International Legal Problems of Establishing a Genuine Link between the Ship and the Flag State: the Triumph of Formalism over Content?

Abstract

The article examines the evolution of an international legal norm that establishes the requirement to ensure a genuine link between a ship and the Flag State. It is a question of exactly what actions the Flag State should take to properly exercise jurisdiction and control on the ship. In particular, the list of measures that are to be taken by the Flag State to ensure effective exercise of its jurisdiction and control over ships fl ying its flag in administrative, technical and social matters is only indicative, not exhaustive. The author notes that the problems of establishing a genuine link are relevant not only in the context of ships, but also artificial installations and structures, and in an even broader context, they relate to the institution of citizenship of individuals. The author conducts a comparative legal analysis of the institutions of citizenship of individuals and the natio nality of ships. While the granting of citizenship to a person depends on the legal fact of birth (filiation) or compliance with a formal procedure defined by law (naturalisation), the relationship between the state and an individual also has some moral component (mutual sense of duty, loyalty). A ship, b eing an immovable thing (res), also has a nationality, but the relationship between such a thing and the state is based on a functional approach. Nevertheless, the similarity of these two categories in modern conditions can be traced: the sale by states of their nationality to foreign citizens (the so -called “investment citizenship”) brings the essence of this institution closer to some marketability traditionally inherent in the nationality of ships (registration of a vessel in offshore (open) registers and the acquisition of a “flag of convenience”).

As a result of the study of the practice of granting nationality to ships, the author identified two trends. According to one trend, for the lawful acquisition of the right to the flag, only the fact of registration of the vessel in the register of the Flag State is sufficient. Various estimates show that in the world about 35 states of open registration provide (sell) a “convenient flag”. Another trend is that in addition to the formal entry into the register, a number of conditions are required to ensure some kind of actual relations between the state and the vessel (a genuine link). The second trend is considered by the author as preferable. The general conclusion is made about the need to assess how strict requirements are imposed on shipowners at the level of the national legislation of the Flag State, including in such matters as ownership, citizenship of shipowners, captain and crew members, accountability, transparency, etc.