(c) the use of signals, the maintenance of communications and the prevention of
collisions.
The provisions of Article 94 do not provide extensive details with respect to
enforcement of the conditions by the flag State. It is therefore buttressed by Article
217 of UNCLOS which deals with enforcement by flag States. It requires flag States
to ensure compliance by vessels for which they have granted the use of their flag by
strict adherence to international instruments passed by the IMO, ILO and similar
international organizations. Beyond calling for adherence by the ships to which the
flag has been granted, it also requires that the flag State “shall provide for the
effective enforcement of such rules, standards, laws, regulations, irrespective of
where a volition occurs”. This provision is important as it underscores the prominence of exclusive flag State control and jurisdiction over the vessels flying its flag.
In ensuring that the enforcement measures are effective, flag States are enjoined
by the Convention to ensure that ships are not permitted to sail until they have
complied with the rules as mentioned above. Article 217 goes further to give teeth to
the provisions of Article 94 by charging flag States to ensure that in compliance with
the international instruments, ships flying their flags carry on board the required
certificates and they are also enjoined to carry out periodic inspection to ensure that
the certificates are in conformity with the actual condition of the ship.
65
The power to carry out investigations where a vessel flagged by a flag State
commits a violation of the rules and standards set by the requisite international
organization is also given to the flag State. In this regard, the provisions of UNCLOS
also enjoin States to provide assistance and offer cooperation while also meeting the
request of flag States.
66 Furthermore, at the written request of any State, the flag State
is enjoined to investigate alleged acts of violation committed by vessels to which
they have granted their flag. It goes further to provide that where the flag State is
satisfied that a prima facie case has been established, the flag State shall proceed
without delay to institute the proceedings in accordance with their laws. In practice
however, this has sometimes generated some controversies especially in cases where
Masters of ships have been placed in detention or custody even before the flag State
is informed of the violation.
67 Flag States are also required to inform the requesting
State as well as the competent international organization of the action taken and its
outcome. The information is to be made available to all States.
As indicated earlier, there is usually an unwillingness or sometimes due to a lack
of capacity of the flag State to carry out thorough investigations of maritime
casualties. This has led to situations where affected or requesting States especially
in instances of grave pollution incidents quickly criminalize seafarers without due
regard to their obligations under the international convention. Sometimes flag States
are loath or slow in carrying out stringent investigations for fear that ship owners
65 UNCLOS Article 217(3).
66 UNCLOS Article 217(5).
67 Hebei Spirit December 2007; the Prestige and the Erika.
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E. K. Mbiah
collisions.
The provisions of Article 94 do not provide extensive details with respect to
enforcement of the conditions by the flag State. It is therefore buttressed by Article
217 of UNCLOS which deals with enforcement by flag States. It requires flag States
to ensure compliance by vessels for which they have granted the use of their flag by
strict adherence to international instruments passed by the IMO, ILO and similar
international organizations. Beyond calling for adherence by the ships to which the
flag has been granted, it also requires that the flag State “shall provide for the
effective enforcement of such rules, standards, laws, regulations, irrespective of
where a volition occurs”. This provision is important as it underscores the prominence of exclusive flag State control and jurisdiction over the vessels flying its flag.
In ensuring that the enforcement measures are effective, flag States are enjoined
by the Convention to ensure that ships are not permitted to sail until they have
complied with the rules as mentioned above. Article 217 goes further to give teeth to
the provisions of Article 94 by charging flag States to ensure that in compliance with
the international instruments, ships flying their flags carry on board the required
certificates and they are also enjoined to carry out periodic inspection to ensure that
the certificates are in conformity with the actual condition of the ship.
65
The power to carry out investigations where a vessel flagged by a flag State
commits a violation of the rules and standards set by the requisite international
organization is also given to the flag State. In this regard, the provisions of UNCLOS
also enjoin States to provide assistance and offer cooperation while also meeting the
request of flag States.
66 Furthermore, at the written request of any State, the flag State
is enjoined to investigate alleged acts of violation committed by vessels to which
they have granted their flag. It goes further to provide that where the flag State is
satisfied that a prima facie case has been established, the flag State shall proceed
without delay to institute the proceedings in accordance with their laws. In practice
however, this has sometimes generated some controversies especially in cases where
Masters of ships have been placed in detention or custody even before the flag State
is informed of the violation.
67 Flag States are also required to inform the requesting
State as well as the competent international organization of the action taken and its
outcome. The information is to be made available to all States.
As indicated earlier, there is usually an unwillingness or sometimes due to a lack
of capacity of the flag State to carry out thorough investigations of maritime
casualties. This has led to situations where affected or requesting States especially
in instances of grave pollution incidents quickly criminalize seafarers without due
regard to their obligations under the international convention. Sometimes flag States
are loath or slow in carrying out stringent investigations for fear that ship owners
65 UNCLOS Article 217(3).
66 UNCLOS Article 217(5).
67 Hebei Spirit December 2007; the Prestige and the Erika.
514
E. K. Mbiah