ships while they sail on the high seas; where the sail in coastal waters they may be
subject to under certain circumstances to the law of the coastal State.
56
3.4 Duties of the Flag State
Article 94 (1) provides the general duties of the flag State and matters over which it
may exercise jurisdiction. It provides that “every State shall be required to effectively exercise its jurisdiction and control in administrative, technical and social
matters over ships flying its flag”. The conditions for the grant of a State’s nationality
to ships for the purpose of registration in its territory and the right to fly its flag is
provided for in Article 91 of UNCLOS. The requirement of a genuine link between
ship and State is not explained.
57 The vexed question whether a genuine link is a
prerequisite for the effective implementation of flag State duties still lingers on.
States that grant their flags to ships are expected within the framework of
UNCLOS to maintain a register of ships containing the names and particulars of
the ship flying its flag.
58 The flag State is also mandated to take such measures with
respect to ships flying its flag that would ensure safety at sea. Safety at sea is
considered paramount to ships navigating the seas and hence more detailed provisions are set out by the convention for the flag State. The safety measures include:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews, taking into
consideration the applicable international instruments.
The applicable international instruments are the Conventions, Protocols,
Codes, and other instruments churned out by IMO such as SOLAS,
59
MARPOL,
60 the Load Lines Convention,
61 the STCW
62 ; COLREGS
63 and
those produced by the International Labour Organisation such as the Maritime
Labour Convention 2006.
64
56 See Lauritzen v. Larsen 5 U.S. 571 (1953).
57 United Nations Convention on the Conditions for the Registration of Ships provides the basis for
the use of the words “genuine link” but which never entered into force.
58 UNCLOS Article 94 (2) (a).
59 International Convention for the Safety of Life at Sea (SOLAS), 1184 UNTS 278.
60 International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL), 12 ILM
1319;1340 UNTS 184.
61 International Convention on Load Lines, 1966, 640 UNTS 133.
62 International Convention on Standards of Training, Certification and Watch-keeping of Seafarers,
1978, 1361 UNTS 2 as amended in 1995 and 2010 (Manila Amendments).
63 Convention on the International Regulations for Preventing Collisions at Sea, 1972, 1050 UNTS
16.
64 45 ILM 792 (2006).
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
513
subject to under certain circumstances to the law of the coastal State.
56
3.4 Duties of the Flag State
Article 94 (1) provides the general duties of the flag State and matters over which it
may exercise jurisdiction. It provides that “every State shall be required to effectively exercise its jurisdiction and control in administrative, technical and social
matters over ships flying its flag”. The conditions for the grant of a State’s nationality
to ships for the purpose of registration in its territory and the right to fly its flag is
provided for in Article 91 of UNCLOS. The requirement of a genuine link between
ship and State is not explained.
57 The vexed question whether a genuine link is a
prerequisite for the effective implementation of flag State duties still lingers on.
States that grant their flags to ships are expected within the framework of
UNCLOS to maintain a register of ships containing the names and particulars of
the ship flying its flag.
58 The flag State is also mandated to take such measures with
respect to ships flying its flag that would ensure safety at sea. Safety at sea is
considered paramount to ships navigating the seas and hence more detailed provisions are set out by the convention for the flag State. The safety measures include:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of crews, taking into
consideration the applicable international instruments.
The applicable international instruments are the Conventions, Protocols,
Codes, and other instruments churned out by IMO such as SOLAS,
59
MARPOL,
60 the Load Lines Convention,
61 the STCW
62 ; COLREGS
63 and
those produced by the International Labour Organisation such as the Maritime
Labour Convention 2006.
64
56 See Lauritzen v. Larsen 5 U.S. 571 (1953).
57 United Nations Convention on the Conditions for the Registration of Ships provides the basis for
the use of the words “genuine link” but which never entered into force.
58 UNCLOS Article 94 (2) (a).
59 International Convention for the Safety of Life at Sea (SOLAS), 1184 UNTS 278.
60 International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL), 12 ILM
1319;1340 UNTS 184.
61 International Convention on Load Lines, 1966, 640 UNTS 133.
62 International Convention on Standards of Training, Certification and Watch-keeping of Seafarers,
1978, 1361 UNTS 2 as amended in 1995 and 2010 (Manila Amendments).
63 Convention on the International Regulations for Preventing Collisions at Sea, 1972, 1050 UNTS
16.
64 45 ILM 792 (2006).
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
513