IMO-INTERNATIONAL MARITIME LAW INSTITUTE

MALTA
SHIPPING LAW PAPER

ADVANCED DIPLOMA IN INTERNATIONAL

MARITIME LAW

MARY ELEOJO ADAJI

2019/2020
This paper is entirely my own research work and all ideas, references have been
duly acknowledged (Mary E. Adaji).
INTRODUCTION

For a proper discuss to be done on ‘genuine link’ the three Convention raised for
this discuss must properly be introduced.

The 1958 Geneva Convention on the High Seas Particularly Article 5(1) provides
that States shall fix the conditions for the grant of its nationality to ships for the
registration of ships in its territory and for the right to fly its flag, ship have the
nationality of the State whose flag they are entitled to fly 1. It should be stated
here that the 1958 Convention on the High Seas is an international treaty which
codifies the rules of international law relating to the High Seas, otherwise known
as international waters, the Convention was one of four treaties created at the
United Nations Convention on the Law of the Sea at Geneva Switzerland which
was effective on 30 September 1962 signed 29 April 1958 parties to the
Convention as of 2013 are 63 States.

The 1982 United Nations Convention on the Law of the Sea defines the rights and
responsibilities of nations with respect to their use of the World’s Oceans and the
management of natural resources the Convention was concluded in 1982. In June
2016 167 Countries and European Union joined the Convention, the condition for
ratification were 60 ratifications, the location was in Montego Bay Jamaica. Article
912 of this Convention provide for ‘genuine link’ between a state and the ship
purporting to confer its nationality upon it. It should be noted that the United
Stated of America voted against the adoption of UNCLOS 1982 hence they and
Canada are not parties to the Convention.

The 1986 United Nations Convention on the Conditions for Registration of Ships
recognized the need to promote orderly expansion of the world shipping 3. The
objective of this Convention is to ensure the strengthening of the ‘genuine link’
between a State and the ships flying its flag and to exercise effectively its
jurisdiction and control over such ships with regards to identification and
accountability of ship-owners and regards to technical, administrative, economic

1
Article 5(1) of the Geneva Convention of the High Seas 1958.
2
Article 91 of United Nations Convention on the Law of the Sea 1982.
3
CMI., Handbook of Maritime Conventions, Vancouver edition, LexisNexis, 2004.
and social matters, a flag shall apply the provisions incorporated in this
Convention Article 6,7,8,9,10 are provisions which relates to a ‘genuine link’.

GENUINE LINK CONCEPT

Insisting on crewing by nationals of a flag state was a way of ensuring a close link
between the vessel and the Country of her registration. 4 It requires some
connection generally between the ownership and management control with the
flag state. The concept of ‘genuine link’ applied to the nationality of merchant
ships is enshrined in international treaty law, it should be noted that neither the
1958 High Seas Convention nor UNCLOS established a criteria for determining the
existence of the ‘genuine link’ instead it is by reference to the Jurisdiction and
Control by the flag state over the vessel.

Since every state possesses sovereignty and jurisdictional powers and since every
state must consist of a collection of individuals, it is essential that a link between
the two be legally established.5

BASIC PRINCIPLE

For emphasis, a state has the exclusive right to establish the conditions for the
granting of nationality of ships. The assertion of this principle can be traced as far
back as 1905,6 In the MUSCAT DHOWS CASE.7 The articles, however, go on to
require that “genuine link” be established between the state and the ship and the
sovereignty in defining ship registration conditions.

GENUINE LINK UNDER 1958 CONVENTION

Article 5(1) OF THE 1958 Geneva Convention states that there must be a genuine
link between a ship and the flag of the state it flies which in turns confers
nationality upon the ship,8 the high seas convention is the first convention or
treaty with provisions on the nationality of ships, looking at genuine link just on
4
David Joseph Attard et al.,the IMLI Manual on International Maritime Law, Shipping Law, Volume II, Oxford
University Press, pp. 29-30.
5
Malcolm N. Shaw., International Law, eight edition, Cambridge University Press, p. 493.
6
Ariella D. Andrea : The “genuine link” concept in responsible fisheries, legal aspects, and recent developments.
7
Muscat Dhow’s case, (France V. Great Britain) 1905, Permanent Court of Arbitration.
8
Robin R. Churchill., Meaning “genuine link” requirement in relation to the nationality of ships, 2000 p. 10.
the face of it, it appears to mean that there must be a link between a ship and the
state purporting to grant its nationality to that ship and the ‘link’ must be
genuine.9 This suggests that the link between a flag and its ships should be of a
character as to allow it to be able to exercise necessary control and jurisdiction to
maintain order on the high seas. At the 1951 session by the Special Rapporteur on
the law of the sea a member of the Rapporteur emphasized that if there was no
real connection between the flag state and the crew or the ship state it will be
difficult for the flag state to regulate the vessel properly. He also referred to the
work of the Institute of International Law, ILC, wherein in 1896 had suggested
that, in order to acquire the right to fly the flag of a state, more than half of the
ship must be owned by the national company of the state concerned. 10 There was
considerable support in the commission for the Rapporteur’s views and at the end
of 1951 session agreement was reached on a text under which a state could fix
the conditions on which it would permit a ship to be registered in its territory and
fly its flag, some of the draft Articles by the commission in 1956 were those
before the delegates at the 1958 UN Conference on the law of the sea. Article 29
(1) of the Convention read as follows:
Each state shall fix the conditions for the grant of its nationality to ships, for the
registration of ships in its territory, and for the rights to fly its flag. Ships have the
nationality of the state whose flag they are entitled to fly. Nevertheless, for the purposes
of recognition of the national character of the ship by other states, there must exist a
genuine link between the state and the ship.

Those states that were in support of the genuine link at the conference 1958
stressed the importance of the requirement for the control and maintenance of
public order on the high seas.11 The major criterion for genuine link then was for
effective jurisdiction and control by the flag state.

GENUINE LINK UNDER UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
Article 91 of the Convention provides as follows:
9
Ibid.
10
Year book of the International law commission, 1951, vol. II, p.77.
11
Op.cit.
 Every state shall fix the conditions for the grant of its nationality to ships, for the
registration of ships in its territory, and for the right to fly its flag. Ships have the
nationality of the states whose flag they are entitled to fly. There must exist a genuine
link between the state and the ship.

As noticed Article 91 of the UN Convention on the Law of the Sea is identical to

the provision of Article 5(1) of the 1958 Geneva Convention except for the
omission of “the state must effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag” this omitted
phrase was now to be found in Article 94(1) of UNCLOS which contains an
extensive list of the duties of flag state which spell out the general obligations.
Article 91 of UNCLOS provides for the Nationality of a ship. The 1982 Convention
does not state in clear terms what is meant by ‘genuine link’ nor does it specify
what consequences will follow in absence of the its breach. 12 Notwithstanding the
foregoing Article 94 mentioned the obligations of a flag state this include inter alia
summarized as;

a. Maintaining a register of its ships and apply generally accepted

international standards in respect of the construction, equipment,
seaworthiness and manning of ships, labour conditions and the training and
qualifications of crew.

This Article gives further indication of the link between the flag state and the ship
flying its flag and the inability of the flag state to exercise its jurisdiction and
control with respect to a ship flying its flag may have implication and some of
these implication falls under the wrongful act of a state. As to whether a genuine
link exists between the flag state and that ship.13 The general view is that the
genuine link concept has been strengthened by the 1982 Convention.

GENUINE LINK UNDER THE 1986 UNITED NATIONS CONVENTION ON THE

CONDITIONS FOR THE REGISTRATION OF SHIPS.

12
Robin R. Churchill., Meaning “genuine link” requirement in relation to the nationality of ships, 2000 p. 42.
13
M. H. Nord., United Nations Convention on the law of the sea 1982: A commentary, vol. III (1995), pp. 255 and
257.
The provisions of Article 8 to 10 provides for the relationship between the flag
state and the ship flying its flag. The preamble of the 1986 Convention says it all
and establishes genuine link as follows;
Believing that to this end a flag state should have a competent and adequate maritime
authority.

Believing also that in order to exercise its control and function effectively a flag state should
ensure that those who are responsible for the management and operation of a ship on its
register are readily identifiable and accountable.

Reaffirming, without prejudice to this Convention that each state shall fix the conditions for the
grant of its nationality to ships for the registration of ships in its territory and for the right to fly
its flag………..14

DECIDED CASES

NOTTENBOHM CASE15 It was on whether Liechtenstein could exercise diplomatic

protection on behalf of one of its nationals, Mr Nottenbohm possessed German
Nationality, but from 1905 had spent most of his life in Guatemala which he had
made the headquarters of his business activities he obtained Liechtenstein
nationality through naturalization in 1939. The Court noted that while under
international law it was up to each state to lay down rules governing the grant of
its nationality, a state could not claim that the rules it has laid down are entitled
to recognition by another state unless it has acted in conformity with this general
aim of making the legal bond of nationality accord with the individual’s genuine
connection with the state which assumes the defence of its citizens by means of
protection as against other states.16
The Court also noted:

“Nationality is a legal bond having its basis as a social fact of attachment, a genuine
connection of existence, interest, and sentiments, together with the existence of
reciprocal rights and duties….”

14
CMI, Handbook of the maritime Conventions, Vancouver edition, LexisNexis 2004, p. 8-2.
15
[1955] ICJ Rep. 4.
16
Robin R. Churchill., Meaning “genuine link” requirement in relation to the nationality of ships, 2000 p.23.
The Court found on the facts that there was insufficient connection between
Nottenbohm and Liechtenstein for the latter to be able to exercise diplomatic
protection on Nottenbohm’s behalf.

IMCO CASE17

The ICJ was asked for an advisory opinion on the question whether the maritime
safety committee has been constituted in accordance with Article 28 of the
Convention of the Intergovernmental Maritime consultative organization, The
Article provides that the committee shall “consist of fourteen members……. Of
which not less than eight shall be the largest ship-organizations” Liberia and
Panama were not selected even though they ranked at the third and eight largest
shipping tonnage registry under their flags. Court held that the committee had
not been validly constituted in accordance with Article 28. The dissenting Judge,
Moreno Quintana was the only one that briefly in relation to “largest ship-owning
nations” described the phrase genuine link as follows:
The registration of shipping by an administrative authority is one thing, the ownership
of a merchant fleet is another, the latter reflects an international economic reality which
can be satisfactorily established only by the existence of a genuine link between the
owner of a ship and the flag it flies. This doctrine is expressed by Article 5 of the
Convention on the High Seas…………

FLAG STATE RESPONSIBILITY

The duties of a flag state are laid down in Article 94 of UNCLOS 1982.

1. Flag states have the duty to enforce regulation over vessels registered
under its flag.
2. Duty to inspect the vessel.
3. Issuance of certification
4. Issuance of safety and pollution prevention documents.
5. The master, officers and crew are required to observe the applicable
international regulations concerning the safety of life at sea.

17
Advisory Opinion on the constitution of the maritime safety committee of the inter-government, maritime
consultative organization [1960] ICJ Rep. 150.
Hence a flag state must act in a manner consistent with international law 18 it
should be noted that when a state act contrary to Article 94 of UNCLOS then its
act shall become wrongful as contained in the Draft Articles of the International
Law Commission 2001 Volume II (part two) on internationally wrongful acts.
Where there are instances where the conditions for registration of ships are not
also being followed by a flag state then it falls under the wrongful act of a state
because genuine link will be difficult to establish. Article 2 states the elements of
an internationally wrongful act especially when an act of a state relating to a
conduct consist of an action or omission when;

a. Attributed to the sate under international law.

b. Constitute a breach of an international obligation of the state.
c. Conduct of organs of a state, conduct of persons or entities exercising
elements of governmental authority, excess of authority or contravention
of instructions.

ARE STATE RELATIONSHIP FUNCTIONAL?

The functionality of flag states and port states depends majorly on the kind of
registration the flag state engage in, whether it is closed or open registration, flag
states with closed registration tend to comply more with the genuine link concept
as upheld in the relevant provisions of the Geneva Convention of 1958, the
UNCLOS 1982 and the 1986 Convention more than the open registry as the
conditions of registration for the grant of nationality is more strict in states with
closed registry, examples of open registry are PANAMA AND LIBERIA ship owners
register in open registry to avoid stricter marine regulations imposed by their own
countries example of closed registry is Norway, I can safely conclude that the
relationship is not so functional yet, as genuine link is yet to be universally
harmonized and there is no consensus among academic writers19 on genuine link.

CONCLUSION
18
Nivedita M. Hosanee., A critical analysis of flag state duties as laid down under Article 94 of the 1982 UN
convention on the Law of the Sea, 2009. P.111.
19
Op.cit.
Recent development on genuine link in the UNCTAD’s committee on shipping
unanimously adopted a resolution in which it considered the question of genuine
link between vessel and flag, 20 of registry and a call for harmonization in 1978
there was a unanimous resolution in which elements in determining whether a
genuine link existed, such as contribution of the flag states ships to its economy,
employment of flag state nationals in 1993 an expert group under the FAO
Council met and came up with a draft21 which includes element of initial flagging
process, responsibility of flag states in respect to fishing vessels, registration of
fishing vessels and a flag state should not accord a fishing vessel the above rights
unless it is satisfied in accordance with its own national legislation that their exist
a genuine link between the vessel and the party concerned.22

Article 5 of the 1958 Convention and Article 91 of the 1982 UNCLOS both provide
that there must exist a ‘genuine link’ between the state and the ship to which it
has granted its nationality.

Though a state shall be responsible for the wrongful act of the ships flying its flag,
the flag state also continues to have responsibilities with respect to those fishing
activities, including responsibility to ensure that the vessel does not conduct
unauthorized fishing in waters under the jurisdiction of another state. 23

Finally, it should be noted that for a functional relationship the port state is used,
to checkmate the flag state.24 The International Maritime Organization using the
ISM code and the IMO voluntary Audit Scheme to pressure flag State to fulfill and
comply with their obligations are ways of functional relationship and bilateral
agreement amongst states will enable adequate functional relationship.

20
Resolution 22 (IV), para. 3, as quoted in G. Marston, “The UN Convention on Registration of Ships” (1986) 20
Journal of World Trade Law 575.
21
Draft Agreement on the Flagging of vessels fishing on the high seas to promote compliance with internationally
agreed conservation and measures, Art. IV(I). FAO Document, COFI/93/10, Annex 2.
22
Ibid.
23
www.fao.org.
24
Nivedita M. Hosanee., A critical analysis of flag state duties as laid down under Article 94 of the 1982 UN
convention on the Law of the Sea, 2009. P. 54.
 BIBLOGRAPHY

BOOKS

CHORLEY & GILES., Shipping Law, 8th edn., Pitman Publishing London, 1987.

BRYAN A.G., Black’s Law Dictionary, 8th edn., USA: Thompson West

Publishing Co. 2004.

MALCOLM N. SHAW., International law, 8th edition, Cambridge University Press

1977.

DAVID J. ATTARD et al., The IMLI Manual on International Maritime Law, Shipping Law,
Volume II, Oxford University Press, 2016.

CMI., Handbook of Maritime Conventions, Vancouver edition, LexisNexis

p. 8-2, 2004.

INTERNATIONAL CONVENTIONS

The Geneva Convention on the High Seas 1958.

The United Nations Convention on the Laws of the Sea 1982.

The United Nations Convention on the Conditions for Registration of Ships 1986.

INTERNET SEARCH
FAO., ”genuine link” available at
www.fao.org (last visited 24/01/2020).
Researchgate., “the meaning of genuine link” available at www.researchgate.net
(last visited 24/01/2020).