y modos de dominación
CUIDADO DE LAS FORMAS Y DENEGACIÓN DEL INTERÉS
The birth of the flags of convenience, or open registries, can be traced to businesses and entrepreneurs in developed countries seeking innovative ways to exploit loopholes in the law and avoid the strict and costly regulations for registering vessels in those developed countries.146 The problems raised by this practice have occupied the ILO since as early as 1933.147
Flags of Convenience States permit shipping companies to register their ships at low costs, pay lower taxes or to register sub-standard ships that would not comply with the more stringent safety and labour standards of other registries.148 Linked to this, it is often the case that companies registering their vessel to a flag of convenience will be able to take advantage of the lack of unionisation in many Flag of Convenience States. This can further reduce labour costs and limit the capacity for future labour related problems arising within their workforce.149 Registering with flags of convenience thus frees ship owners from legal and normative restraints and gives them scope to determine for themselves their own levels of professional standards.150
In addition to this ability to seek out the lowest and cheapest standards, it is relatively easy for shipping companies to move the registration of their ship from one State to another, less stringent, State’s registry should any issues concerning costs or the raising of standards arise.151 This process is known as “re-flagging” and its permissibility serves as yet another obstacle to the implementation and protection of international labour standards.
Re-flagging essentially enables companies to jump between jurisdictions, national laws and labour regulations. The traditional legal manifestation of the ILO’s labour standards and protections through treaty ratification, then, may not be able to keep seafarers under the protections of labour conventions if the ship re-flags to a non-ratifying State.152 By threatening to undermine the effective operation of Flag State jurisdiction over their vessels, shipping companies can effectively force the hand of States to retain
146 Anderson, Edwin; The Nationality of Ships and Flags of Convenience: Economics,
Politics, and Alternatives; 21 Tul. Mar. L.J 1996 p158
147
ILO Committee of Experts; General Survey Convention 147; International Labour Conference, 77th Session, 1990 para 13
148 Zwinge, Tamo; Duties of Flag States; 10 J Intl Bus. & Law 2011 p299
149 Baker, Brian; Flags of Convenience and the Gulf Oil Spill: Problems and Proposed
Solutions (hereafter:Gulf Oil Spill); 34 Hous. J. Intl. Law 2011-12 p697
150 ILO; The Global Seafarer; 2004 International Labour Office Geneva, p190 151 ILO Committee of Experts; General Survey Convention 147; International Labour
Conference, 77th Session, 1990 para 14
152
Bronstein, Arturo; International and Comparative Labour Law: Current Challenges; ILO Geneva 2009 p25
low costs and low levels of labour protections, 153 lest they wish to lose the often very high levels of income generated by shipping.154 The ease of re- flagging vessels also creates fluctuations in the percentage of ships coming under the various ILO maritime labour conventions, making it difficult to establish how extensive and effective the coverage is of maritime labour protections.
In any case, Flag of Convenience States have a reputation for taking little or no interest in the affairs or standards of their ships and often fail to uphold international or domestic standards designed to ensure the safety and security of the ship and its crew.155
Thirty-two States have been identified as Flag of Convenience States by the International Transport Workers’ Federation’s (hereafter: ITF) Fair Practice Committee,156 a joint committee of ITF seafarers’ and dockers’ unions which runs the organisation’s campaign against Flag of Convenience States.157
Standing in stark contrast to UNCLOS’ requirement of a genuine link to exist between ship and Flag State, many ships registered under flags of convenience have never even been to the country where they are registered.158 Based on this reality, the ITF has argued that “there is no
genuine link in the case of flags of convenience registries,”159
raising
questions as to the legitimacy of this aspect of international maritime law. It also leaves a loophole in the protection systems for the realisation of social justice which allows companies to seek out registries which give them a competitive advantage over their rivals through reducing labour standards and the additional costs associated with them.
However, with the lack of definitional clarity and consensus concerning the genuine link requirement, coupled with the lack of any express prohibition concerning flag of convenience registries, the phenomenon has been allowed to exist and grow unabated in the international maritime legal system.
Indeed, in an advisory opinion of the International Court of Justice on the Constitution of the Maritime Safety Committee of the Inter-Governmental
153 Goodman, Camille; Flag State Responsibility in International Fisheries Law – effective
fact, creative effective fact, Creative Fiction, or Further Work Required?; 23 Austl. & NZ
Mar. L.J. 2009 p159
154
Frawley, Shayna; The Great Compromise: Labour Unions, Flags of Convenience and
the Rights of Seafarers; 19 Windsor Rev. Legal & Soc. Issues 2005 p90
155 Rothwell, Donald & Stephens, Tim; The International Law of the Sea; 2011 Hart
Publishing p158
156
ITF; Defining FOCs and the Problems they Pose; available at: http://www.itfseafarers.org/defining-focs.cfm
157 Baker, Brian; Gulf Oil Spill; 34 Hous. J. Intl. Law 2011-12 p690 158 Baker, Brian; Gulf Oil Spill; 34 Hous. J. Intl. Law 2011-12 p695 159
ITF; What Are Flags of Convenience?; available at: http://www.itfglobal.org/flags- convenience/sub-page.cfm
Maritime Consultative Organisation (what is now the IMO), the court actually affirmed the legal standing of open registries. They did so by refusing to exclude the Flag of Convenience States of Panama and Liberia from an election of the world’s largest shipping registries. The court noted instead that registration with a State was sufficient to qualify a ship under said State’s flag.160
Consequently, the legality of open registries, as they now stand, is not subject to direct challenge.161
It is important to note at this juncture that it should not be assumed that all ships that fly a flag of convenience are, by this fact, abusing the labour rights of their workers at sea. Rather, the fact that they are flying under this flag risks the legitimate avoidance or undermining of international labour rights. Nonetheless, this practice creates significant legal challenges with respect to maritime regulation and enforcement of international standards.162