The connection between the State and its nationals is one of the oldest legal links. For long centuries jurisdiction applied to the person, wherever that was to be found, rather than to a defined territory – indeed, traces of this personal jurisdiction may still be found in the case, common in civil law countries, where a national commits a criminal act abroad (active personality principle). The contemporary manifestation of this possibility, long considered unthinkable in common law jurisdictions, allows for the prosecution of international crimes by the State of nationality of the perpetrator in lieu of surrendering such individual to the International Criminal Court and of major criminal offences, including sex crimes committed abroad; and even serves as the foundation for the criminalisation of active corruption urbi et orbi.
Nationality confers upon a person rights and obligations towards the State. On the domestic level such rights and obligations include, typically, the right to vote and the obligation to pay taxes and, traditionally, serve in the army. On the international level, they include the obligation to conduct oneself according to national laws and, most importantly, the right to diplomatic protection. As the International Court of Justice put it in the Nottebohm case, nationality is “a legal bond having in its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”
Indeed, such is the importance of the nationality link for a person that the right to a nationality is considered one of the core human rights, guaranteed in a series of international instruments including the Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, the 1989 Convention on the Rights of the Child and the 1997 European Convention on Nationality. The granting of nationality becomes thus an issue of major importance – but it is one that international law typically relegates to the domestic jurisdiction of States; in the words of the Permanent Court of International Justice:
“In the present state of international law, questions of nationality are, in the opinion of this Court, in principle within its reserved domain.”
This absolute discretion has been qualified in practice, without never being negated in principle. Indeed, even in the Nottebohm case, where the International Court of Justice talked about a ‘genuine and close connection’ between the individual and the State, the question was rather the comparative value of the absence of any link with the nominal State of nationality (Liechtenstein) and the existence of such a real link with the State of residence (Guatemala). The Court confirmed the unfettered granting of nationality,this time regarding corporations, in the Barcelona Traction case, where Canadian jurisdiction was affirmed on the basis of external links to nationality, in this case the place where the company was incorporated and had its registered offices, rather than the real links to its shareholders in Belgium; and returned to the issue in the same spirit in the Elettronica Sicula (ELSI) case.
The genuine link requirement resurfaced in article 91 paragraph 1 of the Law of the Sea Convention, where it is stated that “[t]here must be a genuine link between the State and the ship” . It would be difficult, however, to find any practical obligation accruing upon States as a result of this provision – and all attempts to infuse some substance on this dead letter have miserably failed. The most important among them, the 1986 UN Convention on Conditions for Registration of Ships, was a rather vague text which sought to found nationality requirements on the level of participation in ownership or the manning of the ship; it never entered into force.
As a result, it is the fact of registration itself that creates a permanent legal relationship between the ship and the State, on the basis of which the latter undertakes specific duties and obligations. Summarily set out in article 94 of the LOS Convention, they include the obligation to effectively exercise jurisdiction or control in administrative, technical and social matters, from the construction, equipment and seaworthiness of ships to the manning, labour conditions and the training of crews on board. The quest for this effective exercise of the flag State powers (all powers and not just administrative, technical and social matters) has remained elusive – indeed, although it certainly constitutes a breach of an obligation under the Law of the Sea Convention, nobody has ever attempted to bring a case before the International
Tribunal for the Law of the Sea on this matter.
Correctly identifying the defective implementation of international and national rules, mostly by States with ‘flags of convenience’, as the primary cause for ‘substandard shipping’, the UN General Assembly has established a Consultative Group of Flag State Implementation and continues to call upon States to honour their obligations under international law in its annual omnibus resolution on the law of the sea:
“Urges flag States without an effective maritime administration and appropriate legal frameworks to establish or enhance the necessary infrastructure, legislative and enforcement capabilities to ensure effective compliance with, and implementation and enforcement of, their responsibilities under international law and, until such action is undertaken, to consider declining the granting of the right to fly their flag to new vessels, suspending their registry or not opening a
registry, and calls upon flag and port States to take all measures consistent with international law necessary to prevent the operation of substandard vessels.”
Registration then remains the act whereby nationality is conveyed to the ship; and it is generally agreed that each State remains free to set its own conditions and standards for the granting of such nationality. It was so confirmed by the International Tribunal for the Law of the Sea in the Saiga case, where the Tribunal further construed the need for a genuine link as a guarantee for the effective implementation of the duties of the flag State presumably in view of the complete and total uselessness of the notification to the flag State required by article 94 paragraph 6 of the LOS Convention, the only reference to the possibility that the flag State may not carry out fully its obligations! Given that a breach of an obligation usually triggers the mechanism of State responsibility, the rather innocuous obligation to notify the flag State, without any further droit de regard onto the follow-up to the case in question, could at best be considered a non-compliance provision in nascent form.
The question of genuine link figured also in The Grand Prince case with equally meagre results. Although both Judge (and currently President) Wolfrum in his Statement and Judge Treves in his Separate Opinion tried to distance themselves from the mechanical equation of registration as evidence of genuine link, the Tribunal was generally content to accept the formal act of registration as sufficient evidence of a genuine link between the ship and the State; and derive therefrom an affirmation of jurisdiction.
In another context, equally happy to view registration as evidence of the ‘real financial link’ with the flag State is the Court of Justice of the European Communities, holding further that construction in conformity with both the Law of the Sea Convention and the 1986 UN Registration Convention.
