The United Nations Convention on the Law of the Sea (UNCLOS) specifies that all ships “have the nationality of the State whose flag they are entitled to fly.” Consequently, flag states exercise jurisdiction over their flagged vessels.
A recent and quickly growing phenomenon, however, has put this basic tenet of the law of the sea in question: unauthorised flag use.
Unauthorised flag use is a practice whereby a vessel uses a state’s flag without its consent and, oftentimes, without its knowledge.
Although this can take many forms, often overlapping, it may be helpful to think of this issue in two broad categories: fraudulent flagging and false flagging. Fraudulent flagging generally entails an official recognition of fraudulent registration, e.g. fraudulently issued registration documents resulting in formal recognition by the International Maritime Organisation (IMO).
False flagging, on the other hand, describes a situation where a vessel falsely claims registration different than the flag it is actually authorised to fly as a matter of expediency. Both create a gap wherein there is no effective oversight of the vessel’s activities, which can be exploited to facilitate a range of illicit activities.
Fraudulent Flags, Real Issues
The issue of fraudulent flagging was brought to the attention of the international community in 2015, when the IMO became aware of a fraudulent registry purporting to operate on behalf of the Federated States of Micronesia.
Micronesia does not operate an international shipping registry. It is not even an IMO Member State. Two years later, the Democratic Republic of the Congo (DRC) formally brought the issue to the attention of the IMO Legal Committee after discovering that 77 out of the 84 vessels flying its flag have been doing so without authorisation.
Other countries have also fallen victim to fraudulent registration, including Fiji, Samoa, Nauru, Vanuatu and the Maldives. Although in some cases, like Nauru, the fraud was caught early enough that no fraudulent documents were ever issued, as of last year over 300 vessels are believed to have been registered fraudulently.
These fraudulent registrations are exploited by those engaged in illicit activity. In the case of the DRC, the country only became aware of the issue when contacted by INTERPOL with a request to prosecute two vessels engaged in illicit activity that claimed the DRC flag.
Of the 98 vessels investigated by Fiji since 2017 for fraudulently claiming its flag at least 20 percent were subsequently linked to North Korea and likely engaged in sanctions evasion. Fraudulent registries not only deprive legitimate registries of income but can also cause significant reputational damage when vessels fraudulently flying a flag are involved in illicit activities.
In just one example, the Maldives found itself having to officially deny a statement by the Japanese Foreign Ministry which identified a supposedly Maldives-flagged vessel as engaging in a prohibited ship-to-ship transfer with a North Korean tanker.
In addition to enabling illicit activity and causing financial or reputational damage to legitimate maritime actors, fraudulent and false flagging can also adversely impact a range of other areas—maritime safety and security, environmental protection, and maritime emergencies among them.
More broadly, as the resolution on the subject adopted by the IMO Assembly in January 2020 notes, unauthorised flag use “endanger[s] the integrity of maritime transport, and undermine[s] the legal foundation of the Organisation's treaty and regulatory regime.”
Despite that, the IMO response to the issue has been slow to come. While the organisation has been aware of the problem at least since 2015, it was only in 2019 that it adopted any concrete measures to address it.
One of these measures involved establishing a whitelist of authorised national registries and a procedure of verifying the information provided. This is particularly important given that the IMO had in the past erroneously recognised the fraudulent Micronesia International Ship Registry as a legitimate authorised body acting on behalf of the Micronesian government.
The fraudulent entity, Micronesia International Ship Registry, listed as the official registry representative in an IMO contact list circa early 2018. This has since been corrected.
The other element—perhaps the most practically impactful—is the adoption of a new flag indicator in IMO records denoting fraudulent registrations. Adopted as an outcome of the March 2019 meeting of the IMO Legal Committee, it is intended to identify instances where a flag state has confirmed that a vessel was never legitimately registered.
This, however, has been implemented inconsistently and likely only identifies a portion of vessels that have engaged in the practice. As an example, despite Micronesia having never operated a flag registry, not all vessels which had fraudulently claimed Micronesian registration are marked with the ‘false’ indicator in the IMO’s Global Integrated Shipping Information System (GISIS).
While these steps are welcome, they are insufficient to combat fraudulent flagging on their own. Indeed, the most impactful measure taken has been efforts by individual countries to denounce fraudulent registrations issued in their name.
Marine circulars by Tuvalu and the Cook Islands note that Fiji reported the unauthorised use of its flag to the Tokyo MOU while Micronesia, Nauru, and Samoa reported the fake registries operating in their name to the IMO. Notifying multilateral organisations of the issue may have contributed to decreased unauthorised use of these countries’ flags: an annual report on vessel inspections maintained by the Tokyo MOU shows drastic decreases in inspections of vessels flagged to both Fiji and Micronesia between 2017 and 2019. Inspections of vessels “registered” to Fiji went from 23 to four; those for Micronesia from 67 to zero.
False Flagging – Quicker and Easier
In comparison to the relative success combatting fraudulent flagging, false flagging poses a more complex challenge. This is because it is much easier to perpetrate: it does not require anchoring the deception in an official recognition by the IMO, but instead involves creating a false identity that is good enough to get away with illicit activity in the present moment.
This includes broadcasting false identities via a vessel’s Automatic Identification System (AIS) transponder—a safety and navigation system whose use for most international vessels is mandated by International Convention for the Safety of Life at Sea (SOLAS)—or the fraudulent use of registration documents.
Broadcasting false identities using AIS transmissions is relatively straightforward as the identifiers broadcast are entered manually. This allows them to be changed frequently, complicating efforts to track a vessel’s activities.
AIS transmissions using identifiers registered to the KUM RUNG 5, a North Korean cargo ship, for instance, show a vessel cycling through around 30 different identifiers, including names, Maritime Mobile Service Identity (MMSI) numbers, callsigns, and even IMO numbers, which are meant to be unique to just one vessel throughout its lifetime.
This includes the use of at least four names in 2020 alone. Because the identifiers are programmed onboard the vessel, confirming the authenticity of the broadcast is not possible without other means of verification.
A vessel seeking to falsify an identity can also match the unique identifiers legitimately assigned to another vessel. In the case of a North Korea-flagged cargo vessel TAE YANG, investigated jointly by the James Martin Center for Nonproliferation Studies and the Royal United Services Institute, the vessel mimicked aspects of the identity of the Mongolia-flagged tanker KRYSPER SINGA.
The AIS record initially broadcast by the TAE YANG with its assumed identity appeared to show the KRYSPER SINGA as having visited North Korea, while the real KRYSPER SINGA was actually off the coast of Singapore. Imagery, both satellite and ground, was necessary to verify that the AIS transmissions from North Korea were really coming from another vessel, the TAE YANG. Relying on AIS transmissions alone would have implicated an otherwise innocent vessel in a violation of United Nations sanctions on North Korea.
With regards to the use of fraudulent documents, the somewhat artificial distinction between fraudulent flagging and false flagging blurs. But a distinction, however minute, remains: fraudulent documents in the context of false flagging are used not to support a registration claim made to the IMO but to allow a vessel to navigate interactions with third parties when expedient. The case of the WISE HONEST is illustrative.
The WISE HONEST was a bulk carrier detained by Indonesia in 2018 for illicitly exporting coal from North Korea. At the time of the detention, it was registered to North Korea.
Yet court documents show that the vessel initially identified itself to Indonesian authorities as being flagged by Sierra Leone—which it had been from August 2015 until May 2016. Authorities found two sets of documents onboard the vessel, one supporting registration with Sierra Leone, and one with North Korea.
Although it is unclear whether the Sierra Leone documents found on the WISE HONEST in 2018 were an expired set of documents issued to the vessel in 2015 or a forgery, this case illustrates the ease with which legitimately issued documentation could be repurposed for illicit activity.
Building a Better Response
Although the measures adopted by the IMO are an important step toward addressing the problem of fraudulent and false flagging, a much more comprehensive response is needed. This should combine measures taken collectively by the appropriate international bodies, measures taken individually by states, and measures taken by the private sector.
At the national level, there are several steps countries can take.
First, implement national measures to prosecute fraudulent or false flagging and the illicit activity it facilitates, and enhance enforcement capabilities. Though fraudulent or false flagging may be illegal in some jurisdictions, this has not deterred vessels from engaging in the practice. This might have to do with how difficult enforcement action can be. Fiji opened criminal investigations into the unauthorised use of its flag in 2017.
Its current status is unknown. Micronesia was finally able to bring charges in April 2020 against the individuals behind the Micronesia International Ship Registry—five years after the fraudulent registry first became active. Following the detention of the WISE HONEST in 2018, the only charges Indonesia could bring against the captain of the vessel were for “being in charge of an unseaworthy vessel.” It is unclear whether Sierra Leone tried, or would have been able to take any action in relation to unauthorised flag use.
Prosecution on the basis of the associated illicit activities—violations of United Nations sanctions on North Korea, for instance—could offer a supplemental pathway as well. Yet all too often, these measures are not appropriately implemented in national legislation. In many, if not most, cases, however, mutual legal assistance agreements would likely be necessary to take action effectively, given that vessels claiming a flag fraudulently may never be under the aggrieved party’s effective jurisdiction. The same is true of appropriate national enforcement procedures, without which any enforcement action will be difficult if not impossible. Exercises like those conducted under the banner of the Proliferation Security Initiative— a multinational response to the transnational threat of the proliferation of weapons of mass destruction—could focus on the ability to track and interdict a shipment and help build this capacity.
Second, invest in capabilities to monitor a broader set of vessel activity. In order to follow through on national legislation criminalising fraudulent or false flagging, countries need to be able to identify it. Doing so requires investment in capabilities—both human and technological—to monitor vessel activity. Human capabilities entail relevant personnel knowing how to identify vessels engaged in fraudulent or false flagging.
This is key to making sure that indicators of fraudulent or false flagging are noted and acted upon. Technological capabilities include the ability, likely via an AIS monitoring platform, to trace AIS transmissions linked to vessels in a country’s territorial waters to see if they have previously engaged in fraudulent or false flagging, and the ability to scan for AIS transmissions making unauthorised use of the country’s flag. Regional partnerships may offer smaller states, including those without international ship registries, a more cost-effective way of maintaining these capabilities.
Third, when it comes to assumed identities and identity theft perpetrated through AIS transmission, the way AIS transponders work is part of the problem: manual data entry makes fraud quite easy. The most recent advisory for the maritime sector issued by the U.S. government recommends that registry managers work with classification societies to provide a “soft lock” on AIS transponders, which would disable the option of manual changes during a vessel’s voyage while allowing for disablement in sanctioned emergency situations. This could go some way toward addressing the issue, although it would necessarily miss many of those actors already engaged in illicit activities who are not likely to allow for this sort of modification to their vessel’s equipment.
The private sector also has a role to play. To do so, it is important that AIS data providers and AIS monitoring platforms review how they aggregate data associated with false flagging. The ability of states to take action against those engaged in fraudulent or false flagging is contingent on the indicators of that practice being visible. As noted in the report on the TAE YANG, AIS data can be “corrected” or jettisoned when found to be associated with a vessel identity not registered with the IMO.
This risks, in effect, erasing the illicit activity or making it harder to attribute. In the case of the TAE YANG, its AIS transmissions were merged with those of the KRYSPER SINGA and ultimately attributed to it. In other cases, like that of the KUM RUNG 5, AIS data for what is likely a single vessel may be grouped into different records on the basis of some of the false identifiers used by a vessel engaged in false flagging. Failure of data providers and maritime platforms to address these issues risks undermining faith in AIS as a means of monitoring vessel identities and activities—leaving national authorities and independent analysts with one fewer tool to monitor and disrupt illicit activity.
Fraudulent and false flagging is a complex issue requiring action from multilateral organisations like the IMO, national authorities, and the private sector. Each of these actors has a different set of incentives. Much is at stake for the private sector, including both data providers and the maritime industry that uses said data, and the reliability of AIS transmissions. For individual countries, their motivation comes from the reputational or financial costs they might incur as victims of unauthorised flag use. And for the international community writ large, with the IMO as the guardian of global maritime trade, the persistent and seemingly growing problem posed by fraudulent and false flagging—as the organisation itself admits—threatens to undermine the entire legal regime it embodies. The temptation to pass responsibility for combatting unauthorised flag use to others is immense. But it is only through steps taken collectively by all relevant stakeholders that this problem can be addressed.