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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IV. Constitution of the IMO Council: Developments and Potential Problems
A. Article 17: Constitution and Functions of the Council
The ICJ gave its advisory opinion forty-nine years ago this year (2007). Although it was merely an advisory opinion, one would think that the new IMO might have learned from the opinion; it appears it did not. Because of the IMO’s inability to learn from its past, it is possible that history might repeat itself nearly half a century later.
The IMO’s problem originated with a move from Article 28 (Constitution of the MSC) to Article 17 (Constitution of the Council). With this, power shifted from the MSC—still the most important technical committee—to the Council. The Council, however, was not itself a new invention, having been created in 1948 with sixteen member nations.229 The constitution of the Council is contained in Article 17 of the 1948 Convention, thus:
The Council shall consist of sixteen members and shall be composed as follows:
(a) Six shall be Governments of the nations with the largest interest in providing international shipping services;
(b) Six shall be Governments of other nations with the largest interest in international seaborne trade;
(c) Two shall be elected by the Assembly from among the Governments of nations having a substantial interest in providing international shipping services; and,
(d) Two shall be elected by the Assembly from among the Governments of nations having a substantial interest in international seaborne trade.230
The Article also provided that “[i]n accordance with the principles set forth in this article the first Council shall be constituted as provided in Appendix I to the present Convention.”231
Article 18 left it to the Council’s discretion to determine the member governments in accordance with the article thus:
Except as provided in Appendix I to the present Convention, the Council shall determine the purpose of Article 17(a), the members, Governments of nations with the largest interest in providing international shipping services, and shall also determine, for the purpose of Article 17(c), the members, Governments of nations having a substantial interest in providing such services. Such determinations shall be made by a majority vote of the Council including the concurrent votes of a majority of the members represented on the Council under Article 17 (a) and (c). The Council shall further determine for the purpose of Article 17(b), the members, Governments of nations with the largest interest in international seaborne trade. Each Council shall make these determinations at a reasonable time before each regular session of the Assembly.232
The principal functions of the Council were—and still are—to: (1) receive and transmit the recommendations of the MSC, together with its own comments and recommendations, to the Assembly or to the Members when the Assembly is not in session; (2) appoint the Secretary-General with the approval of the Assembly; (3) submit budget estimates; and, (4) perform other functions of the Organization between sessions of the Assembly.233 Matters within the scope of the duties of the MSC could be considered by the Council only after obtaining the views of the Committee thereon.234 Would the expansion of the Council change these functions?
B. First Enlargement of the Council: The 1960s Amendments to the Convention
The long awaited entry into force of the Convention meant that it was already in need of revision by the time the Organization’s assembly met for the first time in January 1959. Since then, there have been many changes at the Organization. One of the most important developments of the 1960s was the emergence of new nations from colonial domination, many of which had an interest in maritime affairs and joined the Organization en masse.235 As a result, membership of the Organization grew rapidly, and in September 1964, at the 2nd Extraordinary Session of the Assembly,236 the Organization adopted an amendment to the Convention increasing the size of the Council from sixteen to eighteen.237 The main ship-owning countries continued to have six seats each.238 A third group was created comprised of six Member States “which have special interests in maritime transport or navigation and whose election to the Council will ensure the representation of all major geographic areas of the world.”239 This language is now contained in the famous Article 17(c). A year later, the 4th Regular Session of the Assembly240 adopted an amendment to Article 28, increasing the MSC membership from fourteen to sixteen.241 Among the enlarged group of sixteen, eight, rather than six, were to be elected from among the ten largest ship-owning states.242 However, one apparent goal of enlarging the group was to achieve greater geographical representation. Thus, four of the seats were to be filled in such a way as would ensure that Africa, the Americas, Asia, Oceania, and Europe were all represented, with the other four seats being elected from among states not otherwise represented on the Committee.243 The 1960s amendments represented the fact that the Organization was growing and undergoing fundamental changes.244 Consequently, the dominance of the TMNs came under strain as more and more DMNs joined the ranks of the Organization.245
C. Second Enlargement of the Council: The 1970s Amendments to the Convention
More significant amendments were enacted at the 5th Extraordinary Session in October 1974.246 Here, Council membership was increased from sixteen to twenty-four States by enlarging Group (c) under Article 18 to twelve Member States.247 This change again reflected the increase in membership, especially among the DMNs. More significantly, Article 28 was revised to state “[t]he Maritime Safety Committee shall consist of all Members.”248 Because the MSC and its subsidiary bodies maintained responsibility for the majority of the Organization’s technical work, the change to Article 28, together with the enlargement of the Council, was intended to offset criticisms that the Organization had always been, and continued to be, dominated by the TMNs.249 Significantly, Resolution A.316 (ES.V) was also adopted at this time recognizing that “a high number of the members of the Organization are constituted by developing countries and that such fact has not so far been reflected in the composition of the governing bodies of the Organization.”250 The Resolution stated that the new amendments were adopted “as a recognition of the need of wider and more equitable representation in the Council and all sectors interested in the work of the Organization, having regard to the increased membership of the Organization and the need to improve the representation of developing countries in the Council.”251 The amendments ushered in the new buzz phrase: equitable geographical representation.
Other developments, in addition to the desire for democratic change, served as catalysts for change. For example, the Torrey Canyon Oil Spill of 1967 demonstrated the catastrophic damage that could result to the environment from a large oil tanker.252 Moreover, the spill demonstrated deficiencies in the international system for determining liability and compensation for spill damage.253 Thus, the Organization created a Legal Committee to deal with compensation, and established a new sub-committee of the MSC to handle environmental issues.254
But could the Organization cope with both the external factors and internal changes? Had politico-economic issues taken a back seat?
In 1975, as a result of the aforementioned developments, the 9th assembly adopted Resolution A.358 (IX), thus forming a new Marine Environmental Protection Committee (MEPC) and raising it, along with the Legal Committee, to the same level of status as the MSC.255 Consequently, and understandably, an addition to the list of purposes of Article I was made, stating that “the prevention and control of marine pollution from ships; and to deal with legal matters related to the purposes set out in this Article.”256
At the same time, returning to politics, the name of the Organization was itself changed from IMCO to IMO.257 The original name, with the inclusion of the word “consultative,” was not only long and cumbersome, but also gave the impression that the Organization’s role was to give advice or talk, rather than also making decisions and taking action.258 Although the significance was not appreciated by its more influential members, the change in the Organization’s name had a fundamental impact. It represented the coming of age, a signal of a return to the political battleground, and therefore, increased expectations from among its numerous less influential members.259
The 10th Assembly further recognized the changing role of the Organization. The 1977 Amendments altered Article I(a) and (d), thereby accommodating the Organization’s increasing involvement in administrative and legal issues.260 Moreover, Article 2, which had previously limited the Organization to being consultative and advisory, was deleted.261 Additionally, the Organization’s technical co-operation had been growing since around 1966.262 Accordingly, in 1969, a Technical Co-operation Committee (TCC) was established.263 As an indication of its importance, the 1977 Amendments raised the TCC to the same status as the MSC, the Legal Committee, and the MEPC.264 Notably, the Organization was the first United Nations Specialized Agency to take this step. The creation of the TCC was for the benefit of the DMNs and has been emulated by other U.N. Specialized Agencies.265 Significantly, in 1979, the Assembly adopted further amendments again increasing the size of the Council, this time from twenty-four to thirty-two, with sixteen places for Group (c).266 Then, at the historic 24th Assembly in November 2005, a move was made, primarily by the DMNs members seeking to flex their muscles within the newfound “democracy,” to address the need for internal constitutional changes.267 This event would test whether the Organization was prepared to make political changes corresponding to its previous technical and administrative changes.
D. Third Enlargement of the Council and Attempts at Wider Participation: Developments in the 1990s and the Spirit of the 1993 Amendments
Further amendments were adopted in 1991 raising the Facilitation Committee to equivalent status of the other Committees.268 The new Committee sought to establish normalized documentary procedures for international maritime trade that would alleviate the inefficiencies and unnecessary steps that are often involved.269
But by far the most significant and relevant amendments were those of 1993, in which the 18th Assembly again increased the size of the Council.270 This enlargement followed from concerns over the Council elections that were held during the 17th Session of the Assembly, in which, due to the large number of members seeking election, several time-consuming votes were required to determine membership of Group (a).271 Although this was an election related to category (a) (i.e., under Article 17(a)), the alarm bells were sounding for elections in category (c) (i.e., under Article 17(c)). The 1993 amendments increased the size of the Council from thirty-two to forty, with Groups (a) and (b) increasing to ten each, and Group (c) increasing to twenty member states.272
With the entry into force of the 1993 amendments on November 7, 2002, there was real hope among the reformers that more countries would be able to participate and that the Organization was becoming more democratic, at last paying special attention to the DMNs and geographical representation.273 This hope was partly based on the language of the amended Article 17, which provides that:
In electing the Members of the Council, the Assembly shall observe the following criteria:
(a) Ten shall be States with the largest interest in providing international shipping services;
(b) Ten shall be other States with the largest interest in international seaborne trade; and
(c) Twenty shall be States not elected under (a) or (b) above which have special interests in maritime transport or navigation, and whose election to the Council will ensure the representation of all major geographic areas of the world.274
But the reformers received a stark reminder at the 23rd Assembly Council elections, when Liberia, the second largest ship-owning nation, once again failed to be elected despite the enlargement of the group.275 The countries that were elected to Group (a) consisted of: China, Greece, Italy, Japan, Norway, Panama, Republic of Korea, the Russian Federation, the U.K., and the U.S.276 This decision was perhaps motivated by political and security considerations rather than commercial realities. Moreover, there was probably a political message involved. Liberia did not have a stable government for a long-time, and President Charles Taylor and Sergeant Doe before him were very unpopular with the U.S.,277 which had provided the bulk of vessels to the Liberian registry.278 During the late 1980s, similar circumstances in Panama had prompted the U.S. invasion that deposed President Noriega.279 Such events illustrate that shipping is not immune from geopolitical issues.