Bernaerts' Guide _UNCLOS 1982
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Book page 44-45


Section: Part VII, Articles 86-120


Every state has the right to have a merchant fleet under its flag, and the vessels in this fleet are entitled to use the high seas.[1] But this right is coupled with obligations. As there is no sovereign authority of a state or other agency to maintain law and order on the high seas, there must be some tie to the jurisdiction of a state. According to common international law, which is confirmed by the Convention, the flag state in general exercises exclusive jurisdiction over a vessel on the high seas.[2] The Convention's provisions are part of a complicated network of public international laws, rules, and regulations, but they also represents the general rules which serve as basic principles for the entire network of international public law of the sea.[3]

The flag state's initial obligation is to maintain a registry of all ships entitled to fly its flag[4] and to issue documents to this effect to such ships.[5] As a result of this procedure, the ship has the nationality of the country whose flag it flies.[6] However, states are permitted to grant their nationality to vessels only when there is a "genuine link"[7] between vessel and state, a term not defined by the Convention, but which is to be interpreted as a strong economic tie between nationals of the flag state and the vessel with regard to ownership, management, and manning of the ship. In order to prevent changes of flag for convenience, vessels sailing under the flags of two or more states may be assimilated to a ship without nationality.[8]

Upon registering the vessel, the flag state must ensure that the ship complies with international safety standards. It must exercise its jurisdiction and control in administrative, technical, and social matters over vessels flying its flag.[9] A broad listing of measures to be taken would include construction of equipment, seaworthiness, manning, labour conditions, training of crew, means of communication, prevention of collisions, and regulations and inspections.[10] In taking these measures, the state is obliged to conform to generally accepted international regulations, procedure, and practice,[11] which means for all practical purposes applying IMO (International Maritime Organization) and ILO (International Labour Organization) conventions and standards. Where there are clear grounds for believing that proper Jurisdiction and control are not being exercised over a ship, other states may report the facts to the flag state.[12]  

[1] Art. 90,  
[2] Art. 92,   Para . 1, 
Art. 311; 304,   
[4] Art. 94, Subpara. 2(a), small vessels are exempted., 
[5] Art. 91, Para . 2,
[6] Art. 91, Para . 1,  
Art. 91, Para . 1, 
[8] Art. 92, Para . 2; see Art. 110, Subpara1 (d),
[9] Art. 94, Para . 1, 
[10] Art. 94, Para . 3-4,  

[11] Art. 94, Para . 5, 
[12] Art. 94, Para . 6, 
Art. 94, Para . 7,  
[14] Art. 97, Para . 1-2, 
[15] Art. 97, Para . 3,  
[16] Art. 94, Para . 7,  
[17] Art. 304 (e.g. Pollution 229); Preamble, last paragraph   
Art. 98, 
[19] Art. 98, Subpara. 1(c

 In cases of collision or incident on the high seas involving loss of life or serious injury or serious damage, other states may cause an inquiry to be held,[13] although penal or disciplinary procedures remain basically under the jurisdiction of the flag state[14] as does also the right to arrest or detain vessels in such cases (e.g., for penal or investigative purposes).[15] The flag state and the other state are to co-operate in the conduct of any inquiry.[16] It should be emphasized that the regulations of the Convention do not affect private law and civil claims and rights,[17] e.g., application in court for arrest of a ship arising from a claim for compensation for damages caused by the ship.

Finally, the flag state must require masters of vessels of its nationality to render assistance to any person in danger of being lost or in distress in so far as this can be done without serious danger to his own ship.[18] In the case of involvement in a collision, assistance to the other ship is to be provided.[19]  

[1] Art. 90,  [2] Art. 92,   Para . 1,  [3] Art. 311; 304,   [4] Art. 94, Subpara. 2(a), small vessels are exempted., [5] Art. 91, Para . 2, [6] Art. 91, Para . 1,  [7] Art. 91, Para . 1, [8] Art. 92, Para . 2; see Art. 110, Subpara1 (d),  [9] Art. 94, Para . 1,  [10] Art. 94, Para . 3-4,  [11] Art. 94, Para . 5,   [12] Art. 94, Para . 6,  [13] Art. 94, Para . 7,  [14] Art. 97, Para . 1-2,  [15] Art. 97, Para . 3,  [16] Art. 94, Para . 7,  
[17] Art. 304 (e.g. Pollution 229); Preamble, last paragraph,   [18] Art. 98, [19] Art. 98, Subpara. 1(c

Further Readings :  
   - Flag States , Register States , Flag of Convenience State . (Commentary) 
- Ships-Vessels, Navigation. (Commentary) 

- Safety of Shipping. (Commentary)

Next page 46-47

Book published:
1988 Fairplay/UK,
2005 (reprint) by

Trafford Publishing,
1663 Liberty Drive Suite 200
Bloomington, IN 47403, Canada.

329 pages, ISBN 1-4120-7665-x;

Available via online-contributer 




Online – Edition

Bernaerts' Guide to the 
1982 United Nations
Convention on the Law of the Sea


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Bernaerts Guide -UNCLOS 1982

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Preface of the reprint in 2005

More than 15 years ago FAIRPLAY PUBLICATIONS Ltd, Coulsdon, Surrey, England, published the book "Bernaerts' Guide to the Law of the Sea - The 1982 United Nations Convention". The guiding potential of the book to find access to the Law of the Sea Convention is still given. Internet technology and publishing on demand invite to provide the interested reader and researcher with this tool again. Only the Status of the Convention (ratification etc) has been updated and instead of the Final Act, the book edition includes the "Agreement relating to the Implementation of Part XI of the United Nations Convention of the Law of the Sea" of 1994. The corresponding web site neither includes the text of the 1982 Convention, nor the Agreement of 1994. The thorough Index of the 1988 edition is reproduced without changes.
Arnd Bernaerts, October 2005,
Comments 1988-1990
___"an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea"
Satya N. Nandan, U.N. Undersecretay, in: Book Foreword, 1988
__"clearly presented" R.R. Churchill, in: Maritime Policy & Management 1989, p. 340
__"the (book's) concept, which is so wonderful simple, is exactly the factor which makes the book so useful for both the novice as well as the person with extensive experience"
M. Bonefeld, in: Verfassung und Recht, 1989, pp. 83-85
__"the work contains much useful background information…." R.W. Bentham, in: Journal of Energy & Natural Resource Law, 1989, p. 336
__"Bernaerts has saved us a struggle" JG, in: Fairplay Shipping Weekly Magazin, 13th October 1988, p. 33
__"this is probably the best edition on the Convention to put into the hands of students"
A.V. Lowe, in: Int'l and Comparative Law Quarterly 1990, p. 16
__"it will be an invaluable reference tool and should sit on the book shelves of policy makers and all others who are involved in maritime matters"
Vivian I. Forbes, in: The Indian Ocean Review, May 1990, p.10

Bernaerts’s Guide to the 1982 United Nations Convention on the Law of the Sea

FOREWORD of the 1988 edition
by Satya N. Nandan
Special Representative of the Secretary-General of the United Nations for the Law of the Sea Office for Ocean Affairs and the Law of the Sea

Revolutionary changes have taken place in the International Law of the Sea since 1945. The process of change was accelerated in the last two decades by the convening in 1973 of the Third United Nations Conference on the Law of the Sea. The protracted negotiations, spanning over a decade, culminated in the adoption of the United Nations Convention on the Law of the Sea in 1982. By 9 December 1984, the closing date for signature, 159 signatures were appended to the Convention, the largest number for any such multilateral instrument in the history of international relations.

The Convention, which was adopted as a comprehensive package, introduced a new equity in the relationship among states with respect to the uses of the ocean and the allocation of its resources. It deals, inter alia, with sovereignty and jurisdiction of states, navigation and marine transport, over flight of aircraft, marine pollution, marine scientific research, marine technology, conservation and exploitation of marine living resources, the development and-exploitation of marine non-living resources in national and international areas, and unique provisions dealing with the settlement of disputes concerning the interpretation and application of the new regime.

There is no doubt that as we approach the 21st century, more and more attention will be paid to the uses of the oceans and the development of their resources. It is important, therefore, that these developments should take place within a widely accepted legal framework so that there is certainty as to the rights and obligations of all states. The United Nations Convention on the Law of the Sea provides that framework. It establishes a standard for the conduct of states in maritime matters. It is thus a major instrument for preventing conflicts among states.

The convention and its annexes contain over 400 articles. For many it may be a formidable undertaking to grasp the substance and structure of it without making a considerable investment in time and energy. Mr Bernaerts' guide, therefore, is a welcome addition to the growing body of literature on the convention. It provides a most useful reference tool which will benefit administrators and policy makers, as well as scholars. It makes the convention accessible to the uninitiated and refreshes, at a glance, the memories of the initiated. With meticulous references and graphic presentations of the provisions of the convention, Mr Bernaerts has given to the international community an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea.
April 1988

PREFACE (extract) of the 1988 edition

The reader will be aware that the 1982 United Nations Convention on the Law of the Sea is the first constitution of the oceans, a ground-breaking document in many respects. He or she might also have made the discovery that the full text of the Convention is immediately accessible only to experts. If the Convention were only a treaty consisting of straightforward technical regulatory provisions, it could be left to them with a clear conscience. But the Convention is to a large extent a political document and, as such, is expected to influence significantly the development of relations among the states in the world community; for this reason, a wide-spread knowledge of the scope, goals, and regulatory framework of the Convention can only serve to further the aims of the document and would surely follow the intentions of the many men and women who made this Convention their life-work, such as Arvid Pardo (Malta), Hamilton Shirtey Amerasinghe (Sri Lanka), Tommy T. B. Koh (Singapore), and Satya N. Nandan (Fiji), to name only a few of the hundreds who worked on the preparation of this Convention.
As the reader uses the Guide (Part II), he will find that many provisions of the Convention are much easier to understand if one knows the basic framework within which a particular regulation is placed. The Guide aims to provide this framework, with reference to the text of the Convention and, in addition, t& the supporting Commentary of Part III, which describes the overall context of the major terms arid concepts. The Introduction of Part I sketches the historical background of the Convention and some of the general effects. A detailed index at the end of the book will be of assistance in finding specific subjects.


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