with the economics of flagging out. Consequently, some traditional maritime nations
desirous of keeping their maritime traditions have resorted to the use of “international registers”. This is usually from a traditional maritime country that offers its
flag for foreign tonnage, often located in its home state or in some offshore location
with which it is associated as a previous colony or “vassal” state. Every ship is
expected to sail under one nationality only.
In view of the fact that the flag provides the ship its nationality, enormous powers
are granted to the flag State under customary international law and these have
subsequently been codified in international conventions. Flag States are expected
to have oversight and control of the safety of the ships to which they have offered
their flag. Specific obligations relating to penal jurisdiction, the exercise of control in
respect of accidents involving the vessel and carrying out investigations into marine
casualties including the use of equipment are within he powers of the flag State.
The international rules and regulations by which flag States are expected to carry
out their responsibilities as flag States are to be found in conventions of the IMO,
ILO and UNCLOS. Even though these international instruments have provided
some essential regulatory framework for flag States which if strictly adhered to
would perforce ensure, safer shipping on clean oceans, the controls have not been
adequate. Hence the introduction of other measures such as Port State Control.
Flag States have sometimes shirked their responsibilities when ship owners have
failed to live up to their obligation of protecting seafarers’ rights in cases such as
piracy and armed robbery at sea where the seafarers have become victims. In view of
the established principle of freedom of the seas, ships remain free to traverse waters
that are not part of the internal waters or the territorial sea. Thus, in order not to create
anarchy or chaos, international law instruments have been developed for the exercise
of that freedom in a reasonable manner. One of such international law rules pertains
to the flag State’s powers of control over ships registered under its flag.
3.3 Roles, Powers and Responsibilities of the Flag State
In examining the instruments that set out the rules, powers and obligations of the flag
State, UNCLOS remains paramount. In Article 91, it defines a flag State as: “the
State in whose territory a ship is registered”. Ascribing nationality to ships is one of
the most important means by which order is maintained at sea. Indeed 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”.
55
In some situations, there would be concurrent jurisdiction between the flag State
and the coastal State. The law of flag State doctrine is in large measure applicable to
55 Definition of “law of the flag”, Duhaime’s Law Dictionary, Duhaime.org.
512
E. K. Mbiah
desirous of keeping their maritime traditions have resorted to the use of “international registers”. This is usually from a traditional maritime country that offers its
flag for foreign tonnage, often located in its home state or in some offshore location
with which it is associated as a previous colony or “vassal” state. Every ship is
expected to sail under one nationality only.
In view of the fact that the flag provides the ship its nationality, enormous powers
are granted to the flag State under customary international law and these have
subsequently been codified in international conventions. Flag States are expected
to have oversight and control of the safety of the ships to which they have offered
their flag. Specific obligations relating to penal jurisdiction, the exercise of control in
respect of accidents involving the vessel and carrying out investigations into marine
casualties including the use of equipment are within he powers of the flag State.
The international rules and regulations by which flag States are expected to carry
out their responsibilities as flag States are to be found in conventions of the IMO,
ILO and UNCLOS. Even though these international instruments have provided
some essential regulatory framework for flag States which if strictly adhered to
would perforce ensure, safer shipping on clean oceans, the controls have not been
adequate. Hence the introduction of other measures such as Port State Control.
Flag States have sometimes shirked their responsibilities when ship owners have
failed to live up to their obligation of protecting seafarers’ rights in cases such as
piracy and armed robbery at sea where the seafarers have become victims. In view of
the established principle of freedom of the seas, ships remain free to traverse waters
that are not part of the internal waters or the territorial sea. Thus, in order not to create
anarchy or chaos, international law instruments have been developed for the exercise
of that freedom in a reasonable manner. One of such international law rules pertains
to the flag State’s powers of control over ships registered under its flag.
3.3 Roles, Powers and Responsibilities of the Flag State
In examining the instruments that set out the rules, powers and obligations of the flag
State, UNCLOS remains paramount. In Article 91, it defines a flag State as: “the
State in whose territory a ship is registered”. Ascribing nationality to ships is one of
the most important means by which order is maintained at sea. Indeed 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”.
55
In some situations, there would be concurrent jurisdiction between the flag State
and the coastal State. The law of flag State doctrine is in large measure applicable to
55 Definition of “law of the flag”, Duhaime’s Law Dictionary, Duhaime.org.
512
E. K. Mbiah