International Conventions Affecting the Security and Status of Seafarers & PMSCs

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1 International Conventions Affecting the Security and Status of Seafarers & PMSCs The Maritime Labour Convention, 2006 (MLC) Question 1: Whom does this convention apply to? Two step process: 1. Look to see when and if the flagship state has ratified the MLC. o List of countries who have ratified MLC here On August 20, 2013, the MLC entered into force and become binding international law for the first 30 countries who had registered ratifications on August 20 th For all other countries that have ratified after August 20 th 2012, it will enter in force 12 months after their ratifications were registered. 2. Look to see whether the worker would be classified as a seafarer o Seafarers are defined by the Convention as: any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies. o All seafarers working on board ships that fly the flag of countries that have ratified the MLC are covered by the Convention, once it enters into force. Note: some ships are excluded from this classification: Ships that navigate exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply. Ships engaged in fishing or in similar pursuits Ships of traditional build such as dhows and junks. Warships or naval auxiliaries. Question 2: Do PMSCs qualify as seafarers under MLC? Short answer: Member States can choose whether or not to classify PMSCs as seafarers. The definition of PMSC is very broad and could certainly be interpreted to include PMSCs. However, Member States implement the MLC into their national laws on their own authority (sovereignty), and some major maritime countries (e.g. UK) have not interpreted PMSCs to be seafarers. Question 3: Why would Member States NOT want to classify PMSCs as seafarers? One answer: Push back on the part of industry and its social partners. Take for example the UK: o The assertion that PCASP should be categorised as seafarers was roundly criticised by the UK shipping industry s social partners (Nautilus International, the UK Chamber of Shipping and the RMT), shipowners and PMSCs, primarily because they feared that the - 1-

2 application of inappropriate MLC standards to PCASP on board ships would render the deployment of PCASP to such ships either impossible or economically unviable and so leave those ships unprotected. (link) Question 4: What are some arguments FOR classifying PMSCs as seafarers? The classification of seafarer under MLC may facilitate the issuance of seafarer documentation (seaman s cards and discharge books). These things save seafarers significant time and money in their travelling between countries and jobs. o However, others argue that such seafarer documentation can be obtained from other countries without needing any connection to that country. Overall, it is uncertain whether PMSCs will be classified as seafarers as per MLC. Some countries have not yet made it clear what their stance is on the issue, and others may even change their initial position (the UK plans to review its position in May 2015). For details on the positions of different Member States, refer to this SAMI briefing. Question 5: What would be the consequence of a state classifying PMSCs as seafarers? The MLC is over 100 pages of text that sets out various rights and responsibilities for seafarers. In an effort to avoid becoming a paper tiger, it was drafted ambitiously. Thus, the impact that it would have on PMSCs is likely be wide ranging. Some regulations relevant to PMSCs and maritime crime are listed below. Repatriation (regulation 2.5): Seafarers have the right to be repatriated at no cost to themselves in the event of illness or injury, shipwreck and insolvency. Ships are required to have in place financial security to support this. Medical attention (regulation 4.1): Calls for flag states to ensure shipowners provide prompt medical attention and have adequate measures for addressing seafarer medical care. Payment for sickness, injury or death (regulation 4.2): Shipowners must provide seafarers assistance and support for financial consequences of sickness, injury or death occurring during the course of employment. During time of injury or illness, a seafarer is entitled to maintenance which is the weekly allowance paid to seafarers during times of injury or illness and cure which is funds provided to cover medical expenses during the period of recovery. Duty to maintain health and safety (regulation 4.3): Shipowners are under a duty to maintain a healthy and safe working environment, which includes implementing BMP to mitigate pirate attacks. Minimum age to work in dangerous area (standard A1.1): Standard A1.1 sets forth a minimum age requirement of 18 when the work is likely to jeopardize the health or safety of the seafarer. This would likely apply for High Risk Areas (HRAs) Further regulations and recommendations from the MLC relevant to PMSCs and maritime crime can be found here, as well as on the OBP website here. - 2-

3 The International Ship and Port Facility Security Code (ISPS Code) Question 1: What is the ISPS Code? The ISPS Code is part of a larger international agreement, The International Convention for the Safety of Life at Sea (SOLAS). SOLAS is widely regarded as the most important of all international treaties concerning the safety of merchant ships, and its focus rests on safety concerns such as regulating the construction of ships. The ISPS code, implemented to SOLAS in the wake of the 9/11 attacks in the United States, was developed in response to the perceived threats to ships and port facilities. Because of this focus, the Code has applicability to counter-piracy efforts. Question 2: Whom does the ISPS Code apply to? The ISPS Code is implemented through SOLAS Chapter XI-2, and entered into force on July 1 st From IMO website: The ISPS Code is part of SOLAS so compliance is mandatory for the 148 Contracting Parties to SOLAS - see Status of Conventions complete list for list of SOLAS Contracting Governments It applies to the following ships engaged in international voyages: o Passenger ships o Cargo ships o Mobile offshore drilling units It also applies to port facilities serving ships engaged in international voyage Question 3: How does the ISPS Code affect Contracting Governments? Security levels (section 4): Contracting Governments are required to set security levels and provide guidance for protection from security incidents o Security level 1: level for which minimum appropriate security measures shall be maintained at all times o Security level 2: level for which appropriate additional security measures shall be maintained for a period of time as a result of a heightened risk of a security incident o Security level 3: level for which further specific protective security measures shall be maintained for a limited period of time when a security incident is probable or imminent Threats to ships (regulation 7) Contracting Governments must ensure the provision of security-level information to ships operating in their territorial sea or having communicated their intention to enter their territorial sea. The government also becomes a point of contact for the ships when there is a security concern. Where a risk of attack has been identified, the Contracting Government must advise the ships concerned of: o The current security level - 3-

4 o Any security measures that should be put in place by the ships concerned to protect themselves from attack, o Security measures that the coastal State has decided to put in place. Question 4: How does the ISPS Code affect shipowners? Response to potential threats (security levels): (section 7) Ships are required to act upon the security levels set out by Contracting Governments as per section 4. Requirements vary depending on the security level, and include activities like: o Controlling access to the ship o Monitoring deck and surrounding areas o Ensuring security communication is available. Control and Compliance Measures (regulation 9) 1. Control of ships in port: o When a ship is in the port of a Contracting Government, that government may verify if the ship has ISPS Certification. If they do not, or there are clear grounds to believe they are not in compliance with the Code, the government may implement control measures such as inspecting or delaying the ship. 2. Ships intending to enter a port o Contracting Governments may request information from ships intending to enter port, such inquiring as to the security level they are currently operating at, or whether they possess valid certification. o Failure to comply with this may result in denial of entry to port. For more detailed information on Control and Compliance Measures, see IMO Resolution MSC/159(78) on Interim Guidance on Control and Compliance Measures to enhance Maritime Security Ship security assessment & ship security plan: (sections 8 & 9) In order to achieve compliance with ISPS, a ship must undertake a ship security assessment and identify existing security measures, as well as possible threats that it may encounter. This assessment varies depending on where the ship is operating, the flag it flies, cargo type, etc. Based on the ship security assessment, a ship security plan is formulated that addresses any vulnerabilities identified in the assessment. Security officers (sections 11 & 12) Companies are also required to designate a company security officer, and ships must designate a ships security officer. These individuals have the responsibility of maintaining the security requirements of the Code. - 4-

5 Question 5: How does the ISPS Code affect ports? Much like the requirements for shipowners, the ISPS code establishes requirements for: o Port facility security, including a requirement to respond to security levels set by Contracting Governments (s. 14) o Port facility assessment (s. 15) and port facility security plan (s. 16) o Port facility security officer (s. 17) Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA 1988 & SUA 2005) Question 1: Whom does this convention apply to? SUA 1988 applies to 164 states, or 94.52% of the world tonnage SUA 2005 applies to 31 states, or 35.76% of the world tonnage Question 2: What are some important provisions of SUA 1988 for counter-piracy? Article 3 Criminalizes the following activities: Seizing/control of ships Acts of violence against person on board Destruction or damage to ship or cargo Placement of devices or substances to destroy or damage ship Damage/destruction of maritime navigational facilities Communicating false information Article 8: Allows the master of a Ship of a State Party to deliver to the authorities of another State Party a person who he has reasonable grounds to believe has committed an offense in article 3 Question 2: What does SUA 2005 add? Article 3 bis adds offenses to the list: Terrorism offenses on board or against ships or platforms Non-proliferation offenses Transporting terrorist fugitives Threats, conspiracy, attempts Article 8 bis adds further stipulations for the boarding provisions: See the full document here. - 5-