OP-ED: UNCLOS, Flag States, IMO and Accountability

OP-ED

23 May 2021

London. UK. Captain Michael Lloyd discusses the role of the UN Convention on the Law of the Sea 1982 (UNCLOS), flag States roles and responsibilities and the actions of the International Maritime Organisation (IMO).

THE UNITED NATIONS CONVENTION OF THE LAW OF THE SEA AND THE FLAG STATES

Captain Michael Lloyd, RD**, MNM, CMMar, FNI.

It is apparent to anyone who deals with Maritime affairs that as the flag states registrations grow, even extending to nations who have little experience of marine affairs or have marine administrations able to support their legal obligations, that not only is the United Nations convention on the Law of the Sea being ignored by many such states but this also affects the human rights of the crews and passengers on their registered ships.

The following is offered in support of this assertion.

UNCLOS ARTICLE 94. Duties of the flag State.

Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.

In particular, every State shall:

(a) maintain a register of ships containing the names and particulars of

Ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and

(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.

Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regards, inter alia, to:

(a) the construction, equipment and seaworthiness of ships;

(b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments;

(c) the use of signals, the maintenance of communications and the prevention of collisions.

  1. Such measures shall include those necessary to ensure:

(a) that each ship, before registration and thereafter, at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship

(b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship;

(c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.

In taking the measures called for in paragraphs 3 and 4, each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.

A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.

Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.

BACKGROUND

The International Law Commission (ILC) was developed under the UN Charter as from 1947. The ILC held its first session in 1949, having as one mandates the codification of the Law of the Sea. This set the basis for the First United Nations Conference on the Law of the Sea.

One outcome of UNCLOS I was the adoption of the High Seas Convention 1958 whereby the “rules of the road” with respect to, inter alia nationality and registration of ships, the rights and obligations of the flag States over ships registered under its flag, were first laid down. These issues would be revisited throughout the discussions held under UNCLOS III up to the final provisions as currently laid down under the 1982 UNCLOS.

According to Article 90 of 1982 UNCLOS, which is the same in substance as Article 4 of the 1958 HSC:

Every State, whether coastal or land locked, has the right to sail ships flying its flag on the high seas.

From this right of Flag States to sail ships on the high seas is the prerogative of the flag States to exercise certain rights and duties upon those ships.

Hence, the flag State is sovereign in its decision to grant its nationality to ships. In the case of Lauritzen v Larsen, the US Supreme Court offers a comprehensive summary of the law of the flag:

‘Each State under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby accepting responsibility for it and gaining authority over it. Nationality is evidenced to the world by the ship’s papers and flag. The Unites States has firmly and successfully maintained that the regularity and validity of a registration can be questioned only by the registering State.’

However, this right is not an absolute one. Indeed, this right to permit ships to fly under its flag has been qualified, as stated under Article 5 of the 1958 HSC:

‘Each 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. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.’

The jurisdiction is “in respect of administrative, technical and social matters concerning the ship,” vide Article 94 (1) Those are not so much matters “concerning the ship” as concerning the activities of the ship, or more accurately, the persons on board.

When the flag State agrees to allow ships to fly its flag and thereby gives its nationality to such ships, it must also, at the same time, endorse the responsibility that is corollary to the prerogative of sailing ships on the high seas and having the exclusive jurisdiction on them. The flag State must demonstrate its connection with the ships – the genuine link – by exercising effective jurisdiction and control in administrative, technical and social matters over ships flying its flag.

When a State assumes legal authority over a ship by grant of its flag, the State also assumes certain obligations.

The “genuine link” requirement proceeds directly from this principle. If the flag State is to perform its international duties as required by its ratification of UNCLOS, it must possess and exercise effective jurisdiction and control over its vessels. Unfortunately, this “genuine link” concept has become a concept of the law of the sea and of international law pertaining to ship registration, without any definition having been – on purpose – been assigned to it.

In 1999 the International Tribunal for the Law of the Sea (ITLOS) delivered the judgment in the M/V Saiga No. 2 Case (St Vincent and the Grenadines v Guinea) and it was therein reaffirmed that the genuine link was to be viewed in the context of the effective exercise of jurisdiction and control and not for determining whether a State is apt to allow ships to fly its flag.

The International Tribunal of the Law of the Sea (ITLOS), after considering Article 5 of the 1958 HSC, the deliberations of the ILC and UNCLOS I on the subject, and Article 94 of UNCLOS 1982, Stated that:

‘The purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.’

Article 94 (2) (b) requires the flag State to assume jurisdiction not only over ships flying its flag but also over the master, officers and crew of such ships. It can also be argued, a fortiori, that Article 94 (2) (b) also applies to all persons on board a ship, legally, such as passengers on a passenger vessel, or unlawfully, as in the instance of stowaways.

RESPONSIBILITY FOR UNCLOS

There are three organisations concerned with the UN Law of the Sea.

  1. The Division of Ocean Affairs and Law of the Sea at the UN (DOALOS)
  2. The International Maritime Organisation (IMO)
  3. The International Law of the Sea Tribunal (ITLOS).

To establish which organisation, the IMO or the UN has responsibility to govern the United Nations Law of the Sea, we wrote to both DOALOS and the IMO asking who had this responsibility and, primarily, who had jurisdiction over the Flag States ensuring their implementation of the Law of the Sea convention.

Response from the IMO

 ‘The UN Convention on the Law of the Sea provides the legal impetus and basis for many, if not all the IMO treaties. However, no IMO treaty is tied to UNCLOS; each are independent treaty instruments of their own accord. Neither the Division of Oceans of the Law of the Sea nor the IMO has oversight or enforcement authority for UNCLOS, or any IMO treaty. Neither body has an operational arm. Instead, implementation of UNCLOS and IMO instruments are the responsibility of the contracting States themselves, either through Articles 5 and 26 “pact sunt servanda” of the Vienna Convention on the Law of Treaties, 1969, the terms of the treaty itself, (see, e.g., Article 1 of SOLAS 74), or both. In short, it is for the Contracting States to meet their treaty obligations; neither the DOALOS nor the IMO can force them to do so.’ 

Response from the Division of Ocean Affairs and Law of the Sea, UN

        ‘As a general rule, secretariats of intergovernmental organisations provide services to and assist States which are members of these organisations. As far as this Division is concerned, Member States of the United Nations have not conferred on it “the responsibility of ensuring the compliance of the Flag States with their responsibilities under UNCLOS.’

DOALOS/OLA

From this can be seen that there is no department either at the UN or the IMO responsible for the implementation or Jurisdiction of the UN convention of the Law of the Sea. (UNCLOS).

THE VIENNA CONVENTION

The 1969 Vienna convention on the Law of Treaties has several provisions dealing with Treaty compliance and domestication.

ARTICLE 26

 Under Article 26 ‘Every treaty in force is binding upon parties to it and must be performed by them in good faith,’ (pact sunt servanda)

I concur with the above that the onus of application rests with the flag state. However;

ARTICLE 6

CAPACITY OF STATES TO CONCLUDE TREATIES

Every State possesses capacity to conclude treaties.

Many Flag States, in particular the small island registries, have registries of hundreds and in some cases over a thousand ships including vast fleets of cruise vessels. These states are completely unable to fulfil their obligations, especially to the human rights of those on board as required by UNCLOS.

ARTICLE 62. FUNDAMENTAL CHANGE OF CIRCUMSTANCES

  1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and obligations still to be performed under the treaty.

Since the ratification of UNCLOS by a number of these island states, the circumstances have completely changed. For example, the number of ships under the Bahamian Flag has increased from single figures to now over 1000 with over 100 of those being cruise ships. The addition of the largest cruise fleet in the world now means that the Bahamas flag State is responsible for the social and judicial care of not just the crews, but the additional hundreds of thousands of passengers on these ships. The Bahamian state clearly cannot possibly fulfil their obligations therefore article 6 (a) can be invoked. The change of circumstances will invoke Article 62 of the Vienna treaty, and this then releases them from the Vienna convention and makes them liable to arbitration by the UNCLOS Tribunal.

An equally pertinent fact is the human rights record of a number of these states show that they fall well below that required for a state committed to fulfilling human rights on their registered ships under article 94 of UNCLOS.

The following are extracts from one such recent report.

“The most serious human rights problems were mistreatment of irregular migrants (compounded by problems in processing them); an inefficient judicial system, resulting in trial delays and an increase in retaliatory crime against both witnesses and alleged perpetrators; and the perception of impunity on the part of law enforcement and immigration officials accused of using excessive force.”

Other human rights problems included substandard detention conditions; corruption; violence and discrimination against women; sexual abuse of children; and discrimination based on ethnic descent, sexual orientation, or HIV status.

Country Reports on Human Rights Practices for 2015, United States Department of State • Bureau of Democracy, Human Rights and Labor.

These contraventions places those on board their registered ships with no protection UNCLOS is formulated to support. It also contradicts the responsibility that is corollary to the prerogative of sailing ships on the high seas and having the exclusive jurisdiction on them.

The constitution of this state includes the following;

Whereas every person in The State is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all the following, namely

(a) life, liberty, security of the person and the protection of the law.

Therefore All ships registered in such state are protected by the Nations Constitution however in common with most flag states, Their registered ships ships do not carry any information regarding the common law of the State and there is no attempt to give those on board the protection of the National Law.

Again in common with most flag states, there is no trained police force to deal with marine crime.

IMO Resolution A912 (22) Annex 1 States that a Flag State should;

  • Provide for the enforcement of its national laws, including the associated investigative and penalty processes.
  • Take appropriate action against ships flying its flag that fail to comply with applicable requirements.
  • Ensure the availability of sufficient personnel with maritime and technical expertise to carry out its flag state responsibilities including;

The development and enforcement of necessary national laws, the reporting of casualties and incidents as required by the respective instruments to which the flag state is a party.

Most Flag States have not tried to comply with this resolution. Their national laws are not enforced on their ships, and they do not ensure that there are sufficient responsible personnel to enforce their laws on their ships.

IMO Member State Audit Scheme

Then there is the IMO Member State audit scheme. The scheme is a move in the right direction, however, as with all audits, much depends on those making such an audit and the open disclosure of the audit finding, or failing that a league table of the Flag States. If the intention is that they make an accurate audit, then those employed for such an audit must be free of any financial interests in the ship, the owners and the Flag State and declare the same. How can the IMO impose such a declaration when the Flag State delegates to the IMO refuse to do the same? While classification societies would seem to be an obvious choice for auditing, we must remember that many of the Class surveyors have little shipboard experience and the societies are not always free of such financial involvement. If the IMO established a separate Audit department under the auspices of the organisation, this would improve the audit strategy and have the trust of those at sea.

Conclusion

The rapid expansion of these flag registrations with the comparative recent inclusion of growing large fleets of cruise vessels places these States in breach of UNCLOS and their own conventions and constitutions on human rights, thus depriving the millions of crew and passengers of their human rights to just and appropriate judicial rights while on board their registered ships,

Many of these states are also in clear breach of Article 62 of the Vienna Convention, which the IMO states prevents any jurisdiction by the IMO of this State. This then removes the protection afforded by this Convention.

If these states cannot fulfil the obligations under their constitutions on board their registered vessels, there is no guarantee of the security or protection of the law on board their vessels.

It is a matter of concern that both the UN and the IMO declare they have no jurisdiction of UNCLOS. If this remains the case, regardless of the constant breaches and failures of many flag states to fulfil their obligations, then UNCLOS becomes a futile convention, and from this we must question the purpose and capabilities of the IMO.

ENDS.

NB: OP-ED. The opinions expressed are those of the author and do not necessarily reflect those of Human Rights at Sea.

 

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