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§1. Features of international legal regulation of work of members of crews of fishing vessels

Fishery represents one of the earliest industries and today gives means of subsistence to millions families all over the world. During trade flights fishermen are subjected the considerable dangers, connected with acts of nature, difficult tools lova, features of extraction, proceeding from areas and objects of a craft, etc.

By data the SQUANDERER, approximately 24 thousand the persons occupied in fishing branch, perish from the reasons connected with work every year.

Besides, fishery - also very various branch. It is carried out, as large rybodobyvajushchimi the companies which are carrying out highly organised commercial fishing operations in the sea, taki and the small groups which are engaged in small-scale, handicraft fishery. It is remarkable, that approximately 45 % of world extraction of fish are carried out by small or average subjects of a craft.

The World ocean always served as fixed assets of dialogue of the people, their developments trading and economic relations. Many fishing vessels plough water open spaces far from native coast, without due health services and a labour safety, other trades accessible to worker. Frequently they work on the foreign vessels coming into ports of many countries. [201]

Conditions of their work objectively demand the international regulation in bolshej degree, than many other things of a trade.

According to Fao, about 54,8 million persons in the world 38,3 million - the fishermen occupied in sea or midland fishery are involved in fishing branch, from them. From their number on the Asian region 83 % of fishermen, to Latin America and Caribbean basin - 4,5 %, Ocenia - 0,2 %, the North America - 0,9, Africa - 10 %, Europe - 1,4 % are necessary.

Sea rybodobyvajushchy the fleet has great value in the modern world, it provides with fish and other kinds of sea live resources practically each state of the world and creates necessary quantity of workplaces for millions people of various nationalities. Now the world fishing fleet on regions in percentage expression is presented in a following kind: to Asia 73 % of world fleet, to Europe of 3 %, to Latin America and Caribbean basin - 8 %, to Ocenia - 0,48 %, to the North America - 3 %, to the Near East - 1,52 %, to Africa - 11 % [202] are necessary.

Fishery is connected with risks which usually are absent at work ashore, and are caused by that the platform on which work is led, seldom remains in a quiet condition. A similar sort of operation ashore as, for example, potroshenie manually or cutting of fish, can become dangerous if the worker cannot supervise knife movement. In the high sea it becomes twice dangerous, especially under bad weather conditions. Besides, fishermen usually have no regular schedule of work and as soon as the vessel has started to lovu fishes, the rest periods become rare until the ship master will not consider ulov some the fish, lifted aboard and being in holds, sufficient. But also at a back course in port the same members of crew should clean decks and keep the watch. After returning ulov it is necessary to ship to port, and a vessel to prepare for following flight, therefore there is, as a rule, not enough time for rest and restoration of forces.

Fishermen can be in the high sea long time: not only some days, but also are a lot of months successively (especially on the vessels entering into flotillas oceanic lova).

The vessel during such period becomes not only a place of their work, but also the house. Premises on fishing vessels can answer all circle of the conditions, concerning cabins, wardrooms and premises for rest which should be modern, well equipped and comfortable, and can be the closest and not answering to sanitary norms. The important role is played by quality of food and water. In long flights means for communication with the house can get great value. Clearly, that conditions of a life of the fisherman working on rather primitive vessel, differ from what are provided on large fishing vessels, or even from conditions of the fishermen working at the small fishery enterprises, using deck vessels.

It is necessary to notice, that conditions of a life and work of the fisherman differ also from similar conditions of the seaman of a merchant marine fleet. Fishermen not only carry out other industrial operations, but also physical influence of the sea on a fishing vessel usually is more and, of course, risks, so far as they are connected with work directly with sea organisms, are more considerable.

Risks in this trade are connected with the nature of sea elements, with features lova and production processings, and also with constants and frequently wearisome searches ulova which never happens guaranteed.

Certainly, on fishery, both industrial, and small, considerable impact globalisation process now makes. The fish caught in one place and other sea live resources, frequently are processed and go to restaurants and to consumers in other parts of the world. As a result in some regions fishermen should ulova leave in searches all further from coast. In the light of these problems on the foreground for fishermen, the ship-owners, accompanying branches and consumers there is a problem to develop for sector of fishery rules of law which will provide protection of fishermen and will help to make this necessary trade attractive and stable.

According to item 6.17. The code of conducting responsible fishery of Fao it is necessary to provide with the states 1995, that fishing adaptations and the equipment, and also any fishing activity allowed to create safe, healthy and fair working conditions and lives and answered the international standards accepted by the corresponding international organisations.

From year to year the tonnage of vessels of fishery fleet increases. Simultaneously with growth of the world tonnage also number of fishermen usually increases. In what conditions fishermen of the world work, what legal and social norms define these conditions as the various states provide protection of laws of master and servant of the given categories of workers - these and many other things questions constantly are in the centre of attention the SQUANDERER. The more intensively extraction of sea live resources, the more sharply necessity for development of fleet and its replenishment by shots, that becomes more considerable an international legal labour safety of fishermen.

So far as the international regulation of work of fishermen really exists within the limits of activity the SQUANDERER, and Russia accepts in it active participation, scientific research of current and future problems the SQUANDERER in this area represents doubtless interest. On the basis of studying of decisions of this Organization, the foreign legislation and national practice of regulation of work of fishermen the position of principle of Russia at sea sessions of the International conference of work (MKT) and in other bodies the SQUANDERER is formed.

Value of research of international legal regulation of work of fishermen is defined also by that the given problematics as a whole is not shined in the Russian and foreign legal literature.

It is necessary to notice, that legal systems of the separate sea states concerning the legislation regulating work of fishermen, constantly are under mutual influence. It creates preconditions of unification of many legal conditions of navigation, extraction of sea live resources. In 21 century in particular there was characteristic an aspiration of the states to marine law association on the international basis in two ways: first, by working out at the international conferences, the congresses of representatives transport, trading and rybodobyvajushchih the enterprises, insurance companies and scientific institutions so-called «informal rules of law» which application is left to the discretion of the governments or social partners; secondly, by acceptance by diplomatic conferences of the international conventions on those or other questions of a marine law. However in the end of 19 - the beginning of 20 centuries of the government of the developed sea powers did not consider labour relations on the sea in the international plan out of communication with the general problems of legal regulation of work in the industry. Only with creation the SQUANDERER the idea of international legal regulation of work of fishermen has received the realisation.

At the same time, it is remarkable, that some legal questions of sea service quite often joined in bilateral commercial treaties. For example, under the Treatise about friendship and commerce between Russia and England from December, 2nd, 1734 it was forbidden to decline sailors against their will to transition to service to vessels of other contracting party and if the sailor has autocratically left the vessel it came under to return. The convention concluded between Russia and France on November, 8th, 1891, defined an order of payment of the salary to Russian and the French seamen serving on vessels of other nationality. Similar interstate dogovory as it is represented, allow to do a conclusion that the international regulation of sea service has appeared long before occurrence of idea of international legal regulation of work in the industry and other fields of activity of the person the same as and the [203] national marine law regulating working conditions on the sea, has appeared long before origin of the law of master and servant in national scales.

It is necessary to notice, that lately the SQUANDERER it began to be improved gradually as fixed assets of legal regulation of work of fishermen. Now 187 states of the world are members of this Organization. Thus activity the SQUANDERER develops fast enough rates. During its existence new and more progressive norms about work of fishermen have been developed and fixed. They raise interest of the given categories of workers to the Organization. The wide circulation of progressive labour conventions serves for workers of fishing branch not only moral, but also the legislative ground to demand practical improvement of conditions of service on fishing vessels [204].

Eventually the SQUANDERER has developed for fishermen corresponding conventions which, in the literature often are called «the International labour code of fishermen» that is an example so-called informal codification which is expedient for using in the practical purposes. In particular, it consists of the Convention № 112 about the minimum age of fishermen of 1959, the Convention № 113 about medical examination of fishermen of 1959, the Convention № 114 about employment contracts of fishermen of 1959, the Convention № 125 about certificates on qualification of fishermen of 1966, the Convention № 126 about premises for fishermen onboard vessels of 1966

The international labour norms containing in operating conventions the SQUANDERER, allow to harmonise the national legislation of the states, first of all. It is especially important for the organisations connected with sea activity owing to its international character. With the advent of a global labour market of fishermen the given branch has turned to originally global branch.

It has led to strengthening of the international measures of regulation. Thus the requirement about obligatory observance of technical standards and an aggravation of the international competition has led to that working conditions became the basic point of comparative advantage to the majority of ship-owners. First of all, it concerns questions of employment, vocational training, repatriation, a payment, safety, medical and consumer services, and also social security.

It is necessary to mean, that irrespective of the ratification level, the corresponding norms containing in conventions the SQUANDERER, concerning work of fishermen, are actually widely applied in world fishing fleet and serve as a starting point for conducting collective negotiations in this branch.

The Russian Federation has one of the largest sea fishery fleet in the world on which vessels the considerable quantity of fishermen works. In days of the USSR when there was a state ownership, all vessels belonged to the state, and were registered, as a rule, behind shipping companies, fishing collective farms, bases of oceanic fishery etc. Labour relations on vessels actually were under construction, as well as in all state, under the following scheme: the state - the employer, and the fisherman - the worker. Wages the state (through the state enterprises) under tariffs certain by it, depending on a post paid. Standard regulation was carried out by the general labour legislation, the Maritime Code of the USSR, other subordinate legislation normative acts. Fishermen did not identify from other categories of workers, despite special character of their work.

After disintegration of the USSR there was a new kind of the property concerning the Courts of Admiralty - a private property. As a result of it the private commercial enterprises, including in sphere of sea fishery began to appear. Thus their number grew fast enough rates that speaks cheapness of the fishing vessels which were registered on balance of the state enterprises.

The Russian Federation from the conventions accepted the SQUANDERER concerning fishermen ratified only the Convention № 113 about medical examination of fishermen of 1959 and the Convention № 126 about premises for fishermen onboard vessels of 1966 Our country ratified earlier the Convention № 112 about the minimum age for work in the sea, however in connection with Convention ratification № 138 about the minimum age of 1973, Russia, as well as the majority of the states, denounced the Convention № 112. Nonparticipation of our country in conventions generates weight of problems, lacks and blanks though Russia, as a whole, adheres to the basic principles containing in conventions the SQUANDERER concerning work of fishermen.

According to Administrative council the SQUANDERER, existing international labour norms influence process of alignment of working conditions and a life of fishermen of the various countries insufficiently.

The operating conventions the SQUANDERER accepted concerning work of fishermen (the Convention № 112 about the minimum age of fishermen of 1959, the Convention № 113 about medical examination of fishermen of 1959, the Convention № 114 about employment contracts of fishermen of 1959, the Convention № 125 about certificates on qualification of fishermen of 1966, the Convention № 126 about premises for fishermen onboard vessels of 1966), have received rather non-uniform ratification and are even more non-uniformly observed. In particular, according to the legal adviser of Department of international labour norms MBT J. politakisa, «these tools never used broad support and, the most important thing, have not been ratified by many of the Asian or African countries on which share it is necessary more

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85 % of fishermen and 90 % of fishing vessels ».

It is remarkable, that after acceptance of last convention concerning work of fishermen (the Convention № 126 about premises for fishermen onboard vessels of 1966) there have passed many years, and in the given branch there were serious changes. In opinion the SQUANDERER, time has come to pay attention to new working conditions in [205] fishing branches and to create corresponding modern and effective international-right base.

As a result of long and laborious work on the new it is international - the legal act at 96th session MKT had been accepted on June, 14th, 2007 the Convention on work in the fishing sector, received a serial number 188 in the register of conventions the SQUANDERER.

G eneralnyj the director the SQUANDERER for that period Juan Somavija in the speech at 96th session MKT paid compliments acceptance of the new Convention on work in fishing sector, having underlined, that fastening of the international principles in the field of working conditions and protection of fishermen is the important part of obligations of the Organization on social justice maintenance in the world. He has urged member countries to give the SQUANDERER validity of the new Convention by its ratification.

The project of this international legal certificate has started to be developed since 2002, that year one of principal organs the SQUANDERER - Administrative council has decided to include in the agenda of 92nd session MKT a question on working out of universal norm (the convention added with the recommendation) about work in fishing sector. Then the given body the SQUANDERER recognised necessity to consider dangerous character of many fishing operations both in developing, and in the developed countries, and also to take into consideration that circumstance, that five conventions already operate, and each of them is ratified only by a small amount of the states, and also two recommendations. Thus it is necessary to start with a main objective the SQUANDERER which consists in granting of possibilities for women and men to receive worthy productive work in the conditions of freedom.

On 92nd sessions MKT the basic decision that volume was accepted, that developed norms should be flexible enough and wide, cover variety of questions and to be effective for the majority of fishermen of the world. These norms should be based on principles which consider various economic and social conditions of each country and distinction in their fishing fleet also.

The further discussion of the question, concerning workings out of the universal convention and the recommendation, has taken place at 93rd session MKT in June, 2005 to specially created Committee on fishing sector projects of the convention and the recommendation for discussion and addition have been presented. As a result of scale work as members of committee convention and recommendation projects have been constituted and directed for consideration to delegates MKT.

However the Convention presented on voting has not been accepted because of absence of quorum. During too time the offered Recommendation about work in fishing sector has been accepted. Following the results of voting MKT has decided to suggest to include to Administrative council in the agenda of 96th session MKT a question on work in fishing sector on the basis of the report of Committee on fishing sector at 93rd session MKT.

In turn, at 294th session in November, 2005 Administrative council has made decision to include in the agenda of 26th session MKT a question on work in fishing sector. It has been decided, that 96 ' th session of Conference should use as a basis for question discussion the Conventions developed earlier the project on work in fishing sector.

As it has been told above, at this session MKT the Convention has been successfully accepted. The delegation of the Russian Federation generated according to the Charter the SQUANDERER on a tripartite basis (representatives of the government, employers and workers), has voted for Convention acceptance.

It is necessary to notice, that the fishing sector is officially designated the SQUANDERER as one of dangerous spheres of labour activity. Much says also that in this sector considerable deficiency of worthy work is marked, both on small, and on larger vessels.

The convention № 188 will enter about force in 12 months after it is ratified by 10 states (including eight coastal states) from among members the SQUANDERER. On November, 16th, 2016 Lithuania became such tenth country. It means, that on November, 16th, 2017 the Convention № 188 becomes effective.

Together with the Convention № 188 at 96th session MKT in June, 2007 the Recommendation № 199 about work in fishing sector which urges the states to accept certain actions in development accepted in the Convention № 188 norms has been accepted also.

It is important to underline, that the recommendation the SQUANDERER is not the international treaty and does not demand ratification. Under S.A.Ivanov's fair statement, the recommendation represent auxiliary sources of international law. In spite of the fact that recommendations have no validity, nevertheless, they are not deprived practical application [206 [207]. The given certificates the SQUANDERER contain norms so-called «the soft right». As

Specifies I.I.Lukashuk, «formulations are typical for similar norms

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To "achieve,"aspire",« to take all necessary measures »etc.

The recommendation the SQUANDERER represents the wish turned to the states, the offer to enter corresponding norms into the national legislation. The recommendation contains a material for orientation in the world experience, necessary for perfection of the national legislation. Differently, the recommendation - a source of the information and model for perfection of the national legislation. It details, specifies, and sometimes and supplements convention positions, does its maintenance fuller and flexible, expands possibilities of a choice for the states at the decision of a question on loan of the international norms. Thus it is necessary to consider, that conventions and recommendations the SQUANDERER are the interconnected certificates, they can supplement each other.

Except already told, it is necessary to notice, that normotvorcheskaja activity the SQUANDERER is supplemented also with technical assistance to the countries in creation, development

And improvement of activity of sea branch. The help, in particular, appears in working out of is standard-legal base in such areas, as the labour legislation, working conditions, vocational training and qualification definition, employment for work and employment of fishermen, a labour safety and health, consumer services, social security, etc.

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A source: Bekjashev Damir Kamilevich. MODERN INTERNATIONAL LEGAL PROBLEMS of FISHERY. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow -. 2017

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