Abstract
A slow transition of national maritime law from the nineteenth century through bilateral and multilateral agreements to eventual international agreements took place during the first half of the twentieth century. Coinciding with the beginning of the second shipping revolution in the 1950s, the International Law Commission was drafting articles as a basis for codification of customary law for matters including the nationality of ships and their jurisdiction and control. These articles, which were adopted with little change through the HSC, provided a standard for flag States that was appropriate at that time. Consideration is given to the development of this international law for the nationality of ships, and their jurisdiction and control, and the question is asked whether review of these specific matters by UNCLOS III was overshadowed by environmental issues, to the detriment of consideration of suitability of the extant model for jurisdiction and control of ships. A comparative study is undertaken of the codification of flag State responsibilities through the HSC, and their metamorphosis into the LOSC.
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Notes
- 1.
See Chap. 4.
- 2.
Ibid.
- 3.
Merchant Shipping Act 1906, s.1, states inter alia: “sections 437 to 443 of the 1894 Act (which relate to loadline), except 440 (3) and (4), shall, after the appointed day (1st October, 1909), apply to all foreign ships while they are within any port in the United Kingdom, as they apply to British ships, without prejudice…”
- 4.
Australia, Belgium, Chile, Denmark, France, Germany, Hong Kong, Iceland, India, Italy, Japan, Netherlands, Netherlands Indies (Indonesia), New Zealand, Norway, Portugal, Spain, Straits Settlements, Sweden, United Kingdom, United States of America, Union of Soviet Socialist Republics. (Singh 1963, p. 98)
- 5.
The Convention was signed by Great Britain, Canada, Australia, New Zealand, the United States of America, Austria, Belgium, Denmark, France, Germany, Holland, Italy, Norway, Russia, Spain, and Sweden.
- 6.
IMO paper J/8351, World Maritime Day 2003, Background paper: Committed People Working Together For Safe, Secure And Clean Seas. p. 2: The Convention only applied to ships carrying more than 12 passengers.
- 7.
Convention Relating to the Tonnage Measurement of Ships. Warsaw, 16 April 1934
- 8.
Convention for a Uniform System of Tonnage Measurement of Ships. Oslo, 10 June 1947.
- 9.
International Convention on Tonnage Measurement of Ships. London, 23 June 1969. In force 18 July 1982. 1982 UKTS 50 276.
- 10.
Agreement for a Uniform System of Maritime Buoyage and Rules Annexed Thereto. Geneva, 13 May 1936. League of Nations (Communications & Transit), No C261 M154, 1936, VIII, 11.
- 11.
Agreement Concerning Maritime Signals. Lisbon, 23 October 1930. Official Document of the League of Nations (Communications & Transit), No C634 M253, 1930, VIII, 13.
- 12.
Agreement Concerning Manned Lightships Not on their Stations. Lisbon, 23 October 1930.
- 13.
Recommendations on Lighthouse Characteristics and Radio-Beacons. Lisbon, 23 O ctober 1930.
- 14.
International Convention for the Prevention of Pollution of the Sea by Oil. London, 12 May 1954. In force 26 July 1958. 327 UNTS 3.
- 15.
Convention on the High Seas; Convention on the Territorial Sea and the Contiguous Zone; Convention on Fishing and Conservation of Living resources of the High Seas; Convention on the Continental Shelf. See Brown ED (1994) The International Law of the Sea, Vol II, Dartmouth Publishing Company Ltd, United Kingdom, Docs. 4.2, 9.2, 9.12 and 7.2 for the full texts of the four Geneva Conventions.
- 16.
“In retrospect, it can be seen that the post-war history of the law of the sea falls into two distinct periods. The first period, from 1945 to 1960, was partly one of consolidation, clarification and codification and partly one of progressive development in response largely to technological change. Both elements are reflected in the four Geneva Conventions on the Law of the Sea produced by UNCLOS I.” (Brown 1994, p. 9)
- 17.
“(These) first two sentences of Article (5 of the HSC) repeat verbatim the ILC’s 1956 draft. With regard to these requirements, in its Commentary the ILC noted that: “Each State lays down the conditions on which ships may fly its flag. Obviously the State enjoys complete liberty in the case of ships owned by it or ships which are the property of a nationalised company. With regard to other ships, the State must accept certain restrictions. As in the case of the grant of nationality to persons, national legislation on the subject must not depart too far from the principles adopted by the majority of States, which may be regarded as forming part of international law. Only on that condition will the freedom granted to States not give rise to abuse and friction with other States. With regard to the national element required for permission to fly the flag, a great many systems are possible, but there must be a minimum national element.” (Nordquist 1995, p. 106)
- 18.
HSC, Article 10. The use of the words inter alia means that there are other unspecified matters the State must take into account to ensure safety at sea.
- 19.
“The term has been defined as meaning “that reasonably safe and proper condition in which a vessel’s hull and equipment, her cargo and storage thereof, machinery and complement of crew, are deemed adequate to undertake a specific sea voyage or to be employed in a particular trade”. McEwen, WA and Lewis AH, (1953, 1985) Encyclopedia of Nautical Knowledge. Cornell Maritime Press, Cornell MD, p. 487. See also J. Bes, I (n.d. 1977) Chartering and Shipping Terms. Baker and Howard; W S Heinman, London, New York, p. 466
- 20.
HSC, Article 10(1) and (2), Generally accepted standards are considered to those set by the “relevant international organizations”, the IMO and ILO.
- 21.
“To date there are no international standards for the registration of ships apart from those contained in the 1986 United Nations Convention on Conditions for Registration of Ships, Geneva, 7 February 1986 which has never achieved enough support to enter into force.” LOSC 87 (1986). The Secretary General of IMCO pointed out to the Chairman of the Drafting Committee on the Law of the Sea Convention at UNCLOS III that ‘there were no current international regulations on the subject of national registers of shipping.’”
- 22.
SOLAS 1960 had the Collisions Regulations appended to it.
- 23.
International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties. Brussels, 29 November 1969, 1975 UKTS 7; International Convention on Civil Liability for Oil Pollution Damage (CLC Convention). Brussels, 29 November 1969, 1975 UKTS 106; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention). Brussels, 18 December 1971, 1978 UKTS 95; International Convention for the Prevention of Pollution from Ships. London, 2 November 1973, as amended by the protocol, London 01 June 1978 (MARPOL 73/78) 1340 UNTS 61.
- 24.
In March 1967 the first major pollution incident from one of the new generation of supertankers occurred in the English Channel when the Torrey Canyon grounded on the Sevenstones between Lands End and the Scilly Isles, spilling 119,000 tons of crude oil.
- 25.
See for example SOLAS, Article I, General obligations under the Convention: (a) The Contracting Governments undertake to give effect to the provisions of the present Convention and the annex thereto, which shall constitute an integral part of the present Convention. Every reference to the present Convention constitutes at the same time a reference to the annex. (b) The Contracting Governments undertake to promulgate all laws, decrees, orders and regulations and to take all steps which may be necessary to give the present Convention full and complete effect, so as to ensure that, from the point of view of safety of life, a ship is fit for the service for which it is intended. SOLAS, Article II, Application: The present Convention shall apply to ships entitled to fly the flag of States the Governments of which are Contracting Governments.
- 26.
For a summary of Conventions that were amended or developed as a direct result of the Torrey Canyon disaster see Brown ED, (1994) The International law of the Sea. Vol I, Dartmouth Publishing Company Ltd., United Kingdom. p. 382.
- 27.
The International Tanker Owners Pollution Federation Ltd., (ITOPF), Oil Tanker Spill Statistics: 2003. p. 3: “The figures for a particular year may therefore be severely distorted by a single large incident. This is clearly illustrated by 1979 (Atlantic Empress – 287,000 tonnes), 1983 (Castillo de Bellver – 252,000) and 1991 (ABT Summer – 260,000 tonnes).”
- 28.
ITOPF, Oil Tanker Spill Statistics 2003. From 1970–1979 inclusive a total of 3,142,000 tonnes of oil was spilt; predominantly from collisions and groundings.
- 29.
Altered wording from the HSC and new wording in the LOSC above that in the HSC is in bold in the footnote references.
- 30.
HSC Art.5 (1) (2) (Corresponding to Article 29 of the ILC’s draft Articles) (1) Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships shall have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. (2) Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
- 31.
LOSC Articles 91(1) (2) Nationality of Ships. (1) Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships shall have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. (2) Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
- 32.
See footnote 1, “Based on proposals by Italy and France. See A/CONF.13/C.2/L.28 (1958), UNCLOS I, IV Off. Rec. 123 (Italy); and A/CONF.13/C.2/L.93 (1958), Ibid. 141 (France).”
- 33.
See A/CONF.62/L.57/Rev.1 (1980), section XIII, XIV Off. Rec. 114, 123 (Chairman Drafting Committee).
- 34.
A minor amendment to the first word of article 91.2 from “each” to “every” was approved at the tenth session in 1981.
- 35.
LOSC Article 92 (1) & (2) Status of ships: (1) Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. (2) A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
- 36.
HSC Article 6 (1)(2) (Corresponding to Articles 30 and 31 of the ILC’s draft Articles): (1) Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer or ownership or change of registry. (2) A ship which sails under the flags of two or more States; using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
- 37.
‘This suggestion was consistent with Peru’s effort to place articles 91–96, and 98, in a separate Part of the Convention on general provisions concerning ships. Peru renewed its proposal to delete the words “on the high seas” from Article 92, and to restructure the articles on the high seas, at the resumed ninth session (1980) and at the eleventh session (1982)’. (Nordquist 1995, p. 125).
- 38.
LOSC Articles 94.3 (a) (b) (c); 94.4 (a) (b) (c); 94.5; 94.6; 94.7, Duties of the flag State. 94.3, (additional text above that contained in the HSC is shown in bold): Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to, 94.3(a) The construction, equipment and seaworthiness of ships,94.3(b) The manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments, 94.3(c) The use of signals, the maintenance of communications and the prevention of collision. 94.4 Such measures shall include those necessary to ensure: 94.4(a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship; 94.4 (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualifications and numbers for the type, size, machinery and equipment of the ship; 94.4 (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio. 94.5 In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. 94.6 A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship has not been exercised may report the fact to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. 94.7 Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that State into any such marine casualty or incident of navigation.
- 39.
HSC Articles 10 (1) (a) (b) (c) (2). (1) Every State shall take such measures for ships under its flag as are necessary to ensure safety at sea with regard inter alia to: (a) The use of signals, the maintenance of communications and the prevention of collisions. (b) The manning of ships and labour conditions for crews taking into account the applicable international labour instruments. (c) The construction, equipment and seaworthiness of ships. (2) In taking such measures each State is required to conform to generally accepted international standards and to take any steps which may be necessary to ensure their observance.
- 40.
“Second Committee, 42nd meeting (1974), para 2, II Off. Rec. 292. The representative of the U.K. had earlier referred to flag State jurisdiction and control in administrative, technical and social matters as part of the duties of the flag State vis-à-vis the international community.” Second Committee, 31st meeting (1974), para. 69, Ibid. 237.
- 41.
See the statement by the representative of IMCO at the 22nd plenary meeting (1974), para. 8, I Off. Rec. 65. See also “The activities of [IMCO] in relation to shipping and related maritime matters,” A/CONF.62/27 (1974), III Off. Rec. 43; and UN Office for Ocean Affairs and the Law of the Sea, Navigation on the High Seas, paras. 54–56, at 52.
- 42.
“[This] requirement was originally adopted in the Second Committee at UNCLOS I for the purpose of strengthening the concept of ‘genuine link’ with regard to the nationality of a ship … by indicating matters over which the coastal State should exercise its jurisdiction.” (Nordquist
- 43.
International Convention on Standards of Training, Certification and Watchkeeping for Seafarers. London, 1 December 1978. 1984 UKTS 50. 1995, p. 144)
- 44.
The “generally accepted international regulations” referred to in Article 94(2)(a) and 94(5) dealing respectively with ship registration criteria and to the detailed requirements of Articles 94(3) and (4) are echoed in Articles 21(4), Innocent Passage, 39(2), Transit Passage, 41(3), Sea Lanes and Traffic Separation Schemes in International Straits, and 53(8) Archipelagic Sea Lanes Passage. An indication of the coverage of the expression is given in Article 39(2) by reference to the International Regulations for Preventing Collision at Sea, a regulation made by the IMO.
- 45.
See for example LOSC Annex IX, Article 1: “For the purposes of article 305 and of this Annex, ‘international organization’ means an intergovernmental organization constituted by States to which its member States have transferred competence over matters governed by this Convention, including the competence to enter into treaties in respect of those matters.”
- 46.
See for example LOSC, Article 94.2(a): “In particular every State shall maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size.”
- 47.
In force 12 May 1958.
- 48.
Tanker tonnages are usually referred to in tons deadweight (dwt); a measure of the carrying capacity of the ship at her summer loadline including fuel and stores expressed in long, or metric, tons weight.
- 49.
LOSC, Part XII, Protection and preservation of the Marine Environment, Articles 192–237. 45 comprehensive articles as compared with one in the HSC 24 years earlier.
- 50.
MARPOL 73/78, Annex VI. Regulations for the Prevention of Air Pollution from Ships. Entered into force on 19 May 2005.
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Mansell, J.N. (2009). Development of International Law for Flag State Responsibility. In: Flag State Responsibility. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-92933-8_5
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