Both the Constitution of the ILO and many ILO instruments seek to take account of national circumstances and provide for some flexibility in application of Conventions, with a view to gradually improving protection of workers, by taking into account the specific situation in some sectors and the diversity of national circumstances. Flexibility is usually based on principles of tripartism, transparency and accountability. When flexibility with respect to a Convention is exercised by a government it usually involves consultation with the workers’ and employers’ organizations concerned, with any determinations that are made reported to the ILO by the government concerned. This is seen as a necessary and important approach to ensuring that all countries, irrespective of national circumstances, can engage with the international legal system and that international obligations are respected and implemented, to the extent possible, while also making efforts to improve conditions. This is particularly important for an international industry such as shipping.
The Maritime Labour Convention, 2006 generally follows this approach as well as also providing for additional flexibility, relevant to the sector, at a national level. The Convention seeks to be “firm on rights and flexible on implementation”. A major obstacle to the ratification of existing maritime labour Conventions is the excessive detail in many of them. The new Convention sets out the basic rights of seafarers to decent work in firm statements, but leaves a large measure of flexibility to ratifying countries as to how they will implement these standards for decent work in their national laws.
The areas of flexibility in the Convention include the following:
- The “Seafarers Employment and Social Rights” set out in Article IV are to be fully implemented, “in accordance with the requirements of this Convention” (in accordance with the relevant provisions of the Articles, Regulations and Part A of the Code); however, unless specified otherwise in the Convention, national implementation may be achieved through national laws or regulations, through applicable collective bargaining agreements or through other measures or in practice;
- Implementation of the mandatory standards in Part A of the Code (other than Title 5) may also be achieved through measures which are “substantially equivalent”;
- Many of the prescriptive or detailed requirements in existing Conventions which had created difficulties for some governments interested in ratifying the Convention are now found in the Guidelines, which are in Part B of the Code. The provisions of Part B of the Code are not mandatory and are not subject to port State inspections, however governments are required to give “due consideration” to their content when implementing their obligations;
- The requirements of the Convention, other than the ship certification system, will apply to most ships (it does not apply to fishing vessels, ships of traditional build or warships); however, the application of details in the Code may be relaxed for some smaller ships – 200 gross tonnage (GT) and below – that do not go on international voyages. This determination would be made in consultation with shipowners’ and seafarers’ organizations concerned;
- All ships covered by the Convention would be subject to the inspection system developed by the flag State but the certification system is only mandatory for ships of 500 gross tonnage and above that are engaged in international voyages (or are operating between ports in a foreign country). The certification system will certify that the ship is being operated in conformity with the Convention’s requirements as implemented in the laws or regulations of the flag State concerned (in the case of other ships, the shipowners can also request their flag State to include their ships in the certification system so as to avoid or reduce the likelihood of their being inspected in foreign ports);
- The Convention expressly recognizes that some flag States may make use of recognized organizations such as classification societies to carry out aspects of the ship certification system on their behalf;
- Provisions affecting ship construction and equipment (Title 3) will not apply to ships constructed before the Convention comes into force for the country concerned. Smaller ships (200 gross tonnage and below) may be exempted from specific accommodation requirements;
- Specific allowance is made for making determinations at a national level through consultation with shipowners’ and seafarers’ organizations “in case of doubt” as to the application of the Convention to categories of persons or ships or a particular ship. A Resolution was adopted along with the Convention which provides guidance to national authorities on the question of who would be considered “seafarers” in this context;
- Provision is made for the situation of countries that may not have national organizations of shipowners or seafarers to consult;
- Provision is made for national circumstances and for bilateral, multilateral and other arrangements in connection with social security coverage.