Paper for the Presentation at the ecpr Joint Session of Workshops. 9. Why Do Social Actors Comply? Comparing European and International Norms

Transcription

1 Paper for the Presentation at the ecpr Joint Session of Workshops 9. Why Do Social Actors Comply? Comparing European and International Norms Ensuring Compliance - Two Cases from the Maritime Sector - by Jan Dirks Research Centre Work and Technology artec University of Bremen

2 2 Note for the participants of the ecpr workshop: Dear participant, the first part of this paper (Economic Development in International Merchant Shipping and Shipowners Reaction Problem Identification) provides some economic data, which is used to describe and determine the issue area. Due to the complexity of the maritime sector, this approach is necessary in order to understand the quality problems in the maritime sector. Nevertheless, if you are in a hurry, you may skip this part and just read the summary. Contents Introduction... 3 Economic Development in International Merchant Shipping and Shipowners Reaction Problem Identification... 6 Summary of the first Part The International Safety Management Code (ISM) and the Standards of Training, Certification and Watchkeeping 1995 Convention (STCW 95) International Safety Management Code (ISM) STCW Convention Port State Control (PSC) Why Do Social Actors Comply?... 20

3 3 Introduction The aim of the following paper is to turn attention of the reader to an economic sector the maritime sector, which seems to be very interesting for explaining national compliance with international norms. I would like to mention, that a comprehensive analysis of the below described international regimes in the context of compliance is not possible in a small working paper like this. Therefore, the paper only highlights the most important structures related to this context and develops some arguments for discussion. The two IMO-Conventions (IMO = International Maritime Organisation) Standards of Training, Certification and Watchkeeping Convention 95 (STCW 95), as an extensive revision of the STCW 78 Convention and International Safety Management Code (ISM), which are substantial amendments to the Safety Of Life At Sea Convention (SOLAS), provide examples for positive market-correcting international regulation, although the economic efficiency of the involved states varies strongly. Simplified, positive regulation means arranging or influencing a scope for action by making it subject to collectively binding rules, while negative regulation means establishing a scope for action. A second distinction has to be made in order to characterise the activities required for the national implementation on behalf of the involved governments. If they have to take actions for implementing the international rules at national level, instead of simply preventing activities of actors by national legislation, I shall speak of positive regulation. The political scientist, Fritz Scharpf, distinguishes between product-related (negative) and productionrelated (positive) regulation, which can be understood as equivalent of the passive and active state action mentioned above. 1 According to Scharpf, positive market-correcting international regulation is difficult or even impossible -, if the economic efficiency of the involved states varies strongly. The reason for this is that the poorer states won t give up their competitive advantages resulting from low wages and low social security costs. Therefore, Scharpf argues, that international positive market-correcting regulation is only possible, if financial compensation for potential losses is provided. Scharpf came to this conclusion by using a game-theoretical approach, viewing national governments as the only actors in international relations. As a reply to Scharpf s thesis, the political scientist from the Institute for International and Intercultural Studies (INIIS) at the University of Bremen, Michael Zürn, has shown, that 1 For a more elaborate discussion of positive and negative regulation see: Fritz Scharpf, Politische Optionen im vollendeten Binnenmarkt, in: Markus Jachtenfuchs / Beate Kohler-Koch (ed.), Europäische Integration, Verlag Leske + Budrich, Opladen 1996, Page 109ff. See also: Michael Zürn, Positives Regieren jenseits des Nationalstaats, Zeitschrift für Internationale Beziehungen, 4. Jg. (1997), No. 1, Page 41ff.

4 4 positive international market-correcting regulation is performed in the environmental sector, where several internationally agreed standards have been implemented in the states, despite economic differeneces. 2 Zürn argues, that the implementation of international environmental regimes follow a specific logic, starting with the realisation of a demand for a regime by a small group of highly efficient countries. After general goals are formulated in a Convention, international secretariats, scientific committees and verification- and reporting mechanisms are established, followed by additional protocols and more rigid standards. Finally, an inherent dynamism develops and protocols with clear obligations for market correction are formulated. 3 While the genesis and implementation of the two international regimes (STCW 95 and ISM Code) followed an almost similar implementation logic, they differ from the positive regulations in the environmental sector analysed by Zürn in terms of ensuring compliance. In the maritime sector compliance to the above mentioned IMO-Conventions can be - and will be - enforced by the port states. This is true not only for those states, whose governments have ratified the conventions but also for those, whose governments have not, as will be shown in the following paper. The reason for the chance to enforce compliance with the IMO-Standards can be seen in the specific character of merchant shipping. Elsewhere, I have labelled the maritime sector as being fully globalized. 4 The full globalisation steams mainly from three properties of merchant shipping: 1. Production sites are not bound to a territory; 2. A ship may be registered in a register of free choice, independently of the nationality of the shipowners or the location of the shipping company; 3. Shipowners, whose ships are registered in an open register 5, may employ crews from different nationalities. For a better understanding, I would like to provide an example: A ship which is owned by a Norwegian owner and registered under Panama-flag may transport goods from China to Western Europe with a crew consisting of a German master, British engineer officers, Swedish deck officers and Philippine ratings. In merchant shipping crews can be hired by a shipowners from manning agencies. Sometimes there are seafarers from seven different nations on board one ship. In a workshop at University of Bremen with 15 German masters in 2 Michael Zürn, For the implementation logic see also: Ethan A. Nadelmann, Global Prohibition Regimes; the evolution of norms in international society, in: International Organisation, Volume 44, No. 4 (Autumn 1990), Pages 479ff. 4 Jan Dirks, Universales positives Regieren jenseits des Nationalstaates, artec-paper 63, Research Centre Work and Technology (artec), University of Bremen, Open register means registers where vessels may enrol independent of the nationality of the owner. In many cases, the flag states allow for low wages, low social security and low technical and safety standards.

5 5 February 1999, I have been told that the more expensive the crews from manning agencies, the better they are. 6 There is no doubt that the full globalisation of merchant shipping leads to global problems. Global problems mean dilemmas of which a number of or all countries are affected and which cannot be solved by a single state or a group of states. In merchant shipping, the global problems are related to pollution, working and safety conditions on board and a downward spiral in quality, due to the registration of vessels in so-called cheap flags with lax requirements in terms of qualification and safety standards. The repeated accidents of vessels with disastrous consequences for the seafarers and the environment 7, raised public awareness about safety standards on board vessels. The example of the passenger ferry ESTONIA, where 852 persons lost their life in 1994 again made clear, that European ownership of a vessel does not guarantee for safe passage. The ship was registered under the Cyprus flag. 8 The following paper shows, what measures have been taken by the International Maritime Organisation (IMO) in cooperation with seafarers organisations and shipowners organisations in order to force sub-standard shipowners to comply to minimum safety and qualification standards. In the first part, data is provided on the economic developments in international merchant shipping and the numbers of vessels registered under different flags. It shows that European registers are declining, despite positive growth rates in world-wide shipping, since the beginning of the 1990s. As a result it can be expected that global problems related to the maritime sector are increasing, if no corrective action is taken. In the second part the contents of the international regulations STCW 95 and ISM Code are summarised. The obligations of shipowners and member states are described briefly, showing that both conventions require a high degree of activity on behalf of the governments, shipowners and seafarers. The following part discusses the Port State Control (PSC), a mechanism to ensure compliance to the two International Maritime Organisation (IMO) Conventions STCW 95 and ISM Code and several other IMO and ILO (International Labour Organisation) Conventions. 6 German master with years of experience in international shipping. 7 For example, the EXTONIA, HERALD OF FREE ENTERPRISE, PALLAS, to name only a few publicly well known havaries. 8 For a brief history on the accident of the ESTONIA and technical data see Estonia The Ferry Disater,

6 6 The last part provides arguments for discussion on the subjects of positive international market-correcting regulation and of compliance to the international regimes. Economic Development in International Merchant Shipping and Shipowners Reaction Problem Identification In this section, the main economic developments in the international merchant shipping will be described in order to allow for a better understanding of the shipowners reactions and the regime demand. The starting point is the recession in the shipping market at the end of the 1980s and the beginning of the 1990s. Since then, overall revenue in the international shipping market has increased again, reaching higher values than in Nevertheless, the numbers of ships registered under European Union flags is declining continuously. The following graphic illustrates the relative and absolute decline of the share of EU-flagged vessels from 1990 to 1998.

7 7 Graphic 1: Registrierte Handelsflotten nach Ländergruppen, 1990 und OECD Davon EU Wichtige offene Register Andere Entwicklungsländer Total Anzahl der Schiffe Total Entwicklungsländer Andere Wichtige offene Register Davon EU * OECD source: Institute of Shipping Economics and Logistics 1998 According to the European Community Shipowners Association (ECSA) the world trade showed a growth rate of 9.2 percent in 1997 against 6.6 percent in the previous year. 9 This resulted in a new record for the volume of the world seaborne trade which stood at mn. tons, a 4.4 percent increase compared to 1996 volumes. On 1 January 1998 the European Union (EU) registered fleet amounted to ships or 56.3 mn Gross Tonnes (GT). This represents a reduction from the 1997 figure and puts the share of the EU flagged fleet at just 11 Percent of the world fleet. 10 The fact that European Union (EU) shipping is declining while world-wide seaborne trade has strongly increased during the 1990s requires some explanation. The reason for this is that European shipowners continuously register their vessels under foreign flags. The following two tables show the number of vessels registered in EU registers, foreign registers and the total in 1994 and in European Community Shipowners Association (ECSA), Annual Report , Brussels 1998, Page Ibid.

8 Tabelle 1: Distribution of the EU Fleet in 1994 National flags Foreign flags Total fleet controlled Greece UK Germany Denmark Sweden Italy France Netherlands Belgium Spain Finland Portugal Austria Ireland Luxembourg Total Source: Institute of Shipping Economics and Logistics, Vessels of 1000 gt and over Tabelle 2: Distribution of the EU Fleet in 1997 Vessels of 1000 gt and over National flags Foreign flags Total fleet controlled Greece UK Germany Denmark Sweden Italy France Netherlands Belgium Spain Finland Portugal Austria Ireland Luxembourg Total Source: Institute of Shipping Economics and Logistics, 1998

9 Number of Vessels 9 Although the period of investigation covers only three years 11 it clearly shows the trend of flagging out vessels from European registers towards foreign registers. While in 1994 there were vessels registered under EU-flags 12 this number has declined by 257 in three years time. In the same period, the number of foreign registered EU-vessels increased by 617. The total number of beneficially EU-owned ships grew during the period of investigation by 360, which shows that EU-shipowners get their share of the increasing world seaborne trade, despite the declining numbers of EU-vessels. The reasons, why European shipowners register their vessels under foreign flags are the following: 1. Most of the major open register states demand lower technical and safety standards than European Union (EU) member states. 2. Many of them demanded fewer taxes than EU governments in previous years Most open registers allow for employment of mixed crews on board, whose certificates of competency could not be validated in all cases, due to the lack of uniform qualification standards. The seafarers may be paid according to wages, which are usually paid in their natural habitat. The question arises, which flags the European shipowners prefer. Data on the number of vessels flagged out towards major open registries was only available for four member states of the European Union (EU) in Graphic 2: 1994 by size of open register Open Registry Flags by Countries of Domicile Liberia Panama Bahamas Cyprus Malta Saint Vincent Bermuda Marshall Islands Vanuatu Antigua Barbuda Greece UK Germany Sweden Countries of Domicile Source: Institute of Shipping Economics and Logistics, The Institute of Shipping Economics and Logistics started analysing the flagging out of vessels beneficially owned by European shipowners in Therefore no data covering earlier years is available. 12 Including international registers, the so-called second registers with lower nationality requirements. 13 Since the implementation of the European Union State Aid Guidelines in 1996, which allow for a reduction of the wage taxes and social security contribution for EU-seafarers, this argument is not as relevant as it was before.

10 Number of Vessels 10 If we compare table 1 and graphic 2, we can see that from the foreign registered vessels beneficially owned by Greek shipowners, 1661 were registered under one of the top ten open registers in For the United Kingdom (UK) this number was 266 out of German beneficially owned vessels out of a total 657 foreign registered ships were registered in one of the top ten major open registers. For Sweden this number was 80 out of 126. The data for 1997, provided by the Institute of Shipping Economics and Logistics (ISL), on the number of vessels flagged out from EU member states is more extensive, although it does not cover all EU member states. In order to a allow for a comparison with graphic 2 the first four columns in the following graphic show the same member states as in graphic 2. Graphic 3: 1997 by size of open register Open Registry Flags by Country of Domicile Panama Liberia Bahamas Cyprus Malta Marshall Islands Saint Vincent Bermuda Antigua Barbuda Vanuatu Greece UK Germany Sweden Denmark Belgium Italy France Countries Source: Institute of Shipping Economics and Logistics, 1998 A comparison between graphic 2 and graphic 3 reveals several trends. We will only regard the significant moves towards the main registers on the country of domicile basis: 1. Greece. Shipowners from Greece are relying stronger on the Liberia, Bahamas and Malta registers in 1997 than in 1994, while the numbers for the other registers remain almost unchanged.

11 11 2. UK. In the United Kingdom only few changes took place. While the numbers of British registered ships increased only in the Bahamas flag, the other open registers remained steady. 3. Germany. German shipowners registered many more ships in one of the main open registers in 1997 than in The most significant register is the Antigua Barbuda, where the number of German vessels has increased by more than 200 in three years time. The same can be said about the Bermuda register, which did not play any role in 1994 for German shipowners. The numbers of German beneficially owned vessels in the Liberia register grew also. 4. Sweden. There were no significant changes in the behaviour of Swedish shipowners. The following graphic shows the size of the open registers in numbers of vessels in 1994 and Graphic 4: Growth Rates in Major Open Registers, 1994 and Number of Vessels Panama Liberia Bahamas Cyprus Malta Marshall Islands Registers Saint Vincent Bermuda Antigua Barbuda Vanuatu Source: Institute of Shipping Economics and Logistics, 1994 and 1998 The graphic clearly indicates that the number of vessels registered in the major open registers has increased for almost all flags during the period of investigation. The flags with the strongest increase are Panama (+ 289), Antigua Barbuda (+225) and Malta (+216). The only register which noted a decline is Vanuatu. The Paris Memorandum of Understanding on Port State Control (Paris MOU) carries out inspections on board foreign ships in the member states and publishes the results on their

12 Greece UK Germany Denmark Sweden Italy France Netherlands Belgium Spain Finland Portugal Austria Ireland Luxembourg Average 12 homepage. 14 Their task is to improve safety by controlling vessels and by detaining them, if deficiencies are identified. Let us have a look on the performance of the different registers. Graphic 5: Open Register % inspections with deficiencies ,94 40 percent Panama Liberia Bahamas Cyprus Malta Marshall Islands Bermuda Antigua Barbuda Vanuatu Average Flag States Source: Paris MOU, 1998 Graphic 6: EU-Register % inspections with deficiencies ,39 Percent EU Member States Source: Paris MOU, 1998 The two graphics demonstrate, that a difference in terms of technical equipment and qualification of the crews 15 between the open registers and the European registers can be expected. Especially vessels registered under the major open registers of Panama, Cyprus and Malta show high rates of detentions in the Paris MOU states. From a German viewpoint, the high rate of detentions of vessels registered under the Antigua Barbuda flag should be a cause 14 For Paris Memorandum of Understanding on Port State Control see below. 15 This is also checked by the Port State Control.

13 13 of concern, since most of beneficially German owned ships under foreign flag are registered there. Summary of the first Part As a summary, I would like to conclude that although the numbers of total losses of vessels by accident has declined in the 1990s 16, there is no reason for the sounding of all clear. It would be misleading to state a qualitative improvement by simply analysing the number of total losses of ships. Firstly, this number does not embrace those accidents where the vessels can be repaired, but where seafarers were hurt or brought to death and where the environment was damaged. Secondly, ships are continuously growing bigger. Therefore, we have to keep in mind that an accident of a vessel may cause much more damage today, than in former times. The continuous flagging out of ships from European (and other high quality) registers towards open registers led to increased employment of mixed crews, which sometimes do not have the skills to run ships safely. Despite, requirements for standards of technical and safety equipment on board are not as high in open registers as in European and US-American registers. At the beginning of the 1990s it was realised by the International Maritime Organisation (IMO) and other international organisations that 80 percent of all accidents are caused by human error. 17 The increased recruitment of seafarers from manning agencies, which led to more mixed crews of different languages on board ships reduces safety significantly. This was confirmed by the Deputy General Secretary of the International Transport Workers Federation (ITF), Jean-Yves Legouas, in an interview for a research project on international standard setting in the maritime sector in winter 1998/99. It was also confirmed by 15 German masters with experience in international merchant shipping during a workshop at Bremen University in February In the workshop it was stated, that as long as a ship runs smoothly, mixed crews are able to perform their duties as good as normal crews. Problems arise when dangerous situations occur, because of a lack of safety training and language skills on behalf of the seafarers from the so-called cheap labour countries. A second problem arises due to the unfathomable structures of ownership and management in many shipping companies. In former times, ships were normally run by shipping companies owned by one owner or a small group of owners. Management structures were in most cases clear in these companies. Today, ships are often run by management companies. In many cases single owners cannot be identified, since the financiers of the vessels have no interest in 16 From 1993 to 1996 the number of total losses of ships in the world fleet has declined from 144 to 105. See: Institute of Shipping Economics and Logistics, 1998, Page This was mentioned by the Deputy General Secretary of the International Shipping Federation (ISF), David Dearsley, in an interview for another research project in autumn It is also mentioned in several IMOdocuments.

14 14 gaining revenue from the ship s operations, but from depreciation provisions. The example of the Pallas 18 has shown, how difficult it is to identify responsible persons for the ship's operation. The vessel was owned by an Italian company, where the internal structures cannot be clarified. The vessel was registered under the flag of Bahamas. Until today it is not clear, who should be made responsible for the environmental damage, caused by the accident of the vessel. The International Safety Management Code (ISM) and the Standards of Training, Certification and Watchkeeping 95 Convention had been adopted in order to solve the two above mentioned global problems. The International Safety Management Code (ISM) and the Standards of Training, Certification and Watchkeeping 1995 Convention (STCW 95) The international organisation dealing with these problems is the International Maritime Organisation (IMO), which was founded in 1948 as a specialised agency of the United Nations (UN) and which has currently 155 member states. It s task is to improve safety of international shipping and to prevent marine pollution from ships. The Maritime Safety Committee, which is one of the committees of the International Maritime Organisation, proposed in 1992 that there is a need to revise the STCW 78 Convention, in order to improve work-related safety on board. The demand for improvements in the SOLAS Convention (including ISM) steamed from the sinking of the Herald of Free Enterprise (1989), which showed that effective safety management systems were lacking on board. International Safety Management Code (ISM) The most important Convention of the International Maritime Organisation (IMO) is the Safety Of Life At Sea Convention (SOLAS). The ISM Code was concluded in 1994 as Resolution A.741(18) as amendment to the SOLAS Convention with the tacid acceptance procedure. 19 It came into force for all oil tankers, chemical tankers, gas tankers, cargo and 18 Pallas was a vessel that grounded near the Danish and German coasts in Winter 1998/99 and caused a lot of environmental damage due to oil spill. 19 Tacid acceptance is a special procedure to allow for a faster implementation of amendments. Instead of a formal ratification of the amendment, an amendment is considered as being adopted, if no state, which has ratified the main convention contradicts in a specified period of time. For tacid acceptance see: IMO homepage:

15 15 high-speed cargo ships (> 500gt) and passenger vessels on 1 st July All other vessels have to comply to the ISM Code in According to the TecnEcon study, the ISM Code is generally regarded as the most far reaching regulatory change for many years. 20 It is not possible in a paper like this to explain the whole ISM code but requirements include: the effective functioning of a designated person appointed (DPA) ashore to monitor the safety aspects of ship operation and ensure that sea staff are provided with sufficient support; the reporting, analysis and follow up of shipboard incidents and accidents; regular internal audits to assess the effectiveness of a company's safety management systems. Part 6 of the Code is related to resources and personnel and provides for the master to be properly qualified and fully conversant with the Safety Management System (SMS); the ship to be manned with properly qualified and fit personnel; new personnel to have safety training; all personnel to have adequate understanding of relevant rules and be able to communicate effectively within the SMS; procedures to be established to identify SMS training needs, and so on. 21 For many shipping companies changes in the management according to the ISM Code require a restructuring of the whole company organisation. Therefore, the international shipowners organisations as well as governments 22 provide support by training courses and audits in the companies. Several guidelines for the implementation of the ISM Code have been published. According to the International Maritime Organisation (IMO) 78 percent of the above mentioned types of vessels met the target on 1 st July That means that 22 percent did not. The masters of these ships must now be afraid of being detained in a Memorandum of Understanding (MOU) Port European Commission DG VII, TecnEcon, Study on the Maritime Professions in the European Union, Bruxelles 1996, Annex D Page D2. 21 Ibid. 22 Especially the International Chamber of Shipping (ICS), the International Shipping Federation (ISF), the International Ship Managers Association (ISMA), the International Association of Classification Societies (IACS), the European Community Shipowners Association, the General Directorate VII (Transport) of the European Union (EU) and the United States Coast Guard as well as national Classification Societies (f. i. Germanischer Lloyd) are involved, to name only the most important. 23 For MOUs see below.

16 16 STCW Convention Originally adopted in 1978, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers came into force internationally in The comprehensive review of the Convention was undertaken over a two-year period by the Marine Safety Committee's (MSC) Subcommittee on Standards of Training and Watchkeeping (STW). Under the tacid acceptance procedure, the revised Convention entered into force on 1 st February 1997, which means that with the beginning of 1998 world-wide seafarers education and training has to take place according to the modular standards formulated in annex A of the Convention. From 2002 each crew member on board a merchant ship must possess a qualification certificate (Certificate of Competency) according to STCW 95 standards. The review of the STCW 78 Convention, which took place from 1993 to 1995, concluded that complete revision of the annex to the Convention was necessary in order to clarify the standards required, introduce qualification requirements for trainer and assessors, provide effective mechanisms for enforcement of its provisions, allow greater flexibility in the assignment of functions on board ships. 25 A detailed STCW Code consisting of two parts was added to the regulations in the annex to the Convention. This Code gives specifications of minimum standards of competence, and allows for a modular qualification system as an alternative to the less flexible traditional system. Part A is mandatory and Part B is recommended. The competency tables in Part A list three levels of competence: the management level for masters, chief mates, chief engineers and second officers; the operational level for officers in charge of the navigation watch or engineering watch; the support level for ratings forming part of a navigational watch or engineering watch. 26 The standards of competence are grouped under seven functions: 27 Navigation; Cargo handling and stowage; Controlling the operation of the ship and care for persons on board; Marine engineering; Electrical, electronic and control engineering; 24 Brant Houston, Effects of the 1995 Amendments to the STCW Convention on Offshore Workboats, Brant Houston, Ibid. 27 Annex 1 of the STCW Convention.

17 17 Maintenance and repair; Radiocommunications. The original 1978 Convention had been criticised on many counts. Critics pointed out the many vague phrases, such as "to the satisfaction of the Administration", which resulted in different interpretations being made. Others complained that the Convention was never uniformly applied and did not impose any strict obligations on Parties regarding implementation. There was also a general recognition that, after 17 years, the Convention badly needed to be brought up to date. 28 During 1998 an investigation on the effects of the revised STCW 78 Convention on maritime training and education in the member states of the European Union was carried out questionnaires which contained questions about the national maritime education and training systems have been sent to the national maritime administrations, shipowners and seafarers organisations. Besides, 39 interviews have been completed with representatives of the governments and seafarers and shipowners organisations in all maritime member states 30 of the European Union (EU). Especially the interviews brought up the result, that the impact of the revision of the STCW 78 Convention on the maritime education and training systems in the EU member states was strongly underestimated by the administrations. Most administrations expected that changes would mainly occur in the certification structure. Later it became clear that in many cases the whole syllabuses had to be reviewed. Besides, further education and training of the teaching personnel had to be carried out in order to enable them to fulfil the requirements of the STCW 95 Convention. Some training institutes also lacked the necessary equipment (especially simulators). It is not clear, how many states have restructured their seafarer training and education systems by now. While many EU-states had more problems than previously expected with the implementation of the STCW 95 Convention, the performance of the so-called major seafarer supplier countries was even worse. In the Philippines, for instance, which provide roughly 25 percent of the current work force in international merchant shipping, there are 165 schools for seafarers. Only six of them were considered by the European Commission to be able to fulfil STCW requirements in time. Therefore, some shipping companies as well as national governments (Norway) and international organisations (ILO, IMO, ISF, ICS, EU) invested heavily in the upgrading training and education equipment in the Philippines and offered 28 IMO-homepage, Maritime Safety (Status of Conventions), Last update March Jan Dirks, Improving Employment Opportunities for EU Seafarers, Joint Study of FST, ECSA and the European Commission (DG V, VII, XXII), Brussels This study can be picked up from the Maritime Information Homepage (which is currently under construction, but main parts of the study can already be read) Austria and Luxembourg were not considered as being a maritime state, since these two countries have no maritime education and training systems.

18 18 training courses for the teachers as well as administrative assistance, in order to secure future supply of Philippine seafarers. The International Shipping Federation (ISF) 31 proposed to establish a white list containing those states, that fulfil the requirements. This was accepted by the International Maritime Organisation (IMO). The white list will be drawn up by the IMO based mainly on data of the International Association of Classification Societies (IACS). Non-compliance to one of the two conventions may have several different effects on behalf of the shipowners: Sub-standard ships may avoid ports where inspections take place. This would restrict strongly the chance to pick up freight, since almost all ports of the triade (EU, USA, Japan), where roughly 60 percent of all seaborne transport takes place, are covered by MOUs. It is also possible that shipowners have confidence in lax carrying out of the inspections. Although there are some structural problems in the implementation of the inspection systems, all experts, who I have interviewed during the last two years on the matter, were confident about improving the quality of controls. Port State Control (PSC) The poor compliance to international safety and labour standards on board vessels by shipowners, whose ships were registered under open registers, led to the creation of the first Memorandum of Understanding in The aim was to establish uniform standards for inspections on foreign ships in the ports of the member states. 32 Although Article 2 of the ILO-Convention 147 (Minimum Standards on Merchant Vessels) required the member states to ensure compliance to minimum standards on board national registered merchant vessels by carrying out inspections or other suitable means, experience has shown that Flag State Control did not bring about the desired results, because some of the flag states did not fulfil their obligations. There are two main reasons for non-compliance with the ILO-Convention 147: 1. Some member states were afraid to loose their competitive advantage related to low technical requirements and low crew costs. According to the International Shipping Federation (ISF) Wages Survey of 1996, a shipowner may save up to US$, if he hires a Philippine Chief Officer instead of a German one. 33 The same can be said to a lesser extent about the other officers and ratings on board. Therefore, yearly savings up to 31 The ISF is one of the most important international shipowners organisation based in London. 32 The Memorandum of Understanding covered 12 European maritime states and the European Community (EC). 33 International Shipping Federation (ISF), Wages Survey 1996, Brussels 1996.

19 19 millions of US$ may be gained by hiring cheap crews (which is only possible under second national or open registers). 2. Other member states lack efficient logistic resources, which would allow them to carry out inspections effectively. Sometimes the technical know-how is also missing. In 1981, the 12 member states 34 and the European Union planned to carry out inspections in the context of the ILO-Convention 147 (Hague Memorandum). The massive oil spill from the tanker Amoco Cadiz near the French coast led to the adoption of a much more extensive agreement on port state control (Paris Memorandum of Understanding), which embraced ILO Convention 147 as well as several IMO-Conventions. 35 Member states are obliged to carry out inspections on board of at least 25 percent of all foreign vessels approaching national ports. It does not matter whether the ships are flying the flag of a member state or a flag of a nonmember (Principle of no more Favourable Treatment). Annually roughly inspections are carried out in the ports of the member states of the Paris Memorandum of Understanding. Besides the duty to inspect 25 percent of all foreign vessels, a second aim of the Paris Memorandum of Understanding Organisation is to establish a data base containing the results of the investigations. This data base is updated on a regular basis, in order to avoid doublechecking and to find out those vessels which continuously contravene against the above mentioned conventions. This data base is published in the internet. 36 This website shows that inspections of ISM-Certificates in Paris MOU member states had already some effects on substandard vessels. The bulk carrier Milos 1, for instance, was inspected in a member state, because of missing ISM certificates. This vessel, which is flying the flag of Cambodia, is now banned from all Paris MOU states until the master is able to show valid ISM certificates. In accordance with article 9A of directive 98/25/EC of the European Council, a ship without ISM certificates on board must be detained. However, if no other deficiencies warranting detention are found, the detention may be lifted to avoid port congestion. Ships leaving port under these circumstances are banned until valid ISM certificates have been issued. 37 It is estimated by the Deputy General Secretary of the International Shipping Organisation (ISF), David Dearsley, that it will take at least six month until a shipping company is restructured in accordance to the ISM Code. Therefore, it can be expected that the chances for the shipowners 34 Since then another four states have joined the Paris Memorandum: Canada, Poland, the Russian Federation and Croatia. 35 Conventions where compliance will be checked by the Port State Control are: International Convention on Load Lines (1966), International Convention for the Prevention of Pollution from Ships (1973), Convention on the International Regulations for Preventing Collisions at Sea (1972), Convention on Safety Of Life At Sea (1974), Standards on Traning, Certification and Watchkeeping (1978) and the International Labour Organisation Convention 147 (Minimum Standards on Board Ships, 1976). 36 The URL is: 37 Paris Memorandum of Understanding on Port State Control, Banned Ships, homepage: last update: March Since mid-1997, eight ships are banned from Paris MOU states. In most cases banning took place because the vessels jumped detention or failed to call at indicated repair yards.

20 20 of the Milos 1 to load or unload freight are significantly limited for the next half year, which will possibly result in heavy financial losses. Since the establishment of the Paris Memorandum of Understanding, a number of other Memorandums of Understanding have been created. The Tokyo Memorandum of Understanding was established in 1993 and covers 16 states. The Acuerdo de Vina del Mar embraces 11 Latin-American states and the Caribbean Memorandum of Understanding has 22 members. Due an initiative of the International Maritime Organisation (IMO) an agreement on port state control was signed for the mediterranean area in Currently the establishment of Memorandums of Understanding is discussed for the Indian Ocean and Central and Western Africa. Why Do Social Actors Comply? From the above outlined structures in international merchant shipping and the related international positive regulations several reasons for compliance to the STCW 95 Convention and the ISM Code can be identified. 1. The first and most important reason for compliance can be seen in the Port State Control, which was invented by 12 European states and the European Union. From this starting point a network of Memorandums of Understanding developed, which covers most of the ports of the triade (and others), where 60 percent of all merchant shipping takes place. The reason for the success of sanctions against non-complying states can be seen in the fully globalized structures of the maritime sector. While these structures lead on the one hand to global problems like endangering the health of seafarers or environmental damage, they allow on the other hand for easy access to the production units of non-complying states on behalf of the port states. Therefore, shipping companies flying sub-standard vessels with badly qualified crews or having insufficient internal management structures will face higher costs, when their ships are detained in MOU-ports. In the medium term, sub-standard shipping companies will not be able to compete with high-quality shipping companies anymore, because their vessels are banned from the main ports. Another economic argument is related to the insurance companies, which will either refuse insurance for sub-standard vessels without the necessary certificates in general or demand much higher rates. 2. For those flag states that offer convenient conditions for sub-standard shipping companies, the establishment of data bases in the port state control networks leads to higher inspection

21 21 rates of vessels flying their flags, if it becomes clear that these ships often show deficiencies. Therefore, costs for shipowners relying on these registers will further increase due to time consuming controls. Most of the experts, who I have interviewed during the last two years, mentioned, that they expect the number of vessels registered in sub-standard registers to decline. 3. As the examples of the two international regimes have shown, those shipping companies that have an interest in improving their management structures as well as the technical and qualification standards on board may receive support from various international governmental and non-governmental organisations. One reason for the readiness of shipping companies and international shipowners organisations to support training and education institutions in less developed countries can be seen in the supply-demand-gap of seafarers world-wide. It is expected that during the coming years, the number of well qualified officers will not meet the demand, while the number of ratings will be sufficient. 38 The same can be said about states, which desire to improve their maritime training and education systems, in order to reach STCW 95 standards. Therefore, the implementation of the two regimes lead to a transfer of technical and administrative knowhow from highly developed countries towards less developed countries, which is welcomed by many states and companies. 4. The fourth concluding remark is related to the third. Due to the limited space of this paper, I was not able to take into account the impact on compliance to the international regimes of the comprehensive network of international shipowners, seafarers and other maritime and United Nations organisations to an extent justifying their work. 39 The shipowners organisations of the Maritime International Secretariats Services Limited (MARISEC) 40 and the European Community Shipowners Association (ECSA) provided their expertise to the International Maritime Organisation (IMO) and national governments during the genesis of the STCW 95 Convention and the ISM Code. They have intensively promoted the regimes to their member organisations. The shipowners have published an extensive body of literature on the international regulations. The mostly used guidelines for the implementation of the ISM Code came from the 38 For a discussion on the world-wide supply and demand of seafarers see BIMCO/ISF 1995 Manpower Update, Main Report, University of Warwick, December See also TecnEcon, Study on the Maritime Professions in the European Union, European Commission, Brussels For an overview of the roles of international maritime NGOs see Jan Dirks, Universales Positives Regieren Jenseits des Nationalstaats, artec-paper 63, Research Centre Work and Technology (artec), University of Bremen, This paper will soon be on the Maritime Information Homepage: 40 The MARISEC consits of six shipowners organisations: International Shipping Federation (ISF), International Chamber of Shipping (ICS), International Ship Managers Association (ISMA), Council of European and Japanese National Shipowners Association (CENSA), International Maritime Employers Committee (IMEC) and International Support Vessel Owners Association (ISVOA).

22 22 International Shipping Federation (ISF) and the International Ship Managers Association (ISMA). ISMA also offers audits for shipping companies currently implementing the ISM Code. During the genesis and implementation processes the international shipowners organisations worked in close cooperation with the seafarers organisations, especially the International Transport Workers Federation (ITF) and the Federation of Transport Workers in the European Union (FST). The cooperation between the shipowners, seafarers, the International Maritime Organisation (IMO), International Labour Organisation (ILO) and the European Commission (DG VII) contributed strongly to the success of the implementation of the two regimes, as far as this can be assessed at the moment. To summarise, the short paper has shown, that positive market correcting international regulation is possible in the maritime sector, despite strong economic differences between the participating states. On the other hand, one may argue, that the expectations of less developed countries to receive technical and administrative know-how and support from the industrial countries can be viewed as compensation for potential losses. Nevertheless, the main reason for agreement to the establishment of the international regimes and the compliance to the standards cannot be seen in the compensation, but in the sanctions imposed on sub-standard ships by the Memorandum of Understanding states. The transfer of technical and administrative know-how has to be understood as a positive side-effect related to the high demand for well qualified seafarers and waterborne transport in general.

23 23 Literature 1. BIMCO/ISF 1995 Manpower Update, Main Report, University of Warwick, December 1995; 2. Dirks, Jan, Improving Employment Opportunities for EU Seafarers, Joint Study of FST, ECSA and the European Commission (DG V, VII, XXII), Brussels 1998; 3. Dirks, Jan, Universales Positives Regieren Jenseits des Nationalstaats, artec-paper No. 63, Research Centre Work and Technology, University of Bremen 1998; 4. European Commission DG VII, TecnEcon, Study on the Maritime Professions in the European Union, Brussels 1996; 5. European Community Shipowners Association (ECSA), Annual Report , Brussels 1998; 6. Institute of Shipping Economics and Logistics (ISL), Shipping Statistics Yearbook 1997 and 1998, Bremen 1997 / 1998; 7. International Organisation, Volume 44, No. 4, Autumn 1990; 8. International Shipping Federation (ISF), Wages Survey 1996, Brussels 1996; 9. Jachtenfuchs, Markus / Kohler-Koch, Beate (ed.), Europäische Integration, Verlag Leske & Budrich, Opladen 1996; 10. Zeitschrift für Internationale Beziehungen, 4. Jg. 1997, No.1; homepages 1. Report and Data about the Estonia Catastrophe 2. International Maritime Organisation (IMO) 3. Information on STCW 95 (US-American view) 4. Information on the whole maritime sector 5. Paris Memorandum of Understanding