22 Mar The Banning of Russian Shipping Reignites the Debate on the Genuine Link and Ship Nationality
[Himanil Raina is a PhD candidate and a Teaching Assistant at the Graduate Institute, Geneva working on ‘National Security and International Law’ under Professor Andrew Clapham. He graduated from the NALSAR University of Law, India and has been a Legal Assistant at the ILC and the Permanent Mission of India to the UN and the WTO.]
Banning Russian Ships from Ports
The Russian war of aggression against Ukraine has drawn all eyes to the hostilities raging on land. However, the past few weeks have witnessed some critical developments out at sea. Over the course of the conflict, several issues like the law of blockades, high seas freedoms and blue humanitarian corridors have cropped up. However, a crucial development which has almost sailed under the radar, has been the United Kingdom and Canada’s decisions to block all Russian-linked ships from their ports. Notably, similar deliberations are also currently ongoing in the European Union and the United States of America.
The United Kingdom has given effect to this ban via the Russia (Sanctions) (EU Exit) (Amendment) (No. 4) Regulations 2022, and Canada through an amendment to the Special Economic Measures (Russia) Regulations (SOR/2022-47). What is common to both these measures, is that the banned ships are not simply those ships which are registered in Russia. These measures go beyond banning ships which fly the Russian flag. Inter alia, they ban ships which are “owned, controlled, chartered or operated by persons connected with Russia.” By acting in this fashion, the UK and Canada have signalled their willingness to pierce the veil of ship registration, so as to determine whether or not a ship actually bears a genuine link with the state whose flag it flies.
These bans are not targeted at particular individuals or companies. These are broad and general restrictions on shipping, which are being put into place not with the ultimate aim of punishing the ship owners themselves, but rather their parent state. In practice, this has generated significant confusion. Of the 6,000 Russian-affiliated vessels, some 400 trade internationally. However, 60% of these do not sail under the Russian flag. Consequently, these general bans have put port operators between a rock and a hard place. Port operators are concerned about violating the ban by granting entry to a banned ship or mistakenly denying entry to a legitimate vessel and thus becoming embroiled in a legal dispute.
A determination of why this measure has created such confusion necessitates a quick dive into the law governing ship nationality. These developments have also breathed life into a crucial debate on whether there exists any distinction between the peacetime law of the seas and the law of naval warfare when it comes to determining a ship’s nationality.
Determining Nationality Under Peacetime Law
Following the explosion of the phenomenon of flags of convenience and open registries in the mid-20th century, the international community attempted to intercede with the 1958 Geneva convention on the high seas (GCHS) and the 1982 law of the seas convention (LOSC). Article 5 of the GCHS and Article 91of the LOSC envisaged that a ship would possess the nationality of the state whose flag it was ‘entitled to fly’. The condition for this entitlement was linked to the existence of a genuine link. The mere act of registration could not suffice for there to be a grant of nationality. The 1986 United Nations convention on conditions for registration of ships (UNCCRS) sought to further develop these provisions. The UNCCRS would have allowed a state to insist that it would allow registration and the right to fly its flag, only to those ships that were manned or owned by some proportion of its own nationals. Alternately, a state may require that the ship owning company to be established or have its principal place of business within its own territory. The idea behind these requirements was to ensure that a state could effectively exercise jurisdiction and control over a ship.
While the UNCCRS never entered into force, this fact by itself does not rob the GCHS or the LOSC of legal effect. It is these very provisions which constitute the legal basis for Canadian and UK determinations of which ships have or do not have a genuine link with Russia. Many consider the requirement for a genuine link to represent little more than dead letters of the law. Such views have gained some traction owing to the International Tribunal on the Law of the Seas (ITLOS) willingness to acquiesce to this state of affairs as well.
The central interpretative controversy when considering the concept of a genuine link is whether the term genuine link is concerned merely with a flag state’s duty to effectively exercise jurisdiction and control in administrative, technical and social matters or whether it is a condition sine qua non for there to be a grant of nationality to a ship. Unfortunately in both the M/V “SAIGA” (No. 2) and the M/V “Virginia G” cases, the ITLOS has incorrectly held the former to be the correct meaning of the genuine link. Judge Quintana foresaw this dangerous path in his dissent in the IMCO case before the ICJ where he had observed that,
“The flag-that supreme emblem of sovereignty which international law authorizes ships to fly-must represent a country’s degree of economic independence, not the interests of third parties or companies.”
Indeed, the conferral of nationality and registration which follows the conferral of nationality, does not simply serve private functions. First and foremost, it serves public functions, such as subjecting a ship to state jurisdiction for regulatory purposes, allowing ships to engage in maritime activities in territorial waters and crucially as in the current case, determining rights relating to naval and political protection and utilization of the ship during war. These public functions are now amply at display with everyday Russian shipping finding its freedom of movement circumscribed owing public considerations wholly outside the scope of their day to day private functioning.
Determining Nationality Under the Law of Naval Warfare
While the requirement for a genuine link has a very tumultuous history in the peacetime law of the seas, this has not been the case with the law of naval warfare. States have always maintained that a different set of rules apply during a war. The San Remo Manual is an authoritative restatement of the law of naval warfare. It makes clear that during an armed conflict, enemy character can be determined not just by registration, but by ownership, charter or other criteria as well. Crucially however, this provision is pertinent only in between belligerents in an armed conflict.
Canada and the UK are not belligerents in the ongoing conflict. Nor are they acting pursuant to the U.N.S.C’s mandate. Consequently, the legal grounding for their actions indisputably lies in the peacetime law of the seas and not the law of naval warfare. And in adopting measures targeting shipping on the basis of their affiliation to or links with a state and its nationals, they have clearly indicated that the flag flown by a vessel may be ignored if it in fact lacks a genuine link with the flag state.
This willingness to pierce the veil of ship registration is very significant since it represents a step in the direction of interpreting nationality requirements in a similar fashion under both the peacetime law of the sea and the law of naval warfare. Inter alia, this also has wide ranging implications for the entire maritime industry, which has grown accustomed to functioning with open registries and flags of convenience as an unshakable article of faith. Moreover, these decisions have hardly drawn any controversy or opposition from the community of states. Tentatively, one might conclude that this indicates a widely shared agreement among states on this point of law. Any forthcoming action by the EU and the United States of America on the limitation of Russian shipping should certainly unearth even more state practice that would help confirm or reject the same.