The concept of genuine link in the attribution of nationality to ships

Abstract

The grant of nationality has generally been recognised as a right of a sovereign state. The doctrine of a genuine link upholds, and to a certain extent, restricts this right. It establishes a set of criteria for entitling a person to carry its state's nationality or to fly its maritime flag. The purpose of the genuine link test, in a maritime context, is to reinforce the importance of connecting factors such as manning, ownership, control or operation by the relevant state's nationals, that link the ship to the flag state. The flag state, which has a genuine link with its ships, can effectively exercise jurisdiction and control over these ships. But because this test establishes criteria which the state should adopt for granting its nationality, it is restrictive and discriminatory. The fact that a genuine link is established by the presence of the ship, reduces the need for the ship to be registered. Therefore, in the case of these small ships nationality is bestowed on to them by virtue of their presence (and consequently their amenability to justice) and not by virtue of registration. the Maltese law was derived from a law which gave particular weight to the genuine link. While on the one hand the inspiring law created a close register, on the other hand the inspired law most certainly did not have the same effect. Although Maltese law prima facie establishes and maintains the genuine link, (Malta having also recently ratified the 1982 UN Convention on the Law of the Sea), this genuine link test is not practiced as regards registrable ships. Ships which have not been registered, on the other hand, need a very strong genuine link in order that they be considered nationals.