B.A.LL.B.

(Integrated Law Degree Course)

Public International Law(IV Semester)

Rights And Duties Of States On High Seas With Special Focus On Indian Law

Assignment Submission as the Partial Fulfillment of Periodic Evaluation

Of Public International Law

Submission by: Submitted to:

Mr. Arman khan chayal Ms. Rachi Singh

Roll No: 16RU11003 Faculty of International Law

 ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Ms. Rachi
Singh for inspiring me and guiding me during the course of this work and also for her
cooperation and guidance from time to time during the course of this work on the topic.

Place: Neemrana
Date of Submission: 12.03.2018
INTRODUCTION

The freedom of the high seas is one of the fundamental principles of public international law.
The 1958 Geneva Convention on the High Seas, Article 2, provides that “The high seas being
open to all nations, no State may validly purport to subject any part of them to its sovereignty”. 1
Such freedom means the unrestricted access of vessels belonging to all nations, including land-
locked States, to all parts of the sea that are not included in the territorial sea or internal waters of
a State. However, in order that the principle of unrestricted access to the high seas should not
lead to a situation of anarchy and abuse, international law lays down rules providing a
framework for the exercise of that freedom and one of such rules is the concept of flag states.

UNCLOS III

The 1982 United Nations Convention on the Laws of the Sea (UNCLOS) is an international
agreement that resulted from the third UN Conference on the Law of Sea (UNCLOS III). This
convention came into force as ratification of an earlier United Nations convention i.e. the Geneva
Convention of 1958. The rights and responsibilities of the nations in their use of world’s oceans
and managing marine resources, the freedom of Navigation, the concept of flag states and its
responsibilities are amongst the important features of the convention. It enshrines the notion that
all problems of the ocean space are closely interrelated and needs to be addressed as a whole.
“Possibly the most significant legal instrument of this century” is how the UN secretary general
described the treaty after its signing. Turning to the concept of flag states, there are many
definitions of Flag state, Art. 91 of UNCLOS defines it as “the State in whose territory a ship is
registered”. Under international law, for a ship to sail on the high sea, it must be registered to a
state, conferred with nationality of that state and fly the flag of not more than one state.2 A
sovereign state that confers a ship with nationality and authorizes it to fly its flag is what is
referred to as a flag state. Ascribing nationality to ships is one of the most important means by
which public order is maintained at sea, as well as indicating what rights a ship enjoys and what
obligations it is subject to. Nationality also indicates which state is responsible in international
law for a vessel on the high sea. Reference could be made to the statement of the court in the
case; US v. JHO (2008) "The law of the flag doctrine.... Provides that a merchant ship is part of
the territory of the country whose flag she flies and that actions aboard are subject to the laws of
the flag state.3

1
Dr. S.K. Kapoor International Law And Human Rights (Twenty First Edition),Pg 285,286
2
Retrieve From http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm
3
Retrieve From http://irep.iium.edu.my/26281/1/Balancing_The_Rights_Of_The_Coastal_State.pdf
Historical background
Between the end of the 15th century up until the 17th century various powers claimed
sovereignty over parts of the sea. In 1609, Dutch jurist and philosopy Hugo Grotius wrote what
is considered the foundation of international legal doctrine regarding the seas and oceans – Mare
Liberum, a Latin title that translates to "freedom of the seas". The Grotian concept of "freedom
of the sea" was only accepted after a century long debate between Grotius' ideas and John
Selden's.

While it is generally assumed that Grotius first propounded the principle of freedom of the seas,
countries in the Indian Ocean and other Asian seas accepted the right of unobstructed navigation
long before Grotius wrote his De Jure Praedae (On the Law of Spoils) in the year of 1604.
Previously, in the 16th century, Spanish theologian Francisco de Vitoria postulated the idea of
freedom of the seas in a more rudimentary fashion under the principles of jus gentium.

During World War II, nations started to expand and claim many resources and water territories
all over their surrounding coasts. There were four international treaties meticulously drafted in
the late 1950s and onto the 1970s, but the issues were not resolved between nations until 1982
when the United Nations Convention on the Law of the Sea was introduced.

UNCLOS is a Law of the Sea treaty: an agreement of rights and responsibilities of nations and
their use of the world’s ocean with guidelines of trade, environment, and the management of
marine and open seas resources. UNCLOS replaced the four international treaties drafted in the
late 1950s through 1970s. 167 countries and the European Union have joined the Convention till
now.4

4
Retrieve From https://en.wikipedia.org/wiki/Freedom_of_the_seas
THE ROLE, RIGHTS AND RESPONSIBILITY OF FLAG STATE

Freedom of the seas (Latin: mare liberum,) is a principle in the international law and sea. It
stresses freedom to navigate the oceans. It also disapproves of war fought in water. It also serves
trade opportunities to all nations so that they can get what they need. India is also come in the
ambit of International Law, so all these things are regulated on India also. India is vastly depend
on globalijation and trading.

Trade opportunities

From the Vikings to the European, Central Asia, Africa and North and South America, trade has
served an important role in history, and has been a key factor of a growing economy. Trade
transfers the ownership of goods from one person or entity to another by getting a product or
service in exchange from the buyer. When a ship sets sail, there may be many ports waiting for it
to bring goods from all over the world for trade and sale. Free trade opening up markets to
foreign suppliers increases competition. Without free trade, domestic companies may have
enjoyed monopolies or oligopolies that enabled them to keep prices well above marginal costs.
Trade liberalization will undermine that market power.5

The World Trade Organization states that "The ocean is a big part of the free trade happening
around the world. Every day we see silk imported from China, fruits from Mexico, spices from
India, chocolate from Africa and many more goods in our home were imported from another
country. The ocean made it possible for many countries to put their cargoes on to ships and
transfer them across the ocean. Hundreds of nations joined the World Trade Organization. With
goods to be traded from one nation to another through the transportation on various size vessels
from coast to coast, trade promoted more economic value to goods where goods and services are
produced to support the supply and demand of the participants in the organization.6

The Merchant Marine Act of 1920, also known as the Jones Act (46 USC § 883) is a maritime
law that controls coastal trade within the United States and determines which ships may lawfully
engage in that trade and the rules under which they must operate.7 The act is in place to protect
jobs for US citizens and its people working at U.S. ports, and on U.S. vessels. Many vessels
around the globe sail under many different flags, and have different crews from different parts of
the world where the pay rate is much lower than the U.S. The Jones Act protects the Americans'
jobs and restricts coastwise transportation of passengers. Additionally restricts the use of foreign
vessels to commercially catch or transport fish in U.S. waters.

5
Retrieve From https://www.economist.com/node/605144
6
Retrieve From https://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr00_e.htm
7
Retrieve From http://www.maritimelawcenter.com/html/the_jones_act.html
 The right of states to confer nationality to ships comes with a number of responsibilities. These
duties are provided for within UNCLOS and in several international conventions.

This report is on the flag State duties laid down under Article 94 of UNCLOS 1982. However,
other articles in the convention also confer duties on Flag states. Article 194(3) and 216 provides
flag state responsibility with respect to pollution of the marine environment.

i. Article 94(1) - General Statement of Duties This section makes explicit the matters on
which flag states should exercise jurisdiction. It provides that every state be required to
"effectively exercise its jurisdiction and control in administrative, technical and social
matters over ships flying its flag". One could say that this paragraph attempts to
strengthen the concept of genuine link provided for in article 91 concerning the
nationality of a ship, by indicating matters over which the state should exercise
jurisdiction. It also complements article 92(1) of UNCLOS to the effect that, on the high
sea or exceptional cases provided for in international treaties, a ship is subject to the
exclusive jurisdiction and control of its flag state.8

ii. Article 94(2) - Maintain Register and Assume Jurisdiction Flag states are required to
maintain a register of ships flying its flag and to assume jurisdiction under its internal
laws over each ship, its masters as well as crew in administrative, technical and social
matters concerning the ship. It is important to note that, beyond the requirement that the
register should contain the names of the ships and particulars, no further requirements
were specifically mention within this provision. Article 11 of UNCLOS, on the other
hand, sets out in considerable detail, the information that should be included in a register
of ships.

iii. Article 94(3) and (4) - Construction, Equipment and Seaworthiness of ships Here, flag
states are imposed with the obligation to ensure safety with regard to the construction,
equipment, seaworthiness of ships, qualified crew and communication maintenance.
Article 217(2) of UNCLOS extends the scope of article 94(3); it requires the flag State to
ensure that its vessels are prohibited from sailing until they can proceed to sea in
compliance with the requirements of international rules and standards with regard to
design, construction and equipment of vessels. Article 94(4) provides that measures be
taken by flag States must include those necessary to ensure "that each ship, before
registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of
ships, and has on board such charts, nautical publications and navigational equipment
and instruments as are appropriate for the safe navigation of the ship". It also stresses
that ship officers and crew should possess appropriate qualifications, and adhere to
international regulations to guarantee safety and prevent pollution and collisions.
Furthermore, International law empowers states to issue their flags to an individual
merchant ship or fishing vessel. As part of their responsibility to other states, each state
has the obligation to confirm seaworthiness and by such, do adequate due diligence

8
Retrieve From https://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr00_e.htm
 before issuing registration and may deny or revoke registration to “problem ships”/repeat
offenders.9

iv. Article 94(5) - Conformity With International Regulations; Similarly, with regards to
article 94(3) and (4), subsection 5 of the same article stresses that flag state are required
to conform to “generally accepted” international regulations, procedures and practices
and to take any steps which may be necessary to secure their observation. As put by
Churchill and Lowe the emphasis on the above phrase” internationally accepted
regulations and practices” is dictated by practical necessity. While each state remains
free to apply its own legal requirements as regards safety, there would be chaos if these
requirements widely varied or where incompatible. This provision is vague to an extent
because the regulation and procedures to be adopted are not specified. It also does not
give a guidance as to what legislation could be classified as “generally accepted”.
Thus one could go ahead to understand it to mean rules and standards established
through competent international organizations or general diplomatic conferences to
bridge the reluctant of states to impose strict safety legislations due to competition in the
industry. Thus, a state might be bound to standards it did not specifically adopt.
Examples of such rules, procedures and standards include SOLAS, MARPOL etc. Flag
states by this article, are under obligation to take any steps necessary to ensure
observance of generally accepted international regulations and procedures. Including
those related to safety, marine pollution and the maintenance of radio communication.

v. Article 94(6) – This provision makes it possible for any other State, which has grounds
to believe that the flag State has not exercised proper jurisdiction and control with
respect to a ship, to report the facts to the flag State. When the flag State receives such a
report, it is to investigate the matter and, if necessary, take remedial actions. While this
provision calls for good faith on the part of flag states, it also re-emphasizes the
exclusive jurisdiction of flag states over vessels flying its flag on the high sea.

vi. Article 94(7) – Inquiry into Marine Casualties. This provision imposes on states the
obligation to carry out inquires before qualified people/person into every maritime
accidents on the high sea. This applies to incidents that cause loss of life or serious injury
to nationals of another State, or serious damage to ships or installations of another State
or to the marine environment. The flag State and the other State concerned are to
cooperate in the conduct of any such inquiry. A few flag States consistently investigate
casualties involving ships registered under their flag in a professional and objective way.
Many flag States however, appear either unable or unwilling to carry out such an
investigation. Some may not have the technical infrastructure and competence to
perform the detailed investigation required. Others may be unwilling to dig into the
operational practices of a ship owner who has a significant number of ships registered
under the flag in question. Whatever the reason(s), the result is the same: no, or
inadequate investigation is performed. The IMO in its bid to encourage cooperation and
recognition of mutual interests of States in marine casualty and marine incident

9
Retrieve From
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/hosanee_0910_mauritio
us.pdf
investigation, in 2008 adopted a new Code of International Standards and Recommended
Practices for Safety Investigation into a Marine Casualty or marine Incident, (hereafter
the Casualty Investigation Code). The objective of the code is stated as being, “to
facilitate objective marine safety investigations for the benefit of flag States, coastal
States, the IMO and the shipping industry in general”.
Conclusions

The objective of this project work has been to examine the different facets of flag State duties, as
primarily laid down under Article 94 of UNCLOS 1982, while bearing in mind that the list of duties
laid down under the Article is not meant to be exhaustive. The primacy of flag State jurisdiction on
vessels plying its flag has been examined and the weaknesses in the regulatory framework allowing
the registration and operation of substandard ships have been identified. The implications of the
unfettered right of a State to grant its nationality to ships, the ability of the flag States to delegate its
duties and responsibilities to private organisations and the associated issues which crop up when this
delegation does not meet the standards demanded by the international conventions have also been
examined together with the measures being taken by the international community to enhance
satisfactory enforcement of flag State duties as per Article 94 of UNCLOS 1982.