Ratified treaty¹

Obligations for foreign seafarers to be in possession of an Estonian administrative document in order to work on an Estonian vessel/ Action before the Constitutional Review Chamber for non-compliance with ILO Convention No. 108/ Direct resolution of a dispute on the basis of international law

The regulations in force in Estonia² provided that foreign seamen wishing to work on vessels of Estonian registry had to be issued an employment registration certificate. They could not leave the territory on an Estonian vessel without that document even though they had boarded the vessels legally in Estonia. The Tallinn Administrative Court had found that this regulation contravened the constitutional principle of the free choice of occupation, the principle of equal treatment for nationals and foreigners, as well as ILO Convention No. 108 on Seafarers’ Identity Documents; it referred the issue of the constitutionality of the regulations to the Supreme Court for adjudication.

The Constitutional Review Chamber of the Supreme Court examined the provisions of the regulations and compared them with those of ILO Convention No. 108:

 “The unequal treatment of aliens (…) is not in conformity with article 5 of Convention No.108, pursuant to which any seafarer who holds a valid seafarer’s identity document issued by the competent authority of a territory for which this Convention is in force, shall be readmitted to that territory, irrespective of whether he or she has been or has not been entered in the crew list of a ship flying Estonian flag.

Pursuant to article 6 of the Convention each member State shall permit the entry into a territory for which this Convention is in force of a seafarer holding a valid seafarer’s identity document, when entry is requested for temporary shore leave while ship is in port.

The Convention does not regulate the issues of leaving the territory of a member state. This right, especially if related to going on board, is implicit and proceeds from the purpose of the Convention, namely to simplify the formalities related to seafarer’s travel to or from ships.”

Referring to the purpose of ILO Convention No. 108, the Supreme Court of Estonia found that the provisions of that instrument should govern not only the right to enter a State Party to the Convention but also the right to leave that State. Since the Constitution provides that ratified treaties have higher authority than the law, the Court upheld the decision of the Tallinn Administrative Court and declared the offending regulations unconstitutional.