Twilight of Flag State Control

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  • 2001. 1. UNCTAD. Review of Maritinee Transport 2001 UNCTAD/RMT/2001.Geneva, 2. H. Grotius, "The Freedom of the Seas or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade." Dissertation, Oxford University, 1916 (New York, Oxford University Press, 1916), p. 7.

  • 3. R. R. Churchill and A. V. Lowe, The Law of the Sea, 3d ed. (Manchester: Manchester University Press, 1999), p. 205. 4. Accessed January 2002 on the World Wide Web: . 5. E. Gold, "Learning from disaster: Lessons in regulatory enforcement in the maritime sector," Review of European Community and International Environmental Law 8(1) (1999): 18.

  • 6. The United Nations Convention on Conditions for Registration of Ships was adopted in February 1986 under the auspices of UNCTAD, TD/RS/CONF/ / 23, Geneva: 1986.

  • 7. Convention on the High Seas, United Nations Treaty Series, Vol. 450, pp. 84 and 86. 8. (i) The country of registry allows ownership and/or control of its merchant vessels by noncitizens; (ii) Access to the registry is easy. A ship may usually be registered at a Consul's Office abroad. Equally important, transfer from the registry at the owner's option is not restricted; (iii) Taxes on the income from the ships are not levied locally or are low. A registry fee and an annual fee, based on tonnage, are normally the only charges made. A guarantee or acceptable understanding regarding future freedom from taxation may also be given; (iv) The country of registry is a small power with non-national requirements under any foreseeable circumstances for all the shipping registered (but receipts from very small charges on a large tonnage may produce a substantial effect on its national income and balance of payments); (v) Manning of ships by non-nationals is freely permitted; (vi) The country of registry has neither the power nor the administrative ma- chinery to effectively impose any Government or international regulations, nor has the country the wish or the power to control the companies themselves. United Kingdom Committee of Inquiry into Shipping. Report 51 Cmnd. 4337. London: HMSO, 1970. The Committee became known as the Rochdale Committee after its chair.

  • 9. UNCTAD. Report of the Ad Hoc Intergovernmental Working Group on the Economic Consequences of the Existence or Lack of a Genuine Link between Vessel and Flag of Registry. UNCTAD. TD/B/C.4/177, Annex to the Report, p. I.Geneva: United Nations, Feb- ruary 1978. 10. A. D. Couper, C. J. Walsh, B. A. Stanberry and G. L. Boerne, Voyages of Abuse: Seafarers, Human Rights and International Shipping (London: Pluto Press, 1999), p. 11. Also "Comparative Labour Costs," UNCTAD TD/222/Sup.4, (May 1979).

  • 11. Couper addressed another aspect of the phenomenon stating the existence of globalized shipping with its substandard sector clearly represents unfair competi- tion to decent shipping companies. But it is more socially pervasive than that. Be- cause of competitive pressures, some FOC ships (in the absence of an ITF Blue Certificate) can induce a downward leveling in the conditions of seafarers under all flags by undermining the economic viability of socially responsible owners. Cou- per et al. (n. 10 above), p. 173. 12. See UNCTAD. Review of Maritime Transport 1979. TD/B/C.4/198. Geneva: UNCTAD, May 1980, Chapter II, p. 8 and UNCTAD TD/B/C.4/289 for the 1984 Review, and also Review of Maritime Transport 2001 (n. 1 above). 13. See UNCTAD. The Repercussions of Phasing Out Open Registries. TD/B/C.4/ AC.1/5.Geneva: UNCTAD, September 1979, p. 14, para. 43.

  • 14. UNCTAD. Economics Consequences of the Existence or Lack of a Genuine Link between Vessel and Flag of Registry. TD/B/C.4/ 168. Geneva: UNCTAD, 1977, p. 4.

  • 15. "In spite of the fact that the 'genuine link' requirement appears to have had little influence on State practice since the High Seas Convention came into

  • force, the requirement is repeated in UNCLOS (Art. 91), although the requirement is not linked to the effective exercise of jurisdiction by the flag State, as it is in Article 5 of the High Seas Convention. (The effective exercise of flag State jurisdiction is dealt with by Article 94, discussed later.) There seems little reason for supposing that Article 91 will have any more influence on State practice than Article 5 of the High Seas Convention. The direct attack mounted on flags of convenience in the past few years by UNCTAD may prove more effective." Churchill and Lowe (n. 3 above). 16. See UNCTAD, The Repercussions ofPhasing Out Open Registries (n. 13 above). 17. The term "genuine link" came to the attention of the international com- munity in the 1955 LC J. case, The Nottebohm Case (Liechtenstein v. Guatemala) ICJ Rep.4, 23, (1955) dealing with the nationality of an individual.

  • 18. The Committee on Shipping, which was established in UNCTAD in 1968, was abolished in 1996 due, to a large extent, to the pressure brought on the organiza- tion to stop UNCTAD from work on shipping and related issues, particularly flags of convenience. 19. UNCTAD, TD/B/C.4/177 (n. 9 above). 20. See UNCTAD, Secretariat. Beneficial Ownership of Open Registry Fleets. UNCTAD V. TD/222/Supp.l. Report. Geneva: UNCTAD, May 1979.

  • 21. See UNCTAD. Report of the Ad Hoc Intergoverizmental Working Group on the Economic Consequences of the Existence or Lack of a Genuine Link between Vessel and Flag of Registry, at its Second Session. TD/B/C.4/ 191. Geneva: UNCTAD, January 1980. . 22. "Phasing out" refers to the gradual elimination of the practice of register- ing ships in countries with which the ships have no genuine link. In this context, the existence or lack of a genuine link implies some form of economic linkage. Phasing out does not imply the immediate "abolition" of the shipping registries of countries presently offering open-registry facilities, but rather a gradual tightening of the conditions on which those countries will accept new registrations or retain vessels on their registers, as well as simultaneous restrictions on the establishment of any new open-registry facilities. 23. See UNCTAD. TD/B/C.4/191 (n. 21 above), Annexes II and III.

  • 24. United Nations Convention on Conditions for Registration of Ships, TD/ RS/CONF/23 (1986).

  • 26. Couper et al. (n. 10 above).

  • 27. IMO, International Convention for the Safety of Life at Sea (SOLAS), (1974). Entered into force 25 May 1980 and accessed November 2001 on the World Wide Web: . 28. For a discussion of the roles of flag States, coastal States and port States, see J. Hare, "Flag, coastal and port state control-Closing the net on unseaworthy ships and their unscrupulous owners," Sea Changes 16 (1994): 57.

  • 29. For details of the results of the inspection campaign on oil tankers, see Paris MOU. Campaign highlights detention rate and structural defects. Accessed November 2001 on the World Wide Web: .

  • 30. See AMSA. Port State Control-Focused Inspection Campaign. Accessed November 2001 on the World Wide Web: . 31. See Hare (n. 28 above). 32. The problem of IUU fishing and potential solutions were debated at length at the first meeting of the United Nations Open-ended Informal Consultative Pro- cess on Oceans and the Law of the Sea and the proceedings are contained in the report thereof: Report no. A/55/274. New York: 2000. 33. IMO. International Management Code for the Safe Operation of Ships and for Pollution Prevention (ISM Code) (1993). Entered into force 1 July 1998, ac- cessed November 2001 on the World Wide Web: .

  • 34. ISM Code, Preamble (n. 33 above). 35. The DOC is issued to a company and the SMC to a vessel following initial verification of compliance with the requirements of the ISM Code.

  • 36. United Nations. Oceans and the Law of the Sea Reports of the Secretary General, A/55/61, A/54/429/Corrl, New York. Accessed January 2002 on the World Wide Web: . 37. "The State has sovereign rights over the ships and seafarers as part of its territory. This is now a form of political sophistry in the global industry. The flag State is in control de jure, but only theoretically; in practice, the de facto authority lies with the foreign-based beneficial owner (via the master), who can dictate proce- dures and conditions on board regardless of the flag of the ship" Couper et al. (n. 10 above).

  • 38. The German Advisory Council on Global Change presented a paper at the International Conference on Financing for Development (Monterrey, March 2002) in which it described the use of the high seas for transportation as an example of global open access where the high seas are not subject to the legal sovereignty of any State. It argued in this context for levying user charges to create incentives to reduce shipping-induced marine pollution and to close the prevailing regulatory gap. See WBGU. Special Report, Charging the use of the Global Commons. Berlin: 2002.

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