILO) Maritime Labour Convention, 2006 (MLC, 2006) will enter into force. The MLC, 2006 is an extremely comprehensive convention considered to be the “fourth pillar” of international maritime law. Though it enjoyed unanimous adoption within the ILO, the sheer breadth of the MLC, 2006 raised skepticism regarding how widespread its ratification would be. Forty-three states representing 76.2 percent of the world’s fleet have ratified the MLC, 2006 at the time of posting, but the entire maritime industry will be affected. Among these states are major shipowning, flag, port, and labor-supplying states. The ships of maritime states that have not ratified the MLC, 2006, such as the U.S., China, Singapore, Malaysia, Indonesia, South Korea, and Turkey stand to face potentially significant delays and obstacles in proceeding through their accustomed routes.
The MLC, 2006 focuses on protecting seafarers, an indispensible yet marginalized category of workers. It accomplishes this goal by consolidating all but four ILO maritime-themed conventions into a single instrument that complements the three major International Maritime Organization (IMO) conventions: International Convention for the Prevention of Pollution from Ships (MARPOL), the International Convention for the Safety of Life at Sea (SOLAS), and the International Convention on Standard of Training, Certification and Watchkeeping (STCW).
Much of the substantive content of the MLC, 2006 is a modern pronouncement of ancient rights that have bound seafaring nations through operation of custom from time immemorial. Equivalent provisions can be found in the seventh-century Byzantine lex Rhodia, which was a then-modern codification of the Rhodian practices of antiquity. The articulation of the MLC, 2006 is through an organization that rightly puts labor rights within the framework of international human rights law, but the duties of shipowners and the rights of seafarers protected through time-honored maritime law and custom are unequalled in their universal respect and fulfillment.
Though the U.S. has historically refrained from ratifying human rights instruments, it has honored the customs of maritime law and even pioneered some aspects, as with the Truman Proclamation. At the same time, the MLC, 2006’s subject matter of international maritime law is the most widely ratified subject matter by the U.S at seven of fourteen ratified ILO conventions.
The U.S. has ratified the other three “pillars” of international maritime law promulgated by the IMO: SOLAS, MARPOL, and STCW. Concerned with the safety of human life, environmental integrity, and the proper functioning of the maritime industries, these conventions are complemented by the MLC, 2006’s focus on the rights and welfare of seafarers. Existing U.S. laws and policies at the time the IMO pillars were erected were very similar, but ratification is what allowed these conventions to facilitate rather than inhibit U.S. trade when they entered into force. Nonratification of a convention like UNCLOS has not carried as serious implications for U.S. trade as would nonratification of the MLC, 2006.
According to the U.S. Coast Guard, approximately 1,000 U.S. ships will be affected by the MLC, 2006 when it enters into force irrespective of U.S. ratification. Somewhere between 15,000 and 25,000 seafarers crew these ships. This figure is approximately half of the entire American fleet of 2,055 vessels. These numbers do not include American seafarers living and working aboard ships flying the flags of other nations. Due to the international routes of these particular U.S. ships and the system of enforcement created by the MLC, 2006’s “no more favourable treatment” provision, these ships will be required to comply with the MLC, 2006 to operate in the ports of States that have ratified the MLC, 2006. This effective enforcement mechanism originates in the three IMO pillars already ratified by the U.S.
By requiring MLC, 2006 Member States to apply the provisions of the MLC, 2006 to the ships of all countries within their course of international maritime interaction, shipping companies are generally going to align their companywide regulation with the MLC, 2006 and in the interest of seafarers’ rights and welfare. This will engender greater uniformity and predictability in international maritime law, a subject matter that has historically enjoyed nearly universal agreement on core issues. This will also create a greater net effect on data collection for the maritime industries as well as customs, immigration, and homeland security.
The MLC, 2006 requires submitting the Maritime Labour Certificate (MLC) to MLC, 2006 port State authorities as the only way to demonstrate prima facie compliance with the MLC, thereby avoiding a heightened inspection. States who are not party to the MLC cannot issue MLCs to their vessels; due to the “no more favourable treatment” clause their ships will always be subject to an inspection of the entire ship to satisfy the port State that the ship is in compliance with the MLC, 2006 regardless of ratification when in an MLC, 2006 port. Substantial delays could be caused for a ship to go through a full inspection, then if there are deficiencies the ship will be expected to remedy them before departure, which will affect the economic efficiency of the vessel and its voyage.
The U.S. Coast Guard, the agency charged with much of the burden of implementation should the MLC, 2006 be ratified by the U.S., conducted a review of the prospect of its implementation. The reality is that all U.S. vessels operate under laws and policies that address almost all topics of the MLC, 2006 though they may not be mandated by U.S. law. The conclusion drawn by the Navigation and Vessel Inspection Circular (NVIC) No. NEW-13, entitled “Guidance Implementing the Maritime Labour Convention, 2006”, is that U.S. law is “substantially equivalent” to all substantive provisions of the MLC, 2006 except for Regulation 4.3 (Health and Safety and Accident Prevention) and Regulation 5.1.5 (On-board Complaint Procedures).
NVIC 02-13, issued July 30, 2013, updated the position of the U.S. Coast Guard on the equivalence of U.S. laws, regulations, and collective bargaining agreements to the MLC, 2006. A formal, voluntary inspection and certification system is implemented to provide prima facie evidence that U.S.-flagged ships are in compliance with the provisions of the MLC, 2006. The U.S. cannot, under the plain operation of the MLC, 2006 and under established principles of international law, certify compliance with the MLC, 2006 until it ratifies the convention. Aligning the shipping industries, port authorities, unions, and other American maritime actors towards the substance and procedure of the MLC, 2006 will serve both as a tool to ease the burden internationally-trading U.S. ships will face as a consequence of nonratification and as a catalyst for U.S. ratification.
NVIC 02-13 uses a Statement of Voluntary Compliance (SOVC) and a Declaration of Voluntary Compliance to mirror the MLC and the DMLC of the MLC, 2006. The U.S. Coast Guard was extremely meticulous in following the letter of the MLC, 2006 for one principal reason: the “no more favourable treatment” clause contained in Article V, paragraph 7. The Coast Guard’s NVIC on the MLC, 2006 plainly states,
“Until such time that the U.S. ratifies the MLC, [2006,] the Coast Guard will not mandate enforcement of its requirements on U.S. vessels or upon foreign vessels while in the Navigable Waters of the United States. However, Article V, paragraph 7, of the Convention contains a “no more favorable treatment clause” which requires ratifying governments to impose Convention requirements even on vessels from a non-ratifying government when calling on their ports. As a result, U.S. vessels not in compliance with the MLC[, 2006] may be at risk for Port State Control actions, including detention, when operating in a port of a ratifying nation.”
The prospect of serious impediments hindering the operation of trading vessels weighs heavily in favor of ratification of the MLC, 2006. The U.S. presents a “stronger,” and more immediate, case for ratification as historically the most economically active trading nation of a world where approximately 90 percent of global trade is seaborne. When a non-MLC, 2006 ship enters an MLC, 2006 port, the loading and unloading of cargo cannot occur until that ship is cleared by the routine operations of various port state agencies, but with an additional MLC, 2006 inspection. The addition of another inspection because non-MLC, 2006 ships cannot produce a MLC means that these ships will necessarily be in port longer. In the aggregate, this could result in an overall deceleration of the pace of non-MLC, 2006 shipping, potentially favoring competitors based in MLC, 2006 Member States.
The MLC, 2006, except in covering the matter of shore leave for seafarers in ports, does not touch upon visa requirements or immigration laws. This removes a particularly sensitive subject in the post-9/11 world while simultaneously securing necessary seafarers’ rights. In the long-term, ratification of the MLC, 2006 and entry into that community of states should encourage the U.S. towards greater consideration of the ILO’s Seafarers’ Identity Documents Convention 185 (C185) as a way to better facilitate MLC, 2006 shore leave obligations.
