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Maritime Forum

TOPIC: UNCLOS

UNCLOS 20 Oct 2011 12:45 #37

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Question:-What are the UNCLOS provisions concerning ship’s flag and nationality? In observing the provisions of UNCLOS, what are the Duties of the Flag state and how it are they enforced?
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Re: UNCLOS 20 Oct 2011 12:47 #38

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UNCLOS stands for ‘United Nations Convention on Laws of the Sea’ This is an evolution of the ‘Law of Sea’ Convention-i.c. the means for ensuring freedom of navigation at sea. This lead to the need for establishing an International Law to determine the status of sea areas and the governance or the interrelationship of countries using the world’s oceans.
This was basically an attempt to codify the International law of the sea.
It is a treaty document of 446 articles, grouped under 17 heads and 8 annexes.
It was an outcome of the 1982 UNCLOS and came into force internationally on
16th November 1994.
Sets the width of a territorial sea as 12 naytical miles, with the Conbtiguo0us
Zone as 24 nautical miles from the base line.
Also defines ‘innocent passage’ through territorial seas and ‘transit passage through international seas. Defines Archipelagic states and allows for passage through archipelagic waters.
Establishes EEZ as extending to 200 nautical miles from the base line.
Defines the legal status of being on the ‘High seas’ and establishes regulations for the control of marine pollution.
Provision concerning ship’s flag state and Nationality part VII –High Seas
This is the section which deals with the nationality of a ship, the Flag it files, the duties of the Flag states and the enforcement of flag state control (PSC –as we know it).
- Article – 90 – Every State, whether coastal or land locked, has the Right to have it’s ships flying it’s flag on the high seas.
- Article - 91 – Every State must fix condition on ships for the grant of Nationality, for the Registration and for the Right to fly its Flag.
- Ships have the Nationality of the State whose flag they are entitled to fly
- State must issue to ships flying it’s flag, documents to that effect (Article 91)
- There must be a genuine link between the State and the Ship (Article 91)
- Ships must sail under the flag of only one state and are subject to the jurisdiction of the Flag state on the High seas. (Article 92).
- The permission for change of flag is given only in the case of transfer of Ownership or change of Registry (Article 92),
- It also deems that a ship, which uses two or more flags, according to convenience, will be treated as a ship with No nationality (Article 92),
Article 93 – gives provision for ships to fly the flag of the United Nations (UN)or its agencies and the IAEA (International Atomic Energy Agency).
Duties of Flag State
Article 94- makes clear that the Right of owing a ship (flying the flag of a country) makes the ship a part of the state’s national property. It also entails Duties and Responsibilities. This article also gives the grounds for interaction between the PSC and the flag state and their co-operation.
The salient points are reproduced as follow:-
1. Every state shall effectively exercise its jurisdiction and control in “Administrative, Technical and Social matters” over all ships flying it’s flag. Every state shall.
2. Every state shall
a) Maintain a Register of ships flying it’s flag, which contains the names and particulars of ships, excluding the ones with exermptio0ns under international regulation on account of their small sizes.
b) Assure jurisdiction, under its internal law, on ships flying it’s flag and master, officers and crew, in respect of administrative, technical and social matters concerning the ship.
3. Every state shall take such measures, for ships flying it’s flag, as may be necessary to ensure safety at sea with regards to :-
a) Construction, equipment and sea worthiness of the ship
b) The manning of ship, labor conditions and the training of the crew, taking into account applicable international instruments, (e.g.STCW95)
c) The use of signals, maintenance of communication and prevention of collision.
4) Such measures shall include those necessary to ensure :-
a) that each ship, before Registration and thereafter, is Surveyed by a qualified Surveyor of ship and has onboard such charts, nautical publication, navigational equipment and instruments, as are appropriate for the safe navigation of the ship
b) that each ship is under the charge of a master / officer who possess appropriate qualifications, in particular in seamanship, navigation, communication and marine engineering, and crew possess appropriate qualification and umber for the type, size and machinery of the ship.
c) That master, officers and (to the extent appropriate)crew are fully conversant with and required to observe the applicable international conventions :SOLAS, MARPOL, COLREG, GMDSS etc.
5) In taking the measure, called in Para 3 & 4 above, each State is required to conform, to generally accepted International regulations, procedures and practices and to take any steps which may be necessary to secure their observance.
6) State which has clear grounds to believe that proper jurisdiction and control, with respect to a ship, have not been exercised, may report the facts to the flag state Upon receiving such report, flag state may investigate the matter and, if necessary, take appropriate actions to remedy the situation.
7) Every state must cause an inquiry to be held, by a qualified person/s, in every case of marine causality or incident of navigational error on the High seas, involving ship flying its flag and causing loss of life or serious injury to any national or those of another state or serious damage to ships or installation of another state or to the marine environment. Every flag state must co-operate with other flag states in the conduct of the enquiry .
ENFORCEMENT BY FLAGSTATE:-
Article 217 makes the following provision:-
i) Every State must ensure, that vessels flying their flag must comply with the International laws, such as UNCLOS, for the protection of the marine environment and must adopt regulations to ensure their compliance.
ii) State must take appropriate measures to ensure that all vessels flying their flag are prohibited from sailing, unless they are complying with the international rules and standards referred to above, including requirements relating to design, construction, equipment and manning.
iii) State must ensure all vessels flying their flag are carrying on board all Certificates (required by) as per international requirements and must ensure periodical inspection of ships, to ensure conformity of these Certificates with actual conditions on board. Any International Certificate must be accepted by all states as evidence of the condition of the vessel and treated as on par with the Certificate issued by them. Any ship may not be detained unless there are clear grounds to believe, that the condition of the vessel does not correspond to the particulars of the Certificate.
iv) If a vessel commits a violation of international rules and standards, the flag state must provide for immediate investigation.
v) Flag states, conducting an investigation of violation, may request assistance of any other States, whose co-operation could be useful in clarifying the circumstances. States must Endeavour to meet appropriate requests of any other state.
vi) State must, at written request of any state, investigate any violation committed by the vessel flying it’s flag. If satisfied that sufficient evidence are available, proceedings to brought to brought to bear against the vessel, in respect of alleged violation, in accordance with national law.
vii) States must be prompt in responding to any request for information by any other Flag state. It must also inform the competent international organization, about action being taken and the outcome. Such information must be freely available to all Flag states.
viii) Flag state must fix adequate penalty for any vessel which violates the law. The penalty must be adequate in severity, to discourage violation.
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