7.2.2 Collisions at sea 7.2.3 Exceptions to the flag state’s exclusive jurisdiction : Collisions at sea may involve two states, each of which considers the collision and those responsible for it to be within its jurisdiction. The existence of concurrent jurisdiction was upheld by the PCIJ in the Lotus case (1927). rule was much criticised and the position is now set out in Article 11 of the HSC and Article 97 LOSC which provide that penal and disciplinary jurisdiction in

doi:10.4324/9781843143802-103

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7.2.2 Collisions at sea 7.2.3 Exceptions to the flag state’s exclusive jurisdiction

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ABSTRACT

was confirmed in Articles 5 and 6 of the HSC. However, in addition to the traditional doctrine HSC attempted to impose a requirement that there be a genuine link between ships and the flag state. The requirement of a genuine link was repeated in Article 91 of the LOSC. The practice of states, however, has not always followed the conventions and there is still widespread use of ‘flags of convenience’ resulting in there being an absence of any genuine link between flag state and ship. The requirement of a genuine link was also questioned during the Iran-Iraq war and the run up to the Gulf War when the practice of ‘re-flagging’ oil tankers was used to bring the tankers of smaller states under the protection of the US, UK and Soviet navies. Both HSC and LOSC require that ships sail under the flag of one state only and ships which sail under more than one flag are considered to be without nationality.