Key Points
The Committee noted:
- deep concern the challenges and the impact that restrictions and other measures adopted by governments around the world to contain the spread of the pandemic has had on protection of seafarers’ rights within the MLC.
- observations from ITF & ICS, received by ILO on 1 October 2020 and 26 October 2020, respectively, indicating that all ratifying States have failed to comply with major provisions of the MLC 2006 during the COVID-19 pandemic, notably regarding cooperation among Members, access to medical care and repatriation of seafarers. They note humanitarian concerns linked to the violations of seafarers’ rights, and risk of fatigue and other health issues could cause serious maritime accidents.
- replies received from the Governments of Barbados, Cyprus, France, Honduras, Hungary, India, Ireland, Republic of Korea, Lithuania, Myanmar, Palau, Poland, Senegal, Singapore and United Kingdom of Great Britain and Northern Ireland, acknowledging numerous challenges and highlighting different measures taken to ensure, where possible, the protection of seafarers’ rights. Several other Governments provided information concerning measures adopted regarding MLC implementation during the pandemic (Australia, Belgium, Canada, Croatia, Denmark, Germany, Greece, Ireland, Japan, Malaysia, Panama, Slovenia and Spain). ILO also received information about hundreds of individual seafarers’ complaints sent directly by seafarers or transmitted by the IMO Seafarer Crisis Action Team.
- information from ITF and ICS that hundreds of thousands of seafarers (approximately 400,000) are currently stranded on board and a similar number are at home unable to replace them and earn a living. This situation has unfolded into a humanitarian crisis despite unprecedented social dialogue among the key maritime stakeholders at the international level and high level cooperation of the ILO and IMO leadership.
- deep concern that while ports continued to operate uninterruptedly during the pandemic, seafarers providing a key frontline service to society, with over 90 % of world trade moved by sea, including food, medicines & vital medical supplies continue to face extreme difficulties to disembark and transit through countries for repatriation.
- both ITF and ICS received thousands of individual claims from seafarers describing desperate violations of MLC provisions. Seafarers are requested to continue working beyond the terms of their seafarers’ employment agreements (SEAs), they are denied access to medical care ashore (Regulation 4.1) and deprived rights to repatriation (Regulation 2.5), annual leave and shore leave (Regulation 2.4). Most ships do not have medically trained staff on board and when access to medical care ashore is denied, seafarers have no medical care whatsoever.
- ITF highlighting force majeure by ratifying Members to shield non-compliance with the MLC. The MLC is a comprehensive instrument for our industry applicable to all ratifying countries, and not a set of labour regulations to selectively apply, if and if circumstances permit. At the start of the pandemic, ratifying States, whether flag, port or labour-supply states may have had genuine situations of force majeure, rendering materially impossible compliance with some MLC obligations. The Committee noted that over ten months have elapsed constituting realistically sufficient time to explore new modalities to apply, in conformity with international labour standards. Force majeure may be invoked as a condition precluding wrongfulness for non- observance of a treaty obligation only for unforeseen and unforeseeable event(s) creating an absolute and material impossibility to comply with the obligation. In contrast, circumstances rendering observance of an international obligation more difficult or burdensome do not constitute force majeure. The Committee stressed force majeure may no longer be invoked once options are available to comply with MLC provisions, although more difficult or cumbersome and urged ratifying States yet to do so, to immediately adopt all necessary measures to protect seafarers’ rights to comply fully with MLC obligations.
The Committee welcomed the United Nations General Assembly, ILO Governing Body and IMO Maritime Safety Committee resolutions urging Member States to designate seafarers as key workers to facilitate safe and unhindered movement to and from a vessel, facilitation of shore leave, and when necessary shore-based medical treatment.
The Committee observed that due to the primarily international character of maritime, it is impossible to comply with numerous M LC obligations without allowing movement of seafarers across borders in appropriate conditions.
The Committee strongly encouraged ratifying flag States that have not yet done so, to recognise seafarers as key workers without delay and to draw in practice the consequences of such qualification to restore respect of MLC rights
All governments must balance protection of public health and respect the rights and dignity of seafarers The Committee noted the Recommended framework of protocols for ensuring safe ship crew changes and travel during the coronavirus (COVID-19) pandemic, proposed by global maritime transportation industry associations with consultative status at IMO (MSC.1/Circ. 1636). The United Nations General Assembly, the ILO and the IMO resolutions referred to implementation of the protocols as appropriate guidance to ensure safe crew change and travel of seafarers. The Committee hoped governments will refer to the guidance in adopting measures to restore MLC compliance.
The ITF and the ICS both alleged that ratifying States failed to comply with their obligation under Article I of the MLC, for Members to cooperate to ensure effective implementation and enforcement of the MLC. The Committee acknowledged numerous governments took important bilateral, regional and international actions to identify solutions and generate initiatives to overcome challenges of seafarers and shipowners due to the pandemic.
The Committee observed that the information provided and evidence available at ILO showed MLC provisions were disregarded worldwide. Indeed, hundreds of thousands of seafarers globally are still on board well beyond the original expiry date of their SEAs and often over the default 11 months maximum period of service in MLC provisions, with reported physical and mental exhaustion, anxiety, sickness and suicides. Thousands of seafarers disembarked but cannot return to their countries of origin and are stranded in a foreign country; moreover, hundreds of seafarers were denied medical care ashore resulting in several seafarer deaths. In numerous cases, port restrictions repeatedly introduced with short-term announcements hindered reasonable planning of the ships’ route while non-coordinated implementation and enforcement of the MLC, increased the risk of travel prohibition for both ship and crew and, in sometimes led to detention of ships due to State failures. The Committee concluded that all Members failed to comply with Article I, paragraph 2. The MLC does not contain any provisions allowing for temporary suspension of implementing provisions during crises health related or otherwise.
The Committee argued it is precisely at times of crisis that the protective coverage of the MLC, assumes its full significance and needs to be most scrupulously applied. This is because the MLC contains only minimum standards to protect seafarers’ rights. It urged Governments to adopt necessary measures in consultation with the social partners, to further cooperate to ensure effective implementation and enforcement of the MLC, during the pandemic, where it is mostly needed.
The Committee noted the ITF’s indication that failure to arrange repatriation of seafarers on completion of their contracts effectively induced forced extension of contracts (continuation of labour without contract), in circumstances where consent clearly cannot be freely given. ITF argued this raises serious questions of precipitation of the international community to a form of forced labour. The Committee referred to Article III observing that, implicit in the very inaction of certain Member States of ensuring crew changes or allowing seafarers to return home, gives seafarers no option but to stay on board and creates conditions to languish for months on end in situations that could amount to forced labour.
The Committee requested all ratifying States to adopt necessary measures or reinforce existing ones without delay to ensure no seafarers have to continue working on extended contractual arrangements without their formal, free and informed consent.
The MLC, contains a robust system to enforce its provisions. In particular, flag Sates were requested to take various actions as outlined in annex1.
The Committee stressed that failure to apply any core principles and requirements may render the MLC meaningless especially when and in circumstances where coverage was most needed. Failure directly negatively impacted on navigational safety, increasing exponentially the risk of maritime accidents, with unpredictable consequences on human lives the environment and immeasurable disturbance on international supply and distribution of goods.
The Committee highlighted the crucial role of port State control in MLC enforcement and highlighted the obligation to take steps to ensure a ship does not proceed to sea until any non-conformity is rectified, or until the authorised officer has accepted a plan of action to rectify non-conformities.
The Committee considered extreme fatigue of seafarers on board beyond the default 11 months maximum period of service on board in the MLC not only constituted a clearly hazardous situation for seafarers, but also profoundly endangered safety of navigation.
The Committee referred to Standard A2.7, paragraph 2, to ensure seafarers work on board ships with sufficient personnel for safe, efficient and secure operation of the ship and highlights the need to avoid or minimise excessive hours of work to ensure sufficient rest and to limit fatigue. While noting challenges of port State control authorities to conduct inspections during the pandemic, the Committee requested ratifying port States which have not yet done so to immediately adopt necessary measures to fully comply with MLC obligations and requested port States to take actions as outlined in annex 1
The Committee noted that labour-supply States must cooperate with flag and port States to ensure respect of seafarers’ rights. labour-supply countries which have not yet done so, were requested to adopt necessary and immediate measures to ensure the required facilities are put in place for transport, testing and quarantine to receive seafarers currently abroad and allow others to join their ships.
The Committee noted that the pandemic has severely tested the MLC legal framework to protect decent working and living conditions of seafarers. It has also demonstrated the essential role of seafarers and criticality of shipping to the world economy. Regrettably, public and private responses have not always respected or handled seafarers needs and there is a need to restore full respect of basic seafarers’ rights and draw future lessons. Ability to attract young talent into seafaring may be compromised if the international community fails to act.
The Committee welcomed the issue being on the agenda of the Fourth meeting of the Special Tripartite Committee of the MLC in April 2021.
The Committee will continue to examine information from Governments and/or social partners about issues raised to try to ascertain compliance with the MLC by ratifying States during this crisis.
