A Framework Convention

Prior to beginning the MLC negotiations, the JMC’s proposal for a consolidated instrument was approved by the Governing Body of the ILO. The Geneva Accord contained recommendations, not only on the structure and schedule of meetings for developing the MLC, but preliminary ideas as to the nature of this “new” instrument:

The Commission [JMC]… discussed the significance and impact of maritime labour standards. It agreed that many of the existing ILO maritime labour instruments were outdated, deficient and not reflective of modern practices; those which were up to date and pertinent were not sufficiently ratified. It concluded that the best way forward in line with the integrated approach approved by the Governing Body at its 279th Session (November 2000) was the adoption of a single “framework” instrument which would consolidate the existing body of ILO maritime Conventions and Recommendations. (ILO, 2001a: GB.280/5).

As a framework instrument, the MLC provisions were to be less detailed, clear, simple, coherent and concise. These words were frequently used, particularly in the first meeting where the guiding principles for the deliberations and aspirations for the “new” instrument were established. A framework convention is understood as containing minimum standards aimed at securing wide ratification. Framework conventions are treaties outlining the broad objectives of an instrument of governance and establishing commitments for the duty holders, where the details are decided in further protocols or regulations (Matz-Luck, 2009).

The structure for the MLC was modelled on the IMO’s Standards of Training, Certification and Watchkeeping (STCW) Convention 1978 (as amended). The MLC contains Articles, Regulations, Standards and Recommendations under one cover (Explanatory Note, MLC 2006: 12-13), a deviation from previous ILO model where conventions consisted of articles only and had Recommendations as

separate documents.39 _{Subject areas are given titles and broadly stated} regulations to give them effect. The regulations are immediately followed by mandatory standards Part A, which are followed by non-binding guidelines (Recommendations) Part B, (Appendix IX illustrates this structure with the section of relevance to this study: Title 4: Health Protection, Medical Care, Welfare and Social Security Protection).

Framework agreements have their challenges in attempting to be simultaneously universal and effective (Matz-Luck, 2009). As Matz-Luck (2009: 445) notes “…universal legal regulation requires compromise that impedes substantive commitments by the parties. Often the choice is between many States but weak regulations or strong legal obligations but few participants.” To solve this problem, framework conventions may have broadly stated and relatively weak statements of principles and objectives to the agreement of all parties with more substantive details being settled in protocols. In the case of the MLC, the details are non-binding and governments and shipowners raised concerns and sought assurances that these were merely guidelines (for example, TWGMLS/2003/10: para 26: 6: paras 152-155). A government member’s concern was recorded as follows:

Members were requested to give “full consideration” to implementing the responsibilities stipulated within Part B and this seemed to have a more stringent legal status than a Recommendation. He expressed concern that this could become a major obstacle for some members to ratify. Careful consideration needed to be given to make Part B softer and more flexible in terms of legal status. (TWGMLS/2003/10: para 26: 6).

There was much discussion as to the legal status of Recommendations, as the ILO sought to assuage the concerns, while simultaneously attempting to give

39 _{Adopting this structure also served the purpose of flexibility in making amendments through a}

simplified procedure (see Explanatory Note, MLC 2006: 12-13). Articles are the treaties and these require a long process to amend. The standards in the MLC can be subject to tacit approval. This was one of the modernized features of the MLC that would ensure its currency.

some status to Part B. As it was noted, some of the substantial provisions of previous conventions had been incorporated into these guidelines:

Part B was intended to be non-mandatory and would therefore not be binding. However, member States had to report as for Recommendations under article 19, paragraph 6, of the ILO Constitution, but in addition, Article V of the proposed draft asked for full consideration to be given. This wording had been chosen because most provisions in Part B were cascaded from Part A and originally stemmed from Conventions. (TWGMLS/2003/10: para 31: 7).

Using “full consideration” was an attempt to give some weight to these recommendations. Yet, further clarification was sought as some government members remained uneasy with the term “full” and statements by the ILO that Part B was an “integral part” of the Convention. This was clarified through distinguishing the legal implications of the words used in each section. “Shall” meaning where provisions are binding, for example used in the Regulations and Standard Part A, is different from “should” used in the guidelines (TWGMLS/2003/10: para 36: 8; paras 199-200: 27-28). Not to be consoled however, it was further suggested by a government member that “full consideration” should be replaced by “due consideration” (TWGMLS/2003/10: para 152: 21). The seafarers’ group expressed their concern at what seemed to be a weakening of some provisions:

The Seafarer spokesperson drew attention to the overall structure of the instrument. Part B was a guideline and non-mandatory but he expected States to give “full consideration” to its contents since many of its provisions would have been moved down from Part A. Part B should not become irrelevant; if this was to be the case, [original italics] he would demand a substantial amount of the text to be moved back to Part A. (TWGMLS/2003/10: para 154: 22).

It was also pointed out by the ILO’s legal adviser that the “…new Convention’s only real innovation was that in the new Convention the amount of

non-binding provisions was much higher than in any earlier Convention.” (TWGMLS/2003/10: para 199: 28). This however, did not sway the concerned government members who did not want added obligations. The compromise was to accept the suggestion of the wording “due consideration,” as it now stands in the MLC (Article VI: para. 2: 5). To ensure that recommendations remained on the radar, the explanatory note to the MLC indicates that:

…by following the guidance provided in Part B, the Member concerned, as well as the ILO bodies responsible for reviewing implementation of international labour Conventions, can be sure without further consideration that the arrangements the Member has provided for are adequate to implement the responsibilities under Part A to which the Guidance relates. (MLC 2006: para 10: 13).

The alternative was that a member State would be obligated to prove to the ILO that measures it implemented were “substantially equivalent” to those provided in the MLC guidelines. This seemed sufficient to have satisfied the seafarers’ group as they made no further protests on the matter.

The preceding is one, but important example of how these standards were negotiated and how their effectiveness was lessened in order to gain wide support. The example reflects wider discussions on how the robustness of international standards might come to be less than envisaged (Hilgert, 2013; Matz- Luck, 2009) and exposes the limits of global regulation. Nevertheless, the ILO has hailed the MLC development as an example in the effectiveness of tripartism:

This Convention demonstrates that social dialogue and international cooperation can effectively address the challenges of living, working and conducting business at sea. But it goes even further by showing how dialogue and tripartism can also address the challenges of globalization (ILO, 2015a: VII).

The reality is however more subdued than the ILO’s statements. The MLC development, as the outcome of “negotiated compromise,” shows how firmer provisions became recommendations in an attempt to satisfy the various interests

of the social partners and to achieve the objectives of flexibility and wide ratification (further explored in Section 5.2.2).