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1977. 163 The Revised Single Negotiating Text may prove question with respect to any other State, and may be assimilated to a
to be the single most important document regarding the ship without nationality.
law of the sea since the 1958Geneva Convention in terms The report of the Senate Committee on Foreign Relations
of its influence on state practice, whether by way of an ulti- explained the final version of Article 5 as follows:
mate treaty produced by the conference or by the effect it The International Law Commission did not decide upon a definition
will have on how the law is regarded by states even with- of the term "genuine link." This article as originally drafted by the
out a treaty. Commission would have authorized other states to determine whether
4-15. Nationality of Vessels. there was a "genuine link" between a ship and the flag state for pur-
poses of recognition of the nationality of the ship.
CONVENTION ON THE HIGH SEAS
It was felt by some states attending the Conference on the Law of the
Geneva, April 28, 1958
Sea that the term "genuine link" could, depending upon how it were
13 U.S.T. 2312, T.I.A.S. 5200, 450 U.N.T.S. 82
defined, limit the discretion of a state to decide which ships it would per-
.Art. 4. Every State, whether coastal or not, has the right to sail ships mit to fly its flag. Some states, which felt their flag vessels were at a com-
under its flag on the high seas. petitive disadvantage with vessels sailing under the flags of other states,
Art. 5. (1) Each State shall fix the conditions for the grant of its na- such as Panama and Liberia, were anxious to adopt a definition which
tionality to ships, for the registration of ships in its territory, and for the states like Panama and Liberia could not meet.
right to fly its flag. Ships have the nationality of the State whose flag they By a vote of 30 states, including the United States, against, 15 states
are entitled to fly. There must exist a genuine link between the State for, and 17 states abstaining, the provision was eliminated which would
and the ship; in particular, the State must effectively exercise its jurisdic- have enabled states other than the flag state to withhold recognition of
tion and control in administrative, technical and social matters over the national charter of a ship if they considered that there was no
ships flying its flag. "genuine link" between the state and the ship.
(2) Each State shall issue to ships to which it has granted the right Thus, under the Convention on the High Seas, it is for each state to
to fly its flag documents to that effect. determine how it shall exercise jurisdiction and control in adrniinistra-
Art. 6. (1) Ships shall sail under the flag of one State only and, save in tive, technical and social matters over ships flying its flag. The "genuine
exceptional cases expressly provided for in international treaties or in link" requirement need not have any effect upon the practice of
these articles, shall be subject to its exclusive jurisdiction on the high registering American built or owned vessels in such countries as
?as. A ship may not change its flag during a voyage or whiie in a port of Panama or Liberia. The existence of a "genuine link" between the state
call, save in the case of a real transfer of ownership or change of registry. and the ship is not a condition of recognition of the nationality of a ship;
(2) A ship which sails under the flags of two or more States, using that is, no state can claim the right to determine unilaterally that no gen-
them according to convenience, may not claim any of the nationalities in uine link exists between a ship and the flag state. Nevertheless, there is
a possibility that a state, with respect to a particular ship, may assert
163. For a concise discussion of the third Conference and the before an agreed tribunal, such as the International Court of Justice,
unresolved issues, see Stevenson and Oxman, The Third United Nations that no genuine link exists. In such event, it would be for the Court to
Corlference on the Law of the Sea: The 1974Caracas Session, 69 Am. J. decide whether or not a "genuine lii" existed. 164
Int7 L. 1 (1975); The Third United Nations Co@rence on the Law of 4-16. Scope of Jurisdiction Over National Vessels and
the Sea: The 1975 Geneva Session, 69 Am. J. Int'l L. 763 (1975); The Persons Thereon. a. Control over the movements and
Third United Nations Corlference on the Law of the Sea: The New York
Sessions, 71 Am. J. Int7 L. 247 (1977). For the 1976 Revised Single activities of national vessels. It is generally recognized that
Negotiating Text, see U.N. Doc. AICONF. 62/WP.8/REV 1, May 6, it is ". . . unquestioned practice that the state which is
1976. The negotiations at the Third Conference are basically deadlocked responsible for a ship's conformity with international law
over three critical issues: a regime for exploiting the resources of the has a competence equal to its responsibility and may con-
deep seabed, the rights of landlocked and geographically disadvantaged
states, and the legal status of the agreed 200-mile economic zone. trol the movement and activities of its ships as its in-
Regarding the latter issue, the Revised Single Negotiating Text, id., in terpretation of community obligations and its national
providmg for a 200-mile zone, reflects what had essentially become a .policies require." 165 An example of this authority, as ex-
fait accompli as a result of the tide of state claims in recent years running ercised by the United States, follows.
to approximately this extent. In March of 1977, the United States began
to roll with this tide by claiming such a zone in order to control foreign U.S. DEP'T OF COMMERCE, TRANSPORTATION ORDER
fishing within 200 miles of U.S. coasts. See Fishery Conservation and T-2 (AMENDED)
Management Act, P. L. 94-265, 90 STAT 331 (1 March 1977). Since Section 1. Prohibition of movement of American carriers to Communist
then, states, such as Canada, Denmark, the Federal Republic of Ger- China; North Korea, or to the Communist-controlled area of Viet
many, France, India, Norway, Pakistan, South Africa, the U.K., and the Nam.
U.S.S.R. have declared their intent to claim such zones regardless of the No person shall sail, fly, navigate, or otherwise take any ship docu-
outcome of the Thud Conference. Unresolved, however, is the issue mented under the laws of the United States or any aircraft registered
concerning the scope of "national jurisdiction" in the zone. One group under the laws of the United States to any Chinese Communist port;
of states, mostly South American, contend that such jurisdiction should North Korea, any other place under the control of the Chinese Com-
be total, making the zone in effect a territorial sea in which other coun- munist, or to the Communist-controlled area of Viet Nam.
tries only enjoy such rights as navigation, overtlight, and cormnunica- Section 2. Prohibition on transportation of goods destined for Com-
tion. Another group, mostly maritime nations, want to lit coastal state
jurisdiction to a right to exploit the natural resources in the zone. They 164. Executive Report No. 5-Law of the Sea Convention, 106
would limit the territorial sea to 12 miles and would defme the re- Cong. Rec. 11189, 90, 86th Cong., 2d Sess., 1960. See generally, M.
mainder of the 200-mile zone as part of the high seas, subject only to McDougal & W. Burke, The Public Order of the Oceans 1013-15,
certain economic rights of the coastal state. Still another position, 1033-35, 1073-75, 1080-82, 1087-88, 1137-39 (1962) (hereinafter
perhaps a popular middle ground, would classify this area as neither high cited as M. McDougal, Oceans Law), and B. Bonek, Flags of Conven-
seas nor territorial sea but subject to "national jurisdiction," except for ience 2766-3 (1 962).
the freedoms of navigation and overflight and the right to lay cables. 165. M. McDougal, Oceans Law, at 1066.