By:Amogh Dabholkar
To elaborate upon the development of the “flag state” — a term made up of two words of rich and deep heritage and history, it was first used in 1000 B.C. by the Egyptians for the purpose of identity. The flag, ultimately gained recognition as the legal regime of a ship. It was used as a tool of understanding where and how a right relating to a ship can be enforced and who, precisely, would be accountable for actions arising therefrom. It also found formal codification in the High Seas Convention (‘HSC’) in 1958 and ultimately UNCLOS in 1982. The concept of Statehood also, arguably created by Vitoria in De Indis de Iure Belli Relectiones found place in the Treaty of Westphalia (1958) which ended the Thirty Years’ War.[1] The Portugese, in the mid-twentieth century had a monopoly over the Indian Ocean which was attempted to be broken by the Dutch by professing the theory of independent, sovereign states having undisputed, sovereign power and control. The doctrine of Mare Liberum also was seen as a milestone in the progress of freedom of global trade and navigation.[2] Gradually, these concepts came to be recognized as principles of customary international law and like developments led to the foundation of the International Law Commission (ILC). The First Conference of the United Nations on Law of the Sea in 1958 led to the drafting of the High Seas Convention in 1958, the precursor to UNCLOS (1982).
Learn more about Maritime Law with Enhelion’s Law Firm certified course!
Flag State, fundamentally, is the state/nation in which the ship is registered, that state exercising jurisdiction over ships. In other words, the domestic laws of the flag state will apply to the vessel carrying its flag in high seas and in other areas covered exceptionally in international treaties.
The flag state obligations are mentioned under Article 94 of UNCLOS. Article 94(1) extends the duty of flag states to “administrative, technical and social matters”. It also has to maintain a register containing the names and particulars of all ships and ship owners which, consequently, strengthens the genuine link between States and their flags, a concept that I will explain ahead. Article 94(3) says that every ship must maintain and carry out certain measures to ensure safety of life at sea. What these measures precisely are is enumerated under Article 94(4).
Learn more about Maritime Law with Enhelion’s Law Firm certified course!
Moving from flag state obligations to marine pollution, the already-increased concerns over pollution at sea shot up drastically after 1960 owing to 3 incidents — Torrey Canyon in 1967, Amoco Cadiz in 1978 and Exxon Valdez in 1989. Safety of life and the marine environment as a whole came under the radar and the need to protect the marine environment under Article 217 of UNCLOS is a sufficient measure to protect and safeguard the marine environment from pollution caused by vessels. These incidents and the dire need to have a separate law for protecting the oceans and developments in the field of international law led to the creation of the International Convention for Prevention of Marine Pollution from Ships, 1973 which later came to be modified by the Protocol of 1978. (These enactments have been mentioned by the author as they form a jurisdictional and regulatory mechanism extending to all ocean-going vessels and their activities.)
Some of the more relevant and prevailing issues — absence of recognition of fishing operations and fishing vessels under Article 94 or any other provision in the UNCLOS, lack of ownership identification in ship registration, lack of ownership identification and a mere name-sake encapsulation of the genuine link concept under Article 91 — make it even more difficult to come up with a concrete mechanism of ensuring and enforcing genuine links, which is the dire need in the maritime world today.
It has been observed that certain member states, being reluctant to the idea of defining concretely the criteria for establishing a ‘genuine link’ between the ship and its flag, (as it would obliterate the open registries of that nation thereby precluding foreign influx of finances and lead to lesser and lesser registrations) prefer to keep the issue of ship registration ambiguous and at the discretion of member states (which is why these states are known as ‘flags of convenience’). However, the International Tribunal of Law of the Sea (ITLOS) in 1999 in M/V Saiga No. 2 Case (St Vincent and the Grenadines v Guinea)[3] reiterated this view that the ‘genuine link’ concept is to be viewed in the context of effective implementation of the flag State obligations and not for determining the criteria of when it would be apt for States to allow ships to fly its flag. After considering Article 5 of the 1958 HSC, the deliberations of the ILC and UNCLOS I on the subject, and Article 94 of UNCLOS 1982, ITLOS stated:
“The purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.”[4]
THE ENRICA LEXIE CASE: THE JUSTNESS IN THE AWARD
Dr Kate Lewins, a specialist in international maritime law at Murdoch University, submitted:
“The result, more often than not, is that there might be multiple [countries] entitled to claim jurisdiction over a particular criminal act, based on the flag and location of the ship and the nationalities of the people involved. [Which country will take the lead] may well end up being one negotiated through diplomatic channels, largely based on pragmatism.”[5]
Eight years after two Italian marines shot down two innocent fishermen on their fishing vessel ‘St. Antony’, several enquiries arose. One of the prominent issues that came up was the one with respect to jurisdiction. Who would have the rightful jurisdiction to try the two Italian marines who, guising the two fishermen as pirates, had killed them? After a flood of newspaper articles and other media reports, a few side issues that were up for consideration were — where did the incident take place? Was it the high seas as claimed by Italy or was it the exclusive economic zone of India as contended by India? Did the International Tribunal of Law of the Sea have jurisdiction to entertain the dispute between the two countries? Did Italy breach India’s rights and particularly, its right to navigate on its own EEZ? All these questions have been put to rest by the Award passed by the five-member tribunal referred to by ITLOS. In this sub-space, we shall have a look at the contentions put forth by both the countries at loggerheads before the arbitral tribunal and the decision of the esteemed tribunal.
After the dispute was referred to by the esteemed five-member tribunal referred to by ITLOS, it decided the matter with all competence and justness. Before the tribunal some of the key contentions of Italy were as follows:
- By acting in consonance with certain provisions of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 and with the Ministry of Home Affairs Notification No. S.O. 671(E) dated 27 August 1981, India had acted in breach of Articles 33(1), 56(1), 56(2), 58(2), 87(1)(a) and 89 of UNCLOS;
- By forcefully directing Enrica Lexia to Kerela coast, it had acted in violation of Italy’s freedom of navigation viz. Article 87(1)(a) and Italy’s exclusive jurisdiction over the commercial vessel in breach of Article 92 of UNCLOS and Article 300 read with Article 100 of UNCLOS as it had abused its right to seek Italy’s cooperation in the repression of piracy;
- By instituting penal proceedings against the marines of Italian nationality, India was in breach of Article 97(1) of UNCLOS;
- By ordering arrest and detention of Enrica Lexie, India was in breach of Article 97(3) of UNCLOS.
India, on the other hand contested all these submissions and said that by throwing open fire at its non-commercial vessel ‘St. Antony’ and killing two Indian fishermen on board, Italy violated:
- India’s sovereign rights under Article 56 of UNCLOS;
- India’s rights to explore and navigate in its EEZ under Article 58(3);
- India’s right and freedom of navigation under Articles 87 and 90;
- India’s right to have its EEZ maintained for peaceful reasons and conditions under Article 88 of UNCLOS.
After considering the submissions of both the countries, the arbitral tribunal passed its award. The award, primarily, by a 4:1 vote ratio, said that it has the appropriate jurisdiction to entertain the dispute and that it found India’s counter-claims admissible, that India has not violated Articles 87(1)(a) and 92 para 1, 97 paras 1 & 3, 100 and consequently 300. It, in a somewhat blow to India’s teeth, held that the Italian marines were entitled to immunity. But this was the only point against India’s interests as it went further on to hold that Italy, having committed to initiate criminal proceedings against the marines, India should cease all criminal proceedings initiated against them, that Italy, by breaching Articles 87 and 90, has wrongfully interfered with the navigation of ‘St. Antony’ and finally, that India is entitled to payment of compensation for loss of life, physical harm, material damage to property and moral harm suffered by captain and other crew members of ‘St. Antony’ which, by the nature of the offence, cannot be repaired through compensation.[6]
If not anything, the compensation awarded to the families may counter the grief they have borne by the sudden and sad demise of our two countrymen.
CONCLUSION: THE WAY AHEAD
Coming to the more recent issues and their solutions, while a lot can be done to curb marine pollution, polar issues and piracy a lot is being done for its eradication and prevention which deserves attention and elaboration. Talking about marine pollution, the jurisdictional authority with regards to marine environmental pollution is the International Maritime Organization (IMO) — a UN specialized body/agency. Some of the programmes initiated by the United Nations are: Regional Seas Programme, Global Programme of Action for Protection of the Marine Environment from Land-based Activities. The United Nations Economic, Social and Cultural Organization (UNESCO) through Intergovernance Oceonographic Commission co-ordinates programmes on marine research, observation systems, hazard mitigation and better managing ocean and coastal states. MARPOL, 1973 as modified by the Protocol of 1978 and 1954 International Convention for the Prevention of Pollution of the Sea by Oil. For the purpose of ensuring safety and regulation of travel and governance between the two poles, the UN has entered The International Code for Ships Operating in Polar Waters (Polar Code).[7]
While environmental pollution and polar-centric regulatory activities are significantly relevant in the list of UN activities, Piracy takes the cake. In recent years, there has been a surge in piracy off the coast of Somalia and in the Gulf of Guinea. The consequences of piracy are: loss of life, physical harm or hostage-taking of seafarers, significant disruptions to commerce and navigation, financial losses to shipowners, increased insurance premiums and security costs, increased costs to consumers and producers, and damage to the marine environment.
To curb and prevent piracy, the IMO and UN have adopted additional resolutions to complement rules in UNCLOS, the UNODC through its Global Maritime Crime Programme combats transnational organized crime of the coast of Horn of Africa and Gulf of Guinea. Some of the suggestions the author would like to add to the credible and laudable activities of the UN are: to formulate a special mechanism to carry out result-oriented, speedy and efficacious trials, imprisonment of piracy suspects as well as developing maritime enforcement capabilities through facilitation of training programmes. A range of activities can be undertaken by the State authorities — from piracy prosecution models, prisoner transfers and training of members in the judicial system of the Atlantic and Indian Ocean to full time mentoring to coast guards and police units in Somalia, Kenya and Ghana.[8]
Learn more about Maritime Law with Enhelion’s Law Firm certified course!
[1] Publ. 1696, ed. Simon ,James Crawford, “The Creation of States in International Law”, 2nd Edition, Clarendon Press, Oxford p.9.
[2] Law of the Sea, Oceanic Resources, Jones p.9.
[3] Nivedita M. Hosanee, Defining the genuine link, THE RIGHT OF THE FLAG STATE TO SAIL SHIPS AND THE GENUINE LINK CONCEPT, (23rd September, 2020, 8:20 PM),
http://www.un.org/Depts/los/Judg_E.htm.
[4] Ibid.
[5] Dr Kate Lewins, Submission 1, p. 2 (26th September, 8:07 PM).
[6] Source: Award between India and Italy: https://docs.pca-cpa.org/2020/07/a6b16920-award-extracts-for-advance-publication-on-2-july-2020.pdf (25th September, 8:30 PM)
[7] United Nations, Protection of marine environment and biodiversity, Oceans and the Law of the Sea (26th September, 9:37 PM) https://www.un.org/en/sections/issues-depth/oceans-and-law-sea/.
[8] Ibid.