The Principle of Exclusive Flag State Jurisdiction

2020 ◽  
Vol 5 (2) ◽  
pp. 330-347
Author(s):  
Chris Whomersley
Keyword(s):  
Human Rights ◽  
State Control ◽  
Maritime Safety ◽  
Exclusive Jurisdiction ◽  
Judicial Decisions ◽  
Multiple Challenges ◽  
International Instruments ◽  
Flag State ◽  
Port State Control ◽  
High Seas

Abstract The principle that a ship is subject to the exclusive jurisdiction of the flag State on the high seas is firmly established. But given the prevalence of open registries and the multiple challenges in the maritime sphere, such as maritime safety, the popularity of cruise holidays, the promotion of human rights for those working at sea, and the need to combat iuu fishing, is it any longer tenable to slavishly follow the principle? International instruments and judicial decisions have emphasised the responsibilities of flag States. But States have also increasingly turned to other mechanisms, especially port State control, to deal with the various problems.

THE ASSESSMENT OF MARITIME SAFETY IN THE TURKISH STRAITS BASED ON THE PERFORMANCE OF FLAG STATES IN PORT STATE CONTROL REGIMES

2021 ◽  
Vol 160 (A3) ◽  
Author(s):  
E G Emecen Kara
Keyword(s):  
Risk Level ◽  
Annual Number ◽  
State Control ◽  
Maritime Safety ◽  
Deficiency Indices ◽  
Risk Levels ◽  
Maritime Shipping ◽  
Increased Risk ◽  
Pass Through ◽  
Port State Control

The Turkish Straits are well known for theirs intensive maritime traffic. The average annual number of transit ships passing through this waterway is approximately 50000 and more than 100 flag states pass through it. Moreover, this waterway presents a navigational challenge owing to its inherent geographic and oceanographic characteristics. Also, sub-standard ships navigating in this region lead to an increased risk levels and pose a threat to the marine environment. Over the years, serious maritime accidents occurring in the straits region had resulted in losses of life and constituted environmental disasters. The high risk arising from maritime shipping in these regions had always endangered public health in the vicinity of the Turkish Straits. In this study, maritime safety in the Turkish Straits region had been assessed based on the performance in the Port State Control inspections of flag states passing through this region. For the assessment of the performance of passing flag states, detention and deficiency indices of these flag states were generated for the MOUs. According to these values, the risk level of these flag states had been determined by the weighted risk point methods. Hereby, in addition to the determination of the risk level of flag states, the relationships between the inspections of MOUs had been also discussed on the basis of both the detention and the deficiency rates of flag states.

scholarly journals The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States?

2016 ◽  
Vol 31 (3) ◽  
pp. 499-530 ◽  
Author(s):  
Arron N. Honniball
Keyword(s):  
European Court Of Justice ◽  
Law Of The Sea ◽  
Limiting Factor ◽  
Correct Interpretation ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Limited Scope ◽  
Flag State ◽  
High Seas

The loosely phrased, and undefined, ‘exclusive flag state jurisdiction’ principle of the United Nations Law of the Sea Convention Article 92, has arguably proved to be a red herring for states and academia, in its being raised as a limiting factor to extra-territorial prescription by non-flag states. This has extended to port state jurisdiction discussions, and was raised by analogy for aircraft, before the European Court of Justice, in relation to the limits of jurisdiction over high seas overflight. This paper argues for a limited scope to the term ‘jurisdiction’ in Article 92. It concludes that far from being a limiting factor, the principle of flag state exclusivity is solely concerned with the enforcement jurisdiction of states on the high seas. The increasing use of port state prescriptive jurisdiction, particularly those practices with extra-territorial effect, provides further evidence that this is the correct interpretation.

The Assessment of Maritime Safety in the Turkish Straits Based on the Performance of Flag States in Port State Control Regimes

2018 ◽  
Vol Vol 160 (A3) ◽  
Author(s):  
E G Emecen Kara
Keyword(s):  
Risk Level ◽  
Annual Number ◽  
State Control ◽  
Maritime Safety ◽  
Deficiency Indices ◽  
Risk Levels ◽  
Maritime Shipping ◽  
Increased Risk ◽  
Pass Through ◽  
Port State Control

The Turkish Straits are well known for theirs intensive maritime traffic. The average annual number of transit ships passing through this waterway is approximately 50000 and more than 100 flag states pass through it. Moreover, this waterway presents a navigational challenge owing to its inherent geographic and oceanographic characteristics. Also, sub-standard ships navigating in this region lead to an increased risk levels and pose a threat to the marine environment. Over the years, serious maritime accidents occurring in the straits region had resulted in losses of life and constituted environmental disasters. The high risk arising from maritime shipping in these regions had always endangered public health in the vicinity of the Turkish Straits. In this study, maritime safety in the Turkish Straits region had been assessed based on the performance in the Port State Control inspections of flag states passing through this region. For the assessment of the performance of passing flag states, detention and deficiency indices of these flag states were generated for the MOUs. According to these values, the risk level of these flag states had been determined by the weighted risk point methods. Hereby, in addition to the determination of the risk level of flag states, the relationships between the inspections of MOUs had been also discussed on the basis of both the detention and the deficiency rates of flag states.

scholarly journals Arctic Port State Control as a Tool of Enforcement of the Polar Code

2020 ◽  
Vol 12 (5) ◽  
pp. 160-176 ◽  
Author(s):  
A. A. Todorov
Keyword(s):  
International Law ◽  
Control Mechanism ◽  
Special Kind ◽  
International Standards ◽  
The Arctic ◽  
Control Mechanisms ◽  
State Control ◽  
Polar Code ◽  
Flag State ◽  
Port State Control

Intensification of Arctic shipping requires the regional states to take appropriate measures aimed at mitigation of emerging risks. This relates to ensuring the compliance by vessels with the relevant provisions of international law in the field of safety of navigation and protection of the marine environment. The Polar code, which entered into force in 2017, set the minimum safety and environmental standards for the vessels navigating in the severe waters of the Arctic and the Antarctic. However, under the Code the responsibilty for ensuring compliance with the requirements rests with the administration of the flag state. In general, this reflects the approach of the international law, according to which the flag state is fully responsible for ensuring that a vessel under its flag meets international standards. Nevertheless, polar shipping represents a special kind of activities, which requires special experience and skills, including of the flag state administration carrying out the control. The problem is aggravated by the fact that vessels navigate in the Arctic waters often under a flag of convinience, with states not being able to perform a proper control. One of the potential efficient measures to ensure the compliance with the provisins of the Polar Code by vessels in the Arctic is the development of a regional port state control mechanism. Such instruments are widely used on the regional level and are highly valued by the International Maritime Organization. Implementation of an Arctic port state control mechanism will require development of a vessel inspections system aimed at ensuring compliance with the Polar Code standards, exchange of information between participating states, in particular on non-compliant vessels and weather forecasts in specific areas of the Arctic. An important element of the Arctic mechanism should be engaging of non-arctic states from Asia and Northern Europe, given that states from these regions would be the ports of departure in case of a transit passage through the Arctic Ocean without entering the Arctic coastal states’ ports. An option of extending the mandate and scope of existing port state control mechanisms is also considered as an alternative to creating a new one specifically for the Arctic. However, this approach would entail more difficulties and would not ensure the needed involvment of all parties concerned.

The similarity analysis of Port State Control regimes based on the performance of flag states

2019 ◽  
Vol 234 (2) ◽  
pp. 558-572
Author(s):  
Esma Gül Emecen Kara ◽  
Olgay Okşaş ◽  
Gökhan Kara
Keyword(s):  
Hierarchical Clustering ◽  
Similarity Analysis ◽  
Similarity Matrix ◽  
State Control ◽  
Clustering Method ◽  
Maritime Safety ◽  
Risk Levels ◽  
The World ◽  
Similarity Matrices ◽  
Port State Control

Port State Control inspections play a paramount role in the enhancement of maritime safety. Port State Control regimes were established to ensure sustainability of Port State Control inspections. There are a total of 10 Port State Control regimes. Although all of these Port State Control regimes inspect foreign flag ships calling on their ports in compliance with international maritime safety and pollution regulations, still different implementations exist between these Port State Control regimes. According to the detentions, 73% of flag states have different performances in Port State Control regimes. However, the uniformity in inspections and detentions is quite important in the improvement of the effectiveness of Port State Control inspections in the world. This study aims at assessing the similarities between the Port State Control regimes on the basis of the performance of flag states as regards their Port State Control inspections. The similarities of the Port State Control regimes are analyzed employing the hierarchical clustering method using the detention and deficiency rates similarity matrices, the risk levels similarity matrices of flag states, and the combined similarity matrix. Accordingly, similarities between Port State Control regimes are discussed relative to each other and the Paris memorandum of understanding.

scholarly journals Cumulative Analysis of Port State Control Based on Paris MoU Inspections

2021 ◽  
Vol 10 (1) ◽  
Author(s):  
Firat Bolat ◽  
Selcuk Alpaslan
Keyword(s):  
Pollution Prevention ◽  
Annual Reports ◽  
State Control ◽  
Geographical Regions ◽  
Strategic Measures ◽  
International Conventions ◽  
Financial Losses ◽  
Flag State ◽  
Port State Control

The Port State Control (PSC) was established to control ships entering ports or coastal facilities under its jurisdiction, with inspections by PSC officers aiming to determine whether ships meet safety and pollution prevention requirements and comply with the standards prescribed under the relevant international conventions. Annual reports based on PSC’s inspection reports are published under each memorandum of understanding (MoU) regime. The detailed inspection reports within the scope of the PSC, that contain a variety of information about vessels, and the processing and sharing of such information with other regional MoUs are intended to reduce the number of non-conforming practices in the global maritime system. In addition, PSCs publish lists of black, gray and white (BGW) flags, with the classification depending on the number of ship deficiencies and detentions. The classification is an indication of the quality of national flags. When a ship is found to have deficiencies, the inspection takes longer, and when the deficiencies are serious, the vessel is detained. Detention periods mean financial losses for the operator and loss of reputation for the flag state. Hence, the lists of black, gray and white flags published by the regional regimes are important in terms of reflecting the reputation of different countries. For these purposes, in this study, the inspections and detentions under the Paris MoU in 2019 have been examined and analyzed by countries and regions. Countries are categorized by UN geographical regions. In particular, the goal of the study was to identify the flag countries of the most frequently inspected and detained ships in 2019, as well as to determine the strategic measures developed by the countries and establish their differences and similarities compared to inspections and detentions in 2018.  In addition, the global COVID-19 pandemic in 2019 had a lockdown effect in the maritime domain and a profound effect on society, economy and health worldwide. The result of this study is the prediction of PSC efficiency in terms of the COVID-19 pandemic and the effect of the pandemic on the order of countries in the flag lists.

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