Article 91 of UNCLOS provides: ‘1. 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.’
The classic statement of the right of individual States unilaterally to fix the
conditions for the grant of nationality to merchant vessels was made by the
Permanent Court of Arbitration in 1905 in the case of the Muscat Dhows
between Great Britain and France: ‘Generally speaking it belongs to every
sovereign to decide to whom he will accord the right to fly his flag and to prescribe
the rules governing such grants.’ The case concerned the legality of the
grant of the right to fly the French flag to dhows owned by subjects of the Sultan
of Muscat, the complaint being that such grant infringed treaty obligations and
was used as a cover to enable the dhows to engage in slave-trading. Although the
court found that France’s right to confer its nationality on the dhows had in fact
been restricted by a treaty of 1892, it held that prior to that date, ‘France was
entitled to authorise vessels belonging to subjects of His Highness the Sultan of
Muscat to fly the French flag, only bound by her own legislation and administrative
rules’.
The principle enunciated in the Muscat Dhows case was upheld more recently by
the US Supreme Court in the case of Lauritzen v Larsen:
Each State under international law may determine for itself the conditions on
which it will grant its nationality to a merchant ship, thereby accepting responsibility
for it and acquiring authority over it. Nationality is evidenced to the world
by the ship’s papers and its flag. The United States has firmly and successfully
maintained that the regularity and validity of a registration can be questioned only
by the registering State.
This principle was also affirmed by the European Court of Justice (ECJ) in judgments
delivered in the Factortame litigation and by the International Tribunal for
the Law of the Sea (ITLOS) in proceedings arising out of the detention by Guinea
of the Vincentian flag M/V ‘Saiga’.
In the latter proceedings, Guinea contested the admissibility of the flag State’s
claims for compensation for violation of its sovereign rights, asserting that
St Vincent had no legal standing to bring the claims; Guinea argued that the ship
was not validly registered under the Vincentian flag at the time of her arrest and
detention since her provisional certificate of registration had expired. St Vincent
in turn argued that the expiry of the provisional certificate did not imply that
the ship had lost Vincentian nationality and she remained registered under that
flag until deleted. Noting that, notwithstanding the expiration of the certificate,
St Vincent had at all material times asserted that the Saiga was a ship entitled to
fly its flag, the court rejected Guinea’s challenge, holding that ‘the determination
of the criteria and establishment of the procedures for granting and withdrawing
nationality to ships are matters within the exclusive jurisdiction of the flag
State’. The nationality of the vessel was a question of fact to be determined on
the basis of evidence produced by the parties and in the instant case Guinea had
not discharged its burden of proving its contention that the vessel was not validly
registered.
The Factortame proceedings concerned the legality of conditions imposed by the
United Kingdom for the registration of fishing vessels owned by British companies
beneficially owned by foreign interests—in this case, chiefly Spanish—in
order to prevent the use of the British flag by such vessels in order to ‘plunder’ the
UK’s fishing quotas. The court held that ‘as Community law stands at present,
it is for the Member States to determine, in accordance with the general rules of
international law, the conditions which must be fulfilled in order for a vessel to be
registered in their registers and granted the right to fly their flag, but, in exercising
that power, the Member States must comply with the rules of Community
law’; by imposing a nationality requirement on the directors and shareholders
of vessel-owning companies, the United Kingdom was in breach of its obligations
under the EEC Treaty.
Another case in point is that of the US registered vessel Virginius, which in 1873
was seized by a Spanish warship on the high seas on suspicion of aiding insurgents
on the island of Cuba, then part of the Spanish Empire. The Spanish contention
was that, since the vessel was Cuban-owned, she must have obtained her US papers
by fraud and was not entitled to the protection of the US flag. The US response was
that the question of whether or not the ship was entitled to fly the US flag was a
matter purely for US jurisdiction. Spain restored the vessel to the control of the US
Government and paid the sum of US$80,000 by way of reparation.
The determination of the categories of vessels eligible for registration is again a
matter for the domestic law of individual States. UK legislation provides that a
‘ship’ includes every description of vessel used in navigation. According to a decision
in 1992, the phrase ‘used in navigation’ means ‘planned or ordered movement
from one place to another’. A jet ski did not fall within this definition. The UK
definition may be contrasted with the more liberal provision of Panamanian law
which defines a ship as any vessel intended for the carriage of cargo or passengers,
pontoons, dredgers, floating docks, drilling platforms, or other hulls intended
for maritime service, as well as any other structure which the Panama Maritime
Authority may recognize as a vessel. Size, age, and condition are also factors
which govern a vessel’s eligibility for registration under a particular flag. In the case
of Liberia, for example, seagoing vessels of less than 500 tons are ineligible for registration;
likewise, Liberia stipulates a maximum age for vessels on first registration
of twenty years. Some flag States require a pre-registration survey in the case of
certain vessels and may refuse registration to a vessel not classed with a classification
society approved by the State’s maritime administration.
