An analysis of flag state responsibility from an historical perspective: delegation or derogation?

Author

J MansellFollow

Year

2007

Degree Name

Doctor of Philosophy (PhD)

Department

Centre for Maritime Policy - Faculty of Law

Recommended Citation

Mansell, John Norman Keith, An analysis of flag state responsibility from an historical perspective: delegation or derogation? PhD thesis, Centre for Maritime Policy, University of Wollongong, 2007. http://ro.uow.edu.au/theses/742

Abstract

The starting point for this analysis of flag State responsibilities is to recall the historical development of the extant regulatory regime for jurisdiction and control of ships; from the genesis of ship registration in the thirteenth century, through to the development of the nation State and concept of the flag State, on to the gradual evolution of national law for control of ships, and eventual codification of this law into international law in the twentieth century. The United Nations Convention on the Law of the Sea (LOSC) provides for a State to grant its nationality to ships, to fix the conditions for the grant of its nationality, to register ships in its territory, and for those ships to fly its flag. With these rights come flag State responsibilities. The flag State has a duty to effectively exercise its jurisdiction and control in administrative, technical, social and environmental protection matters over ships flying its flag. The flag State can undertake these duties or has the ability to entrust them to private organizations. A regulatory framework in international maritime law has been established that allows delegation of flag State responsibilities and recognizes the customary role of Classification Societies in inspection, survey and certification of ships. The LOSC also requires that a ship be surveyed before registration. As the flag State has the right to fix the conditions for the grant of its nationality it can choose to not require this survey for reasons of expediency and easy entry of ships onto its register. The regulatory framework for jurisdiction and control of ships provides opportunities for the establishment of regulatory inefficient flag States who have the right in law to delegate, or derogate, all of their statutory functions to equally inefficient private organizations. Such flag States are attractive to shipowners seeking minimum compliance costs and regulatory oversight. Issues of flag State responsibility and performance are analysed in depth to test the hypothesis that the extant regulatory framework is adequate in law but, due to inadequate implementation, monitoring and enforcement, does not deliver the intent of the LOSC that flag States exercise effective jurisdiction and control over ships flying their flag. For the purpose of analysis in this thesis flag States are categorized into National, Quasi-National, International and Pseudo-National according to their degree of regulatory efficiency. It is concluded that the regulatory framework is fundamentally sound but that it requires effective implementation and enforcement through strengthening in law, supported by sanctions upon recalcitrant flag States, and a greater degree of global oversight and monitoring of flag State performance by the International Maritime Organization.