UKRAINE – A COUNTRY OF A FLAG: “GENUINE LINK” CONCEPT IN THE CONTEXT OF LEGAL (MARITIME) DOCTRINE (PART II. NOWADAYS)

Abstract

The article looked into the definition, content and role of ship registration as the element of ensuring the “genuine link” between Ukraine and Ukrainian ships (ships of Ukraine). The author notes the existence of numerous scientific studies concerning the definition, content and volume of the concept of “ship registration”, and, as a result, the absence of the common understanding, which complicates the formation of the “genuine link” concept. The author formulates his personal understanding of the definition, content and volume of the concepts “high sea”, “freedom of the high sea”, “freedom of maritime traffic”, “right of maritime traffic”, “flag state”, “flag ship”, “genuine link”, “registration of shipd”. It is noted, that with the accession to the UN Convention on the Law of the Sea (UNCLOS 82) from 1982, Ukraine acquired, in particular, the legal status of a “member state” and the “flag state”, which should provide real connection with registered ships. The proof of the “genuine link” existence is the possession of the relevant documents issued by the flag state of the flag ship. In particular, the existence of these documents indicates that they were issued after the following was met: 1) the conditions for giving nationality; 2) the conditions for registration; 3) the conditions for giving the right to fly the flag of the state that determined these conditions; 4) the flag state maintains the register of flag ships with their data. The author combines the concept of “registration of ships”, the above “conditions” for the analysis of their content as separate components, understanding the “registration of ships” as one of the elements to ensure the existence of “genuine link”, in particular to analyze the requirements of UNCLOS 82 concerning the “registration of ships” on the territory of Ukraine. The author concludes that the conditions for registration of vessels on the territory of Ukraine comply with the provisions of UNCLOS 82, but the term “genuine link” is not used in the Merchant Marine Code of Ukraine. UNCLOS 82 does not set standards which these “conditions” should meet. They are established in the norms of national legislation and in international agreements. The author emphasizes the need to include the concept of “genuine link” to the formation and implementation of legal (maritime) doctrine for Ukraine.