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III. STATUS OF OBSERVANCE AND PROTECTION OF THE RIGHTS OF SPECIFIC CATEGORIES OF UKRAINIAN CITIZENS ABROAD

1. SAFEGUARDING THE RIGHTS OF UKRAINIAN SEAFARERS ABROAD

In the First Annual Report of the Ukrainian Parliament Commissioner for Human Right, a whole chapter was devoted to the protection of the rights of Ukrainian seafarers who were taken hostage when their ships were arrested in ports abroad. The Commissioner addressed then a number of important issues on improving the protection of our seafarers’ social rights abroad and put forward definite proposals to the Cabinet of Ministers of Ukraine.

A monitoring preceding the preparation of this Special Report gives the Commissioner reasons to conclude that, regrettably, nothing has changed for the better since then. Because of the crisis situation in the country’s economy and also for other reasons, the maritime industry has practically collapsed. Suffice it to say that to date the state-owned Black Sea Shipping Company has only seven ships with a displacement tonnage of about 50,000 tons out of its formerly operated 260 cargo ships with a displacement tonnage of three million tons and over 30 passenger ships. As a result, more than 20,000 skilled seamen lost their jobs.

The Sea of Azov Shipping Company had 130 freight carriers with a cargo-carrying capacity of 700,000 tons, while today it has just 39 ships, most of which have been in operation from 25 to 30 years.

The Danube Shipping Company operated 62 dry cargo ships with a tonnage of 236,000 tons and 600 ships for different purposes, and employed 6,000 seamen. To date 2,000 of them are jobless and are on leave without pay.

Neither is the situation any better at other shipping companies that lost a part of their fleets. Lack of sufficient investment in the maritime industry compels the shipping companies to lease their ships to foreign bareboat charterers.

All these circumstances affected a sizable number of seamen and workers of other trades and professions who used to work on these ships and are now without any means of subsistence.

In the opinion of the Commissioner, bodies of the executive underestimate the acuteness of this problem and do not know about the real state of affairs. There are no centralized records on unemployed seamen and nothing is done to take stock of the situation. By the estimates of the Ministry of Labor and Social Policy, the Trade Union of Maritime Transport Workers, and the Council of the Federation of Maritime Trade Unions, the number of permanently unemployed seamen is over 70,000.

The situation is being aggravated by an unreasoned government policy when 22 higher educational establishments and colleges (five in Odessa alone) continue graduating specialists for the maritime industry. All sorts of state and private courses keep on training ratings. Moreover, since a lot of educational establishments switched over to training for pay, the number of graduates is growing with each passing year. For instance, the Maritime College of Kherson increased its student body threefold during the past five years. The State Maritime Academy of Odessa graduates 500 specialists every year.

Young specialists are trained intensively without taking into consideration that with the demise of the Ukrainian fleet graduate students are deprived of the opportunity to take seamanship practice on ships and no foreign shipowner will employ such half-baked specialists.

Lately, the situation on the international maritime labor market has become tense because of wage dumping, as the ratings from China, Pakistan, Cambodia, Latin America and the Philippines swell the maritime occupations. The seamen of these countries agree to work for wages two and three times below the established rates. Therefore, a number of Odessa crewing agencies recruiting our seamen on behalf of foreign companies stopped accepting applications from ratings.

Against this background, the lure of much higher wages abroad makes our seamen go out of their way to be hired by foreign shipowners so as not to lose the slightest opportunity to keep up families.

Numerous recruitment and placement agencies have cynically availed themselves of the dire circumstances of our seamen.

Ukrainian legislation is far from flawless in governing the activity of recruitment agencies. It does not even define such a term as crewing, let alone make allowance for the specific problems Ukrainian seamen have to deal with when hired by alien shipowners. A monitoring conducted by the Commissioner for Human Rights proved that a large number of crewing companies are set up for a short period of time, and none of them is interested in their activities being governed by any laws.

The activities of crewing companies are based on the Law On Licensing Specific Types of Economic Activity of 2000, Cabinet of Ministers regulations On Approving the List of Licensing Agencies of November 2002, and On Approving the List of Documents Attached to Applications for Issue of Licenses for Specific Types of Economic Activity of July 4, 2001, as well as State Committee for Regulatory Policy and Entrepreneurship and Ministry of Labor and Social Policy Order On Approving the Licensing Conditions for Engaging in Economic Activity in Job Placement Abroad of December 19, 2001 registered with the Ministry of Justice on January 10, 2002.

Regrettably, none of these statutory acts stipulate that crewing agencies have to require from foreign shipowners guarantees of minimum wages, medical and pension insurance, compensation for disability or death, judicial protection of violated rights, and repatriation. Ukrainian operative legislation does not impose any restrictions on the excessive charges agencies impose for employment and conveyance to the ship, nor does it include any restrictions on spreading negative information about applicants who for one reason or another are blacklisted and thus deprived of the right to employment.

Besides, the monitoring of the Commissioner proved that there is no state control over the activity of crewing agencies. No statistical data on the number of operating crewing agencies and their managerial composition is available at the Ministry of Labor and Social Policy which under the Cabinet of Ministers Regulation On Approving the List of Licensing Bodies is charged with the duty of awarding licenses to such agencies.

By estimates of the Trade Union of Maritime Transport Workers, the Federation of Maritime Trade Unions, the state Ukrcrewing Co., and the private V.Ships crewing company, in Odessa alone there are over 200 crewing companies and about 500 throughout the country.

Only a few of the agencies go about their business seriously, such as the Ukrcrewing state-owned company and the V.Ships private company which strictly abide by the law and the requirements of international legal instruments, maintain solid business relations with a large number of foreign shipowners, annually place thousands of seamen with employers abroad and bear responsibility for what happens to them. However, the majority of crewing agencies are set up by people who lack the proper knowledge of managing their business and do not know national legislation, not to say anything about the legislation of other countries. Such crewing companies appear and disappear in no time, they do not have a database on foreign shipowners and ships offering vacancies, neither do they worry about creating any proper technical conditions for the registration and control over the destiny of the seamen they place with employers abroad.

Often such agencies do not know whether a foreign company or definite ship exists in reality, whether it goes by the name stated in a contract or has been arrested in a foreign port for technical or other reasons. Exploiting the growing demand in seamen on the labor market, precisely these crewing agencies extort large charges for placement. In violation of operative regulations, specifically the above-mentioned Order On Approving the Licensing Conditions for Engaging in Economic Activity in Job Placement Abroad, these agencies, when concluding contracts with the seamen, do not inform them about the nature of their future jobs, conditions of work, wages, social protection, or the procedure for covering transportation costs. The contracts do not reflect in full scope the rights, duties and liabilities of the parties, the procedure for settling disputes, nor do they define force majeure circumstances and the actions of the parties when these circumstances arise. Taking advantage of the flaws in operative legislation, these agencies almost never set out the conditions of judicial protection of the seamen’s rights, compensations for caused harm to health or death, and repatriation. There have been cases when documents drawn up in a foreign language are not translated into Ukrainian and notarized.

Notably, the services of such agencies are enlisted, as a rule, by seamen who under established international criteria cannot be hired by alien shipowners. The applicants do not know any foreign languages, are of unemployable age for seafaring, do not meet health requirements, and lack experience in their specific trades or in work on ships generally. In order to land a job on an alien ship, they are prepared to pay a lot of money to the crewing agencies, ignoring the gross violations when their documents are executed, which in the future renders them absolutely helpless as far as the protection of their rights and freedoms is concerned.

As the monitoring of the Commissioner for Human Rights revealed, such agencies, spurred by the desire to reap large profits, resort to dishonest practices and abuse when executing documents, and once they place a seaman with an alien shipowner, they leave the seaman in a lurch without any responsibility for his lot if the shipowner fails to meet his commitments or when the seaman finds himself in an emergency situation. Moreover, such agencies do not care at all whether their clients returned to Ukraine.

According to the information of the Ministry of Foreign Affairs, the Ministry of Transport, and the trade unions, the flaws in national legislation and the absence of government control over the recruitment and placement of our seamen with alien shipowners lead a lot of the seamen into slavery when they cannot hope for any social protection: wages are not paid them for years, they are not entitled to medical services or social insurance for disability and death, their repatriation becomes an insurmountable problem, and they suffer from the lawlessness of local authorities.

For instance, the MS Eternal Love flying the flag of Panama and manned by a crew hired by Antama, a recruitment agency in Odessa, was left to its own devices in the port of Georgetown (Guyana). The shipowner arbitrarily refused to honor his commitments to pay wages to the crew and have it repatriated. The crew ran out of drinking water as well as food and fuel for the support of the ship’s operation, and diseases spread among the seamen. The crew’s appeal for repatriation addressed to the Ukrainian diplomatic mission did not produce any results because of the lack of required funds. After the intervention of the International Transport Workers’ Federation (ITF), the ship was arrested and the proceeds from its sale went for repatriating the crew to Ukraine.

The same lot was endured by Ukrainian crews of MS High Glory in the port of Dakar (Senegal), when the Senegalese shipowner did not pay wages from January 1999 to January 2002, and of the motor ships Alexander and White Clipper in the port of Tuticorin (India) when wages were withheld for 14 months.

At the present time MS Destiny is stranded in the port of Cartagena (Colombia). The shipowner failed to pay the crew US $180,000 in wages. In their appeals to the Trade Union of Maritime Transport Workers, with whom the Commissioner for Human Rights maintains constant contact, the crew described their predicament as “prison, hell and horrors taken together.”

Horrible trials and tortures were the lot of the Ukrainian crew of the MS Kobe Queen 1 flying a Panamanian flag. It belonged to a dubious shipowner who hired the crew through the Yunek crewing agency in Odessa.

In May 2000, the Commissioner for Human Rights received an appeal from the close relatives of the crew who along with the ship were arrested on December 24, 1999 by the authorities of India in the port of Chennai. During the arrest the master died, the crew was subjected to inhuman treatment, kept under constant guard of soldiers, denied leave ashore, and refused their wages to buy food products, medicines, and articles of personal hygiene.

The Commissioner immediately forwarded an inquiry to the Ministry of Foreign Affairs of Ukraine and the consular post of the Ukrainian Embassy in the Republic of India and requested to thoroughly study the situation and assist the crew members in protecting their rights. A similar request was sent to the Embassy of the Republic of India in Ukraine. Besides, constant contact was established with the relatives of the seamen and an analysis was made of relevant international legal instruments. The Commissioner for Human Rights was in constant consultation with the Ministry of Foreign Affairs of Ukraine.

The Ukrainian consul in India, O.Herasymenko, informed the Commissioner that Kobe Queen 1 (also known as Glopia Kopp) was really arrested by the border guard and customs service of Chennai port for suspecting the crew in smuggling contraband and drugs as well as changing the course of the ship and its name. Although this information was not proved, the entire crew was unlawfully kept on the ship in one premise under the guard of armed soldiers and denied medical assistance and quality food. They were also prohibited from communicating with the mass media and bodies of authority. The master of the ship, Y.Levkovsky, committed suicide under mysterious circumstances.

The consular post assured that it is keeping the problem under constant supervision and was doing everything possible for the crew to get their pay, including for account of selling the arrested ship and its cargo, and to have the seamen repatriated. For this purpose the consul of the Ukrainian Embassy in India visited port Chennai four times.

After taking all possible measures, seven of the seamen were repatriated at the expense of the embassy’s funds. Yet the other 16 seamen were unlawfully kept on the ship under armed guard, although they were legally acquitted and a court of the highest instance in Chennai ruled that their wages be paid out of the proceeds derived from the sale of the ship’s cargo. The situation was aggravated by the disappearance of the shipowner, while the crewing company did not respond to all inquiries. The seamen remained detained on the ship throughout 11 months. All this time the Commissioner was in constant contact with the Ministry of Foreign Affairs and the Ukrainian Embassy in India. Throughout 2000 the Ukrainian Embassy forwarded to the Ministry of Foreign Affairs of India 17 notes on this issue and over 70 letters to various agencies. This issue was also discussed during a series of Ukrainian-Indian consultations. It was only in November 2000 that the seamen were permitted to return to Ukraine. In defiance of the court ruling, the Indian party did not pay over US $500,000 in arrears of wages for 15 months and the seamen could not return home. In the end, the Trade Union of Maritime Transport Workers of Ukraine, upon advice of the Ukrainian Embassy in India, covered these expenses, although the crew were not even members of the trade union. On November 21, 2000, all the members of the Ukrainian crew returned to the country.

In February 2003, the Commissioner for Human Rights received a letter from 13 Ukrainian citizens – members of the crew of MS Primexpress Island – about the gross violations of their rights by the authorities of Cyprus. The ship was arrested in the seaport of Limassol (Cyprus) on September 7, 2001 in connection with an economic dispute between the co-owners – the Primexpress Tourist Co. of Odessa and a number of Cypriot firms. Hired through an Odessa crewing agency, the crew did not receive wages for 20 months; the ship was not supplied with drinking water and electricity. An Odessa tourist company and an Israeli company, which had hired the ship, disappeared. The situation aroused a protest of the crew who demanded their wages and repatriation, but this did not produce any positive results. They were kept on the ship. Within this time two families were founded and two children were born on the ship.

On February 18, the immigration service of the Limassol seaport invited to its office all the crew supposedly to have them photographed for new passes. The men and women were taken to separate premises, forced to stand at a wall, searched, some of their personal effects and mobile telephones were taken away, after which they were handcuffed. When a crew member, O.Shchukin, began to protest, he was knocked off his feet, beaten up, and handcuffed by force. A.Karatnian who wanted to come to the assistance of O.Shchukin was also manhandled. At that moment senior accountant V.Maleyeva felt unwell and she was taken to another room, but no medical aid was provided to her. The women screamed, wept and cried for help, but all in vain. Much as the crew demanded to meet with representatives of the Cypriot authorities or with a lawyer and Ukrainian consul, their demands were not heeded.

Thirteen crew members, including a woman with a three-month-old baby, were put in a car, driven to the airport, and, after their handcuffs were taken off, pushed into an airplane departing from Limassol for Kyiv via Odessa five minutes before takeoff. All their personal effects, documents and money remained on board the ship. Upon arrival at the airport of Odessa, the border guards denied them entry to the country because they had no documents. Only after corresponding consultations the crew was permitted to stay in Odessa.

When the crew appealed to the Commissioner for Human Rights, a case was opened to protest the flagrant violations of the Ukrainian citizens’ rights. A letter was forwarded to the Minister of Foreign Affairs of Ukraine with a request to examine the matter as quickly as possible and inform about the measures the consular post in Cyprus is taking to settle the conflict and restore the impaired rights of the ship’s crew.

Besides, a letter was forwarded to the Ombudsman of the Republic of Cyprus, Eliani Nikolau, with an appeal to facilitate the restoration of the violated rights of our seamen.

The Federation of Maritime Trade Unions (Odessa) addressed the European Court of Human Rights to protect the seamen’s rights. But to this day they have not received their wages and nothing is known about their personal effects and documents. The ship is still stranded in the seaport of Limassol and in all probability will be auctioned.

Unfortunately, such sad cases are many.

In the period from 1999 to 2001, the Trade Union of Maritime Transport Workers received appeals from 1,654 Ukrainian seamen asking for assistance in repatriation, payment of wages, as well as compensation for damaged health and legal assistance. In response, the Federation helped 976 seamen to recover through legal intervention US $2.1 million owed them by shipowners.

For the Ministry of Foreign Affairs repatriation and protection of our seamen’s rights is not always easy because of the far-flung locations of employment. It is almost impossible to come to their assistance in emergencies on the African continent as well as in some Asian countries and the Caribbean where Ukraine does not have diplomatic missions.

In the opinion of the Commissioner for Human Rights, the causes that render Ukrainian seamen helpless abroad can be reversed by:

§ improving national legislation on the activity of enterprises providing recruitment and placement services;

§ ratifying the main conventions of the International Labor Organization, specifically the Recruitment and Placement of Seafarers Convention (ILO Convention No.179) which provides for the most effective and all-embracing international standards of protection of seamen’s rights and governs and controls the activity of companies recruiting seamen for work abroad.

The Ministry of Foreign Affairs, the Ministry of Transport, and the Trade Union of Maritime Transport Workers advocated precisely such an approach to this problem.

However, almost all crewing agencies and, regrettably, some trade unions, such as the Federation of Maritime Trade Unions (Odessa), are against this idea. They believe that government control, legislative regulation and accession to the ILO Convention No.179 will disrupt the current recruitment practices and reduce the number of crewing agencies, thereby curtailing the employment opportunities for seamen.

Undoubtedly, legislative regulation that aims to prevent violation of the constitutional right to work is a serious factor that has to be taken into account.

But, as the Commissioner sees it, the real reason for the objections by private crewing agencies is that they will be denied income at the expense of seamen who, as it is, are suffering morally and physically from unemployment in the country.

Such an objection was bluntly voiced by Mr.V.Lang, director of an Odessa private agency, Andriatico-Brig Ltd., and chairman of the Union for the Promotion of Employment of Seamen and Protection of their Social and Labor Rights, during an ILO-sponsored seminar on maritime labor rules held in Kyiv on December 10-11. He stated, in particular, that there is no need for concern over the protection of the seamen’s social and labor rights, since they seek employment of their own free will and are prepared for everything to earn good money. Indeed, they pay “of their own free will” a lot for the services of the recruitment agencies.

At the same time the Commissioner draws attention to the fact that solid agencies do not, as a rule, charge anything either for recruitment and travel to the place of employment or for all sorts of “retraining courses.” Under international practice these expenses are covered by the employers/shipowners.

In the opinion of the Commissioner, it is altogether inadmissible to resolve the problem of employing seamen by ruthlessly exploiting them and depriving them social protection. In this connection it seems strange that the Ministry of Labor and Social Policy abandoned its previous attitude and supported the opinion of private recruitment agencies on the prematurity of acceding to ILO Convention No.179.

In August 2002, Vancouver (Canada) was the venue of the 40th Congress of the International Transport Workers’ Federation (ITF), the most influential trade union association, which adopted Resolution No.22 on crewing agencies in shipping. In assessing the state of affairs in this area, the Congress noted that:

§ for marine transport workers crewing agents are the main international instrument of management and control that can be identified as a labor market without rules, norms and rights;

§ in the majority of cases these agencies are managed by unscrupulous persons who guarantee seamen placement with crews, demanding from them a lot of money; exploitation is carried on by using exchange rates, different schemes of insurance contributions or training programs;

§ in the majority of cases crewing agencies appear and disappear throughout a short period of time, which denies workers the opportunity to bring into effect the principle of the employer’s liability.

Such an assessment, as the Commissioner believes, completely corresponds to what is going on in Ukraine.

The Congress appealed to all international institutions and organizations to prohibit all forms of exploitation, specifically by reaping benefits from hiring maritime transport crews; to make national legal systems consider such exploitation as a criminal offense; to set up a definite regulatory framework that would govern the activities of recruitment agencies, define the legal and illegal methods, criteria of professionalism and decency as well the principle of liability jointly with the shipowners for the terms and conditions of recruitment.

The ITF resolution aims to assure more adequate protection of the socioeconomic rights of seamen of each member country of the ITF, which accords with the provisions of the Ukrainian Constitution.

As the Commissioner for Human Rights believes, the issues addressed by the ITF completely meet the interests of building a law-governed state. Therefore, it is absolutely groundless and inhuman for the private recruitment agencies to argue that Ukraine’s broken-down maritime industry has to be revived first and only then can the issue of the seamen’s social protection be addressed.

In this connection, the Commissioner maintains that the ILO Recruitment and Placement of Seafarers Convention of June 22, 1996 should serve as the foundation for drafting national legislation in this area and demonstrate Ukraine’s desire to integrate into the international community by creating conditions for the improvement of labor and social rights both in Ukraine and abroad.

This Convention does not in any way affect or interfere in the economy of countries that ratify it. At the same time it stimulates the development of national legislation on ensuring reliable protection and social guarantees of seamen employed abroad. Since the seamen earn high wages and bring hard currency into the country, they are actually investing in its economy.

In particular, under ILO Convention No.179 an ILO member/country shall, by means of national laws or applicable regulations, ensure that no fees or other charges for recruitment or for providing employment to seafarers are borne directly or indirectly, in whole or in part, by the seafarer. The Convention also determines the conditions under which recruitment and placement services can operate, as well as sanctions applicable in case of violation of these conditions; provides that the management and staff of recruitment and placement services for seafarers should be adequately trained persons having relevant knowledge of the maritime industry; requires that recruitment and placement services adopt measures to ensure, as far as practicable, that the employer has the means to protect seafarers from being stranded in a foreign port; and provides for the establishment of a system of protection to compensate seafarers for monetary loss that they may incur. The ILO Convention lays down a number of basic requirements to these services when they conclude contracts of employment and provides for the establishment of a system of control over the activity of recruitment and placement services.

Notably, the ratification of ILO Convention No.179 and its incorporation into Ukraine’s national legislation does not entail any material expenses. Neither is there any need in setting up a special control agency to exercise oversight of the activity of crewing companies. Such a body is actually identified in Cabinet of Ministers Regulation On Approving the List of Licensing Agencies – the Ministry of Labor and Social Policy of Ukraine.

In the opinion of the Commissioner, this Ministry – in compliance with international conventions, specifically ILO Convention No.179 incorporated into operative Ukrainian legislation – should frame uniform criteria for the establishment and operation of crewing agencies and also formulate government policy of protection of the labor and social rights of seamen employed by foreign shipowners. Besides, it is necessary to establish real control over compliance and make it binding on the recruitment agencies to submit full reports on each seaman from the moment of referral abroad to their return to Ukraine.

The draft Law On Enterprises Acting as Intermediaries for the Employment of Citizens Abroad registered with Parliament on December 10, 2002 (mentioned in Chapter I of the Report) would be a real step toward bringing national legislation into conformity with international norms. The draft law governs the specifics of operation of recruitment agencies hiring seamen and crew, such as the rule under which a seaman placed with a foreign shipowner does not have to pay any charges to the recruitment agency.

Insofar as it concerns the protection of the labor and social rights of seamen, the draft law, as the Commissioner holds, corresponds to the requirements of the Ukrainian Constitution and international standards, while the ratification of ILO Convention No.179 will enable Ukraine to join the international community and effectively protect the rights of Ukrainian seamen in this country as well as abroad.

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