CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

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Cross-border social dialogue and agreements result, as DeSombre points out, in the shipping industry clubs are quite common, and involve both state and non-state actors in their creation and enforcement. Since the FOC system makes it difficult to enforce standards universally through traditional State regulatory means, actors seek instead to figure out where it is possible to regulate access to some desired good, whether it be national markets, port facilities, port labour or insurance cover, and exclude from access to it those who do not respect their standards (DeSombre, 2006). There are three aspects to state regulatory power in maritime shipping: flag States, port States, and labour supply States. Attempts to create transnational regulatory clubs can invoke any of these, as well as the powers of private actors such as unions, shipowners’ associations, insurance companies, protection and indemnity insurance clubs, 5 banks, and classification societies. Increasingly, the tendency is to integrate the various public and private regulatory tools, so as to build mutually reinforcing points of regulation at which substandard shipowners can be excluded. Flag States Flag States, in theory, have sovereign authority over all vessels in their register, and are nominally the most important regulators in maritime shipping. Flag States are expected to implement in legislation relevant ILO and IMO conventions. They are also expected to maintain inspection apparatus to ensure that the ships they register comply, and apply legal sanctions on the shipowner if they do not. Flag States, when they are actually regulating as flag States, have the most consistent and comprehensive authority of any shipping industry actor. In a world without FOCs, a regulatory regime based on flag State enforcement would probably be adequate. However, shipowners may elect to flag their ships in any country that will have them. Since choice of flag is influenced by the enforcement of standards under that flag, there is a constant temptation for countries to change their regulations specifically to attract shipowners. Shipowners operating at a high standard may choose to continue to fly high-standard flags, but those seeking to reduce costs will move to flags where enforcement is weaker. 5 Protection and indemnity insurance clubs (or P&I clubs) are non-profit-making collective insurance clubs for shipowners. See http://www.ukpandi.com/UkPandi/InfoPool.nsf/HTML/About_IG for a description, or DeSombre (2006, pp. 181-198) for a discussion of their role in industry self-governance. 198
The ILO Maritime Labour Convention, 2006 – Lillie Therefore under current conditions, flag State authority does not constitute a comprehensive regulatory enforcement regime for global shipping. The MLC includes a strong element of flag State enforcement. However, other elements, such as PSC, are also included. PSC provides a backup, and encourages negligent flag State administrations to enforce international standards, because ships flying flags with poor enforcement regimes are more likely to attract the attention of PSC inspectors (see next subsection). 6 Port State Control PSC is used to support a “club” of flag States and shipowners who fly their flags by making flags with weak inspection regimes undesirable for ships visiting ports with strict PSC regimes (DeSombre, 2006, chapters 3 and 5). The MLC extends this concept, already operative in technical aspects of shipping safety, to labour rights issues. Since the early 1980s, maritime accidents and other problems created by flag State negligence have prompted many countries to inspect vessels that call at their ports. Port State inspection rights are legally based on the right of States to protect their own citizens and shore lines, even when this hinders freedom of navigation or violates flag State sovereignty. PSC rights are interpreted as allowing countries to enforce accepted international agreements on ships visiting their ports, but fall short of allowing the enforcement of national laws, as this would be deemed too great a restriction on the principle of free navigation (Keselj, 1999). PSC works through spot inspections. A certain percentage of ships calling in port are inspected, and those in severe violation of safety standards are detained until repaired. Detentions only occur in a minority of cases when deficiencies are detected. With less severe shortcomings ships are allowed to sail, provided that they undergo a subsequent inspection to determine whether the shortcomings have been remedied. PSC inspections enforce rules collectively decided in the IMO and ILO, although until recently PSC officials had not usually been trained to check for labour violations. PSC has seen some success in improving standards in the industry, but has serious limitations. Penalties are 6 The Paris Memorandum of Understanding, for example — a regional organization coordinating port State inspections in Europe — assigns points to ships to determine the likelihood of inspection. Ships flying “problem” flags are more likely to be inspected (http://www.parismou.org/). 199
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CROSS-BORDER SOCIAL DIALOGUE AND AG
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Published by the International Inst
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Cross-border social dialogue and ag
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Contributors Dominique Bé, an econ
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Contributors Nathan Lillie is Assis
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Acronyms BWI Building and Wood Work
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Introduction Konstantinos Papadakis
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Introduction - Papadakis each with
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Introduction - Papadakis above. Thi
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Introduction - Papadakis tices unde
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Introduction - Papadakis role of co
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Introduction - Papadakis veaux enje
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Chapter 1 International framework a
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International framework agreements:
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Chapter 3 International framework a
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International framework agreements
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Part 3 Legal dimensions 113
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Appendix
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