No entry for Pakistan-flagged ships in India: How ships choose their flags and what they signify

The 1958 Act deals with ships with Indian flags anywhere in the world and ships with foreign flags while in Indian waters “to ensure safety of life at sea and safety of ships”. But what exactly is the function of flags in shipping?

What do the flags of countries mean in shipping?

Flags on ships foremost show which country the vessel has been registered with, rather than the owner or the crew’s nationality.

As the International Maritime Organisation (IMO) says, “By linking a ship to a State, the system of ship registration indicates that that State has the right to protect that ship in international law.” This identification becomes necessary also because ships move through international waters, which are not under the jurisdiction of any state.

Under the framework of international law, all countries need to fix the conditions for granting their nationality to ships and the right to fly their flag. However, there is currently no common, binding framework for the registration process.

According to the DGS website, the registration affords evidence of title of the ship to those who deal with the property in question. It further gives protection to the members of the crew in case of casualties involving injuries and/or loss of life to claim compensation under the provisions of the Indian Acts in Indian courts.

Countries must also exercise their jurisdiction and control in administrative, technical and social matters over ships flying their flag. The responsibility for monitoring ships’ compliance with international standards on safety, pollution prevention and on-board living and working conditions lies primarily with the flag state.

Can any ship fly any country’s flag?

The 1982 United Nations Convention on Law of the Sea (UNCLOS) is the global treaty on maritime activity. It states that a “genuine link” must exist between the state and the ship registered with it, but again, there is no definition of such a link.

One Cardiff University study (“The meaning of the “genuine Link” requirement in relation to the nationality of ships”, 2000) found that it has been interpreted as the effective exercise of jurisdiction and control over ships. It can include a country instituting necessary mechanisms to grant a ship its nationality, like “having suitably qualified personnel for carrying out the necessary surveys of the ship, checking the certification of the crew, etc.”

The idea behind a genuine link is to secure more effective implementation of the duties of the flag state. At times, the problem of fraudulent registration of ships has been raised. For instance, the Democratic Republic of the Congo (DRC) said in 2017 that approximately 73 vessels had been fraudulently using its flag and illegally fishing in its waters.

How do ships choose, then?

Some countries only register vessels with ties to the country through ownership or crewing (“closed registries”). Other countries allow foreign-owned or controlled vessels to use their flag through an “open registry”. Still others choose not to allow the use of their flag for international trade at all. Open registries are now widely used around the world, the IMO says.

A 2023 article in The Diplomat said that flagging a ship can mean a vessel has access to state-specific tax breaks, certification, and security measures. This is known as the “flag of convenience,” where ships choose states that offer the most benefits. “To that end, most merchant ships are registered in only a handful of countries, with the top eight flag states for 2023 listed as Panama, Liberia, the Marshall Islands, Hong Kong, Singapore, China, Malta, and the Bahamas,” it said.