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Flag and Port State Jurisdiction and Control in the Arctic

(from AMSA Report 2009)


Flag States

Flag states play a vital role in the governance of shipping. UNCLOS permits a state to fix conditions for granting its nationality (i.e., flying its flag) to ships so long as there exists a “genuine link.” Ships can only sail under the flag of one state at a time. The flag state’s domestic laws, for example, criminal law, apply to those aboard its ships. A flag state must also ensure that its ships conform to international rules and standards concerning matters such as safety at sea, pollution control and communication regulations. On the high seas, the flag state is granted exclusive jurisdiction with only limited exceptions.

It should be noted that the provisions of UNCLOS regarding the protection and preservation of the marine environment do not apply to any warship or other vessel owned or operated by a state and used, for the time being, only on government non-commercial service. However, each state must ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels owned or operated by it, that such vessels act in a manner consistent, so far as is reasonable and practicable, with UNCLOS.

Port States

Under general international law, the port state has the authority to impose conditions for the entry of foreign ships into its ports. Under UNCLOS, when foreign ships are voluntarily in the port of another state, the host state has broad inspection and enforcement powers for pollution violations occurring not only in the port and internal waters, but also in the territorial seas and the EEZs of other coastal states when those states request the port state’s assistance in enforcement. A flag state may also request the port state’s assistance in relation to enforcement of pollution offenses on the high seas. A port state must comply with requests from other states for investigation of discharge violations. If a port state determines that a foreign ship is unseaworthy and threatens marine environmental damage, it may prevent the ship from sailing until the deficiencies are corrected.


    Arctic Council, 2009, Arctic Marine Shipping Assessment (AMSA), Arctic Council.©