Jurisdiction on the high seas : an analysis of Flag State exclusivity

Abstract

The main aim of this thesis is to consider the jurisdiction that is attributed to a State when one of its vessels is sailing the high seas. Seen as an area which lies beyond any national claim, the high seas is founded upon the principle of freedom of the seas. This thesis shall evaluate as to what extent is the high seas governed by the principle of freedom of the seas and how evolution shows that various legal instruments have been enacted in order to purport order and control over such area, thus making it a heavily regulated area. An analysis as to what flag State jurisdiction entails and the genuine link requirement shall be at the forefront of this thesis, while also dealing with the problem flags of convenience bring about. Many tend to opt for registering their vessels under a flag of convenience owing to economic benefits open registries tend to provide. Nevertheless, when an incident occurs on the high seas, it is the flag State which has jurisdiction and therefore has the responsibility for the outcome of such incident. However, cases arise where the flag State may either be unwilling or unable to take control and therefore the concept of an existing genuine link between the State of registration and the vessel needs to be strengthened. Flag State jurisdiction is the general rule when vessels are sailing the high seas, nevertheless exceptions to this general rule exist within the law so as to cater to situations where flag State jurisdiction may no longer seem feasible. This thesis shall highlight each existing exception to flag State jurisdiction and to what extent do such exceptions actually pose a limitation on the exclusive jurisdiction of the flag State.