Q4: 2014

REASOS FOR GRANTING FLAG TO SHIPS

Amongst the reasons for registration under Public law are:

1. Granting of nationality and the right to fly the national flag

2. Subjections of the vessel of the State‟s jurisdiction for the purpose of safety

regulations, crewing and discipline onboard, pollution matters;

3. Privileges to engage in maritime activities within the territorial waters of the flag state and

4. The right for naval and political protection, as well as the right of the flag state to utilize the ship‟s
services in war situations.

The private law functions are surmised as follows:

1. Providing prima facie evidence of the title and ownership

2. Protecting the title and the ownership rights and

3. Preservation of priorities between individuals holding security interests over the ship, such as
mortgages

REGISTRATION AND THE CONCEPT OF GENUINE LINK

Whether it is open or closed register, second or Bareboat charter register, one requirement for the
registration of ships under the Convention on the High Sea, the UNCLOS and even the UNCROS is the
need for a ship to have a registration under the nationality of a state. The Article 5 of the Convention on
the High Sea, 1958 was the first to insert the provision for a genuine link. It provided that: Each State
shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory,
and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly.

There must exist a genuine link between the State and the ship; in particular, the State must effectively
exercise its jurisdiction and control in administrative, technical and social matters over ships flying its
flag. (emphasis added) The UNCLOS of 1982 repeated something similar by providing that: Every State
shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory,
and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly.
There must exist a genuine link between the State and the ship.

Genuine Link

‘A State cannot claim that the rules [pertaining to the acquisition of nationality] which it has [laid down
by virtue of its internal laws] are entitled to recognition by another State unless it has acted in
conformity with this general aim of making the legal bond of nationality accord with the individual's
genuine connection (link) with the State which assumes the defence of its citizens by means of
protection against other States. According to the practice of States, to arbitral and judicial decisions and
to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the existence of reciprocal
rights and duties.’: Nottebohm Case 1955 I.C.J. Rep ‘In the Flegenheimer Claim, it was considered that a
person who had only one nationality was not to be regarded as disentitled to rely on it against another
state because he had no effective link with the state of nationality but only with a third state.’

Application of Genuine Formula to Ships:

With regard to ships, art. 5 of the Geneva Convention on the High Seas requires that each state shall fix
the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for
the right to fly its flag. Ships have the nationality of the state whose flag they are entitled to fly. There
must exist a genuine link between the State and the ship; in particular, the state must effectively
exercise its jurisdiction and control in administrative, technical and social matters over ships flying its
flag.’ This position has been the subject of considerable criticism: ‘the assumption that the “genuine
link” formula, invented for dealing with people, is capable of immediate application to ships and aircraft.
A provision which might seem to encourage governments to make subjective decisions whether or not
to recognize the nationality of this aircraft or that vessel is clearly open for abuse and for that reason to
grave criticism.

MOROVER,

see chapter nationality

Concept of giving nationality through naturalization and;

Nottebohm’s Case.