03. UNCLOS Legal Framework

8/11/2019 03. UNCLOS Legal Framework

1/15

16/12/2013

1

1

UNCLOS and relevant regulationsin the international maritimelegislation

Seminar on Flag State Implementation

PRESENTATION

Content

UNCLOSFLAG STATEsprimary authority

Flag States DutiesFlag StateEnforcement

2

FLAG STATEs

Rights

Cooperation


2/15

16/12/2013

2

3

UNCLOS

Opened forsignature on10/12/1982 andentered into forceon 16/11/1994

Constitution

of theoceans

Rights/Duties

of States in thedifferentmaritime zones

Flag States

primaryauthority overits vessels

UNCLOS (Cont.)Membership

Ratified

Signed, but not yet ratified

Not signed

4

162 Parties, including the EU

+ all EU/EEA Member States


3/15

16/12/2013

3

Flag State primary authority

Jurisdiction of a Flag State

In the beggining: predominant role of the Flag State

Flagging out - Flag of convinience

Genuine link concept

Oxford Dictionnary Genuine (adj.) - truly what something is said to be;authentic.

Origin:

late 16th century (in the sense 'natural orproper'): from Latin genuinus, from genu'knee' (with reference to the Roman custom ofa father acknowledging paternity of a newbornchild by placing it on his knee); laterassociated with genus 'birth, race, stock'

5

6

There must be a genuine link between the Stateand the ship

No definition of Genuine Link in UNCLOS Some registers allow the registration of ships

without real link to the flag

Attempt to adopt international rules : UNCTADRegistration Convention 1986not in force

UNCLOS Art. 94.1: Every

State shall effectivelyexercise its jurisdiction

and control inadministrative, technical,and social matters over

ships flying its flag


4/15

16/12/2013

4

2010 UN General Assembly Resolution onOceans and Law of the Sea A/RES/65/37

123

Urges flag States without an effective maritime administration andappropriate legal frameworks to establish or enhance thenecessary infrastructure, legislative and enforcement capabilitiesto ensure effective compliance with, and implementation andenforcement of their responsibilities under international law.

And until such action is taken, the Resolution urges flag State toconsider declining the granting of the right to fly their flag to new

vessels, suspending their registry or not opening a registry, and totake all measures consistent with international law necessary toprevent the operation of substandard vessels.

7

Flag States rights under UNCLOS (Cont.)

Right (and obligation) to set the conditions for registration

Art. 91 (1). Every state shall fix the conditionsfor thegrant of its nationality to ships, for the registration ofships in its territory and for the right to fly its flag

(2) Every State shall issue to ships to which it has grantedthe right to fly its flag documents to this effect

Art. 92(1). Ships shall sail under the flag of one Stateonly and, save in exceptional cases expressly provided forin international treaties or in this Convention, shall besubject to its exclusive jurisdiction on the high seas.

A ship may not change its flag during a voyage or while inport of call, save in the case of a real transfer ofownership or change of registry.

8


5/15

16/12/2013

5

UNCTAD Registration Convention 1986

Provisions on: Obligations of the national maritime administration

Identification and accountablility of the shipowners

Participation by nationals in the ownership and/or manning of the ship

Ownership of ships

Manning of ships

Role of the Flag State in respect to the management of shipowningcompanies and ships

Register of ships

Bareboat charter (chatering-in)

Measures to protect the interests of labour-supplying countries

In English, French, Arabic

http://unctad.org/en/Pages/DTL/TTL/Legal/Maritime-Conventions.aspx

9

French registry requirementsFrench Law No. 67-5 of January 3, 1967 and French Decree No. 67-967 of October 27, 1967 as amended

Ships must be owned by a certain proportion of EU member state nationals (or, with respect tocommercial ships, nationals of a European Economic Area (EEA) member state). Their residencemust also be in such territories, subject to the operation and use of the vessel being controlled

from a permanent establishment in France.Therefore, the ownership of the ship must satisfy one of the following:

1. at least 50% owned by EU nationals (or, with respect to commercial ships,nationals of a EEA member state) who, if they reside in France for less than sixmonths per year, must elect domicile in France for any administrative or judicialmatters relating to the ownership of the ship; or

2. at least 50% owned by legal entities having their registered office or theirprincipal office in France or in the territory of an EU member state, or in a statewithin the EEA. In the last two cases the operation and use of the vessel have to becontrolled from a permanent establishment in France. Such registered office maybe in another foreign country if:

-the foreign country is a party to an international treaty with Francepermitting a company organised under French law to exercise its activityin the foreign country and have its registered office there, and

-the operation and use of the vessel are controlled from a permanent

establishment in France; or

10


6/15

16/12/2013

6

Flag States rights under UNCLOS :

Flag States

Rights of

navigation:

In the High Seas-

Arts. 87-90

Right of innocentpassage throughthe TerritorialSea- Art. 17

New right of

passage throughthe ExclusiveEconomic Zone(EEZ) - Art. 58

New right of transit passagethroughstraits used fro internationalnavigation (Art. 38) and right of sea-lane passage though archipelagic

sea-lanes (Art.54)

11

UNCLOS, Duties of Flag States- Art. 94

1 - Every State shall (=have to) effectivly exercice its jurisdiction and control in

administrative, technical and social matters over ships flying its flag. 2 - In particular every State shall (not exhaustive):

2. Specificconditions that FSs

have to fulfil in orderto effectively exerciseeffective jurisdiction

and control over

their vessels

a) Maintain a register of shipscontaining names andparticulars of ships flying itsflag

b) Exercisejurisdiction overthe ship, the master, officersand crew in respect ofadministrative, technical andsocial matters concerning theship

12


7/15

16/12/2013

7

UNCLOS, Duties of Flag States (Cont.)

Art.94.3: Every State shall take such measures for shipsflying its flag that are necessary to ensure safety at seawith regard, inter alia, to (not exhaustive):

Construction, equipment and seaworthiness ofthe ship- Art.94 (3)(a)

Manningof ships, labour conditions and thetraining of crews, taking into account applicableinternational instruments (ILO)- Art. 94(3)(b)

Use of signals, the maintenance of

communications and prevention of collisionArt. 94(3)(c)

13


Art. 94.4: such measures shallinclude those necessary toensure:

That each ship, before registration and atappropriate intervals thereafter is surveyed byqualified surveyorsArt.94 (4)(a)

Presence on board of appropriate nautical charts,nautical publications and navigation equipment andinstruments as appropriate for the safe navigation ofthe shipArt. 94 (4)(a)

Master and officers have appropriate qualification in seamanship,navigation, communications and marine engineering, and crew isappropriate in qualification and number for the type, size, machineryand equipment of the ship Art.94(4)(b)

Master, officers and crew are fully conversant with and arerequired to observe the applicable internationalregulations, including SOLAS, COLAGER, MARPOL and

maintenance of communication by radioArt. 94(40(c)

14


8/15

16/12/2013

8


15

A

rt.

94

(5)

In taking allthese measuresFS mustconform to

generally

acceptedint.nal

regulations,procedures andpractices andtake steps tosecure their

observance

A

rt.

94

(6)

FS shall carryout aninvestigationwheneveranother Statereportsinadequate

exercise ofjurisdiction overany ship flyingits flag and takeremedial actionwhenappropriate

A

rt.

94

(7)

FS shall carryoutinvestigations

in marinecasualty or

incident ofnavigation

involving itsships in thehigh seas

Enforcement by Flag StatesUNCLOS, Art. 217

16

1. [] for the vessels flying its flag

the Flag State shall ensurecompliance with and providefor the effective enforcementof applicable internationalrules and standards andnational laws, irrespective ofwhere a violation occurs

2. States shall take appropriatemeasures to ensure that theirvessels are prohibited from

sailing, until they can proceed tosea in compliance with int.nal anti-pollution rules, includingrequirements in respect of design,construction, equipment andmanning

3. States shall ensure that theirvessels carry on board requiredcertificatesand are periodicallyinspected to verify that suchcertificates are in conformity withthe actual condition of the vessels


9/15

16/12/2013

9

Enforcement by Flag StatesUNCLOS, Art. 217 (Cont.)Investigations & Proceedings

4. If a vessel commits a violation ofintnalrules, FSs shall immediatelyinvestigate and where appropriateinstitute proceedings irrespective ofwhere the violation/pollutionoccurred

6. FSs shall, upon written request ofa State, investigate any violationcommitted by its vessels. If there issufficient evidence, FS shall withoutdelay institute a proceeding inaccordance with its laws

7. FSs shall promptly inform the

requesting State and the IMO ofthe action taken and its outcome

8. Penalties provided by the lawsof the Flag State shall be adequatein severity to discourage violationswherever they occur

17

Oil slick

Tor Belgia

Flag state

Sweden

On the 1st of September 2004

Quantity of oil 1,4 m314 m3

Discharge in the Danish EEZ

Gent,

Belgium

Example of

enforcement by

the Flag State


10/15

16/12/2013

10

Sept. 1

Sept. 2

Sept. 4

Sept. 3

Flag State:

The Cheif engineer was imposed a

penalty fine of 4 500

The owner of th e vessel was imposed

an administrative fine of 22 000

Cooperation

With the Coastal and Port States

Ex.1., accident ivestigation, providing information upon request of thePort State

Ex.2., If the Flag State does not reply to the request by Port State withregard to the manning document (actual number and composition of thecrew) this should be considered as clear grounds for a more detailedinspection of the vessel (IMO Resolution 1052 PSC).

Regional agreements: MedMoU annex 1, 3.2.2. and 3.2.3 - similarrules

Safety: SOLAS: requirement for all passenger ships and cargo shipsover 300 tons to send LRIT position. SOLAS contracting governmentsare expected to maintain a LRIT data centre either on national orregional

UNCLOS art. 123 : cooperation of States bordering enclosed or semi-enclosed seas

20


11/15

16/12/2013

11

Generalguidelines

2010 UN General Assembly Resolution on Oceans and Law of the Sea A/RES/65/37

IMO Code for the implementation of mandatory IMO instruments, 2011 (Resolution A.1054(27))

Guidelines for the authorization of organizations acting on behalf of the flag administration (IMO Res. A739(18),

Specifications on the survey and certification functions of Ros (IMO Res. A.789(19)

Code for recognized organisations (Res. MSC.349(92), June 2013)

Safety

SOLAS (ex., Reg.I/6(a) legal basis for authorising ROs (and also similar provision in MARPOL, Tonnage C., Load Lines, AFS C.)

Convention on International Regulations for Preventing Collisions at Sea (COLREG)

IMS Code

Security

ISPS Code

Suppression of Unlawful Acts Against the Saf ety of Maritime Navigation 1988 (SUA Convention, including the 1988 and 2005Protocols)

Long-Range Identification and Tracking (LRIT) system

21

See: http://www.imo.org/About/Conventions/ListOfConventions/Pages/Default.aspx

Humanelement

Convention on Standards of Training, Certification and Watch keeping for Seafarers(STCW), Manila Amendments

STCW-F

Maritime Labour Convention 2006

Environmentalprotection

MARPOL

Control and Management of Ships Ballast (BWM)

Anti-fouling Systems (AFS)

Liability and Compensation for Damage in Connection with the Carriage ofHazardous and Noxious Substances by Sea (HNS)

Removal of Wrecks

Civil Liability for Bunker Oil Pollution Damage (Bunkers)

22


12/15

16/12/2013

12

IMO Code for the implementation of mandatory IMO instruments, 2011(Resolution A.1054(27))

23

24


13/15

16/12/2013

13

2010 UN General Assembly Resolution on Oceans and Lawof the Sea A/RES/65/37French, English, Arabic http://www.un.org/Docs/journal/asp/ws.asp?m=A/RES/65/37

Adequate maritime legislation in place Effective maritime administration

Adequate organisation to inspectships

Importance of internationalregional, bilateral cooperation.Enhanced sharing ofinformation to prevent anddetect maritime threats.

Adequate prosecution of theoffenders

Establisment of centres to provide therequired education and training

Adequate mechanisms to investigateaccidents

25

Lack of proper implementation of the Flag State obligations challenge for the Ship owners and Ros, example of MLC

Challenge for all Ship Owners and ROs

Some Flag States do not specify the evidence to be available onboard the ship for

demonstrating compliance with MLC Some Flag States do not provide further determination of vague expressions

(adequate, sufficient, appropriate, frequent)

MLC : Standard A3.1.4

The competent authority shall pay particular attention to ensuring implementation of therequirements of this Convention relating to:

(a)

(b) Heatingand ventilation;

(c) Noise and vibration;

(d)

Guideline B3.1.3 Heating

In operation at all times

Using appropriate means

Maintaining satisfactory temperature

Avoiding risks or discomfort

26


14/15

16/12/2013

14

27

Maritime Labour ConventionExample of national provisions to implementtheRegulation A.3.1.4

With respect to requirements for ventilation and heating: sleeping rooms,mess rooms, radio room and any centralized machinery control room mustcomply with the following indoor climate requirements

Item Requirement or Criterion

Air temperature

Non-adjustable air temperature between

Winter or Summer:22 to 25 C (71.5 to 77 F)

Relative humidityA range from 30% minimum to 70% maximum

Air Exchange RateThe rate of air change for enclosed spaces shallbe at least six (6) complete changes-per-hour

Concluding remarks

1) Sanctions for non-compliance by the Flag State?

2) Article 228 example of the diminution of the role of the Flag State

flag state which has repeatedly disregarded its obligation to enforce effectively theapplicable international rules and standards in respect of violations committed by itsvessels .

3) Black lists

4) New amendements changing approach with regard to non-complyingStates

Unclos art. 217, 3 States shall ensure that their vessels carry on board required certificatesThese certificates shallbe accepted by other States as evidence of the conditions of the vessels unless there are clear grounds for believingthat the condition of the vessel does not correspond substantially with the particulars of the certificate.

Amended version of the STCW convention for so-called White list of partiesCertificates issued by listed parties are to be accepted as being in compliance withthe convention, a privilege not extended to certificates issued to unlisted parties.

A major change in the system of certificates

28


15/15

16/12/2013

Some concluding remarksLoopholes :

Improper delegation of responsibilities to RecognisedOrganisations

Weak legal framework for monitoring and ensuring FScompliance

Lack of a genuine link

Main implications:

Lack of FSs effective control over their vessels and laxattitude towards implementation of international obligations

Jeopardise safety, security, environmental protection

Response

Port State Control

Blacklisting

Measures are under development at int.nal and regional (EU)level to strengthen FS implementation of their duties andeffective control over their vessels

29

THANK YOU FOR YOUR ATTENTION! 30

Documents

03. UNCLOS Legal Framework