2.4 Genuine Link
As mentioned earlier, registration is the procedural method for conferment of
nationality on a ship, which is why the two terms are often treated as synonymous.
Indeed, sometimes the substantive notion of nationality is overlooked or understated
in favour of registration. This may be attributable to Article 91(1) of UNCLOS
where in one breath it is provided that “[E]very State shall fix the conditions for the
grant of it nationality to ships, for the registration of ships in its territory . . .” This, of
course, implies that the grant of nationality and entitlement of registration are subject
to the same conditions. From this arguably innocuous provision flows the statement
“[T]here must exist a genuine link between the State and the ship” without any
explanation of what the expression “genuine link” is intended to mean. However, an
explanation may be gleaned from the words “[E]very State shall effectively exercise
its jurisdiction and control in administrative, technical and social matters over ships
flying its flag” in Article 94(1).
Some have championed the view that UNCCROS provides the answer,
45 but
others consider the notion of genuine link to have remained in a state of ambiguity
46
despite references in Article 1 to the purpose of ensuring and strengthening the
genuine link between state and ship, and identification and accountability of shipowners and operators. Notably, in this provision, a fourth element, that of “economic” matters, was added to the three mentioned in Article 94(1) of UNCLOS. A
debate continues to rage in some quarters over whether the link in question is
between the ship and the flag state or between the owner’s nationality and that of
the ship. Clearly and unequivocally, UNCLOS Article 91(1) refers to the former.
The doctrine of genuine link as it obtains in the public international law of
nationality of individuals derives from the well-known Nottebohm Case.
47 The
essence of it in maritime law has admittedly been borrowed from that case but
uncertainty remains. Some scholars see it as being used by developed maritime states
to outlaw the practice of open registries carried out by aspiring flag states who are,
for the most part, developing countries.
48 Judge Jennings, former President of the
International Court of Justice has remarked:
The assumption that the “genuine link” formula, invented for dealing with people, is capable
of immediate application to ships and aircraft, smacks of a disappointing naivete... [and that]
a provision that might seem to encourage governments to make subjective decisions whether
or not to recognize the nationality of this aircraft or that vessel is clearly open for abuse and
for that reason to grave criticism.
49
45 UNCTAD press release, UNCTAD Information Unit, UN Doc. UNCTAD/INF/1770,
7 February 1986.
46 McConnell (1987), p. 7.
47 Liechtenstein v. Guatemala, 4 I.C.J. Rep, 1955.
48 Mukherjee (1993).
49 Brownlie (1998), p. 429 8.
590
R. Mukherjee
As mentioned earlier, registration is the procedural method for conferment of
nationality on a ship, which is why the two terms are often treated as synonymous.
Indeed, sometimes the substantive notion of nationality is overlooked or understated
in favour of registration. This may be attributable to Article 91(1) of UNCLOS
where in one breath it is provided that “[E]very State shall fix the conditions for the
grant of it nationality to ships, for the registration of ships in its territory . . .” This, of
course, implies that the grant of nationality and entitlement of registration are subject
to the same conditions. From this arguably innocuous provision flows the statement
“[T]here must exist a genuine link between the State and the ship” without any
explanation of what the expression “genuine link” is intended to mean. However, an
explanation may be gleaned from the words “[E]very State shall effectively exercise
its jurisdiction and control in administrative, technical and social matters over ships
flying its flag” in Article 94(1).
Some have championed the view that UNCCROS provides the answer,
45 but
others consider the notion of genuine link to have remained in a state of ambiguity
46
despite references in Article 1 to the purpose of ensuring and strengthening the
genuine link between state and ship, and identification and accountability of shipowners and operators. Notably, in this provision, a fourth element, that of “economic” matters, was added to the three mentioned in Article 94(1) of UNCLOS. A
debate continues to rage in some quarters over whether the link in question is
between the ship and the flag state or between the owner’s nationality and that of
the ship. Clearly and unequivocally, UNCLOS Article 91(1) refers to the former.
The doctrine of genuine link as it obtains in the public international law of
nationality of individuals derives from the well-known Nottebohm Case.
47 The
essence of it in maritime law has admittedly been borrowed from that case but
uncertainty remains. Some scholars see it as being used by developed maritime states
to outlaw the practice of open registries carried out by aspiring flag states who are,
for the most part, developing countries.
48 Judge Jennings, former President of the
International Court of Justice has remarked:
The assumption that the “genuine link” formula, invented for dealing with people, is capable
of immediate application to ships and aircraft, smacks of a disappointing naivete... [and that]
a provision that might seem to encourage governments to make subjective decisions whether
or not to recognize the nationality of this aircraft or that vessel is clearly open for abuse and
for that reason to grave criticism.
49
45 UNCTAD press release, UNCTAD Information Unit, UN Doc. UNCTAD/INF/1770,
7 February 1986.
46 McConnell (1987), p. 7.
47 Liechtenstein v. Guatemala, 4 I.C.J. Rep, 1955.
48 Mukherjee (1993).
49 Brownlie (1998), p. 429 8.
590
R. Mukherjee