Non-flag States Research Articles

Armed attacks against merchant vessels: ‘Looking behind the Flag’ to find the victim State

Abstract This article argues that a non-flag State can be considered the victim of an armed attack against one or more merchant vessels and thus entitled to the right of self-defence under Article 51 of the Charter of the United Nations. This argument gains momentum in light of the recent Houthi attacks in the Red Sea against ships with diverse nationalities. Traditionally, attacks on merchant vessels have been considered attacks on the flag State due to the latter’s economic interests in the vessels. However, given the prevalence of open ship registries, today over 70 per cent of world tonnage is registered under foreign flags. Consequently, the jus ad bellum concerning armed attacks against merchant vessels necessitates a reassessment. The first section of this article revisits the traditional understanding that only the flag State can be considered the victim of an armed attack on merchant vessels. Hinting at the popularization of open registries, this article then clarifies how the laws of the sea and naval warfare have dealt with this phenomenon. It is remarked that ‘looking behind the flag’, especially in naval warfare, has become inevitable. This realization is then transposed to the jus ad bellum. In doing so, this article examines key references concerning armed attacks against merchant vessel: the Oil Platforms judgment by the International Court of Justice and the 1974 Definition of Aggression. This article also engages with directly relevant State practice. Ultimately, this article demonstrates that these references support the need for the reassessment advanced here.

The Interpretation and Application of the Freedom of Navigation and Flag State Jurisdiction in the M/V “Norstar” and the M/T “San Padre Pio” Cases

Abstract The M/V “Norstar” and the M/T “San Padre Pio” cases raise important questions regarding the interpretation and application of the freedom of navigation and the principle of exclusive flag State jurisdiction, namely if the latter prohibits the exercise of prescriptive jurisdiction on the high seas by non-flag States. One of the exceptional aspects of the M/V “Norstar” case is the Joint Dissenting Opinion (JDO) by seven judges underlining a distinctive view regarding the interpretation of the freedom of navigation and the principle of exclusive flag State jurisdiction. Subsequent to the M/V “Norstar” case, the M/T “San Padre Pio” case was submitted and bares relevance for the clarification on some of the key matters addressed in the Judgment and the JDO in the M/V “Norstar” case. This article highlights the different views of the Judgment and the JDO and examines the relation with the M/T “San Padre Pio” case.

Modern Slavery and the Law of the Sea

Abstract Practices of modern slavery across maritime borders, such as human trafficking and forced labour in the maritime and fishing industries, are often unregulated and uncontrolled due to legal uncertainties and the lack of political will. This article discusses possibilities to re-interpret the United Nations Convention on the Law of the Sea to give a complementary role to non-flag States in controlling modern slavery practices at sea. In particular, it analyses the question as to whether a non-flag State may take prescriptive and enforcement measures against a foreign vessel suspected of modern slavery on the high seas.

Cruise Ships, COVID-19, and Port/Flag State Obligations

The COVID-19 pandemic has exposed additional weaknesses of the already troubling “flag of convenience” practices under international law; the passenger cruise industry was especially impacted. Most cruise ships under distress from the pandemic received little aid from their flag states, and many vessels were denied entry into ports of nonflag states (regardless of whether an outbreak had been documented onboard). States and vessels lacked clear guidance around their rights and responsibilities under the extraordinary circumstances, resulting in a less efficient response to a dangerous situation. This article reviews the current status of international law concerning port and flag state duties to distressed vessels, and suggests the creation of flag state medical liability to help clarify decision-making during future health crises.

Dispute Settlement in the Law of the Sea: Survey for 2019

Abstract This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the UN Convention on the Law of the Sea and outside the framework of the Convention. It covers developments during 2019. The most significant developments concerned the International Tribunal for the Law of the Sea (ITLOS). It delivered its judgment in the M/V Norstar (Panama v. Italy) case (concerning bunkering on the high seas and the scope of non-flag State prescriptive jurisdiction over vessels); made two provisional orders – in the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russia) and San Padre Pio (Switzerland v. Nigeria) cases, both concerned with the alleged unlawful seizure and detention of ships; and was seized of two new cases. In addition, an arbitral tribunal made an award of reparation in the Duzgit Integrity (Malta v. São Tomé and Príncipe) case.

The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States?

The loosely phrased, and undefined, ‘exclusive flag state jurisdiction’ principle of the United Nations Law of the Sea Convention Article 92, has arguably proved to be a red herring for states and academia, in its being raised as a limiting factor to extra-territorial prescription by non-flag states. This has extended to port state jurisdiction discussions, and was raised by analogy for aircraft, before the European Court of Justice, in relation to the limits of jurisdiction over high seas overflight. This paper argues for a limited scope to the term ‘jurisdiction’ in Article 92. It concludes that far from being a limiting factor, the principle of flag state exclusivity is solely concerned with the enforcement jurisdiction of states on the high seas. The increasing use of port state prescriptive jurisdiction, particularly those practices with extra-territorial effect, provides further evidence that this is the correct interpretation.

Realization of high seas enforcement by non-flag states in WCPFC: A signal for enhanced cooperative enforcement in fisheries management

This paper aims to explore how the non-flag state high seas boarding and inspection (HSBI) scheme has been implemented in real settings, as well as to examine its effectiveness in enforcement and potential impacts on fisheries management. The methods of document analysis and semi-structured interviews were employed. The preliminary results showed that the scheme has been practically realized in the WCPFC, indicating that an exception to the high seas flag state control has been established for the sake of fisheries management. The results also revealed that the scheme has the potential to complement the lack of on-sight enforcement capacity of fishing states, enhance cooperative enforcement on the high seas, and implicitly elevate the level of compliance with relevant management measures by vessels. This paper also identified a potential loophole of the scheme, namely whether it has the necessary “teeth” to deal with the inaction of the flag states regarding their fishing vessels which have had foreign inspectors detect the violation of rules. To amend this loophole, devising a mechanism for allowing the WCPFC to warn or punish the flag states for such inaction in order to improve compliance, has been recommended. In addition, further studies on the effectiveness of the scheme and the link between the scheme and fishers’ behaviors in complying with management measures were also recommended.

Duties of Flag States to Implement and Enforce International Standards and Regulations – And Measures to Counter Their Failure to Do So

The article investigates the duties of flag States to implement and enforce international standards and regulations. Two related but still distinct topis are treated: General duties of flag States (applicable especially to merchant vessels) and duties concerning fishing vessels. After scrutinising the reasons for inadequate flag State implementation and enforcement, the author discusses possible counter measures of non-flag States. The article notably evaluates systems of Port State Control and possibilities of non-flag States to enforce RFMO regulations and other fishing vessel responsibilities against non-member vessels. Finally, possible consequences against the flag State itself as opposed to merely its vessels are examined and if it is permissible to non-recognise a vessel’s flag in case the flag State consistently violates its duties to control its vessels.

Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts

Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts

Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts

Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforcement in the High Seas Fisheries and Disarmament Contexts

To Our Children's Children's Children: From Promoting to Achieving Compliance in High Seas Fisheries

AbstractRegional fisheries management organisations (RFMOs) have adopted a range of measures aimed at promoting compliance with the conservation and management measures they adopt and at deterring IUU fishing. However, enforcement of those measures continues to be problematic. This article reviews current compliance and enforcement measures, and discusses their shortcomings. It then examines the legal basis for the adoption by RFMOs of an expanded range of measures aimed at strengthening their enforcement capability and provides practical suggestions as to the possible content of those new measures. Particular attention is paid to the modus operandi of international co-operation and the emerging practice of non-flag state enforcement.

Countermeasures and High Seas Fisheries Enforcement

Despite adoption by Regional Fisheries Organisations of numerous measures aimed at deterring, preventing and eliminating illegal, unreported and unregulated fishing, IUU fishing by vessels flagged in both member and non-member states continues. None of the reciprocal boarding and inspection schemes adopted by RFOs provides for a positive right of arrest, detention or prosecution by a non-flag state in the event the flag states fails or refuses to take such action itself. The law of countermeasures may, however, provide legal justification for at-sea measures including boarding, inspection and possibly arrest and prosecution by members of RFOs against non-flag vessels of both member and non-member states. Although by nature an exceptional remedy, where the criteria discussed in this article are fulfilled, countermeasures in the form of at-sea enforcement may be an effective, and legal, tool in the fight against IUU fishing.

The Vital Role of Non-Flag State Actors in the Pursuit of Safer Shipping

While responsibility for shipping safety is the prime responsibility of the flag states, port state control initiatives and industry self-regulation that has evolved in reaction to them have driven international progress toward the elimination of substandard shipping over the past 20 years. Since 1982, unilateral and multilateral efforts to combat substandard shipping have grown in number and in scope. Despite attempts to improve "flag state implementation" in recent years, the reality is that improved compliance with international standards is being accomplished primarily as a result of the pressure applied on the industry by responsible port states and by the reactive, and in some cases parallel, efforts of industry leaders. This article retraces the history of international shipping safety developments, focusing particularly on the evolution of industry risk management tools, the growth in world-wide shipping in the 20th century, and the increasingly significant roles being played by non?flag state actors since 1970. This background provides context for an analysis of the port state control initiatives of the past two decades and the port state/industry links that are critical to the future of international shipping safety.