Flag State Jurisdiction and the Regulation of Flags of Convenience
Assignment Brief
Robert Gordon University Law School
|
Session : |
2020/21 |
Semester : |
1 |
|
Module Number : |
BSM 789 |
|
Module Title : |
|
|
CW (e.g. C1, C2, C3) : |
C1 |
|
Submission date: |
11 December 2020 |
|
Module Co-ord : |
|
|
Feedback return : |
12 January 2021 |
Coursework must be submitted via the electronic drop-box for the module on Campus Moodle. Academic writing & plagiarism
Before submitting assignments, you should check through it to ensure that:
-
all material identified as originally from a previously published source has been properly attributed by the inclusion of an appropriate reference in the text;
-
direct quotations are marked as such (using “quotation marks” at the beginning and end of the selected text), and
-
a citation has been included in the list of references at the end of the text.
This is really important in order to demonstrate that you composed your work in your own words and that you complied with the academic standard on referencing your source material (OSCOLA). Thereby, you ensure that you avoid what the university terms as ‘plagiarism’:
Plagiarism is the practice of presenting the thoughts, writings or other output of another or others as original, without acknowledgement of their source(s). All material used to support a piece of work, whether a printed publication or from electronic media, should be appropriately identified and referenced and should not normally be copied directly unless as an acknowledged quote. Text translated into the words of the individual student should in all cases acknowledge the source.
Additionally, the Law School interprets ‘self-plagiarism’ as re-using in a coursework your own work that has previously been submitted for assessment in this or another course. It is not permitted, and this will be reflected in the mark awarded.
If you are struggling with composing your coursework, or academic writing in general, there is a lot of assistance available by the Student Advice and Support Team. For further information please see http://www.rgu.ac.uk/student-life/student-advice-and-support/study-support/academic-writing
Note on penalties, extension and deferral requests
You must include a statement on the front cover of your work that gives the word count. Adhering to the word count for coursework is an important element of the assessment criteria, as it acts as a parameter applicable for all students.
Any student who uses 10% more words than the word count will have a marking penalty applied. The penalty will be to move the work down by way of a deduction of 5% points from their mark (not 5% of the mark they have achieved). Thus work that was 65% will be reduced to 60% (not 61.75%). If the deduction takes the work below a grading threshold (i.e. A to B; B to C etc.) then the grade for that component will reflect the lower mark. Work which far exceeds the word count (that is, is far in excess of 10%) will not meet the assessment criteria and this will be reflected in the mark awarded.
Poor grammar and spelling, as well as poor referencing, can impede communication/the academic quality of your discussion, and may negatively impact on your overall mark.
Please note that coursework submitted late without prior extension is failed. If you, for genuine reasons, are unable to meet the submission date, please note the following procedures, as per the university’s Fit to Sit Policy, found at: http://www.rgu.ac.uk/about/academic-affairs/quality-assurance-and-regulations/academic- regulations-student-forms/academic-regulations-student-forms/ Please make sure to follow the instructions at the web address above.
PG students should submit their extension or deferral requests to the following email address: studentrequestabspg@rgu.ac.uk
BSM789 MARITIME LAW (2020)
COURSEWORK QUESTION
Component 1 (80%)
Critically examine the concept and regulation of Flag State Jurisdiction (including the ‘genuine link between ship and state’, and ‘flags of convenience’) and comment on a recent court case/incident where it was necessary for the port state to exercise jurisdiction over a foreign-flagged vessel.
Additionally, illustrate your answer with reference to at least two relevant court cases/examples. Support your coursework with relevant sources (i.e. international and national law, and academic and industry sources).
Please Note:
The coursework should follow the RGU guidelines, i.e. adhere to the word limit, have a clear structure and should be professionally presented. The referencing (footnotes and bibliography) should ideally be based on the OSCOLA Referencing guide/ but Harvard Referencing is also allowed.
- Submission Date: 11 December 2020 (1pm) - (3000 words)
Please Note:
-
Submit an electronic copy of your Coursework on or before 11 December 2020 (1pm) in the Coursework (Turnitin) Dropbox on campus Moodle.
-
Indicate your student number and word count on the front page.
-
Your coursework should be supported with practical examples, relevant industry and academic sources.
-
The coursework should follow the RGU guidelines (i.e. adhere to the word limit, have a clear structure and should be professionally presented).
-
Proof read your work before submission.
-
The referencing system (Harvard/OSCOLA, etc.) including footnotes, references, bibliography, page numbers, etc. should be consistent and professionally presented.
-
The word limit is 3000 words (not below/above 10%).
Sample Answer
Flag State Jurisdiction and the Regulation of Flags of Convenience
Introduction
The concept of flag state jurisdiction lies at the heart of international maritime law. It represents the authority that a state exercises over ships that are registered under its flag, regardless of where those ships operate. This system, formalised under the United Nations Convention on the Law of the Sea (UNCLOS) 1982, has been both essential and controversial. While it allows for a clear regulatory mechanism, the rise of “flags of convenience” has challenged its effectiveness. This essay critically examines the concept and regulation of flag state jurisdiction, focusing on the requirement of a “genuine link” between a ship and its flag state, the proliferation of flags of convenience, and how port states have increasingly intervened when flag states fail to uphold international standards. To illustrate the discussion, the essay analyses two key case studies: the M/V Saiga (No.2) case before the International Tribunal for the Law of the Sea (ITLOS) and the MT Prestige oil spill case, which triggered complex jurisdictional disputes and significant environmental consequences.
The Concept of Flag State Jurisdiction
Flag state jurisdiction is rooted in the principle that every vessel must sail under the flag of a single state, which exercises exclusive jurisdiction over that ship in international waters. This is codified in Article 92 of UNCLOS (1982), which stipulates that ships shall sail under the flag of one state only and are subject to its exclusive jurisdiction on the high seas. The rationale behind this rule is to ensure order and accountability in maritime activities, as a ship must be subject to some legal authority.
According to Churchill and Lowe (2022), this framework was developed to prevent “stateless” vessels and to establish a direct legal relationship between the vessel and its flag state. The flag state is responsible for enforcing international standards concerning safety, labour, environmental protection, and crew welfare. In practice, however, the effectiveness of this system depends on the flag state’s capacity and willingness to implement these obligations.
The International Maritime Organization (IMO) plays a central role in setting these international standards through conventions such as the International Convention for the Safety of Life at Sea (SOLAS, 1974), the MARPOL Convention (1973/78) on pollution prevention, and the STCW Convention (1978) governing seafarer training and certification. Flag states that ratify these conventions are obliged to ensure that ships under their flags comply with the relevant standards. Yet, compliance varies widely among states, leading to the emergence of the “flags of convenience” problem.
The “Genuine Link” and Its Legal Challenges
One of the most debated aspects of flag state jurisdiction is the concept of the “genuine link” between the ship and the state whose flag it flies. This concept is codified in Article 91(1) of UNCLOS, which requires that there be a “genuine link between the State and the ship.” The purpose of this provision is to prevent abuse of flag registration by ensuring that the flag state has an actual connection to, and control over, its ships.
In practice, however, the “genuine link” has proven difficult to enforce. The International Court of Justice (ICJ) first addressed this issue in the Nottebohm Case (Liechtenstein v Guatemala, 1955), establishing the broader idea that nationality should be based on a meaningful connection. Although this case concerned individual nationality rather than ships, it influenced maritime jurisprudence. Later, the M/V Saiga (No.2) (ITLOS, 1999) case clarified that the absence of a genuine link does not invalidate the nationality of a ship once it is lawfully registered under a state’s flag. The Tribunal held that the genuine link was primarily intended to ensure effective implementation of the flag state’s responsibilities, not as a condition for the validity of registration.
This interpretation has allowed the proliferation of open registries, commonly known as flags of convenience (FOC), where states offer registration services to foreign shipowners with minimal regulatory oversight. States such as Panama, Liberia, and the Marshall Islands have become major flag states despite limited control over their ships. According to Stopford (2018), these open registries are often motivated by economic incentives, offering lower registration fees, tax advantages, and less stringent safety inspections. While they contribute to competitive shipping markets, they also undermine regulatory compliance and accountability.
Continued...
