Ship Registration: Law and Practice

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Duties of the flag State


2.1 As discussed in , international law looks to individual flag States to ensure compliance with the rules it lays down for the exercise of the freedom of the high seas. The corollary of the principle of the freedom of the seas, as previously mentioned, is that States must take responsibility for the operations of the vessels sailing on the high seas bearing their flag. The practical enforcement of this statement of principle presents considerable difficulties. The United Nations Convention on the Law of the Sea (UNCLOS) 19821 provides that such freedom is exercised by States under the conditions laid down by this Convention and by other rules of international law; in particular, the freedom of the high seas must be exercised by all States “with due regard for the interests of other States”. 2.2 Article 94 of UNCLOS describes in some detail, using the imperative “shall”, the obligations of the flag State in the effective exercise of jurisdiction and control over its ships in administrative, technical and social matters. These obligations extend to the maintenance of a register of ships, the assumption of jurisdiction under its internal law over ships on its register, their Masters, officers and crews and the taking of the necessary steps to ensure safety at sea, including regular surveys. In a more widely drawn provision, the article continues to narrate the requirement of each State “to conform to generally accepted international regulations, procedures and practices, and to take any steps which may be necessary to secure their observance”. 2.3 Article 217 of UNCLOS obliges flag States to ensure compliance by their vessels with international rules and standards as well as laws and regulations adopted in accordance with the Convention for the protection of the marine environment from pollution. States must adopt the necessary laws and regulations for the implementation of these international precepts and provide for their effective enforcement irrespective of where a violation occurs. In particular, flag States must prohibit their vessels from sailing except in compliance with international rules and standards, ensure that their vessels carry the necessary certificates issued pursuant to those rules and standards and periodically inspect those vessels to ensure that the certificates are in conformity with the actual physical condition of the asset. The same article also provides for the investigation by flag States of violations by their vessels of international rules and standards and for the stipulation by flag States of penalties adequate in severity to discourage violations.

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2.4 It is the lack of any effective mechanism for the enforcement of these well-intentioned but practically toothless requirements against flag States who do not themselves enforce or observe compliance by the ship-owners registered with that State, which has drawn the greatest criticism and concern. While the imperative of maintaining and improving standards is well understood, the challenge for the international community is how to enforce against not only sub-standard vessels but also sub-standard flag States.2

Implementation of mandatory instruments

2.5 The perceived need for stricter application of internationally recognised rules and standards after the Exxon Valdez disaster in 1989 led to the establishment of the IMO Subcommittee on Flag State Implementation (FSI) in 1992. The FSI Subcommittee encouraged the adoption of a significant number of resolutions of the IMO Assembly in the fields of safety, pollution prevention and port State control. Following the Prestige casualty in November 2002 a letter to the Secretary-General of the United Nations was jointly submitted by Greenpeace International, the International Transport Workers’ Federation and the World Wide Fund for Nature calling for the establishment of a task force to address the stated problem of the lack of a genuine link between a ship and the State of her registration, and the lack of adequate implementation and enforcement by certain flag States. As a result, the Consultative Group on Flag State Implementation was convened in May 2003 and included representation from the IMO, the International Labour Organization, the UN Food and Agriculture Organization, the United Nations Environment Performance, UNCTAD and the OECD. 2.6 The Report of the Secretary-General, published in March 2004, made clear that despite certain differences of opinion among the members of the Consultative Group as to the causative effect of open registers or flags of convenience as such upon sub-standard vessels and their operators, the primary responsibility for enforcement of standards rests with the flag State rather than the port State.3 That outcome is also the clear intention of Article 5 and Article 10 of the 1958 Convention on the High Seas and Article 94 and Article 217 of UNCLOS.4 The solutions which the Report suggests include the mandatory audit of flag State controls and their measures of implementation of international Conventions. The Report concludes that port State control measures cannot counteract the failure of flag States to meet their obligations under international law, and that compliance can only be ensured through an adequate system of sanctions imposed by the States parties to the international Conventions which are being breached in their observance by others. 2.7 Following the recommendations of the FSI Subcommittee, procedures for the Voluntary Member State Audit Scheme were adopted by the IMO in December 2005. These procedures aim to provide a comprehensive and objective assessment of flag States’ compliance with their treaty obligations and are described as “a tool to achieve harmonized and consistent global implementation of IMO standards”.5 The first States to complete the Voluntary Audit were Chile, Denmark, UK and Liberia. In 2007 the IMO

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adopted a revised Code for the Implementation of Mandatory IMO Instruments,6 intended as the audit standard against which participants shall be assessed, of which a failure to satisfy is intended to form the basis for the imposition of sanctions or penalties against non-compliant States for their failures to implement international standards on board their merchant ships and by their ship-owners. 2.8 This Code was further revised in November 2011, the recitals to which describe:

REAFFIRMING that States, in their capacity as flag States, have the primary responsibility to have in place an adequate and effective system to exercise control over ships entitled to fly their flag and to ensure that they comply with relevant international rules and regulations in respect of maritime safety, security and protection of the marine environment.7

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