Georgios Exarchopoulos/Q12903213/IMS701

The role and responsibility of flag States under UNCLOS III

Introduction
As Mansell (2009) states trading overseas is the first global industry and it still plays a vital role
in transferring of goods and people and in support of the global economy. Additionally, Brown
(1994) affirms that it is critical to the principle of freedom of the seas, all ships which sail in the
high seas to be registered to a single State and this State to exercise jurisdiction and control
over them.

This essay analyses the role and responsibility of Flag States under UNCLOS III and aims to
identify any potential issues at the implementation of the current rules and regulations.
Moreover, it suggests possible solutions to the actual concerns of the present statute, in order
the jurisdiction and the control of a State over a ship flying its flag to be more efficient.

UNCLOS III & Ships Nationality

UNCLOS III is the international agreement of the United Nations Conference on the Law of the
Sea, which concluded in 1982 and came into force in 1994 (IMO 2014). This convention is one of
the most successful Conventions and represents a remarkable contribution to relationships
between States (LeGresley 1993). Moreover, UNCLOS III dictates the procedures to identify the
core factors for granting of nationality to ships (Kasoulides 1989).

According to Article 90 of UNCLOS III (1982), all the States have the authority to navigate vessels
under their registration on the high seas and Article 91 (ibid) affirms that each State shall
arrange the terms for the attribution of its nationality to ships.

However, in the current international shipping industry, the nationality of a vessel does not
depend on the patriotic aspects of the ship-owner, the nationality of the ship's crewmembers or
the geographic area where this ship trades (Mansell 2009). In fact, usually, there is not any link
between State, owner and multi-cultural crews of the present shipping world (ibid).
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The reason behind this inconsistency is that several developing countries manipulate the
ambiguity of Article 91 of UNCLOS and they set up their registries under their own flexible terms
(Kasoulides 1989, p.544). With this method, they attract a significant number of ships without
having the satisfactory organizational services for governing these ships under the international
law (ibid).

This practice generates diverse kinds of registries which require different obligations for
granting a nationality to a vessel. Many authors tried to categorize these registries in groups.
Celik, Er and Ozok (2009) classify these registries into three types: closed or national registries,
international registries and open registries. The closed registries are addressed to the citizens of
each State, while the international registers accept vessels regardless the residence of the
owners, but they consider shipping business same as all the other companies in the State (ibid).
The open registers, however, have been established to provide to ship-owners low fees and tax
motivation to gain income from registration of foreign vessels (ibid).

Open registries and duties of Flag States

Shipping is a highly competitive industry and open registries adopt strategies which offer
favourable low fees, insignificant taxation, and lower crew costs (Pamborides 1999, p.9).
Inevitably, many ship-owners choose to fly their ships under the flag of a State with an open
registry to reduce the running costs of their companies (ibid).

The requirements of a closed registry, together with the running costs of a shipping company
could paralyze the financial abilities of an average maritime firm and undoubtedly, the open
registries are a beneficial choice for many ship-owners in order their businesses to be viable and
profitable (ibid).

Obviously, according to UNCLOS III (1982), Article 87, all vessels enjoy the freedom to sail the
high seas. However, as per Article 94 and 217 of UNCLOS, this freedom escorts the constant

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obligation of the Flag State to exercise its jurisdiction and control in administrative, technical,
social and environmental protection aspects over its vessels.

Despite these Articles, Churchill and Lowe (1999, p.258) state that some ship-owners take
advantage of the lax regulations of open registries and they reduce the running costs of their
ships from not having to comply with the international rules and basic safety standards.
Kasoulides (1989, p.546) stipulates that some States can include substandard ships in their open
registries or to permit the employment of untrained seafarers and uncertified officers.

In fact, ITF (2015) has repeatedly complained about the inappropriate welfare and the low
wages of sailors who work at ships of Flag States with open registries. ITF also protests open
registries that they do not comply with UNCLOS III because there is not a genuine link between
the Flag State and the owner of the shipping company (ibid).

According to Article 91 of UNCLOS III (1982) "there must exist a genuine link between the State
and the ship", but as Churchill and Lowe (1999, p.258) state, the genuine link concept about the
nationality of a vessel in entirely undefined because "do not have objective criteria and
therefore the position remains unclear". Similarly, it is unclear which will be the consequences,
if there is not any genuine link between the State and the vessel (ibid).

Churchill and Lowe (1999, p.208) states that the conception of the genuine link aims to assist
the flag States to perform their duties on issues which are related "to the identification and
accountability of ship-owners and operators who, in the past have sometimes hidden behind a
complex and artificial veil of interconnection companies". Apparently, according to Churchill and
Lowe (1999), it is hard to identify accountable individuals for shipping companies which are
incorporated in States other than the countries where most shareholders are citizens.

Moreover, Cogliati-Bantz (2010) claims that since the genuine link concept has little sense in the
attribution of nationality in practice, we should clarify the value of this link in reference the
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duties and obligations of flag States. Otherwise, the genuine link concept is not applicable at all
(ibid).

Enforcement of jurisdiction from States with open registry

According to Mansell (2009), the maintenance of adequate governmental authority over ships in
international law is an exclusive right and duty of flag States. However, Kasoulides (1989, p.543)
suggests that States with open registry have regularly been targeted by many authors because
these countries do not have the power, the resources, and the willingness to perform their
duties as the open registries are the efforts from developing countries to get involved with the
shipping industry.

Nevertheless, Kasoulides (1989, p.546) also affirms that we should not associate open registries
with substandard conditions and that many States with open register manage their vessels with
the highest of safety standards

In fact, UNCTAD (2015) mentions that in 1970s ships were registered in open registries driven by
the existence of lax safety and environmental regulations in these States, but nowadays, there
is an insignificant difference between closed and open registries in relevance with the
ratification and the implementation of international treaties.

Procedures to reinforce jurisdiction and control over ships from a State with an open
registry.
As per UNCTAD (2015), nowadays, a State aims to register upright vessels which comply with
international regulations in order its registry to be respectful by Port State authorities and the
sterling reputation of its flag to be more desirable among ship-owners.

Moreover, Takei (2013, p.313) suggests that, even if a flag State has poor performance as
concerns its governance over its ships, port state control inspections can be used as an
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instrument to pressure this flag State to perform better, because the targeting of individual
vessels of this registry will damage the reputation of the flag State and thus this State will be
forced to raise its standards otherwise the consequences will affect its entire fleet.

Finally, Kasoulides (1989, p.566) states that substandard vessels will not vanish and hazardous
practices will be not eliminated unless the approved IMO and ILO principles implement on a
worldwide basis and Port State controls could be the catalytic element in this direction.

Conclusion
An important issue which the shipping industry should rectify is that it should be easy for the
flag and port States to identify who is the accountable individual for each merchant ship and
apparently, the genuine link concept did not help in this aim, so this idea should probably
wholesale change or it should be abandoned.

Moreover, if the role of port State controls is empowered in jurisdiction and control over foreign
trading ships, the results will be more direct and precise because port States can force
merchant vessels and consequently the flag States to respect international conventions as
SOLAS, STCW, MARPOL, MLC, etc.

Finally, ICS (2015) suggests that the balance between the privileges and the duties of flag States
and port States should continue as it is because the present structure has performed efficiently,
as it is evident from the decreasing of maritime disasters and pollution accidents. Apparently, a
healthy and lawful industry will find the avenues to cure any inconsistency in her structure.

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Reference List:
BROWN, E.D., 1994. The International Law of Sea: Volume II. United Kingdom: Dartmouth
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CELIK, M., I. D. ER and A. F. OZOK. 2010. Application of fuzzy extended AHP methodology on
shipping registry selection: The case of Turkish maritime industry. Expert Systems with
Applications, 37(3)
CHURCHILL, R.R. and A.V. LOWE, 1999. The Law of the Sea. 3rd ed. Manchester: Manchester
University Press
COGLIATI-BANTZ, V., 2010. Disentangling the "Genuine Link": Enquiries in Sea, Air and Space
Law. Nordic Journal of International Law, 79(3), 383-432
ICS, 2015. 2015 Annual Review. International Chamber of Shipping. [Viewed 08 October 2016].
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PAMBORIDES, G., (1999). International shipping law: Legislation and Enforcement. The Hague:
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TAKEI, Y., 2013. International Legal Responses to the Flag State in Breach of its Duties:
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International Law, 82(2), 283-315
UNCTAD, 2015. Review of Maritime Transport. United Nations Conference on Trade and
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http://unctad.org/en/PublicationsLibrary/rmt2015_en.pdf
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