Maritime Labour Convention 2006 (MLC) is considered a significant milestone in realizing the rights of seafarers. Before MLC there have been treaties and recommendations of International Labour Organisation (ILO) for the amelioration of the working conditions of seafarers. MLC 2006 has been successful in consolidating provisions of these pre-existing instruments which were dealing with various issues related to Maritime Labour. MLC has done away with the problem of fragmentation in international law. It has made the ratification process easier for the states; before MLC states had to ratify multiple treaties on various aspects of Marine Labour issues but now only MLC has to be ratified. This has saved time and resources.
MLC highlights the basic rights that every seafarer possesses. Some of the most important rights are those related to repatriation, accommodation, medical care, access to seafarer welfare centers and social security protection. MLC sets out the minimum requirement for the seafarer to work on the ship like minimum age, medical fitness, training, etc. It also talks about conditions of employment which include minimum working hours, wages, leaves, and other related matters.
MLC has imposed numerous obligations on the state parties. The situation of COVID 19 has posed several implementation challenges in front of states. ILO in its Report of 7th April 2020 has acknowledged these challenges in the implementation. ILO has highlighted that the state responsibility for the breach of certain MLC provisions due to COVID-19, can be avoided by invoking ‘force majeure’. Force majeure is one of the grounds in international law when the state can escape responsibility for the breach of their International Obligation.
Force majeure comprises of a situation where the State is in effect compelled to act in a manner inconsistent with its international law obligation.[1] The present article argues that necessary conditions for invoking the application of ‘force majeure’ have not been triggered by situation of COVID-19, and therefore states will be responsibility for the breach of the provisions of MLC.
ILO Report and COVID-19
ILO published its Report titled “Information note on maritime labour issues and corona virus (COVID-19)” on 7 April 2020. Report highlights certain obligation under MLC which will face implementation challenges due to COVID-19; these obligations have been listed below.
Under Regulation 1.2 of the MLC, 2006, medical certificates have to be issued to seafarers. The maximum validity of such certificates is two years.
Title 5 of MLC every ship above 500 gross tonnages must possess a Maritime Labour Certificate.
Standard A 2.4, paragraphs 2 of the MLC prescribe at least 30 days leave in a year for a seafarer.
Aforesaid ILO Report acknowledges the difficulty faced by the states due to Covid-19, in the implementation of these obligations. Report agrees that present crisis has made it difficult to timely renew medical certificates of seafarers. Maritime authorities across the world have found it difficult to conduct the inspections and renewal of the Maritime Labor Certificate. Moreover, due to travel restriction and the prohibition on crew changes in some countries seafarers have to remain on board of the ship for a time exceeding 11 months in a year.
ILO report suggests that the breaches of above-highlighted obligations by the states due to difficulties posed by COVID-19, will afford to the state plea of ‘force majeure’ and thus states can escape the responsibility for such breaches. The next segment will assess how far this argument is tenable under international law.
Maritime Labour Convention and Force Majeure
International Law Commission’s Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001 talks about Force majeure in Article 23.
Provision says -
“Wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure that is the occurrence of an irresistible force or an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.”
For claiming Force majeure under Article 23, (i) there must be an unforeseen event or an irresistible force (the ‘triggering event’); (ii) the event or force must be beyond the control of the State; (iii) the event must make it ‘materially’ impossible to perform an obligation; These elements will be assessed below to find out whether state can invoke force majeure clause to exclude liability for breaching above highlighted provisions of MLC.
Term “irresistible”, qualifying the word “force” means unavoidable. It will not be difficult for states to argue that the outbreak of COVID-19 in their country was unavoidable, unforeseen and beyond their control because of the novelty of the virus and its severity. However it will be hard for them to show that COVID-19 has made it ‘materially impossible’ to performance the obligation under MLC. ILC Commentary itself clarifies that “Force majeure does not include circumstances in which performance of an obligation has become more difficult, for example, due to some political or economic crisis.”[2]
COVID-19 might indeed have made the performance of the obligation under MLC difficult but it has not made the performance impossible. For instance, an inspection can be done by the flag state while following necessary precautions to prevent the spread of virus, and thereafter necessary Certificate can be issued.
Fact that now many states have lifted the lockdown imposed by them and restarted their operations even when cases of COVID-19 infections are increasing shows that pandemic has never made it impossible for the state to fulfill the obligations under MLC. It will be highly unlikely that the plea of force majeure will succeed and the state can exclude their responsibility for breaching the provision of MLC by citing difficulties posed by COVID-19.
Conclusion
ILO’s stand that the Covid-19 situation can be regarded as force majeure and the state responsibility for the breach of some provisions of MLC can be waived has to be reassessed. It is interesting to note that same ILO Report itself mentions that the state cannot escape responsibility for breaching certain provisions under MLC relating to the Right to repatriation, shore leaves, access to the medical facility onshore, etc, by citing force majeure due to COVID-19. It can be concluded that the only way by which state responsibility for the breach of certain provision of MLC due to COVID-19 can be excluded is by amending the treaty itself.
***The views expressed herein do not necessarily represent the opinions of JTMS or Yonsei Institute for North Korean Studies.
[1] ILC commentary on Draft Article on State Commentary page 76
[2] ILC Commentary on Draft Article on State Responsibility Page 76