Taming the Beast: How the International Legal Regime Creates and Contains Flags of Convenience

Centuries-old maritime jurisprudence continues to guide the law of the sea today. These baseline understandings are necessary to maintain order of the largest international commons, the sea. The seas’ central role in globalization, though, strains some of this established law. In particular, the question of jurisdiction has become increasingly complex as ships regularly ply every ocean and visit ports in dozens of countries. Many of these ships are actually subject to the exclusive jurisdiction of States with which they have no connection and which have limited incentives to regulate. This paper explores how this jurisdictional non sequitur arose, and when international law permits concurrent jurisdiction. Specifically, this paper emphasizes when U.S. courts can reach activities on the seas. The limits on regulating the maritime commons inherent in a Westphalian system of nation-States has long been resolved by assigning regulatory, criminal, and civil jurisdiction to a vessel’s State of Registration. In other words, the laws of the nation that charter the vessel – which corresponds to the flag the ship flies – govern most aspects of the ship’s operations as well as personal conduct onboard. This compromise is referred to as the “law of the flag.” Cite as: 19 Annl. Survey Int\u27l. Comp. L. 263 (2013)