Jurisdiction of the Flag State

chapter 4 Jurisdiction of the Flag State

The 1982 Law of the Sea Convention (LOS Convention) and numerous other international treaties specify obligations of the flag state with respect to administrative, technical, social, and safety matters for ships flying its flag. Section A of this chapter highlights these obligations. We review the generally recognized rule of a flag state’s exclusive jurisdiction over its vessels and the events that occur on them in Section B. Sections C through F then explore specific exceptions to this rule. Port states and coastal states may also exer- cise jurisdiction over a flag state’s vessels in some situations, particularly with respect to vessels in a state’s ports, internal waters, or territorial sea, as dis- cussed in Chapters 7 (Internal Waters) and 8 (Territorial Sea).

A Flag State Obligations

Article 94(1) of the LOS Convention requires every state to “effectively exer- cise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” Under LOS Convention Articles 94(3) and (4), each state must adopt measures to ensure the safety at sea of vessels flying its flag. Article 94 is not the only provision in the LOS Convention that specifies flag state obligations: Articles 194(3)(b) and 217 concern flag state obligations with respect to pollution of the marine environment. In enacting safety measures, the flag state must “conform to generally accepted international regulations, procedures and practices.” LOS Convention, Article 94(5). Similarly, with regard to pollution control measures, the flag state must ensure that its vessels comply with “applicable international rules and standards, established through the competent international organization or general diplomatic conference.” Id., Article 217(1). The LOS Convention provides a broad legal framework establishing a flag state’s obligations; these obligations are to be implemented through a flag state’s participation in or observance of additional international agreements providing uniform and comprehensive regulations governing the safety, administrative, technical, and social aspects of a ship’s operation.

1 International Maritime Organization Conventions and “Generally Accepted” International Regulations

The International Maritime Organization (IMO), a U.N. specialized agency, was formed to facilitate the adoption of uniform standards in matters concerning maritime safety, navigation, and prevention and control of marine pollution from ships. As of September 1, 2013, it was comprised of 170 member states. The IMO has adopted numerous international agreements affecting the obligations of flag states, three of the most important of which are described below.

INTERNATIONAL CONVENTION FOR THE SAFETY OF LIFE AT SEA (SOLAS), 1974 http://www.imo.org (as of Sept. 1, 2013)

The SOLAS Convention in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth in 1960. The 1974 version [which entered into force May 25, 1980] includes the tacit acceptance procedure—which provides that an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from an agreed number of Parties. As a result the 1974 Convention has been updated and amended on numerous occasions. . . . The main objective of the SOLAS Convention is to specify minimum standards for the construction, equipment and operation of ships, compatible with their safety. Flag States are responsible for ensuring that ships under their flag comply with its requirements, and a number of certificates are prescribed in the Convention as proof that this has been done. Control provisions also allow Contracting Governments to inspect ships of other Contracting States if there are clear grounds for believing that the ship and its equipment do not sub- stantially comply with the requirements of the Convention—this procedure is known as port State control. The current SOLAS Convention includes Articles setting out general obligations, amendment procedure and so on, followed by an Annex divided into 12 Chapters. [The Annex chapters address in detail ship construction, fire protection, life saving arrangements, radio communications, navigation safety services, cargo carriage, carriage of dangerous goods, nuclear- powered ships, safety management, special high-speed craft safety measures, maritime security, and special requirements for bulk carriers.]