ships, is a part of public international law and registration is its administrative
counterpart. Connected to the above, the flag state of a ship is the state whose
nationality is held by the ship at any given time and the notion of the flag is at once a
visible and symbolic manifestation of the ship’s nationality. It is the law of the flag
state that operates exclusively on board a ship on the high seas.
1 This is an important
observation given that shipboard life is a microcosm of life on terra firma.
Merchant shipping has been a pivotal force in international commerce since the
genesis of trade. It is said that if one can dominate the seas, one can dominate the
world’s commerce, and in essence the world. This was an overt consideration
underlying mare liberum in medieval times.
2 Today, over 80% of world trade is
conducted via the high seas.
3 Over the past decades, there has been ongoing concern
accompanied by debate and discourse among public and private interests involved in
shipping on the issue of substandard ships instigated by a blame culture. Ships are
sub-standard when they are unsafe, unseaworthy or environmentally unsound; or
there is lack of security protection from piratical or other unlawful acts at sea.
This work is primarily about the role of the flag state in relation to substandard
ships. The starting point is a discussion on the legal notion of ship nationality in the
international law of the sea covering the doctrine of genuine link, drifting into its
connection with ship registration and the types and varieties of currently prevailing
ship registries. It must be appreciated that the notion of nationality and registration of
ships are intimately associated with both ownership and ownership structures
pertaining to ships. This interrelationship is examined in contextual detail.
It is recognized that almost all regulatory maritime conventions impose duties and
responsibilities on flag states and require them to enforce the conventions against
ships and personnel connected to shipping. It is also recognized as a matter preliminary to the work as a whole that the basic legal framework relating to ships and
shipping, including the public international law of ship nationality, the regulatory
law of maritime safety, crewing of ships and vessel-source pollution, is to be found
in the relevant provisions of the United Nations Convention on the Law of the Sea,
1982 (UNCLOS)
4 which incorporates the applicable customary international law. It
is primarily the International Maritime Organization (IMO) that sets the regulatory
standards for maritime safety relating to ships and vessel-source pollution through
treaty instruments generated by it. Corresponding standards relating to seafarers
operate largely through International Labour Organisation (ILO) instruments,
mainly the Maritime Labour Convention of 2006.
5
Against the above background, the discussion moves into the arena of substandard ships, the legal responsibility for them and whether there should be a shift or
re-distribution of that responsibility given the commercial and economic reality of
1 Mukherjee and Brownrigg (2013), p. 203.
2 The doctrine of mare liberum or freedom of the seas is attributed to the treatise of that name written
in 1609 by the Dutch jurist Hugo de Groot or Grotius (Latin).
3 Stopford (2009).
4 1833 UNTS 3.
5 45 ILM 792.
582
R. Mukherjee
counterpart. Connected to the above, the flag state of a ship is the state whose
nationality is held by the ship at any given time and the notion of the flag is at once a
visible and symbolic manifestation of the ship’s nationality. It is the law of the flag
state that operates exclusively on board a ship on the high seas.
1 This is an important
observation given that shipboard life is a microcosm of life on terra firma.
Merchant shipping has been a pivotal force in international commerce since the
genesis of trade. It is said that if one can dominate the seas, one can dominate the
world’s commerce, and in essence the world. This was an overt consideration
underlying mare liberum in medieval times.
2 Today, over 80% of world trade is
conducted via the high seas.
3 Over the past decades, there has been ongoing concern
accompanied by debate and discourse among public and private interests involved in
shipping on the issue of substandard ships instigated by a blame culture. Ships are
sub-standard when they are unsafe, unseaworthy or environmentally unsound; or
there is lack of security protection from piratical or other unlawful acts at sea.
This work is primarily about the role of the flag state in relation to substandard
ships. The starting point is a discussion on the legal notion of ship nationality in the
international law of the sea covering the doctrine of genuine link, drifting into its
connection with ship registration and the types and varieties of currently prevailing
ship registries. It must be appreciated that the notion of nationality and registration of
ships are intimately associated with both ownership and ownership structures
pertaining to ships. This interrelationship is examined in contextual detail.
It is recognized that almost all regulatory maritime conventions impose duties and
responsibilities on flag states and require them to enforce the conventions against
ships and personnel connected to shipping. It is also recognized as a matter preliminary to the work as a whole that the basic legal framework relating to ships and
shipping, including the public international law of ship nationality, the regulatory
law of maritime safety, crewing of ships and vessel-source pollution, is to be found
in the relevant provisions of the United Nations Convention on the Law of the Sea,
1982 (UNCLOS)
4 which incorporates the applicable customary international law. It
is primarily the International Maritime Organization (IMO) that sets the regulatory
standards for maritime safety relating to ships and vessel-source pollution through
treaty instruments generated by it. Corresponding standards relating to seafarers
operate largely through International Labour Organisation (ILO) instruments,
mainly the Maritime Labour Convention of 2006.
5
Against the above background, the discussion moves into the arena of substandard ships, the legal responsibility for them and whether there should be a shift or
re-distribution of that responsibility given the commercial and economic reality of
1 Mukherjee and Brownrigg (2013), p. 203.
2 The doctrine of mare liberum or freedom of the seas is attributed to the treatise of that name written
in 1609 by the Dutch jurist Hugo de Groot or Grotius (Latin).
3 Stopford (2009).
4 1833 UNTS 3.
5 45 ILM 792.
582
R. Mukherjee