western developed states.
93 Yet, open registries singularly carry the stigma of “flags
of convenience”.
5 The Possible Way Forward
5.1 The Premise
That shipping is inherently an international business is an undeniable verity. It is the
predominant method which has been used for centuries, indeed millennia, for the
transportation of goods and passengers across the oceans and remains the most
economical method despite the existence of other modes of transportation. What
has been unique about shipping, which it now shares with international aviation, is
that larger segments of the transportation are conducted through a medium that does
not fall within any national jurisdiction. This is the expanse of the high seas which
stands as the underlying rationale for the need to have ship nationality. In aviation,
the air space above the high seas provides the corresponding basis for aircraft
nationality. One distinction between these two modes of transportation is, however,
underscored by the fact that ships spend more time on the high seas than do aircraft
in the corresponding air space. Furthermore, ships hold on board an entire floating
community that has to carry on with life for long periods of time on the high seas.
There is no such parallel in aviation, where the duration of an aircraft in international
airspace is only a matter of hours. By far, existence on the high seas is the strongest
argument in favour of the concept of ship nationality, which provides a legal regime
on board a ship on the high seas, without which a ship would metaphorically
speaking be floating in a legal vacuum.
94
Be that as it may, a cynical view of the rationale for having ship nationality, a
view shared by this author, is that when things go wrong and disasters happen, there
is a flag state on which the blame can be squarely placed. Of course, in the domain of
private law, there are actors who are perhaps even more important from the point of
view of legal and economic interests, who bear the liabilities in tangible terms. But
from an international public law and policy perspective, there seems to be a dire need
for a scapegoat. The typical open registry flag state easily fits into the mould and
becomes a victim of a seemingly increasing blame culture. This is exemplified and
evidenced by the practice of flag targeting for which there is no support in law.
Compromising standards is not in the interest of anyone in the shipping community as in the last analysis, it would be detrimental to the shipping business and to
international trade and commerce. In that vein, if hypothetically speaking, the
concept of ship nationality and with it, the phenomenon of the flag state were to
93 https://www.dco.uscg.mil/Portals/9/DCO%20Documents/Proceedings%20Magazine/Archive/
2012/Vol69_No2_Sum2012.pdf?ver¼2017-05-31-120748-633.
94 Mukherjee and Brownrigg (2013), p. 199.
602
R. Mukherjee
93 Yet, open registries singularly carry the stigma of “flags
of convenience”.
5 The Possible Way Forward
5.1 The Premise
That shipping is inherently an international business is an undeniable verity. It is the
predominant method which has been used for centuries, indeed millennia, for the
transportation of goods and passengers across the oceans and remains the most
economical method despite the existence of other modes of transportation. What
has been unique about shipping, which it now shares with international aviation, is
that larger segments of the transportation are conducted through a medium that does
not fall within any national jurisdiction. This is the expanse of the high seas which
stands as the underlying rationale for the need to have ship nationality. In aviation,
the air space above the high seas provides the corresponding basis for aircraft
nationality. One distinction between these two modes of transportation is, however,
underscored by the fact that ships spend more time on the high seas than do aircraft
in the corresponding air space. Furthermore, ships hold on board an entire floating
community that has to carry on with life for long periods of time on the high seas.
There is no such parallel in aviation, where the duration of an aircraft in international
airspace is only a matter of hours. By far, existence on the high seas is the strongest
argument in favour of the concept of ship nationality, which provides a legal regime
on board a ship on the high seas, without which a ship would metaphorically
speaking be floating in a legal vacuum.
94
Be that as it may, a cynical view of the rationale for having ship nationality, a
view shared by this author, is that when things go wrong and disasters happen, there
is a flag state on which the blame can be squarely placed. Of course, in the domain of
private law, there are actors who are perhaps even more important from the point of
view of legal and economic interests, who bear the liabilities in tangible terms. But
from an international public law and policy perspective, there seems to be a dire need
for a scapegoat. The typical open registry flag state easily fits into the mould and
becomes a victim of a seemingly increasing blame culture. This is exemplified and
evidenced by the practice of flag targeting for which there is no support in law.
Compromising standards is not in the interest of anyone in the shipping community as in the last analysis, it would be detrimental to the shipping business and to
international trade and commerce. In that vein, if hypothetically speaking, the
concept of ship nationality and with it, the phenomenon of the flag state were to
93 https://www.dco.uscg.mil/Portals/9/DCO%20Documents/Proceedings%20Magazine/Archive/
2012/Vol69_No2_Sum2012.pdf?ver¼2017-05-31-120748-633.
94 Mukherjee and Brownrigg (2013), p. 199.
602
R. Mukherjee