2.2 Flag State jurisdiction and responsibilities
The flag State is the State which has granted to a ship the right to sail under its flag.(1) Churchill, Lowe & Sander (n 9), 381. Each flag State is obliged to “take such measures for ships flying its flag as are necessary to ensure safety at sea”.(2) UNCLOS (n 2) Art. 94(3). These measures relate to the safety parameters of the vessel, its navigational systems and the proper qualifications and working conditions of the crew. The flag State is also obliged to conduct obligatory technical surveys of the ship, ensuring both the proper qualifications of the master and crew and the ability of the crew to communicate.(3) Ibid., Art. 94(4).
Part XII of UNCLOS deals specifically with States’ obligations with respect to the protection of the marine environment. Article 194 prescribes the obligations of all States (including flag States) to protect the marine environment. It says that States must take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. According to Article 194(3)(b), these measures must include ones designed to minimise to the fullest possible extent pollution from vessels, 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.
Further provisions of Part XII lay down rules specifically addressing States’ obligations to adopt legislative and enforcement measures to prevent and minimise vessel-source pollution. Article 211 requires States to adopt international measures to regulate and prevent pollution from ships, and flag States are required to adopt anti-pollution measures for ships under their flag which at least have the same effect as that of generally accepted international rules and standards. UNCLOS does not specify the actual discharge standards or other obligations with respect to safety to be observed by vessels, but merely refers to the obligation of flag States to comply with the “international rules and standards” adopted by the ‘competent international organization’ (IMO). Coastal States may also establish particularly sensitive sea areas in their EEZs for which they may adopt provisions to prevent ship-source pollution, subject to certain conditions and authorisation by the IMO.(4) UNCLOS (n 2) Article 211(6). Further conditions for such areas are provided in Article 211(6) and the IMO’s Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (Resolution A.982(24)): The Guidelines set out detailed criteria for the designation of such areas and envisage associated protective measures (APMs) and the procedure. The Guidelines item 6 mentions the following options: Designation of an area as a Special Area or the application of special discharge restrictions to vessels operating in PSSA; the adoption of ship routing and reporting systems near or in the area (including an area to be avoided); and other measures which have an identified legal basis. ‘In some circumstances, a proposed PSSA may include a buffer zone, i.e. an area contiguous to the site-specific feature (core area).’ However, the implementation and compliance responsibility within the designated areas lies with the flag State.
Flag States enjoy exclusive jurisdiction over their ships on the high seas.(5) UNCLOS (n 2) Article 92(1). A few narrow exceptions follow from UNCLOS and, as the case may be, other international law.(6) Port States and coastal States are granted certain prescriptive and enforcement jurisdiction with regard to foreign ships calling at ports and sailing through their territorial sea and EEZ (UNCLOS Articles 218-220). The supremacy of a flag State jurisdiction on the high seas is based on the ancient principle of freedom of navigation, respect for state sovereignty, as well as on the trust that flag States are the best suited to control vessels flying their flag, due to the close link between them and these vessels. At the same time, flag States are required to exercise effective jurisdiction and control over their ships in administrative, technical and social matters. Article 217 requires flag States to take measures to ensure their ships’ compliance with requirements for marine environmental protection, and to investigate violations of international shipping safety standards.(7) See also Article 94.
Serious concerns about the effective and adequate protection of the high seas have been raised, due to irresponsible practices associated with so-called ‘flags of convenience’. UNCLOS provides that flag States determine the conditions for granting their nationality to vessels and does not prescribe conditions for obtaining the flag State’s nationality and ship registration requirements, except that “[t]here must exist a genuine link between the State and the ship.”(8) Article 91(1). For a more detailed discussion of the genuine link see, e.g., Churchill, Lowe & Sander (n 9), 471. In the absence of international obligations or harmonised registration requirements in force,(9) UN Convention on Conditions for Registration of Ships (7 February 1986, 26 ILM 1229, not in force) seeks to ensure and strengthen the genuine link between the ship and its flag State so that the flag State can effectively exercise its jurisdiction and control, < United Nations Convention on Conditions for Registration of Ships 1986 (unctad.org)>. flag States enjoy a nearly unlimited discretion with respect to the conditions for registration of vessels in their domestic registries.(10) This has been confirmed in international case law, e.g. Saiga (nr 2) (St.Vincent v. Guinea), 120 I.L.R. 143, International Tribunal for the Law of the Sea (ITLOS) 1999, para 82. States’ approaches to registration of ships as well as to the rigour of supervision and enforcement vary greatly. Relaxed registration conditions and supervision in States offering “flags of convenience” contribute to inadequate environmental protection in the international shipping.(11) Churchill, Lowe & Sander (n 9), 471 et seq.; Alan Khee-Jin Tan, Vessel-Source Marine Pollution. The Law and Politics of International Regulation, Cambridge University Press, Cambridge, 2006, 47 et seq.