Volume 43 | Number 3

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

by Ademun-Odeke

Abstract

The Council and the General Assembly of the International Maritime Organization (“IMO” or “the Organization”) is currently faced with a constitutional issue that has remained unresolved since its founding half a century ago. The Inter-Governmental Maritime Consultative Organization (“IMCO”), the forerunner of the IMO, was established by the International Maritime Conference in Geneva in 1948. Its main technical organ then, the Maritime Safety Committee (“MSC” or “the Committee”), was to be elected from among the eight “largest ship-owning nations” in accordance with Article 28(a) of the Organization’s 1948 Convention (the “Convention”). The Convention’s drafters intended to limit membership of the Committee to a few exclusive and dominant traditional maritime nations (“TMNs”)¹ with effective interests in maritime safety. The development of flags of convenience (open registry) from 1920–1950, however, propelled Liberia and Panama into the group of the eight largest ship-owning nations. Nonetheless, the second IMCO Assembly, which met in 1959, failed to elect the two states to the MSC in accordance with Article 28(a). Unable to resolve the issue internally, the matter was referred to the International Court of Justice (“ICJ” or “the Court”). The Court, in an advisory opinion, stated that without the two countries, the MSC was not properly constituted. Following internal and external developments the Constitution was amended, the Organization’s name changed to IMO in 1982 and power transferred from the MSC to the Council. The Council expanded gradually from the 1960s, notably in 1993, to allow for wider “geographical representation” and for fuller participation by the developing maritime nations (“DMNs”).² However, at its 24th Session in November 2005, the Assembly election results for Council did not appear to follow either the letter or the spirit of the amendments. This has caused widespread concern, especially among the DMN Member States who have consistently advocated for either urgent reforms of electoral process or a return to the ICJ for another Advisory Opinion. Unless the issue is resolved soon, it is likely to undermine the Organization’s credibility and activities for the foreseeable future. This paper assesses whether there will be an internal compromise and solution this time around or whether history will repeat itself at the IMO with a return to the ICJ. This article analyzes the history of the problem and possible scenarios in the event of a return to the ICJ against the background of the 1960 ICJ Advisory Opinion; the IMO Constitutional Amendments, especially the Amendment of 1993; constitutional experiences of the United Nations and comparable international organizations; international law and practices; and the IMO 24th Assembly elections to the Council in 2005.

Summary

1. Introduction
   1. Aims and Objectives
   2. Methodology and Approach
2. Contextual Historical Developments and the Constitution of the Maritime Safety Committee
   1. Development and Creation of IMCO
   2. The Principal Organs of IMCO
   3. The Constitution and Function of the Maritime Safety Committee: Article 28(a)
   4. The 1st Assembly Elections to the Maritime Safety Committee, November 1959
   5. Referral of the Dispute to the International Court of Justice, 1959
3. Issues Before, and the Advisory Opinion of, the ICJ
   1. Preliminary Issues
      1. Meaning of “Elected”
      2. Election to the Committee: “Mandatory” or “Discretionary”?
      3. What Constituted an “Important Interest in Maritime Safety”
      4. Meaning of “Ship-Owning Nations”
      5. “Registered Tonnage” Criterion
         1. National vs. Beneficially-Owned Tonnage
         2. The International Law Doctrine of “Effectiveness”
         3. Comparisons with IMCO’s Own Convention and Internal Practice
         4. Comparison with International Instruments and Practices
         5. Comparisons Between the Law of the Sea Conventions and International Judicial Practices
         6. Comparable Experiences of the ICAO Council
      6. Benefits of the Background and Brief History of the IMCO Provision
      7. “Apportionment of Expenses” Criterion
   2. Whether Nationality of Ships, Open Registry, and “Genuine Link” Were Relevant Factors
      1. Flags of Convenience or Open Registries
      2. Nationality of Ships in International Law
      3. Relevance of the “Genuine Link” Issue as a Consideration
      4. Analogy with Textual Practice in Other International Organizations
4. Constitution of the IMO Council: Developments and Potential Problems
   1. Article 17: Constitution and Functions of the Council
   2. First Enlargement of the Council: The 1960s Amendments to the Convention
   3. Second Enlargement of the Council: The 1970s Amendments to the Convention
   4. Third Enlargement of the Council and Attempts at Wider Participation: Developments in the 1990s and the Spirit of the 1993 Amendments
5. The 24th Assembly Elections to the Council, November 2005: Article 17 and a Return to the ICJ?
   1. The 23rd and 24th Assembly Council Elections, November 2003 and 2005
   2. Some Suggested Approaches: Alternative Dispute Resolution vs. Litigation
   3. 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
      2. Meaning of the “Largest Interest in Providing International Shipping Services”: Article 17(a)
      3. Meaning of the “Largest Interest in Seaborne Trade”: Article 17(b)
      4. Meaning of “Special Interest in Maritime Transport or Navigation”: Article 17(c)
   4. The Principle of Equitable Geographical Representation
      1. Defining “Election Will Ensure the Representation of All Major Areas of the World”: Article 17(d)
      2. The Charter of the United Nations
      3. The ICJ’s “Equitable Geographical Distribution” Formula
      4. Practices of the United Nations and Specialized Agencies: Law and Practice of the Common System in Relation to International Civil Service
      5. Practices of the OECD, FIFA, and Other International Organizations
      6. Practices Comparable Developments at the International Monetary Fund
   5. Recent Developments at the Secretariat
      1. The Devil and the Deep Blue Sea: The Formulation of Alternative Approaches
      2. Settlement Through Amendments to the IMO Convention
      3. Settlement through Council and Assembly Resolutions
      4. Referral to the ICJ for an Advisory Opinion
6. Conclusion

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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.
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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
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III. Issues Before, and the Advisory Opinion of, the ICJ

A. Preliminary Issues

1. Meaning of “Elected”

The first preliminary issue before the Court was the meaning of the word “elected” in Article 28(a).⁴⁹ The submissions opposing the election of Liberian and Panamanian representatives sought to construe the term to include a notion of choice. This notion implied that the Assembly was vested with the discretion to freely appraise each member under consideration to be elected.⁵⁰ This interpretation, the submissions urged, applied to both the election of the “eight largest ship-owning nations” and to the six remaining members.⁵¹ The submissions assumed a meaning of the word “elected” and then sought to apply that meaning to Article 28(a) and interpret its provisions accordingly.⁵² In so doing, the contestants sought to place “the eight largest ship-owning nations” in a textually subordinate position to the word “elected” as used in the provision.⁵³

The Court rejected this restricted meaning and its implied subordination. According to the Court, the meaning of the word “elected” in Article 28(a) could not be determined by reverting to its usual or common meaning and attaching that meaning to the word as it is used in the article.⁵⁴ In the Court’s opinion, the word obtains its meaning from the context in which it is used.⁵⁵ For instance, if the context requires a meaning connoting a wide choice, it must be construed accordingly, just as it must be given a restrictive meaning if the context requires.⁵⁶ Then the Court—drawing from Articles 16(d) and 17(c)–(d) of the 1948 Convention, where the words “elect” and “elected” were also used—concluded that the margin of choice existing in the Assembly in relation to the election of any member of the Council was no greater than what was permitted by the terms of those Articles when read with Article 18 as well as in relation to the word “elected” in Article 28.⁵⁷

2. Election to the Committee: “Mandatory” or “Discretionary”?

The second preliminary issue, an extension of the meaning of “elected,” was whether election of Liberia and Panama to the Committee was “mandatory” or “discretionary” for the Assembly. In this context, the U.S. representative submitted that the election of Liberia and Panama was mandatory, or automatic, rather than discretionary.⁵⁸

Nonetheless, the TMNs contended that the Assembly was entitled to not elect Liberia and Panama.⁵⁹ The gist of this argument was that, under Article 28(a), the Assembly was vested with discretionary power to determine which members of the Organization had “an important interest in maritime safety.”⁶⁰ Consequently, in discharging its duty to elect the eight largest ship-owning nations, it was empowered to exclude as unqualified for election those nations that, in its judgment, did not have such an interest. Furthermore, the TMNs argued that this discretionary power extended to the determination of which nations comprised “the largest ship-owning nations.”⁶¹

In rejecting that reasoning, the Court concluded that the arguments supporting discretionary power would permit the Assembly to decide through its vote which nations possessed “an important interest in maritime safety,” and to deny membership on the Committee to any State regardless of the size of its tonnage or any other qualification.⁶² In the Court’s opinion, the effect of such an interpretation would render superfluous the majority of the language of Article 28(a) and would cause the Assembly’s discretion to become the supreme rule for the constitution of the Maritime Safety Committee.⁶³ The Court reasoned that this would be incompatible with the principle underlying the Article—that the largest ship-owning nations had to be predominant on the Committee.⁶⁴ The words “of which not less than eight shall be the largest ship-owning nations” were written into the Article, the Court explained, to express this principle.⁶⁵ Thus, the Court thought that any interpretation of the Article which was inconsistent with this principle was inadmissible. The Court was adamant that these words could not be construed to read “of which not less than eight shall represent (or be representative of) the largest ship-owning nations.”⁶⁶ Thus, the Court found that the largest ship-owning nations must be appointed to the Committee; that their important interest in maritime safety was axiomatic, and that this interest was inherent in their status as the eight largest ship-owning nations.⁶⁷

3. What Constituted an “Important Interest in Maritime Safety”

The third preliminary issue was whether Liberia and Panama had “important interest[s] in maritime safety.” Statements submitted by TMNs contended that Liberia and Panama had neither the means nor the ability to conduct maritime safety and therefore could not have an important interest in maritime transport.⁶⁸ Once more the Court disagreed with those contentions. According to the Court, the words of Article 28(a) had to be read according to their natural and ordinary meaning.⁶⁹ An alternative method of Constitution should be utilized only when ambiguity arose.⁷⁰ In the Court’s opinion, it was clear that the draftsman of Article 28(a) deliberately contemplated that the preponderant control of the Committee was in all circumstances to be vested in “the largest ship-owning nations.”⁷¹

This control was to be secured by the provision that no fewer than eight of the fourteen seats had to be filled by the largest ship-owning nations. The Court thought that the language employed, “of which not less than eight shall be the largest shipowning nations,” in its natural and ordinary meaning conveyed this intent.⁷² It was also held that the words “having an important interest in maritime safety” clearly expressed a qualification for membership on the Committee which was required of each group referred to in Article 28(a).⁷³ In the context of the entire provision, therefore, possession of this interest was inherent in the status as being one of the eight largest ship-owning nations.⁷⁴

This interpretation was consistent with the structure of Article 28(a). Having provided that “no less than eight shall be the largest ship-owning nations,” the Article went on to state that the remainder had to be elected to ensure adequate representation of “other nations” with an important interest in maritime safety; that is, nations other than the eight largest ship-owning nations, “such as [those] nations interested in the supply of a large number of crews.”⁷⁵ The use of the phrases “other nations” and “such as” following the mandatory inclusion of the eight nations reinforced this reading and validated the Court’s interpretation.

The submission of the Liberian government on this matter echoed the Court by arguing that “[a]n Important Interest in Maritime Safety” was of a limited relevance in of itself,⁷⁶ unless special conditions are allowed to override the general ones.⁷⁷ The Liberian government agreed with the Court that the largest ship-owning nations had an important interest in maritime safety as a matter of construction.⁷⁸

4. Meaning of “Ship-Owning Nations”

The fourth preliminary issue was the meaning of “largest ship-owning nations.” On this issue, the Court had been presented several written and oral submissions. One such written submission considered by the Court was that of the Dutch representative:

The term “ship-owning nations” . . . is not suitable for a legal analysis; it cannot be decomposed into elements which have any specific legal connotation . . . even the fact that the merchant fleet, flying the flag of a particular State, is owned by nationals of that State cannot in itself qualify that State as a “ship-owning nation.” Registration and the right to fly the flag and national ownership of merchant vessels “may, together with other factors be relevant for the determination by the Assembly whether or not a State can be considered as a ‘ship-owning nation,’ but ‘they do not either separately or jointly impress upon a State the quality required.’”⁷⁹

This view was supported in a written statement from the U.K. Representative:

The expression “the largest ship-owning nations” has no apparent clear-cut or technical meaning . . . . It is submitted that the intention of those words was to enable the Assembly in the process of election to look at the realities of the situation and to determine according to its own judgment, whether or not candidates for election to the Maritime Safety Committee could properly be regarded as the “largest ship-owning nations” in a real and substantial sense . . . . These words, while intended to guide the Assembly, were at the same time deliberately framed so as to enable the

Assembly to deal with the matter on the basis of the true situation and the real interest in maritime safety of the State concerned.⁸⁰

However, the Court rejected that contention, concluding that those submissions fallaciously asserted authority in the Assembly to appraise which nations were ship owning nations and which were the largest among them, with the words “largest ship-owning nations” providing but a guide. According to the Court, such an interpretation would allow the Assembly “to look at the realities” on the basis of “the true situation,” whatever its individual members considered these to be.⁸¹ The Court stated that following such a line of argument would be dangerous because the Assembly would be bound by no ascertainable criteria, and its members, in casting their votes, would be entitled to consider anything they might think relevant.⁸² Furthermore, according to the Court, if Article 28(a) were intended to confer upon the Assembly such an authority, enabling it to choose the eight “largest ship-owning nations,” uncontrolled by any objective test of tonnage, or registration, or ownership by nationals, or any other metric, the mandatory words “not less than eight shall be the largest ship-owning nations” would be left without significance.⁸³ The Court suggested that giving Article 28(a) such a construction would undermine its purpose—to ensure the predominance on the Committee of the “largest ship-owning nations” in the ratio of at least eight to six.⁸⁴ The Court refused to accept an interpretation which would have such a result. However, the Court was not unanimous in its decision. The Court President⁸⁵ and one other Justice⁸⁶ disagreed with the majority verdict and wrote dissenting opinions.

In this author’s opinion, the Court correctly concluded that some basis of measurement was needed to determine which Members were the largest ship-owning nations. The majority verdict followed the rationale that when Article 28(a) spoke of the “largest ship-owning nations,” it could only have had in mind a comparative size vis-à-vis other nations’ ownership of tonnage.⁸⁷ There was no other practical means by which the size of ship-owning may be measured. Therefore, this decision suggested that the largest ship-owning nations were to be elected based on the tonnage which was owned or belonged to them.⁸⁸ The only remaining question was in what sense the tonnage should be owned by, or belong to, Member nations as contemplated under Article 28(a). The Court, however, was not prepared to delve into other issues of ownership and was unanimous that the words “ship-owning nations” in Article 28(a) should not be construed to mean that the ships had to be owned by the State itself.⁸⁹ Thus, the Court decided the appropriate criterion was registered tonnage rather than beneficially-owned tonnage.

5. “Registered Tonnage” Criterion

i. National vs. Beneficially-Owned Tonnage

The fifth preliminary issue revolved around the criterion for determining the size of a State’s merchant fleet. As part of the Organization’s submission to the Court, their Secretary-General prepared and tabled a list showing the registered tonnage of each member of the Organization in accordance with the Lloyd’s Register of Shipping for the previous year, 1958.⁹⁰ It was hardly surprising that the Liberian representative asserted that under Article 28(a), the “largest ship-owning nations” had to be determined by reference to the figures for gross registered tonnage as they appeared in the Lloyd’s Register of Shipping current at the date of the election.⁹¹ He added that Article 28(a) laid down the rules for electing members of the Committee and that these rules were to be strictly observed.⁹² According to Liberia, under Article 28(a), the Assembly was compelled to elect the eight largest ship-owning nations.⁹³ In other words, Liberia did not think it was an election in the usual sense of the word but that the eight were foregone conclusions: once those eight nations had been determined, the Assembly was bound to elect them.⁹⁴ Liberia contended that unless a country higher up the list had withdrawn its candidacy, no consideration should be given to those outside the eight “largest ship-owning nations.”⁹⁵ Unsurprisingly, the Panamanian representative supported this assertion.⁹⁶

There is merit to the Liberian and Panamanian arguments for a number of reasons. First, no member challenged the figures—which were identical to the figures shown in the then-current issue of Lloyd’s Register of Shipping—setting out by country the gross registered tonnage of each nation in the Secretary-General’s Working Paper.⁹⁷ Second, no objection was made to the use of Lloyd’s Register as the accepted source of figures used to measure nations’ registered tonnage. Third, as will be apparent later, the use of these figures was in line with the apportionment of expenses, comparisons with other instruments, and the history of Article 28(a).

Ultimately, the Court was persuaded that no criterion other than registered tonnage should determine the “largest ship-owning nations” under Article 28(a).⁹⁸ In the Court’s opinion, it was unlikely that the drafters contemplated a criterion based on the nationality of stockholders or of others holding a beneficial interest in every merchant ship.⁹⁹ According to the Court, such a criterion would be difficult to catalogue, ascertain, and measure.¹⁰⁰ This remains the criterion for determining world tonnage of each nation—whether it is an open or normal registry.

The Court’s reasoning was compelling for many reasons. First, this framework is analogous to other areas of international law. For example, in international corporate law, the company is considered to be a separate entity from its shareholders.¹⁰¹ Second, to attempt to take into account the names and nationalities of the owners or shareholders of shipping companies around the world would, in the words of the U.K. representative during the debates preceding the election, “introduce an unnecessarily complicated criterion.”¹⁰² The Court reasoned that to adopt such a method of evaluating the ship-owning rank of the world’s countries was neither practical nor certain.¹⁰³ Above all, such an approach finds no basis “in international practice, [in] the language of international jurisprudence, in maritime terminology, in international conventions dealing with safety at sea or in the practice[s] followed by the Organization itself in carrying out the Convention.”¹⁰⁴ On the other hand, the use of registered tonnage was, though unacceptable to other countries, practical, certain, and capable of easy application.¹⁰⁵

It is also possible that the Court was persuaded by other factors such as the principles of public international law cited in the Liberian submission, including: (1) the international law doctrine of effectiveness;¹⁰⁶ (2) comparisons with IMCO’s own Convention and internal practices;¹⁰⁷ (3) comparisons with international maritime instruments;¹⁰⁸ (4) comparisons with State and international practices; and (5) international judicial practice.¹⁰⁹ Each of these possibilities is examined below.

ii. The International Law Doctrine of “Effectiveness”

The doctrine of effectiveness—though rarely used in treaty practice in public international law—provides that courts, in interpreting treaties, should prefer the construction most likely to further, or least likely to hinder, the treaty’s main objectives. This doctrine is an established principle of the ICJ’s jurisprudence regarding the interpretation of treaties generally.¹¹⁰ Edward Gordon argues that the Court applies the principle of effectiveness rather than the parties’ intentions in its interpretation of treaties.¹¹¹

There have been many examples of the doctrine. First, in its Advisory Opinion on the Acquisition of Polish Nationality, the Court said, in relation to the interpretation which it proposed to adopt, that if the doctrine of effectiveness were not applied, “the value and sphere of application of the Treaty would be greatly diminished.”¹¹² However, this should be contrasted with the Court’s earlier Advisory Opinion regarding the questions concerning German Colonists in Poland, in which the Court expressed the view that an interpretation that would deprive the Minorities Treaty of a great part of its value was inadmissible.¹¹³

Second, the Court had already applied the doctrine with particular effect in interpreting the scope of the powers and functions of international organizations. For example, in dealing with the powers of the Mixed Commission under the Greco-Turkish Agreement of December 1, 1926, the Court said:

All the duties indicated above are entrusted to the Mixed Commission as the sole authority for dealing with the exchange of populations, and special stress should be laid on the fact that these duties have been entrusted to it with the object among other things of facilitating this exchange. It follows that any interpretation or measure capable of impeding the work of the Commission in this domain must be regarded as contrary to the spirit of the clauses proving for the creation of this body.¹¹⁴

Third, the doctrine runs through the whole of the Court’s Advisory Opinion in Reparations for Injuries Suffered in the Service of the United Nations.¹¹⁵ On that issue, when referring to the capacity of the United Nations, the Court said, “[i]t must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.”¹¹⁶

Fourth, and finally, when referring to the Obligations of the Members of the United Nations, the Court said that, “[i]t must be noted that the effective working of the Organization—the accomplishment of its task, and the independence and effectiveness of the work of its agents—require that these undertakings should be strictly observed.”¹¹⁷

In light of the application of the doctrine above, Liberia argued that the Convention should be construed in the manner which was most likely to further the purposes of the Organization generally and, where the contents relate to the MSC, to further the purposes of that committee in particular.¹¹⁸ Consequently, Liberia took the position that the best interpretation of Article 28(a), with regard to the expression “the largest ship-owning nations,” would be to identify “the nations in which the largest quantity of tonnage was registered.”¹¹⁹ Liberia and Panama concluded their submissions on this point by insisting that the validity of this consideration would be best established by an examination of the objectives of the Organization, of the Committee, and of the legal consequences which flow from the link of registration.¹²⁰ Although the Court did not refer to these submissions specifically during the proceedings, given its decision in favor of the submission, it seems to have been persuaded by the argument.

iii. Comparisons with IMCO’s Own Convention and Internal Practice

As indicated above, in arriving at its decision, the Court was persuaded by, inter alia, IMCO’s practice of carrying out both its enabling convention and other maritime conventions to which it is a party.¹²¹ First, Article 60 of the Convention provides for the Convention’s entry into force and follows the form of numerous multilateral treaties dealing with safety and working conditions at sea. The Article states that “[t]he present Convention shall enter into force on the date when 21 States, of which seven shall each have a total tonnage of not less than 1,000,000 gross tons of shipping, have become parties to the Convention in accordance with Article 57.”¹²² In the English texts of Article 60, the reference to seven States that “have” at least 1,000,000 gross tons of shipping appears significant when compared to the language of Article 28(a) referring to nations “owning ships.” The corresponding French and Spanish texts, however, all use “to own” and “to possess,” respectively. Noting the differences in word choice, the Court nevertheless concluded that all the three texts referred to registered tonnage¹²³ and provided the criterion to determine the point of time at which the Convention automatically came into effect—when Liberian tonnage, then the third largest, was included.

The practice followed by IMCO’s Assembly in relation to other Articles of the Convention also revealed the reliance placed upon registered tonnage. Article 17(c) of the 1948 Convention, for example, provided that two members of the Council “shall be elected by the Assembly from among the governments of nations having a substantial interest in providing international shipping services.”¹²⁴ In implementing this provision, the Assembly elected Japan and Italy.¹²⁵ It should be noted that this occurred after Council members, who were required by Article 18 to make recommendations to the Assembly, had considered the claims of the countries with substantial interests in providing international shipping services and made recommendations to the Assembly.¹²⁶ These representatives, however, did not feel that they should propose a long list of countries to the Assembly, as two countries clearly surpassed the others in the size of their tonnage.¹²⁷ Instead, they simply recommended the election of Japan (ranked ninth with tonnage of about 5.5 million tons), and Italy (ranked tenth with tonnage of nearly 5 million tons).¹²⁸

At the election, the Secretary-General of the Organization stood before the Assembly, under Article 28(a), with a listing of this tonnage in the form of a copy of the Lloyd’s Register of Shipping for 1958.¹²⁹ On this occasion, therefore, the registered tonnage of the two countries was taken unquestionably as the appropriate criterion.¹³⁰ Moreover, there was no suggestion that a different criterion be utilized, presumably because the highest tonnage belonged to members of the TMNs’ “club” that was intended to control shipping. There were only two members to be elected under Article 17(c), and there were only two recommendations to the Council.¹³¹ Yet the Assembly completely ignored the Liberian and Panamanian registered tonnages, and the corresponding apportionment of the expenses of the Organization among its Members. This data would have revealed that Liberia and Panama, both with larger tonnages than Japan and Italy, contributed significantly more to the budget. But above all, the Assembly, when proceeding to elect the eight largest ship-owning nations under Article 28(a), hardly took note of the Working Paper prepared by the Secretary-General.¹³² The Secretary-General’s paper embodied a list of all the ship-owning nations with their respective registered tonnages, which were formulated on the basis of Lloyd’s Register of Shipping.¹³³ Consequently, and perhaps absurdly, two countries among the eight largest on the list were not elected by the Assembly while countries ranking ninth and tenth were elected.¹³⁴

Surely, there must be one rule and set of criteria for all rather than different standards for the DMNs and the TMNs. Could the reason for this apparent contradiction be that the latter were members of “the club”? We may never know.

iv. Comparison with International Instruments and Practices

The Court noted that other maritime conventions predating IMCO also point to registration.¹³⁵ In these conventions, largely reflecting international customary law, a ship has commonly been considered to belong to the State where it is registered.¹³⁶

For example, Article 3 of the Load Line Convention of 1930 provided that:

(a) a ship is regarded as belonging to a country if it is registered by the Government of that country; and

(b) the expression “Administration” in that convention means the Government of the country to which the ship belongs.¹³⁷

Moreover, in Article 2(1) of the Convention of the Safety of Life at Sea, 1929, a similar provision is found.¹³⁸ Still other conventions and international instruments that have acknowledged the same principles include: (1) the Brussels Conventions of 1910 respecting Collisions, Assistance and Salvage at Sea;¹³⁹ (2) Article II of The Conventions for the Safety of Life at Sea of 1914 (as amended on 10 June, 1948, providing that “[t]he ships to which the present Convention applies are ships registered in countries the Governments of which are Contracting Governments, and ships registered in territories to which the present Convention is extended under Article XIII”);¹⁴⁰ and (3) Article II of the Convention for the Prevention of Pollution of the Sea by Oil of 1954 (providing that “[t]he present Convention shall apply to sea-going ships registered in any of the territories of a Contracting Government”).¹⁴¹

In addition to those conventions noted by the Court, particularly close connection between registration and the law applicable on board ships is reflected in numerous practices of the International Labor Organization (ILO). In 1936, for example, the ILO inserted into those labor conventions on maritime matters¹⁴² a reference to the registration as the basis for identifying a ship with a State.¹⁴³

Reference should also be made to: (1) Articles 1 and 6 of the Convention of June 23, 1926 Concerning the Repatriation of Seamen;¹⁴⁴ (2) Article I of the Convention for the Unification of Certain Rules relating to Maritime Mortgages and Liens, 1926;¹⁴⁵ (3) Article 2 of the Statue on the International Regime of Maritime Ports, 1923;¹⁴⁶ (4) Article IX(2), and Article X of the International Convention for the High Seas Fisheries of the North Pacific Ocean, 1952;¹⁴⁷ (5) Article 1 of the Barcelona Statute on the Regime of Navigable Waters of International Concern, 1921;¹⁴⁸ and (6) Article I(2) of the International Convention for the Regulation of Whaling, 1946.¹⁴⁹

Numerous other bilateral and multilateral treaties, both pre-and post-IMCO/IMO, also give expression to the principle. Among such bilateral treaties are those between the U.S. and France,¹⁵⁰ and between the U.K. and the Netherlands,¹⁵¹ both of which are ably discussed by Professor Rienow elsewhere.¹⁵²

v. Comparisons Between the Law of the Sea Conventions and International Judicial Practices

Other modern examples in which the significance of a vessel’s registration is apparent include the United Nations Law of the Sea Convention of 1982 (UNCLOS 1982)¹⁵³ and the United Nations Convention on the Conditions for Registration of Ships of 1986.¹⁵⁴ Other sources of comparison include State Practice¹⁵⁵ and International Judicial Practice.¹⁵⁶

vi. Comparable Experiences of the ICAO Council

However, a more comparable experience that should interest the IMO is that of the sister United Nations Specialized Agency, the International Civil Aviation Organization (“ICAO”). Starting with what is expressly referred to as “The Solution to Analogous Problems” in ICAO Instruments,¹⁵⁷ all ICAO constitutional law and practices support the view that registered tonnage and national vessel registrations are the essential criteria.¹⁵⁸ ICAO is probably the most comparable sister organization to the IMO in terms of the size of its membership (190 compared to the IMO’s 170), its aims and objectives (fostering air and maritime transport and navigation respectively), and its organs (both consisting of plenary Assemblies and Councils). More importantly, however, it is specifically stipulated that the ICAO Council of twenty-one members¹⁵⁹ be derived to ensure “adequate representation” to nations of chief importance in air transport, to nations not otherwise included that provide the largest share of facilities for international civil air navigation, and to nations whose inclusion on the Council will ensure broad geographical representation.¹⁶⁰ Another stark difference between the IMO and ICAO or other Specialized Agencies of the U.N. is that the IMO’s plenary Assembly is not in the dominant position as those equivalent bodies of ICAO or within the U.N. system.¹⁶¹

6. Benefits of the Background and Brief History of the IMCO Provision

Finally, the Court considered the discussion of Article 28 that occurred during the proceedings at the United Maritime Consultative Council negotiations.¹⁶² These discussions are at the root of the problem that has plagued the Organization. The original drafting committee that met in London in 1946 proposed to restrict the number of members on the MSC to the nine largest plus three others (i.e., 9+3=12 formula). Thus, the intention of the draft was clearly to confine membership on the Committee to a clique of nations (the TMNs) having substantial amounts of shipping, thereby excluding DMNs such as Liberia and Panama.¹⁶³ However, at the United Maritime Consultative Council Meeting of April 28, 1946, India (nonmember of “the club”) objected to this exclusion and proposed the 7+5 formula arguing that other countries “who did not actually own or have a large number of merchant vessels” also had important interests in maritime safety.¹⁶⁴ Denmark objected to the Indian proposal and countered with the expanded 9+5 formula, which the Indian delegation accepted.¹⁶⁵ The U.S. representative revealed that “the underlying principle which was generally accepted by all” and was the thinking behind the negotiations was that “the largest ship-owning nations should be in the predominance in the Maritime Safety Committee.”¹⁶⁶

The final draft adopted an expanded fourteen-member Committee with an 8+6 combination rather than the Danish 9+5 formula.¹⁶⁷ Thus, the determination to retain the predominance of the largest ship-owning nations found expression in Article 28(a), the terms of which should have excluded the possibility of an interpretation which would authorize the Assembly to refuse membership on the Committee to any of the eight largest ship-owning nations. This was the exact opposite outcome that the TMNs had in mind. To try and consolidate their position back, it was accordingly suggested by the TMNs in Court that the word “elected” where it first appeared in Article 28(a) was deliberately chosen to confer a wide authority on the Assembly to appraise the relative qualifications of Member States for election to the Committee.¹⁶⁸ Unfortunately for the TMNs, however, the Court found that this word was edited into the Article at some time between March 1 while the Article was adopted “subject . . . to drafting changes,” and March 5, 1948.¹⁶⁹ The word “elected” had replaced the word “selected” which had appeared in every draft of the Article since 1946.¹⁷⁰

While the Court did not determine why and how this change took place, it was not called upon to do so. There had apparently been no explanation for, or discussion regarding the alteration.¹⁷¹ The Court determined, however, that if the drafters had intended the word “elected” to take on the special significance sought to be attached to it, it was unlikely that the word would have been edited into the Article in this manner.¹⁷² Furthermore, the Court seemed persuaded by the apparent acquiescence of the TMNs since they neither protested nor proposed replacement.¹⁷³ On these bases, the Court stated that Article 28(a) required the Assembly to establish which of its members comprised the eight “largest ship-owning nations” within the natural meaning of those words.¹⁷⁴ Thus, the Court concluded that the words, “of which not less than eight shall be the largest ship-owning nations,” had a “mandatory and imperative sense” that precisely reflected the intention of the framers of the Convention.¹⁷⁵

The problem was then—and still remains today—that the dominant TMNs club never contemplated that Liberia and Panama should, or would, be among those nations. It was why the TMNs objected to Liberia and Panama being elected, and is what led to the ICJ case in 1959. Moreover, unless it is resolved soon, it will take the Organization back to the ICJ half a century later.

Mention should also be made of the conditions that existed before the 1946 Maritime Consultative Council¹⁷⁶ and the part played in the debate by the apportionment of expenses among the membership.

7. “Apportionment of Expenses” Criterion

The apportionment of the expenses of the Organization amongst its members under the provisions of Article 41 of the Convention is significant. Under Resolution A.20(I), adopted by the Assembly of the Organization¹⁷⁷ on January 19, 1959, the assessment of each Member State’s contributions was principally “determined by its respective gross registered tonnage as shown in the latest edition of Lloyd’s Register of Shipping.”¹⁷⁸ Accordingly, those States whose registered tonnages were the largest would pay the largest assessments.¹⁷⁹ At the time Liberia paid US$16,278 (6.87%)¹⁸⁰ including US$3,435 to the Working Capital totaling US$17,713 (nearly 8% of the total budget),¹⁸¹ and Panama over US$15,000 (over 7% of the total budget), the two accounting for 15% of the budget contributions; this is still largely the case today among the leading registered tonnage members.

Nonetheless, the two countries were kept out of the Organization’s most important organ. Although the developed countries undoubtedly pay considerably more towards technical assistance and other voluntary contributions in most U.N. and international organizations, the IMO is, to the best of the author’s knowledge, the only Specialized Agency of the United Nations or, for that matter the only, international organization where developing countries pay more allocated budgetary contributions than the industrialized nations. For comparative purposes, when paying 7–8% of the IMCO budget, Liberia’s contributions to UNESCO and WHO were 0.04%, ICAO, 0.13%, and the ILO, 0.12%, respectively.¹⁸² Moreover, the IMO is also the only organization where those who pay more have correspondingly less power.¹⁸³ This is due partly to the peculiar nature of the shipping industry, especially the part played by operations of open registry in international shipping where the DMNs have more registered tonnage than their TMN counterparts while the latter beneficially own those tonnages.¹⁸⁴

This leads one to wonder whether the “genuine link” issue was ever a relevant factor in the thinking of the TMNs.

C. Whether Nationality of Ships, Open Registry, and “Genuine Link” Were Relevant Factors

1. Flags of Convenience or Open Registries

Although not pleaded at the Court, the underlying issue was clearly the TMNs unease over flags of convenience.¹⁸⁵ Speaking at the Seventh Meeting of the Assembly on January 14, 1959, the U.K. representative provided a clear hint when he said:

The United Kingdom delegation felt it would be wrong for the Assembly . . . to pretend to ignore the essential difficulty, namely, the position of Liberia and Panama. There was clearly no question of dealing with flags of convenience, which lay outside the limits of discussion. What the Assembly had to do was to choose eight countries which, on the one hand, had an important interest in maritime safety and, on the other hand, were the largest shipping ship-owning nations, as these were the criteria laid down in Article 28 of the Convention.¹⁸⁶

He continued that:

What the Assembly had to do was to consider how governments were interested in maritime questions and to see to what extent they were able to make a contribution in various fields connected with safety. . . . It is obvious that in all those fields neither Liberia nor Panama was, at the moment, in a position to make any important contribution to maritime safety.¹⁸⁷

Therefore, rather than recognizing their ranking in gross tonnage, the perception that Liberia and Panama were unable to make “any important contribution to maritime safety” proved the relevant factor.¹⁸⁸ According to this perspective, membership at the high table was meant for those nations with genuine tonnage rather than nations having open registries, such as Liberia and Panama.

He continued that:

As to the second criterion . . . namely, relative importance as a shipowning nation, I would emphasize that that expression was being used for the first time, but it was perfectly clear. Vessels had really to belong to the countries in question, which was obviously not the case with Panama and Liberia.¹⁸⁹

He concluded that “neither from the point of view of interest in maritime safety nor from that of tonnage could Liberia or Panama be included amongst the eight maritime countries referred to in Article 28(a) of the Convention.”¹⁹⁰ The U.K. representative spoke for the rest of the TMNs, namely that, according to the Convention those eight places should be allotted to the largest ship-owning nations. But, seeming to contradict himself, he argued that the eight places were not necessarily meant to be filled by those countries whose fleets represented the largest registered gross tonnage.¹⁹¹ The fallacy in his argument was that it sought to evaluate “registered tonnage” and “interest in maritime safety” independently, whereas the Liberian and Panamanian position (accepted by the Court) was that registered tonnage was the corollary of and reflected interest in maritime safety.¹⁹² Other countries, such as India, took an even more liberal position.¹⁹³

Unsurprisingly, the U.K. position was (as is the case at many of these international gatherings) supported by the Dutch representative who opined that “the concept of the largest ship-owning nations was not necessarily identical with that of the nations having the largest registered tonnage; on the contrary, a country’s registered tonnage might in no way reflect its actual importance.”¹⁹⁴ Other TMNs put forward the argument that the members of the Maritime Safety Committee elected “on the strength of their tonnage” should also be nations which were in position to make a contribution to the work of the Committee based on their knowledge and experience in the field of maritime safety—a qualification, according to the TMNs, that Liberia and Panama did not possess.¹⁹⁵ In addition to accurately reflecting the TMNs position on the issues, this argument sought to separate the flags of convenience from the nationality of ships, despite the two issues being inextricably linked.

2. Nationality of Ships in International Law

The Court rejected this contention, preferring that the names and nationalities of the owners or shareholders of the shipping companies not be taken into account for such purposes, as that “would introduce an unnecessary complication as a shipowning nation.”¹⁹⁶ This was also in line with the U.S. interpretation:

Article 28 called upon the Assembly to elect from among the Member Governments which had an important interest in maritime safety the eight nations which were the largest ship-owners, as shown by the statistical tables of Lloyd’s Register. . . . Article 28 stipulated that no less than eight should be ‘the largest ship-owning nations’ and not merely ‘large shipowning nations.’ They should be elected automatically.¹⁹⁷

The U.S. delegate added that he could not accept the argument advanced by the U.K. representative that the ability of countries to contribute to the work of the MSC, based on their expert knowledge and experience, was a criterion of eligibility separate from that of their status as one of the largest ship-owning nations.¹⁹⁸ In the U.S. delegate’s opinion, under no circumstances could the two nations, whose combined registered tonnage represented 15% of the active fleet of the entire world, be excluded from membership of the Committee.¹⁹⁹ Even acknowledging the American dominance in the beneficial interests of the two countries’ shipping at the time, this interpretation was reasonable and correct.

Regardless of one’s views on the nature and function of open registry, unless the veil is lifted, the Court was correct in holding that the phrase simply meant that nations with the largest registered tonnage should have been elected irrespective of any linkage between ships and the states of nationality or ownership. Otherwise, the existence of flags of convenience raises a host of vexing questions from an international law perspective. These questions include whether the state of ownership of the flag of convenience vessel can, or has the right, to protect it, to requisition it in times of national emergency (e.g., under the U.S. doctrine of “effective control,”), or whether the labor laws of the state of ownership can be extended to flags of convenience vessels. This is likely what the opponents of the system had in mind in suggesting that Liberia and Panama, as flags of convenience countries, had no interest in maritime safety and could not be elected to the MSC. But from the standpoint of purely legalistic reasoning and statutory construction of Article 28(a), those were irrelevant considerations. Taking that route would be to open a Pandora’s Box. Besides, it is also generally agreed that the practice of flags of convenience, although unacceptable to some, is in itself not contrary to international law. Therefore, the Court was correct to steer clear of the question of nationality of ships and flags of convenience. In sum, the issue of ownership and nationality of ships²⁰⁰ raises many political, social, and economic international issues into which the Court would not be expected to delve. Therefore, the Court quite correctly restricted its decision to the mandate before it—an interpretation of the Constitution of the IMCO to determine whether two of its members were unfairly left out by a decision of its principal organ.

We now consider whether the genuine link of the open registry vessels was a relevant consideration.

3. Relevance of the “Genuine Link” Issue as a Consideration

In both public and private international law, the flags of convenience issue is invariably related to the issue of the genuine link between the vessel and its state of registry. The genuine link is the notion that a real tie must exist between an individual or an entity and the state of which nationality is claimed. A genuine link, also referred to as an “effective bond of attachment” or “effective nationality,” is one in which the tie of nationality is real and effective, rather than one of convenience. It impacts international legal principles of nationality with regard to individuals, claims, aircrafts, corporations, and ships.

It cannot have escaped the 1959 IMCO Assembly that the year before the Assembly elections²⁰¹ and little over 10 years after the IMCO Conference in 1948, an International Conference, having grappled with this very issue, produced the Geneva Convention on the High Seas.²⁰² Thus, open registry (as flags of convenience is sometimes called) had already been around for a long time. Moreover, it has been the subject of many conferences, debates, and commentaries over the years, including two by this author.²⁰³

Be that as it may, some members contended in the course of the arguments before the Court in the IMCO case that the Assembly, in assessing the relative size of each ship-owning nation, was entitled to take into consideration the notion of the genuine link, which it was claimed should exist between ships and the countries in which they are registered.²⁰⁴ In support of their argument, the opponents of the election of Liberia and Panama to the MSC invoked Article 5(1) of the then unratified Geneva Convention on the High Seas 1958.²⁰⁵ The Article provides that:

Each state shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over the ships flying its flag.”²⁰⁶

However, having earlier concluded that the determination of the largest shipowning nations depended solely upon each country’s registered tonnage, the Court held that any further examination of the genuine link issue was irrelevant for the purpose of answering the question before the Court.²⁰⁷ Therefore, the Court simply reiterated its position that by failing to elect Liberia and Panama to the MSC despite their status among the eight largest ship-owning nations, the Assembly failed to comply with Article 28(a) of the Convention.²⁰⁸

The Court rightly rejected the linkage which would have involved it unnecessarily in complex areas of nationality. The Court perhaps was aided by the Indian²⁰⁹ submission on this point, which was particularly thorough in its exposition of international maritime law.

The dissenting opinion of Judge Moreno Quintana was equally useful in putting forward an opposing view.²¹⁰ However, the dissenting judge’s view, though admirable and nearer to the history and rationale for ship registration,²¹¹ was irrelevant. Irrelevancy notwithstanding, one must agree with the dissenting opinion that in any action in which an individual seeks the support or protection of his or her government, it must be established that the individual or entity is indeed a national of that state.²¹² For most individuals, nationality is acquired through their parents or location at birth and would normally provide a basis for proof of genuine link between the individual and the state. However, it is not uncommon for individuals to purchase nationality and passports, or become naturalized for self-serving reasons which might sometimes amount to nominal or doubtful claims of nationality. Conversely, in shipping, proof of registration suffices. In the controversial Nottebohm case the Court held that, “nationality is a legal bond having at its basis a social fact of attachment, a genuine connection of existence of reciprocal rights and duties.”²¹³ In the Geneva Convention on the High Seas 1958²¹⁴ and UNCLOS 1982,²¹⁵ the genuine link concept is applied to merchant vessels as a challenge to the practice of flags of convenience.

Considering the degree of personal and corporate mobility under infant-globalization that existed even then, what constituted a genuine link was and still is more difficult to determine than the statement provided in the Nottebohm case, or than the argument by those who denied Liberia and Panama membership of the MSC might lead one to believe. While the genuine link approach could be applied to the nationality of legal entities, such as shipping and other business corporations, their nationality generally follows from the state of their incorporation. But in some situations, the state where a corporation’s business is effectively carried out can be the determining factor. Following this path would have further complicated an already complex issue before the Court. For this reason the Court was right to reject both the genuine link issue and the suggestion to lift the veil.

Neither issue was new to the IMCO or the textual practice in other international organizations. In arriving at its decision, the Court followed the common practice of other international organizations.

4. Analogy with Textual Practice in Other International Organizations

The problems envisaged by lifting the veil and delving into ownership and nationality issues of vessels had arisen. The ICAO, a sister organization in the field of air transport, dealt with the issue in its “substantial ownership and effective control” clause.²¹⁶

Article I(5) of the International Air Services Agreement, concluded in Chicago in 1944, represents the first use of this clause in a multilateral instrument. It provided that “[e]ach Contracting State reserves the right to withhold or revoke a certificate or permit to an air transport enterprise of another State in any case where it is not satisfied that substantial ownership and effective control are vested in nationals of a Contracting State.”²¹⁷ A similar provision appeared in Article I(6) of the International Air Transport Agreement of the same date.²¹⁸

Furthermore, the insertion of a similar clause has been a persistent feature of the numerous bilateral air transport agreements which have been concluded between States on the basis of reciprocity. This example, though common in bilateral treaties of navigation, would be relevant only in similar treaties of maritime navigation but not in conventions establishing constitutions of international organizations as in this case. They were, however, the origins of a similar clause in air transport at the Pan American Conference at Lima, Peru, in 1940.²¹⁹ The purpose of inserting such clauses in air transport agreements was analogous to the maritime equivalents in the Geneva High Seas Convention of 1958 and UNCLOS 1982, that is, to prevent companies owned and controlled by German nationals during World War II, but registered in South American States, from operating in the Panama Canal Zone.²²⁰ Similar to the Geneva 1958 and UNCLOS 1982 experiences, the deliberate insertion of the clauses modified the normal rule regarding the recognition of registration and was deemed to be justified by the special requirements of international air transport.²²¹

Thus, the treatment of substantial ownership and effective control by the ICAO, as well as in the field of civil aviation generally, were undoubtedly relevant to, and considered by, the draftsmen of the IMCO. In light of the recent ICAO precedent, had the draftsmen of the IMCO Convention in 1946–1948 intended to achieve the same end, it seems improbable that they would have used such vague terminology. Furthermore, and in contrast with the then-prevailing situation relating to the constitution of the MSC, the primary reason for inserting the “substantial ownership and effective control” clause into the Air Transport Agreement was to preserve the balance of contractual concessions in the reciprocal grant of air transport rights.²²² Given that the draftsmen of the IMCO Convention did not have such factors to consider, it is more understandable that they did not insert provisions of the same degree of particularity. Finally, as previously discussed, the IMCO Convention can be construed as a multilateral treaty of a bilateral nature, as opposed to a Convention with different requirements.

The nearest modern maritime equivalent to the ICAO experience is the Convention on a Code of Conduct for Liner Conferences of 1974.²²³ As was the case in ICAO, the Liner Code represents a compromise between those DMNs who had sought the abolition of liner conferences and their TMNs counterparts who advocated self-regulation.²²⁴ Briefly, the aims of the Convention are: (1) facilitation of the orderly expansion of world ocean-borne trade; (2) stimulation of the development of regular and efficient liner services adequate to the requirements of the trade concerned; (3) assurance of a balance of interest between suppliers and users of liner shipping services; (4) abolition of discriminatory practices by liner conferences against ship-owners, shippers, or foreign trade of any country; (5) encouragement of meaningful consultation between liner conferences, their users, and authorities; and (6) introduction of transparency through publication and availability of relevant information.²²⁵ Accordingly, the core of the Convention is the promotion of shipping in the developing countries through introduction of the concept of national shipping lines²²⁶ and the principle of enforced or artificial cargo allocation between national shipping lines, with a reasonable portion being reserved to cross-traders.²²⁷ This principle is embodied in Article 2(4) of the Convention—the so-called 40-20-40 formula.²²⁸ The experiment, bold and admirable as it was, failed due mainly to the lack of support from the TMNs club of the EEC and the OECD countries, roughly the same group that dominated the IMO and its predecessor, the IMCO.

To reiterate, it has been necessary to dwell at length on the historical analysis in order to appreciate the issues to come. The historical background leading to the referral of the Constitution of the MSC to the Court in 1959, and the Court’s subsequent decision in 1960, sowed the seeds that would lead to the current issues at the Organization nearly half a century later. The remaining part of the article is therefore devoted to the contemporary issues.
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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.
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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 th