The international regulatory system for the oceans is to a considerable extent dependent upon the effective exercise of flag state responsibilities but general concerns have been raised that some flag states are not fulfilling their international obligations under the international law of the sea.
This article examines the issue of institutional reactions by international organizations against the flag state that has failed to discharge flag state responsibilities, with a view to establishing under what conditions actions may be taken under international law. It analyzes the constitutive instruments and practice of bodies concerning the conservation and management of fisheries resources, three different types of institutions involved in the supervision of the implementation of treaties concerning ship safety, marine environmental protection, maritime labour and maritime security, and the potential role of the United Nations Security Council and the United Nations General Assembly. On the basis of the findings in the above analysis, the article discusses legal requirements for institutional reactions to the flag state that has failed to discharge flag state responsibilities, examining both the internal rules of organizations and general international law, including the Articles of the International Law Commission on Responsibility of International Organizations.
* Research Associate, Netherlands Institute for the Law of the Sea, School of Law, Utrecht University. Research for this article was conducted as part of the post-doctoral research project entitled ‘Non-compliance by the flag state of the duty to effectively exercise jurisdiction and control over ships flying its flag: the possibilities for other states to take action against the flag state’, funded by the Netherlands Organization for Scientific Research (NWO): Dossier Number 400-04-184. The author is grateful to Prof. A.H.A. Soons, Dr. A.G. Oude Elferink and Prof. E.J. Molenaar for their comments on earlier versions of this article.