The rights and duties of flag States go hand in hand under the UNCLOS legal framework. A State bears the right to grant a ship its nationality and is entitled to exercise exclusive jurisdiction over the ship. At the same time, a flag State has the obligation to effectively exercise its jurisdiction and control over the ship sailing under its flag. While the provisions relating to flag States’ rights and obligations are found in Part VII UNCLOS entitled ‘High seas’, their application apply to wherever the ship may find itself. Given the omnipresence of ships at seas, clarity and certainty regarding flag States’ rights and obligations is crucial for the effective implementation of UNCLOS, as well as for ensuring delicate balance between the rights and obligations of coastal States and of flag States upon which UNCLOS hinges. This chapter examines the decisions of UNCLOS tribunals relating to flag States’ rights and obligations, in order to examine whether and to what extent UNCLOS tribunals have contributed to the clarification and development of the relevant rules pertaining to flag States.

UN Security Council Resolution 242, adopted after the June 1967 Six Day War, was a non-binding recommendation for settling the Arab-Israel conflict. Israel and the Arab States agreed to accept the recommendations. Syria and the PLO at first refused to accept it but later, they also agreed to accept it, and thus it became the accepted framework for ending the Arab Israel conflict. The preamble of the Resolution states that acquisition of territory by war is inadmissible and that the conflict must be settled by peaceful means. The operative parts of the Resolution call for Israel to withdraw from territories occupied in the Six Day War, for the Arab States to end the state of war with Israel, for freedom of navigation in international waterways and for a just settlement of the refugee problem. The phrasing used in the clause about Israel withdrawal is “from territories.” There is a continuous disagreement as to whether this implies withdrawal from all the territories occupied or that the issue of borders is subject to negotiation between the parties. By accepting the Resolution, the Arab States apparently abandoned any legal basis for demanding Israel withdrawal from beyond territories occupied in the Six Day War.

The legal discourse as to Israel’s right to use the Suez Canal centered on the issue of belligerency. Egypt argued that the 1949 Armistice Agreement with Israel did not end the state of war and, hence, Egypt was entitled to take acts of belligerency not prohibited by the Armistice Agreement. According to Egypt, the 1888 Constantinople Agreement allowed Egypt to take steps to defend the Canal, and prohibiting Israeli shipping was such a step. Israel argued that the Armistice Agreement prohibited all acts of belligerency. The UN Security Council supported Israel’s position. The Egypt Israel Peace Treaty has resolved the issue of Israel navigation through the Canal. The configuration of the Strait of Tiran differs from most other international straits, in that it connects high seas with an enclosed gulf. The Egyptians claimed that they had belligerent rights against Israeli shipping in Egyptian territorial waters. The issue has been finally settled in the 1979 Egypt-Israel Peace Treaty that stipulates that the Gulf of Aqaba and the Strait of Tiran are “International waterways to be open to all nations for unimpeded and non-suspendable freedom of navigation.”