3.4 The particular role of flag states
Another central underlying concept of UNCLOS is the concept of the flag state. UNCLOS provides rules on the flagging of vessels and connected rights and obligations.(1) Art. 91 ff. UNCLOS One central element in the concept of flag states is there must be “a genuine link” between the vessel and the flag state(2) Art. 91 UNCLOS.. UNCLOS emphasises the concept of exclusive jurisdiction of the flag state over its ships. This means, for example, that many of the provisions of UNCLOS concerning the different maritime zones, as well as the coastal states’ interest in governing its maritime zones, are counter-balanced by the principle of exclusive rights and jurisdiction of the flag state and the subsequent principle of non-interference. The idea, here, that each flag state is responsible for all issues concerning its ships and that the coastal states (or others) only have jurisdiction if their specific interests are at stake.(3) See for example Art. 27 UNCLOS on criminal jurisdiction in territorial waters. One exception to this division of responsibilities is certain specific forms of crime which UNCLOS defines as being the responsibility of all states when occurring on the high seas, such as slavery and piracy. Concerning piracy, the concept of exclusive jurisdiction of the flag state is challenged, insofar as all states are granted counter-piracy law enforcement powers against pirate vessels.(4) See Feldtmann, Fighting Maritime Piracy; On Possible Actions and Consequences, in Thomas Eger and others (eds.), Economic Analysis of International Law; Contributions to the 13th Travemunde Symposium on the Economic Analysis of Law (March 29-31, 2012), Mohr-Siebeck Verlag 2014 p. 177 ff. Furthermore, Art. 100 of UNCLOS even defines a general obligation on all states to “cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State”.
The strong influence of the flag state principle and the non-interference principle can be briefly illustrated by the issue of collisions outside the territorial sea. In 1927 the Permanent Court of International Justice ruled in the Lotus case(5) SS “Lotus” (France vs. Turkey), Judgment (1927) PCIJ (ser A) No. 10, 4. that, in cases where navigational misconduct/ negligence on one ship leads to a collision and the subsequent death of a person on the other ship, the criminal conduct can be seen as having occurred on both vessels and therefore the flag states of both vessels could claim criminal jurisdiction. This was basically an application of classical jurisdictional principle of the effect of the crime. However, the Lotus decision was opposed by seafarers and the idea of multiple criminal jurisdiction in cases of collision was strongly opposed and later limited by treaty law.(6) See Guilfoyle, “The high seas”, in Rothwell et.al, (eds.), The Oxford Handbook of the Law of the Sea, 2015, p. 218 f. with further references. Today, Article 97 limits criminal jurisdiction to the flag state of the vessel causing the collision or the state of which the suspected offender is a citizen. UNCLOS attempts here to provide a clear division of responsibilities.
The idea of the exclusive jurisdiction of the flag state, as found in a number of UNCLOS’ provisions, is convincing in the sense that it can avoid conflicts of jurisdiction and can also be seen as a counter-balance to the rights granted to the coastal states. However, the idea of a responsible flag state with a “genuine” connection to and interests in its vessels is, in the reality of today, strongly challenged. The phenomena of “flags of convenience” and “flags of secrecy” is quite widespread and well-established.(7) See Konig, “Flag of Convenience”, Max Planck Encyclopedia of Public International Law. Not all flag states are in fact able and willing to enforce their obligations under UNCLOS. This means that in specific situations there may be jurisdictional vacuums, in the sense that the flag state is not living up to its obligations and all other states are prohibited by UNCLOS from taking action. Here, the system intended by the UNCLOS is challenged by the realities of vessel registration.