Dr. Judith Spiegel
Assistant Professor of Public International Law
Kuwait International Law School (KILAW)

Abstract:

The primary responsibility for ships rests with the vessel’s flag state. Thus, every merchant ship needs to be registered under the flag of a particular state under whose regulatory control it consequently falls. The flag state is, for instance, responsible for the inspection of the vessel and its seaworthiness, ensures safety and pollution prevention, and certifies the crew. As rights and obligations under international law are mainly imposed on to vessels via the flag states, they are a crucial factor in determining the enforceability of international standards.
The problem is: there is no international rule prescribing how a ship gets its nationality. There is no rule stating that – for example – the nationality of the ship must be the same as that of the owner. The latter can freely choose the most convenient flag for his vessel(s), avoiding stringent safety, environmental and labour conditions imposed by established maritime countries. This practice of ‘flags of convenience’ often involves states that offer ‘benefits’ such as lower taxes or wages, lower environmental standards or the right for shipowners not to reveal their identity when a vessel is in trouble have become popular flag states.
What is more, owners do not have to stick to a once-chosen flag, they can change it anytime they want. This flag-hopping allows them for example to bring a ship at the end of its economic life under a flag of a state that is not too stringent with the environmental and human rights situation of notorious ship-breaking yards in Southeast Asia.
Attempts to stop the practice of flags of convenience is often met with the ‘sovereignty argument’ where States claim it is their sovereign right to allow ships to register with them. But why would they be so keen on registering ships? Because it is good business. Countries such as Liberia or Panama have built a lucrative ship registration industry (often, ironically, not run from the country itself but from offices in London or New York). Isn’t it anno 2021 time to have as closer look at this practice, which allows for numerous breaches of environmental and human rights law?
Is the use of flags of convenience stronger than ever or is it slowly but surely eroded of most of its advantages? The legal framework in which flags of convenience operate will be discussed, followed by a brief overview of the grievances that exist against flags of convenience. Then possible remedies, ranging from abolishing open registries to a more targeted approach will be dealt with, and finally a conclusion will be drawn as to what the current state of affairs is.

Key words: Flags of convenience, Human rights, maritime law, Seafarers labour law, Ship breaking, Sovereignty.

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