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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V. The 24th Assembly Elections to the Council, November 2005: Article 17 and a Return to the ICJ?
A. The 23rd and 24th Assembly Council Elections, November 2003 and 2005
The last straw was the Council elections for the 2006–2007 biennium, regarded as particularly disastrous by the DMNs. The elections raised the specter of a return to the ICJ and a possible repeat of the 1959 experience.
The results of the 2005 elections were no different from those of the previous elections and resulted in the ten members in Group (a) remaining unchanged: China (10th), Greece (4th), Italy (14th), Japan (12th), Norway (11th), Panama (1st), Republic of Korea (18th), the Russian Federation (16th), the U.K. (13th), and the U.S. (15th).280 This category represents eight Member States with “the largest interest in providing international shipping services.”281 But what does that mean? Except for Panama, the Group is predominantly Western European and Asian. Liberia (2nd), the Bahamas (3rd), Singapore (5th), the Marshall Islands (7th), and Malta (8th) are all ranked among the eight largest ship-owning nations in the world and appear to be the most obvious omissions in that category.282
The ten members in Group (b) are: Argentina (80th), Bangladesh (75th), Brazil (38th), Canada (37th), France (AT) (34th), Germany (17th), India (19th), the Netherlands (26th), Spain (CSR) (42nd), and Sweden (32nd).283 Like Group (a), Group (b) is comprised predominantly of European and Asian nations, and contains neither an African nor East European representative. Group (b) is supposed to represent the eight Member States with “the largest interest in international seaborne trade.”284 Has fair “representation of all major geographical areas of the world”285 been accomplished by these two groups alone?
The twenty members in Group (c) are: Singapore (5th), Cyprus (9th), Egypt (53rd), Malta (8th), Australia (41st), Portugal (52nd), South Africa (101st), the Bahamas (3rd), the Philippines (28th), Malaysia (25th), Turkey (29th), Indonesia (30th), Mexico (59th), Thailand (36th), Saudi Arabia (46th), Belgium (31st), Algeria (62nd), Chile (61st), and Kenya (144th).286 Within the African geographic area, West and Central Africa are unrepresented thereby laying to ruins the quest for equitable representation and geographical participation. Moreover, that Liberia, the second largest ship-owning nation in the world, has not been elected to the Council since 1995 is almost scandalous and says much about democracy in the Organization.
Remember that Group (c) is supposed to represent sixteen Member States, not elected to (a) or (b), that 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.”287 But, once again, what does that mean?
Developing countries’ frustrations with the electoral process have not gone unnoticed. The former Secretary-General, William A. O’Neal, credited with both piloting and ensuring the entry into force of the 1993 amendments, stated that increasing the size of the Council was supposed to be an important step in ensuring that its size was maintained at a level proportional to the membership of the Organization and that it included a good cross-section of Member States from the different geographical regions of the world.288 Accordingly, it was hoped that the expansion of the Council would ensure a broader representation for the Organization’s acting governing body between sessions of the Assembly and would play a crucial role in deciding such matters as the selection of the Secretary-General, the Organization’s work program, and its budget.289 This is particularly important to the DMNs and, to a certain extent, large flag states too.
A clear division has therefore emerged in the Organization on fundamental issues. The reformers have once again had their hopes dashed. All the amendments, changes, and expansions since the 1960s have not yielded practical fruits. The common view now is a probable return to the ICJ. Does the path to the ICJ’s Advisory Opinion of 1959 ring a bell? If history were to repeat itself, what issues would be sent to the ICJ for an Advisory Opinion, and how would the Court react? What must be done to avoid a return to the ICJ? The rest of this article is devoted to analysis of these questions.
B. Some Suggested Approaches: Alternative Dispute Resolution vs. Litigation
As a direct consequence of the 23rd and 24th Assembly elections to the Council, and following widespread unease, especially over the latest elections, there have been calls for a shakeup of election procedures at the highest levels of the Organization.290 Some influential Member States among the DMNs submitted a challenging reform paper to the Organization’s Secretary-General and Secretariat aimed at breathing more “democracy” into the Organization generally and into the Council specifically.291 These proposals include: (1) changes to the voting process from the current system to a regional basis, as in its parent body, the United Nations;292 (2) creation of a special category for the six largest contributors293 to the budget, somewhat like the maritime equivalent of the permanent members of the United Nations Security Council; (3) opening of Council meetings to all Member States as observers (the opening of the Maritime Safety Committee to all Member States being a clear precedent);294 and (4) a restructuring or even straightforward abolition of the Council.295 Failing positive reaction to these proposals, a return to the ICJ for an advisory opinion on the election to, or the Constitution of, the Council appears likely,296 thereby allowing history to repeat itself half a century later.
If this were to happen what would be the main question to the ICJ? What would the preliminary issues be? Some of these are listed and discussed below.
C. The Likely Scenario at the ICJ in the Event of a Second Referral on the “Constitution of the Council”
1. Formulation of the Main Question and Issues
The main question to the ICJ this time would be whether the Council was properly constituted. The preliminary and other issues arising from Article 17 would involve interpretation of, and answers to, the following subsections.
2. Meaning of the “Largest Interest in Providing International Shipping Services”: Article 17(a)
If the questions were referred to the ICJ, this would be one of the areas of interpretation in which the Court’s advisory opinion would be sought. We know from the 1960 judgment, however, that the Court interpreted the words and phrases in the Constitution according to their natural and ordinary meaning.297
The first issue for the Court to determine would be the meaning of “largest.” From the 1959 precedent, “largest” would refer to the numerically largest tonnage, such as from a table or other published guideline.298 We also know that in the 1959 judgment, “largest” did not necessarily refer to or include the ability of the States to be effectively involved in ownership and all other aspects of the ships in a nation’s registry.299 While there is no internationally accepted criterion or table for measuring countries’ involvement in international shipping services, the matter was discussed at the 1964 Assembly. There the delegates understood it to mean the “largest gross registered tonnage,” “considerable gross tonnage,” or “possessing the largest fleets.”300 It is generally accepted, however, that most countries involved in providing maritime transport are also able to provide shipping services. Therefore, the most useful starting point would likely be a statistical table of international shipping services, such as the Lloyd’s Register of Shipping.
The second issue would be to construe the meaning of “interest.” The natural meaning of “interest” is to maintain or have a right, claim, or share in something, or to maintain involvement or participation in something.301 Having an interest, however, does not necessarily include the ability to exercise that interest. Practically speaking, measuring a country’s interest in international shipping should be linked to something substantial, such as each country’s registered tonnage. In the 1959 case, Liberia argued that the largest ship-owning nations would automatically qualify as having the largest interests in providing international shipping services.302 And, as argued by India at the same time, non-maritime nations might also have legitimate interests in maritime transport.303 As discussed above, the Court seemed to agree with those interpretations in its 1960 IMCO judgment and is therefore quite likely to do so again.
The third issue would be to determine the meaning of “international.” In 1960, the Court opted for a natural meaning, in which case “international” would likely be construed as operating globally between nations as opposed to internally or merely regionally. This distinction is important because a country might have a large regional, but not necessarily international, presence in shipping or providing maritime services.
The fourth issue would be to discern the meaning of “shipping.” While difficult to define precisely, this phrase may be described to include: (1) maritime transport; (2) the operation of merchant ships; (3) the process of loading, unloading, and forwarding; (4) a general term for merchant shipping and/or the transport of merchandise by ships; and (5) the business of carrying cargoes and passengers.304
The fifth issue would be to define the meaning of “providing.” Once again, “providing” has no special legal or maritime meaning, and the Court would likely have to assume a natural meaning from the term “to provide,” which denotes giving or making something available for use by giving or supplying it.305
The sixth and final issue would be to delineate the meaning of “services.” “Services,” when read together with “shipping,” would probably include the entire business of maritime services, such as the carrying of cargoes and passengers, ship supplies, ship-repairs and dockyards, shipbroking, shipbuilding, ship-breaking, insurance services, banking and finance, legal, maritime arbitration, chartering, registration, and the whole shipping infrastructure. Further guidance in this respect may be taken from section 1(9)(d) of the U.K. Shipping and Trading Interests (Protection) Act of 1995, where “shipping services” means “services provided by means of ships, and includes the carriage of goods or passengers by sea, cable laying, dredging, and services provided by offshore support vessels.”306
Once more, in the absence of any statistical table or means of measurement, the ten members in Group (a) would include countries owning ships with the ability, experience, and infrastructure to offer international commercial shipping services to the rest of the world.307 London, with all its maritime history, shipping, finance, and insurance endowments, would qualify the U.K. for such status. The Netherlands, with its large Europort in Rotterdam, would also qualify. Other obvious candidates would include large maritime economies such as Germany, Japan, and the Scandinavian countries.
However, it is unlikely that any question related to Group (a) would be referred to the Court, except perhaps the omission of Liberia. Unlike Article 28(a) of the 1948 Constitution, which provided for the “eight largest ship-owning nations,” the amended Article 17(a) simply refers to the “largest interests” without any reference to statistical data or other guidelines.308 Therefore, any number of countries could conceivably qualify for inclusion. The issue is whether the Court would consider the ten members elected under this category to have met these requirements as compared to other candidate countries. In other words, would the election be discretionary or mandatory? The Court may well wish to have access to the history of Article 17(a), as it did with Article 28(a) in 1959. In any case, as provided by the ICJ in its 1960 decision, the only factors to be considered should be those related to maritime safety, rather than other external considerations.309
3. Meaning of the “Largest Interest in Seaborne Trade”: Article 17(b)
Having dealt with what constitutes “interest,” there would still be a question of what comprises the “largest interest in seaborne trade,” where, once again, there are neither statistical tables nor any other guidelines. Therefore, the discussion above of “largest” and “interest” would apply here too. The only remaining problem would be the meaning of “seaborne trade.”
A natural meaning of “seaborne” would be emanating or coming from the sea, i.e., anything carried by a ship at sea. In this context, “trade” would mean the carriage of cargoes and merchandise on merchant vessels by sea. The Court would likely find these definitions easy to determine, and the questions raised by them less problematic than those raised by “elections” in 1959.
The need to refer to the history of the clause would once more be applicable in this respect. The fact that this group is supposed to contain 10 Member States seems to be a spillover from Group (a) above, and indicates that very little distinguishes Group (a) from Group (b). Indeed, the paragraph continues, “not elected under (a) or (b),” implying that open registry (flags of convenience) states would also have been eligible for election. Admittedly, it is not clear how the Court would interpret this provision, and reference to the history of the Article might shed light on it. Based on their criticisms of the flags of convenience—including (1) that the open registry states have no need for the vessels in their registries and, (2) that the vessels in question are therefore only involved in cross-trades and have no need to call at the “home” port310—the TMNs, as the largest economies in the world, probably regard themselves as having “the largest interest in seaborne trade.”
Unfortunately, the 1963–1964 Assembly seems to have understood this term to mean one or all of the following: “largest volume of seaborne trade,” “considerable volume of seaborne trade,” or “largest interest in seaborne trade.” Thus, with little help from history and without any internationally recognized statistical tables or other form of guidance, the Court would likely find it difficult to determine this issue. There is currently no record equivalent to that of Lloyd’s Register of Shipping that would provide a clear-cut answer. The UNCTAD Review of Maritime Transport might be the best alternative. However, the IMO Secretariat has noted that “UNCTAD does not possess a complete record of seaborne trade by individual countries . . . [i]nstead it relies upon and uses a number of sources to estimate the world’s seaborne trade.”311 Accordingly, the Secretariat has suggested that the best approach would be to collect data on the volume of goods loaded and unloaded from individual countries’ ports or main ports.312 But a still more logical solution might be to adopt the ILO approach: the ILO Convention refers to the most industrialized nations in its equivalent provision to Article 17(a).313
4. Meaning of “Special Interest in Maritime Transport or Navigation”: Article 17(c)
The meaning of “interest” has already been considered in the previous section. Furthermore, it has already been established that “maritime transport” has the same meaning as “shipping” (transporting or conveying by sea) and that “navigation” refers to the process of determining the correct course(s) of a ship or aircraft to enable it to arrive safely. It is not clear, however, why there is a division between “navigation” and “maritime transport” in the provision. Presumably this is because a country might have an interest in only one or the other. Furthermore, “maritime transport” has a more commercial connotation, while “navigation” has a more technical meaning—relating to actual sailing or operations.
The main issue with regard to Article 17(c) is therefore how “special” is defined. In laypersons terms, “special” connotes more than an ordinary or simple interest and includes an interest “of a particular or certain type; not common, usual or general”314 or “a person or thing that is not of the usual or regular type.”315 This definition means that countries with a special interest would be eligible for election under Groups (a) or (b). On the other hand, the plain meaning of “special” does not include the maritime term of “special cargo,” commonly used to refer to valuable cargo such as money, precious metals, jewelry, or hazardous or particularly large cargo. Thus, it remains unclear what sets Group (c) apart from Groups (a) and (b), unless the aim of the provision was to include those countries that were not elected to Groups (a) and (b). Without any statistical data as guidance, it is difficult to determine what constitutes “special interest in maritime transport or navigation.”
Although the summary records of the 1963–1964 General Assembly proceedings are silent on the attempt to define “special,” it is quite plausible that it was understood to be a generic term referring to coastal littoral states with general interests in “maritime transport, shipping, navigation, seaborne trade, relating to flags, and ports,” which might not otherwise be elected under Articles 17(a) and (b).316 The Australian delegation suggested the phrase “special interests in maritime transport” could be interpreted to refer to states, such as Australia, with “considerable interest in international seaborne trade.”317 The same argument could be applied to Canada, a country with only a moderate merchant marine interest but with considerable interests in maritime transport and navigation due to its extensive coastlines, the St. Lawrence Waterway, and the Great Lakes.
Discussions at the IMO on Article 17(c)318 addressed the issue more satisfactorily than Articles 17(a) and 17(b).319
D. The Principle of Equitable Geographical Representation
1. Defining “Election Will Ensure the Representation of All Major Areas of the World”: Article 17(d)
Of all the issues involved, interpreting the meaning of Article 17(d) is the one most likely to warrant a return to the Court. In addition to qualifying under Article 17(a) and (b), membership to Group (d) requires representation of “all geographical regions.”320 The meaning of “all geographical regions” relies on the Organization’s existing references to geographical regions in its dealings, practices, or documents. At present there does not appear to be an established categorization of the “major areas of the world.” Only the UNCTAD and the OECD Annual Reports on Maritime Transport refer to the categorizations of countries’ geographical regions.321
As to other definitions under this provision, the Court would likely adopt the following:
First, the meaning of “election” was comprehensively dealt with by the Court in its 1959 deliberations, and would undoubtedly be similar here.
Second, the Convention’s use of the word “will,” instead of “shall,” was adequately interpreted by the Court on the same occasion to imply mandatory and not discretionary.
Third, the use of the word “ensure” has a mandatory implication in the sense that the outcomes of the elections must yield some tangible guarantee or assurance.
Fourth, “representation” must be taken in its natural context, to legitimately take the place of and speak for an individual, a state, or another entity.
Fifth, “all major areas,” taken in its natural context, means that no continent or significant region or area of the world should be left out following the elections. This would require that the IMO establish and operate on the basis of accepted divisions of the world. Even if this were the case, the only way to guarantee such representation would be through positive discrimination, for example by allotting a certain number of places per continent or region. This would be difficult to achieve or measure without useful guidelines in the Organization’s dealings or documents giving insight into what constitutes geographical representation.
Sixth, and finally, it is interesting to note that the 1963–1964 General Assembly proceedings proposed implementing geographic distribution of Council Seats, but did not determine a definite meaning of this terminology.322 Unfortunately, there appeared to be no consensus as to the composition of the various geographic areas. Thus, despite the lack of a common view, there appears to have been no desire to either define the term or pursue the matter any further.323
There are, however, some analogous examples within the Charter of the United Nations on this subject matter.
2. The Charter of the United Nations
The Court might find guidance in the Charter of the United Nations. The Charter recognizes that a factor of consideration for election to those organs not open to universal membership, is the need to ensure adequate geographical representation.324 However, membership should not be confused with representation. For instance, there are over 170 members of the IMO, but not all are represented in the various organs of the Organization. McWhinney, although on a slightly different issue, distinguishes between membership and representation in the United Nations.325 He argues that in relation to the latter, the General Assembly is entitled to take into account new principles of international law.326
First, with respect to the Security Council, Article 23 provides:
The Security Council shall consist of fifteen Members of the United Nations . . . . The General Assembly shall elect ten other Members . . . due regard being specially paid in the first instance to the contribution . . . to the maintenance of international peace and security . . . and also to equitable geographical distribution.327
Thus, membership criteria take into consideration contributions by, and equitable geographical distribution of, member states.
Second, as noted by Sands and Klein, “[i]n the elections [to ECOSOC], an attempt is always made to represent a variety of social, economic, cultural and geographical interests.”328 Once more, there is reference to geographical representation, albeit in terms of interests.
Third, Article 61 originally provided that ECOSOC should be made up of 18 members, but this number was increased to 27 in 1963 by General Assembly Resolution 1991 (XVIII)329 and to 54 in 1971 by General Assembly Resolution 2847 (XXVI).330 This resolution also provided for specific numbers of representatives from each of Africa, Asia, Latin America, and Western and Eastern Europe.331 The IMO might wish to consider similar continental representations.
3. The ICJ’s “Equitable Geographical Distribution” Formula
The concept of geographical representation is not new to the ICJ itself, as its own internal laws and practices reflect. One of the primary criteria for election of judges to the ICJ is that the body of judges as a whole represent “the main forms of civilization and . . . the principal legal systems of the world.”332 According to Sands and Klein, “[i]n practice election of the judges is based upon a degree of ‘equitable geographical distribution’ which characterises the composition of most U.N. organs or bodies of limited composition.”333 Furthermore, “[a]ny vote of the Security Council, whether for the election of judges or for the appointment of members of the conference envisaged in Article 12, shall be taken without any distinction between permanent and non-permanent members of the Security Council.”334 These provisions imply equality of treatment among members.
The United Nations Civil Service335 and other organizations within the U.N. system follow the same general principles of equitable geographic representation in their membership.336
4. Practices of the United Nations and Specialized Agencies: Law and Practice of the Common System in Relation to International Civil Service
Regulation 4.2 of the IMO’s Staff Regulations and Staff Rules on appointment and promotion provides that “[d]ue regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.”337 In comparison, the equivalent provision in the International Atomic Energy Agency (IAEA) is slightly more elaborate. Regulation 3.01 of the IAEA Staff Rules and Staff Regulations provides that “[d]ue regard shall be paid to the contribution of the Member States and to the importance of recruiting from staff on as a wide a geographical basis as possible.”338
All United Nations Specialized Agencies relating to international civil service in the common system have this type of provision.339 However, this serves only as an indirect guide, since international civil service strives to protect the interest of all parts of the world community equitably and dispassionately.340 In addition, guidelines can be found in the statistical shipping tables of UNCTAD’s Annual Review of Maritime Transport,341 which divide Member States into geographical regions and interests. But application of the principle of equitable geographical representation is not limited to the United Nations Specialized Agencies; other international organizations not affiliated with the United Nations follow similar principles regarding their elections and representations. Moreover, notable jurists and administrators have vigorously defended geographical distribution of personnel as related to international civil services.342
5. Practices of the OECD, FIFA, and Other International Organizations
Like UNCTAD, the OECD Annual Reports include information that lists countries by region.343 Another useful analogy is the recent changes to the Constitution of the Federation of International Football Associations (FIFA). FIFA now guarantees the right to hold the World Cup competition to each of the six habitable continents on a rotating basis and guarantees teams from countries within the host continent an opportunity to compete.344 This change followed the fiasco at the 2002 competition where South Africa, the then-favored country, was replaced by Germany as the 2006 host.345 The FIFA election rules were therefore changed to ensure geographical representation of the sport, leading eventually to the election of South Africa as the 2010 World Cup host.346
By contrast, the IMO left out areas, including West and Central Africa, by following undefined guidelines in its 23rd and 24th Assembly Elections. This seems odd in light of the sheer numbers alone: twenty of Africa’s forty members are from the West and Central African region. Furthermore, the region includes important maritime countries such as Liberia (2nd in the world in registered tonnage), Nigeria (major oil producer and trader), and Ghana (hitherto an influential member of the Organization). Also left out, apart from the Russian Federation, is a large region of Eastern Europe.
Clearly these elections to the Council did not ensure the “adequate and equitable representation of all major areas of the world” as anticipated by Article 17(d). The election results for the 40-member Council included fifteen countries from Western Europe, one from Eastern Europe (the Russian Federation), two North American nations (Canada and U.S.), two Central American nations (Panama and Mexico) three nations from South America (Argentina, Chile, and Brazil), one from Oceania (Australia), five from Asia and the Far East (Japan, Singapore, India, Bangladesh, and Malaysia), and four from Africa (Algeria, Egypt, Kenya, and South Africa). Leaving elections to be determined only through campaigns further exacerbated matters. Other organizations demonstrate how these shortcomings can be overcome. One such organization is the International Monetary Fund (“IMF”).
6. Comparable Developments at the International Monetary Fund
Techniques such as those adopted by the laws and practice of the IMF347 have been proven to simplify and accelerate the adoption of provisions and constitutional amendments of international organizations. Like the ICAO, the IMF is an international organization with useful practices the IMO might wish to study. At the IMF, all powers are vested in the Board of Governors (equivalent to the IMO’s Council), in which each member has one governor and one alternate.348 However, unlike the IMO, the voting power of IMF members is proportionate to their respective quotas.349 IMF business conduct is delegated to the Board of Executive Directors, which meets several times each week. For our purposes, it is significant that five of the twenty-four members of the IMF Executive Board are appointed by the five members having the largest quotas (France, Germany, Japan, the U.K., and the U.S.).350 In the IMO, these same five countries are among the dominant members, but contribute far less and appear prepared to keep much larger contributors—such as Liberia—from the high table. Unlike at the World Bank or the IMF, where TMN contributions enable them to wield power, at the IMO they do so despite their proportionally lower registered tonnage and budgetary contributions. After all, if the IMF’s system were repeated at the IMO, the outcome would result in a drastic change in the composition of the current Council.
E. Recent Developments at the Secretariat
1. The Devil and the Deep Blue Sea: The Formulation of Alternative Approaches
There have been some developments at the Organization’s Secretariat since the disastrous 2005 General Assembly Council elections. There has been a general endorsement of the call for change led by, among others, the Kenyan and Bahamian delegations.351 The matter was taken up by the 24th Session of the Assembly352 and the 96th,353 97th,354 and 98th355 Sessions of the Council in June and November 2006 and June 2007. Consequently, a general consensus is developing that something should be done. Whether any proposed solution will be adequate is another matter. Generally, consideration has been given to whether the issue should be (1) settled by an amendment of the constitution, (2) pursued by means of an Assembly or Council Resolution, or (3) referred to the ICJ for an advisory opinion. Each of these options is examined below.
2. Settlement Through Amendments to the IMO Convention
Put briefly, the current Council does not think that amending the Convention is a viable proposition.356 A number of reasons were cited for the Council’s reluctance. First, the IMO Convention does not contain specific provisions that would ensure a balanced geographical distribution of seats on the Council.357 Second, a considerable amount of time would likely be required to pursue this course.358
This author begs to differ with the Council’s position and the explanations for its failure to act on both counts. This article has enumerated and analyzed a long history of constitutional amendments in the Organization and has demonstrated that amendment is possible, and that it has in fact been done by the IMO where there were no provisions for such. On this basis, a perceived time constraint would not be a factor. Moreover, both scholarly evidence and the Organization’s own limited study indicate that the constitutional flexibility of the United Nations and its Specialized Agencies, while varying widely in their practice of constitutional amendments, have generally achieved satisfactory results.359 The fact that there are no generally agreed upon principles within sister organizations is no excuse for inaction. In fact, for the same reason, setting precedent where none exists would be beneficial to the Organization; for it would break new ground. Thus, the focus ought to be on whether it can and should be done, as opposed to the fact that it has not been done yet.
3. Settlement through Council and Assembly Resolutions
Having unanimously agreed that the matter should not be pursued through an amendment of the Convention,360 the Council instead requested that the Secretary-General undertake a comparative study of the related practices of other United Nations Specialized Agencies of similar membership and constitutions, focusing on the issue of equitable geographical representation. The goal of the study was to facilitate Assembly action on an appropriate Council Resolution.361
The findings of the Secretary-General mirror what this article has consistently maintained: (1) while the criterion of geographical representation is common to many U.N. organizations and agencies, there does not seem to be a common methodology for implementation; (2) the same criterion are not expressly required by the constitutive instruments of most organizations and agencies reviewed—in many cases the criterion is the result of a formal decision or long-standing convention or practice, while in other cases, it has emerged as an outcome of the political process; (3) there is no uniform understanding or practice within the organizations and agencies reviewed concerning the terms “geographic regions” or “geographical representation”; and (4) some organizations and agencies utilize the principle of rotation to ensure geographical representation, while others apply a quota system for different regions.362 In some instances, the two approaches are combined.
While this article’s findings are generally in agreement with the Secretary-General’s study, its view of the way forward differs significantly from that of the Organization.
It will be recalled that the 97th Session of the Council rejected the first option to amend the Convention in November 2006 and requested that the Secretary-General submit to the 98th Session of the Council: (1) a draft Assembly Resolution on the implementation of Article 17(c) of the Convention, taking into account Council proceedings so far on the issue, and (2) a document elaborating on possible procedures for electing the Council, including a clearer definition of the criteria for candidatures in each category, with a view toward encouraging contestability.363 The two draft documents364 for implementation of Article 17(c) of the Convention were accordingly debated and approved by the 98th Council for submission to the 25th Regular Session of the Assembly. The session meets later this year, in November 2007, when it will consider adopting the resolution and election procedure guidelines.365
It is this author’s considered opinion that the best course of action would be a constitutional amendment to set the change on secure footing and thereby avoid future problems. Making Council and Assembly Resolutions and tinkering with electoral procedures would not achieve much. They would not address the fundamental issues at stake and instead would simply postpone future problems by altering procedural issues. The problem will not go away if the organization remains in a position of continued denial.
4. Referral to the ICJ for an Advisory Opinion
By comparison, the Council did not consider its stated third option: referral to the ICJ for an advisory opinion.
Failing a constitutional amendment, and in the alternative, this article’s second recommendation—and last resort—would be a return to the ICJ. However, the general consensus at the Organization is that returning to the ICJ is not preferred.366 However, it also seems clear that a return to the ICJ has not been ruled out. It is almost certain that adoption of the draft Council Resolution by the Assembly will not solve anything. Therefore, anything other than the first and third alternative would be like rearranging deck chairs on the Titanic.
The internal debates today are reminiscent of the attempts at internal solutions that took place in the Organization prior to the 1960 ICJ Advisory Opinion. If the other alternatives will accomplish nothing and waste a considerable amount of time, perhaps the best solution is a direct approach to the ICJ for an advisory opinion. If this occurs, history will have repeated itself. The only unfortunate consequence of this approach is that it would seem to indicate that the Organization has not learned from the mistakes it made fifty years ago. Accordingly, the Organization would be advised to study the ICJ’s judgment on the Constitution of the ICAO Council,367 handed down a quarter of a century after the Court’s ruling on the Constitution of the Maritime Committee of the Inter-Governmental Maritime Consultative Organization in 1959.