You are on page 1of 10

See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/279748889

ROLE AND RESPONSIBILITIES OF FLAG STATES UNDER UNCLOS III

Research · July 2015


DOI: 10.13140/RG.2.1.4196.4643

CITATIONS READS
0 7,909

1 author:

Chinwe lyndah Ozobu


Southampton Solent University
3 PUBLICATIONS   0 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Maritime business and strategy View project

International maritime law View project

All content following this page was uploaded by Chinwe lyndah Ozobu on 05 July 2015.

The user has requested enhancement of the downloaded file.


INTRODUCTION

The freedom of the high seas is one of the fundamental principles of public international law. The 1958 Geneva
Convention on the High Seas, Article 2, provides that “The high seas being open to all nations, no State may
validly purport to subject any part of them to its sovereignty”. Such freedom means the unrestricted access of
vessels belonging to all nations, including land-locked States, to all parts of the sea that are not included in the
territorial sea or internal waters of a State. (Coles and Watt 2009). However, in order that the principle of
unrestricted access to the high seas should not lead to a situation of anarchy and abuse, international law lays
down rules providing a framework for the exercise of that freedom and one of such rules is the concept of flag
states. (Coles and Watt, 2009).

The role and responsibility of flag states as provided for under UNCLOS III is important because flag states play
a major role in maintaining sanctity in maritime industry. There has always been controversies surrounding the
issue of flag states and ship registration due to the somewhat shallow provisions laid down in UNCLOS and the
existence of open registries. This Report is based on secondary research from major publications and has been
complemented with quantitative data from individual publications. Due to the vast amount of information
available on this issue, this report will be confined to a presenting a brief history of UNCLOS, examine the
concept of flag states, its roles and responsibility as provided for in UNCLOS III, the issues surrounding ship
registration, Open registries and the concept of genuine link. It will round up by illustrating how open registries
have worked to undermine the system of flag-state control and therefore exacerbate many troubles associated
with international maritime trade and give opinion as to whether a different legal instrument is needed for ship
registration.

UNCLOS III

The 1982 United Nations Convention on the Laws of the Sea (UNCLOS) is an international agreement that
resulted from the third UN Conference on the Law of Sea (UNCLOS III). This convention came into force as
ratification of an earlier United Nations convention i.e. the Geneva Convention of 1958. (UN.Org 2012). The
rights and responsibilities of the nations in their use of world’s oceans and managing marine resources, the
freedom of Navigation, the concept of flag states and its responsibilities are amongst the important features of
the convention. It enshrines the notion that all problems of the ocean space are closely interrelated and needs
to be addressed as a whole. “Possibly the most significant legal instrument of this century” is how the UN
secretary general described the treaty after its signing. (UN.Org 2012). Turning to the concept of flag states,
there are many definitions of Flag state, Art. 91 of UNCLOS defines it as “the State in whose territory a ship is
registered”. Under international law, for a ship to sail on the high sea, it must be registered to a state, conferred
with nationality of that state and fly the flag of not more than one state. A sovereign state that confers a ship
with nationality and authorizes it to fly its flag is what is referred to as a flag state.

Ascribing nationality to ships is one of the most important means by which public order is maintained at sea, as
well as indicating what rights a ship enjoys and what obligations it is subject to. Nationality also indicates which
state is responsible in international law for a vessel on the high sea. (Churchill and Lowe 1999, pp. 257).
Reference could be made to the statement of the court in the case; US v. JHO (2008) "The law of the flag
doctrine.... Provides that a merchant ship is part of the territory of the country whose flag she flies and that
actions aboard are subject to the laws of the flag state...”
THE ROLE AND RESPONSIBILITY OF FLAG STATE

The right of states to confer nationality to ships comes with a number of responsibilities. These duties are
provided for within UNCLOS and in several international conventions.

This report is on the flag State duties laid down under Article 94 of UNCLOS 1982. However, other articles in the
convention also confer duties on Flag states. Article 194(3) and 216 provides flag state responsibility with
respect to pollution of the marine environment.

i. Article 94(1) - General Statement of Duties

This section makes explicit the matters on which flag states should exercise jurisdiction. It provides that every
state be required to "effectively exercise its jurisdiction and control in administrative, technical and social
matters over ships flying its flag".

One could say that this paragraph attempts to strengthen the concept of genuine link provided for in article 91
(this will be discussed below) concerning the nationality of a ship, by indicating matters over which the state
should exercise jurisdiction (Hosanee 2008, pp. 22). It also complements article 92(1) of UNCLOS to the effect
that, on the high sea or exceptional cases provided for in international treaties, a ship is subject to the exclusive
jurisdiction and control of its flag state. (Hosanee 2008, pp. 23)

ii. Article 94(2) - Maintain Register and Assume Jurisdiction

Flag states are required to maintain a register of ships flying its flag and to assume jurisdiction under its internal
laws over each ship, its masters as well as crew in administrative, technical and social matters concerning the
ship. It is important to note that, beyond the requirement that the register should contain the names of the
ships and particulars, no further requirements were specifically mention within this provision. Article 11 of
UNCLOS, on the other hand, sets out in considerable detail, the information that should be included in a register
of ships. (Hosanee 2008, pp. 23)

iii. Article 94(3) and (4) - Construction, Equipment and Seaworthiness of ships

Here, flag states are imposed with the obligation to ensure safety with regard to the construction, equipment,
seaworthiness of ships, qualified crew and communication maintenance. Article 217(2) of UNCLOS extends the
scope of article 94(3); it requires the flag State to ensure that its vessels are prohibited from sailing until they
can proceed to sea in compliance with the requirements of international rules and standards with regard to
design, construction and equipment of vessels.

Article 94(4) provides that measures be taken by flag States must include those necessary to ensure "that each
ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and
has on board such charts, nautical publications and navigational equipment and instruments as are appropriate
for the safe navigation of the ship".

It also stresses that ship officers and crew should possess appropriate qualifications, and adhere to international
regulations to guarantee safety and prevent pollution and collisions.

Furthermore, International law empowers states to issue their flags to an individual merchant ship or fishing
vessel. As part of their responsibility to other states, each state has the obligation to confirm seaworthiness and
by such, do adequate due diligence before issuing registration and may deny or revoke registration to “problem
ships”/repeat offenders (Anastasia, 2013).
iv. Article 94(5) - Conformity With International Regulations;

Similarly, with regards to article 94(3) and (4), subsection 5 of the same article stresses that flag state are
required to conform to “generally accepted” international regulations, procedures and practices and to take
any steps which may be necessary to secure their observation.

As put by Churchill and Lowe (1999, pp. 265) the emphasis on the above phrase” internationally accepted
regulations and practices” is dictated by practical necessity. While each state remains free to apply its own legal
requirements as regards safety, there would be chaos if these requirements widely varied or where
incompatible.

This provision is vague to an extent because the regulation and procedures to be adopted are not specified. It
also does not give a guidance as to what legislation could be classified as “generally accepted”. Thus one could
go ahead to understand it to mean rules and standards established through competent international
organizations or general diplomatic conferences to bridge the reluctant of states to impose strict safety
legislations due to competition in the industry. (Zwinge 2011, pp. 302). Thus, a state might be bound to
standards it did not specifically adopt. Examples of such rules, procedures and standards include SOLAS,
MARPOL etc.

Flag states by this article, are under obligation to take any steps necessary to ensure observance of generally
accepted international regulations and procedures. Including those related to safety, marine pollution and the
maintenance of radio communication. (Hosanee 2008, pp. 34)

v. Article 94(6) – Reports to Flag States

As rightly explained by Hosanee, (2009 pp. 36),This provision makes it possible for any other State, which has
grounds to believe that the flag State has not exercised proper jurisdiction and control with respect to a ship, to
report the facts to the flag State. When the flag State receives such a report, it is to investigate the matter and,
if necessary, take remedial actions.

While this provision calls for god faith on the part of flag states, it also re-emphasizes the exclusive jurisdiction
of flag states over vessels flying its flag on the high sea.

vi. Article 94(7) – Inquiry into Marine Casualties

This provision imposes on states the obligation to carry out inquires before qualified people/person into every
maritime accidents on the high sea.

This applies to incidents that cause loss of life or serious injury to nationals of another State, or serious damage
to ships or installations of another State or to the marine environment. The flag State and the other State
concerned are to cooperate in the conduct of any such inquiry. (Hosanee 2008, pp. 35).

As pointed out by Hosanee (2008, pp. 36), A few flag States consistently investigate casualties involving ships
registered under their flag in a professional and objective way. Many flag States however, appear either unable
or unwilling to carry out such an investigation. Some may not have the technical infrastructure and competence
to perform the detailed investigation required. Others may be unwilling to dig into the operational practices of
a ship owner who has a significant number of ships registered under the flag in question. Whatever the
reason(s), the result is the same: no, or inadequate investigation is performed.

The IMO in its bid to encourage cooperation and recognition of mutual interests of States in marine casualty
and marine incident investigation, in 2008 adopted a new Code of International Standards and Recommended
Practices for Safety Investigation into a Marine Casualty or marine Incident, (hereafter the Casualty Investigation
Code). The objective of the code is stated as being, “to facilitate objective marine safety investigations for the
benefit of flag States, coastal States, the IMO and the shipping industry in general”. (Hosanee 2008, pp. 36).

SHIP REGISTRATION AND OPEN REGISTRIES/FLAGS OF CONVENIENCE

In adherence to the provisions of UNCLOS III, all shipping countries now adopt a system of registration because
not only is it a precondition for nationality, it is also considered the essential objective test of a state’s
jurisdiction over a vessel. When a ship of any registration is within the territorial sea (12 nautical miles from the
baseline) of any country, it can be governed by the law of that state subject to certain recognized limitations
imposed by international law such as the right of innocent passage without interruption. When the vessel is
outside the territorial sea and is on the high sea, the laws of the flag state and the general public international
law are the only laws that apply to it. (Grime 1991).

Furthermore, Article 91 (2) of UNCLOS requires that flag states not only register ships but to issue registered
vessels with documentation to prove registration and nationality

The process of registration results but is not limited to:

• The allocation of a vessel to a specific State and its subjection to a single jurisdiction for the purposes, for
example, of safety regulation, security aspects, crewing and discipline on board;

• The conferment of the right to fly the national flag;

• The right to diplomatic protection and consular assistance by the flag State; the right to naval protection by
the flag State.

Accordingly, an unregistered ship and ships that sail under more than one flag, using one or the other according
to convenience, are regarded as stateless ships. (Bennett 2012, pp. 439)

As stated by Article 92 of UNCLOS “A ship which sails under the flags of two or more States, using them according
to convenience, may not claim any of the nationalities in question with respect to any other State, and may be
assimilated to a ship without nationality “.

Thus, In the interest of order on the open sea, a stateless vessel not sailing under the maritime flag of any
particular State enjoys no protection whatever, for the freedom of navigation on the open sea is a freedom for
such vessels only as sail under the flag of a State. (Coles and Watt, 2009).

Turning to open registries/flag of convenience (FOC), “Flag of Convenience” is the term used to describe states
that set their standards/requirements for registration to a minimum to attract vessels especially commercial
ship owners from any part of the world rather than just nationals of the state. Such attractive offers include but
is not limited to,

• Easy access to registry

• Transfer from registry is not restricted

• Low taxes

• Manning of ships by non-nationals of the flag state is permitted


• Little or no Government/international regulations are imposed nor does the state in question even wish to
control the companies themselves. (Kasoulides 1989).

However, one cannot legally oppose their existence or their right to set the rules for ship registration as it is
because Article 91 of UNCLOS gives every sovereign state the right to decide whom to accord the right to fly its
flag and to prescribe the rules governing such grants. This was illustrated in the case of the “Muscat Dhows”
between Great Britain and France, which is seen a primary and complacent locus classicus. The court in giving
judgment that a state is free to register any vessel regardless of its nationality set forth a principle that until
today is used as a judicial precedent by courts.

As international shipping expanded and the shipping industry became one of the most competitive in the world
(Pamdorides 1999, pp. 9), policies adopted by flag states on any issue which would affect the running cost of a
vessel (e.g. crew and fiscal matters) also affected competitive strength of commercial vessels. (Pamdorides
1999, pp. 9). At this point, having a flag state with favorable and lax requirements became an advantage and
this consequently brought about the spectacular rise of open registries such as Panama, Liberia, Malta, Marshall
Islands, etc. As can be expected, today, more than half of the world’s tonnage sail under flag of convenience.

THE CONCEPT OF GENUINE LINK TO THE RESCUE?

Article 91(1) of UNCLOS goes ahead to require that a genuine link be established between the state and the ship
apparently trying to control the liberty and freedom enjoyed by states in defining ship registration conditions.
However, the convention fails to define what exactly constitutes a genuine link and The Nottebohm case (1955)
Due to the specific subject matter of the dispute, the definition of “genuine connection” given by the court does
not add much to the debate on the meaning of the concept with regard to vessels’ nationality either (D’Andrea
2006, PP. 2).

The 1986 convention on conditions for registration of ships (UNCCORS) made an effort to clarify the above by
introducing the concept of economic link. Though its content are expressed in mandatory terms, the article still
leaves so much of its implementation to the flag states and viewed in this light, the provision can be seen as a
mere statement of principle. (Coles and Watt, 2009).

More so, it is uncertain what consequences follow when there is no genuine link existing between a vessel and
flag state and this could be seen as another reason why the concept has not been widely observed. While some
states do require that a fixed proportion of crew and ship owners must be a national of the state in question,
other states require very little or no link Atal.(Churchill and Lowe 1999, pp. 259).

EFFECT OF OPEN REGISTRIES ON THE IMPLEMENTATION OF FLAG STATE RESPONSIBILITIES

The role and objectives of flag states as discussed above show that their primary focus is based on bringing some
form of coordination to the maritime industry, ensure safety as much as possible and to relate closely with
vessels flying its flag; to ensure corporation with international regulations and standards and set penalties for
violation severe enough to discourage infringements. Unfortunately, the master and other key shipboard
personnel in an FOC system are not nationals and they have no need or incentive to visit the flag State and
therefore can avoid legal action.
Even though Open Registries are responsible for a large amount of world fleet, they have no desire and lack the
power and administrative machinery to impose regulations that temper economic concerns with social
objectives. (Kasoulides 1989).

In addition, open registries are accused of being lax in preserving high standards in terms of safety and enforcing
international regulations. As stated by Coles and Watt (2009), it is a fact that the most famous and widely
publicized maritime disasters have involved vessels registered under flag of convenience, to mention a couple -
the Torrey canyon of 1967 and the Amoco Cadiz of 1978. Open registries are not interested in exercising
responsibilities and effective control over vessels, crew training nor maintenance by regular surveys and repairs.
In just one year, the vessels registered in Malta had 207 detained ships and the reasons cited included - safety
in general and marine pollution and operational deficiencies. (iww.org 2014).

This can clearly cause loss of revenue to genuine ship operators and unless properly controlled, the flags that
provide opportunity for low standards can be a risk to other vessels.

ATTEMPTS TO SOLVE THE PROBLEM OF OPEN REGISTRIES

i. United Nation conference on trade and developments (UNCTAD)

In the late 1970, UNCTAD began dealing with the problems of FOC. In its study, it reached a resolution that the
expansion of Open registry fleets affected the development and competitiveness of fleets of other countries
including developing countries. (Kasoulides 1989). UNCTAD through a diplomatic conference adopted the 1986
UNCCORS, which aims amongst other things; to strengthen the link between a ship and its flag state, ensure
states effectively exercise jurisdiction and control over their ships not only to administrative, economic social
and technical matters but also with regards to identification and being accountable for their vessels and to adopt
measures ensuring that the owners/operators can be readily identified. (Churchill and Lowe 1999, PP. 260). This
proposal for the phasing out of open registries led to warnings by leading ship finance experts of an exodus of
international bankers from the ship finance market. (Kasoulides 1989).

However much, UNCCORS though it reaffirmed the flag state supremacy, still left the required concept of
genuine link nebulous and controversial. (Kasoulides 1989, pp. 566). Consequently, the convention did not
receive the needed amount of ratification and therefore has not come into force and from the look of things,
one would not expect it ever would; even the major maritime countries that complained about the operations
of open registries are yet to ratify. It that might be an indication that they benefit from the system. (OECD 2014,
pp. 108).

ii. Organized Labor Campaign

This began in the 1930s in the United States due to transfer off American ships to the Panamanian and Honduran
flags. (ITF 2014). In 1948, the International transport worker’s federation (ITF) which as at date unites more than
700 trade unions from all over the world adopted resolution threatening to boycott ships transferred from the
US to the Panamanian flag. The campaign is aimed at eliminating the FOC system by achieving global acceptance
of a genuine link and to ensure the protection of seafarers serving FOC ships from exploitation.

iii. Concept of Port state Monitoring

The catastrophic consequences caused by major oil spills and the outcry of the general public resulted in an
expansion of coastal state jurisdiction, development of unilateral port state enforcement and the adoption of
international instruments by the IMO and ILO incorporating the concept of port state monitoring and inspection
of vessels. (Kasoulides 1989, PP. 556).

It is important to note that though several states began to exercise port state control over vessels calling at their
port. Such control was only a temporary remedy and could not substitute for flag state responsibilities.
(Kasoulides 1989, pp. 560). In other words, Port State control is weak because the port State can only report
sub-standard vessels and practice to a flag State that has no real control over the owner.

CONCLUSION

Overall, the picture that emerges from the above discussion is of a rather confused situation.

International law dishes out the right to set standards for registration and in the same breathe tries to curtail
this by demanding a genuine link should exist in doing so. Efforts made to define or clarify what “genuine link”
entails has not seen any success hence the continuous rise of open registries.

Rightly put,

“The landslide global capitalist onslaught of exploitation, the environment, human rights, organized labor and
common dignity has been cast aside by the greed of, but a few worthless parasites upon the seas as well. They
are grinding our world in to the dust in order to produce profit. The once proud maritime fleets of the world are
becoming an object of shame. When viewed as a whole …. The maritime industry and the health of the oceans
are being run aground upon the shallow waters of industrial greed.” (iww.org 2014).

Even though UNCTAD intended to bring some order in the industry and to curb open registries, the fact remains
that as of today, the absence of a separate international legal instrument regulating ship registration is still a big
loophole in the system. Efforts should be made to put some control over the situation and developing a separate
legal instrument to that effect would be a step in the right direction.
REFERENCES

Anastasia, T. (2013). State Responsibility and Flag State Duties. [Online] Sharesproject.nl. Available from:
http://www.sharesproject.nl/state-responsibility-and-flag-state-duties/?&session-
id=f8eeba26127482c7f72669920ac49430 [Accessed 15 Nov. 2014].

• Bennett, A. (2012). That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug
Trafficking Vessel Interdiction Ac. THE YALE JOURNAL OF INTERNATIONAL LAW, [online] 37(433), pp.
439. Available from: http://www.yjil.org/docs/pub/37-2-bennett-that-sinking-feeling.pdf [Accessed 1
Nov. 2014].

• Churchill, R. and A. Lowe, (1999). The Law of the Sea. 3rd ed. Manchester: Manchester
University Press.

• Coles, R. and E. Watt, (2009). Ship Registration: Law and Practice. 2nd ed. [Online] London:
Informa. Available from: http://www.i-law.com/ilaw/doc/view.htm?id=169432 [Accessed 20 Oct. 2014].

• D’ANDREA, A. (2006). THE GENUINE LINK CONCEPT IN RESPONSIBLE FISHERIES: LEGAL ASPECTS
AND RECENT DEVELOPMENTS. [Online] Rome: FAO. Available from:
http://www.fao.org/fileadmin/user_upload/legal/docs/lpo61.pdf [Accessed 10 Nov. 2014].

• Grime, R. (1991). Shipping Law. 2nd ed. London: Sweet and Maxwell.

• Hosanee, N. (2008). A Critical Analysis Of Flag State Duties As Laid Down Under Article 94 Of The
1982 United Nations Convention On The Law Of The Sea. [Online] Nivedita M. Hosanee. Available from:
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/hosanee
_0910_mauritious.pdf [Accessed 20 Oct. 2014].

• International Transport Workers Federation, (2014). About the FOC Campaign. [Online]
Available from: http://www.itfseafarers.org/FOC_campaign.cfm [Accessed 29 Oct. 2014].

• Iww.org, (2014). Part 20 - Greed upon the Oceans: Flag of Convenience Ships | Industrial
Workers of the World. [Online] Available from:
http://www.iww.org/unions/iu510/yardbird/yardbird20.shtml [Accessed 16 Oct. 2014].
• Kasoulides, G. (1989). The Conditions for Registration of Vessels and the Question of Open
Registries. Ocean Development and International Law, 20(6), pp. 543-576.

• Organization for Economic Co-operation and Development, (2014). International Regulatory Co-
operation and International Organizations the Cases of the OECD and the IMO. [Online] Available from:
http://books.google.co.uk/books?id=ZU4iBQAAQBAJ&pg=PT109&lpg=PT109&dq=even+the+major+mari
time+countries+that+complained+about+the+operations+of+open+registries+are+yet+to+ratify.+It+that
+might+be+an+indication+that+they+benefit+from+the+system&source=bl&ots=uFf0vVaRTV&sig=nCRO
ZbxIwKwOpxDGZk1ROUhkiLM&hl=en&sa=X&ei=Jcd5VLTeOPHV7AbWiIDgCA&ved=0CCMQ6AEwAA#v=o
nepage&q=even%20the%20major%20maritime%20countries%20that%20complained%20about%20the
%20operations%20of%20open%20registries%20are%20yet%20to%20ratify.%20It%20that%20might%20
be%20an%20indication%20that%20they%20benefit%20from%20the%20system&f=false [Accessed 18
Nov. 2014].

• Pamborides, G. (1999). International shipping law: Legislation and Enforcement. The Hague:
Kluwer Law International.

• UN.org, (2012). Overview - Convention & Related Agreements. [Online] Available from:
http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm
[Accessed 20 Oct. 2014].

• United states V JHO, [2008] 534 F. 3d US Court of Appeals 5th circuit 398

• Zwinge, T. (2011) Duties of Flag States to Implement and Enforce International Standards and
Regulations And Measures to Counter Their Failure to Do So: Journal of International Business and Law,
[online] 10(2), Available from:
http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1171&context=jibl [Accessed 1 Nov.
2014].

View publication stats