Issues of Flag State Responsibility and Proposed Remedies

Abstract

The international regulatory framework for ships allows for the existence of regulatory inefficient flag States, delegation of statutory functions, and the registration and operation of substandard ships. It is useful to recall these issues before analyzing them and proposing remedies within international law for effective global governance of ships. Issues can arise from the unfettered right of a State to grant its nationality to ships and continue with widespread dereliction by flag States of their duty to survey a ship before registration. The ability provided by international maritime instruments for a flag State to delegate its duties and responsibilities under the LOSC to private organisations, and the associated issues if this delegation does not meet the standards demanded by those instruments, is discussed. The long-established principle in customary, national, and international law of primacy of the flag State as a means of ensuring good order upon ships is called into question, and the starting point is to examine an alternative model for global governance of ships that does not rely upon this precept. The issues that, individually and collectively, contribute to ineffective flag State jurisdiction are identified as grant of nationality, survey and registration of ships, effective implementation of IMO instruments, delegation of flag State duties, global oversight of flag State implementation, enforcement by flag States of IMO instruments, and the status of the IMO Member State voluntary audit scheme. The need is identified for a comprehensive and coordinated approach to be taken by the IMO in deliverance of a suite of measures to collectively ensure that the intent of the LOSC and IMO instruments is met, the regulatory framework is strengthened, and all flag States exercise effective jurisdiction and control over the ships flying their flag.