Assessing Flag State Performance in Legal Terms: Clarifications of the Margin of Discretion
In: The International Journal of Marine and Coastal LawSearch for other papers by Yoshinobu Takei in
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Abstract
A lack of control by flag states over their ships is one of the main causes of the current crisis in oceans management. To address this, the international community has been developing actions against irresponsible flag states in various sectors. However, it is not always clear under what circumstances they are considered to be in breach of their duties. A clarification of this issue will enable the international community to better address this problem by establishing a clear common understanding of what the breach of flag state duties entails. The present article examines this issue by considering the margin of discretion, which is akin to the concept ‘margin of appreciation’ often used in other areas, such as human rights, enjoyed by flag states in discharging their duties and analyzing the circumstances under which acts of private ships lead to the international responsibility of their flag state for their wrongful acts.
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13
Nandan and Rosenne, supra note 8, at 145.
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39
Prior to 2002, the IMO issued recommendations on maritime security in terms of risk management. See Witt, supra note 19, at 89 n. 420 and its accompanying text.
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40
IMO Doc. SOLAS/CONF.5/32, 12 December 2002, and IMO Doc. SOLAS/CONF.5/34, 17 December 2002. In addition, as called for in Resolution 8 of the Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974, adopted on 13 December 2002, the ILO adopted a Convention on Seafarers’ Identity Documents in 2003. Seafarers’ Identity Documents Convention (Revised) (19 June 2003, entered into force 9 February 2005), [2005] Official Journal of the European Union (OJ) L136/3. See also Witt, ibid., at 89–94.
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58
Nandan and Rosenne, supra note 8, at 181.
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72
Heintschel von Heinegg, supra note 65, at 261; Klein, ibid., at 282.
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90
As of 31 October 2010, MARPOL Annex IV has attracted 127 parties, accounting for 82.65 % of the world’s fleet, and MARPOL Annex VI has attracted 62 parties, accounting for 84.93 %. The number of ratifications and the tonnage percentage for other Annexes are higher (all more than 130 parties; accounting for more than 95 % of the world shipping tonnage). See the table on the website of the IMO, ‘Status of Conventions summary’, available at: <http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx> accessed 19 November 2012.
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94
See also ILO General Survey, supra note 9, at 31 and 39–44. The list of Conventions was extended by the 1996 Protocol to the ILO Convention No. 147, Art. 1(1).
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97
See Wit, supra note 19, at 114 n. 566 and its accompanying text.
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112
ISPS Code, para. 4.3. See also Witt, supra note 19, at 93.
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155
See also Palma et al., supra note 103, at 266.
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Assessing Flag State Performance in Legal Terms: Clarifications of the Margin of Discretion
In: The International Journal of Marine and Coastal LawSearch for other papers by Yoshinobu Takei in
Current site
Google Scholar
PubMed
Abstract
A lack of control by flag states over their ships is one of the main causes of the current crisis in oceans management. To address this, the international community has been developing actions against irresponsible flag states in various sectors. However, it is not always clear under what circumstances they are considered to be in breach of their duties. A clarification of this issue will enable the international community to better address this problem by establishing a clear common understanding of what the breach of flag state duties entails. The present article examines this issue by considering the margin of discretion, which is akin to the concept ‘margin of appreciation’ often used in other areas, such as human rights, enjoyed by flag states in discharging their duties and analyzing the circumstances under which acts of private ships lead to the international responsibility of their flag state for their wrongful acts.
| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 811 | 168 | 8 |
| Full Text Views | 413 | 51 | 1 |
| PDF Views & Downloads | 337 | 98 | 4 |