CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE ISSUE OF COMPARISON OF STATELESS PERSON WITH STATELESS SHIP … navigation, protection of the maritime environment etc., and thus the registration of the ship should not be treated as a mere formality. The lack of genuine link might be considered as a violation of international law; however, it cannot result in a loss of the ship’s nationality or rejection of the recognition of the ship’s nationality. 54 4.1 A stateless ship on the high seas International maritime law reflects the interests of the international community to maintain the legal order of the oceans . This concept is postulated on the nationality of the vessels navigating on the high seas. 55 It is dangerous to have ships on the high seas which are not subject to the jurisdiction of any state, because the presence of these vessels does not comply with the generally accepted legal regulations ensuring the minimum public order at sea. 56 In case the state, which in fact has a genuine link towards the ship, fails to register such vessel, it might forfeit the right of the ship to undisturbed navigation due to the need for predictable orderliness and safety for commercial and military craft of all states in international waters. Thus, ships without a nationality lose the protection of international law in regard to boarding and seizure on the high seas, otherwise these vessels would be completely immune from interference on the high seas. Stateless ships are quasi res nullius, they fall under the full jurisdictional scope of the boarding state. 57 The UNCLOS stipulates the right of visit in Article 110(1)(d) which provides the authority to a warship to board the stateless ship sailing outside the territorial waters of any state. The right to visit does not ipso facto entail the full jurisdiction of the boarding state. The powers conferred upon the warships of all states are similar to general police measures. The right to board the vessel and verify statelessness is fully acknowledged. The purpose of such right is maintaining the public order at the sea and ensuring the vessels respect the international regulations. 58 Other instances, which would give the warship reasonable grounds to stop the ship, is that the warship suspects the vessel of carrying slaves (Article 99), of being a pirate ship (Article 105), of being engaged in unauthorised broadcasting (Article 109), or because of flying a foreign flag or refusing to show its flag and the ship is, in reality, of the same nationality as the 54 ONDŘEJ, J. Otázka státní příslušnosti z hlediska současného mezinárodního práva (skutečné pouto ve vztahu k fyzickým osobám a lodím). [The issue of nationality (state citizenship) from the perspective of current International law (genuine link in relation to natural persons – individuals and ships)] In: ŠTURMA, P. (eds). Jednotlivec v mezinárodním právu na počátku třetího tisíciletí: lidskoprávní, investiční a další křižovatky. [Individual in international law at the beginning of the third millenium: Human Rights, investment and other intersections] Praha: Nakladatelství Eva Roztoková, 2018, pp. 56–68. 55 There might be formulated an opinion that the international maritime law does not require a ship on the high seas to have a flag state, which registered the ship. This might be based on the grammatical interpretation of the provisions of the Art. 91 of UNCLOS stating that ‘the state shall fix the conditions for grant of its nationality to the ships, for the registration of ships in its territory, and for the right to fly its flag’ . Based on such interpretation, it might seem that there does not exist any explicit rule of international law which requires the ship to be registered. It might make impression that it is rather a customary that the ship shall possess the nationality, so the ship is allowed to enjoy the freedom of navigation on the high seas. MCDORMAN, T. L. Stateless Fishing Vessels. In: Journal of Maritime Law and Commerce. 1994, vol. 25 (4), pp. 531–537. 56 PAPASTAVRIDIS, E. The Interception of Vessels on the High Seas, Contemporary Challenges to the Legal Order of the Oceans. Oxford: Hart, 2013, p. 265.

57 Ibidem. p. 264. 58 Ibidem, p. 266.

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