THE NATIONALITY OF SHIPS

Transcription

1 THE NATIONALITY OF SHIPS

2 THE NATIONALITY OF SHIPS BY H.MEYERS Senior Lecturer in International Law, University of Amsterdam FOREWORD BY D. H. N. JOHNSON Professor of International and Air Law, University of London MARTINUS NIJHOFF I THE HAGUE I 1967

3 ISBN DOl / ISBN (ebook) Copyright 1967 by Martinus NijhofJ. The Hague. Netherlands Softcover reprint of the hardcover 1st edition 1967 A II rights reserved. including the right to translate or to reproduce this book or parts thereof in any form

4 FOREWORD It gives me great pleasure to introduce this work by Dr. H. Meyers. The problem of "The Nationality of Ships" has long been one of the most difficult problems in the international law of the sea. It has been made more acute recently by the growth of "flags of convenience". Legally, the problem has been complicated or simplified-according to one's point of view-by the emergence of the concept of the "genuine link" associated with the Judgment of the International Court of Justice in the Nottebohm case (second phase) in Other developments have included the thorough preparatory work of the International Law Commission leading up to the United Nations Conference on the Law of the Sea, held in Geneva in 1958; the debates at that Conference and particularly its adoption of the Convention on the High Seas; and finally the Advisory Opinion of the International Court of Justice in the case concerning the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation in All these developments have thrown light on the problem ofthe allocation of ships to one or other of the politically organised territorial communities (or States) of which the present international society is largely composed. But an agreed solution acceptable to all the interests concerned seems as far away as ever. The question of ships operated by international institutions such as the United Nations is another problem which awaits a satisfactory answer. Simultaneously with attempts to secure a solution to these problems on a universal plane there have occurred disputes between countries seeking to establish a greater degree of governmental control over the regulation of international maritime traffic and countries anxious to maintain existing practices of freedom of enterprise, including the freedom of shipping companies to organise their own "conferences" for the purposes of regulation. The nationality of ships has also proved an issue in disputes between "developed" and "developing" countries, as well as in disputes between shipping employers and maritime unions.

5 VI FOREWORD For all these reasons this thorough and comprehensive study by Dr. H. Meyers is very much to be welcomed at the present time. February DAVID H. N. JOHNSON. Professor of International and Air Law, University of London.

6 PREFACE Fascination with the sea and her ships fostered this study in international law. In the nationality of ships, issues are involved which are connected with the entire system of the law of the sea. Studying these problems therefore opens up perspectives as wide as.the sea's horizon. A much simpler justification of this work is the lack, so far, of a comprehensive monograph about these issues. Recent publications on the so-called "flags of convenience" deal with one aspect only of the problem of the nationality of ships. Heyck's short, but excellent, thesis dates from 1935, and the outstanding book of Rienow from The latter work, moreover, is mainly concerned with the limited question as to whether fulfilment of some of the national conditions which the various states attach to the right to fly their flag is indispensable for the validity, under international law, of a ship's nationality. This question, which was already topical around 1900, as well as the more recent problems concerned with the "flags of convenience", are aspects only of the wider issues discussed in the present volume. Its purpose is the compilation and analysis of the complex of juridical phenomena and questions involved in the unilateral act - and its international recognition - by which a state or other international person creates the nationality of a ship. The research upon which this analysis was built was concluded by the 1st of January, Many acknowledgements are due for assistance during the preparation of the present book. Special mention should be made of the obliging part played by Professor A. J. P. Tammes. The contact with his culture and learning as well as his advice have been essential and have formed an unforgettable experience. I am grateful for the British Council scholarship which enabled me to study the law of the sea in the London School of Economics and Political Science during a three months' period under the expert guid-

7 VIII PREFACE ance of Mr. D. H. N. Johnson, M.A. Later, Professor Johnson obliged me by reading the manuscript, by making valuable suggestions and by his criticism. His interest in this work gave me the encouragement which all authors long to receive, especially those for whom English is not their native language. I wish to thank him sincerely for all the time and trouble he devoted to this book. Gratitude is also due to the translatress, Miss C. Dikshoorn, who applied so much patience and kindness to the difficult task of humouring an exacting author. Finally, I want to acknowledge the support of the Ministry of Education and Sciences, which financed the translation.

8 CONTENTS Foreword by D. H. N. Johnson. Preface..... List of Abbreviations v VII XI CHAPTER I: INTRODUCTION. 1. Outline Ships Nationality. 24 CHAPTER II: THE MEANING OF ALLOCATION Introduction The term jurisdiction Which international person may have the power to prescribe rules of conduct, to threaten sanctions, and to enforce sanctions with regard to the ship-users? The right to prescribe rules for ship-users (a) The high seas (b) Improperly claimed exceptions to article 6 C.H.S. 56 Labour law. 60 Requisition.. 69 Conferences.. 74 (c) The territorial sea n (d) The internal waters 80 (e) Summary for the three sea areas The right to enforce sanctions against ship-users. 82 (a) The high seas (b) The territorial sea. 88 (c) The internal waters The right of protection The duties ofthe :flag state. 108

9 x CONTENTS CHAPTER III: ACQUISITION OF ALLOCATION Introduction Terminology The relation between immatriculation, "nationality", "registration", "documentation" and "flag" The cognoscible decision to immatriculate A. The decision B. The media through which the decision is cognoscible 148 (a) Conditions and precepts (b) What indicators suffice? (c) The decision to allocate temporarily Multiple allocation Fraud Evidence of allocation 187 CHAPTER IV: SUFFICIENT AUTHORITY Introduction History of the third sentence of article Exclusive authority The purpose of the "genuine link" "Genuine link" - the expression and its concretion Means - government agencies outside the flag state Means - government agencies within the flag state A complete and a partial irrelevance The "genuine link" a condition and a precept Some conclusions with respect to the application of the "genuine link" rule CHAPTER v: THREE PARTICULAR QUESTIONS Loss and change of allocation Statelessness International Organizations. 323 CHAPTER VI: SUMMARY Bibliography..... Cases Mentioned in the Text General Index

10 LIST OF ABBREVIATIONS If an abbreviation is followed by a Roman numeral, this numeral indicates the volume of the work referred to. In cases where an author's name is used by way of abbreviation - see the Bibliography. A I... (etc.)... A.A.A. A.C. A I C. 6/... (etc.)... A I CN. 4/... (etc.)... A I Conf. 13/... (etc.)... AFL-CIO A.J.I.L. Annuaire B.F.S.P. B.Y.I.L. C.C.5. C.H.S. C.I.C.R. C.T.S. - United Nations Document, General Assembly... - (Annuaire de 1') Association des Auditeurs et Anciens Auditeurs de l' Academie de Droit International de La Haye - Appeal Cases (Law Reports) - United Nations Document, General Assembly, Sixth Committee... - United Nations Document, General Assembly, International Law Commission... - United Nations Document, General Assembly; United Nations Conference on the Law of the Sea... - American Federation of Labour - Congress of Industrial Organizations. - American Journal of International Law. - Annuaire de l'institut de Droit International. - British and Foreign State Papers. - The British Yearbook of International Law. - Convention on the Continental Shelf (Geneva 1958). - Convention on the High Seas (Geneva 1958). - Comite International de la Croix Rouge. - Convention on the Territorial Sea and the Contiguous Zone (Geneva 1958).

11 XII E.E.C. Euratom Handelingen I.C.A.O. I.C.J. Reports I.C.L.Q. I.L.A. I.L.C. I.L.O. I.M.C.O. I.M.C.O. Pleadings Ie K. 2e K. LCM L.N.T.S. Mededelingen M.S.A. N.].B. N.L.RB. N.RC. N.RG. N.T.I.R O.E.C.D. Panlibhon LIST OF ABBREVIATIONS - European Economic Community. - European Atomic Energy Community. - Handelingen der Staten-Generaal (Proceedings of the States-General- see also the abbreviations: Ie K. and 2e K.). - International Civil Aviation Organization. - International Court of Justice, Reports of Judgments, Advisory Opinions and Orders. - The International and Comparative Law Quarterly. - International Law Association. - International Law Commission (of the United Nations). - International Labour Organisation. - Inter-Governmental Maritime Consultative Organization. - I.C.J. Pleadings, Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization. - Eerste Kamer der Staten-Generaal (States General, First Chamber). - Tweede Kamer der Staten-Generaal (States- General, Second Chamber). - Landing Craft Mechanized. - League of Nations Treaty Series. - Mededelingen van de N ederlandse Vereniging voor Internationaal Recht. - Merchant Shipping Act. - N ederlands J uristenblad. - National Labor Relations Board. - Nieuwe Rotterdamse Courant. - Nouveau Recueil General des Traites, etc., edited in continuation of the work of G. F. de Martens. - Nederlands Tijdschrift voor Internationaal Recht / Netherlands International Law Review. - Organisation for Economic Cooperation and Development. - Panama, Liberia and Honduras...

12 LIST OF ABBREVIATIONS XIII P.C.I.]. - Publications of the Permanent Court of International Justice. Series A - Judgments. Series B - Advisory Opinions. Series AlB - Cumulative Collection of Judgments and Advisory Opinions since P.T.M.C. - Preparatory Technical Maritime Conference (I.L.O. 1956). Q.B.D. - Queen's Bench Division (Law Reports). Recueil - Recueil des Cours, Academie de Droit International. RE.M. - Reclame Exploitatie Maatschappij. RI.A.A. - Reports of International Arbitral Awards (Collection published by the United Nations) S /...(etc.}... - United Nations Document, Security Council... Staatsblad - Staatsblad van het Koninkrijk der Nederlanden. STfLEGfSER...(etc.)... - United Nations Document, Secretariat, Leg UNEF UNKRA UNSCO U.S. islative Series... - United Nations Emergency Force. - United Nations Korean Reconstruction Agency. - United Nations Suez Canal Clearance Operation. - United States Supreme Court Reports.