Who Makes The Rules?

Sep 8, 2009

by Douglas B. Stevenson, Esq.
Director, Center for Seafarers' Rights
The Seamen's Church Institute

Imagine a mariner from one country working on a ship flying the flag of a second country that is owned by citizens of a third country which sails between several other countries. Which country’s or countries’ laws apply to the mariner’s shipboard life?

For mariners, trying to figure out what laws govern their lives and work can be very complicated:  a ship can be owned by citizens of one or more countries, its crew can be from several other countries, it can fly the flag of still another country and, to further complicate things, it moves from country to country, often through the high seas which are part of no country.

It would be very difficult for anyone to develop a legal system for the maritime world - and, of course, no one person did. Maritime law evolved out of centuries of practice and experience designed to encourage and facilitate maritime commerce. What has evolved is a system in which ships have nationality. Ships are registered by and fly the flag of a country.  Each country determines for itself the conditions for granting nationality to its ships, but there must be a genuine link between a country and its ships.

Flag State The country that registers a ship and entitles a ship to fly its flag is called the flag state. The flag state is required by international law to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. This means that the flag state law controls most activities on a ship. All persons, irrespective of their citizenship, who are on a ship, are subject to the laws of the flag state. When a ship is in the flag state’s territorial waters or when it is on the high seas, the flag state has exclusive jurisdiction over the ship and all of the people aboard it. When a ship is in the territorial waters of another country, the flag state still has jurisdiction over the ship, but the port state may also exercise its jurisdiction over some matters.

Port State The country in which a foreign ship is located is called the port state. Port states have jurisdiction to impose their laws on all persons and vessels located within its borders. In most cases, a country’s territory includes a territorial sea of twelve nautical miles. When a foreign vessel is in another country’s waters, the port state’s jurisdiction and the flag state’s jurisdiction overlap. The international law solution to such overlaps is that port states will refrain from imposing their jurisdiction over foreign ships in their waters except in cases where the foreign vessel threatens the port state or when activities on board the foreign vessel disturb the peace and tranquility of the port. When mariners go on shore leave in a foreign port, they must obey the laws of the port state when they are off their vessel.

Citizenship State The country where a person is a citizen is called the citizenship state. Every country has the power to regulate the activities of its citizens wherever they are located. Some countries, such as the Philippines, have enacted laws governing the employment of their citizens who work in foreign countries and on foreign ships. Mariners who are from countries that have enacted laws regulating their employment on foreign ships are subject to the laws of the flag state, their citizenship state, and in some circumstances, the port state.