Must a Ship on the High Seas Fly the Flag of a State

[Pandor]

The recent thread on flying a US "state" flag made me want to share this legal treatise that I found interesting.

https://lawpublications.barry.edu/cg...ltyscholarship

Under International Law, Must a Ship on the High Seas Fly the Flag of a State in Order to A void Being a Stateless Vessel?

It is a bit long winded and written as only a lawyer can write, but it does seem to answer the question (I won't spoil it). It also presents an interesting drug smuggling case that arose approximately 280 miles from the coasts of Ecuador and Costa Rica. The small "go-fast" boat contained 680 kilograms of
cocaine and "lacked any prominent identifying features;" however, there was
"a small emblem of what appeared to be an Ecuadorian flag that had been
affixed to the boat's rear starboard side."

The United States claimed, "it was not 'flying its nation's ensign or
flag,' and was therefore 'stateless' under the law."

[Zanshin]

Back in the day flags were expensive to make, so the British state that the ensign only needs to be worn at sea when there is another ship in sight. Likewise, the ensign can be taken down where there is insufficient light to see it.

I once got approached by the Montserrat marine police while passing the island and I'd taken down my ensign on passage; I'd not noticed them approaching and the first thing they demanded was that I fly my ensign, which I did.

[Shrew]

A point of clarification. In the other post they are talking about United States State flags. Here they are using the term 'State' to refer to a Country. (e.g. The US State Dept. deals with foreign countries, not States within the 'Union').

[goboatingnow]

These days it would be unwise to sail without an identifying ensign at all times, Drugs interdiction, Refugees,etc , the seaways are not the same as the 1780s!!!!

[geoff3nebel]

I fly mine (UK flagged) when there’s another vessel in sight and lower it at all other times including during hours of darkness. Mine’s hand sewn, not printed, and quite expensive.

[cottonsail]

When I was in the US Navy we crossed the equator. We had a "shellback" initiation ceremony. This took most of the day because of the 3500 crew only 500 were already shellbacks to do the initiation. While this initiation was going on the US flag came down and the USS Intrepid flew a Jolly Roger!

[Montanan]

Flag state is of keen importance as to international waters.

UNCLOS articles of most relevancy.

Article91

Nationality of ships

1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.


Article92

Status of ships

1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.


Article93

Ships flying the flag of the United Nations, its specialized agencies
and the International Atomic Energy Agency

The preceding articles do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization.

Article97

Penal jurisdiction in matters of collision or any other incident of navigation

1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.

3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.


Article98

Duty to render assistance

1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:

(a) to render assistance to any person found at sea in danger of being lost;

(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;

(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.

2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

Article110

Right of visit

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.

[CaptTom]

Originally Posted by cottonsail

... the US flag came down and the USS Intrepid flew a Jolly Roger!

And who, exactly, is going to try to enforce that law against the USS Intrepid?

[Pete7]

Originally Posted by CaptTom

And who, exactly, is going to try to enforce that law against the US?

It might have been over 250 years ago, but we are still considering our options

[slipaway]

All ships must claim (and generally be able to prove) a nationality, that is a "flag state." The flag a ship actually flies may or may not be proof but is generally indicative of the nationality. It is not a requirement the flag be actually flown, but as noted in one of the posts above, international law recognizes the right of a warship on any nation to approach and request the nationality of a vessel when there is any question. If that "proof" is insufficient, the warship may board the vessel to review its papers and verify its nationality. So when they talk about the "flag" of a vessel they don't necessarily mean the actual flag of that country needs to be flown all the time but failure to fly one, particularly when queried by an enforcement or naval vessel may raise suspicious and be a cause for further inspection.

And the flag of a US state doesn't count. The nationality of a US state registered or CG documented recreational vessel is the United States and that flsg would be the proper one to display. No harm in a US state flag, just it doesn't really mean anything under international law.

[Jono as 2234]

Red Ensign

Take it down at night, unless lit. The sun must never set on Her Maj

[slipaway]

All ships must claim (and generally be able to prove) a nationality, that is a "flag state." The flag a ship actually flies may or may not be proof but is generally indicative of the nationality. It is not a requirement the flag be actually flown, but as noted in one of the posts above, international law recognizes the right of a warship on any nation to approach and request the nationality of a vessel when there is any question. If that "proof" is insufficient, the warship may board the vessel to review its papers and verify its nationality. So when they talk about the "flag" of a vessel they don't necessarily mean the actual flag of that country needs to be flown all the time.

And the flag of a US state doesn't count. The nationality of a US state registered or CG documented recreational vessel is the United States and that flsg would be the proper one to display. No harm in a US state flag, just it doesn't really mean anything under international law.

[Wallaby]

Originally Posted by slipaway

And the flag of a US state doesn't count. The nationality of a US state registered or CG documented recreational vessel is the United States and that flsg would be the proper one to display. No harm in a US state flag, just it doesn't really mean anything under international law.

Except when the owner is a resident alien, in which case the vessel is 'unflagged' and state registration does NOT count. It will then take the 'flag' of the owner.

[dadster3]

This is interesting to note. I was thinking about flying a UN flag if I could. Guess not.

[Wallaby]

Originally Posted by dadster3

This is interesting to note. I was thinking about flying a UN flag if I could. Guess not.

I doubt the UN will save you when pirates come aboard.