The nationality of a vessel is a technic to assign any ship or vessel to a certain national legal statute or jurisdiction of a concrete state under whose laws the vessel is registered or licensed. Ships have the nationality of the State whose flag they are entitled to fly and that is why flag state is one of the most important instruments in International Maritime and Admiralty Law.
The procedure of granting the nationality of the ship starts with the recording and registration in the ship´s registry and once it is completed the vessel has the obligation and the right to fly the state flag.
The flag state is the administrative authority which is held responsible for the effective application of all kind regulations on the vessels registered under that flag, such as labour relationships between owner and crew members, technical inspection or survey, certification, classification and safety and environmental prevention issues.
International Public Law has always tried to establish clear rules and regulations on the nationality of the vessels by means of international conventions but not always it has been easy. Already in 1921 the Flag Right Declaration recognised that all states have a right to be a flag state. The Convention on the High Seas from 1958 and the UN Convention on the Law of the Sea from 1982 prescribed that the ships have the nationality of the State that has granted the right to fly his flag by having fulfilled the administrative requirements for its recording in the correspondent national Ships ‘Registry.
Some flag states do not fully comply with their survey and certification responsibilities – f.e. flag-of-convenience – some states use classification societies and use the Port State Controls of foreign-registered ships entering their jurisdiction.
It is important to remark that there must be an authentic and real relationship between vessel and flag state: in that that sense Article 91(1) of the 1982 United Nations Convention on the Law of the Sea, provides that every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag”. There must exist a so called “genuine link” between the State and the ship. Unfortunately neither Convention, defines or states what is meant by a genuine link, nor does either Convention stipulate what consequences (if any) follow where no genuine link exists and so there are two basic aspects admitted by most of the maritime admiralty lawyers for its proof:
- The social and economic aspect related with the nationality of the shipowner, its directors and crew
- The compliance of safe and manning aspects connected with the obligations derived from the jurisdiction, inspection, classification and control of the ship.
Due to that very flexible interpretation of the “genuine link” and as it happens very often in the Public International Law not all the jurisdictions assume their obligations and control of their ships in the same way and with the same criteria ans this has as consequences the so call “substandard” ships un international maritime traffic, some of them well known after important accidents with damages in sea environment and even human lifes.
By Carlos Espinosa – Solicitor & Tax Adviser
+34 627 41 32 01
carlos.espinosa@iurisnauic.com
