국제해양법상 선박과 기국간 '진정한 관련'에 관한 연구

Abstract

It has been a general principle that flag states exclusively exercise their jurisdiction and control over ships flying their flag to guarantee security and maintain public order on the High seas. However, As ‘flag of convenience’ that government of the vessel’s flag does not strictly exercise their function began to emerge, serious maritime problems, such as issues of maritime safety, negative effect on marine environment, have been raised.

In order to solve those problems, an attempt to restrict each state’s right to grant its nationality to ships has been made. Finally, the 1958 Geneva Convention on the High seas and the 1982 United Nations Convention on the Law of the Sea provide that there must be a ‘genuine link’ between a ship and the state granting its nationality upon that ship.

However, there is no shared definition about what a ‘genuine link' truly means and there are no guidelines about what could happen if a ‘genuine link' did not exist, which causes some dispute about the issues of interpreting or applying concept of ‘genuine link’ both between some scholars and between states.

Recently, Duties and responsibilities of flag states are getting stronger to solve the problems

piracy, pollution of the marine environment, protection and conservation of the marine living sources, IUU(Illegal, Unreported, Unregulated) fishing. The thing to note is that ‘genuine link’ between ships and flag states is currently being reviewed in assigning strict responsibility to flag states.

Despite indefinite meaning for ‘genuine link' between ships and flag states, ‘genuine link' is consistently mentioned as a fundamental component for maintenance of security and public order. Hence, a study on‘genuine link’ is needed at present.

Thus, this study shows background of discussion and process of development about ‘genuine link’ between ships and flag states under the International Law of the Sea. Also, it will analyze claim of parties and judgement of international courts about ‘genuine link' for International Dispute on marine disputes and evaluate its concept and role. Thereby, It makes us look into the conditions for the grant of its nationality to ships under domestic law and relevant precedents as well. Hereafter, it examines the attitude of government about ‘genuine link' between ships and flag states and evaluates coincidence with international law of the sea. Through these processes, this study would be a help to identify current legal status about ‘genuine link’ and propose a effective direction for it.

This article describes the issue of ‘genuine link’ as follow :

The chapter Ⅰ explains the objectives and the scope of this study.

The chapter Ⅱ deals with the meaning of the ‘genuine link’ between a ship and flag states in international Law of the Sea, which emerged to ensure a flag state’s obligation to ships on high seas.

The chapter Ⅲ analyzes international courts’ judgements and the claims of the parties in international legal disputes whose issue of preliminary objection is on a ‘genuine link’ between a ship and flag states.

The chapter Ⅳ examines the attitude of Korea’s domestic laws toward the ‘genuine link’ between a ship and flag states. Through it, their compliance and agreement with International law of the Sea are judged.

Lastly, the chapter Ⅴ, as a conclusion, describes the result of this study and suggests the future interpretation way of ‘genuine link’ between ships and flag states.