Flagging and reflagging in the cases before ITLOS

Reflagged vessels and vessels flying flags of convenience (two phenomena that most often coexist) are a frequent feature in cases brought before the International Tribunal for the Law of the Sea (ITLOS). Of all the cases decided by the ITLOS, only two had nothing to do with this phenomenon: the Southern Bluefin Tuna cases and the MOX Plant case. Only the former involves ships in some way, as it concerns fishing. The Saiga cases, the Camouco, the Monte Confurco, the Grand Prince, and the Volga cases all concern ships which had been reflagged one or more times; and all concern ships flying a flag belonging to a state that has modest connections with the ship. If we take the substantive criteria for ship registration used in the ill-fated United Nations Convention on the Registration of Ships of 7 February 1986, namely that the flag state or its nationals participate as owners or in the ownership of the ship, and that ‘a satisfactory part of the complement consisting of officers and crew’ be ‘nationals or domiciled or lawfully in permanent residence’ in the flag state, we see that neither of them is satisfied in each of the above-mentioned five cases. Of course, the reference to these criteria is broad and general. It does not mean that under the Convention, which indicates the two criteria as alternative and not as cumulative and provides for exceptions and loopholes, the ships involved would not qualify for registration.