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[p.150]
The Court,
composed as above,
gives the following Advisory Opinion:
By a letter dated 23 March 1959, filed in the Registry on 25 March, the
Secretary-General of the Inter-Governmental Maritime Consultative
Organization informed the Court that, by a Resolution adopted on 19 January
1959, a certified true copy of which was transmitted with the
Secretary-General's letter, the Assembly of the Inter-Governmental Maritime
Consultative Organization had decided to request the Court to give an
Advisory Opinion on the question set out in the Resolution, which was in the
following terms:
"The Assembly
Considering that differences of opinion have arisen as to the
interpretation of Article 28 (a) of the Convention for the Establishment of
the Inter-Governmental Maritime Consultative Organization;
Considering that the Convention provides in Article 56 that questions of law
may be referred to the International Court of Justice for an advisory
opinion;
Resolves
To submit to the International Court of Justice, in accordance with Article
65, paragraph 2, of its Statute, a request for an advisory opinion on the
following question of law:
Is the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization, which was elected on r5 January 1959, constituted
in accordance with the Convention for the Establishment of the Organization?
Instructs the Secretary-General to place at the disposal of the Court the
relevant records of the First Assembly of the Organization, and its
Committees; and in accordance with Article IX of the Agreement between the
United Nations and the Inter-Governmental Maritime Consultative
Organization to inform the Economic and Social Council of the United Nations
of the present resolution."
In accordance with Article 66, paragraph 1, of the Statute of the Court,
notice of the request for an Advisory Opinion was on 9 April 1959 given to
all States entitled to appear before the Court.
The Secretary-General of the Inter-Governmental Maritime Consultative
Organization having on 14 July 1959 transmitted to [p 152] the Court the
documents likely to throw light upon the question, and the President
considering that the States Members of the Organization as well as the
Organization itself were likely to be able to furnish information on the
question, those States and the Organization were on 5 August 1959 informed
in accordance with Article 66, paragraph 2, of the Statute that the Court
would be prepared to receive written statements from them within a
time-limit, fixed by an Order of the same date, at 5 December 1959. Written
statements were received on behalf of the Governments of Belgium, France,
Liberia, the United States of America, the Republic of China, Panama,
Switzerland, Italy, Denmark, the United Kingdom of Great Britain and
Northern Ireland, Norway, the Netherlands, and India.
These written statements were communicated to the Inter-Governmental
Maritime Consultative Organization and to the States Members of the
Organization. Public hearings were held on 26, 27, 28 and 29 April, and on
2, 3 and 4 May i960, when the Court was addressed by the following:
The Honourable Rocheforte L. Weeks, former Assistant Attorney-General,
President of the University of Liberia, and
The Honourable Edward R. Moore, Assistant Attorney-General, representing the
Government of Liberia;
Dr. Octavio Fabrega, President of the National Council of Foreign Affairs,
in the capacity of Ambassador Extraordinary and Plenipotentiary on Special
Mission, representing the Government of Panama;
The Honourable Eric H. Hager, Legal Adviser of the Department of State,
representing the Government of the United States of America;
M. Riccardo Monaco, Professor of the University of Rome, Chief of the
Department of Contentious Matters of the Ministry for Foreign Affairs,
representing the Government of Italy;
Mr. W. Riphagen, Professor of International Law at Rotterdam, Legal Adviser
of the Ministry for Foreign Affairs, representing the Government of the
Netherlands;
Mr. Finn Seyersted, Director of Legal Affairs in the Norwegian Ministry for
Foreign Affairs, representing the Government of Norway;
Mr. F. A. Vallat, Deputy Legal Adviser to the Foreign Office, representing
the Government of the United Kingdom of Great Britain and Northern Ireland.
***
The question submitted to the Court in the Request for an Advisory Opinion,
cast though it is in a general form, is directed [p 153] to a particular
case, and may be formulated in the following manner : has the Assembly, in
not electing Liberia and Panama to the Maritime Safety Committee, exercised
its electoral power in a manner in accordance with the provisions of Article
28 (a) of the Convention of 6 March 1948 for the Establishment of the
Inter-Governmental Maritime Consultative Organization?
The Statements submitted to the Court have shown that linked with the
question put to it there are others of a political nature. The Court as a
judicial body is however bound, in the exercise of its advisory function, to
remain faithful to the requirements of its judicial character.
***
The Convention referred to in the Request for an Advisory Opinion
establishes a body known as the Inter-Governmental Maritime Consultative
Organization (hereinafter called "the Or-ganization"). Its purposes are set
out in Article 1 of the Convention, the most important of which is concerned
with maritime safety and efficiency of navigation.
The Organization consists of an Assembly, a Council, a Maritime Safety
Committee and such subsidiary organs as the Organization may at any time
consider necessary, and a Secretariat.
The Assembly consists of all the Members of the Organization meeting in
regular session once every two years. Among its functions is "to elect...
the Maritime Safety Committee as provided in Article 28" (Art. 16 (d)).
The Council consists of sixteen Members. Its principal functions are to
receive the recommendations of the Maritime Safety Committee, and to
transmit them to the Assembly or to the Members when the Assembly is not in
session, together with its own comments and recommendations. Matters within
the scope of the duties of the Maritime Safety Committee may be considered
by the Council only after obtaining the views of that Committee thereon
(Art. 22).
The Maritime Safety Committee's principal duties are set out in Article 29.
They include the consideration of 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 prevention
of collisions, handling of dangerous cargoes, maritime safety procedures and
requirements and any other matters directly affecting maritime safety. It is
called upon to maintain close relationship with such other
inter-governmental bodies concerned with transport and communications as may
further the object of the Organization in promoting maritime safety. [p 154]
The composition of the Committee and the mode of designating its Members are
governed by Article 28 (a) which reads as follows:
"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 other 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 geographical areas."
***
The Court is called upon to appreciate whether, in not electing Liberia and
Panama to the Maritime Safety Committee, the Assembly complied with that
provision. For this purpose, the Court must, in the first place, recall the
circumstances, in which the Assembly proceeded to the election of the
Committee and asked for an advisory opinion.
The Assembly began its consideration of the election of members of the
Maritime Safety Committee on 14 January 1959. It had before it a working
paper prepared by the Secretary-General of the Organization, headed as
follows:
"Election of Members of the Maritime Safety Committee, as provided in
Article 28 of the Convention.
Merchant fleet of the IMCO Members according to the Lloyd's Register of
Shipping Statistical tables 1958."
Thereunder were set out, in descending order of total gross registered
tonnage, the names of Members with the figures of their registered tonnage.
On this list Liberia was third and Panama eighth.
The Assembly also had before it a draft United Kingdom resolution which was
in the following terms:
"The Assembly,
Desiring to elect the eight Members of the Maritime Safety Committee which
shall be the largest ship-owning nations,
Having taken note of the list prepared by the Secretary-General (doc.
IMCO/A. I/Working Paper 5) showing the registered tonnage of each Member of
the Organization [p 155]
Resolves
that a separate vote shall be taken for each of the eight places on the
Committee;
that the voting shall be in the order in which the nations appear in the
Secretary-General's list, and
that those eight nations which first receive a majority of votes in favour
shall be declared elected."
The representative of the Government of Liberia submitted both a separate
draft Resolution and an amendment to that of the United Kingdom, to the
effect that for the purposes of Article 28 (a) the eight largest ship-owning
nations should be determined by reference to the figures for gross
registered tonnage as they appeared in Lloyd's Register of Shipping current
at the date of the election. He submitted that Article 28 (a) laid down the
rules to be followed for electing members of the Committee and that these
rules had to be strictly observed. Under Article 28 (a) the Assembly had to
elect the eight largest ship-owning nations. That, he submitted, was not an
election in the usual sense of the word, for once those eight nations had
been determined, the Assembly was bound to elect them. The representative of
Panama supported these submissions.
There was no challenge that the figures in the Secretary-General's Working
Paper, which were identical with the figures shown in the latest issue of
Lloyd's Register of Shipping and which set out country by country the gross
registered tonnage of each nation, were in any way incorrect.
The Government of the United States submitted a proposal to defer the
election of the Committee until the Assembly's second regular session and in
the meantime to establish a provisional Committee open to all the Members of
the Assembly.
The Liberian Government's amendment to the United Kingdom's draft
resolution was replaced by a joint amendment of that Government and the
United States of America which was essen-tially in the same terms. Neither
the proposal of the United States nor the joint amendment was adopted by the
Assembly.
At the meeting of 15 January 1959, the Assembly adopted the United Kingdom
draft resolution, thus expressing, according to the terms of the Resolution,
its desire "to elect the eight Members of the Maritime Safety Committee
which shall be the largest ship-owning nations". The President asked the
Assembly to vote on the eight countries to be elected under Article 28 (a)
country by country in the order given in the Lloyd's Register of Shipping
Statistical Tables J95<§. Liberia and Panama failed to be elected, the votes
being, respectively, eleven in favour and fourteen against, with three
abstentions, and nine in favour and fourteen against, with five abstentions.
Liberia and Panama abstained on the latter vote, [p 156] on the ground that
from the moment Liberia failed to be elected they considered the election
was null and void.
At its next meeting, held the same day, the Assembly elected the other six
Members of the Committee.
After the election had taken place, the Assembly proceeded to consider a
draft resolution by Liberia to the effect that the Assembly should request
an advisory opinion from this Court on the legal issues which had arisen in
connection with the interpretation of Article 28 (a), and should ask a
Committee to formulate the questions to be put to the Court and refer the
matter back to the Assembly for approval. The draft Liberian resolution was
approved in principle. On 19 January 1959 the Assembly adopted the
Resolution set out in the Request for an Opinion.
***
The debates which took place prior to the election revealed a wide
divergence of views on the relevant requirements of Article 28(a).
The United Kingdom representative, speaking at the seventh meeting of the
Assembly, held on 14 January 1959, stated:
"The United Kingdom delegation felt it would be wrong for the Assembly ...
to pretend to ignore the essential difficulty, namely, the special position
of Liberia and Panama. There was clearly no question of dealing with the
problem of 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 ship-owning nations, as these were the criteria laid down
in Article 28 of the Convention."
"... What the Assembly had to do was to consider how far 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 was
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..."
"As to the second criterion he had mentioned, namely, relative importance as
a ship-owning nation, he 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."
"Thus, 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."
He added that according to the Convention those eight places should be
allotted to the largest ship-owning nations, but that did not necessarily
mean those countries whose fleets represented the [p 157] largest gross
registered tonnage. The names and nationalities of the owners or
shareholders of the shipping companies should not be taken into account in
that connection, as that would introduce an unnecessarily complicated
criterion.
The representative of the Netherlands stated 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 as a
ship-owning nation.
The argument was also put forward that the members to be elected to the
Maritime Safety Committee "on the strength of their tonnage" should be those
nations which were in a position to make a contribution to the work of the
Committee through their knowledge and experience in the field of maritime
safety, which requirement Liberia and Panama did not fulfil.
For his part, the representative of the United States of America explained
the way in which that country interpreted Article 28 (a). He stated:
"That Article called on the Assembly to elect from among the Member
Governments which had an important interest in maritime safety the eight
nations which were the largest shipowners, as shown by the statistical
tables in Lloyd's Register... Article 28 stipulated that no less than eight
should be 'the largest ship-owning nations' and not merely 'large
ship-owning nations' ... they should be elected automatically."
Later he said that he could not accept the argument advanced by the United
Kingdom representative to the effect that the ability of countries to
contribute to the work of the Maritime Safety Committee by their expert
knowledge and experience was a criterion of eligibility separate from that
of status as one of the largest ship-owning nations. In no circumstances
should the two nations whose combined registered tonnage represented 15 per
cent, of the active fleet of the entire world be excluded from membership of
the Committee.
Other States, Members of the Assembly, participated in the debate, but in so
far as they expressed any views on the interpretation to be placed upon
Article 28 (a) these appear to be re-flected in the statements above
referred to.
It is in these circumstances that the question whether the Maritime Safety
Committee was constituted in accordance with Article 28 (a) comes before the
Court.
***
The Court will now proceed to consider the answer which should be given to
the question submitted to it. [p 158]
One of the functions of the Assembly is, in accordance with Article 16 (d)
of the Convention, "to elect the Members ... on the Maritime Safety
Committee as provided in Article 28". The scope and character of this
function of the Assembly are accordingly to be found in Article 28. This
function can only be exercised under the conditions laid down by that
Article.
Article 28 (a) provides that the fourteen Members of the Committee shall be
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. The remainder of the members
are to be elected so as to ensure adequate representation of other nations
with an important interest in maritime safety such as nations interested in
supplying large numbers of crews or in the carriage of large numbers of
passengers and of major geographical areas.
It has been contended before the Court that the Assembly was entitled to
refuse to elect Liberia and Panama, by virtue of a discretion claimed to be
vested in it under Article 28 (a). The sub-stance of the argument is as
follows: The Assembly is vested with a discretionary power to determine
which Members of the Organization have "an important interest in maritime
safety" and consequently in discharging its duty to elect the eight largest
ship-owning nations, it is empowered to exclude as unqualified for election
those nations that in its judgment do not have such an interest.
Furthermore, it was submitted that this discretionary-power extended also to
the determination of which nations were or were not "the largest ship-owning
nations".
In the first place, it was sought to find in the expression "elected", which
applies to all Members of the Committee, a notion of choice which was said
to imply an individual judgment on each member to be elected and a free
appraisal as to the qualifications of that member. This was said to apply to
both the election of the eight largest ship-owning nations and to that of
the remainder of six. The contention assumes a meaning to be accorded to the
word "elected" and then applies that meaning to Article 28 (a) and
interprets its provisions accordingly. In so doing it places in a
subordinate position the specific provision of the Article in relation to
the eight "largest ship-owning nations".
The meaning of the word "elected" in the Article cannot be determined in
isolation by recourse to its usual or common meaning and attaching that
meaning to the word where used in the Article. The word obtains-its meaning
from the context in which it is used. If the context requires a meaning
which connotes a wide choice, it must be construed accordingly, just as it
must be given a restrictive meaning if the context in which it is used so
requires. [p 159]
An example is provided in Articles 16 (d) and 17 (c) and (d), where the
words "elect" and "elected" are also used. Whatever the margin of choice or
individual appraisal which exists in the Assembly in relation to the
election of any Member of the Council, that margin of choice or appraisal is
one which is no greater than is permitted by the terms of those Articles
read with Article 18. The words "elect" and "elected" are construed
accordingly.
So, too, in relation to the word "elected" in Article 28, where first
therein appearing. Here it is used for the designation of all fourteen
Members of the Committee, that is to say, of the two categories of Members,
and for the first of these the words employed are "shall be" which, on their
face, are mandatory. If these words involve an obligatory designation, to
which question the Court will hereafter direct itself, there is an evident
contrast between, on the one hand, such a designation and, on the other
hand, a free choice.
If the words "of which not less than eight shall be the largest ship-owning
nations" do involve an obligatory designation of such nations that satisfy
that qualification, the use of the word "elected" to cover the designation
of two categories, one of which would be determined on the basis of a
definite and pre-established criterion whilst the other would be a matter of
choice, cannot convert the designation of the eight nations into an elective
procedure which would be contrary to the pre-established criterion.
In the second place it is contended that "having an important interest in
maritime safety" is a dominant condition in the qualification for
membership on the Committee and being one of the "eight largest ship-owning
nations" is a subordinate condition. These two conditions are said to be of
a cumulative character with the possession of "an important interest" as the
controlling re-quirement. According to this view fulfilment alone of the
condition by any State of being one of the eight largest ship-owning nations
does not by itself confer eligibility on a Member State to be appointed to
the Committee inasmuch as, it is contended, the word "elected" connotes a
discretion in the Assembly to choose from among those qualified under the
condition of having an important interest in maritime safety.
It is further claimed that the words "ship-owning nations" have a meaning
which embraces consideration of many factors, and that the Assembly was, in
the exercise of its discretion, entitled to take those factors into account
in the election of the Committee.
***
The words of Article 28 (a) must be read in their natural and ordinary
meaning, in the sense which they would normally have in their context. It is
only if, when this is done, the words of the [p 160] Article are ambiguous
in any way that resort need be had to other methods of construction.
(Competence of the General Assembly for the Admission of a State to the
United Nations, I.C.J. Reports 1950, p. 8.)
From the terms of Article 28 (a) it is clear that the draftsmen deliberately
contemplated that the preponderant control of the Committee was in all
circumstances to be vested in "the largest ship-owning nations". This
control was to be secured by the provision that not less than eight of the
fourteen seats had to be filled by them. The language employed—"of which not
less than eight shall be the largest ship-owning nations"—in its natural and
ordinary meaning conveys this intent of the draftsmen.
The words "having an important interest in maritime safety" clearly express
a qualification for membership on the Committee which is required of each
group referred to in Article 28 (a). But, in the context of the whole
provision, possession of this interest is implied in relation to the eight
largest ship-owning nations as a consequence of the language employed. This
particular condition of being one of the eight such nations describes the
nature of the required interest in maritime safety and constitutes that
interest.
This interpretation accords with the structure of the Article. Having
provided that "not less than eight shall be the largest ship-owning
nations", the Article goes on to provide that the remainder shall be elected
so as to ensure adequate representation of "other nations" with an important
interest in maritime safety—nations other than the eight largest ship-owning
nations, "such as nations interested in the supply of large numbers of
crews" etc., as contrasted with "the largest ship-owning nations". The use
of the words "other nations" and "such as" in their context confirms this
interpretation.
The argument based on discretion would permit the Assembly, in use only of
its discretion, to decide through its vote which nations have or do not have
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. The effect of such an interpretation would be to render
superfluous the greater part of Article 28 (a) and to erect the discretion
of the Assembly as the supreme rule for the constitution of the Maritime
Safety Committee. This would in the opinion of the Court be incompatible
with the principle underlying the Article.
The underlying principle of Article 28 (a) is that the largest ship-owning
nations shall be in predominance on the Committee. No [p 161] interpretation
of the Article which is not consonant with this principle is admissible.
It was to express this principle that the words "of which not less than
eight shall be the largest ship-owning nations" were written into the
Article. These words cannot be construed as if they read "of which not less
than eight shall represent (or be representative of) the largest ship-owning
nations". Whichever were the largest ship-owning nations they were
necessarily to be appointed to the Committee; that they each possessed an
important interest in maritime safety was accepted as axiomatic; it was
inherent in their status of the eight largest ship-owning nations.
***
The history of the Article and the debate which took place upon the drafts
of the same in the United Maritime Consultative Council, which at the
request of the Economic and Social Council of the United Nations drew up the
text of the Convention for recommendation to Member Governments, confirm
the principle indicated above.
The first draft of the Article underwent a number of changes as it evolved.
As drafted in July 1946 by a Committee which met in London, it read as
follows:
"The Maritime Safety Committee shall consist of twelve Member Governments
selected by the Assembly from the Governments of those nations having an
important interest in maritime safety and owning substantial amounts of
merchant shipping, of which no less than nine shall be the largest
ship-owning nations and the remainder shall be selected so as to ensure
representation for the major geographical areas. The Maritime Safety
Committee shall have power to adjust the number of its members with the
approval of the Council."
The nine largest ship-owning nations were self-evidently nations owning
substantial amounts of merchant shipping. The first nine largest ship-owning
nations were to be on the Committee in any event. In this respect the use in
the original English text of the definite article "the", which is maintained
throughout each draft and finds expression in Article 28 (a), has a
significance which cannot be ignored. It was inserted with evident
deliberation. This accords with the record of the various drafts and the
discussions which took place on them.
The three nations representative of major geographical areas comprising the
"remainder" had to satisfy the dual qualification [p 162] both of having an
important interest in maritime safety and also owning a substantial amount
of shipping.
At this stage there was a deliberate intention on the part of the drafters
to confine the membership of the Committee to a very limited number of
nations and to have it controlled by the nine largest ship-owning nations.
This is apparent in the Report of the Drafting Committee. This Report stated
that the proposed Committee "will include the largest ship-owning nations"
(as distinct from nations owning substantial amounts of merchant shipping)
and that this "is of great importance to its successful operation".
Provision was also made, it continued, "for representation of other
ship-owning nations from all parts of the world" (other, as distinct from
the nine largest), "thus giving recognition to the world-wide interest in
the problems involved".
To have suggested that, although a nation was the largest or one of the nine
largest ship-owning nations it was within the discretion of the Assembly to
determine that it was not a nation "owning substantial amounts of merchant
shipping" or did not have an "important interest in maritime safety" would
have been unreal. Those qualifications were patently inherent in a nation
being one of the nine largest ship-owning nations.
The second draft was submitted by the United States at the Conference of the
United Maritime Consultative Council held in Washington in 1946. It followed
the form of the first draft. Apart from substituting the word "having" for
"owning" substantial amounts of merchant shipping, the substantive
alteration was to omit the provision in the Drafting Committee's draft which
enabled the Maritime Safety Committee to adjust the number of its Members
with the approval of the Council. The proportion between the largest
ship-owning nations and the remainder was to be unchangeable. There was to
be no freedom for the Members of the Assembly to depart from what were
contemplated to be clear provisions governing the proportion between the
two.
This predominance on the Committee of the nine did not seem acceptable to
some Members of the Conference, India especially, which had put forward to
the Drafting Committee its own proposal which, however, that Committee had
not felt empowered to substitute for the original wording of the Article
because it invoked a matter of principle.
A third draft was then put forward by the Drafting Committee, which was in
two versions. The first was based on the United [p 163] States' draft and,
in fact, followed it word for word. It sought to restrict the whole of the
membership to nations having both important interests in maritime safety
and substantial amounts of shipping. The nine largest ship-owning nations
spoke for themselves in terms of both these criteria but the remainder of
three would have to satisfy the Assembly that they qualified under both. The
intention of this draft was to confine the whole Committee to nations having
substantial amounts of shipping.
The alternative draft (submitted by the Drafting Committee after discussion
of the amendment proposed by India) is of special importance. It reflects
the struggle of those who sought to reduce the predominance in the Maritime
Safety Committee of the nine largest ship-owning nations, and to prevent it
from being under the exclusive control of nations "having substantial
amounts of shipping". The Indian delegate was to point out during the
debate on the drafts, which took place in the United Maritime Consultative
Council on 28 October 1946, that other countries "who did not actually own
or have a large number of merchant vessels" had also important interests in
maritime safety.
The alternative draft accordingly struck out the words "and having
substantial amounts of shipping", retained the total membership at twelve,
but altered the ratio between "the largest ship-owning nations" and the
remainder from nine and three to seven and five.
This was the subject of debate at the meeting of the United Maritime
Consultative Council on 28 October 1946.
Objection was taken by the representative of Denmark to the Indian proposal,
on the ground that it meant that the Maritime Safety Committee would be
composed of twelve Member Govern-ments of which not less than seven "would
have to be the largest ship-owning nations". He could not agree unless the
total number were increased to fourteen, "of which nine would have to be the
largest ship-owning nations". The Indian representative considered that a
ratio of seven (largest ship-owning nations) to five (other nations) was a
fair ratio. The United States representative said that "the underlying
principle which was generally accepted by all" was that "the largest
ship-owning nations should be in predominance in the Maritime Safety
Committee".
In the result, the matter was held in abeyance for informal discussions
between maritime experts from the United Kingdom and the United States of
America and representatives of Denmark and India. [p 164]
There emerged a final draft which followed the alternative draft, and which
increased the total membership to fourteen, of which not less than eight
were to be the largest ship-owning nations. This draft was in the following
terms:
"The Maritime Safety Committee shall consist of fourteen Member Governments
selected by the Assembly from the 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 selected so as
to ensure adequate representation of other nations with important interests
in maritime safety and of major geographical areas..."
This was the draft which came before the United Nations Maritime Conference
at Geneva, held in February and March 1948, and a working party on Maritime
Safety was set up on 27 February. At the meeting of the Working Party held
on 28 February 1948, a proposal was made by India to fashion the draft along
the lines of the present Article 17. It met with opposition and was
rejected.
India then proposed the addition to the draft article of words to the effect
of those now appearing in the text of Article 28 (a), namely, "such as
nations interested in the supply of large numbers of crews or in the
carriage of large numbers ... of passengers". This proposal was also
rejected by the Working Party but was subsequently incorporated in Article
28 (a) after the words "of other nations with an important interest in
maritime safety". The present text in all essential aspects was adopted on 1
March 1948 "subject... to drafting changes". No further discussions are
recorded and the text which presently appears in the Convention was finally
adopted on 5 March 1948.
Under the first three drafts of the Article, the nine largest ship-owning
nations had in any event to be on the Committee. When the subsequent drafts
increased the total membership to fourteen, altered the ratio on the
Committee between the largest ship-owning nations and other countries, and
effected the other amendments already indicated, the intention that it
should be obligatory upon the Assembly to appoint to the Committee a
predominating number of the largest ship-owning nations remained constant;
instead, however, of being at least the nine largest, it was to be at least
the eight largest.
The determination to retain the predominance of the largest ship-owning
nations finds expression in Article 28 (a), the terms of which exclude the
possibility of an interpretation which would authorize the Assembly to
refuse membership on the Committee [p 165] to any one or more of the eight
largest ship-owning nations.
It has been suggested that the word "elected" where it first appears in
Article 28 (a) was deliberately chosen in order to confer on the Assembly a
wide authority to appraise the relative qualifications of Member States for
election to the Committee. The fact is, however, that this word found its
way into the Article at some time between 1 March 1948, when the Article was
adopted "subject ... to drafting changes", and four days after, namely, on 5
March 1948. It replaced the word "selected" which had appeared in every
draft of the Article since 1946.
There was apparently no explanation for, or any discussion on, the
alteration. It was a mere drafting change. If the word "elected" had the
special significance sought to be attached to it, it seems unlikely that the
word would have found its way into the Article in this manner.
What Article 28 (a) requires the Assembly to do is to determine which of its
Members are the eight "largest ship-owning nations" within the meaning which
these words bear. That is the sole content of its function in relation to
them. The words of the Article "of which not less than eight shall be the
largest ship-owning nations" have a mandatory and imperative sense and
precisely carry out the intention of the framers of the Convention.
***
The Court must now consider the meaning of the words "the largest
ship-owning nations".
In the opinion of the Netherlands Government, set out in its Written
Statement, "the term 'ship-owning nations' is ... not suitable for 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", it contended, "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...".
The view of the Government of the United Kingdom, which appears to express
the common view of that Government and that of the Netherlands, is set out
in the Written Statement of the United Kingdom as follows: [p 166]
"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."
This submission asserts an authority in the Assembly to appraise which
nations are ship-owning nations and which are the largest among them, the
words "the largest ship-owning nations" providing but a guide. The Assembly
would be free "to look at the realities" on the basis of "the true
situation", whatever in its opinion and that of its individual members these
might be considered to be. It would be bound by no ascertainable criteria.
Its members in casting their votes would be entitled to have regard to any
considerations they might think relevant.
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 any kind, whether it be that of
tonnage registration or ownership by nationals or any other, the mandatory
words "not less than eight shall be the largest ship-owning nations" would
be left without significance. To give to the Article such a construction
would mean that the structure built into the Article to ensure the
predominance on the Committee of "the" largest ship-owning nations in the
ratio of at least eight to six would be undermined and would collapse. The
Court is unable to accept an interpretation which would have such a result.
In order to determine which nations are the largest ship-owning nations, it
is apparent that some basis of measurement must be applied. The rationale of
the situation is that when Article 28 (a) speaks of "the largest ship-owning
nations", it can only have in mind a comparative size vis-à-vis other
nations owners of tonnage. There is no other practical means by which the
size of ship-owning nations may be measured. The largest ship-owning nations
are to be elected on the strength of their tonnage, the tonnage which is
owned by or belongs to them. The only question is in what sense Article
28(a) contemplates it should be owned by or belong to them. [p 167]
A general opinion, shared by the Court, is that it is not possible to
contend that the words "ship-owning nations" in Article 28 (a) mean that the
ships have to be owned by the State itself.
There appear to be but two meanings which could demand serious
consideration: either the words refer to the tonnage beneficially owned by
the nationals of a State or they refer to the registered tonnage of a flag
State regardless of its private or State ownership.
Liberia and Panama, supported by other States, have contended that the sole
test is registered tonnage. On the other hand, it has been submitted by
certain States that the proper interpretation of the Article requires that
ships should belong to nationals of the State whose flag they fly. This
submission was rather concretely expressed by the Government of Norway which
suggested using the flag-tonnage as a point of departure, reducing this
amount by the amount of tonnage not owned by nationals of the flag State and
adding the tonnage which does belong to such nationals but is registered
under a different flag.
***
An examination of certain Articles of the Convention and the actual practice
which was followed in giving effect to them throws some light on the Court's
consideration of the question.
Article 60 providing for entry into force of the Convention, and which
follows the form to be found in a number of multilateral treaties dealing
with safety and working conditions at sea, states:
"The 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."
The required conditions having been fulfilled on 17 March 1958, the
Convention came into force on that day. As is stated by Legal Counsel of the
United Nations in a letter of 10 April 1959:
"In so far as concerns the requirement of Article 60 that seven among the
States becoming parties should 'each have a total tonnage' of the stated
amount, no question was raised, and no consideration was given, as to
whether the total tonnage figure of any State then a party, as indicated by
Lloyd's Register, should be altered for any reason bearing upon the
ownership of such tonnage."
Article 60 has a special significance. In the English text this Article
speaks of certain States which "have" a total tonnage, whilst in Article 28
(a) the reference is to nations "owning" ships. [p 168]
In the French and Spanish texts however, which texts are equally authentic,
the same verb "to own" or "to possess" is used in each Article. There can
be, and indeed there is, no dispute that whether the reference in Article 60
is to States which "have" the specified tonnage—as in the English text—or
whether it is to States which "own" or "possess" that specified tonnage—as
in the French and Spanish texts—that reference is to registered tonnage and
registered tonnage only and provides an automatic criterion to determine
the point of time at which the Convention comes into force.
The practice followed by the Assembly in relation to other Articles reveals
the reliance placed upon registered tonnage.
Thus in implementing Article 17 (c) of the Convention, which provides that
two members of the Council "shall be elected by the Assembly from among the
governments of nations having a sub-stantial interest in providing
international shipping services", the Assembly elected Japan and Italy. This
was done after it had been reported to the Assembly that the representatives
of the Members of the Council who were required under the terms of Article
18 to make their recommendation to the Assembly had
"therefore examined the claims of countries having a substantial interest in
providing international shipping services. They did not feel that they
should propose to the Assembly a long list of candidates, as two countries
clearly surpassed the others in size of their tonnage; they recommended the
election of Japan (with tonnage of about 5,500,000 tons) and of Italy (with
a tonnage of nearly 5,000,000)."
The tonnages mentioned are those recorded in the list of the
Secretary-General of the Organization, which was before the Assembly in the
election under Article 28 (a) and which is none other than a copy of Lloyd's
Register of Shipping for 1958. The registered tonnages of the two countries
were taken as the appropriate criterion, there was no suggestion of any
other. There were only two Members to be elected under Article 17 (c) and
there were only two recom-mendations to the Assembly.
The apportionment of the expenses of the Organization amongst its Members
under the provisions of Article 41 of the Convention is also significant.
Under Resolution A.20(1) adopted by the Assembly of the Organization on 19
January 1959, the assessment on each Member State was principally
"determined by its respective gross registered tonnage as shown in the
latest edition of Lloyd's Register of Shipping". Those States whose
registered tonnages were the largest paid the largest assessments.
Furthermore, the Assembly, when proceeding to elect the eight largest
ship-owning nations under Article 28 (a), took note of the Working Paper
prepared by the Secretary-General of the Organi-[p 169] zation which
embodies a list of the ship-owning nations with their respective registered
tonnages formulated on the basis of Lloyd's Register. Liberia and Panama,
countries which were among the eight largest on the list, were not elected
by the Assembly but countries which ranked ninth and tenth were elected.
This reliance upon registered tonnage in giving effect to different
provisions of the Convention and the comparison which has been made of the
texts of Articles 60 and 28 (a), persuade the Court to the view that it is
unlikely that when the latter Article was drafted and incorporated into the
Convention it was contemplated that any criterion other than registered
tonnage should determine which were the largest ship-owning nations. In
particular it is unlikely that it was contemplated that the test should be
the nationality of stock-holders and of others having beneficial interests
in every merchant ship; facts which would be difficult to catalogue, to
ascertain and to measure. To take into account the names and nationalities
of the owners or shareholders of shipping companies would, to adopt the
words of the representative of the United Kingdom during the debate which
preceded the election, "introduce an unnecessarily complicated criterion".
Such a method of evaluating the ship-owning rank of a country is neither
practical nor certain. Moreover, it finds no basis in international
practice, the language of international jurisprudence, in maritime
terminology, in international conventions dealing with safety at sea or in
the practice followed by the Organization itself in carrying out the
Convention. On the other hand, the criterion of registered tonnage is
practical, certain and capable of easy application.
***
Moreover, the test of registered tonnage is that which is most consonant
with international practice and with maritime usage.
Article 28 (a) was drawn up by maritime experts who might reasonably be
expected to have been acquainted with previous and existing conventions
concerned with shipping and dealing with safety at sea and allied subjects.
In such conventions a ship has commonly been considered as belonging to a
State if it is registered by that State.
The Load Line Convention of 1930 affords a suitable example. Article 3
thereof provides:
"(a) a ship is regarded as belonging to a country if it is registered by the
Government of that country;
(b) the expression 'Administration' means the Government of the the country
to which the ship belongs...". [p 170]
A similar provision was to be found in Article 2 of the Convention for the
Safety of Life at Sea, 1929.
Among other international conventions which acknowledge the same principles
are the Brussels Conventions of 1910 respecting Collisions, and Assistance
and Salvage at Sea; the Conventions for the Safety of Life at Sea of 1914
and 1948, and the Convention for Prevention of Pollution of the Sea by Oil,
1954. Numerous bilateral treaties also give expression to it.
The Court is unable to accept the view that when the Article was first
drafted in 1946 and referred to "ship-owning nations" in the same context in
which it referred to "nations owning substantial amounts of merchant
shipping", the draftsmen were not speaking of merchant shipping belonging to
a country in the sense used in international conventions concerned with
safety at sea and cognate matters from 1910 onwards. It would, in its view,
be quite unlikely, if the words "ship-owning nations" were intended to have
any different meaning, that no attempt would have been made to indicate
this. The absence of any discussion on their meaning as the draft Article
developed strongly suggests that there was no doubt as to their meaning;
that they referred to registered ship tonnage. It is, indeed, not without
significance that about the time the draft Article was finally settled,
Lloyd's Register for 1948 listed as belonging to the various countries of
the world the vessels registered in those countries and that under the
heading "Countries where owned" there were given the number and gross
tonnage of vessels which are the same as those registered under the flag of
each nation indicated.
***
The conclusion the Court reaches is that where in Article 28 (a)
"ship-owning nations" are referred to, the reference is solely to registered
tonnage. The largest ship-owning nations are the nations having the largest
registered ship tonnage.
The interpretation the Court gives to Article 28 (a) is consistent with the
general purpose of the Convention and the special functions of the Maritime
Safety Committee. The Organization estab-lished by the Convention is a
consultative one only, and the Maritime Safety Committee is the body which
has the duty to consider matters within the scope of the Organization and of
recommending through the Council and the Assembly to Member States,
proposals for maritime regulation. In order effectively to carry out these
recommendations and to promote maritime safety in its numerous and varied
aspects, the co-operation of those States who exercise jurisdiction over a
large portion of the world's [p 171] existing tonnage is essential. The
Court cannot subscribe to an interpretation of "largest ship-owning nations"
in Article 28 (a) which is out of harmony with the purposes of the
Convention and which would empower the Assembly to refuse Membership of the
Maritime Safety Committee to a State, regardless of the fact that it ranks
among the first eight in terms of registered tonnage.
It was contended in the course of the arguments that the Assembly, in
assessing the size, in relation to ship-owning, of each country, was
entitled to take into consideration the notion of a genuine link which it
was claimed should exist between ships and the countries in which they are
registered. Article 5 of the unratified Geneva Convention on the High Seas
of 1958 was invoked in support of this contention. That Article itself
provides:
"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..."
The Court having reached the conclusion that the determination of the
largest ship-owning nations depends solely upon the tonnage registered in
the countries in question, any further examination of the contention based
on a genuine link is irrelevant for the purpose of answering the question
which has been submitted to the Court for an advisory opinion.
The Assembly elected to the Committee neither Liberia nor Panama, in spite
of the fact that, on the basis of registered tonnage, these two States were
included among the eight largest ship-owning nations. By so doing the
Assembly failed to comply with Article 28 (a) of the Convention which, as
the Court has established, must be interpreted as requiring the
determination of the largest ship-owning nations to be made solely on the
basis of registered tonnage.
For these reasons,
The Court is of opinion,
by nine votes to five,
that the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization, which was elected on 15 January 1959, is not
constituted in accordance with the Convention for the Establishment of the
Organization.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this eighth day of June, one thousand nine hundred
and sixty, in two copies, one of which will [p 172] be placed in the
archives of the Court and the other transmitted to the Secretary-General of
the Inter-Governmental Maritime Consultative Organization.
(Signed) Helge Klaestad,
President.
(Signed) Garnier-Coignet,
Deputy-Registrar.
President Klaestad and Judge Moreno Quintana append to the Opinion
statements of their dissenting opinion.
(Initialled) H. K.
(Initialled) G.-C.
[p 173]
Dissenting opinion of President Klaestad
I am to my regret unable to agree with the Court and shall state my
different view as briefly as possible.
I. The task of the Court is to interpret the IMCO Convention, Article 28
(a), and to apply it to the circumstances of the present case. This Article
lays down two conditions for being elected as Members of the group of eight.
In accordance with the first condition, the Members must have "an important
interest in maritime safety". The second condition refers to the requirement
of being "the largest ship-owning nations". It is seen from the text of
Article 28 (a) that these two conditions must both be satisfied by Members
of the group of eight. This is clearly expressed in the French text, and it
follows also from the English text, though that text is drafted somewhat
differently.
I shall now examine the first condition for being elected as Members of the
group of eight, namely that those Members must have "an important interest
in maritime safety".
Whether a Member has "an important interest in maritime safety" is a
question which cannot be determined by the application of legal criteria. It
depends essentially on the appraisal of the special qualifications required
for membership in the Maritime Safety Committee, having regard inter alia
to the duties and function of that Committee as defined by the Convention
and particularly by Article 29. The appraisal of such qualifications is
clearly of a discretionary nature. This discretion cannot be exercised by
the Court but only by the electing body itself, the Assembly of the
Organization.
It is contended that the Assembly was bound to consider Liberia and Panama
as States having an important interest in maritime safety. This, it is said,
follows automatically from the fact that these two States belong to the
largest ship-owning nations. It is urged that Liberia and Panama were
automatically entitled to be elected, since they are among the eight largest
ship-owning nations on the basis of tonnage registration under their flags.
This contention is not convincing. The Court, which has to interpret
Article 28 (a), is confronted with the question of the election of Members
of the Maritime Safety Committee. This is clear also from Article 16 (d).
The term "election" ("elect") implies, in conformity with the natural and
ordinary sense of that word, the [p 174] exercise of a choice or selection.
It is not compatible with any automatic test which imposes itself on the
electing body in such a manner that no freedom of choice is left to that
body.
II. It is further contended that the discretionary power to be exercised by
the Assembly with regard to the question whether a Member has "an important
interest in maritime safety", is elimi-nated by the second condition laid
down for the election of the group of eight Members, namely that "not less
than eight shall be the largest ship-owning nations". The consideration of
this con-tention requires a more detailed examination of the text of
Article 28 (a). This text is as follows:
"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 other 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 geographical areas."
I shall first consider the French text. After having provided that all
fourteen Members must have an important interest in maritime safety, the
French text has a full stop. Thereafter it provides: "Huit au moins de ces
pays (I stress the words "de ces pays") doivent être ceux qui possèdent les
flottes de commerce les plus importantes". This can in my opinion only mean
that of the Members which the Assembly has found to have an important
interest in maritime safety, not less than eight shall be "the largest
ship-owning nations".
The English text, though drafted in a different manner, must be understood
in the same way. The words "of which" refer to Members which have an
important interest in maritime safety. Of these Members, that is to say. of
the Members which the Assembly has found to have such an important interest,
not less than eight shall be "the largest ship-owning nations". As already
said, the Assembly has a discretionary power to decide which Members must be
considered as having an important interest in maritime safety. Of the
Members which the Assembly, by exercising this discretionary power, has
found to have such an important interest, not less than eight "shall be the
largest ship-owning nations"—that is to say: "the largest ship-owning
nations" of the Members which the Assembly has found to have an important
interest in maritime safety. [p 175]
It will easily be seen that this interpretation of Article 28 (a) does not
render superfluous the second condition relating to "the largest ship-owning
nations" or any other part of that Article. On the other hand, it appears to
me that the interpretation of the Court renders superfluous the first
condition relating to "an important interest in maritime safety". This
would not be in accord-ance with the usual canons of interpretation.
My interpretation of Article 28 (a), which in my view follows directly from
the text itself, is confirmed by another consideration. As already
mentioned, it is contended that the second condition concerning "the largest
ship-owning nations" eliminates the discretionary power of the Assembly,
which follows from the first condition. But it would not be natural—indeed
it would be highly unnatural and surprising—if the Article, after having by
virtue of its first condition conferred upon the Assembly a discretionary
power to appraise whether a Member must be considered as having an important
interest in maritime safety, should immediately thereafter, by its second
condition, have eliminated this discretionary power. I am unable to accept
an interpretation which involves such an obvious contradiction between the
two conditions laid down by Article 28 (a).
It cannot rightly be argued against my interpretation of Article 28 (a) that
such a discretionary power vested in the Assembly might, in a hypothetical
case, lead to abuse or arbitrariness. That is no valid argument against the
existence of a discretionary power as such. The possibility that a
discretionary power of appraisal vested in a political body may, in extreme
and hypothetical cases, be abused by that body, does not of course prove
that no such discretionary power exists. A power or a right may in certain
cases be abused. Nevertheless, that power or right exists.
III. My interpretation of Article 28 (a) leads mo to the view that the
Assembly, by virtue of the first condition laid down by that Article
concerning "an important interest in maritime safety", had a discretionary
power not to elect Liberia and Panama as Members of the first group of
eight. The facts brought to the knowledge of the Court do not in my opinion
show that the Assembly has exercised its discretionary power of appraisal
in an improper or arbitrary manner. The Assembly did not state the reasons
for its decision and was not obliged to do so.
In such circumstances it becomes unnecessary for me to consider more fully
the second condition relating to "the largest ship-owning nations", and I do
not express any opinion with regard to the [p 176] meaning of that ambiguous
term. As already said, this second condition refers, according to the text
of Article 28 (a), only to Members which the Assembly, by exercising its
discretionary power, has found to satisfy the first condition concerning "an
important interest in maritime safety". Whatever the term "the largest
ship-owning nations" may mean—whether it should be understood as referring
to tonnage registration or to private or public, legal or beneficial
ownership, or whether some other view should be adopted—the Question put to
the Court must in my opinion be answered in the affirmative.
(Signed) Helge Klaestad.
[p 177]
Dissenting opinion of judge Moreno Quintana
[Translation ]
To my great regret I am unable to agree in this case, either with the
conclusion reached by the majority of my colleagues of the Court, or with
the arguments on which it rests. My reasons are summarized hereafter.
In the form in which it has been put to the Court, the request for an
Advisory Opinion relates essentially to the application of a legal text, in
this case the interpretation given by the IMCO Assembly, when it elected
the members of its Maritime Safety Committee, to Article 28, paragraph (a),
of the Convention for the establishment of the Organization. This provision
lays down, for the election of the fourteen members of the said Maritime
Safety Committee, one rule of general application and two rules of
particular application. The general rule is a basic rule which
characterizes the whole system, that according to which the members shall be
elected "from the Members, governments of those nations having an important
interest in maritime safety". The rules of particular application relate
respectively to the election of not less than eight members which "shall be
the largest ship-owning nations" and to the election of the six other
members. It is clear that the basic rule, which is the principal rule, is to
be applicable in all circum-stances, whether as regards the election of the
eight members being the largest ship-owning nations or as regards the six
other members. All are to be elected in the light of the contribution which
they can make to maritime safety. The particular rule relating to the
largest ship-owning nations is logically subject to the observance of this
principal rule. The latter is inseparable from the entire context of Article
28 (a) of the Convention.
That Convention confers upon the IMCO Assembly the necessary powers to elect
all the members of its Maritime Safety Committee. It establishes it as the
electoral body. Its task is not confined to the mere ascertaining of the
largest ship-owning nations and the electing of the first eight members. It
must classify them. Any other interpretation would confer upon the gross
tonnage figures listed periodically in Lloyd's Register of Shipping a
determining function not attributed to them by the Convention. Had such been
the intention of the drafters of the Convention, they would not, in order to
achieve this purpose, have selected the procedure of election, but' that of
ex officio nomination. A power of election is incompatible with a mandatory
obligation to designate a particular country. The Assembly thus has a
measure of appreciation sufficient to determine, according to its own
criterion, which of those having an important interest in maritime safety
are the largest ship-owning [p 178] nations. Being composed, as it is, of
representatives of countries directly interested in maritime questions, it
was in a position to appreciate which were the best qualified, from the
technical viewpoint, to assume responsibility for maritime safety.
The reference to "the largest ship-owning nations" must therefore be
regarded as having a practical significance in relation to international
merchant shipping. The words do not necessarily refer to the gross tonnage
figures for the different countries, which appear in the statistical tables
published by a private international organization. The Convention contains
no provision to that effect. The purpose of those tables is not to determine
the importance of the merchant fleets of the various nations, but the
registered gross tonnage of the ships sailing under their flag. The
registration of shipping by an administrative authority is one thing, the
ownership of a merchant fleet is another. The latter reflects an
international economic reality which can be satisfactorily established only
by the existence of a genuine link between the owner of a ship and the flag
it flies. This is the doctrine expressed by Article 5 of the Convention on
the High Seas which was signed at Geneva on 29 April 1958 by all the
eighty-six States represented at the Conference that drew it up. This
provision, by which international law establishes an obligation binding in
national law, constitutes at the present time the opinio juris gentium on
the matter.
A merchant fleet is not an artificial creation. It is a reality which
corresponds to certain indispensable requirements of a national economy. As
an aspect of the economic activity of a country, it governs the amount of
the normal movement of its international trade. It cannot be used for other
purposes, save only when a great development of commercial activity leads a
country—as in the case of nations which are ultra-developed economically—to
use its fleet industrially for the provision of services. The flag—that
supreme emblem of sovereignty which international law authorizes ships to
fly—must represent a country's degree of economic independence, not the
interests of third parties or companies. This is a consequence of the very
structure of world economy, of which merchant shipping is one of the
principal supports.
For all these reasons, which the IMCO Assembly had full authority and
opportunity to appreciate, I consider that the Maritime Safety Committee of
the Organization, which was elected on 15 January 1959, was constituted in
accordance with the Convention for the establishment of the Organization.
(Signed) Lucio M. Moreno Quintana.
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