2.1 Introduction
One of the main challenges for coastal States seeking to impose national wage and working conditions on board foreign-flagged ships, is the question of jurisdiction. Jurisdiction is the State’s competence under international law to regulate the conduct of physical and legal persons.(1) James Crawford, Brownlie’s Principles of Public International Law, 9th ed., Oxford: Oxford University Press, 2019, p. 440.Prescriptive jurisdiction is the State’s competence to make laws, decisions or rules.(2) Crawford (2019) p. 440.Enforcement jurisdiction is the State’s competence to enforce such rules through executive or judicial measures.(3) Dolliver Nelson, “Maritime Jurisdiction” in Max Planck Encyclopedia of Public International Law, Rüdiger Wolfrum (ed.), Oxford Public International Law, 2010, para. 1; compare Crawford (2019) p. 440.The coastal State cannot impose national wage and working conditions on board foreign-flagged ships if it does not have jurisdiction to do so.
Jurisdiction is normally derived from territory or nationality.(4) Crawford (2019) pp. 440–447.The coastal State’s potential jurisdiction over foreign-flagged ships is based on its territorial jurisdiction, while the flag State’s jurisdiction is based on the United Nations’ Convention on the Law of the Sea (UNCLOS) art. 91, on the nationality of ships.
UNCLOS regulates the balance between coastal State and flag State jurisdiction by dividing the sea into different maritime zones, where coastal State jurisdiction over foreign-flagged ships will vary depending on the position and actions of the ship. Wherever coastal State jurisdiction is limited, the ship will be left to the jurisdiction of the flag State. The provisions of UNCLOS regulating flag state jurisdiction are included in the Convention’s part VII on the high seas. However, it is presumed, both in legal literature and in State practice, that the ship is subject to the flag State’s jurisdiction, even when it finds itself in other maritime zones.(5) Ringbom (2015) p. 115.
The main rule under the Convention is that the coastal State has full jurisdiction, based on its territorial sovereignty, over its land territory, in its internal waters and in its territorial sea.(6) UNCLOS art. 2.Beyond the limits of the territorial sea, the ship is subject to the exclusive jurisdiction of the flag State.(7)UNCLOS art. 92.These main principles are nuanced by the provisions of UNCLOS, as well as by the rules and principles of general international law.(8)See also UNCLOS, preamble, at para. 8.
The following subsections investigate these nuances of maritime jurisdiction from a coastal State perspective, focusing on how the coastal State’s jurisdiction in different maritime zones may be applied to impose national wage and working conditions on board foreign-flagged ships.