IMO Institutional Structure and Law-Making Process - Prevention of Pollution of the Marine Environment from Vessels - page 16

countries. 5 As of 2011, around 69.7 % of the total global merchant fleet operates
under FOCs. 6 FOC has been defined as the “flag of any country allowing the
registration of foreign-owned and foreign-controlled vessels under conditions
which, for whatever the reasons, are convenient and opportune for the persons
who are registering the vessels”. 7 Under international law, an owner has full liberty
to choose the flag for his or her ship. Consequently, every State has the right to set
its own regulation and standards for registration of ships. Both the 1958 Geneva
Convention on High Seas and UNCLOS (articles 91 and 94) impose a condition of
' genuine link ' between the ship and the flag State, without precisely defining the
term. This seems to be an incomplete provision which creates more problems than it
solves. Its ambiguity has led scholars to interpret the term in a variety of different
ways with divergent results. Most scholars come to the conclusion that a mere
administrative act such as registration is sufficient to fulfil the condition of “genuine
link”. 8
Moreover, there is strong support for the opinion that lack of a is

not sufficient to refuse nationality of a ship. As observed by the International
Tribunal for the Law of Sea (ITLOS) in the M/V “SAIGA” (No. 2) Case :

genuine link

' '

there is nothing in article 94 to permit a State which discovers evidence indicating the
absence of proper jurisdiction and control by a flag State over a ship to refuse to recognize
the right of the ship to fly the flag of the flag State.

...

The conclusion of the Tribunal is
that the purpose of the provisions of the Convention on the need for a genuine link between
a ship and its flag State is to secure more effective implementation of the duties of the flag
State, and not to establish criteria by reference to which the validity of the registration of
ships in a flag State may be challenged by other States. 9

......

All these shortcomings open up the profitable business of FOC at the cost of
environmental protection and safety. FOC countries may consider environmental
protection is not an important issue for them.
In contrast, a country may consider its role as a coastal state is very vital.
Australia is a good example. With its large pristine marine areas, such as the

5 “The following 34 countries have been declared FOCs by the ITF ' s Fair Practices Committee
(a joint committee of ITF seafarers ' and dockers ' unions), which runs the ITF campaign against
FOCs: Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda (UK), Bolivia, Burma,
Cambodia, Cayman Islands, Comoros, Cyprus, Equatorial Guinea, Faroe Islands (FAS), French
International Ship Register (FIS), German International Ship Register (GIS), Georgia, Gibraltar
(UK), Honduras, Jamaica, Lebanon, Liberia, Malta, Marshall Islands (USA), Mauritius, Moldova,
Mongolia, Netherlands Antilles, North Korea, Panama, Sao Tome and Pr ´ ncipe, St Vincent, Sri
Lanka, Tonga, Vanuatu.” International Transport Workers ' Federation, FOC Countries, https://
www.itfglobal.org/flags-convenience/flags-convenien-183.cfm , last accessed on 21 June 2014.
6

ISL, Shipping Statistics and Market Review 55 (11) (2011) 5.

7

Boczek ( 1962 ), p. 2.
8 See generally Tan ( 2006 ), pp. 47-57; Tetley ( 1993 ); Dempsey and Helling ( 1980 );
Egiyan ( 1990 ).
9 ITLOS decision in M/V “SAIGA” (No. 2) case (St. Vincent and Grenadines v Guinea) 38 ILM
1323. Also see Constitution of the Maritime Safety Committee of the Inter-Governmental Mari-
time Consultative Organisation, I.C.J. Reports 1960, p. 150, 171.