Flag State jurisdiction is the prototype maritime jurisdiction. The flag, as the most potent symbol of State power, demonstrates urbi et orbi the existence of a direct link to the State concerned and, for generations, reflected the power of that State to the world. It is the strength of symbolism that creates the importance attached to the jurisdictional basis employed, that of nationality, and the genuine link between the two. The power connection, however, does not work both ways: as the ship remains a private actor, acts and omissions attached to its presence and operation in the marine environment are not automatically attributable to the State and thus do not necessarily trigger the mechanism of State responsibility; rather the State maintains a general droit de regard on what remains essentially a private enterprise. I will address each problem in turn.
In pursuit of an illusive link
Nationality remains the typical jurisdictional basis, linking the individual and the State, even beyond its borders. It confers upon the person rights and obligations towards the State, ranging from a prerequisite for the full enjoyment of core human rights to the privilege of diplomatic protection. In the words of the International Court of Justice in the Nottebohm case, nationality is ‘a legal bond having in its basis a social fact of attachment, a genuine connection of existence, nterests and sentiments, together with the existence of reciprocal rights and duties’. Yet, in spite of the grandiloquent pronouncements, the Court has consistently affirmed jurisdiction, especially regarding corporations, on the basis of formal links, such as the place of incorporation, to the detriment of real links to their shareholders, although the market has already set aside such case law in favour of a more realistic effective control criterion.
TheUNCLOSremained attached to this interesting fiction. Following the example of Article 5 of the 1958 Geneva Convention on the High Seas, Article 91 paragraph 1 UNCLOS reiterates: ‘[t]here must be a genuine link between the State and the ship.’ In fact, the qualitative attribute is reduced to a strictly formalistic procedure of registration: no further substantive link is ever required in an operation that is frequently carried out online while the ship in question is somewhere in the high seas with no connection whatsoever to the registry apart from the will of its beneficiary owner. The admittedly tepid attempts to make the connection real, taking into account participation in ownership or even in the manning of the ship, came to naught, as exemplified in the failed 1986 UN Convention on Conditions for Registration of Ships.
Interestingly enough, and in spite of the effective reversal of the ICJ case law in recent times, the InternationalTribunal on the Law of the Sea (ITLOS) chose to maintain the fiction rather than venture into uncharted waters. The Tribunal has consistently reiterated the need for a (nominal) genuine link in the 1999 Saiga (No 2) case, to the 2001 Grand Prince case, to the 2013 Louisa case, in spite of equally consistent efforts by some of its members to remind all concerned of the need to invest the ‘empty shell’, the ‘artificial creation’ with substance. Indeed, it went one step further arguing that the need for a genuine link constitutes a guarantee for the effective implementation of the duties of the flag State, the ubiquitous example of substandard shipping notwithstanding. Suffice it to state that the Tribunal is not alone in this reading: Within the context of the European Union, the European Court of Justice was equally happy to detect a ‘real financial link’ with the flag State in the act of registration and thus consider it in conformity with both the UNCLOS and the 1986 UN Registration Convention.
The distinction between the substantive and formal nationality seems to be relevant only in judicial and quasi-judicial formations pertaining to global and peripheral international systems of human rights protection.
Due diligence and the challenge of supervision powers
If registration were sufficient to establish a genuine link with the flag State and thus accord to the ship the protection of the State, one would be justified to expect that said State would also flex its jurisdictional muscles and secure the enforcement of all kinds of obligations accruing upon the ship, including environmental ones.
Indeed, the core of this obligation may be detected in Article 94 UNCLOS, according to which ‘[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’ and ‘is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance’, including ‘the applicable international regulations concerning . . ., the prevention, reduction and control of marine pollution . . .’. Such regulations include provisions pertaining to maritime labour or technical specifications required with a view to secure the seaworthiness of vessels at sea, thus ensuring protection of human life and the marine environment at the same time. In its first ever advisory opinion by the full bench, ITLOS reiterated that this obligation extends to cases of illegal, unreported, and unregulated (IUU) fishing activities and expressly linked enforcement jurisdiction for such fishing activities to the duty to cooperate in the prevention of pollution to the marine environment.
Aninteresting category of rules, addressed to flag States but with a spatial parameter, are to be found in the Special Areas designated under the 1973/1978 MARPOL Convention. Thedesignation of such areas in large parts of the high seas, exclusive economic zones, or even territorial seas where particular oceanographic and ecologic conditions prevail among heavy sea traffic generates special discharge standards for oil, noxious liquid substances, sewage, garbage, and sulphur oxide emissions under the respectiveMARPOLAnnexes.
The same principle applies to the establishment of marine protected areas in the high seas. Absent the territorial jurisdiction of the State, effective enforcement of the protective measures within the area and ultimately respect for the area itself is necessarily entrusted to the flag jurisdiction of States, which thus would acquiesce to the restriction of their freedom of navigation in the high seas for the benefit of the international community as a whole.
One could argue that the existence of Article 94 UNCLOS would have sufficed to set out the full array of duties and obligations accruing upon the flag State under not only the Law of the Sea but also all other ‘applicable international regulations’ (as opposed to just national ones). Indeed, with a nod to the wide expanse of the open seas, Article 94 paragraph 6 includes an optional notification procedure, whereby ‘[a] State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation’.
Needless to say, this potentially all-encompassing piece of legal drafting remains an exercise in frustration. There is no effective way to force a flag State remiss in his duty of vigilance to take action in spite of the complementary provisions of Article 217 UNCLOS, which direct the flag State to do exactly that ‘for the prevention, reduction and control of pollution’. Indeed, the flag State may be prompted ‘at the written request’ of any State to exercise such enforcement powers and promptly inform on the outcome both the State in question and the IMO. And yet, in spite of the Convention having taken such pains to further reinforce the traditional enforcement powers of the flag State, the final results remain at best meagre. Nor does the complicated procedure of State responsibility appear adequate. It is very interesting to note that although Article 297 paragraph 1UNCLOSexplicitly subjects to the compulsory dispute settlement procedure disputes arising from an alleged breach of ‘specified international rules and standards for the protection and preservation of the marine environment, which are applicable to the coastal State, and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention’, no such dispute has yet been forthcoming. Nor is there any discernible race to resort to a request for provisional measures before the competent court or tribunal ‘to prevent serious harm to the marine environment, pending the final decision’. So far ITLOS tends to be rather comprehensive on the grounds it employed for such provisional measures, routinely quoting both the need to preserve the respective rights of the parties and avoid serious environmental harm while interpreting the notion of ‘environment harm’ in the wider possible terms to also include the conservation of the living resources of the seas.
The deficiency becomes even greater considering that the applicable rules comprise not only the broad normative rules included in Part XII of the Convention but also all international rules and standards adopted by the competent international organizations. This incorporation by reference, so as to extend the scope of standard-setting provisions and thus encompass all available environmental protection rules, transforms the UNCLOS from a usual conventional instrument to the comprehensive constitution of the oceans it was designed to be.
Effective compliance is sought through the expansion of the powers of the coastal State or the enforcement jurisdiction of the port State; and attempts by the IMO to use the carrot-and-stick approach, offering technical assistance to those (few) willing but unable to do so through a voluntary audit scheme, whereby it seeks to establish the degree of effective implementation by its member States of the conventional standards set out in IMO legal instruments.
It is interesting to note, however, that although operations at sea, be they related to maritime trade or energy-generation or the harvesting of natural resources, are almost exclusively conducted by the private sector, the primary burden of supervision and consequently responsibility and liability for environmental harm remains with the flag State. This is a concept lurking behind the archetypal tripartite-tiered system of liability in both the Civil Liability and the Fund Conventions and reflected in the general system proposed by the International Law Committee in its 2006 Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities which assigns residual liability to the State of origin when both the operator and the industry have exhausted their respective capacity to compensate for damage caused. It is an acknowledgement of the ultimate responsibility of the State to ensure that all measures are in place to prevent a polluting incident from happening and, should such an occurrence materialize, to make certain that all relevant compensation schemes are in place and properly functioning—and then to shoulder any excess liability itself. This obligation of due diligence, best defined by the ITLOS Seabed Disputes Chamber in its advisory opinion on the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area and by the ICJ in its 2011 judgment in the Pulp mills in the River Uruguay case, confirms the position of the State as the final arbiter of all such activities and, in a wider context, reinforces the State-centred concept of international law.
Why do ships change flags?
Most merchant ships flying Panama’s flag belong to foreign owners wishing to avoid the stricter marine regulations imposed by their own countries. … Its flag offers the advantages of easier registration (often online) and the ability to employ cheaper foreign labour. Furthermore the foreign owners pay no income taxes.
Can a ship have two flags?
A merchant vessel must be registered and can only be registered in one jurisdiction, but may change the register in which it is registered. … As a ship operates under the laws of its flag state, these laws are applicable if the ship is involved in an admiralty case.
This means that a ship can, for a limited period, be part of two registers, thereby sailing under two flags. Ships may as such leave the two Norwegian registries Norwegian International Ship Register (NIS) or Norwegian Ordinary Ship Register (NOR) for a limited period without having to be deleted from them.