may withdraw their vessels from their registry where they are seen not to offer the
protection for which they registered their vessels with them in the first place. In order
to deal with the concerns of improper casualty investigation by flag States, the IMO
in 2008 adopted a new code of International Standards and Recommended Practices
for Safety Investigation into a Marine Casualty or Marine Incidents i.e. the Casualty
Investigation Code.
Even though this Casualty Code has been widely embraced there have been
various reports by member States to the IMO that the Code had not been followed
in one casualty investigation or the other. The Convention also provides that where
laws of the flag State adopted through acceptance of international rules & regulations
are breached by vessels flying its flag, the flag State shall apply severe sanctions to
discourage further violations. Unfortunately, the practice for a number of Flag of
Convenience registers have shown otherwise.
68
It is important to add that the convention also provides for States, where they have
clear grounds to believe that proper jurisdiction and control with respect to the ship
has not been exercised, to report the facts to the flag State which is then enjoined to
take necessary action to remedy the situation.
69 Article 95 grants complete immunity
to warships operating on the high seas from the jurisdiction of any state except the
flag State. Flag States still set their own standards and conditions for the registration
of ships.
A number of measures have thus been put in place to ensure that the flag State will
live up to its responsibilities. Indeed, in a bid to uphold effective enforcement of
standards, the flag State is required to ensure that its domestic law grants jurisdiction
to the courts to enforce the standards and rules with respect to the social administrative and technical matters for the purpose of providing teeth for domestic enforceability. The international community had hoped that the United Nations Convention
on Conditions for the Registration of Ships 1986 would have entered into force to
compel registries to adhere to a standard format for the registration of ships.
Unfortunately, that convention never saw the light of day.
There still remain issues of identification of the beneficial owners of ships as
name plate companies are still entered into ship registries without enquiry as to who
the beneficial owners are. It has therefore been always difficult to trace who the
beneficiary owners are in the event of violations of international law. To solve the
existing problems, the genuine link theory requiring the mind and management of
the ship should be invoked. The flag States which have served as bulwarks of
anonymity should be compelled to put in place appropriate structures for verification
of the corporate structure of the shipping companies and not only the registered
owner. It is only in a limited set of circumstances that the non-flag State may exercise
jurisdiction and enforcement powers over the ship while it is on the high seas.
70
68 Negligent Masters have either been left off the hook or been given menial sanctions.
69 UNCLOS Articles 217 (6) and (7) give detailed provisions.
70 UNCLOS Article 99 deals with the suppression of slave trade, the right of visit by warships in
such circumstances; UNCLOS Articles 110 (1) (b). The sort of slavery envisaged by UNCLOS is
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
515
protection for which they registered their vessels with them in the first place. In order
to deal with the concerns of improper casualty investigation by flag States, the IMO
in 2008 adopted a new code of International Standards and Recommended Practices
for Safety Investigation into a Marine Casualty or Marine Incidents i.e. the Casualty
Investigation Code.
Even though this Casualty Code has been widely embraced there have been
various reports by member States to the IMO that the Code had not been followed
in one casualty investigation or the other. The Convention also provides that where
laws of the flag State adopted through acceptance of international rules & regulations
are breached by vessels flying its flag, the flag State shall apply severe sanctions to
discourage further violations. Unfortunately, the practice for a number of Flag of
Convenience registers have shown otherwise.
68
It is important to add that the convention also provides for States, where they have
clear grounds to believe that proper jurisdiction and control with respect to the ship
has not been exercised, to report the facts to the flag State which is then enjoined to
take necessary action to remedy the situation.
69 Article 95 grants complete immunity
to warships operating on the high seas from the jurisdiction of any state except the
flag State. Flag States still set their own standards and conditions for the registration
of ships.
A number of measures have thus been put in place to ensure that the flag State will
live up to its responsibilities. Indeed, in a bid to uphold effective enforcement of
standards, the flag State is required to ensure that its domestic law grants jurisdiction
to the courts to enforce the standards and rules with respect to the social administrative and technical matters for the purpose of providing teeth for domestic enforceability. The international community had hoped that the United Nations Convention
on Conditions for the Registration of Ships 1986 would have entered into force to
compel registries to adhere to a standard format for the registration of ships.
Unfortunately, that convention never saw the light of day.
There still remain issues of identification of the beneficial owners of ships as
name plate companies are still entered into ship registries without enquiry as to who
the beneficial owners are. It has therefore been always difficult to trace who the
beneficiary owners are in the event of violations of international law. To solve the
existing problems, the genuine link theory requiring the mind and management of
the ship should be invoked. The flag States which have served as bulwarks of
anonymity should be compelled to put in place appropriate structures for verification
of the corporate structure of the shipping companies and not only the registered
owner. It is only in a limited set of circumstances that the non-flag State may exercise
jurisdiction and enforcement powers over the ship while it is on the high seas.
70
68 Negligent Masters have either been left off the hook or been given menial sanctions.
69 UNCLOS Articles 217 (6) and (7) give detailed provisions.
70 UNCLOS Article 99 deals with the suppression of slave trade, the right of visit by warships in
such circumstances; UNCLOS Articles 110 (1) (b). The sort of slavery envisaged by UNCLOS is
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
515