The Council and the General Assembly of the International Maritime Organization ("IMO" or "the Organization") is currently faced with a constitutional issue that has remained unresolved since its founding half a century ago. The Inter-Governmental Maritime Consultative Organization ("IMCO"), the forerunner of the IMO, was established by the International Maritime Conference in Geneva in 1948. Its main technical organ then, the Maritime Safety Committee ("MSC" or "the Committee"), was to be elected from among the eight "largest ship-owning nations " in accordance with Article 28(a) of the Organization's 1948 Convention (the "Convention"). The Convention's drafters intended to limit membership of the Committee to a few exclusive and dominant traditional maritime nations ("TMNs")1 with effective interests in maritime safety. The development of flags of convenience (open registry) from 1920-1950, however, propelled Liberia and Panama into the group of the eight largest ship-owning nations. Nonetheless, the second IMCO Assembly, which met in 1959, failed to elect the two states to the MSC in accordance with Article 28(a). Unable to resolve the issue internally, the matter was referred to the International Court of Justice ("ICJ" or "the Court"). The Court, in an advisory opinion, stated that without the two countries, the MSC was not properly constituted. Following internal and external developments the Constitution was amended, the Organization's name changed to IMO in 1982 and power transferred from the MSC to the Council. The Council expanded gradually from the 1960s, notably in 1993, to allow for wider "geographical representation" and for fuller participation by the developing maritime nations ("DMNs").2 However, at its 24th Session in November 2005, the Assembly election results for Council did not appear to follow either the letter or the spirit of the amendments. This has caused widespread concern, especially among the DMN Member States who have consistently advocated for either urgent reforms of electoral process or a return to the ICJ for another Advisory Opinion. Unless the issue is resolved soon, it is likely to undermine the Organization's credibility and activities for the foreseeable future. This paper assesses whether there will be an internal compromise and solution this time around or whether history will repeat itself at the IMO with a return to the ICJ. This article analyzes the history of the problem and possible scenarios in the event of a return to the ICJ against the background of the 1960 ICJ Advisory Opinion; the IMO Constitutional Amendments, especially the Amendment of 1993; constitutional experiences of the United Nations and comparable international organizations; international law and practices; and the IMO 24th Assembly elections to the Council in 2005.
The Inter-Governmental Maritime Consultative Organization ("IMCO") was established as a Specialized Agency3 of the United Nations in 1948 to regulate technical aspects (e.g., navigation and safety) of maritime transport.4 At the time of its founding, it consisted of only thirty-six Member States. Since that time, dramatic increases in both membership and the number of activities the Agency regulates has resulted in regular amendments to the Constitution, especially since the 1960s. The most significant constitutional amendment was to Article 17 in 1993,5 enlarging the membership of its principal organ, the Council, from thirty-two to forty members. Demands for democratization followed changes in the maritime industry beginning during the 1960s, the expansion of the Organization's membership beginning in the 1970s, and a growing perception among the developing maritime nation ("DMN") Member States that the affairs of the Organization were dominated by a handful of the traditional maritime nations ("TMNs"). Accordingly, Article 17 was amended to increase participation in the affairs of the Organization by the DMNs-especially those from Africa. …