2.2 International rules
As mentioned in Article 94 (1) of the Convention on the Law of the Sea, (hereafter named UNCLOS): “Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag."(1) The United Nations Convention on the Law of the Sea of 10 December 1982. Continuing from the same article, paragraph 2(a): “In particular, every State shall maintain a register of ships” and shall further, according to paragraph 2(b), “assume jurisdiction under its internal law over each ship flying its flag...” In addition, for the sake of maritime safety, the flag State is generally required to comply with Article 94 (3 to 5), that they “shall take such measures necessary to ensure safety at sea, with regard inter alia to: the construction, equipment and seaworthiness of ships…” and to ensure that “each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships...”. It is the responsibility of the contracting States to take international legal unification of law into account when implementing relevant measures. Particularly, it follows directly from Article 94 (5) that "each State is required to conform to generally accepted international regulations, procedures and practices and take any steps which may be necessary to secure their observance". In addition, the UNCLOS Article 192 provides that “States have the obligation to protect and preserve the marine environment.” The provision is not only a general clause, but is followed by Article 194 (1), providing an obligation for the States, either individually or in co-operation, to take “all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source...". On that topic, the UNCLOS Article 194 paragraph 3(b) specifically states that the States shall lay down rules to reduce pollution from vessels, including in particular “measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges and regulating the design, construction, equipment, operation and manning of vessels”.
These two main obligations: the general obligation towards maritime safety and the obligation to protect the marine environment, have been created by the conclusion of comprehensive international agreements. These regulations are of a very technical nature, including in particular the SOLAS(2) International Convention for the Safety of Life at Sea (SOLAS), 1974. and MARPOL(3) International Convention for the Prevention of Pollution from Ships (MARPOL), 1973. conventions. The conventions are concluded under the auspices of the United Nations maritime organisation, known as the International Maritime Organisation (IMO), which encompasses both maritime safety and marine pollution. It is directly assumed in the convention system that the classification societies' regulations are decisive on how ships are to be constructed; see for example, the SOLAS Convention Annex 1, Chapter II-1 (1), Rule 3-1:
Structural, mechanical and electrical requirements for ships
In addition to the requirements contained elsewhere in the present regulations, ships shall be designed, constructed and maintained in compliance with the structural, mechanical and electrical requirements of a classification society which is recognised by the Administration in accordance with the provisions of regulation XI-1/1, or with applicable national standards of the Administration which provide an equivalent level of safety.
It should be noted that the provision considers the classification society's rules as the primary rules and that the provision states that each flag State, if it wishes to regulate independently, must regulate at a level that corresponds to at least the level of safety provided by the classification societies’ rules. In addition, it follows directly from the SOLAS convention that the relevant public authority may delegate the surveying of ships to certain "recognised organisations"; see the SOLAS Convention Annex 1, Chapter 1B, Rule 6:
The inspection and survey of ships, in so far as regards the enforcement of the provisions of the present regulations and the granting of exemptions therefrom, shall be carried out by officers of the Administration. The Administration may, however, entrust the inspections and surveys either to surveyors nominated for the purpose or to organisations recognised by it.
However, the flag State is required to fully guarantee the accuracy and effectiveness of the inspection and that the flag State takes the necessary steps to ensure that this obligation is respected. In other words, the flag State asserts and controls the quality of the recognised organisation's work.
In order to ensure that recognised organisations implement the international requirements set out in the SOLAS and MARPOL system to a sufficient degree, as well as ensuring that national States fulfill their obligations regarding the recognition, authorisation and control of classification societies, the IMO Maritime Safety Committee adopted guidelines for the flag State's allocation of authorisations to inspect on behalf of the flag State(4) Guidelines for the authorisation of organisations acting on behalf of the Administration, Res. A.739(18) (as revised in Res. MSC 208(81)), and Specifications on the survey and certification functions of recognised organisations acting on behalf of the Administration, Res. A.789(19). as well as the so-called RO Code,(5) Code for Recognised Organisations, Resolution MSC.349 (92) of 21 June 2013. which contains certain minimum standards to be met by both recognised organisations and flag States.