the times. Finally, a summary of the findings of this analytical probe are presented
together with propositions for possible law reform to achieve a better rationalized
international regime circumscribing the responsibilities of interested parties towards
the eradication of substandard shipping.
2 Nationality, Registration and Ownership of Ships:
Overview of the Law
2.1 Nationality and Registration
Although the terms “nationality” and “registration” are sometimes used interchangeably, there are distinctions between them in terms of legal concepts. These must be
addressed and examined carefully in relation to the element of ship ownership which
involves both these phenomena. Needless to say, the notion of the flag and the role of
flag state are germane to the investigation with which we are concerned.
A fundamental principle in terms of public international law is the freedom of
utilization of and unrestricted access to the high seas by any vessel of any nationality.
However, owners and operators of ships must comply with certain established rules
of international law. These rules are enforced by the individual states whose vessels
travel through non-territorial waters to ensure that the freedom of the high seas is not
exercised in a way that may lead to a situation of abuse. One such rule is that a state
whose nationality is held by a ship has jurisdiction over it on the high seas. Another
rule is that a ship sailing on the high seas must have singular nationality, in the
absence of which it would be assimilated to a stateless ship to which no rights at
international law would be accorded.
6
The notion of ship nationality is based on the premise that ships must be governed
by a legal regime when it sails on the high seas and the flag is the visible sign or
symbol of the ship’s nationality which allows it to enter and exit foreign ports.
Consequently, the law of the state whose flag the ship flies is the governing law of
the ship and all those who are on board at any given time.
7 Thus, criminal acts
committed on board are offences under the penal law of the ship’s nationality or flag
state. Similarly, births and deaths occurring on board are subject to the flag state laws
pertaining to those matters.
8 In essence, therefore, a ship that flies a flag and
possesses nationality is likened to a “floating island”. In the S.S. Lotus case, it was
held that, “...a ship on the high seas is assimilated to the territory of the State the flag
of which it flies, for just as in its own territory, that State exercises its authority upon
it, and no other State may do so.”
9 Moreover, the governing law of the flag state
6 Ready (1998), p. 1; UNCLOS 1833 UNTS 3, Article 92(2).
7 Gaskell et al. (1987), p. 19.
8 Ibid.
9 The Steamship Lotus (1927) P.C.I.J. Series A, No. I0; 2 Hudson, W.C.R. 23.
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
583
together with propositions for possible law reform to achieve a better rationalized
international regime circumscribing the responsibilities of interested parties towards
the eradication of substandard shipping.
2 Nationality, Registration and Ownership of Ships:
Overview of the Law
2.1 Nationality and Registration
Although the terms “nationality” and “registration” are sometimes used interchangeably, there are distinctions between them in terms of legal concepts. These must be
addressed and examined carefully in relation to the element of ship ownership which
involves both these phenomena. Needless to say, the notion of the flag and the role of
flag state are germane to the investigation with which we are concerned.
A fundamental principle in terms of public international law is the freedom of
utilization of and unrestricted access to the high seas by any vessel of any nationality.
However, owners and operators of ships must comply with certain established rules
of international law. These rules are enforced by the individual states whose vessels
travel through non-territorial waters to ensure that the freedom of the high seas is not
exercised in a way that may lead to a situation of abuse. One such rule is that a state
whose nationality is held by a ship has jurisdiction over it on the high seas. Another
rule is that a ship sailing on the high seas must have singular nationality, in the
absence of which it would be assimilated to a stateless ship to which no rights at
international law would be accorded.
6
The notion of ship nationality is based on the premise that ships must be governed
by a legal regime when it sails on the high seas and the flag is the visible sign or
symbol of the ship’s nationality which allows it to enter and exit foreign ports.
Consequently, the law of the state whose flag the ship flies is the governing law of
the ship and all those who are on board at any given time.
7 Thus, criminal acts
committed on board are offences under the penal law of the ship’s nationality or flag
state. Similarly, births and deaths occurring on board are subject to the flag state laws
pertaining to those matters.
8 In essence, therefore, a ship that flies a flag and
possesses nationality is likened to a “floating island”. In the S.S. Lotus case, it was
held that, “...a ship on the high seas is assimilated to the territory of the State the flag
of which it flies, for just as in its own territory, that State exercises its authority upon
it, and no other State may do so.”
9 Moreover, the governing law of the flag state
6 Ready (1998), p. 1; UNCLOS 1833 UNTS 3, Article 92(2).
7 Gaskell et al. (1987), p. 19.
8 Ibid.
9 The Steamship Lotus (1927) P.C.I.J. Series A, No. I0; 2 Hudson, W.C.R. 23.
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583