Volume 43 | Number 1 Fall 2007
From the “Constitution of the Maritime Safety Committee” to the “Constitution of the Council”: Will the IMCO Experience Repeat Itself at the IMO Nearly Fifty Years On? The Juridical Politics of an International Organization
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I. Introduction
The Inter-Governmental Maritime Consultative Organization (“IMCO”) was established as a Specialized Agency3 of the United Nations in 1948 to regulate technical aspects (e.g., navigation and safety) of maritime transport.4 At the time of its founding, it consisted of only thirty-six Member States. Since that time, dramatic increases in both membership and the number of activities the Agency regulates has resulted in regular amendments to the Constitution, especially since the 1960s. The most significant constitutional amendment was to Article 17 in 1993,5 enlarging the membership of its principal organ, the Council, from thirty-two to forty members. Demands for democratization followed changes in the maritime industry beginning during the 1960s, the expansion of the Organization’s membership beginning in the 1970s, and a growing perception among the developing maritime nation (“DMN”) Member States that the affairs of the Organization were dominated by a handful of the traditional maritime nations (“TMNs”). Accordingly, Article 17 was amended to increase participation in the affairs of the Organization by the DMNs—especially those from Africa.6
Despite the 1993 Amendment, in November 2005—the first opportunity to put the amendments into practice—the 24th Assembly failed to elect to the Council members from West Africa, Central Africa, Latin America, and Eastern Europe as required by the Amendment. Because of the similarity between this failure and the painful memories of the experiences following the ICJ’s Advisory Opinion in 1959, many within the Organization question whether it has learned from its history or whether, instead, history will repeat itself nearly a half-century later.
A. Aims and Objectives
This article analyzes the root causes of the Organization’s current problems against the background of the 1960 issues, revisits the International Court of Justice (“ICJ”) Advisory Opinion of 1959–1960, and postulates the potential outcomes if the ICJ were to return to the matter.
In attempting to achieve these objectives, the article adopts a historical analysis of the dispute before the ICJ in 1959, as the issues arising from the Court’s decision in 1960 underpin the bases for appreciating and understanding the root-causes of the Organization’s current problems. Comparisons are made with state practice, customary international law and practice, constitutional law, and the practice of the United Nations, its Specialized Agencies, and comparable international organizations.
In order to provide the detailed background necessary for a full appreciation of the current issues, the 1960 ICJ decision is analyzed at length and in a way never before attempted.
The article argues: that what is currently happening at the IMO is due to unresolved historical issues; that current events within the Organization are symptomatic of events at its parent body, the United Nations and other international organizations; and that it is incumbent on the Organization to create new precedent in this area of international constitutional and administrative law.
B. Methodology and Approach
The article is divided into seven parts. Part I introduces the issues and contains the introduction, aims and objectives, and the methodology to the article. Part II traces the history and development of the Organization as well as its main organs and functions. Part III briefly discusses the electoral process at the IMCO’s first Assembly, and with it the issues related to the ICJ case of 1959–60. Part IV, the largest and most important part of this article, discusses the ICJ case and analyzes the consequences of the decision. Part V explains how issues relating to the November 2005 Council elections would, if unresolved, hinder the work of the Organization. Part VI is devoted to the current issues and their root cause—the 24th General Assembly Elections to the Council of November 2005. It also examines possible solutions to the current problems in the event the ICJ should have to reconsider the matter. Finally, Part VII presents the conclusion to the article.