IMO Institutional Structure and Law-Making Process
(1)
Faculty of Law, Queensland University of Technology, Brisbane, Queensland, Australia
2.1 Introduction
The International Maritime Organisation (IMO ) has a very distinctive process of facilitating adoption and amendment of international legal instruments for the prevention of marine pollution from ships. The actors who influence the process of IMO law-making are also diverse, including both state and non-state actors. Nevertheless, IMO is one of the most successful organisations in developing international law for the conservation and protection of the marine environment, particularly in preventing vessel-source marine pollution. This chapter will present a brief overview of the IMO law-making process and institutional structure of the organisation.
Section 2.2 of this chapter discusses the various state and non-state actors involved or influential in the law-making process in IMO. They include Member States, United Nations and other intergovernmental organisations and international non-governmental organisations. Together these actors represent different types of interests, including coastal, port, shipping, cargo, international business, security and environmental, amongst others. IMO’s Institutional framework and institutional politics is another important factor in the law-making process. Section 2.3 of this chapter covers this issue by presenting an overview of the institutional structure of the organisation and the role of different organs in the law-making process. Section 2.4 of this chapter highlights the IMO law-making process with a particular emphasis on the specialised character of IMO law-making and its uniqueness. This foundation discussion will help to contextualise the discussion in the subsequent chapter dealing with specific marine environmental issues.
2.2 Actors in the IMO Law-Making Process
The IMO Convention of 1948 created room for three types of entities to participate in the IMO law-making process. These are member states (including associate members), inter-governmental organisations as observer organisations, and international non-governmental organisations as organisations with consultative status.
2.2.1 Member States
Presently, IMO has 170 Member States1 and three Associate Members2 representing all regions of the world. Subject to the relevant provision of the IMO Convention 1948, all States are eligible to become Members of the organisation.3 United Nations members are allowed to become members of the organisation by joining as a party to the IMO Convention 1948. There is an elaborate mechanism for gaining membership for the countries which are not members of the United Nations.4 Any Territory or group within a Member State may be an associate member if it is a territory to which the Convention has been made applicable under Article 72, by the Member having responsibility for its international relations or by the United Nations. Member States of the IMO may be divided into different groups depending on their interest in the organisation.
2.2.1.1 Port, Coastal and Flag States
The first dynamic of IMO members’ interests is the conflict between the interest of port or coastal and flag States. However, this type of binary division is practically impossible because a country may be a port state while simultaneously being a coastal or flag state. Nevertheless, a State may consider one of these roles more important than the other due to its economic, geographical and environmental interests. For example, a State with a huge merchant fleet may largely represent the interests of its shipping companies because revenue from this sector is a major source for national income. This is particularly true for ‘flag of convenience’ (FOC ) countries.5 As of 2011, around 69.7 % of the total global merchant fleet operates under FOCs.6 FOC has been defined as the “flag of any country allowing the registration of foreign-owned and foreign-controlled vessels under conditions which, for whatever the reasons, are convenient and opportune for the persons who are registering the vessels”.7 Under international law, an owner has full liberty to choose the flag for his or her ship. Consequently, every State has the right to set its own regulation and standards for registration of ships. Both the 1958 Geneva Convention on High Seas and UNCLOS (articles 91 and 94) impose a condition of ‘genuine link’ between the ship and the flag State, without precisely defining the term. This seems to be an incomplete provision which creates more problems than it solves. Its ambiguity has led scholars to interpret the term in a variety of different ways with divergent results. Most scholars come to the conclusion that a mere administrative act such as registration is sufficient to fulfil the condition of “genuine link”.8
Moreover, there is strong support for the opinion that lack of a ‘genuine link’ is not sufficient to refuse nationality of a ship. As observed by the International Tribunal for the Law of Sea (ITLOS ) in the M/V “SAIGA” (No. 2) Case :
…there is nothing in article 94 to permit a State which discovers evidence indicating the absence of proper jurisdiction and control by a flag State over a ship to refuse to recognize the right of the ship to fly the flag of the flag State. …… The conclusion of the Tribunal is that the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.9
All these shortcomings open up the profitable business of FOC at the cost of environmental protection and safety. FOC countries may consider environmental protection is not an important issue for them.
In contrast, a country may consider its role as a coastal state is very vital. Australia is a good example. With its large pristine marine areas, such as the Great Barrier Reef, Australia considers its role as a coastal State as vital. Indeed, Australia has advocated for more robust international regulation for the protection of the marine environment from vessel-source pollution, having submitted a proposal in 1990 urging MEPC to establish the Great Barrier Reef Particularly Sensitive Sea Area (PSSA)10 for the introduction of a system of pilotage and mandatory ship reporting. The Great Barrier Reef PSSA is the first PSSA approved by IMO.
2.2.1.2 Developed, Developing and Least Developed States
Like other international organisations IMO Member States are also deeply divided into developed, developing and least developed States; a division which has existed from the very beginning of the organisation. There is an assertion that “the developed-developing state dynamics underlying much of international discourse in the 1970s have largely dissipated. The more relevant tussle at IMO today is one between coastal and port states seeking greater control over foreign ships and maritime states seeking to uphold the freedom navigation”.11 In fact the north–south divide is still a dominating factor in the IMO discourses. The presence of issues like the implementation of the principle of Common but Differentiated Responsibilities (CBDR ) is more apparent than ever in current IMO discourses. As will be discussed in Chaps. 5 and 6 dealing with the issue of shipbreaking industry and reduction of emissions of greenhouses gases from international shipping, there is a serious divide and ongoing conflict between developed and developing States. This debate is playing a catalyst in profoundly resurfacing relatively older north–south debates, like the issue of technology transfer and assistance. Recent negotiations in MEPC, particularly in the context of climate change, show developed and developing countries are debating with each other as groups. That is a clear sign of serious north–south divide, like in other areas of international law-making. However, despite serious interest involved particularly in the areas of climate change and shipbreaking, least developed countries are not playing an active role in the debate as a group. For example, the 48 nations comprising the Least Developed Countries group work together in the intergovernmental negotiations under the UN Framework Convention on Climate Change (UNFCCC ).12 However, they do not work together in the IMO negotiations relating to climate change and international shipping. This may be due to their divergent interests regarding the maritime sector.
Nevertheless, IMO is still mainly dominated by developed countries despite the scope for equal participation in most of the IMO organs. As will be discussed later in this chapter, there is a role of non-governmental actors behind this domination.
2.2.2 United Nations and Other Intergovernmental Organisations
IMO is a specialised agency of the United Nations in the fields of shipping and the effect of shipping on the marine environment.13 The IMO Convention 1948 provides that IMO shall cooperate with any specialised agency of the United Nations on matters of common concern.14 The IMO Convention 1948 also provides that IMO may cooperate with other intergovernmental organisations whose interests and activities are related to the purpose of the organisation.15 In accordance with these provisions IMO has signed agreements of cooperation with 63 intergovernmental organisations.16 Some of these organisations are specialised organisations from the maritime sector or regional organisations active in maritime sectors. These organisations, particularly some regional organisations, may have and exert serious influence on the Member States’ opinions regarding marine environmental issues under IMO ’s consideration. For example, the European Commission as the executive body of the European Union is an observer organisation in IMO. The European Union has serious influence on other Members because a regulation adopted by the European Union may be binding for the Member States. Therefore, Member States of the European Union may try to impart the European Union’s view on the IMO negotiation process.17 There is even a discussion on whether the European Union should take full membership of IMO, although this is in fact impossible without amending the IMO Convention 1948.18
IMO works cooperatively with other organisations and programs in the United Nations system for matters related to marine environment. One such example is IMO’s interaction with United Nations Environment Program.
2.2.3 International Non-governmental Organisations with Consultative Status
International non-governmental organisations (INGOs ) play a significant a role in the IMO law-making process despite not having any voting rights in IMO organs. IMO Convention 1948 empowers IMO to make suitable arrangements after consultation and cooperation with non-governmental international organisations on matters within the scope of IMO.19 In 1961, in accordance with a provision, the IMO Assembly approved the Rules for Consultative Status of Non-Governmental International Organizations with the International Maritime Organization. IMO Council developed Guidelines in this regard in 1978. The Rules and Guidelines were amended several times.20 According to these the IMO Council, with the approval of the IMO Assembly, may grant consultative status to an INGO if that organisation is able to make a substantial contribution to the work of IMO. Seventy-seven INGOs have been granted consultative status in IMO.21 INGOs represent a variety of interests in the IMO marine environmental discourses, including different types of shipping interests (for example ship-owners and operators), cargo interests (for example cargo owners and charters), seafarers and other labour organisations, environmental organisations, research organisations, training organisations, classification societies, organisations representing marine-related industries, protection and indemnity insurance clubs and other marine insurers.
Among these organisations, those representing ship-owners and operators appear to be the most powerful. They even have the capacity to influence the Member States with vested shipping interests. Another very vocal group is cargo owners and charters, particularly big oil companies. Classification societies, protection and indemnity insurance clubs and other marine insurers are also active participants in the IMO marine environmental law-making process. Environmental NGOs also actively participate in the MEPC meetings and make regular submissions.
Non-governmental organisations do not just influence the law-making process merely by their submissions and participation in the meetings of MEPC and other IMO organs. Their main influence comes via IMO Member States who also share similar interests. The presence of FOC countries in the leading position of IMO created a further avenue for shipping companies to exert influence on the IMO law-making process, as they virtually have a client–service–provider relationship with those countries. The participation of non-governmental organisations in IMO is more apparent than many other similar international organisations. These issues will be elaborated further in subsequent chapters with practical examples.
2.3 IMO Institutional Framework and Institutional Politics
As noted in the previous chapter, IMO has gone through many structural changes in respect of its institutional framework for marine environmental issues. The IMO mainly consists of an Assembly, a Council, a Maritime Safety Committee (MSC), a Legal Committee, a Marine Environment Protection Committee (MEPC), a Technical Co-operation Committee and a Facilitation Committee. These main organs are supported by a number of sub-committees. Although MEPC plays the most vital role in environmental matters, other IMO organs have a critical role to play in respect of the prevention of marine pollution from ships. Initially, IMO had only four organs: the Assembly, Council, Maritime Safety Committee and Secretariat. Other committees have gradually developed to deal with growing issues and complexities surrounding international shipping (Fig. 2.1).
Fig. 2.1
IMO institutional structure
2.3.1 Assembly
IMO Assembly consists of all members of the organisation.22 Assembly is the supreme body of the organisation. It has a role in the election of other organs of IMO, approval of budget, approval of work programme of the organisation, and overall control of the activities of the organisation.23 The Assembly has a specific role in recommending Members States’ adoption and amendment of the regulations and guidelines for the prevention and control of marine pollution form ships.24 However, the Assembly usually passes resolutions on the basis of the recommendations from other organs of the organisation with specific responsibilities. Assembly recommendations are not legally binding. However, it is common that these recommendations are incorporated in national law as they are treated as international standards. The Assembly’s function also includes taking decisions for convening international conference or following any other appropriate procedure for the adoption and amendments of international conventions which have been developed by the MEPC or other organs of IMO.25
2.3.2 Council
The Council is the second organ in the IMO hierarchy. There were many amendments regarding membership of the Council. Initially, this executive organ of IMO was mainly dominated by developed maritime States. However, gradual expansion of membership somewhat changed the dynamic. As will be discussed in the subsequent chapters, the expansion of membership in itself is not enough to ensure greater participation of developing countries, particularly least developed coastal States. At present, the Council consists of 40 members elected by the Assembly. In electing the Council members, the Assembly must ensure the representation of the following members: ten members with “the largest interest in providing international shipping services”; ten members “with the largest interest in international seaborne trade”; and 20 members with “special interests in maritime transport or navigation” ensuring the representation of all major geographic areas of the world.26 There is a tension between developed and developing countries regarding the election in the Council. There was a controversy regarding election of the Council members in the 24th Assembly held in 2005 because despite the provision for ensuring the representation of all major geographic areas of the world, Assembly did not elect members form West Arica, Central Africa, Latin America and Eastern Europe.27
The Council is responsible for all the functions of the IMO Assembly between sessions of the Assembly, except making recommendations under article 15(j) regarding adoption of regulations and guidelines.28 The Council is entrusted with the responsibility of considering budget estimates and work programmes of different IMO organs, and with submitting those to the Assembly.29 The Council is also responsible for receiving reports, proposals and recommendations from other IMO organs and transmitting the same to the Assembly and, if the Assembly is not in session, to the Members for information with comments and recommendations.30 The Council is empowered to appoint the Secretary-General subject to approval of the Assembly.31 It is also responsible for appointment of other administrative and technical staff members of the organisation.32 It is also responsible for establishing relationships with other organisations.33
2.3.3 Maritime Safety Committee (MSC )
Although MSC’s work revolves mainly around maritime safety and security, its work also has some relevance for the prevention of marine pollution. MSC consists of all Members of the organisation.
Initially, the MSC was constituted by 14 Members. According to the original article 28(a) of the IMCO Convention, MSC shall consist of 14 members elected by the Assembly, including at least 8 of the largest ship-owning nations. The IMCO Assembly in its first meeting, held from January 6 to 19, 1959, elected the United States, United Kingdom, Norway, Japan, Italy, Netherlands, France and Germany as the largest ship-owning nations. Liberia and Panama seriously objected the inclusion of France and Germany because both Liberia and Panama have larger ship-owing interests than France and Germany. Against this backdrop, on 19 January 1959, the IMCO Assembly decided to request the International Court of Justice to give an advisory opinion as to whether the election of MSC was in accordance with the IMCO Convention. The main argument of the nations who were opposing inclusion of Liberia and Panama is that both of these countries are FOCs and they do not have a ‘genuine link’ with the vessels flying their flags. However, the International Court of Justice decided that the committee elected by the Assembly was not constituted in accordance with the IMCO Convention and stated 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.34
This controversy demonstrates the north–south tensions inhering in the organisation from the very first meeting of the Assembly. However, representation of a FOC country in an important organ of the organisation does not necessarily ensure participation of developing or Least Developed Countries. A FOC country may ultimately be used as a rubber stamp of large shipping companies beneficially owned by developed countries. In 1974, in the fifth extraordinary session of the IMO Assembly, the IMO Convention was amended to include all members of the organisation in MSC.
MSC is historically linked with IMO’s activities regarding marine pollution. The first marine pollution-related organ of the organisation, the Sub-committee on Oil Pollution (SCOP), was established in 1965 as a sub-committee of MSC. Marine pollution-related IMO activities were undertaken through MSC after this and, in 1973, SCOP was renamed as the Sub-committee on Marine Pollution (SCMP ). After the establishment of MEPC as a separate organ, marine environment-related works were transferred to it. Nevertheless, MSC is still relevant for marine environment because many of its activities are directly or indirectly relevant for the prevention of pollution from ships. These include aids to navigation, construction and equipment of vessels, the prevention of collisions, handling of dangerous cargoes, maritime safety procedures and requirements, hydrographic information, navigational records, salvage and rescue.
2.3.4 Marine Environment Protection Committee (MEPC )
MEPC was established as a permanent subsidiary organ of the Assembly in 1973 in its 80th session. The ninth session of the IMO Assembly in 1975 institutionalised MEPC as an organ of IMO through an amendment of the IMO Convention. This amendment came into effect in 1982.
MEPC is at the forefront of IMO’s activities for the prevention of pollution of the marine environment from ships. The establishment of MEPC as a separate organ of the organisation has been termed as the formal recognition of marine environmental protection in the same status of maritime safety.35 MEPC has the power to consider any matter concerning the prevention and control of marine pollution from ships within the scope of IMO. The committee is entrusted with the responsibility of performing functions conferred upon the organisation under international legal instruments for the prevention and control of the marine pollution from vessels. In particular, MEPC is responsible for functions related to the adoption and amendment of regulations or other provisions stipulated in those legal instruments. It is also responsible for promoting measures for facilitation of enforcement of international marine environmental conventions. MEPC also gathers scientific, technical and any other practical information regarding marine pollution and, if needed, makes necessary recommendations and guidelines for combating such pollution. It also promotes cooperation with regional organisations in respect of marine environmental matters.36 Presently, virtually all negotiations for the legal instruments and amendment of existing legal instruments concerning marine environment and within the competence of IMO are facilitated through MEPC.
The workload of MEPC is growing enormously. For example, MEPC 66, held from 31 March to 4 April 2014, had 21 agenda items. Amongst others, these included harmful aquatic organisms in ballast water; recycling of ships; air pollution and energy efficiency; reduction of GHG emissions from ships; identification and protection of Special Areas and Particularly Sensitive Sea Areas; inadequacy of reception facilities; harmful anti-fouling systems for ships; promotion of implementation and enforcement of IMO legal instruments; technical co-operation activities for the protection of the marine environment; and noise from commercial shipping and its adverse impacts on marine life.37 To deal with such an enormous workload MEPC regularly establishes working groups, inter-sessional working groups, review groups and ad hoc expert working groups for dealing with specific issues.
2.3.5 Technical Cooperation Committee (TC )
The Technical Cooperation Committee was established in 1969 as a subsidiary body of the Council to facilitate technical cooperation for implementation of IMO instruments. In 1977, the tenth session of the IMO Assembly adopted a resolution amending the IMO Convention to include this committee as one of the principal organs. All members have membership in this committee. The committee is responsible for reviewing the Secretariat’s activities concerning technical cooperation. It overseas the implementation of technical cooperation projects funded by the United Nations and other sources and matters related to the organization’s activities in the technical cooperation related activities of IMO.38 The role of the Technical Cooperation Committee is more important than ever because IMO’s marine environmental activities are gradually expanding to issues where north–south tension is high. For example, IMO’s activities regarding the reduction of GHG emissions from international shipping involves serious debate between developed and developing countries as to the implementation of the principle of Common But Differentiated Responsibilities. Ensuring technical cooperation with developing countries may be one possible mechanism for implementation of this principle in a way that is universally acceptable. Moreover, IMO has expanded its work to areas like shipbreaking. This is, in fact, controlling an industry which is predominately located in the developing world. Technical cooperation may be a vital issue in this regard.
2.3.6 Legal Committee (LEG )
The establishment of the IMO Legal Committee is historically linked with marine environmental protection. The Legal Committee was established in 1967, as a temporary committee under the IMO Council, after the Torrey Canyon oil spill to identify the relevant legal issues surrounding this incident.39 The Legal Committee played an instrumental role in adopting IMO legal instruments to establish a comprehensive legal framework for compensation for vessel-source marine pollution damage. These legal instruments will be discussed in the next chapter. In its ninth session in 1975, the IMO Assembly institutionalised this Committee as a major organ of the organisation through adoption of an amendment to the IMO Convention. After the entry into force of this 1975 amendment in 1982, the legal Committee became a permanent organ of the organisation. The committee consists of all IMO members.40 The Committee is authorised to consider any legal matters, including environmental legal matters, within the scope of IMO.41 The Legal Committee meets at least once a year.42
2.3.7 Facilitation Committee (FAL )
In 1968, IMO established the Facilitation Committee to advise the IMO Council on matters related to facilitation, particularly with respect to the implementation of the 1965 Convention on Facilitation of International Maritime Traffic, which came into effect on 1967.43 This Committee was established as a permanent subsidiary body of the IMO Council in 1972. In 1991, the IMO Assembly institutionalised this committee as one of the main permanent organs of the organisation through adoption of an amendment to the IMO Convention. This amendment came into force in 2008, making this committee one of the main permanent organs of the organisation. The Committee consists of all members and is empowered to consider any matter within the scope of the IMO related to the facilitation of international maritime traffic. There is some indirect relevance of this committee’s activities for the prevention of marine pollution from ships.
2.3.8 Sub-committees
The IMO also has seven subcommittees to assist the work of MEPC and MSC including the following:
1.
Subcommittee on Human Element, Training and Watchkeeping (HTW);
2.
Subcommittee on Implementation of IMO Instruments (III);
3.
Subcommittee on Navigation, Communications and Search and Rescue (NCSR);
4.
Subcommittee on Pollution Prevention and Response (PPR);
5.
Subcommittee on Ship Design and Construction (SDC);
6.
Subcommittee on Ship Systems and Equipment (SSE); and
Among these subcommittees, the subcommittee on Pollution Prevention and Response (PPR ) is the most significant for the prevention of marine pollution. The PPR is entrusted with the duty to consider technical and operational matters related to:
prevention and control of pollution of the marine environment from ships and other related maritime operations;
safe and environmentally sound recycling of ships;
evaluation of safety and pollution hazards of liquid substances in bulk transported by ships;
control and management of harmful aquatic organisms in ships’ ballast water and sediments, and biofouling; and
pollution preparedness, response and cooperation for oil and hazardous and noxious substances.45
The activities of the Subcommittee on Implementation of IMO Instruments is also very important as many IMO marine environmental instruments lack the proper implementation at the national level, particularly in developing and least developed countries. Before the recent restructuring of subcommittees, there were nine subcommittees assisting the MEPC and MSC .46 The recent structuring clearly reflects the changing pattern of IMO activities related to the marine environment.
2.3.9 Secretariat
The Secretariat is one of the original organs of IMO. It consists of a Secretary General and such other personnel as may be required. Presently, the IMO Secretariat is supported by about 300 international personnel.47 The Secretariat is responsible for the overall administrative activities of the organisation, including record keeping.48
2.3.10 IMO Funding and Influence
IMO committees and sub-committees are mainly dominated by developed countries. Unlike the United Nations Security Council, it is not because of any deficiency in the institutional framework of the organisation. Developing countries, particularly least developed countries, are simply not able to send big delegations like some developed countries do, and with proper expertise in the countless meetings of different IMO bodies. FOC least developed countries may be represented regularly, but it is questionable how independent their voices are. Until recently, IMO was a club of developed countries with serious shipping interests. However, because of the expansion of IMO’s works into issues like climate change and shipbreaking, some leading developing countries such as China , India and Brazil are showing a growing interest in participating in IMO committees.
Interestingly, despite the domination of developed countries, some developing countries have become major contributors of the IMO Budget. Financial statements of IMO in the year ended 31 December 2012 included the top ten assessed contributions of the member states (see Table 2.1).