4.1 Introduction: The Next after God
Decades after the foresightful work of Schönknecht on ships and the shipping of tomorrow,Footnote 1 technological advancements in the shipping sector have finally reached the point of introducing Maritime Autonomous Surface Ships (MASS) and, with them, the shipmasters of tomorrow (Schönknecht and Bertholdt Reference Schönknecht and Bertholdt1983).Footnote 2
MASS are ships that enjoy variable degrees of the ability to operate independently from human interaction (IMO 2021, para. 3.3). The emergence of MASS is the outcome of the utilization of a range of technological advancements in the shipping sector that alters the level and the pattern of human involvement in the operation and navigation of a ship. As a result, many of those operational and navigational tasks that were to be performed by human beings on board a ship are now delegated to sensors, complex data processes, advanced algorithms, or AI-based systems. Therefore, the need for the presence of human beings on board a ship, or their involvement in its operation and navigation, is affected to variable degrees depending on the level of automation.Footnote 3
The emergence of MASS has had a certain effect on the traditional concept of the shipmaster, which has evolved based on the authorities and responsibilities of the role. Those authorities and responsibilities can be traced back to ancient times, being rooted in the key navigational position of the shipmaster.Footnote 4 From a historical perspective, the salient position of the shipmaster regarding almost all matters concerning a ship and its voyage empowered them with a vast scope of authority and accordingly charged them with various responsibilities (Kay et al. Reference Kay, Mansfield and Duncan1894).
Modern technological advancements in the shipping sector have caused many of those traditional authorities and responsibilities of the shipmaster to pale into insignificance, but they have not completely eradicated the key position of the shipmaster due to the wide scope of the operational and navigational tasks that remain tied to the role.Footnote 5 The fact that these duties were unimaginable to be performed from a location rather than on board the ship, or by an entity rather than a human being, led to the formation of a presumption that the shipmaster is always a human being and performs their relevant duties with regard to the operation and navigation of the ship under their command on board. Based on this presumption, the very traditional concept of the shipmaster connotes a human being physically present on board.
However, along with the advancements in MASS-related technologies, the traditional concept of the shipmaster began to alter. This alteration is due to the possibility for MASS shipmasters to perform their duties from a remote location, typically called a remote operational center. It is also arguable that in the higher levels of ship autonomy – when great numbers of relevant operational or navigational tasks, each vast in scope, are to be performed autonomously – there will be no room left for a human shipmaster. Yet, at least from a legal perspective, this argumentation receives weak approvals.
The current International legal framework does not favor masterless navigation.Footnote 6 Many of the safety-related duties of the shipmaster, as codified under the relevant international instruments, imply that they are to be fulfilled by a human being as the shipmaster. An evident example is the overriding authority of the shipmaster, which enables them to proceed with their professional judgment in situations where the safety or security of navigation is endangered (see IMO 1980, 1993, Article 5(2)).Footnote 7 Due to the very aim of this duty, ensuring the safety of navigation, and taking into consideration that non–human-generated decisions are always accompanied by a certain level of unpredictability, unreliability, and uncertainty, it is safe to assume that this role remains to be taken by human beings.Footnote 8
Moreover, under many of the available national definitions of the term “shipmaster,” emphasis has been added on the shipmaster as a “human” who retains the “command.”Footnote 9 Thus, regardless of how advanced the level of autonomy in a MASS is, the national laws of several flag States require the overall command to be retained by a human as the shipmaster. In higher levels of ship autonomy, this overall command may be exercised through implementing decisions generated by autonomous systems or by supervising the system, always maintaining a way of intervention where deemed necessary. This position aligns with the view of the respondent flag States to a questionnaire conducted by the Comité Maritime International working group on unmanned ships, which unanimously expressed that the role of a shipmaster is to be taken by a natural person directly involved in the operation of MASS (CMI IWG 2017, 3).
Considering this, the chapter proceeds with the assumption that, even in the highest levels of autonomy, a human being must always be in overall command of the ship as the shipmaster. If a human retains the role of the shipmaster, their remote location is legally justifiable. Not only do most of the relevant definitions of shipmaster contain no indication of the necessity of the physical presence on board,Footnote 10 the current technological advancement makes room for a wide range of shipmaster’s tasks to be done remotely. Yet, this finding does not imply that relocating the shipmaster from on board is unaccompanied by a range of legal issues.Footnote 11
Retaining a human being in overall command of the ship is also what paves the way for assessing the applicability of the rules of attribution under the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA; ILC 2001) for the purpose of attribution of the conduct of a remote shipmaster to the flag State, as this chapter aims to do. According to the mandates of ARSIWA, there is no reliable ground for attribution of the conduct of a nonhuman to a State. With regard to MASS, it is vital to establish flag State responsibility that the wrongful conduct concerned can be traced back to a human being, here the shipmaster.Footnote 12
Such an assessment also needs the term “shipmaster” to be defined. This is due to the vagueness of the concept, resulting from the lack of a comprehensive definition of the term despite the significance of the role and position. This vagueness, when accompanied by the alteration in the traditional concept of the shipmaster, as explained earlier, demands a clarification of the term “shipmaster.”
Examples of a definition of the term under the relevant international instruments are not numerous.Footnote 13 Under several national maritime laws and regulations, the concept is defined and yet is referred to by different terms. For instance, the term “Captain” under the Dutch Civil Code or the German Maritime Labor Act is equivalent to the term “Master” under the UK Merchant Shipping Act or the Maritime and Port Authority of Singapore Act.Footnote 14
To avoid terminological confusion, this chapter uses the term “shipmaster” to refer to the person who is in overall command of a ship and holds plenary responsibility for its operation and navigation (Cartner Reference Cartner2022, §§ 1.2.0, 1.2.1, 1.2.2). The approach of using distinguished terms for addressing such a person based on the ownership and utilization of the ship concerned, as is taken under US laws, is also avoided.Footnote 15
This understanding of the term “shipmaster” not only reflects the significance of the shipmaster’s position and their authority and responsibilities in the context of conventional navigation but also remains relevant and reliable when it comes to the operation and navigation of autonomous ships.
The main legal question the chapter addresses is whether relocating the shipmasters from on board has any effect on the attributability of their conduct as individuals to the flag State according to the rules of attribution codified under ARSIWA. In attempting to present a reliable answer to this question, the chapter raises various subquestions: Is there a legal relationship between the shipmaster and the flag State? What are the legal grounds for the attribution of the conduct of the shipmaster to the flag State, based on the rules of ARSIWA, in the case of conventional ships? When, if ever, may these legal grounds be applicable to the remote shipmasters of MASS and their conduct?
The chapter next illustrates how the shipmaster and the flag State are legally and jurisdictionally bound to each other. Subsequently, the rules of ARSIWA on the attribution of the conduct of individuals to States come into play. Upon the evaluation of the application of the rules of attribution on the conduct of the shipmaster as a private person, the chapter further proceeds by illustrating the features that distinguish conventional shipmasters and MASS shipmasters to assess whether those features have any effect on the attributability of the conduct of MASS shipmasters to their flag State.
4.2 The Legal Relationship between the Shipmaster and the Flag State
The question of attribution starts with mapping how the shipmaster and the flag State are linked to each other (ILC 2001, Article 8(1) commentary). Establishing a link between the shipmaster and the flag State, although it does not automatically make the conduct of the shipmaster attributable to the flag State, forms a basis for the application of rules of ARSIWA to the attribution of the conduct of a private person to a State.
Several potential grounds can be imagined for establishing a legal relationship between the flag State and the shipmasters of ships flying its flag. The appointment of the shipmaster to the role is usually based on a legal contract between the shipowner and the shipmaster, which is also a legal basis for the rights and duties of the shipmaster. An important instance is that to be eligible to enter into such a contract, the shipmaster must be sufficiently licensed and certified. As Cartner notes, the legal criteria and the process of obtaining the relevant licenses and certificates are determined and enforced in accordance with the laws of the flag State, taking into account the relevant international rules and standards to the extent ratified and adopted (Cartner et al. Reference Cartner, Fiske and Leiter2009, 98n108). In other words, it is the flag State that enables the shipmaster to enter the contract with the shipowner by warranting them.
When appointed, the shipmaster arguably acts as a conduit through which the flag State enforces its national laws on board the ship flying its flag (Cartner et al. Reference Cartner, Fiske and Leiter2009, 89). Many of these national laws are also international obligations codified under the relevant International law of the sea instruments, imposed either directly on the shipmaster or on the flag State to require the shipmaster to give effect to them. An example is the duty of the shipmaster to render assistance to people in distress at sea, as codified under the International Convention for the Safety of Life at Sea (SOLAS)Footnote 16 and the United Nations Convention on the Law of the Sea (UNCLOS).Footnote 17
Furthermore, the shipmaster has traditionally been acting as the agent of the shipowner, safeguarding the common benefits of the ship and its cargo while voyaging on distant waters or berthing in foreign ports (Gold Reference Gold2004, 57). Although the scope of such agency in the modern era has been subject to limitations, the agent status of the shipmaster is still relevant, especially when it comes to the commercial aspect of a voyage (58). This leads to the stimulating question of whether the shipmaster of a governmentally owned or operated ship acts as the agent of its flag State. Whether that is the case or not, it should be borne in mind that the scope and capacity of this agency are unlikely to be the same as the agency in the sense of the Articles on Responsibility of States for Internationally Wrongful Acts. Therefore, it cannot form, at least solely, a basis for attribution of conduct.
The flag State also has the competency to represent the shipmaster, as well as the right to institute a claim in the case of any loss or damage. As argued by Saint Vincent and the Grenadines in the case concerning the M/V Saiga, the rule of international law with regard to the right of States to protect their nationals is not applicable in cases where the claim concerns a ship flying its flag, things on board it, or all persons involved or interested in its operation. Therefore, the flag State enjoys the right to protect the shipmaster regardless of their nationality.Footnote 18
The legal justification of this argument flows from the content of Article 91(1) of UNCLOS, where it is noted that ships hold the nationality of their flag State. Endowing nationality to a ship creates a jurisdictional link between the flag State and the ship (O’Connell Reference O’Connell1984, 796; see also Guilfoyle Reference Guilfoyle and Proelss2017, Article 91, para. 1, 693). As the International Tribunal for the Law of the Sea (ITLOS) notes in its procedural rule, UNCLOS considers ships and all people involved in their operation as a single unit linked to the flag State.Footnote 19 Thus, the jurisdiction of the flag State over the ship flying its flag also expands itself to the shipmaster, not to mention that exercising such jurisdiction over the shipmaster and other crew members is the basis for the flag State to give effect to its obligations – for example, those codified under Articles 94 and 217 of UNCLOS.Footnote 20
Nevertheless, the legal relationship between the shipmaster and the flag State as such cannot be a basis for the attribution of the conduct. The matter of attribution of the conduct of a private person or entity to a State is a matter of international law and, therefore, as noted by the International Law Commission, is to be exclusively settled by criteria provided by international law (ILC 2001, Chapter II commentary, para. 4).
What is considered applicable international law in this context is the mandate of the second chapter of ARSIWA on the rules of attribution. Although ARSIWA, by its nature, does not constitute a source of international law, its content has gained binding effect through customary international law. Thus, despite the existence of a relationship between the flag State and the shipmaster, the attributability of the conduct of a shipmaster as a private person to the flag State is to be assessed taking into consideration the mandates of ARSIWA.
4.3 Attribution of the Conduct of the Shipmaster to the Flag State
As noted under its rules of attribution, ARSIWA implies that, as a general principle, the conduct of private persons cannot be attributed to a State (ILC 2001, Chapter II commentary, para. 3). This general rule applies to the conduct of a shipmaster as an individual. However, exceptions to this general rule are also mentioned under ARSIWA.
According to Article 4 of ARSIWA, the conduct of organs of a State is attributable to the State. Individuals may be considered organs of a State, provided they have such status under the internal laws of that State. As prescribed by Article 4 of ARSIWA, whenever an organ status is established for an entity or individual, their conduct is considered the act of the State itself. A State and its organs are one. It cannot be assumed that the actions and intentions of an organ of a State are distinguished from the actions and intentions of the State, for the State functions and declares its intentions through its organs (Anzilotti Reference Anzilotti1912, 126; see also Sereni Reference Sereni1940, 639n5). In this regard, neither is there a difference in their function or their position, nor if they act as central organs of a government or local units (ILC 2001, Article 2 commentary, paras. 6–8).
Whether a shipmaster can be considered an organ of a flag State depends on whether the ship concerned is governmentally or privately operated. When the ship concerned is governmentally operated, the shipmaster is considered as a de jure organ of the flag State (De Vittor and Starita Reference De Vittor and Massimo2018, 84; Papastavridis Reference Papastavridis, Gammeltoft-Hansen and Vedsted-Hansen2016, 172). The shipmaster is designated by the flag State to take command of a ship that represents the government of the flag State.Footnote 21
This analysis is also inferred from the South China Arbitration Award, which notes that the actions of a government-operated ship are attributable to the state as actions of the government.Footnote 22 A ship is only an object and, therefore, cannot proceed with any actions on its own. It is the shipmaster, in their commanding position, who puts the ship into action. This finding is also in accordance with the procedural rule of the ship as a unit, as previously mentioned.
The internal law of a flag State also plays an important role in determining whether the shipmaster of a governmentally operated ship enjoys an organ status. However, even in cases where a direct indication of the recognition of an organ status for the shipmaster is absent under the internal laws of the flag State, the shipmaster of a governmentally operated ship may still be considered a de facto organ of the flag State, since the concept of de facto organ evolves on the fact that even when the internal laws of a state do not recognize an entity as an organ of the state, that entity enjoys organ status as long as it practices as an organ (Crawford Reference Crawford2013). According to ARSIWA, the term “organ” covers all those individual or collective entities that act on behalf of a State (ILC 2001, Article 4 commentary, para. 1). Given the representative status of governmentally operated ships, regardless of their function, it is safe to assume that their shipmasters act on behalf of the State.
When it comes to private ships, attributability of the conduct of the shipmaster to the flag State is not as straightforward as the case of governmentally operated ships, yet it is still feasible. One way of establishing attribution is using the mandates of Article 5 of ARSIWA, which prescribes that the conduct of a person who is not an organ of a State, but who exercises elements of governmental authority, shall be considered the act of the State.Footnote 23 Obviously, not all duties embedded in the role of the shipmaster are in fulfillment of governmental authorities. Thus, assessing the possibility of the attribution of the shipmaster’s conduct based on Article 5 depends on the particulars of the certain obligation breached and accordingly requires a context.Footnote 24 For instance, under Article 98 of UNCLOS, the flag State is charged with an international obligation to require the shipmaster to render assistance to people in distress at sea. The wording of the regulation evidently addresses flag States and imposes an obligation on them. Yet the very subject of such an obligation affects and involves the shipmaster.
The obligation “to require,” as codified under Article 98 of UNCLOS, resembles an obligation of result.Footnote 25 All that the first paragraph of this article requires from the flag State is to require the shipmaster of the ship flying its flag to perform certain actions as described under its subparagraphs. The flag State performs this duty by enacting national legal provisions through its national legislative body (Guilfoyle Reference Guilfoyle and Proelss2017, Article 98, para. 7, 727). Thus, once such provisions are included in the national laws of the flag State, the result is achieved and, therefore, the obligation is fulfilled.Footnote 26
Here, the shipmaster is indeed empowered by the national laws of the flag State to render assistance to people in distress at sea. The shipmaster, in this sense, enforces the national laws of the flag State, which demand that the shipmaster provide assistance (De Vittor and Starita Reference De Vittor and Massimo2018). However, it is unlikely that enforcing the laws of the flag State in this case can be considered an exercise of governmental authority.
The reason for this is simply that the very act of rendering assistance and rescuing is nothing but a humanitarian duty for the flag State (Papastavridis Reference Papastavridis, Gammeltoft-Hansen and Vedsted-Hansen2016, 172; Attard Reference Attard2020, 263; Trevisanut Reference Trevisanut, Nollkaemper and Plakokefalos2017). In other words, no level of delegated governmental authority can be detected in this case, since the very act of rendering assistance cannot be branded governmental unless provided otherwise by the national laws of the flag State. As stated in the commentaries to Article 5: “The internal law in question must specifically authorize the conduct as involving the exercise of public authority” (ILC 2001, Article 5 commentary, para. 7).Footnote 27 Thus, the matter is up to the national laws of the flag State and the very position of the shipmaster in its legal framework. When the national laws of the shipmaster label a certain duty of the shipmaster governmental and empower the flag State with the authority to perform it, the conduct of the shipmaster with regard to that duty can be attributable to the flag State.
Another potential scenario for attributing the conduct of the shipmaster of a private vessel to the flag State is when the flag State instructs or controls the wrongful conduct of the shipmaster. This is to be inferred from the mandates of Article 8 of ARSIWA, which provides that the conduct of a person who is instructed, directed, or controlled by a State is considered the conduct of that State. It is crucial to note that, in cases of both instruction and control, establishing attribution based on the mandates of the article always requires a certain level of effectiveness in the control. Although the notion and content of “effective control” has been repeatedly addressed by international courts, there is no single way to formulate such control. This is because the legal test for effective control varies among cases (Crawford Reference Crawford2013, 204). For instance, while the International Court of Justice in both the Nicaragua and Genocide cases held that the State must exercise effective control over each and every specific act involved in the wrongful conduct, the position of the International Criminal Tribunal for the former Yugoslavia was that an overall control of the State sufficed.Footnote 28
Nevertheless, determining the existence of such control may be challenging when a privately operated ship is concerned.Footnote 29 As De Vittor and Starita suggest, the shipmaster as a human being always possesses some autonomy to refuse the wrongful instruction of a flag State (De Vittor and Starita Reference De Vittor and Massimo2018, 85). Therefore, establishing attribution based on the mandates of Article 8 of ARSIWA requires such a great level of control being exercised by the flag State as to practically leave the shipmaster with no option other than giving effect to the wrongful conduct ordered or controlled by the flag State.
The discussion above has concerned the legal grounds for attributing the conduct of the shipmaster to the flag State, taking into account the mandates of ARSIWA. A noteworthy observation is that for the purpose of establishing flag State responsibility, attribution is one of the undisputedly crucial elements. However, in cases where flag State responsibility is to be established based on the wrongful conduct of the shipmaster, what is attributable to the flag State may also be not the shipmaster’s conduct but rather its own.
The flag State is obliged to ensure that what is required from the shipmaster is discharged by them. This duty is categorized as an obligation of conduct. Therefore, when the shipmaster of a privately operated ship avoids discharging their relevant duties, the matter should be settled through the channel of criminal responsibility of the shipmaster, unless it is evident that the flag State has not taken all necessary steps to prevent or punish such avoidance.
In an advisory opinion requested by the Sub-Regional Fisheries Commission, ITLOS determined that flag States are bound by the due diligence obligation concerning illegal, unreported, and unregulated fishing activities conducted by vessels flying their flags.Footnote 30 As Papastavridis maintains, a similar due diligence obligation can be assumed for the flag State in the context of rendering assistance and rescue operations as what is required from flag States under Article 98 of UNCLOS, which includes a “level of vigilance in their enforcement” (Papastavridis Reference Papastavridis, Gammeltoft-Hansen and Vedsted-Hansen2016, 164). This is very well aligned with the position of the International Law Commission, which noted that “the different rules of attribution stated in chapter II have a cumulative effect, such that a State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects” (ILC 2001, Chapter II commentary, para. 4).
Therefore, the conduct of the shipmaster of a private vessel may attract the responsibility of the flag State, if the flag State fails to ensure that the shipmaster discharges their duties and refrains from not giving effect to them. In this case, what is attributable to the flag State is not the conduct of the shipmaster but its failure to ensure that the performance of the shipmaster is in accordance with what is legally expected from them; and, if not, their wrongful performance is to be dealt with through effective punitive measures.
However, this may be challenging to establish due to the content of the obligation. As previously noted, the due diligence obligation of the flag State to prevent wrongful conduct of the shipmaster requires it to take all necessary steps to ensure that such conduct is prevented. Thus, establishing flag State responsibility is feasible only if it is proven that the flag State has indeed failed in making its best efforts to prevent the conduct concerned.
4.4 The New Shipmaster and the Flag State
When it comes to the context of autonomous shipping, the attributability of the conduct of the shipmaster to the flag State must be evaluated, taking into account elements that distinguish between the shipmasters of conventional ships and those of MASS – most importantly, their remote location.
Before proceeding further with this element, it is necessary to note that autonomous ships, regardless of their special features, enjoy the same characteristic as their conventional peers as “ship.” The matter of what is considered a ship under the international law of the sea is beyond the scope of this chapter. However, it can generally be argued that as far as UNCLOS is concerned, the matter depends on the laws of flag States.Footnote 31
Several national maritime laws do not exclude the special features of MASS in their definitions of the term “ship.” In addition, autonomous ships meet the constitutive criteria based on which a vessel is recognized as a ship, as included in those definitions, such as the ability to float, having a hollow design, or being involved in navigation.Footnote 32
The enjoyment of a ship’s status is what makes autonomous ships equally subject to the same legal rules enshrined in the international law of the sea framework as their conventional peers. Thus, they must have a master at least in overall command (UNCLOS, Article 94). This role is always to be taken by a human being, regardless of their level of involvement in operational or navigational tasks or their location. Thus, the assessment of whether the same legal relationship can be assumed between the flag State and these “new” shipmasters hinges on whether that relationship flows from the physical location of the shipmaster on board the ship concerned.
Among the different factors that create a link between the shipmaster and the flag State, as previously discussed, the jurisdictional link is the one that may arguably be most affected by the relocation of the shipmaster from on board. Assuming that the jurisdiction of the flag State on the shipmaster flows from its jurisdiction on the ship, the procedural rule of the ship as a unit again comes into play.
As formulated by ITLOS, “every person involved or interested in [the ship’s] operation is linked to the flag state.”Footnote 33 The wording of that paragraph makes no reference to the physical location of “every person”; rather, their involvement in the ship’s operation suffices to link them to the ship and, consequently, to the flag State, since the ship itself is linked to the flag State once it has been registered under its flag (UNCLOS, Article 91).
The most important element that distinguishes conventional and MASS shipmasters is their remote location, especially in higher degrees of ship autonomy. The new shipmaster who, as a result of the ship’s automation, performs their relevant duties from a remote location is still, to a high degree, involved in the ship’s operation. Thus, they retain their position linked to the ship and subsequently to the flag State. As argued by Yoo and Shan, it is crucial for remote shipmasters and crew that they are assumed to be an integral and inseparable part of the MASS, regardless of their location (Yoo and Shan Reference Yoo and Shan2019, 563). Otherwise, not only would they fall out of the scope of the relevant regulations under the international law of the sea framework, but also the ship itself would be exposed to unseaworthiness.
Furthermore, Article 94(2)(b) of UNCLOS explicitly notes that the flag State is obliged to assume jurisdiction over the ship flying its flag and its shipmaster under its internal laws. The answer to the question of how exactly the flag State must fulfill this obligation is closely bound to the content and nature of the obligation, as well as whether the remote location of the new shipmaster remains within the territorial jurisdiction of the flag State. This falls outside the scope of this chapter. Yet, nothing would diminish the importance of this obligation being fulfilled, as giving effect to various other international obligations imposed on the flag State is bound to such jurisdiction being effectively exercised (Nandan and Rosenne Reference Nandan and Rosenne1995, Article 94, para. 94.8(a)).
Thus, not only does the remote location of the shipmaster have no effect on them being jurisdictionally linked to the flag State, but also the flag State is, in fact, bound by an international obligation to effectively exercise such jurisdiction over the remote shipmaster. Even in cases where the remote shipmaster does not have the nationality of the flag State and performs their duties from an ROC located outside the territory of the flag State, the flag State shall exercise its jurisdiction over the master. The ship as a unit is under the jurisdiction of the flag State, and this provides sufficient legal ground for the situation mentioned.
However, the effective implementation of this situation may need the flag State to cover sufficiently the matter under its national laws, since the situation would not fit into the common rules of allocation of jurisdiction. Nevertheless, it is important to note that attribution and jurisdiction are two separate concepts that may overlap, but do not necessarily do so. Assessment of the relationship between attribution and jurisdiction in the context of the international law of the sea is different from other contexts, such as human rights law.Footnote 34 When it comes to the international law of the sea, assuming jurisdiction by the flag State over the shipmasters of ships flying its flag is a basis for guaranteeing the enforcement of the laws of the flag State on board a ship. Moreover, this jurisdiction provides a legal basis on which the flag State can represent the shipmaster regardless of their nationalities or take punitive measures in cases where shipmasters refrain from performing their relevant duties.
Although the remote location of the shipmaster, especially in cases where the remote operational centers are located outside the territory of the flag State, poses challenges for the flag State to enforce its jurisdiction, it is unlikely that these challenges also attenuate grounds for attribution of the conduct of the shipmaster based on the rules of ARSIWA. This is simply because as far as the rules of attribution under ARSIWA are concerned, no indication of the necessity of jurisdiction for establishing attribution can be detected. In other words, ARSIWA does not require a jurisdictional link between the private person and the State for the purpose of attribution. Attribution can be established based on nationality or territoriality. This reasoning may extend further by relying on cases in which the conduct of a private person or entity was attributable to a State while they neither were nationals of that State nor had committed the wrongful conduct within its territorial jurisdiction. Instead, “control” was a basis for the attributability of conduct.Footnote 35
It is arguable that in the context of the international law of the sea, jurisdiction, when effectively exercised, normally entails a certain level of control. When Article 94 of UNCLOS makes it an obligation for the flag State to effectively exercise its jurisdiction over the ship flying its flag, it seems that the ultimate goal is to ensure that the flag State retains a certain level of control over the vessel as a unit, which enables it to deliver its relevant duties with regard to the safety of navigation.
Given that exercising jurisdiction over the ship and its master is a duty imposed on the flag State under UNCLOS, it is safe to assume that the flag State must retain a consistent control over the ship flying its flag, as well as its master, officers, and crew (see Article 94(2)(b)). Whether such a control is effective enough to form a ground for attribution of the conduct of the shipmaster to the flag State is a matter that is to be evaluated on a case-by-case basis, taking into consideration the applicable rules of international law and the particulars of each case.
4.5 Conclusion
The advent of emerging technologies in the maritime sector has made it necessary for many of the current relevant regulations to be reconsidered, adjusted, modified, or even replaced. Many others, however, may retain their relevance and applicability. Rapid advancement in MASS results in many safety and security concerns, to which the current international regulations may not be fully respondent. This highlights the importance of the question of responsibility for their operation and navigation.
Among all parties involved in the operation of MASS, their flag States are at the forefront of ensuring the safety and security of their operation and navigation. Thus, it is crucial for the flag States willing to benefit from the advantages of MASS to be fully aware of their duties regarding their operation and navigation. This very well leads to the question of the international responsibility of the flag State for the operation of MASS flying their flag.
Establishing flag State responsibility is bound to the existence of constitutive elements of the international responsibility of States, including attribution of the wrongful conduct to the flag State. For MASS to identify as ships, they are subject to the same regulatory framework applicable to conventional ships. This, among other things, includes the rejection of masterless navigation as well as the unsuitability of appointing a nonhuman shipmaster. Yet, the special features of MASS have enabled the shipmaster to retain the overall command of the MASS concerned, performing a vast scope of relevant operational and navigational duties from a remote location, especially in higher levels of ship autonomy.
The relocation of the shipmaster from on board, although it is accompanied by a certain range of legal issues, has almost no impact on the applicability of the rules of attribution as codified under ARSIWA. Taking into consideration the relationship between the shipmaster and the flag State, along with the procedural rule of the “ship as a unit” as formulated by ITLOS, it becomes evident that what creates a link between the shipmaster and the flag State is not the physical location of the shipmaster. Rather, it is the legal position of the shipmaster, as well as the jurisdictional link between the shipmaster and the flag State that is created when the ship is endowed with the right to fly the flag of the State.
Exercising effective jurisdiction by the flag State over MASS flying its flag, and accordingly over their shipmasters, is one of the most significant legal challenges that must be addressed, especially in cases where the remote operational center is located outside of the territory of the flag State. The legal challenge, however, does not hinder the applicability of rules of attribution as formulated under ARSIWA.
Although jurisdiction, when effectively exercised, is indeed a legal basis for exercising control over the performance of the shipmaster and, accordingly, taking punitive measures against the wrongful conduct of the shipmaster, it cannot solely be a legal ground for establishing attribution. Attribution of the conduct of an individual to a State is a matter of international law and, therefore, is solely governed by the rules of international law, here the mandates of ARSIWA.
Thus, attribution of the conduct of the shipmaster to the flag State is to be assessed through Articles 4, 5, and 8 of ARSIWA. Elements such as MASS being governmentally or privately operated, whether the duty imposed on the shipmaster may be labeled governmental, whether the wrongful conduct of the shipmaster regarding that duty forms a breach, the role and the level of control of the flag State on prescribing the wrongful conduct, and the particulars of each case are among the factors that impact the applicability of those articles. It should also be borne in mind that flag States – those willing to endow the right to fly their flag to MASS – must clearly define the role and the position of MASS shipmasters in their national laws. This potentially plays a determinant role in the assessment of the applicability of rules of attribution with regard to the conduct of the shipmaster, as codified under ARSIWA.
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