1. Introduction
The regulation of wage and working conditions on board foreign-flagged ships is feasible. That is the main finding in two reports written in parallel during the spring of 2019; one by the Norwegian law firm Wikborg Rein and the other by researchers at the Scandinavian Institute of Maritime Law at the University of Oslo.
Wikborg Rein’s report was commissioned by the Norwegian Ministry of Trade, Industry and Fisheries.(1) Wikborg Rein and Oslo Economics, Vurdering av muligheten til å kreve norske lønns- og arbeidsvilkår i norsk farvann og på norsk kontinentalsokkel, 2019.The Scandinavian Institute of Maritime Law’s report was commissioned by the Norwegian Confederation of Trade Unions, the Norwegian Seafarers’ Union and the Norwegian Maritime Officers’ Association.(2) Finn Arnesen, Hanna Furuseth, Alla Pozdnakova and Henrik Ringbom, Norske lønns- og arbeidsvilkår i norske farvann og på norsk kontinentalsokkel, 2019.Their mandates were, however, identical: To investigate the opportunities and challenges associated with requiring Norwegian wage and working conditions on board foreign-flagged ships in Norwegian waters and on the Norwegian continental shelf.
Several studies have been undertaken in recent years, both at the University of Oslo and elsewhere, to investigate the legal challenges associated with requiring national wage and working conditions on board foreign-flagged ships.(3) Henrik Ringbom, “National Employment Conditions and Foreign Ships – International Law Considerations” in Scandinavian Institute of Maritime Law Yearbook 2014, Sjørettsfondet, 2015, pp. 109–151; Henrik Ringbom and Erik Røsæg. Norwegian employment conditions for foreign flagged off-shore service ships – International and EU law considerations, Oslo: Scandinavian Institute of Maritime Law, University of Oslo, 2014 [unpublished]; Finn Arnesen and Tarjei Bekkedal, EØS til sjøs, Oslo: Scandinavian Institute of Maritime Law, Centre for European Law, University of Oslo, 2017; Finn Arnesen and Tarjei Bekkedal, Fair wage and working conditions within the European Maritime Space, Oslo: Scandinavian Institute of Maritime Law, Centre for European Law, University of Oslo, 2017, 2019; Erik J. Molenaar, Alex Oude Elferink and Denise Prevost, Study on the Labour Market and Employment Conditions in Intra-Community Regular Maritime Transport Services Carried out by Ships under Member States’ or Third Countries’ Flags: Aspects of International Law, Utrecht: Netherlands Institute for the Law of the Sea, Universiteit Utrecht, 2008.The aspect that separates this latest project from the rest, is that it resulted in a legislative proposal, applying the insights from both the institute’s report and Wikborg Rein’s report to show one way in which Norwegian wage and working conditions may be imposed on board foreign-flagged ships in Norwegian waters and on the Norwegian continental shelf.(4) Finn Arnesen and Hanna Furuseth, Forslag til lov, lovendringer og forskriftsendringer for å gjennomføre norske lønns- og arbeidsvilkår i norske farvann og på norsk sokkel – forslag utarbeidet for LO, Norsk Sjømannsforbund og Norsk Sjøoffisersforbund, 2020. The legislative proposal was, like the report, commissioned by the Norwegian Confederation of Trade Unions, the Norwegian Seafarers’ Union and the Norwegian Maritime Officers’ Association.
This article is based both on the report written at the Scandinavian Institute of Maritime Law, as well as on the legislative proposal. The article thus represents a practical approach to coastal State regulation of wage and working conditions on board foreign-flagged ships.
The two reports and the legislative proposal were all focused on finding ways of securing Norwegian wage and working conditions in Norwegian waters and on the Norwegian continental shelf. However, the questions addressed in so doing will also be relevant outside the Norwegian context. This article extracts some of the most important findings from this mainly Norwegian project, to present them to a wider audience.(5) The article is an abbreviated and modified version of the author’s contributions in Arnesen et al. (2019) and Arnesen and Furuseth (2020). These contributions were in turn based on the author’s master’s thesis, Hanna Furuseth, “Regulering av lønns- og arbeidsvilkår i kabotasjefart – folkerettslige og EØS-rettslige begrensninger, in MarIus no. 517, Sjørettsfondet, 2019. The output of the research has benefitted greatly from fruitful discussions with, and feedback from, Finn Arnesen, Hans Jacob Bull, Alla Pozdnakova and Henrik Ringbom.
The potential regulation of wage and working conditions on board foreign-flagged ships in Norwegian waters and on the Norwegian continental shelf will be subject to the rules and principles of general international law, the law of the sea, international trade law, bilateral trade and shipping agreements, as well as the rules under the European Economic Area (EEA law), which extend EU internal market law to the EFTA Member States Norway, Iceland and Liechtenstein.(6) For a more thorough discussion of these challenges to coastal State regulation of wage and working conditions on board foreign-flagged ships, see Arnesen et al. (2019); Arnesen and Furuseth (2020); and Furuseth (2019).Rather than discuss all of these challenges to coastal State regulation, the focus of this article will instead be on the one challenge that is common to all coastal States seeking to regulate wage and working conditions on board foreign-flagged ships: The question of jurisdiction.
Section 2 of this article addresses how the law of the sea and the rules and principles of general international law affect the coastal State’s jurisdiction to impose national wage and working conditions on board foreign-flagged ships. The discussion shows how the imposition of such conditions can be based on the coastal State’s sovereignty in ports, internal waters and the territorial sea, and on its sovereign rights in the exclusive economic zone and on the continental shelf. Section 3 is devoted to the main features of the legislative proposal, suggesting how the insights from the previous section can be applied to secure Norwegian wage and working conditions on board foreign-flagged ships in Norwegian waters and on the Norwegian continental shelf.