Year

2012

Degree Name

Doctor of Philosophy

Department

Faculty of Law

Abstract

Increasingly, more and more States (and territories) are entertaining the prospects of establishing ship registries as a venture for economic development. Many of these States (and territories) are often small developing States (and territories) that lack the independent capacity to administer their own registries and the attending affairs of their flags, and are solely motivated in such venture for economic reasons. More often than not, such registries are open to the registration of foreign owned vessels, and as such, are internationally characterized as ‘open registries’ or ‘flags of convenience’ (as opposed to ‘national’ or ‘closed’ registries. Although ‘open registries’ or ‘flags of convenience’ have traditionally been described as havens for sub-standard shipping, the trend today appears to indicate that the open registries have become major players in the industry, with the top three biggest registries in terms of GRT, being open registries, or so called ‘flags of convenience.’

International law imposes upon all States who grant nationality to ships a duty to exercise effective jurisdiction and control over the administrative, technical, and social affairs of vessels sailing under the flags. To enforce such duty international law has adopted a number of standards, rules and regulations that States must enforce in order to ensure that ships flying their flags were sailing in compliance with these standards, rules and regulations, to ensure there is safety at sea, and to prevent the pollution of the marine environment. In the contemporary setting however, international law has also added new dimensions to the duty of flag States. In the aftermath of the 2001 terrorist attacks, the international community adopted a raft of security measures under the SOLAS 1974 Regulations. A number of these measures imposed on flag States a number of important duties. Then there is also the emerging international legal framework on the conservation and management of fish stocks, which again, imposes upon flag States a number of specific duties and obligations.

As a flag State, the Marshall Islands is under obligation to carry out its duties as such in the manner required under international law. The purpose of the thesis was therefore to analyse the performance of the Marshall Islands as a flag State under international law. The research was premised on a number of key questions. First, what are the duties of the Marshall Islands as a flag State, under international law? Second, is the Marshall Islands discharging these duties effectively? Finally (if the Marshall Islands has not been able to discharge its flag State duties effectively) why has the Marshall Islands not been able to discharge its flag State duties effectively?

The analysis has shown that performance of the Marshall Islands as a flag State is a mixed one, with the administration suffering serious maritime incidents over a period of seven years, beginning in 1998. These incidents resulted in the loss of property, and in some cases, the loss of lives. It also appeared that post 2004, the registry appeared to have taken steps in the right direction, avoiding serious maritime incidents, and enjoying ‘white flag’ status under the Paris and Tokyo MOUs, and maintaining annual enrolment under the US Coast Guard Qualship 21 Program. The performance of the Marshall Islands under the maritime security framework also appears to be on par, particularly given the participation of experts and organizations engaged by the Maritime Administrator.

The only area of slight concern is found in the performance of the Marshall Islands under the emerging international legal framework on the conservation and management of fish stocks. The issue concerns the registration of fishing vessels and the issuance of fishing licenses. In the current national framework, the registration of fishing vessels and the issuance of fishing licenses are functions vested in two different entities which are under no legislative direction to coordinate their functions. Furthermore, although the Marshall Islands has been flagging fishing vessels, the Marshall Islands had only enacted legislation to enforce its flag State duties in the last few months, and it would take another few months to reflect upon whether the enactment of flag State duties under national law has enabled the Marshall Islands to improve on its performance as a flag State.

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Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong.