International Maritime Organization (IMO)
1. Aim, structure and objectives
The International Maritime Organization (IMO, henceforth ‘the Organization’) was established by the states parties to the Convention on the International Maritime Organization of 6 March 1948, and officially began its existence when the convention came into force on 17 March 1958. The first session of the Organization was in January 1959. Its initial name Inter-Governmental Maritime Consultative Organization (IMCO) was changed to IMO in 1982. The seat of the Organization is London.
With presently 169 members and three associate members, IMO is the most important international organization with regard to maritime transport. As an intergovernmental organization it has the status of a specialized agency of the United Nations. IMO has seven main bodies: The Assembly consists of all members and meets once every two years; it may also convene extraordinary sessions. The Council is composed of 32 members elected in accordance with certain criteria by the Assembly for two years. It is the executive organ of IMO between the sessions of the Council. Statutory committees provided by the IMO Convention are the Maritime Safety Committee (MSC), the Legal Committee (LC), the Marine Environment Protection Committee (MEPC) and the Technical Co-operation Committee (TCC). The Secretariat comprises the Secretary-General appointed by the Council with the approval of the Assembly and other personnel appointed by him. He is the chief administrative officer of the Organization. The Organization also has established sub-committees on Bulk Liquids and Gases (BLG), Carriage of Dangerous Goods, Solid Cargoes and Containers (DSC), Fire Protection (FP), Radio-communications and Search and Rescue (COMSAR), Safety of Navigation (NAV), Ship Design and Equipment (DE), Stability and Load Lines and Fishing Vessels Safety (SLF), Standards of Training and Watchkeeping (STW), and Flag State Implementation (FSI). Members and associate members may participate in each committee and subsidiary organ; certain non-governmental organizations enjoy consultative status at IMO.
IMO shall provide machinery for cooperation between governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping in international trade. It shall encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and, since 1982, in the prevention and control of marine pollution from ships. Since 1985 IMO has also been engaged in the development of measures to prevent unlawful acts against the safety of ships and the security of their passengers and crews. IMO shall also deal with administrative and legal matters related to these objectives. In order to achieve these purposes it is engaged in the drafting and adoption of conventions concerning the law of the sea and maritime law, and it may convene diplomatic conferences for their adoption. Its further legal instruments are resolutions of the Assembly as well as binding or non-binding codes, guidelines and handbooks.
Article 1(b) IMO Convention envisages the removal of discriminatory action and unnecessary restrictions by governments affecting shipping engaged in international trade. Article 1(c) provides for the consideration by the Organization of unfair restrictive practices by shipping concerns. Because these objectives were rejected by the main shipping nations, the entry into force of the Convention had been delayed for 10 years until the states parties tacitly came to the understanding that these objectives would not be pursued by the Organization. Instead, they have been dealt with by UNCTAD since 1965 for a while, whereas today they are approached by the WTO—however, still without much success.
IMO conventions are applicable to ships which are used in international maritime trade. A ‘ship’ may also be a movable offshore drilling unit if the relevant convention so provides. The Organization is also competent with regard to seagoing vessels in port facilities, including the seaward approaches and berths. Its competence also relates to the ship-port interface, but not to inland waterway transport.
The Organization carries out several other tasks assigned to it by or under international conventions on both maritime shipping and the effects of shipping on the marine environment, as eg the International Convention for the Safety of Life at Sea (SOLAS), 1974, and the International Convention for the Prevention of Pollution from Ships, 1973, and the Protocol of 1978 relating to it (MARPOL 73/78). Whenever the United Nations Convention on the Law of the Sea (UNCLOS) refers to the ‘competent international organization’ (eg in Art 22(3); 41(4) and (5); 53 (9); 60(3) and (5) or Art 211(5) and (6) UNCLOS), reference is being made to IMO.
2. Relations with other organizations
Before IMO came into existence, the Comité Maritime International (CMI), a non-governmental organization established in 1897, was engaged in the unification and development of maritime law. It has prepared, inter alia, the ‘Hague Rules’, signed in Brussels on 25 August 1924, and the ‘Visby Rules’, signed in Brussels on 23 February 1968, with a protocol of 21 December 1979 (maritime transport (contracts of carriage of goods)). It also prepared the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-going Ships, which was signed in Brussels on 10 May 1952. The CMI is still an important forum on a private basis for the mentioned purposes. But since the Organization has been established as the principal intergovernmental forum for the unification and development of maritime rules and regulations, IMO has drafted most international conventions in the field of maritime law. It held conferences for the purpose of the negotiation of such conventions and coordinated the global intergovernmental cooperation in maritime affairs. The Organization may recommend, however, that a matter should be settled through normal processes of international shipping business, which in effect means by the CMI.
The United Nations Organization itself is responsible for certain maritime conventions as well; in particular UNCITRAL and UNCTAD deal with maritime transport. UNCITRAL has prepared the United Nations Convention on the Carriage of Goods by Sea, the ‘Hamburg Rules’, signed on 31 March 1978. The United Nations initiated the Convention on a Code of Conduct for Liner Conferences of 1974, the Convention on International Multimodal Transport of Goods of 1980, the United Nations Convention on the Law of the Sea of 1980, and the Convention on Conditions for Registration of Ships of 1986. The International Convention on Maritime Liens and Mortgages of 1993 and the International Convention on Arrest of Ships of 1999 are the result of a cooperation between IMO and the United Nations. On 11 December 2008, the General Assembly adopted by resolution the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea. The Convention, which contains the so-called ‘Rotterdam Rules’, was opened for signature at Rotterdam on 23 September 2009. As of 1 June 2011 it has been signed by 23 states, but only Spain has ratified it.
Besides IMO, other specialized agencies of the United Nations also contribute to the development of the law of the sea and maritime law in special fields. The International Labour Organization (ILO) has a mandate for maritime labour law, labour standards and social protection in shipping. It has adopted numerous maritime labour conventions—38 of which will be revised by the Maritime Labour Convention 2006, when it enters into force—as well as codes of practice, guidelines and reports. The International Telecommunication Union (ITU) is in charge of the regulation of maritime satellite navigation and telecommunication. UNESCO has adopted the Convention on the Protection of the Underwater Cultural Heritage 2001, which has been in force since January 2009.
On the regional level, the EU is concerned with the safety and security of shipping and pollution from ships. A detailed directive regulates the port state control (PSC) of foreign ships which enter territorial waters of the Member States. The Erika I and II packages of the EU provide several measures to improve maritime safety in general and of oil tankers in particular. In this context the EU adopted a regulation on measures to prevent single hull oil tankers from entering Union waters; and it established a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services. With regard to maritime services in general, it enacted legislation regarding the application of the principles of freedom to provide services and of fair competition and free access to the market in sea transport between its members and with third states. It abolished, with certain specific exceptions, the so-called ‘maritime cabotage’ reservation, thus setting forth the principles of freedom to provide services in sea transport within its Member States. A directive of 2009 lays down rules relating to certain aspects of the obligations of shipowners as regards their insurance against maritime claims. The legislation of the EU is no doubt furthering the aims and objectives of the Organization—as long as it is not in conflict with IMO conventions.
3. The activities of IMO in the field of private law
To date, approximately 50 conventions on various maritime matters including maritime transport have come into existence under the auspices of IMO. Several conventions determine limitations of civil liability in shipping (maritime transport (global limitation of liability)). Examples for this are the Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material of 1971 (NUCLEAR 1971) and the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea of 1974 (PAL 1974) with protocols of 1990 and 2002. Under the Convention on Limitation of Liability for Maritime Claims (LLMC), 1976, shipowners and salvors may limit their liability in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works) occurring on board or in direct connection with the operation of the ship by constituting a limitation fund of a certain sum. However, claims for damage caused by salvage, oil pollution or nuclear material are excluded. The Protocol of 1996 (LLMC 1996), which entered into force in 2004, considerably increased the amount of compensation and introduced a ‘tacit acceptance’ procedure for updating it.
The International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC), which entered into force in 1975, provided for the first time for a strict liability of the shipowner (marine pollution (compensation)). His liability for oil pollution damage resulting from persistent oil from tankers is limited in order to make insurance of his risk possible. The 1969 CLC was revised by the Protocol of 1992 (1992 CLC), which has been in force since 1996. Supplementary to the CLC is the International Oil Pollution Compensation Fund (IOPC Fund) which compensates for damage caused by oil spills from tankers that is not covered by the CLC. The IOPC Fund 1971 was established by the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 1971, which has been revised by several Protocols in order to increase the compensation amounts. In 2002 it ceased to be in force; incidents that occur thereafter are dealt with by the 1992 IOPC Fund, which was set up under a Protocol of 1992. In addition an optional Supplementary Fund was set up in 2005 under a Protocol of 2003. The Funds are intergovernmental organizations with legal personality in private law. Contributions to the 1992 IOPC Fund are levied on all persons in a contracting state who receive annually more than 150,000 tonnes of oil by sea.
The International Convention on Salvage of 1989 (SALVAGE 1989), which replaced the Brussels Convention of 1910, provides uniform international rules regarding salvage including the liability and the reward of salvors.
The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea of 1996 (HNS Convention 1996) regulates the liability of the shipowner with regard to such substances. In principle, this convention is to enter into force after ratification by at least 12 states. As of 1 June 2011, 14 states have ratified, but because further conditions have not been met, the HNS Convention is not yet in force.
The International Convention on Civil Liability for Bunker Oil Pollution Damage of 2001, which has been in force since November 2008, also provides for strict liability of the shipowner and its limitation along the lines of the LLMC; but there is no international fund related to the Bunker Oil Convention.
The Nairobi International Convention on the Removal of Wrecks of 2007 (NAIROBI WR Convention 2007) has not yet entered into force, but low entry requirements make its entry in due time probable. The convention provides for strict liability of the shipowner for the costs of locating, marking and removing a wreck and for the allocation of risks it may cause. Compulsory insurance is required for liability subject to the provisions of the convention.
Besides these conventions, the IMO has adopted more then 800 codes and recommendations, many of which also relate to maritime law. Whilst most contain non-binding standards or guidelines which serve practical purposes, some important ones are legally binding. Examples are the International Maritime Dangerous Goods (IMDG) Code, which became mandatory in 2004, or the International Management Code for the Safe Operation of Ships and for Pollution Prevention (ISM Code 1993), which has been mandatory since 1998.
4. Conditions for entry into force and tacit acceptance
IMO conventions contain particular conditions for their entry into force. They enter into force after a certain number of states, which represent a specific percentage of the world’s fleet, have ratified them. The Bunker Oil Convention, for example, entered into force on 21 November 2008, one year following the date on which 18 states—including five states which each have ships whose combined gross tonnage is not less than 1 million tons—have deposited instruments of ratification or accession with the Secretary-General of the Organization. IMO provides information on the percentage of the world tonnage to which each convention amounts.
Another special feature of IMO conventions is the acceptance procedure relating to their amendment by the Organization or by a conference of its states parties. Pursuant to Art 16 of MARPOL 73/78, for example, an amendment of an article or an annex of the convention, which has been decided by a two-thirds majority of the states parties present and voting, is accepted if it has been accepted by a two-thirds majority of the states parties whose combined merchant fleets add up to at least 50 per cent of the gross tonnage of all merchant fleets of the world. An amendment of an addendum to an annex, which usually contains technical or environmental standards, is tacitly accepted unless one-third of all states parties or of the states parties with a combined gross tonnage of 50 per cent of the world fleet submit an objection to the Organization within a certain time of at least ten months. This procedure of tacit acceptance enables the fast and easy modification of existing IMO standards.
Kenneth R Simmonds, The International Maritime Organization (1994); Rainer Lagoni, ‘Die Internationale Seeschiffahrts-Organisation (IMO) als Rechtssetzungsorgan’ in Peter Ehlers and Wilfried Erbguth (eds), 50 Jahre Vereinte Nationen, Tätigkeit und Wirken der Internationalen Seeschiffahrts-Organisation (IMO) (1997), 45; Rolf Herber, Seehandelsrecht (1999); Benjamin Parameswaran, The Liberalization of Maritime Transport Services (2004); Vincent Power, EC Shipping Law (3rd edn, 2007).