The 1921 Flag Right Declaration

For this new Space Law article on Space Legal Issues, let’s have a look at the 1921 Flag Right Declaration and ask ourselves the following question: can landlocked countries own and operate ships?

The Declaration recognising the Right to a Flag of States having no Sea-coast (French: Déclaration portant reconnaissance du droit au pavillon des Etats dépourvus de littoral) is a 1921 multilateral treaty (a treaty to which three or more sovereign states are parties) which legally recognised that a landlocked state (a landlocked state or landlocked country is a sovereign state entirely enclosed by land, or whose only coastlines lie on closed seas) could be a maritime flag state (the jurisdiction under whose laws the vessel is registered or licensed, and is deemed the nationality of the vessel); that is, that a landlocked state could register ships and sail them on the sea under its own flag.

International law, also known as public international law or law of nations, recognises the right of any state to sail ships on the sea under its own flag. Today, some of the landlocked states which have merchant vessel fleets include Austria, Azerbaijan, Bolivia, Ethiopia, Hungary, Laos, Luxembourg, Mongolia, Moldova, Paraguay, Slovakia and Switzerland, though of these, only Ethiopia, Laos, and Mongolia have no river/sea port from which the high sea can be reached.

History

In the first two decades of the 20th century, there had been uncertainty as to whether a landlocked state could register maritime ships and authorise them to sail under its flag: the Republic of France, the United Kingdom, and the Kingdom of Prussia had argued that such a right could not exist because it would place a landlocked state in the position of being unable to control the behaviour of ships because of the state’s inability to unreservedly access ports and the sea. Prior to World War I, Switzerland had denied several requests from merchant ships to fly the Swiss flag.

After World War I, the creation of several new landlocked states, such as Czechoslovakia, Austria, and Hungary, caused the Great Powers to reconsider the issue. The Treaty of Versailles (the most important of the peace treaties that brought World War I to an end) had included provisions by which Germany agreed to allow these landlocked states to transit goods and personnel across German territory freely to seaports, which suggested that such states may also have their own merchant vessels in such ports.

The 1921 Flag Right Declaration was created to reflect the new consensus and was concluded and signed on April 20, 1921 by twenty-five states in Barcelona, Spain, at the League of Nations Conference on Communications and Transit, as an addendum to the longer Barcelona Convention and Statute on the Regime of Navigable Waterways of International Concern, which was concluded on the same day. The 1921 Flag Right Declaration entered into force on October 8, 1921.

The 1921 Flag Right Declaration

The historical development of tonnage, ship registration, classification societies and national and international law for flag state responsibility is recounted, along with the large increase in numbers of non-traditional flag states and classification societies over the past fifty years. The Law of the Sea Convention provides for a state to grant its nationality to ships, for those ships to be surveyed before registration, and for a flag state to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. A State has the sovereign right to determine conditions for grant of its nationality and this can lead to derogation of flag state responsibility with implications for safety of ships.

The 1921 Flag Right Declaration simply states that “The undersigned, duly authorised for the purpose, declare that the States which they represent recognise the flag flown by the vessels of any State having no sea-coast which are registered at some one specified place situated in its territory; such place shall serve as the port of registry of such vessels.

Barcelona, April the 20th, 1921, done in a single copy of which the English and French texts shall be authentic”.

As we have seen, a merchant ship on the high seas must possess the right to fly the flag of a particular State. Before the World War I in the 1910s, there was some doubt as to whether a State without a sea-board could claim the right to a maritime flag. The question was raised in Switzerland several times, but on each occasion, the Swiss Federal Council declined to give permission to Swiss subjects to use the national flag at sea. They were consequently compelled to use the flag of some other State. The reasons given by those who were opposed to the use of a maritime flag by inland countries were that the ships were dependent on the goodwill of other nations for the use of their ports, and that the responsibility which results from a ship’s nationality can only be real if the ship belongs to a port of a State and that on its return to that State, the captain, crew and passengers could be punished for any offences they may have committed at sea.

However, under the Treaty of Versailles, 1919, the High Contracting Parties agreed to recognise the flag flown by the vessels of an allied or associated Power having no sea-board which are registered at some one specified place situated in its territory, which was to serve as the port of registry of such vessels (art. 278). The Treaty of Saint-Germain (1919) (art. 225); the Treaty of Trianon (1920) (art. 209); and the Treaty of Neuilly (1919) (art. 158) similarly grant to all the contracting Powers the privilege of recognition of their respective flags.

At Barcelona, the States which had participated in the Conference on Communications and Transit, signed on April 20, 1921, adopted a “Declaration” which substantially incorporates the provisions contained in the Peace Treaties, by recognising the right to a flag of the vessels of States having no sea-coast which are registered at some one specified place situated in their territory; such place shall serve as the port of registry of such vessels. The principle of the recognition of the flag of a non-maritime State has thus been accepted by a large body of Powers.

Concluding remarks

In the upcoming years, with the multiplication of space objects in Low Earth Orbit (LEO) or Geostationary Earth Orbit (GEO), with the development of new practices in the space industry, and the possibility of new services in outer space, the question of “jurisdiction and control over a spacecraft” might take importance.

If the International Community was to develop ways to regulate space traffic, as part of what is called Space Traffic Management, by elaborating new laws or taxes and, for example, asking the most space-present states to pay for the access to outer space (which might be contrary to the provisions of Article I of the 1967 OST which states that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies”), the question of choosing the State of registry might arise.

It could not be impossible that, considering the provisions of Article I of the 1967 OST which states that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies”, there might be issues concerning the Geostationary Earth Orbit (GEO), a circular geosynchronous orbit 35 786 kilometres above Earth’s equator (and following the direction of Earth’s rotation).

Geosynchronous Earth Orbit (GEO), or Clarke orbit (from Arthur C. Clarke, who first proposed placing communications satellites in such an orbit), has long been recognised as prime, and scarce, real estate. Starting as a measure for spectrum management, the international community agreed in the 1960s to regulate the assignment of slots in the GEO belt through the International Telecommunications Union (ITU). Today, any company or nation planning to launch a satellite to GEO must apply to the ITU for an orbital slot, and popular regions over North America, Europe, and eastern Asia have become so congested that few or no slots are left for new entrants to the market. With most of the so-called hot orbital slots taken, what opportunities remain for satellite operators to develop new positions or make better use of the existing slots?

The Geostationary Earth Orbit (GEO) is part of outer space and, as such, the customary principle of non-appropriation and the 1967 Space Treaty apply to it. Some equatorial states have claimed sovereignty, then preferential rights over this space. These claims are contrary to the 1967 Treaty and customary law. However, they testify to the concern of the equatorial countries, shared by developing countries, in the face of saturation and seizure of geostationary positions by developed countries. The regime of res communis of outer space in Space Law (free access and non-appropriation) does not meet the demand of the developing countries that their possibilities of future access to the geostationary orbit and associated radio frequencies are guaranteed.

New rules appear necessary and have been envisaged to ensure the access of all States to these positions and frequencies. Among those, the question of taxing some countries possessing too many orbital slots might make sense. We might therefore see a new business of “spacelocked countries” selling their orbital slots arising…