30 May 2013
State Responsibility and Flag State Duties – Commentary
Symposium on the Law of the Sea and the Law of Responsibility, cross-posted on Opinio Juris
Telesetsky’s highly interesting post highlights the problem of flag state responsibility in the law of the sea. The post identifies two major issues: Illegal Unreported and Unregulated (IUU) fishing and structurally unsafe vessels. Both these issues have been hard to resolve and difficult to regulate, at least from a flag state perspective. This comment seeks to further the debate by raising two questions regarding the role of the flag state in terms of its international responsibility.
First, if we assume that articles 91 and 94 of the Law of the Sea Convention (LOSC) do in fact impose an obligation on flag states to control registration of their ships, the obligation is still rather vague. Article 94 provides that states ‘shall take measures’ to ensure safety at sea, and that these measures shall conform to ‘ international regulations, procedures and practices’. But which regulations are to be followed and which procedures must be adopted is not evident from the LOSC. Even if regulations and procedures are indeed identified (through the International Maritime Organization for example) then the problem of identifying the flag state’s conduct appears. What is the precise conduct that may lead to responsibility? Telesetsky argues that the flag state must exercise due diligence in its authorization procedure. The contents of due diligence obligations are notoriously hard to define in international law. Some guidance might be found in technical standards adopted by international organizations but the problem persists, especially if the role of the classification societies is taken into account (i.e. another non-state actor-besides the shipowner- involved in the process of ensuring the safety of the vessel).
Second, Telesetsky asks in her conclusion (in reference to the Erika and the Prestige incidents) why flag states should not bear responsibility for damage caused by the vessels. She concludes that flag state responsibility could indeed offer a solution to issues of pollution or IUU. It is a fair question and a reasonable conclusion. The fact is that states have opted to resolve claims for oil pollution damage at the national level, through the Civil Liability and Fund Conventions. They have also concluded similar conventions on other areas, covering for example the problem of hazardous and noxious substances (HNS Convention). But is this approach enough? I would answer in the negative. While the oil pollution system works rather efficiently, although not without problems, it seems that states have managed to deflect the discussion from their own responsibility on most other issues. If states had sought to tackle the problem of pollution or IUU directly, they would have to accept a number of obligations, and they seem unwilling to do so.
In any case, I concur that clarification of the obligations of flag states and consequently their more ready exposure to responsibility claims is a step in the right direction.