2. Freedom of High Seas
• Mare Liberum – Hugo Grotius
• Article 2 of 1958 of Geneva Convention of the
High Seas
• Unrestricted access – even for land-locked states
• Lead to anarchy and abuse
• So, Nationality – jurisdiction over a vessel solely
resides with State to which vessel belongs –
corollary, all vessels using HS possess national
character
• Generally through Registration
3. • If Stateless – can be seized
• Naim Molvan v. Attorney General for Palestine
– Comity of Nations
5. Nationality of Ships
• Earlier – even if not doc/unregistered/nor even
flies its flag
• Other conditions – EG. Britain – built in Britain
• Chartered Mercantile Bank of India v. Netherland
Steam Navigation Co. Ltd (Dutch Regd, Dutch flag,
manned by British)
• 1982 Report – by UNCTAD – 28 countries manned
by, 52 Countries location of the seat of
management
• Current UK – Registration – universal now
6. Documentation
• By competent authorities
• Only allowable evidence for the right to fly
national flag
• Registration – authority + ownership
• Eg: Provisional Patente, Dual Registry,
Bareboat Charter Registration
7. Flag
• Visual evidence and symbol of ship’s
nationality
• Article 91(1)
• When needed and when not?
8. Registration
• Generally, not always, not only a precondition for,
but also the test of vessel’s nationality
• Article 94 mandates
• Effect: Subjection of Jurisdiction, safety
regulation, right to fly national flag, diplomatic
protection and consular assistance, right to naval
protection, rules of war and neutrality
• Depends upon individual state law – Britain – 64
owners, cyprus, liberia – 100 shares
• Freedom of States to fix conditions for
Registration – Article 91
9. • PCA – 1905 – Muscat Dhows Case – GB and
France – Agreement between them
• ITLOS – M/v Saiga – Guinea and St Vincent –
Expiry of Provisional Certificate
• ECJ – Factortame Case
10. Genuine Link
• Power to Limit the categories of vessels to fly
their flags
• Earlier – Britain – then stringent conditions –
reduce in fleet – in 1950s – Panama and
liberia
• Flags of Convenience
• Right to fly a flag is not an unassainable
sovereign prerogative but requires some
connection – Genuine link
11. • Nottebohm Case – Guatemala and
Liechenstein
• Illogical to apply to ships
• IMCO Constitution Advisory Opinion – 1960
• M/V Saiga – ITLOS – article 91 requirement of
genuine link is for enforcement and not to
deny validity of registration
12. But
• 1958 GC on HS
• UNCLOS – Article 91, 94
• 1986 – UN Convn on conditions of Registration
of Ships - Economic and social link –
Participation of nationals of flag state in the
ownership and manning / entity estd or
principal place of business
13. • The UNCTAD’s definition of the genuine link is based on
the output of its ad-hoc Intergovernmental Working
Group, which argued that ‘the following elements are
normally relevant when establishing whether a
genuine link exists between a vessel and its country of
registry: a) the merchant fleet contributes to the
national economy of the state, b) revenues and
expenditure of shipping, as well as purchases and sales
of vessels are treated in the national balance-of-
payment accounts, c) the employment of nationals on
vessels; and the beneficial ownership of the vessel’
(The Netherland International Law Review, 1983, p.
129).
14. Open Registries
• Otherwise Flags of Convenience
• Traditional maritime nations – UK, France, US,
Netherlands and Scandinavian Countries
• UK Fleet in 1950 – 6000 steam and motor
vessels to under 1500 in Jan 2013. Sametime,
Panama from 600 in 1950 to 8,500 in Jan
2013. Ten major open and international
registries accounted for 56.3 percent of world
merchant shipping.
15. • No standard definition
• It can be defined as the flag of any country
allowing the registration of foreign-owned and
foreign-controlled vessels under conditions
which, for whatever the reasons, are
convenient and opportune for the persons
who are registering the vessels.
16. Reasons
• Economic
• Raise funds in International Capital Market.
Eg: Cuba
• Protection by naval forces
• Avoid restrictions and discrimination based on
certain state’s nationality
17.
18.
19. Criticism against
• Safety
• Employment distortion
• Economic including fiscal distortion
• Steps taken by IMO to strengthen jurisdiction
of port state – Voluntary IMO Member States
Audit Scheme (VIMSAS), Cape Town
Agreement, etc.
20. International Registries
• Fight back effort by traditional maritime
countries
• Off-shore or international registries
• International ship registries of Norway,
Germany, Denmark, France, Italy (Registro
Internazionale Navale) and Portugal’s Madeira
Shipping Register
