Flag State refers to the country where a vessel is registered. This country has extra-territorial jurisdiction over its vessels sailing anywhere in the world by virtue of the nationality principle. Every state has the right to sail ships under its flag and thus participate in international navigation. However, this right comes with certain responsibilities. Flag states are responsible for enforcing international obligations everywhere and exclusively on high seas over their vessels. This is derived from Article 94 of UNCLOS which stipulates that
“every state shall effectively exercise its jurisdiction and control in administrative, technical, and social matters over ships flying its flag”.
Flag State Jurisdiction
Flag State Jurisdiction typically includes management of vessel registration, effective jurisdiction and control over vessels including inspection, detention, and arrest as necessary, as well as ensuring vessel conformity to generally accepted international rules and standards (GAIRS).
For any flag state, GAIRS are the mandatory minimum standards, and flag states can, at will, can go above and beyond to establish more stringent requirements aboard their vessels. Many states can and do establish stricter measures for shipboard operations than are mandated by the IMO or recommended by the international community.
So, What do the ship owners to when their own flag state is imposing stricter measures???
Yes, sometimes they a short-cut. Let me explain you in detail. Shipowners can simply change vessel registration from one registry to another, which changes the nationality (and therefore Flag State Jurisdiction) of the vessel to a country where greater or lesser leniency in accountability and oversight of ship-management depending on their wishes.
For example, a shipowner with a tanker flagged in USA, a country with arguably some of the most stringent legislation on environmental and security matters, who desires more flexibility, can simply re-flag to a state that is not willing or able to exercise jurisdiction and control, in order to ease regulations aboard his/her vessel. This is similarly done to dodge taxes, fees, and employment standards, as well as avoid flag state-imposed pollution control measures.
Investigation and prosecution
Additionally, The flag state is also the only state, in addition to the state where an individual is a national, which can institute proceedings against a person who is alleged to have conducted a violation at sea. This is according to Article 97 (1) of UNCLOS. This Article was created for general investigation and prosecution for duty misconduct aboard a vessel, such as causing a collision. However, it can arguably be applied to other infractions as well.
Enforcing international regulations
Flag states are required to adopt laws to ensure international regulations are applied and enforced upon vessels which fly their flag. Flag states are to take appropriate measures to ensure that vessels flying their flag are prohibited from sailing unless they can proceed to sea in compliance with GAIRS. Furthermore, they are tasked under customary international law and directly under UNCLOS with investigating and punishing violations aboard their vessels irrespective of where the infraction took place.