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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II. Contextual Historical Developments and the Constitution of the Maritime Safety Committee
A. Development and Creation of IMCO
Although the creation of an international maritime organization was first attempted in 1889,7 IMCO was not established until 1948,8 concurrent with the establishment of sister and other international organizations after World War II.9
The objectives of IMCO were, and still are:
(a) To provide a machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade, and to encourage the general adoption of the highest practicable standards in matters concerning maritime safety and efficiency of navigation;10
(b) To encourage the removal of discriminatory action and unnecessary restrictions by Governments affecting shipping engaged in international trade so as to promote the availability of shipping services to the commerce of the world without discrimination; assistance and encouragement given by a Government for the development of its national shipping and for purposes of security does not in itself constitute discrimination, provided that such assistance and encouragement is not based on measures designed to restrict the freedom of shipping of all flags to take part in international trade;11
(c) To provide for the consideration by the Organization of matters concerning unfair restrictive practices by shipping concerns in accordance with Part II;12
(d) To provide for the consideration by the Organization of any matters concerning shipping that may be referred to it by any organ or Specialized Agency of the United Nations;13 and,
(e) To provide for the exchange of information among Governments on matters under consideration by the Organization.14
B. The Principal Organs of IMCO
The Convention also provided for three15 main organs of the Organization: the Assembly, the Council, and the Maritime Safety Committee (“MSC”).16 The Assembly is supposedly the highest organ of the body, consisting of all Member States and meeting once every two years in regular sessions, with provisions being made for extraordinary sessions to be called if necessary.17 Its main tasks are to vote on the budget and decide financial arrangements, to determine the general policy of the Organization for achieving the purposes of Article 1, and to adopt resolutions submitted to it by the Council and the MSC.18 Although membership of the Organization, and therefore of the Assembly, has risen, its functions have remained unchanged. Details of membership or its functions are omitted as they are not directly relevant to the proceedings in this article except insofar as they affected elections to the MSC, and later the Council. However, central to the discussion in this article is the equitable representation and participation of the membership in the various organs as typified by the electoral process contained in Articles 17, 28, and 29 of the Convention. Article 17 provided for the constitution and functions of the Council, whereas Articles 28 and 29 provided for the constitution and function, respectively, of the MSC.
Seeds of the Organization’s current problems were sowed during the First Session in 1959 when the Assembly failed to elect Liberia and Panama to the MSC despite the countries ranking third and eighth, respectively, among the “largest shipowning nations” in the world at the time.19 Following an unsuccessful attempt at internal dispute resolution, the matter was referred to the ICJ for an Advisory Opinion as to whether the MSC was properly constituted.20 The Court ruled that it was not.21 As will be apparent shortly, a lot has happened in the forty-eight year history (1959–2007) of the Organization, notably the constitutional amendments, the enlargement in membership, and the shifting of power from the MSC to the Council. Despite these changes and the ICJ decision, at its 24th Regular Session in November of 2005, the Assembly elections for the Council were once again perceived by some Member States as not reflecting the intention and spirit of the Convention. There is, therefore, a threat that the electoral process might once more be challenged, thereby reviving the painful memories of the first dispute in 1960 and the echoes of unsatisfactory experiences ever since.
Despite the transformations that both the shipping industry and IMCO, now IMO, have undergone since the 1948 Convention, control of the Organization still rests with a handful of TMNs. It is in this context that this article: (1) examines the Organization’s problems, (2) analyzes the 1960 ICJ decision, and the events that have followed it, and (3) questions, against the background of the 1960 ICJ Advisory Opinion, whether history will repeat itself within the Organization in light of the November 2005 Council elections.
C. The Constitution and Function of the Maritime Safety Committee: Article 28(a)
Article 28(a) of the 1948 Convention provided that:
(a) The Maritime Safety Committee shall consist of fourteen members elected by the Assembly from the members, Governments of those nations having “an important interest in maritime safety,” of which not less than eight shall be “the largest ship-owning nations” and the remainder shall be elected so as to “ensure adequate representation” of members, Governments of nations with an important interest in maritime safety, such as nations interested in the supply of large numbers of crews or in the carriage of large numbers of berthed and unberthed passengers, and of major geographic areas.22
The MSC was then not only the Organization’s highest technical body, but also its most important organ. Among its functions, Article 29(a) provides:
The Maritime Safety Committee shall have the duty to consider any matter within the scope of the Organization and concerned with aids to navigation, construction and equipment of vessels, manning from a safety standpoint, rules for the prevention of collisions, handling of dangerous cargoes, maritime safety procedures and requirements, hydrographic information, log-books and navigational records, marine casualty investigation, salvage and rescue, and any other matters directly affecting maritime safety.23
The Convention also called upon the MSC to maintain a close relationship with other inter-governmental bodies concerned with transport and communications in order to promote maritime transport.24 Given the importance and wide-ranging functions of the Committee, those elected to it held enormous power, essentially controlling the very soul of the Organization. Accordingly, elections to the Committee would be hotly contested as reflected by the litigation at the ICJ in 1959 as well as by the issues today, some 48 years later, in relation to a different but equivalent organ.
D. The 1st Assembly Elections to the Maritime Safety Committee, November 1959
Given its disastrous first election, the Organization could not have had a more inauspicious beginning. At its inaugural session, the thirty-six Member States had to elect fourteen countries from among its members to the MSC. The votes were, respectively, eleven in favor and fourteen against Liberia, with three abstentions (i.e., 11-14-3), and nine in favor with fourteen against Panama, with five abstentions (i.e., 9-14-5).25 The successful candidates in Group A, in order of world registered tonnage were: the U.S. (25,589,596), the U.K. (20,285,776), Norway (9,384,830), Japan (5,465,442), Italy (4,899,640), the Netherlands (4,599,788), France (4,337,935), and the Federal Republic of Germany (4,077,475).26 Liberia, the third largest with 10,078,778 tons, and Panama, the eighth largest with 4,357,800 tons, were not elected. The remaining six members elected to “ensure adequate representation of members” were Greece, Sweden, Belgium, Denmark, Brazil, and India.
As the ICJ discovered, the problem extended beyond mere elections or simple treaty interpretations. Judging from the use of “shall” in Article 28(a) of the Convention, eight of those fourteen members were required to be comprised of the “largest ship-owning nations.”27 If the vote had followed this interpretation of Article 28(a), the Advisory Opinion of the Court suggests that Liberia and Panama would have been elected instead of France (ninth) and Germany (tenth).28 Understandably, Panama called the results a contravention of the Convention, the principles of international law,29 and a violation of Article 28(a) through the use of an “[a]bsurdity of criterion used by the majority of the Assembly.”30 Panama continued, in reference to the nation’s role as a leading flag of convenience registry, that “[t]he violation of the law of the flag was a violation of the sovereignty of the Republic of Panama.”31 Internal attempts to negotiate and solve the dispute failed, and the matter was referred to the ICJ for an Advisory Opinion.
E. Referral of the Dispute to the International Court of Justice, 1959
After several maneuvers and negotiations, the matter was referred to the Court for an Advisory Opinion in accordance with Articles 65(1)–(2) and Article 66(1) of the Court. The Organization’s own Convention provided in Article 56 that questions of law may be referred to the ICJ and the United Nations Economic and Social Counsel (“ECOSOC”) for interpretation and application pursuant to Article IX of the Agreement Between the United Nations and IMCO.32 Article 56 of the Convention provided that “[a]ny legal question which cannot be settled as provided in Article 55 shall be referred by the Organization to the ICJ for an Advisory Opinion in accordance with Article 96 of the Charter of the United Nations.”33
The question before the Court was whether “the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, which was elected on 15 January 1959, [was, as a result of excluding Liberia and Panama] constituted in accordance with the Convention for the Establishment of the Organization.”34 Various countries, including Liberia and Panama, put forward texts of varying interpretations for the Court’s consideration. To resolve those differences of opinion, the Court addressed the following preliminary issues: (1) the meaning of “elected,” (2) whether the elections were discretionary or mandatory, (3) what constituted “having an important interest in maritime safety,” (4) the meaning of the “largest ship-owning nations,” and (5) the criteria for constitution of “registered tonnage.”35
As part of the Court’s proceedings, written and oral statements were also submitted on behalf of the Governments of Belgium,36 Denmark,37 France,38 India,39 Italy,40 Liberia,41 the Netherlands,42 Norway,43 the U.K.,44 the U.S.,45 the Republic of China,46 Panama,47 and Switzerland.48