The United States Department of State has taken the view that genuine link is not
a requirement for recognizing ship nationality but is an obligation to impose
jurisdiction and control suitably.
50 In practice, genuine link is interpreted as a
mechanism that suits the interests of the flag state. The most reasonable and
practicable view is that regardless of the nationality of the owner, the genuine link
requirement is satisfied if the flag state can demonstrate that it has sufficient control
over ships flying its flag in terms of the ships’ adherence to international laws
pertaining to safety, environmental protection and seafarers’ welfare issues. Opponents of the doctrine of genuine link are unsatisfied with the principle as it remains
unclear and is ambiguous as a test of nationality. Its interpretation can be diverse and
thus in practice can be used as a mechanism to achieve uncommon goals.
3 Sub-standard Shipping
3.1 Preliminary Observations
There is hardly any doubt or debate over what is a substandard ship and that such
ships should be eradicated. As stated in the introductory section of this chapter, a
ship is said to be substandard if it is unsafe, environmentally unsound and is not
secure from unlawful acts committed against it including acts of piracy. There is a
fourth element, namely, the human element which translates into seafarer competence and impinges on shipboard working conditions and seafarer welfare. Be that as
it may, our primary concern under the caption “substandard ship” is who is or should
be shouldering the responsibility of ensuring that a ship meets all requisite standards
set by law. This immediately begs the question—what is the standard or benchmark
which must be met and how is that standard to be determined. The short answer is
that in the maritime domain these standards which fall within the rubric of regulatory
law are established by bodies such as the IMO and ILO pursuant to the basic legal
framework provided in UNCLOS.
3.2 Maritime Safety and Seaworthiness
Maritime safety comprises four elements, namely, ship safety, navigational safety,
cargo safety and occupational safety. All of these matters are regulated by international conventions, the principal ones being the International Convention on Safety
of Life at Sea (SOLAS), 1974, together with its Protocol of 1978 and several
50 Ibid.
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
591
a requirement for recognizing ship nationality but is an obligation to impose
jurisdiction and control suitably.
50 In practice, genuine link is interpreted as a
mechanism that suits the interests of the flag state. The most reasonable and
practicable view is that regardless of the nationality of the owner, the genuine link
requirement is satisfied if the flag state can demonstrate that it has sufficient control
over ships flying its flag in terms of the ships’ adherence to international laws
pertaining to safety, environmental protection and seafarers’ welfare issues. Opponents of the doctrine of genuine link are unsatisfied with the principle as it remains
unclear and is ambiguous as a test of nationality. Its interpretation can be diverse and
thus in practice can be used as a mechanism to achieve uncommon goals.
3 Sub-standard Shipping
3.1 Preliminary Observations
There is hardly any doubt or debate over what is a substandard ship and that such
ships should be eradicated. As stated in the introductory section of this chapter, a
ship is said to be substandard if it is unsafe, environmentally unsound and is not
secure from unlawful acts committed against it including acts of piracy. There is a
fourth element, namely, the human element which translates into seafarer competence and impinges on shipboard working conditions and seafarer welfare. Be that as
it may, our primary concern under the caption “substandard ship” is who is or should
be shouldering the responsibility of ensuring that a ship meets all requisite standards
set by law. This immediately begs the question—what is the standard or benchmark
which must be met and how is that standard to be determined. The short answer is
that in the maritime domain these standards which fall within the rubric of regulatory
law are established by bodies such as the IMO and ILO pursuant to the basic legal
framework provided in UNCLOS.
3.2 Maritime Safety and Seaworthiness
Maritime safety comprises four elements, namely, ship safety, navigational safety,
cargo safety and occupational safety. All of these matters are regulated by international conventions, the principal ones being the International Convention on Safety
of Life at Sea (SOLAS), 1974, together with its Protocol of 1978 and several
50 Ibid.
Ship Nationality, Flag States and the Eradication of Substandard Ships:. . .
591